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Moobe, J.
The original bill of conaplaint in this case was filed September 16, 1899. The amended bill of complaint was filed December 21, 1900. The case is commenced for the purpose of setting aside an order made by the board of school inspectors consolidating two school districts. The circuit judge was of the opinion the complainants had mistaken their forum; that, if they felt aggrieved at the action of the school inspectors, they should have appealed to the township board; and dismissed the bill of complaint. The case is brought here by appeal.
The record discloses that July 15, 1899, there was filed with the clerk of the board of school inspectors a statement, signed by the director of school district No. 7, that at the annual meeting a majority of the resident taxpayers had voted to consolidate school district No. 7 with school district No. 5; that the vote was 15 yeas, 2 nays. A like notice was received, signed by the director of school district No. 5, in which it was stated: “The question being that school district No. 5 consolidate with school district No. 7, and was carried in favor of consolidation, there being a majority of the resident taxpayers of said district voting in favor of consolidation, and the vote was found yeas 17 and nays 14.”
The school inspectors caused notices to be posted that they would hold a meeting August 1st to consider the matter of such consolidation. At that meeting, because of representations made, it was decided not to consolidate the districts, as the action of school district No. 5 was by some considered illegal. A special meeting of school district No. 5 was had, when the question of consolidation was again submitted, when it was declared the vote stood in favor of consolidation 14, opposed 15. The regularity of this meeting was questioned, and defendants claim the vote of the annual meeting to consolidate was not rescinded.
The board of school inspectors appointed a meeting for August 30th, to again consider the question of consolidation. Proper notices were posted by the township clerk of this meeting. The record discloses that a large number of the resident taxpayers from both districts were present and were heard by the board. The board also examined the assessment roll for the purpose of determining whether a majority of the resident taxpayers of each district were in favor of consolidation, and became satisfied they were. The board then made an order reciting that, both of said school districts having voted in favor of consolidation, the two districts were consolidated, and the new district was called No. 5. An order was also made designating a place for holding the first meeting on the 7th of September, proper notices of which meeting were served. The meeting was held, and the’ district officers were chosen. A school site was secured, and one of the school buildings was moved upon the new site before the first bill of complaint was filed in the case.
The parties in interest doubtless having some question as to the regularity of the proceedings up to the time of the filing of the bill, another special meeting was held in school district No. 5, when it was claimed a majority of the resident taxpayers again voted in favor of consolidation, the vote being 26 y_eas, 12 nays. The board of inspectors held another meeting, and again declared the two districts consolidated. A school meeting of the consolidated district was again held, school-district officers chosen, and a school has been maintained in the new district from thát time until this, and the district has drawn its proportion of public moneys.
The case, though commenced in September, 1899, and a decree made by the circuit judge in December, 1900, has been allowed to drag along, and was not presented to this court until the April term, 1902. In the meantime the only school district in fact in the consolidated territory for two years and eight months has been the new school dis- ■ tr’ict No. 5.
It has been held that the right of a board of school inspectors to set off a new school district does not depend upon a petition for said action. Gentle v. Board of School Inspectors, 73 Mich. 40 (40 N. W. 928). 2 Comp. Laws, § 4654, does not provide in what way it shall be shown to the board of school inspectors that a majority of the resident taxpayers had consented to the consolidation of the school districts. In Clement v. Everest, 29 Mich. 19, in considering the action of a board of school inspectors, Justice Campbell used the following language:
“Irregularities are common and unavoidable in the organization of such bodies; and both law and policy require that they shall not be disturbed except by some direct process authorized by law, and then only for very grave reasons. The policy of our law is to place the whole work of local administration in the hands of the people of the locality, and it cannot be expected that town officers will be always able to conform their actions to the strict rules of technical accuracy. In such matters as concern the public, and do not interfere with private property or liberty, such action as creates municipal bodies and gives them corporate existence cannot be questioned without creating serious disturbance. If the regularity of their organization can be kept open to question indefinitely, no one could ever be sure that any of the taxes or other matters concerning his town were valid, and the whole public business might be blocked by litigation. There are some matters affecting private rights which are scrutinized strictly, because no one can be deprived of private rights without conformity to law. Where one man’s property is taken for public purposes without his consent, the taking must be justified by regular action. But where the organization of a local corporation, as a town or district, is left to the will of any particular body of electors or officers, and they proceed to execute their powers and complete the organization, their executed will ought to stand if there has been a substantial compliance with the policy of the law giving them jurisdiction. Every presumption is to be made in favor of the regularity of such action; and where there is a valid law, and an organization under it which proceeds from the lawful agencies, it should be regarded as entitled to legal standing, unless measures are speedily taken to assail such action by some competent authority. Where an appeal is granted, it must be lawfully prosecuted. Where there is no appeal, the courts will never enlarge their remedies to interfere, where they can avoid it, with existing corporate bodies provided for by law, on any formal ground. The same rule which recognizes the rights of officers de facto recognizes corporations de facto; and this is necessary for public and private security. There are probably few towns or school districts where there has not been some looseness in proceedings to organize them. Such carelessness seldom leads to serious mischief, and where it does there are 'usually sufficient remedies without needless intermeddling.”
For the purposes of this case we do not deem it necessary to express any opinion as to whether the circuit judge was right in holding complainants have mistaken their remedy or not. The record discloses the board. of school inspectors satisfied itself that a majority of the resident taxpayers consented to the consplidation of the two districts, and, acting in good faith, proceeded to consolidate them. The new district at once proceeded to secure a new site, upon which a school building was moved, and where a school has been maintained. A school district de facto has been in existence all this time. We think no sufficient showing has been made to authorize us at this late date-to overturn the action of the board of school inspectors. People v. Every, 38 Mich. 405; Everett Tp. School Dist. No. 3 v. Wilcox Tp. School Dist. No. 1, 63 Mich. 51 (29 N. W. 489).
The decree is affirmed, with costs.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Hooker, C. J.
The complainant, a mortgagee, foreclosed her mortgage, which, when given, covered several distinct parcels of land. Defendant Chateauneuf had, after the execution of complainant’s mortgage, unbeknown to the complainant, purchased, entered upon, and improved one of said parcels, which we may designate as “Lot 8.” Several of the parcels were released from the mortgage after the sale of lot 8 to Chateauneuf. Being made a party defendant as a subsequent purchaser, Chateauneuf answered that lot 8 was discharged from liability, by reason of the release of other parcels primarily liable, and the court so decreed. The complainant has appealed.
Complainant’s mortgage was made on October 10, 1881. At that time there was no building upon lot 8. Defendant Chateauneuf bought the lot in'May, 1882, erected a house, and moved upon the premises in June, 1882, or thereabouts, and has since occupied it as a homestead. He received a deed from Lewis, complainant’s mortgagor, in 1887, when he gave a mortgage back to Lewis for $192. The evidence shows that the complainant released several parcels of land from the lien of said mortgage after the defendant Chateauneuf purchased and entered upon lot 8. There is, however, an absence of proof that either the complainant or her agent had actual notice of defendant’s rights. It is insisted by defendant’s counsel that complainant had constructive notice. The mere fact that defendant’s deed was of record is not constructive notice. In order to raise an equity in favor of a purchaser, it must appear, either that the mortgagee, before releasing, had notice of the sale by the mortgagor, or that the purchaser was claiming rights which would put a reasonably prudent man on inquiry. In such case he would be held to notice of facts which the record of the deed would disclose.
The defendant asserts that the circumstances of this case should constitute such notice as would put a prudent man on inquiry, claiming that the complainant’s agent was in the city once or twice a year, and must be chargeable with knowledge of defendant’s occupancy. We are referred to the case of Dewey v. Ingersoll, 42 Mich. 17 (3 N. W. 235), as a case in point, where it was held that the facts should have put the mortgagee upon inquiry. The facts were that the mortgaged premises were upon one of the principal streets of the village where the mortgagee resided, and the purchaser promptly recorded her deed and went into actual possession of the premises, made improvements, and resided thereon. There was evidence tending to show that one of the mortgagees had actual notice of these facts, and he, although examined as a witness, did not deny having notice. The present case falls short of this. Actual notice is clearly disproved. Chateauneuf appears to have been as ignorant of complainant’s mortgage interest as she was of his subsequent purchase, although, had he examined the record before purchasing, he would have learned of it; and such examination he was in duty bound to make, while the complainant was under no obligation to search the record for subsequent deeds. Stuyvesant v. Hone, 1 Sandf. Ch. 419; Cheesebrough v. Millard, 1 Johns. Ch. 414 (7 Am. Dec. 494); Howard Ins. Co. v. Halsey, 8 N. Y. 271 (59 Am. Dec. 478); James v. Brown, 11 Mich. 25; Cooper v. Bigly, 13 Mich. 476; Woods v. Love, 27 Mich. 309; Hall v. Edwards, 43 Mich. 475 (5 N. W. 652); Shelden v. Warner, 45 Mich. 640 (8 N. W. 529).
This court said, in the case of James v. Brown, supra:
■ “While the law requires every man to deal with his own so as not to injure another, it imposes a greater obligation on the other to take care of his own property than on a stranger to take care of it for him. And to make it the duty of the first mortgagee to inquire before he acts, lest he may injure some one, would reverse this rule, and make it his duty to do for the second mortgagee what the latter should do for himself. To affect the conscience, therefore, of the first mortgagee, — for this whole doctrine is one of equity jurisprudence, and not of positive law, — it would seem that he should have actual knowledge of the second mortgage. We do not say notice from the second mortgagee is absolutely necessary to enable him to claim the rights of which we have been speaking; but we do think that the existence of the second mortgage should clearly be brought home to the knowledge of the first mortgagee in such a way. as to show an intentional disregard by him of the interests of the subsequent mortgagee.”
We think, therefore, that the complainant has not impaired her security by her releases.
A trust deed was executed by Lewis, the mortgagor, to complainant’s husband, on the 30th day of November, 1894, whereby Lewis conveyed to him all of the property remaining in his name; also all leases and executory contracts outstanding. He was authorized to sell the property and apply the proceeds: (1) The expenses of the trust; (3) taxes; (3) insurance, if deemed advisable; (4) interest on complainant’s mortgage; (5) the principal of the mortgage; (6) reconvey remainder to Lewis. This trust was accepted in writing upon the expressed understanding that the same was not in any wise to bind said complainant, or be deemed payment of her mortgage,- or in any wise affect or impair the security, rights, or remedies given by said mortgage. It is contended by defendants’ counsel that this trust deed was given for the benefit of the complainant, and that it was her duty to collect rents from tenants and amounts outstanding upon executory contracts, and especially a sum secured by mortgage upon lot 8, given by defendant to Lewis, and which sum he is said to have afterwards paid to Lewis by reason of his ignorance of the existence of the complainant’s mortgage and the trust deed. Lewis was permitted to collect a .portion of the rents, and possibly some amounts due upon contracts.
We are unable to find that anything was paid to Lewis upon the mortgage after the trust deed was made, and, if it- could otherwise be claimed that the trust deed operated as an assignment of the mortgage to the complainant’s agent, it is not clear that it had not been previously paid to Lewis. Nor is there any proof that Balen ever heard of the mortgage. The record does not warrant us in saying that rents received by Mr. Lewis .were not applied in accordance with the trust deed, and we find no evidence showing how much, if any, collected by Lewis was not paid over. Neither does it appear how much, if any, was collected by the family after Lewis’ death, nor how much has been uncollected, if any. We must assume that the amount reported due upon the mortgage is correct, and feel constrained to hold that lot 8 should not be discharged from the mortgage. It should be the last parcel to be sold, however. The decree will be modified in this particular, and complainant will recover costs of this court against defendant Chateauneuf.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Montgomery, J.
This is certiorari to review a mandamus proceeding instituted in the circuit court for the county of Kent on petition of the relators, who are jurors summoned in the superior court for the September term, to compel a certification by the respondent of their attendance as jurors for the period covering the time between their first appearance and their final discharge. The question presented is whether they are entitled to compensation for the full period, although they were from time to time excused from attendance upon court for stated periods, or whether their compensation is limited to the days of actual attendance upon the court. The statute (3 Comp. Laws, § 11229) reads as follows:
“Each grand and petit juror, and each talesman, shall be entitled to receive two dollars for each day’s attendance, and one dollar for each half day, upon any term of the circuit court, or before any court of record, on the trial of a cause, and ten cents for each mile traveled in going and returning by the nearest traveled route, to be paid out of the county treasury of the county, on the certificate or order of the clerk or judge of such court.”
We think it very clear that this statute was intended to-limit the compensation to the days of actual attendance. It is the contention of the relators that the statute provides for two classes of payments, — one for attendance upon any term of the circuit court; and the other, attendance before any court of record on the trial of a cause. Assuming this to be true, the compensation is limited to each day’s attendance. If it be said that the juror is entitled to attendance for the entire term, the compensation could not be cut off, except >by an actual adjournment of the court without day. The jury could not be excused, and the-court continue in session for the disposition of non jury cases. We think, in actual practice, no such interpretation has ever been given to the statute. The only other permissible construction is that the juror is entitled to pay for the time actually in attendance upon the court, and that for any period during which he is excused from attendance-definitely he is not entitled to pay. A similar statute has been given this construction by the supreme court of California. See Jacobs v. Elliott, 104 Cal. 318 (37 Pac. 942); Mason v. Culbert, 108 Cal. 247 (41 Pac. 464).
The order directing a mandamus to issue will be reversed,, but, as the case appears to have been presented to determine a doubtful question of practice, no costs will be-awarded to either party.
Hooker, C. J., Moore and Grant, JJ., concurred.. Long, J., did not sit. | [
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Hooker, O. J.
The defendants have appealed from an adverse judgment rendered in an action upon a promissory note. They defended upon the ground that the note was obtained by duress and without consideration, and that it was executed by two of them upon the first day of the week, and not upon the day that it purports to have been executed. The learned circuit judge was of the opinion that the case involved no controlling disputed question of fact, but turned upon a question of law, and therefore directed a verdict for the plaintiff.
The plaintiff said that he became the owner of the note on Tuesday, June 13, 1899, in ignorance of any claim that it was executed by any of the makers or indorsers upon Sunday, or that it was executed through duress or undue influence. It was given in settlement of a claim made by the plaintiff against defendant Farnham; the Dowlings being sureties, and their names being written upon the back of the note before it was delivered to the plaintiff. The defenses set up in the plea were (1) want of consideration; (2) that the note was given under duress and fraud, and only after repeated threats of arrest and imprisonment of said defendants Frank H. Farnham and Zellner Dowling in an action brought against them by the Commonwealth of Pennsylvania on the criminal charge of conspiracy; (3) that George and William Dowling executed the note on June 11, 1899, — the first day of the week, — and not on the day. that the note purports to have been executed.
The plaintiff had made a contract in writing with Frank H. Farnham, by which he was made an agent to sell certain notions which Farnham professed to be dealing in, and paid Farnham a large sum of money on said contract. The arrangement did not prove satisfactory to the plaintiff, who claimed that Farnham had overreached him; and when, subsequently, he heard that Farnham had been arrested in Philadelphia, he went there, and saw him in jail, and urged a settlement. Farnham testified that plaintiff called upon him at the prison, and wanted him to settle the matter, and threatened to see the district attorney, and inform him of all that he knew about Farnham, in case he did not, with a view to putting said district attorney in possession of information which would aid in his prosecution of Farnham and Zellner Dowling, who was charged as a codefendant. This talk was twro weeks before the execution of the note, and plaintiff left with Farnham’s refusal to settle the claim, although plaintiff threatened to go before a grand jury in West Virginia, and get an indictment against Farnham, and have him extradited, and promised not to appear before the district attorney, and would see that no letters or papers were furnished him, if Farnham would sign the note.
The record does not clearly show the charge upon which Farnham was imprisoned, but enough appears to indicate that he and Zellner Dowling were arrested upon a charge of conspiracy. Dowling was released on bail, ahd both were interested in preventing the plaintiff from aiding the authorities in their prosecution. We agree with the circuit judge that the evidence clearly showed a liability to the plaintiff upon the contract; for it expressly gave him a right to reimbursement if he should so elect, and it is clear that he did so elect. It is said that this election was premature, and it may be that he co'uld not have enforced the contract right until after the expiration of 90, days after the date of the contract; but, however that may be, the settlement of and surrender of his claim was ample consideration for the note. It cannot be said, therefore, that there was no consideration for the note; and it is evident that the note was not secured from Farnham and Dowling, or, in fact, any of the defendants, through duress. See Beath v. Chapoton, 115 Mich. 507 (73 N. W. 806, 69 Am. St. Rep. 589).
An argument is made in the brief that the note was void because a part of the consideration was to suppress a criminal prosecution, and to suppress evidence in a pending prosecution. Farnham’s testimony tends to prove this. The plaintiff’s counsel answer this by saying that the plea contains no notice of such a defense, and this is true. The plea alleges a wánt of consideration, but we have already seen that there was a valid consideration, in addition to which the defendants now claim that, as a further consideration, an illegal promise was made, which rendered the note void. The question appears not to have been raised by the pleadings, and is therefore not available. Cir. Ct. Rule No. 7c. See Walbridge v. Tuller, 125 Mich. 218 (84 N. W. 133). In the present case the plea gave no hint that counsel relied upon a claim that a portion of this consideration was illegal because it was a promise to suppress testimony, and it was not covered by the untrue allegation of the plea that it was given {‘ without any consideration whatever.”
William C. Dowling and George P. Dowling live in Michigan, and, at the solicitation of Farnham and Zellner Dowling, signed the note upon its back, as accommodation makers, and returned it to Farnham for delivery, according, to an understanding between Farnham and Zellner Dowling and the plaintiff. The judge stated in his charge that Zellner Dowling was the last to put his name upon the note, after which it was delivered to the plaintiff. The court seems to have treated him as an indorser, and the others as makers. The note was payable in West Virginia, and a decision of the supreme court of that State was admitted in evidence to show that, inasmuch as the note was not payable at a bank, it was not necessary that indorsers be served with notice of nonpayment, because the writing was not a negotiable instrument. This testimony was admissible, and a proper way of proving the law of a sister State, which was a necessary fact to be considered in the case. The learned circuit judge was justified in treating this paper as a West Virginia contract, it being payable there, under the general rule that “ if, by the terms or nature of the contract, it appears that it was to be executed in another country [or State], then the place of making the contract becomes immaterial, and the law of the place where the contract is to be performed governs in determining the rights of the parties.” 1 Beach, Cont. §§ 592, 593, and notes. The law of West Virginia determines the nature of this contract, and, construed in the light of it,.this note is nonnegotiable.
Three of the defendants signed their names upon the back. These are irregular indorsements, and resort to parol evidence is permissible to determine the nature of their contract. See Tied. Com. Paper, § 272, and authorities cited. It is plain that two of them (William and George Dowling) are joint makers, and in this connection we may say that the fact that they signed the note upon Sunday, if it be a fact, does not invalidate the note; the evidence indicating that it was not delivered by them on that day. See Id. § 34c. Being makers, they are upon the same footing, as to right to notice, that Farnham is, irrespective of the provisions of the law of West Virginia shown in the case.
It appears to be admitted that Zellner Dowling is not a maker. He is the payee in the note, which is payable to his order, and is said to have signed it upon the back after it was made. Indeed, it is through this signature that the plaintiff derives his title, upon the face of the paper. This indorsement of Zellner Dowling was made in Phila delpliia. Were this contract of indorsement to be governed by the law of Pennsylvania, which we must presume would treat the note as negotiable, — and we do not intend to so intimate, — he was entitled to notice of dishonor. If, on the other hand, it is to be treated as nonnegotiable paper, his signature is of no further force than evidence of an assignment through which the plaintiff acquired title; and, in either view, -the learned circuit judge was in error in directing a verdict against him. Story v. Lamb, 52 Mich. 525 (18 N. W. 248); Merchants’ Nat. Bank v. Gregg, 107 Mich. 146 (64 N. W. 1052).
It follows that the judgment must be reversed, and a new trial ordered, as to Zellner Dowling, and affirmed as against the other defendants. See 3 Comp. Laws, § 10057.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
('after stating the facts). The defense offered to show by the defendant that the writing was upon the check at the time of its delivery to Mr. Blodgett. This was excluded by the court, as a matter equally within the knowledge of the deceased, and prohibited by the statute. 3 Comp. Laws, § 10212. The decision of the court was correct. This was not an extraneous fact.or circumstance, within the rule of Pillard v. Dunn, 108 Mich. 301 (66 N. W. 45). In that case a witness had testified that the defendant signed .a note in his (the witness’) presence, and that of the deceased, at a certain time and place. It was held that the defendant might contradict this witness by testifying that he was not at that place at that time, and did not sign any note in witness’ presence. The sole question of fact in this case is, When were those words written upon the check P It is an indorsement not common upon checks. The burden of proof was upon the defendant, who relied upon the receipt written upon the check. Its condition, the real issue in this case, was a fact equally within the knowledge of the deceased and within the prohibition of the statute.
Defendant offered several checks, issued near the date of the check in controversy, to other parties, to establish a usage on defendant’s part to indorse upon checks issued by him the nature of the transactions on account of ■which, payments were made. This was rejected, and we think properly. There was no evidence to show that such custom on the part of the defendant was known to Mr. Blodgett. The offer raised collateral issues, which plaintiff could not be prepared to meet.
It is urged that the court erred in not granting a new trial on the grdund that the verdict was against the weight of the evidence. We do not think this is a case calling for a reversal of the case upon this ground. The daughter of the defendant, the sole witness to any settlement, testified to a “kind of a settlement.” All the other testimony was by experts who examined the check, — some testifying positively that, upon a careful examination with glasses, it showed that it was written on after it had been stamped by the bank. Witnesses for the defendant testified that, in their opinion, the stamp had been placed over the writing. *
Judgment is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Montgomery, J.
In 1878 the common council of the defendant city adopted a resolution declaring it to be expedienteo have constructed in the city waterworks, for the purpose of supplying the city and the inhabitants thereof with water, and that it was inexpedient for the city itself to build such works. Following upon this, and on the 14th of October, 1878, a contract was entered into with the plaintiff, by the terms of which the plaintiff undertook to construct and maintain a system of waterworks in the city, and to furnish water to the city at certain stated prices; and section 9 of the contract is, in part, as follows:
“Said second party further agrees to furnish, free of charge, during all the term aforesaid, water to and for the use of all public buildings owned, used, or occupied by said city, all public school buildings and yards, all city offices, parks, for as many public fountains and watering troughs as the common council of said city.may require, and for city jail. In consideration, however, said first party shall save and keep harmless the waterworks aforesaid from any city or school tax during said period.”
The evidence shows that, for all the period since these waterworks were put in, the water for which charge was made was accepted by the city, and the bills for such water were paid as rendered by the water company. This action is brought to recover city, highway, and school taxes paid for the years 1886 to 1899, inclusive.
When the plant was erected, and for several years thereafter, the same was located upon leased ground. In 1888 or 1889 what is known in the record as the “Shore Property ” was acquired by the plaintiff, and a steam plant erected, on the shore of Thunder Bay; and the Morse dam, so called, was purchased by the plaintiff at or about the same time. Although the water company owned this dam, only a portion of the power was used for its purposes. The remainder, with nearly all the surround ing land, was leased to and occupied by persons who used the same for other purposes.
The circuit judge held that the plaintiff was entitled to recover the taxes which it had been required to. pay upon its waterworks. He held that the term “waterworks aforesaid ” should be held to include the shore property, so called, which it became necessary to employ in the business, and upon which a house, to inclose its machinery and to maintain a pumping station, had been erected. But as to the Morse property, so called, he held that it was impossible to divide and apportion the tax which should be recovered by the plaintiff, and refused to allow any recovery for the same. The defendant alone brings error.
The questions presented are: First, the validity of the contract; second, whether the city had power to exempt the plaintiff from taxes; third,, does section 9, above referred to, exempt after-acquired property? fourth, does the term “city or school” include highway taxes? and, fifth, whether defendant was not entitled to have the question of plaintiff’s nonperformance of the contract submitted to the jury.
The question is presented whether the mayor and recorder could bind the city, without the council first authorizing them to execute the contract. We do not discover that this question was raised on the trial, and we shall not discuss it.
The principal contention seems to be that the contract was in excess of the'authority of the city. We think that the question of authority is settled by the case of Menominee Water Co. v. City of Menominee, 124 Mich. 386 (83 N. W. 127), and that a discussion of the question here involved would be only a repetition of what is there decided.
It is contended that it was not within the power of the city to exempt the company from taxation. We think that is not the question here involved. It is a question of whether the city, in consideration of the furnishing for its use of certain water by the plaintiff, could stipulate to itself pay the taxes which should be assessed for certain purposes. The stipulation is not a stipulation to exempt from taxation, but to save the plaintiff harmless from taxes, which could only be done by payment being made by the city. The case, upon this question, is controlled by Ludington Water-Supply Co. v. City of Ludington, 119 Mich. 480 (78 N. W. 558).
We think it is also clear that the undertaking applied to all the waterworks which it was necessary for the plaintiff to erect in the proper conduct of its business.
It is contended that the ‘ ‘ city tax, ” as used in this contract, does not include the highway tax. The language of the contract is “any city or school tax.” The highway tax is levied by the authority of the city, and the highways are under its control; and we think it cannot be said that the highway tax is not a city tax, within the meaning of this language.
Tt is further contended that the court was in error in refusing to admit testimony showing a nonperformance of the contract by the plaintiff. The undisputed testimony shows that the city received and paid for all the water which was stipulated to be furnished. What the defendant offered to show was that the plaintiff had not furnished as good water as Thunder Bay provides; that it had allowed mains in the streets to be frozen up in the winter time, the hydrants to become out of order, so that they could not be used in case of a fire, and other things of that nature. The circuit judge was of the opinion, and stated, that the contract was entered into more than 30 years ago; that both parties had acted upon it, — the water company by furnishing some water and some service, for which the city had paid from quarter to quarter; that this state of facts had been made to appear by the evidence, and was not in dispute; and he held that in this action to recover, under section 9, for these taxes which plaintiff had been compelled to pay, it was not competent to litigate the entire subject of the administration of the contract. We think there was no error in this ruling.* The alleged defaults of the plaintiff related to other portions of the contract. The compensation for the service provided for by the other portions of the contract had been paid by the city, and, if the city is ever to be concluded, it would seem that such an adjustment between the parties would be sufficient to conclude it.
We find no error in the record, and the judgment will be affirmed.
Hooker, C. J., and Moore, J., concurred. Long and Grant, JJ., did not sit. | [
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] |
Hooker, C. J.
The plaintiff, being owner of a building in the city of Detroit, rented it to the defendant for a grocery and saloon; and upon May 1, 1900, the defendant was in arrears about $135, according to plaintiff’s testimony. A new arrangement was then made, under which the defendant continued business until' the place was burned, on October 28, 1900. Under this arrangement plaintiff drew and delivered to the county treasurer its check for $500, and procured therefor a beer license, issued to itself, permitting it to sell beer upon the premises. This license was put up in the saloon conducted and owned by the defendant, who gave plaintiff his note for $500, and executed and delivered to the plaintiff the following writing (Exhibit A):
“Detroit, May 1, 1900.
“Whereas, the Koppitz-Melchers Brewing Company, first party, has advanced and loaned to Adolph Behm, second party, $500.00 towards paying the license fee of the second party as a liquor dealer under the laws of Michigan at No. 593 St. Aubin avenue, Detroit, Michigan:- Now, in consideration thereof, the second party agrees to buy his beer for use in his said business exclusively from the first party for one year from this date, and to pay the first party $5.00 per barrel for such beer, cash, weekly, to the peddler. To this price for the beer shall be added and paid by the second party at least $2.00 for and on each barrel, payable at the same time in addition, until the whole sum of $500.00 so loaned, as aforesaid, shall have been repaid. The additional payment on each barrel of beer provided for the liquidation of the loan may be increased in amount from time to time, to the end that the entire loan shall be fully satisfied on or before May 1,1901.
“And it is further agreed that, in addition to the above price specified and payments to be made, the second party agrees to pay for and on each barrel of beer, and at the same time, any additional revenue tax imposed by the government on beer in addition to the present tax of $2.00 per barrel.
“Witness the hand of the second party.
“In addition to above, rent of $20.00 per month, payable monthly in advance.
“Adolph Behm.
“Witness: Arthur C. Melchers.”
During the time that defendant occupied after May 1, 1900, he conducted a grocery and the saloon, sold beer purchased from the plaintiff, and made payments therefor, which were duly credited on plaintiff’s books, upon which, at monthly intervals, charges for beer- appear. On October 31st defendant was credited on the books with $250 for license returned, and it is explained that this credit was given by reason of his ceasing to do business then, owing to the destruction of the shop by fire. This action was brought by the plaintiff to recover a balance of $523 claimed to be due.
There is evidence tending to show that it was understood by the parties that the license was to be taken in. plaintiff’s name for the purpose of securing payment of the price advanced by it to the defendant. Plaintiff’s counsel sought to show that it was a custom for brewing companies to take licenses in their names, to be used by others, under similar circumstances. The testimony was properly excluded. A custom to violate the law would be ineffective if proved. Counsel also claimed and sought to show that it was agreed that the rent should be $25 per month, and that the sum of $20 rental was insei’ted in the writing by mistake.
The plaintiff claimed that the writing was not subject to contradiction or explanation by parol, and the defendant insisted that it was an illegal contract, and void. The court held that the writing was the only proper evidence of the contract; that it provided for the conduct of a saloon business by the defendant under a license that did not authorize it, being in the name of another; and that there could be no recovery of any unpaid part of the note given for the money advanced to pay the license. It was held that recovery might be had for the rent and beer sold to defendant. In determining the amount, the court found that defendant had paid $122.33 upon the license account, and the balance of said item, $127.66, was disallowed, leaving plaintiff entitled to $395.42, for which he rendered judgment. The defendant has appealed, maintaining that the entire contract was illegal and void, and that it will not support a judgment for any sum. ■
The undisputed proof in the case shows that it was mutually agreed orally by the parties that the plaintiff should lease a building for a saloon, sell defendant its beer, procure a license in its own name, and give the statutory saloon-keeper’s bond, and that the defendant should procure the United States license, and carry on the business in his own name, purchase beer of the plaintiff only, pay $25 a month rent, and pay for the beer, and reimburse the plaintiff for the cost of the license. If it can be said that this was the contract, it was clearly illegal and void, for one cannot lawfully carry on such business without himself procuring authority by license, and giving a bond as indemnity against his own illegal sales and those of his agent. Such entire contract would be in contempla tion of these illegalities, and there would be no legal ground for treating it as severable, and thereby saving and treating as valid any part of it.
But it may be Said that, after this full and complete oral agreement, the parties put their contract in writing. Exhibit A, which has been incorporated herein, is such writing. It is signed by the defendant, and upon its face shows only the things that the defendant was to do, and states as a consideration only a recital that the plaintiff has loaned the defendant $500 towards paying the defendant’s license fee as a liquor dealer. It does not obligate the plaintiff to sell him any beerit does not agree to lease him any premises, though he agrees to pay rent; it does not state that plaintiff is to procure a license or-give a bond in its own name, under which the defendant should do business; and it is not signed by the plaintiff. The only consideration mentioned is shown to be false, for no loan towards paying a license fee of the defendant as a liquor dealer has been made or proposed, (tf, as contended by the plaintiff, this writing contains the entire contract, and cannot be varied or added to by parol, it is a unilateral contract, which only becomes binding when the consideration therein mentioned is paid. See 1 Beach, CQnt. § 152, note. The proof is that there was no such consideration, and, if it be said that the defendant has accepted the procurement of a license in the name of the plaintiff as the consideration contracted for, it is a sufficient answer to say that it was no consideration, for it was valueless to any one except the plaintiff. If, however, as contended by the defendant, it was competent for the defendant to show the full agreement (and it is clear fróm the instrument itself that all does not appear therein), then the illegality of the whole transaction is made manifest j for it was made in contemplation of the violation of law. Under either theory, the plaintiff cannot recover upon the contract.
The judgment is reversed, and a new trial ordered.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
(after stating the facts). The commissioner of public works, by the act of the legislature of 3901 (Act No. 415, Local Acts), is clothed with the power, among other things, to “supervise the construction, repairing, and alterations of all public buildings.” The act further provides that all moneys for such repairs, etc., shall be expended under his supervision, and under contract and specifications prepared by him and approved by the common council. He is also vested with all duties and functions theretofore vested in and exercised by the former board of public works. He is also to certify all bills, accounts, and claims, and transmit them to the city controller, who in turn submits them to the common council for allowance. Whenever peculiar skill is required in any such work, the common council is empowered to authorize the commissioner to employ a competent person to superintend the same, at a compensation not exceeding a sum to be stated in said resolution. Charter of 1893, p. 163, § 10. The charter also provides that, before proceeding with any public improvement, the common council shall refer the matter to the commissioner, who shall forthwith, proceed to examine and report on the same, giving detailed estimates of cost.
A similar question was presented in Butler v. City of Detroit, 43 Mich. 552 (5 N. W. 1078). The validity of the ■act establishing the board of public works was sustained, and the purpose of the act is there well stated at page 555. We also held in Mills v. City of Detroit, 95 Mich. 422 (54 N. W. 897), that the provision of the act requiring the ■common council to procure from the board of public works an estimate of the cost of any proposed improvement was mandatory, and that proceedings without such estimate were void. Making plans, drawings, specifications, and supervision of construction are necessary parts of such work. The act clearly imposes the duty of such work upon the commissioner. The resolution and contract are not only clear encroachments upon the authority of the commissioner, but virtually ignore his authority. The obvious purpose of the law is to compel the common council, at the beginning, to obtain from a responsible executive officer — the commissioner — plans, specifications, and estimates. For this purpose the council may authorize him to obtain the services of competent architects and builders. This is no encroachment upon the legislative power of the common council. It was not the design of the. law to permit the common council, under a plea of preliminary work, to incur the expense of plans, specifications, and supervision of construction.
The complainant was the proper párty to launch the suit. He is intrusted with the performance of the duties of his ■department, and ma,y maintain a suit in equity to restrain threatened encroachments. There is, in fact, no other remedy, and it is doujbtful if any other person could maintain such a suit.
The decree is affirmed, with costs.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
This is an action in replevin, brought to obtain the possession of a piano. The plaintiff is the successor, on reorganization, of the Chicago Cottage Organ Company. The defendants are a laboring man living at Manistique, and his wife. In August, 1898, the Chicago Cottage Organ Company made a written contract with Mr. Wasegizig to sell him a piano for $360, and to credit him thereon for one organ $75; the balance to be paid, cash at date of contract $10, and at the rate of $10 a month, except four months during the winter at $5 a month. Some payments were made under this contract, but they were not all made according to its terms. A new contract was made between Mrs. Wasegizig and the company for the same piano, which contract was to stand in the place of the old one. This was dated November 9, 1899. The price to be paid was $360, as follows: $133 down, and $10 each month thereafter until all was paid. The $133 was made up of payments made under the old contract. The title of the piano was to remain in the company until the piano was paid for, and provision was made that in case of default in the payment of said amounts, or any of them, upon demand the subscriber should return the piano to the company, and that all money paid thereon should belong to the company as stipulated damages, and, in case of default in any payment, the whole of the payments might be declared due. Ten dollars was paid November 18, 1899, $10 May 20, 1900, $10 May 25, 1900, and $5 July 24, 1900. During the summer and fall of 1900 some correspondence was had with the company by the defendants about their failure to make the payments according to the terms of the contract. September 13, 1900, the company sent a letter to Mr. Wasegizig, reading as follows:
“ Dear Sir: We have your letter of the 8th inst., referring to the piano contract signed by your wife, Mrs. Jane E. Wasegizig, and in reply to same will say that, if you have $40 or $50 which you will pay this week, we will accept it, and allow the piano to remain in your possession for the present. It is to be understood, however, that you will make at least reasonable payments from now on. We do not want the piano, but we want our money, and, if you will treat us right along this line, we will assure you of courteous treatment in return.”
Afterwards, and before any further payments were made, the piano company’s agent, Yigent, and another agent from the house, came to Wasegizig’s for some money. They wanted $50. The Wasegizigs could not raise that amount. Then $25 was suggested, and that was also beyond their reach.
“ Q. Then what did this man say ?
“A. Well, he said, ‘If you can get a little money, take it to the bank.’ So I got money, — $10,—and took it over there.
‘ ‘ Q. Did he tell you how much money to take to the bank ?
“A. ‘As much as you can get,’ he said; and I got only $10.
‘ ‘ Q. Did you get a receipt for the money from the bank when you paid the $10 ?
“A. ‘Any time you get money,’ he says, ‘take it over,’ he says; and that is the receipt I got.”
Demand of payment or return of the property was made by plaintiff October 18, and this suit in replevin was brought October 20, 1900.
In his charge to the jury the circuit judge told them:
“ In this case the plaintiff has claimed a forfeiture, and insisted on the forfeiture; and it would therefore be its duty to show that it has done everything which it is bound to do to entitle it to insist on that forfeiture, and that it has done nothing to waive that right. Failure to pay these installments when they were due was a default which did not necessarily render this contract void, but it rendered it voidable. It was voidable at the option of plaintiff in this case, and it then remained for the plaintiff to elect whether it would declare the contract void, retake the goods, and declare a forfeiture of the pay ments already made, or .whether the plaintiff would continue it in force, and thereby become entitled to keep the payments.
‘ ‘ It appears from the undisputed evidence that on the 8th of October an installment was paid. These installments fell due monthly on the 11th of each month, and after the 8th of October no installment would be due again until the 11th of November; and so, by then accepting this installment, paid on the 8th day of October, which was a part of the purchase money, the contract was recognized by this plaintiff as then being in force, and the forfeiture was then waived as to any previous defaults which had arisen, and it could not be insisted upon thereafter by the plaintiff in this case until a subsequent default arose by reason of failure to make another monthly payment according to the terms of the contract. The testimony being undisputed upon this point, I instruct you that the plaintiff appears by the evidence to have elected to recognize this contract as continuing in force, and therefore was not entitled to replevin this piano at the time this suit was brought, which was on the 20th of the same month, and your verdict will be for the defendants. ”
The sole question involved in the case is whether what was done operated as a waiver of any further payment until the 9th of November. The plaintiff insists it did not,— citing Hutchings v. Munger, 41 N. Y. 155; Mosby v. Goff, 21 R. I. 494 (44 Atl. 930); People’s Carpet Co. v. Crosby, 57 Neb. 282 (77 N. W. 658, 73 Am. St. Rep. 504); O’Rourke v. Hadcock, 114 N. Y. 541 (22 N. E. 33); Fairbank v. Phelps, 22 Pick. 535. An examination of these cases will show that all of them, except the last one, are unlike the case at bar. In all the others the entire amount of the purchase price was due. Some payments had been made after a failure to comply -with the terms of the contract. Without making demand for the payment of the balance, the several vendors took possession of the property. In each of the cases the court held that the acceptance of payments under such circumstances was a waiver, and the vendor could not take the property until demand of payment was made, and in each of those cases judgment was entered in favor of the purchaser.
In Fairbank v. Phelps, supra, the following language was used:
‘ ‘ It is true that Potter requested Shewbrooks to pay the price agreed; but this request was complied with in part, and Potter, by accepting part payment, impliedly waived his request for any further payment at the time, and confirmed the sale, subject to the condition. If he had intended to terminate the contract of sale, he would have declined receiving any part of the price, and would have insisted on the restoration of the wagon.”
The case of Cole v. Hines, 81 Md. 476 (32 Atl. 196, 32 L. R. A. 455), is based upon a contract and a state of facts almost identical with the case at bar. In that case the court said:
“ It will be observed, however, that this is not like the cases cited by the appellee, where there is a debt absolutely due and payable, and the creditor gratuitously promises to grant an extension of time for the payment. By the express terms of this contract, the vendor, in the event of a default by the buyer, had a right either to declare a forfeiture and retake the goods, or to waive the default and continue the contract in force. The declaration alleges conduct by the seller which, as will be subsequently seen, did amount to a waiver of the default; and the question is whether the defendant was bound by that waiver, or whether he could subsequently, and for the same defaults that were so waived, enforce the forfeiture. It is therefore not the case of a mere promise to give indulgence to a debtor or to waive a future default, but one involving the consideration of the effect of an actual waiver.
“In all contracts where time is of the essence, a breach of the contract in that respect by one of the parties may be waived by the other party’s subsequently treating the contract as still in force. Pinckney v. Dambmann, 72 Md. 178 (19 Atl. 450); Webb v. Hughes, L. R. 10 Eq. 281; Black v. Woodrow, 39 Md. 194. In these cases of conditional sales, the acceptance by the seller of an installment of the purchase money after default is a recognition of the contract as still subsisting, and a waiver of the forfeiture. Hutchings v. Munger, 41 N. Y. 158; Hurst v. Thompson, 73 Ala. 158. And other acts than acceptance may have the same effect. A party cannot take two inconsistent positions. If he has a right either to rescind a contract on account of a breach by the other party, or to continue it in force, and he elects to continue it in force, he thereby abandons the right to rescind, and is bound by the election so made. Bollman v. Burt, 61 Md. 422; Maryland Manfg. Co. v. Lorentz, 44 Md. 233; Lawrence v. Dale, 3 Johns. Ch. 23. * * * The failure of the appellant to pay the installments when due was a default which did not render the contract void, or cause the entire purchase money to become due, but the contract was thereby made voidable at the option of the appellee. It was then necessary for the appellee to elect whether he would avoid the contract, retake the goods, and declare a forfeiture of the installments already paid, or whether he would continue it in force, and become entitled to the future payments. He made his election to continue the contract in force by his notification to the appellant, who had a right to rely upon it; and, having thus waived the forfeiture on account of this particular default, it follows that he could not subsequently insist upon it.”
See Hill v. Townsend, 69 Ala. 286. Neither of the agents representing the company when the payment of $10 was made was sworn as a witness. The testimony of Mrs. Wasegizig is in very broken English, but the record, as a whole, clearly shows that she was given to understand, if she would pay what she could to the bank, that the piano would not be taken from her unless another default occurred. We think the judge made a right disposition of the case.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
In 1854 Gideon Bolio owned certain lands in the county of Wayne, and conveyed by warranty deed to one John L. Whiting 30 acres of this land. The following clause followed the descriptive part of this deed:
“Saving and preserving, however, from the operation hereof, the road running along the southerly line of said parcels from the said Saginaw turnpike, and the road in the rear or westerly side of said first-described tract.”
It appears that these roads or ways were used by Gideon Bolio in passing to and from other lands belonging to him, and were, to some extent, used by the public. In 1875 the road running along the southerly side of said land, together with 33 feet lying immediately south, was laid out by the proper highway authorities as a public highway. In 1892 certain proceedings were taken to vacate this highway by the common council. The defendant, who derived title through the conveyance to Whiting, proceeded to fence in the 33 feet included in the original Whiting deed, and the plaintiffs, descendants of Gideon Bolio, bring this action of ejectment to recover this strip. The learned circuit judge directed a verdict for defendant, and plaintiffs bring error.
The decision of the circuit judge rested upon the construction of the deed of Gideon Bolio to Whiting. The circuit judge correctly held that, in determining whether this clause was intended as an exception to the grant or was simply a reservation of an easement, the two cardinal rules of construction should be kept in mind, namely, that the intent of the grantor is to be gathered from the whole instrument, and that the language employed is to be taken most strongly against the grantor. Having these rules in mind, we think the circuit judge reached the correct conclusion. It is to be kept in mind that the grant was broad enough to cover the land included in this road, and that the road would not have been open to the grantor to use unless by some stipulation he retained the right to use it. The language employed was, “ Saving and preserving the road.” We think this language means, “Saving and preserving the right to use the road.” As pointed out by the learned circuit judge, had the purpose been other than this, the fair inference is that the land conveyed would have been bounded by the highway. There was not the slightest occasion to include this land in the deed unless some interest was intended to be vested in the grantee. We find this view sustained by'numerous cases. See Gould v. Howe, 131 Ill. 490 (23 N. E. 602); Sullivan v. Eddy, 154 Ill. 199 (40 N. E. 482); and Capron v. Kingman, 64 N. H. 571 (14 Atl. 868), — a case quite in point.
Counsel for plaintiffs cite the case of Reynolds v. Gaert ner, 117 Mich. 532 (76 N. W. 3); but the language employed in the deed construed in that case is very different from that which we are now construing. In that case the language was, “ Except two and forty-six hundredths acres to the Chicago & Canada Southern Railroadand it was found that the plaintiff intended to convey all the land described, excepting therefrom the 2.46 acres. So, in Patrick v. Young Men's Christian Ass'n, 120 Mich. 185 (79 N. W. 208), the language employed plainly imported an exception. We do not so construe the language of the deed here in controversy.
The judgment will be affirmed.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
The bill of complaint was filed to foreclose a mortgage given by the defendants Horace N. Keys and Antha D. Keys to Campbell, Keys & Steadman, to secure the payment of a note dated January 2, 1894, for $2,645. The mortgage is dated February 19, 1897, and is for the sum of $1,000. This mortgage was recorded in the office of the register of deeds May 3, 1897. A default was entered against the defendants Horace N. Keys and Antha D. Keys for want of appearance and answer. The defendant George Bane appeared and defended on the ground that he had caused a levy of attachment to be made upon the premises covered by the mortgage on the 28th day of April, 1897. The trial court found a decree against Horace N. Keys and Antha D. Keys for the sum of $1,000. The decree also provides that the bill of complaint be dismissed as to George Bane, with costs. The complainants have brought the case to this court, claiming the trial court erred in dismissing the bill of complaint as to George Bane.
Complainants claim to have established upon the trial of the case, by a fair preponderance of evidence, that the defendant Bane had actual knowledge of the existence of the mortgage at the time he commenced his attachment proceedings, and levied upon the property covered by the mortgage. The defendant Bane claims that he did not have knowledge. The testimony is very conflicting, and is very evenly divided. The proofs were taken in open court. The judge had the advantage of seeing the witnesses. He was of the opinion the complainants had failed to show, by a preponderance of the evidence, knowledge of the existence of the mortgage on the part of Mr. Bane before he commenced his attachment. The evidence does not convince us he was wrong in his conclusion.
We now come to the question whether, in the absence of knowledge by Mr. Bane of the existence of the mortgage, his attachment levy has priority over the unrecorded mortgage. It is the claim of complainants that by his levy Mr. Bane acquired only such interest in the property as his debtor, Mr. Keys, then had, and, as Mr. Keys had then executed the mortgage, it has priority over the levy, The solicitors for defendant Bane say this court held otherwise in Campbell v. Bane, 119 Mich. 40 (77 N. W. 322), in that part of the opinion reading, “ In the present case, Bane’s lien is subsequent in date, and his right of priority must be determined by the fact of actual notice of the existence of the mortgage.” A reference to that case shows that the questions involved were whether the mortgage could be foreclosed before there had been a final adjustment of the partnership accounts between the complainants and Keys; and, second, whether Bane is a proper party. Both questions were answered in the affirmative; the court holding that, as Bane was a subsequent purchaser or lien holder, he had a right to redeem, and was also entitled to have the amount due on the mortgage determined. The court was not called upon to decide which lien had priority, and did not intend to so decide; and, if the language quoted is susceptible of the interpretation given it by counsel, it was dictum, and not controlling.
It is also said that, since the amendment of 1889 to the statute in relation to the levy of executions, ‘ ‘ The lien thus obtained shall, from the filing of such notice, be valid against all prior grantees and [mortgagees] mortgages of whose claims the party interested shall not have actual nor constructive notice.” 3 Comp. Laws, § 9224. Section 10564, 3 Comp. Laws, provides:
“ Real estate attached shall be bound, and the attachment shall be a lien thereon, from the time when a certified copy of the attachment, with a description of the real estate attached, shall be deposited in the office of the register of deeds in the county where the real estate attached is situated.”
And it is urged that, when the levy by attachment is followed by the execution levy, the latter relates back so as to give a lien upon the title as it stood of record when the attachment levy was made. The circuit judge accepted this view. In doing so, it is said, he is supported by Jerome v. Bank, 22 Colo. 37 (43 Pac. 215); Woodward v. Sartwell, 129 Mass. 210; and Bigelow v. Topliff, 25 Vt. 273 (60 Am. Dec. 264).
An examination of these cases discloses that Jerome v. Bank arose in Colorado, where the statute provides that not until a deed or conveyance is filed for record shall it take effect “as to subsequent bona fide purchasers and incumbrancers by mortgage, judgment, or otherwise, not having notice thereof.” 1 Mills’ Stat. § 446.
In Massachusetts the reason of the opinion in Woodward v. Sartwell seems to have been that:
“An attaching creditor stands in the position of a purchaser for value, and, as a deed duly recorded takes precedence of a prior deed unrecorded, so an attachment, when duly made, has the effect of a prior purchase, and takes precedence of a prior unrecorded deed. Marshall v. Fisk, 6 Mass. 24 (4 Am. Dec. 76); McMechan v. Griffing, 9 Pick. 537; Roberts v. Bourne, 23 Me. 165 (39 Am. Dec. 614).”
As we shall see later, this is not the rule in Michigan. The courts of Vermont have followed the same rule as in Massachusetts.
In 1 Shinn, Attachm. § 10, it is said:
“ Attachment is a factor of that system of law which charges the property of a debtor with the payment of his •debts. Its purpose is to give to the creditor, from the very •commencement of his suit, a lien on the estate of his debtor. It is an anterior process, the purpose of which is to make the jurisdiction of the court in ulterior proceedings more effectual, and to afford the plaintiff security for the satisfaction of the judgment which he may obtain. It is an effort to create a lien upon the debtor’s property. The attachment levy from its date operates as such a lien. That is to say, it charges the property levied upon with the payment of the judgment to ■ be rendered, in priority of any subsequent alienations the»defendant may make, or of any subsequent incumbrances he may create.”
While the law in relation to the levy of executions was amended in 1889, the law in relation to the levy of attachments has remained unchanged since 1875. In Columbia Bank v. Jacobs, 10 Mich. 349 (81 Am. Dec. 792), it was held that an attachment levy upon real estate only gives the ■creditor a lien on the debtor’s attachable interest in the lands, and in no way interferes with the previously acquired rights of third persons. In French v. De Bow, 38 Mich. 708, the court cited the case of Columbia Bank v. Jacobs, and held that, the levy of an execution did not .give to the creditor any rights analogous to those of a bona fide purchaser, and that, until the creditor becomes .a purchaser at the execution sale, the creditor stands in the rights of his debtor, and the levy may be defeated by equities which the debtor is unable to resist. See, also, Michigan Paneling Machine Co. v. Parsell, 38 Mich. 475.
In Smith v. Williams, 44 Mich. 240 (6 N. W. 662), the court discussed the effect of the recording laws, and, among other things, said:
“ But the recording laws could not help the defendants. Those laws point out specifically the danger to which the party failing to record his title is exposed, and the courts cannot extend or add to it. Columbia Bank v. Jacobs, 10 Mich. 349 (81 Am. Dec. 792); Millar v. Babcock, 29 Mich. 528. The danger is indicated by section 4231 of the Compiled Laws [of 1871]:
“ ‘ Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.’
“ By ‘subsequent purchaser,’ in this section, is meant a subsequent purchaser from the same grantor. * * * The mere institution of suit cannot make one a bona fide purchaser.”
In Atwood v. Bearss, 45 Mich. 469 (8 N. W. 55), it is held that it is not until the execution creditor has become a purchaser that he obtains anything more than a lien upon the land; but, when he becomes a purchaser, he then becomes entitled to the benefits of the recording act.
The statute in relation to the levy of attachments, as it now reads, was construed in Avery v. Stephens, 48 Mich. 246 (12 N. W. 211), where, among other things, it was said:
“ The statute provides that the writ of attachment shall command the sheriff to attach so much of the lands, etc., of the defendant, not exempt from execution, wheresoever the same may be found within the county; and the sheriff is directed to execute the writ by seizing the lands. Sections'6401, 6402 [2 Comp. Laws 1871]. The'statute further declares that real estate shall be bound, and the attachment shall be a lien thereon, from the time when it was attached, on complying with certain provisions, which was done in this case. Section 6406. Where due diligence has been observed by the creditor in the prosecution of his claim, this lien continues until a reasonable time has elapsed for the issuing of an execution and levy thereunder, and there can be no doubt but that the execution levy relates back to the time of the attachment, and holds the interest which the debtor then had.”
In a case decided in 1886 (Manwaring v. Jenison, 61 Mich. 117, 27 N. W. 899), it is said:
‘ ‘ The purchaser under the execution sale does not stand in the relation of a bona fide purchaser of the land without notice of the rights of the plaintiff. He only took by his levy the same title his judgment debtors had. It gave him a lien upon all the right, title, and interest of Haven, Blake & Co., but upon no better title.”
See, also, Corey v. Smalley, 106 Mich. 257 (64 N. W. 13, 58 Am. St. Rep. 474).
As between the mortgagor and the mortgagee, it is clear the mortgagor has diminished his interest in the real estate to the amount of the mortgage; and by the decisions of this court a bona fide mortgagee, prior to the amendment of 1889, would be protected against any levy by attachment or execution, even though his mortgage was not •of record.
In the following cases it is held that an unrecorded deed or mortgage will have priority over the lien of an attachment, although the attaching creditor did not, at the time of the attachment levy, have any notice of the unrecorded deed or mortgage: Holden v. Garrett, 23 Kan. 98; Northwestern Forwarding Co. v. Mahaffey, Slutz & Co., 36 Kan. 152 (12 Pac. 705); Wilcoxson v. Miller, 49 Cal. 193; Davis v. Owenby, 14 Mo. 170 (55 Am. Dec. 105); Hope v. Blair, 105 Mo. 85 (16 S. W. 595, 24 Am. St. Rep. 366); Norton v. Williams, 9 Iowa, 528; Bell v. Evans, 10 Iowa, 353; Vaughn v. Schmalsle, 10 Mont. 186 (25 Pac. 102, 10 L. R. A. 411); Runyan v. McClellan, 24 Ind. 165; Wright v. Jones, 105 Ind. 17 (4 N. E. 281); Greenleaf v. Edes, 2 Minn. 264; Schroeder v. Gurney, 73 N. Y. 430; Harral v. Gray, 10 Neb. 186 (4 N. W. 1040). In Hackett v. Callender, 32 Vt. 97, it is held that if an attaching creditor has notice after his attachment, but .before execution levy, that the land does not belong to the execution debtor, though the record title is in the debtor, the equitable interest of the real owner will be protected against the levy. This case would seem to discredit the earlier case of Bigelow v. Topliff, cited earlier-in this opinion. See Chapman v. Coats, 26 Iowa, 288.
The act in which section 9224, in relation to execution levies, is found, is entitled “An act relative to levies of executions on real estate.” The amendment of 1889 does not refer to attachment levies, and does not purport to change its provisions. If, as was said in Smith v. Williams, supra, the courts cannot extend or add to the recording laws, we do not see- how the attaching creditor obtained any greater interest in the property levied upon than was then owned by the attachment debtor. As this-mortgage was put upon record after the attachment, and before the execution levy, we think Mr. Bane was a proper-party to the foreclosure proceeding, and that his levy was-subject to the mortgage debt. The decree will be reversed, as to him, with costs, and affirmed as to the other defendants.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.
See Luton v. Sharp, 94 Mich. 203 (53 N. W. 1054), for a case •arising subsequent to the amendment. | [
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Levin, J.
The defendant was convicted by a judge sitting without a jury of committing an act of gross indecency with each of two other male persons. MOLA 750.338; MSA 28.570.
During the trial a Walker hearing was held to determine the admissibility of a statement allegedly made by the defendant to a police officer. During the hearing the officer testified that the defendant admitted that he had orally manipulated two young boys sexually. At the conclusion of the hearing and before the judge ruled, the prosecutor stipulated that any admissions made by the defendant to the police would be disregarded and the judge agreed. He added that, “the admission will be stricken”.
On appeal the defendant contends that he was deprived of a fair trial because during the course of the Walker hearing there was brought to the attention of the judge, who sat as trier of fact, evidence— the admission attributed to the defendant — which was not admissible against him. No objection was made by the defendant’s trial lawyer either to the police officer revealing the nature of the admission during the course of the Walker hearing or to the judge continuing to act after the admission was stricken.
We recognize that it would be desirable if a judge conducting a Walker hearing concerning the admissibility of a statement did not learn the nature of the statement until after he had made his decision on the issues of voluntariness and admissibility, so that his decision on those issues is not subconsciously influenced by knowledge of admissions made in the statement. However, we can visualize situations where, because of the defendant’s testimony or other evidence at the Walker hearing, it may become necessary for the people to introduce inculpatory aspects of the statement in rebuttal.
Focusing more closely on the facts of this case, we do not think we would be justified in laying down an absolute rule that when a trial judge, sitting as trier of fact, becomes aware of evidence inadmissible against the defendant he must disqualify himself and the case must be tried by some other judge.
Where another judge is available, it might be desirable to have him try the case. But the circuit judge who sat in this case sits in a one-judge circuit. If an absolute rule is to be laid down prohibiting a judge who hears an admission from trying the case, the Supreme Court will have to declare that rule as it requires a reallocation of judicial resources within the supervisory control of the Supreme Court.
In this case a new trial is not justified. We are satisfied from the judge’s remarks stating his findings following the conclusion of the trial that he would have reached the same result even if he had not learned of the admission. The two hoys, one 10 and the other 12 years of age, for whom the defendant had been acting as a babysitter, testified that over a period of time ending on June 18 the defendant played with and sucked their penises. The father of the boys testified that the defendant later apologized for what he had done. The defendant did not take the stand in his own behalf. The judge stated he believed the testimony of the witnesses for the people. We have no reason to conclude that the defendant’s conviction is traceable to the judge’s knowledge of the admission attributed to the defendant.
Nor is the defendant entitled to a new trial because the information charged that the prohibited acts occurred during the period May 25 through June 6 and it was brought out at the trial (without objection) that the last act occurred on June 18. It appeared from the people’s evidence that similar acts had occurred eight to ten times before in the case of each boy. See People v. Heiss, 30 Mich App 126, 131 (1971). No limiting instructions were required in this case as the judge sat without a jury.
Affirmed.
People v Walker, 374 Mich 331 (on rehearing, 1965).
See McCormick, Evidence, § 60, p 137; 5 CJS, Appeal & Error, § 1564(5), p 1270 et seq.; Jones v Jones, 325 Mich 671, 680 (1949). But see State v Miller, 64 NJ Super 262, 266; 165 A2d 829, 831 (1960); People v Eglar, 19 Mich App 563 (1969) ; People v Harvey, 13 Mich App 211 (1968) ; People v Ramsey, 385 Mich 221, 225, 229 (1971); People v Frazier Walker, 385 Mich 596 (1971), aff’g and adopting the opinion of our Court in the same case, 24 Mich App 360 (1970); Note, Improper Evidence in Nonjury Trials: Basis for Beversal?, 79 Harv L Rev 407, 409, 415 (1965). | [
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Per Curiam.
Defendant was convicted by a jury in Detroit Recorder’s Court on May 15,1970, of robbery armed. MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). Trial was held some 13 months after the defendant’s counsel, out of the presence of the defendant, waived a competency hearing to which the defendant was entitled under MCLA § 767.27a(6) (Stat Ann 1971 Cum Supp § 28.966[11] [6]). Defendant’s own subsequent petition for a competency hearing, filed April 14,1970, was denied on the first day of trial, May 7, 1970.
When the trial counsel waived the defendant’s competency hearing, he did so allegedly without the defendant’s knowledge or consent. Defendant’s personal history reflected a pattern of mental and emotional problems. Under such circumstances the trial court should have thoroughly inquired into the matter of competency and should not have accepted a waiver in the absence of an express statement, on the record, by the defendant. Pate v. Rob inson (1966), 383 US 375 (86 S Ct 836, 15 L Ed 2d 815). By refusing to reopen this question upon the petition of the defendant, particularly after a delay of 13 months in which time a change in defendant’s competence to stand trial is readily conceivable, the trial court may have denied the defendant a fair trial. On this record we are unable to determine if the defendant was competent to stand trial.
We, therefore, reverse and remand for a new trial.
Defendant was found incompetent to stand trial on September 22, 1967, and committed to the Department of Mental Health for treatment for a period of time not to exceed 18 months. On March 18, 1969, the medical superintendent of Ionia State Hospital declared the defendant competent to stand trial. It was upon his return from Ionia that these proceedings commenced. | [
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Per Curiam.
Plaintiff appeals as of right the circuit court’s September 21, 1995, order declining to exercise further jurisdiction in a custody matter and deferring the custody issues to a Florida court. We affirm.
The sole issue in this case is whether Michigan or Florida has jurisdiction to determine the dispute regarding custody of the minor child. The trial court’s findings of fact are undisputed. The child at issue, Kelsey Racquel Braden, was bom January 24, 1991, in Florida and lived in Florida for all but one year of her life. She had resided in Florida for the six months before being brought to Michigan, where custody was sought by plaintiff, her mother. Plaintiff and defend ant were married on December 19, 1979, in Florida. In January or February of 1993, plaintiff and the child moved to Marquette County, Michigan. In April or May, the child returned to Florida. Plaintiff did not file any action to secure her daughter’s return to Michigan. Rather, plaintiff went to Florida in June of 1994 and moved back into the marital home, where she stayed until October 1994. On October 19, 1994, plaintiff and the child returned to Michigan, where they presently reside. On October 24, 1994, defendant filed a complaint for divorce in Florida. On October 28, 1994, plaintiff filed suit for divorce and child custody in Michigan and received an ex parte interim award of custody of the child.
The trial court determined, after receiving affidavits and pleadings in the matter, that although both Michigan and Florida could have exercised jurisdiction, Florida was the child’s home state. It also found that because the Florida proceeding had been commenced before the Michigan proceeding, Florida had exercised jurisdiction, before Michigan. Finally, it concluded that Florida was a more convenient forum for the hearing of the custody suit because more information about the child and her parents was available in Florida. Therefore, the court declined further involvement pursuant to the Uniform Child Custody Jurisdiction Act (uccja).
Plaintiff argues that the trial court’s jurisdictional determination was erroneous under the UCCJA. Plaintiff contends that the trial court failed to conduct the multistep inquiry to determine which state has jurisdiction as required and that the ultimate ruling was based on the unsubstantiated assumption that Florida had exercised jurisdiction over the custody dispute before the Michigan pleading was filed.
This case is governed by the uccja, which has been adopted by both Michigan and Florida. MCL 600.651 et seq.-, MSA 27A.651 et seq., Fla Stat Ann 61.1302 et seq. Under the uccja, when a child custody dispute is presented, the court must go through a multistep process in determining whether to exercise jurisdiction. Moore v Moore, 186 Mich App 220, 223; 463 NW2d 230 (1990). First, it must ascertain whether it has jurisdiction over the case. Id. Jurisdiction is governed by § 3 of the UCCJA, MCL 600.653; MSA 27A.653. As relevant to this case, jurisdiction exists under MCL 600.653(1); MSA 27A.653(1) where:
(a) This state is the home state of the child at the time of the commencement of the proceeding or had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this state.
(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least 1 contestant, have a significant connection with this state and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.
For purposes of MCL 600.653 (l)(a); MSA 27A.653(l)(a), “home state” is defined in MCL 600.652(e); MSA 27A.652(e) as
the state in which the child immediately preceding the time involved lived with his or her parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons men tioned. Periods of temporary absence of the named persons are counted as part of the 6-month or other period.
The next inquiry is whether another state also has jurisdiction of the dispute pursuant to the provisions in MCL 600.653; MSA 27A.653. Moore, supra, p 224.
In this case, the trial court correctly determined that pursuant to the act, both Florida and Michigan could have exercised jurisdiction. The trial court found, and neither party disputed, that there was jurisdiction in Michigan pursuant to MCL 600.653(l)(b); MSA 27A.653(l)(b), because the child had a significant connection with the state. The trial court also correctly determined that Florida had jurisdiction because, by definition, Florida was the child’s home state. MCL 600.652(e); MSA 27A.652(e). The court found that the child had been “back to Florida for more than six months starting April 1, 1994 or thereabouts, and had returned to Michigan only days before both the Florida and Michigan divorce proceedings were begun.”
Once it made that determination, the trial court was then charged with making a determination concerning which court should actually proceed with the matter. Moore, supra. Pursuant to MCL 600.656(1); MSA 27A.656(1), priority in time of filing ordinarily controls which state shall proceed with the action. MCL 600.656; MSA 27A.656, in pertinent part, provides:
(1) A court of this state shall not exercise its jurisdiction under sections 651 to 673 if at the time of filing the petition a proceeding concerning the custody of the child is pending in a court of another state exercising jurisdiction substantially in conformity with sections 651 to 673, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons or unless temporary action by a court of this state is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.
(3) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with section 669 to 672. If a court of this state has made a custody decree or judgment before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If •the court is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.
Therefore, if the Florida court assumed jurisdiction before the Michigan court assumed jurisdiction, the Michigan court was obligated to allow Florida to proceed. Moore, supra, p 227.
In this case, the trial court erred in declining to exercise further jurisdiction because it concluded that the Florida court had assumed jurisdiction first. It is undisputed that defendant filed his divorce action in Florida first. However, the mere filing of a petition in another state does not evidence that the state has exercised jurisdiction. Id., p 225. Rather, a court must issue an order, after the pleading is filed, indicating that it has assumed jurisdiction. Id. The Michigan file is devoid of any orders or other evidence demonstrating that the Florida court had exercised jurisdiction over these proceedings at any time. Therefore, the trial court’s assumption that the Florida court had exercised jurisdiction by issuing an ex parte order when defendant filed his Florida action was not based on any facts presented to the trial court. Because the trial court was unclear with respect to the undertakings of the Florida court, its failure to comply with the statute by contacting the Florida court to discuss which court had priority was error, and its conclusion was erroneous. MCL 600.656(3); MSA 27A.656(3).
This error, however, is not fatal to the trial court’s ultimate decision. Even if a court has priority in time, it can nevertheless decline jurisdiction. Pursuant to MCL 600.657; MSA 27A.657, a Michigan court may decline to exercise jurisdiction over custody matters where it determines that another forum is more appropriate or convenient for the parties. MCL 600.657; MSA 27A.657, in relevant part, provides:
(1) A court which has jurisdiction under sections 651 to 673 to make an initial or modification decree or judgment may decline to exercise its jurisdiction before making a decree or judgment if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
* * *
(3) In determining if it is an inconvenient forum, the court shall consider- if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(a) If another state is or recently was the child’s home state.
(b) If another state has a closer connection with the child and his family or with the child and 1 or more of the contestants.
(c) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state.
(d) If the parties have agreed on another forum which is no less appropriate.
(e) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in section 651.
In its September 1, 1995, memorandum, the trial court, in determining that Florida was a more convenient forum to determine the custody issues, stated the following:
It clearly appears that Florida is the more convenient forum. Father has lived there all his life; Mother lived there for several years; certainly evidence as to the fitness of both parents would be available there, as well as evidence concerning their financial circumstances and the like. [The child] has last lived in Florida for more than half of her life. If there is to be a contested custody hearing, Florida is clearly the more appropriate forum.
The decision of a court to decline jurisdiction on the basis of a finding that another forum is more convenient or appropriate is reviewed for an abuse of discretion. Brown v Brown, 181 Mich App 61, 71; 448 NW2d 745 (1989). Moreover, to be an “abuse of discretion” the result must be so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or an exercise of passion or bias. Id.
The trial court in this case appropriately considered the factors set forth in the uccja and cannot be said to have abused its discretion in determining that Florida was the more convenient forum for the parties to resolve their custody dispute. After considering the facts presented, the trial court found that the child was bom in Florida and lived in Florida for all but one year of her life. The child was living in Florida for approximately six months before the Michigan pleading was filed. Florida was the child’s home state. Florida had closer connections to the child than did Michigan. Further, the evidence concerning the fitness of the parents and their financial circumstances and the child’s records were in Florida. On the basis of the facts presented on the record, we are not persuaded that the court’s decision was so violative of fact and logic that it constituted an abuse of discretion. We therefore conclude that the court’s decision to decline further jurisdiction does not require reversal. MCL 600.657; MSA 27A.657.
Affirmed.
Another panel of this Court previously held that the dates of the filings of the complaints are controlling when determining priority. Dean v Dean, 133 Mich App 220, 223; 348 NW2d 725 (1984). However, Moore is controlling pursuant to Administrative Order No. 1996-4.
The standards of review cited by plaintiff in her appellate brief are incorrect. | [
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Taylor, J.
Defendant appeals as of right his jury trial convictions of assault with intent to rob while armed, MCL 750.89; MSA 28.284, and assault with intent to commit great bodily harm less than murder, MCL 750.84; MSA 28.279. Defendant subsequently pleaded guilty of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. Defendant was sentenced to parolable life in prison for the conviction of assault with intent to rob, and ten to fifteen years for the conviction of assault with intent to commit great bodily harm. We affirm defendant’s convictions and sentence for the conviction of assault with intent to commit great bodily harm less than murder and remand for resentencing for the conviction of assault with intent to rob while armed.
At about 12:30 am. on February 24, 1992, defendant approached the victim in a parking lot. After asking for directions, defendant put a knife to the victim’s throat and demanded money. Defendant backed the victim up against a truck and began trying to undo her pants. The victim pushed defendant back. Defendant lost his footing and punched the victim in the face. The victim fell down and was crouching when defendant stabbed her in the back and ran away. The victim recovered after spending four days in the hospital.Defendant raises several claims of error. We will first discuss the claim that requires resentencing and then dispose of the remaining issues.
Defendant argues that his parolable life sentence for the conviction of assault with intent to rob while armed is disproportionate. He notes that the recommended sentence under the sentencing guidelines for this offense is eight to twenty years, and states that his parolable life sentence is far beyond the recommended minimum guidelines’ range. Defendant argues that although he will become subject to the jurisdiction of the parole board after ten years, the reality is that most prisoners sentenced to parolable life are never released from prison.
This Court has issued conflicting opinions in reviewing parolable life sentences. In People v Lindsey, 139 Mich App 412; 362 NW2d 304 (1984), and People v McNeal, 156 Mich App 379; 401 NW2d 650 (1986), panels of this Court held that sentences of thirty to sixty and thirty-five to seventy years were lesser sentences than parolable life sentences even though a parolable life sentence would permit earlier consideration for parole. In People v Hurst (After Remand), 169 Mich App 160; 425 NW2d 752 (1988), another panel of this Court concluded that a forty- to eighty-year sentence was more severe than a parolable life sentence because a defendant serving a parolable life sentence was eligible for parole after ten years. In People v Houghteling, 183 Mich App 805, 811; 455 NW2d 440 (1990), a panel of this Court reviewed a parolable life sentence where the sentencing guidelines’ range had been twelve to fifteen years. The Court stated that a parolable life sentence did not shock the Court’s conscience, noting that the defendant would be eligible for parole after ten years. The Court then stated that the parolable life sentence “may actually be quite lenient.” Id. at 811. In People v Gilbert, 183 Mich App 741, 750-751; 455 NW2d 731 (1990), this Court reviewed a parolable life sentence where the sentencing guidelines’ range was ten to twenty years. The Court noted that the defendant would be eligible for parole after serving ten years and concluded that, compared to the guidelines’ range, a parolable life sentence was not disproportionate or excessive.
However, the analysis used by the Houghteling and Gilbert Courts was rejected in People v Shell, 200 Mich App 160, 161; 503 NW2d 711 (1993), where the Court stated that a parolable life sentence is not to be considered within the guidelines merely because the time at which the defendant becomes eligible for parole coincides with a point within the guidelines. Also, in People v Biggs, 202 Mich App 450, 456; 509 NW2d 803 (1993), a panel of this Court accepted a prosecutor’s concession that the trial court had erred in imposing a parolable life sentence under the mistaken impression that such a life sentence would make the defendant eligible for parole sooner than a long term of years. This statement in Biggs is directly contradicted by People v Legree, 177 Mich App 134, 141-142; 441 NW2d 433 (1989), which stated that a defendant receiving a parolable life sentence is eligible for parole “well before” a defendant who is sentenced to a long-term indeterminate sentence. However, the Biggs Court may have been considering the fact that a defendant with a parolable life sentence may not be paroled if his sentencing judge or a successor judge opposes parole and the fact that there is a great difference between a defendant’s coining under the jurisdiction of the parole board and receiving parole. MCL 791.234(6)(b); MSA 28.2304(6)(b); Hurst, supra.
Additional contradictory opinions were issued in 1994-95. In People v Phillips (On Rehearing), 203 Mich App 287, 291; 512 NW2d 62 (1994), a panel of this Court found that a minimum sentence of sixty-five years was an abuse of discretion, but added that if the sentence had been parolable life, it would have affirmed. This approach appeared to be vindicated when the Supreme Court decided People v Merriweather, 447 Mich 799, 809; 527 NW2d 460 (1994), and said that the defendant might have been better off with a parolable life sentence than the 60- to 120-year sentence that had been imposed. Id. This was apparently not understood by our Court to be dispositive, however, and in People v Lino (After Remand), 213 Mich App 89; 539 NW2d 545 (1995), this Court held that a long-term indeterminate sentence, such as a forty- to sixty-year prison term, is less severe punishment than a parolable life term because, under parole board practices from the late 1980s through the early 1990s, very few defendants sentenced to parolable life were paroled. In People v Love (After Remand), 214 Mich App 296, 302; 542 NW2d 374 (1995), the Court, without expanding on the Lino rationale, or distinguishing the cited comment from Merriweather for that matter, held that a sixty- to ninety-year prison sentence is also less severe punishment than a parolable life sentence. Under Administrative Order No. 1994-4, these holdings of Lino and Love bind this panel.
As a result, we are required to conclude, as this defendant urges, that in his current situation, where he will be eligible for parole in ten years, he is invariably less advantaged than he would be if, upon success in this Court, he were resentenced, as he well might be given the circumstances of his crime, to a long-term indeterminate sentence. It seems somewhat puzzling to us that he would perceive his self-interest to be advanced by this outcome because parolable life gives him his first opportunity for parole in ten years, but, after resentencing, it may be many decades before his first appearance before a parole board. Perhaps he is confident that any new sentence will not be lengthy, or maybe he just believes, even if the sentence is lengthy, he is somehow better off. In any case, we can conclude he has decided to move in this direction for reasons of his own, which we may question but not challenge. Nevertheless, that concession having been made, we cannot help but ask ourselves whether similarly situated inmates, bound by the law of Lino and Love, would also see a potential long-term indeterminate sentence as an advantage over parolable life. Such inmates might, if they planned to be model prisoners and took a long view of the probabilities of parole, feel distinctly disadvantaged by the conclusion that the Lino holding compels. They might, to put it plainly, prefer a situation where there is a shot at parole to one where there is likely no shot at parole. Because the Lino holding is, in its most extreme manifestation to date (such as in Love), so counterintuitive, it begs the question of how the law got into this unusual posture. We believe that at its root the problem can be traced to improper utilization of statistical data from the past to predict actions in the future.
In Lino, this Court, harkening to the dissent in Merriweather and, using some recent parole board statistics, held as a matter of law that few of the parolable life inmates eligible for parole in the future will get it, *and thus, that parolable life is a more severe penalty than a long-term indeterminate sentence. We believe this position is flawed because the statistics used in Lino are only reflective of the variables controlling the granting of parole for the period studied. These variables will always include the behavior of the inmates being considered, as well as the parole board’s disposition toward granting parole to lifers, which will invariably mirror, to some extent, the policy of the then-sitting governor, the temper of the Legislature, public opinion concerning crime, and many other factors of that sort. These conditions quite obviously change from time to time and, thus, so will the number of paroles granted. Indeed, one only need look at the statistics not considered by the Lino Court to understand this. The same sources used by the Lino panel show that thirty paroles were granted from 1979 to 1981. Further, the Lino panel was also apparently unaware that twelve lifers were paroled in the first nine months of 1994. Cf. 74 Mich B J 247 (1995). Accordingly, if the Lino method of analysis were correct, it would have been the case, say in 1982 or even 1996, that a court embarking on an analysis of parole frequency based on past statistics likely would have reached a different conclusion than the Lino panel did in 1995. At the least, they would have had a very difficult time concluding, as the Lino panel confidently did, that parolable life was effectively life without parole. The point here is not that the Lino panel used bad statistics or that 1979 through 1981, or the first nine months of 1994, were better reference periods, but only that these statistics cannot be used to project into the future.
In summary, then, we make the modest point, as recent statistics validate, that it is impossible to extrapolate and predict future actions of the parole board on the basis of statistics of the sort used in Lino where there are a great number of now unknowable variables that will determine future decisions by the parole board. Accordingly, following, as we respectfully believe the Lino panel should have, the Supreme Court’s statement in Merriweather that a defendant might be better off with a sentence of parolable life than a long term of years, we would, were it not for Lino and Love, find defendant’s parolable life sentence proportionate. However, as Lino and Love require us to consider defendant’s parolable life sentence as more severe than even a sixty- to ninety-year sentence, we conclude that this sentence is disproportionate and constituted an abuse of discretion.
Defendant also contends that he was denied a fair trial because the trial court allowed a prosecution witness to testify that defendant previously had been in prison. We agree that the trial court should not have allowed this testimony, but find that the error was harmless. Before trial, the court granted defendant’s motion to prevent reference to his prison record. However, during trial, the court allowed a prosecution witness to testify that he recognized defendant because defendant had spoken to him and shown him a prison identification card. The court gave a limiting instruction regarding the fact that defendant may have been in prison previously. In People v Allen, 429 Mich 558, 581; 420 NW2d 499 (1988), the Supreme Court stated that juries often misuse evidence of prior convictions. See also People v Robinson, 417 Mich 661, 664-665; 340 NW2d 631 (1983). We find that the court should have taken steps to limit this testimony to exclude evidence of the origin of defendant’s identification card to foreclose any possibility that the jury would convict defendant because he previously had been in prison. People v Wilkins, 408 Mich 69; 288 NW2d 583 (1980); MRE 105. Nevertheless, we find that the error in admitting this evidence was harmless. The victim conclusively identified defendant as her assailant. Admission of this prejudicial evidence did not result in a miscarriage of justice. MCL 769.26; MSA 28.1096.
Defendant also contends that the trial court erred in refusing to appoint for him an expert witness in the field of eyewitness identification. We disagree.
The court did not abuse its discretion in refusing to appoint an expert in eyewitness identification. In People v Hill, 84 Mich App 90, 95-96; 269 NW2d 492 (1978), this Court reviewed a similar argument and concluded that the trial court had not committed error requiring reversal in excluding expert testimony regarding the process by which people perceive and remember events and how pretrial identification procedures can affect this process. We agree with this holding in Hill and find defendant is not entitled to any relief regarding this issue. See also People v Sanders, 11 Cal 4th 475, 507-510; 905 P2d 420; 46 Cal Rptr 2d 751 (1995).
A defendant is entitled to the appointment of an expert at public expense only if he cannot otherwise proceed safely to trial. MCL 775.15; MSA 28.1252. The lack of such an expert did not prevent defendant from safely proceeding to trial because he presented alibi witnesses who, if believed, would have called the victim’s identification of defendant into question. Moreover, defense counsel argued that the victim’s identification was not proved and that the victim had been subjected to a suggestive photographic array.
Defendant also claims that the trial court erred in declining to instruct the jury regarding the findings and studies on eyewitness identifications contained in People v Anderson, 389 Mich 155, 173; 205 NW2d 461 (1973). We decline to reverse on this ground. We find that the Anderson principles were adequately presented in the jury instruction given by the trial court. In fact, it appears that the jury instruction, CJI2d 7.8, was drafted to reflect the Anderson opinion. In any event, this instruction did apprise the jury of the proper considerations in determining whether to accept or reject eyewitness identifications.
Defendant next argues that the prosecutor engaged in improper questioning of witnesses and improper argument. We disagree.
Because defendant did not object at trial, appellate review is limited to situations where a curative instruction could not have eliminated any prejudice or where failure to consider the issue would result in a miscarriage of justice. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994), cert den 513 US _ (1995). After a review of the record, we are satisfied that the prosecutor did not engage in any improper questioning or argument. Even if error is assumed, we find that a cautionary instruction could have cured any perceived prejudice. Id. at 687.
Defendant’s convictions and sentence for his conviction of assault with intent to commit great bodily harm less than murder are affirmed. We remand for resentencing for defendant’s conviction of assault with intent to rob while armed.
J. P. Noecker, J., concurred.
Defendant does not challenge his ten- to fifteen-year sentence for the conviction of assault with intent to commit great bodily harm and, thus, we affirm this sentence.
For crimes committed after October 1, 1992, parole eligibility is moved to fifteen years. People v Merriweather, 447 Mich 799, 809, n 9; 527 NW2d 460 (1994).
We are puzzled by Judge Jansen’s questioning whether Lino is applicable. Lino squarely stands for the proposition that a parolable life sentence is more severe than a lengthy term of years such as forty to sixty years. The Love panel so understood Lino this way, expanding Lino’s conclusion to a sixty- to ninety-year sentence.
As stated in Lino, supra at 97-98:
[F]rom 1986 through 1990, only seven prisoners serving parolable life sentences were paroled. Of the 975 prisoners serving such a term in 1990, only two were paroled. In 1991, only one prisoner serving a parolable life term was paroled. In 1992, again only one prisoner serving a parolable life term was paroled. During the last ten years, fifty prisoners serving parolable life sentences were actually paroled and the releases took place after the prisoners served an average of between 15‘/2 to 19‘/2 years. [Citations omitted.]
Lino also relied on the Supreme Court’s statement in People v Moore, 432 Mich 311, 317; 439 NW2d 684 (1989), that a term of years is a lesser penalty than life. Lino’s reliance on this statement was misplaced, however, because another panel of this Court held in People v Kelly, 213 Mich App 8, 15-17; 539 NW2d 538 (1995), that Moore had been overruled by Merriweather, supra. Kelly was issued only one week before the Lino opinion was issued and, thus, the Lino panel was likely not aware of the Kelly panel’s holding when it issued its opinion. We agree with Kelly and note that Moore’s statement that a term of years is a lesser penalty than life is contradicted by Merriweather’s later observation that a defendant sentenced to life might be better off than a defendant receiving a 60- to 120-year sentence. Even if we disagreed with Kelly, as Judge Jansen apparently does, we would be bound to follow it pursuant to Administrative Order No. 1994-4.
Defendant has urged us to reach this conclusion because the sentencing guidelines for the underlying offense were only eight to twenty years. The sentencing guidelines do not directly apply to habitual offender sentences. People v Cervantes, 448 Mich 620; 532 NW2d 831 (1995). In People v Gatewood, 214 Mich App 211, 213; 542 NW2d 605 (1995), a panel of this Court held that Cervantes did not have four justices agreeing that the guidelines should not be applied by analogy in reviewing habitual-offender sentences and, therefore, past precedent applying the guidelines by analogy was binding. The Michigan Supreme Court peremptorily vacated this holding of Gatewood, issuing an order that holds as follows:
The Court of Appeals erred by holding that in People v Cervantes, 448 Mich 620 (1995), a majority of this Court did not agree on whether the sentencing guidelines applied to habitual offenders. In Cervantes, three justices held that the sentencing guidelines do not apply to appellate review of the sentences of habitual offenders. A fourth justice concurred on the basis of the view that appellate review of sentences should not extend to habitual offender sentences. Consequently, a majority of the Supreme Court agreed that appellate review of habitual-offender sentences using the sentencing guidelines is inappropriate. [People v Gatewood, 450 Mich 1021 (1996).]
Thus, our review of the proportionality of defendant’s sentence is made without consideration of the sentencing guidelines’ range for the underlying conviction. We find a sentence that we must consider more severe than sixty to ninety years was not proportionate and, thus, an abuse of discretion. This is not to say that defendant does not merit a lengthy sentence on remand. We merely find the circumstances surrounding this offense do not place it in the most serious class with respect to the crime committed. People v Houston, 448 Mich 312, 319; 532 NW2d 508 (1995). Room must be left for crimes of this sort where the victim is permanently disabled, mutilated, or the like. To say nothing of the fact that this defendant’s criminal history, while bad, is not as severe as others who present themselves to the sentencing court with numerous felonies thus deserving more harsh treatment than this defendant who only had one prior felony conviction. Merriweather, supra at 806. | [
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O’Connell, RJ.
In this appeal as of right, respondent challenges the validity of a probate court order terminating his parental rights to his soon-to-be sixteen-year-old son Buddy pursuant to MCL 710.51(6); MSA 27.3178(555.51)(6). The termination of respondent’s parental rights cleared the way for Buddy’s adoption by his stepfather, petitioner Wayne O’Berry. We reverse.
i
Respondent and petitioner Verda O’Berry (hereinafter O’Berry) are the birth parents of Buddy and Brandy Halbert. The status of respondent’s parental rights with regard to Brandy are not at issue in this appeal.
Respondent and O’Berry divorced in 1984. Under the terms of the divorce judgment, O’Berry received physical custody of the children; both parents shared legal custody. Respondent was afforded visitation and required to pay child support.
O’Berry married Wayne O’Berry on June 12, 1984.
The circuit court amended the judgment of divorce in 1988 after respondent and O’Berry agreed to transfer physical custody of Brandy to respondent. Additionally, the amendment relieved respondent of his weekly child support obligation.
By mid-1990, respondent’s relationship with Buddy had so deteriorated that respondent ceased physical contact with his son. Respondent ceased all communication with Buddy in December 1990.
In October 1992, Brandy disclosed to O’Berry that respondent had sexually molested her. Respondent was imprisoned, thereafter, as a result of his sexual abuse of Brandy.
On August 8, 1995, the O’Berrys filed a petition for stepparent adoption pursuant to MCL 710.51(6); MSA 27.3178(555.51)(6), seeking authorization for petitioner Wayne O’Berry to adopt Buddy on the grounds that respondent had failed to provide support for Buddy and had failed to visit or contact Buddy for a period of two years or more. The O’Berrys also filed that same day a petition seeking the termination of respondent’s parental rights with regard to Buddy pursuant to MCL 710.51(6); MSA 27.3178(551.51)(6).
The trial court conducted a termination hearing on October 13, 1995. At the close of the parties’ proofs, the court explained from the bench that it “normally” looks to the two-year period that immediately precedes the filing of the termination petition, as required by MCL 710.51(6); MSA 27.3178(555.51)(6), to determine whether the grounds for termination exist. The court then concluded that respondent had been incarcerated during the two-year period immediately preceding the filing of the petition and, consequently, lacked the ability either to provide support for Buddy or to visit Buddy. Rather than deny the O’Berrys’ petitions, however, the court determined that a noncustodial parent’s incarceration “tolls the running of the statute, and . . . you look at the period of time immediately preceding the incarceration, not the two-year period of time immediately preceding the filing of the petition.” The court reached this conclusion in reliance upon this Court’s decision in In re Colon, 144 Mich App 805; 377 NW2d 321 (1985). The court thereafter looked to the two-year period immediately preceding respondent’s incarceration and determined that it had been established by clear and convincing evidence that respondent made no visits to and paid no support for Buddy, despite respondent’s ability to do both. The court then terminated respondent’s parental rights with respect to Buddy.
n
Respondent’s parental rights were terminated under the Michigan Adoption Code pursuant to MCL 710.51(6); MSA 27.3178(555.51)(6), which provides in pertinent part:
If the parents of a child are divorced, . . . and if the parent having legal custody of the child subsequently marries and the parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur:
(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child,. .. for a period of 2 years or more before the filing of the petition.
(b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially faded or neglected to do so for a period of 2 years or more before the filing of the petition.
At issue in the present case is whether, in the case of an incarcerated respondent, the court looks to the two-year period preceding incarceration and, if not, whether an incarcerated respondent may be considered to have the ability to support his child while incarcerated, thereby opening the door for termination of his rights under this statute. Respondent argues that the phrase clearly and unambiguously requires a trial court to look to the two-year period immediately preceding the filing of the termination petition to determine if the grounds for termination exist. The O’Berrys argue that the legislative intent behind the enactment of MCL 710.51(6); MSA 27.3178(555.51)(6) is better honored if the statute is construed to allow the trial court to look to the two-year period falling immediately before the commencement of a noncustodial parent’s incarceration, rather than the two-year period immediately preceding the filing of the petition, when the noncustodial parent is incarcerated at the time of the filing of the petition. What construction, if any, we are to afford the statute presents a question of first impression. We conclude that respondent advances the correct interpretation of the statute at issue.
Where the language employed in a statute is plain, certain, and unambiguous, the statute must be applied as written without interpretation. Grand Rapids v Crocker, 219 Mich 178, 182; 189 NW 221 (1922); Wayne Co v Dep’t of Corrections Director, 204 Mich App 712, 714; 516 NW2d 535 (1994). This literal application of the statute is mandated because the Legislature is presumed to have intended the meaning it plainly expressed. Frasier v Model Coverall Service, Inc, 182 Mich App 741, 744; 453 NW2d 301 (1990).
We conclude that the phrase “for a period of 2 years or more before the filing of the petition” is plain, certain, and unambiguous. A bare reading of the statute reveals that the two-year statutory period must commence on the filing date of the petition and extend backwards from that date for a period of two years or more. Accordingly, we determine that the statute is satisfied and a petition for termination may be granted where the grounds for termination have been shown to exist for at least two years immediately preceding the filing of the termination petition.
In the instant case, the trial court refused to apply the statute as written, opting instead to interpolate a “tolling” provision into the statute on the basis of this Court’s decision in In re Colon, supra. We are unpersuaded that our decision in In re Colon compels us to afford the statutory phrase at issue any meaning other than its plain meaning.
In In re Colon, supra, pp 808-812, this Court was asked to determine whether MCL 710.51(6)(a); MSA 27.3178(555.51)(6)(a) required a stepparent who wished to adopt his stepchildren to prove both that the noncustodial parent had failed to comply with a support order and that the noncustodial parent had the ability to comply with the order. After engaging in statutory construction, we opined: ,
For the above reasons, we hold that, in cases where a child support order has been entered, MCL 710.51(6)(a) [MSA 27.3178(555.51)(6)(a)] may be satisfied by a showing that the natural parent has “failed to substantially comply with the [support] order, for a period of 2 years or more before the filing of the petition.” Such a showing was clearly made in the case at bar where the probate court found that the relevant time period was two years preceding respondent’s incarceration. [In re Colon, supra, p 812.]
This Court was also asked to determine whether the evidence sustained the probate court’s finding that the respondent had the ability to visit, contact, or communicate with his children, as required by MCL 710.51(6)(b); MSA 27.3178(555.51)(6)(b). In re Colon, supra, p 813. We rejected the respondent’s argument that he lacked the ability to visit his children, opining:
In the instant case, the probate court specifically recognized that proof by clear and convincing evidence was necessary, and that a showing of ability to visit was required under MCL 710.51(6)(b) [MSA 27.3178(555.51)(6)(b)]. The court found that respondent had not been welcome inside petitioner’s home but had been permitted to take the children on his visitations. Despite this, he had visited only eight to eleven times in 2-lh years. The court termed this visitation “minimal” and found that respondent had failed regularly and substantially to visit, contact, or communicate with the children for two years preceding his incarceration.
We cannot say that the findings of the probate court are clearly erroneous. Repsondent’s [sic] visits were sporadic, and his claim that petitioner effectively blocked his efforts to see the children more frequently is not convincing. Petitioner testified that respondent was aware of the children’s whereabouts and telephone number at all times. He did not request a change in the visitation order (which provided for “reasonable visitation”) or complain to the Friend of the Court about being denied visitation. With this evidence on the record, we reject respondent’s argument that he did not have the “ability to visit” within the meaning of MCL 710.51(6)(b) [MSA 27.3178(555.51)(6)0)]- [In re Colon, supra, pp 813-814.]
The trial court’s reliance on In re Colon is misplaced. In In re Colon, we neither were asked to decide nor did decide how the two-year statutory period was to be calculated for puiposes of MCL 710.51(6); MSA 27.3178(555.51)(6). To the extent that we favorably described the “two years preceding respondent’s incarceration” as the relevant statutory period, our description constitutes, at most, obiter dictum. We conclude, therefore, that In re Colon does not provide meaningful authority for the proposition that a noncustodial parent’s incarceration “tolls the running of the statute, and [requires the trial court to] look at the period of time immediately preceding the incarceration.” Accordingly, our resolution of the question presented must be guided solely by the time-honored principles of statutory construction.
Guided by those time-honored principles, we are persuaded that the trial court committed an error of law when it refused to apply MCL 710.51(6); MSA 27.3178(555.51)(6) as written and, correspondingly, when it refused to look to the two-year period imme diately preceding the filing of the petition to determine whether termination was warranted.
The O’Berrys argue that, under the circumstances of this case, it is unfair to Buddy and his stepfather to enforce MCL 710.51(6); MSA 27.3178(555.51)(6) as written. Although we sympathize with the O’Berrys, we are unpersuaded that any unfairness perceived by the O’Berrys is the direct consequence of any deficiency in the drafting of the statute or in our adherence to the certain and unambiguous language and plain meaning of the statute. Rather, our inability to resolve the issue placed before us in a manner desired by the O’Berrys is a consequence of the O’Berrys’ invocation of a statute under which their desired end may not be attained.
The primary purpose of MCL 710.51(6); MSA 27.3178(555.51)(6) is to allow a stepparent who provides the material and emotional support to a child that would be expected of the child’s legal parent to adopt the child of a noncustodial parent who has essentially abandoned the child and who has refused to, or is unavailable to, consent to the adoption. In re Colon, supra, pp 810-811. This purpose may be effectuated only where the noncustodial parent is situated in circumstances whereby that parent can earn a living and acquire the wherewithal to support a child, where the noncustodial parent has ignored or abandoned the natural obligations owed a child by a parent, and where the noncustodial parent has refused, or intentionally has become unavailable, to consent to the adoption. Respondent’s lengthy incarceration before the filing of the petitions for termination of his parental rights and for adoption — and, hence, his inability to earn a living and acquire the wherewithal to provide support for Buddy — take respondent outside the intended scope of MCL 710.51(6); MSA 27.3178(555.61)(6).
Reversed. We do not retain jurisdiction.
Although several panels of this Court have looked to the two-year period immediately preceding the filing of a termination petition when evaluating whether trial courts had correctly ordered termination pursuant to MCL 710.51(6); MSA 27.3178(555.51)(6), see, e.g., In re DaBaja, 191 Mich App 281, 291; 477 NW2d 148 (1991); In re Meredith, 162 Mich App 19, 24; 412 NW2d 229 (1987); In re Martyn, 161 Mich App 474, 482; 411 NW2d 743 (1987), and although another panel of this Court looked to the two-year period immediately preceding the noncustodial parent’s commencement of incarceration and not the two-year period immediately preceding the filing of the petition, In re Colon, 144 Mich App 805, 812, 814; 377 NW2d 321 (1985), no panel of this Court has ever specifically addressed the issue presented in this case. | [
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Per Curiam.
On September 12, 1990, plaintiff requested a hearing in the Bureau of Worker’s Disability Compensation, seeking disability benefits for a back injury allegedly sustained while working for defendant Wilson Welding Supply, Inc. Following the hearing, Magistrate Joseph L. Chylinski opined that plaintiff had proved the occurrence of a compensable injury. Wilson Welding appealed to the Worker’s Compensation Appellate Commission (wcac), which found that the magistrate’s opinion was “virtually silent as to the reasoning supporting its finding of disability.” The WCAC vacated the magistrate’s decision in its entirety, and remanded the matter to the Board of Magistrates so that a different magistrate could prepare a new decision. Plaintiff then filed in the Court of Appeals a complaint for superintending control, which the Court of Appeals dismissed on June 22, 1994 (Docket No. 174536). The Michigan Supreme Court then remanded the case to this Court for a full hearing, pursuant to MCR 7.206(D)(3). Gretel v Worker’s Compensation Appellate Comm, 448 Mich 860 (1995).
In his complaint for superintending control, plaintiff contends that the WCAC was without authority to issue an order vacating the decision of the magistrate and that the WCAC lacked the power to remand to the Board of Magistrates for a new hearing before a new magistrate. We agree, grant superintending control, and reverse the wcac’s order.
In finding that plaintiff had sufficiently demonstrated the occurrence of a compensable injury, Magistrate Chylinski relied on testimony by plaintiff’s treating physicians. The magistrate’s opinion stated:
The testimony of the treating and examining physicians evidenced essentially negative objective findings with the exception of muscle spasms found by plaintiff’s treating physicians. Dr. Marrella testified that plaintiff’s complaints were generally “very non-specific” and did not follow any dermatome pattern. He felt, however, that the muscle spasms were a sufficient basis upon which to continue treatment. He also testified that during the course of treatment on August 13, 1990, plaintiff was given a muscle relaxant which could well have accounted for Dr. Brown’s failure to find any spasms during his examination of August 14, 1990.
On appeal, the wcac found that “the magistrate’s recitation of plaintiff’s treating physician’s opinion that continuing treatment is needed is insufficient to support a finding of disability.” The wcac further found the magistrate’s decision “insufficient for purposes of review.” The wcac issued an order vacating the magistrate’s decision and remanding the case “to the Chief Magistrate for assignment to a new magistrate for preparation of a new decision.” We find that the wcac did not have the authority to vacate the magistrate’s decision, nor did it have the power to remand for a new determination. Accordingly, we grant plaintiff’s writ for superintending control and reverse the order of the wcac.
The WCAC “is an independent body with the power and authority to review the orders of the director and hearing referees and the orders and opinions of the worker’s compensation magistrates as provided for under this act.” MCL 418.274(7); MSA 17.237(274)(7). Although there is no express statutory authority allowing the wcac to vacate a magistrate’s decision or to order that a new decision be prepared by a new magistrate, the wcac contends that it had the implied authority to vacate the magistrate’s decision. We do not agree.
Administrative bodies such as the wcac are inherently limited in their powers by the express language of the statute. Traverse Oil Co v Chairman, Natural Resources Comm, 153 Mich App 679, 686; 396 NW2d 498 (1986). However, administrative authority can also extend beyond that expressly granted to that which is necessarily implied. Id. In this case, the power to remand a case to a new magistrate for a new determination is not inherent in the statutory mandates to the WCAC, nor is the power necessarily implied. The wcac is charged with conducting a “qualitative and quantitative analysis of the evidence and ensur[ing] a full, thorough, and fair review thereof.” MCL 418.861a(13); MSA 17.237(861a)(13). In cases where a magistrate’s findings are not supported by competent, material, and substantial evidence on the whole record, the WCAC has been given the express power to reverse the magistrate’s decision and to substitute its own opinion and order. MCL 418.861a(3); MSA 17.237(861a)(3); Holden v Ford Motor Co, 439 Mich 257, 267-268; 484 NW2d 227 (1992). In addition, MCL 418.861a(12); MSA 17.237(861a)(12) grants the wcac the express authority to remand to the magistrate “for purposes of supplying a complete record if it is determined that the record is insufficient for purposes of review.” Thus, if the wcac feels a magistrate’s decision was not supported by competent, material, and substantial evidence on the record, it can reverse the decision and issue its own opinion. If the WCAC does not believe it has enough information to properly review the magistrate’s decision, it may remand for completion of the record. These powers enable the wcac to folly discharge its duties under the statute; thus, there is no need for the WCAC to have the power to vacate and remand for a new determination. Because the WCAC has been given sufficient authority to fully carry out its duties, no further powers should be implied. Traverse Oil, supra.
The current system for appeals of decisions of a magistrate was designed to give very limited power to the WCAC, and the decisions of the magistrates are to be final in most cases. Civil Service Comm v Dep’t of Labor, 424 Mich 571, 621; 384 NW2d 728 (1986). Defendants contend that, if the WCAC does not have the power to remand, the commission will be “forced to become the factfinder of first resort” in cases in which the factfinding of the magistrate was insufficient. We disagree. As set forth above, MCL 418.861a(12); MSA 17.237(861a)(12) grants the WCAC the express authority to remand to the magistrate for a completion of the record. The statute also states that the order and opinion of a worker’s compensation magistrate “shall be part of the record of the hearing.” MCL 418.847(2); MSA 17.237(847)(2). Thus, the WCAC is permitted to remand a case for completion of a magistrate’s opinion and order, including a more thorough recitation of the findings of fact. However, the WCAC has not been given express or implied authority to vacate an order of a magistrate, nor does the WCAC have the power to order that a new hearing be conducted before a new magistrate.
Because the WCAC exceeded its authority, the proper remedy is to grant plaintiff’s writ for superintending control. In re Loose, 201 Mich App 361, 365; 505 NW2d 922 (1993). Accordingly, we reverse the wcac’s order that vacated the magistrate’s decision and ordered a new hearing, and we remand the case to the WCAC. Upon remand, the WCAC is to conduct a review of the magistrate’s decision to determine whether it was supported by competent, material, and substantial evidence on the entire record. If the WCAC determines that the record is insufficient to properly review the magistrate’s decision, the WCAC may remand to the magistrate for the purpose of completing the record.
Pursuant to MCL 418.862(1); MSA 17.237(862)(1), plaintiff was to be paid seventy percent of his award of benefits “until final determination of the appeal.” However, the Supreme Court has stated, “If the hearing referee’s award ... is vacated at any appellate stage, the seventy percent benefits are terminated.” McAvoy v H B Sherman Co, 401 Mich 419, 444; 258 NW2d 414 (1977). Thus, pursuant to McAvoy, payments to plaintiff were terminated following the WCAC order vacating the magistrate’s award. The McAvoy Court further stated that “if a hearing referee’s award which was vacated or modified at a lower appellate level is reinstated at a higher appellate level, the 70% benefits resume.” Id. at 445. Accordingly, we order that payment of plaintiffs seventy percent benefits be reinstated. Plaintiff, however, is not entitled to be paid the seventy percent benefits that were not paid during the period between appeals. Id. at 445, n 6. According to McAvoy, such “back” benefits “can always be obtained by a successful claimant once the appellate process is completed and all accrued benefits are paid.” Id.
Superintending control granted. The order of the WCAC is reversed and the matter is remanded to the WCAC. Payment of seventy percent of plaintiffs benefits is to be resumed. We do not retain jurisdiction. | [
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Per Curiam.
Defendant was charged with and ultimately convicted by a jury of possession with intent to deliver 50 grams or more but less than 225 grams of cocaine, MCL 333.7401(1) and (2)(a)(iii); MSA 14.15(7401)(1) and (2)(a)(iii). Defendant was sentenced to a term of ten to twenty years’ imprisonment. Defendant appeals as of right. We affirm.
i
On March 6, 1992, and before defendant’s jury trial in this case, a plea agreement was reached between the prosecution and defendant. On the record at the plea proceeding, defendant agreed to and did plead guilty of possession with intent to deliver less than fifty grams of cocaine in exchange for a dismissal of the charged offense at sentencing. Defendant stated that no other promises or threats had been made to him to cause him to plead guilty. Defendant’s sentencing was set for approximately three months later on June 4, 1992. On March 9, 1992, the prosecution sent the following letter to defense counsel:
Your client, Jack Hannold, plead [sic] guilty to Count II. [sic] Possession With Intent to Deliver Less Than 50 Grams of Cocaine on 3/6/92. This plea was entered pursuant to a plea agreement in which the People will be dismissing Count I. [sic] at sentencing.
An additional part of this plea agreement (which was not placed on the record) is that Jack Hannold agrees to give all assistance to the police including testimony and full statement in an investigation involving John Hud Grover.
This letter will be sent to Judge Hocking to be sealed and placed in the Court file.
Defendant’s sentencing was adjourned. On July 21, 1992, the prosecution moved to set aside the plea agreement on the ground that defendant had failed to comply with the terms of the sealed agreement. Specifically, the prosecution alleged the following:
4. Based on Defendant’s statement, the prosecution charged John Hud Grover with Conspiracy to Deliver Between 50- 224 Grams of Cocaine (based on the same incident from which Defendant was charged).
5. The prosecution started extradition proceedings to bring Mr. Grover back from Vermont, [sic] eventually, Grover returned to Michigan on his own.
6. On July 17, 1992, at John Hud Grover’s preliminary examination; [sic] Defendant Hannold was subpoenaed to testify. Hannold (through his attorney) indicated he had lied in his statement implicating Grover and refused to testify against John Hud Grover.
At the September 3, 1992, hearing on the prosecution’s motion to set aside defendant’s plea, the exis tence and terms of the sealed agreement were not disputed. Rather, defense counsel confirmed the terms of the sealed agreement:
Mr. Prosecutor — Mr. Sauter correctly indicates that there was a plea on March 6 which required Mr. Hannold to provide certain assistance to the police including testimony against a certain individual.
Defense counsel explained that defendant had been scheduled to but had not testified at Grover’s preliminary examination because defendant had received threatening telephone calls and because Grover had put a gun to defendant’s head two days before Grover’s preliminary examination and “made it very clear what would happen if [defendant] testified two days later.” Defense counsel further explained that he had met with defendant the day of the preliminary examination and that defendant, while not revealing Grover’s threats, had told him that Grover “had nothing to do with the drugs and it was someone else.” Defense counsel stated that he informed the prosecutor’s office of this information and that the charges against Grover were dropped. Defense counsel conceded that defendant had failed to fully comply with the sealed agreement because of the threats, but indicated. that “if the Prosecutor wants to provide [defendant’s] family some limited type of protection, he’s perfectly willing to go through with his end of the bargain.”
The trial court then stated:
Well it’s clear from the statements on the record that Mr. Hannold has not abided by the terms of the plea agreement. I remember this case, because one of the terms was not placed on the record for security purposes and was placed in the court file in a sealed envelope. And that appears to be the term that the Defendant admittedly is refusing to comply with.
Whether he has a good reason or not, he can’t have his cake and eat it, too. He can’t have a plea to a lesser charge and yet not go forward with what he agreed to do in exchange for that. A classic breach of contract if nothing else.
The trial court set aside defendant’s guilty plea and reinstated the charge of possession with intent to deliver 50 grains or more but less than 225 grams of cocaine. After substitute counsel was appointed for defendant, the court denied defendant’s motion for reconsideration. Defendant was subsequently convicted as charged at his jury trial.
On appeal, defendant raises several grounds for his argument that the trial court erred in setting aside his plea. First, defendant argues that the trial court erroneously found that defendant had breached the sealed agreement. Specifically, defendant argues that there is no indication that the court was even aware of the terms of the sealed agreement where such terms were not placed on the record. Defendant contends that, accordingly, the court erred in setting aside defendant’s plea simply on the prosecution’s allegation that defendant had not abided by the terms of the agreement.
The court rules provide that before accepting a guilty plea, the trial court must ascertain both whether a plea agreement has been made and, if so, the terms of the agreement. MCR 6.302(A) and (C)(1)-(2). In this case, the record indicates that the court and the parties did not fully comply with the requirements of MCR 6.302(C)(1) and (2) where the terms of the sealed agreement were not placed on the record. This was error. We take this opportunity to emphasize that we do not condone such agreements or procedure and in fact strongly disapprove of plea agreements not fully and openly set forth on the record.
However, we note that on appeal defendant does not question either the existence of the sealed agreement or its terms. The record below reveals that the terms of the agreement were set forth in the March 9, 1992, letter. In this letter, the prosecution informed defense counsel that the letter would be sent to the trial court. At the September 3, 1992, hearing on the motion to set aside defendant’s plea, the court stated, “I remember this case, because one of the terms was not placed on the record for security purposes and was placed in the court file in a sealed envelope.” Thus, the record indicates that the court did not simply rely on the prosecution’s allegation that defendant had breached the agreement but rather was actually aware of the terms of the sealed agreement. Defendant’s argument to the contrary is without merit. Moreover, although it was not specifically raised as an issue on appeal by defendant, we conclude that despite our reservations concerning the procedure used in this case, the court’s and the parties’ failure to fully comply with MCR 6.302(C)(1) and (2) was harmless error under the circumstances. See MCR 2.613(A) and MCL 769.26; MSA 28.1096.
As an additional ground for his argument that the court’s finding of breach was erroneous, defendant next argues that the court did not have sufficient evidentiary support for its finding that defendant had breached the agreement. Defendant points out that the court did not ask defendant if he was refusing to testify and that defense counsel indicated that defendant would testify, but that defendant was scared and wanted the police to check into the threats. Again, this argument misconstrues the actual record below. At the September 3, 1992, hearing on the motion to set aside the plea, the issue was not whether defendant would be willing to testify but rather was whether defendant had previously refused to testify. On the latter issue, defense counsel informed the court at this hearing that defendant had not testified at Grover’s preliminary examination. Defense counsel further conceded that defendant had not fully complied with the terms of the sealed agreement. Accordingly, we conclude that the court’s finding that defendant had breached the agreement was not clearly erroneous. MCR 2.613(C); People v Abrams, 204 Mich App 667, 673; 516 NW2d 80 (1994).
Next, defendant argues that despite his breach, the court nevertheless erred in setting aside his plea.
MCR 6.310(C) provides as follows:
On the prosecutor’s motion, the court may vacate a plea before sentence is imposed if the defendant has failed to comply with the terms of a plea agreement.
As explained in Abrams:
[Cooperation agreements that affect the disposition of criminal charges must be reviewed within the context of their function to serve the administration of criminal justice. Contractual analogies may not be applicable, and so the terms of an agreement must be reviewed to determine whether the ends of justice are served by enforcing the terms. [204 Mich App 672 (citations omitted).]
The language of MCR 6.310(C) and the accompanying staff comment indicate that this Court reviews for an abuse of discretion a trial court’s decision to vacate a plea based on a defendant’s noncompliance with a plea agreement. However, cases reviewing such decisions have applied the clearly erroneous standard of review. See Abrams, supra at 673; People v Walton, 176 Mich App 821, 826; 440 NW2d 114 (1989).
In this case, there is no dispute that defendant failed to abide with all the terms of the sealed agreement. Defendant contends that he did not willingly renege on the plea agreement but rather withheld his testimony because of the death threats he received. Defendant faults the prosecutor for moving to set aside the plea instead of attempting to protect him. However, the fact that the terms of the plea agreement concerning defendant’s cooperation were initially sealed indicates that there must have been some concern or contemplation that threats would arise. Moreover, defense counsel informed the court at the September 3, 1992, motion to set aside defendant’s plea that defendant did not reveal Grover’s death threats when defendant told him on the day of Grover’s preliminary examination that Grover had “nothing to do with the drugs and it was someone else.” Thus, it appears that defendant did not give the prosecutor an opportunity to protect him.
Defendant contends that some consideration should be given to the fact that he allegedly cooperated by making incriminating statements to the police shortly after being arrested on October 3, 1991. However, at the September 3, 1992, hearing on the motion to set aside the plea, defense counsel, after confirming the terms of the sealed agreement, indicated that defendant first met with police pursuant to the agree ment on March 20, 1992. Thus, as discussed more fully below, our review of the record indicates that the statements relied on by defendant as evidence of his cooperation were not connected to defendant’s plea agreement.
Defendant argues that he is entitled to specific performance of the agreement. However, a defendant who has not lived up to his part of a plea bargain has no right to specific performance. Abrams, supra.
Finally, defendant argues that the trial court erred in blindly adhering to contract principles rather than recognizing that it had the discretion to determine whether to set aside the plea. It is true that the trial court stated that defendant had committed a “classic breach of contract.” Although a strict contract analogy may not be applicable to plea agreements, the fact remains, as noted by the trial court, that defendant did not “give all assistance to the police including testimony” when he changed his story and failed to testify at Grover’s preliminary examination. Defendant’s breach cannot be undone by defendant’s statement that he is still willing to testify if additional consideration — police protection — is granted him. Defendant’s breach led to the dismissal of charges against Grover. Even if defendant were compelled or convinced to testify at renewed proceedings against Grover, defendant is now a tainted witness. It is too late for defendant to undo the damage he has done to the prosecution’s case against Grover. Accordingly, we conclude that the administration of criminal justice was properly served in this case by the trial court’s grant of the prosecutor’s motion to set aside defendant’s guilty plea. Abrams, supra; Walton, supra; People v Acosta, 143 Mich App 95, 99; 371 NW2d 484 (1985). We find no abuse of discretion or clear error.
ii
Next, defendant argues that incriminating statements he made to the police on the day he was arrested (October 3, 1991) were erroneously admitted at trial. Specifically, defendant contends that these statements were made in the context of plea negotiations and therefore were admitted in violation of MRE 410 (inadmissibility of pleas, plea discussions, and related statements). However, defendant failed to object at trial to the admission of these statements. Accordingly, this issue is not preserved. People v Mooney, 216 Mich App 367, 375; 549 NW2d 65 (1996). In any event we find no error. Our review of the trial record, including defendant’s trial testimony, reveals no evidence or indication that defendant had a subjective expectation to negotiate a plea when he made his incriminating statements to the police on October 3, 1991. Nor is there any evidence or indication that any such expectation would have been reasonable under the circumstances. See, generally, People v Dunn, 446 Mich 409, 415-416; 521 NW2d 255 (1994). Moreover, the record clearly reveals that no prosecuting attorney was present at the time defendant made his incriminating statements to the police. Thus, MRE 410, which was amended two days before defendant was arrested in this case, is simply inapplicable. Because the statements were not erroneously admitted, defendant has failed to demonstrate that counsel erred in failing to object to their admission. People v Briseno, 211 Mich App 11, 17; 535 NW2d 559 (1995).
in
Finally, contrary to defendant’s contention, the sentencing court did not refuse to consider postarrest factors in deciding whether to depart from the statutory ten-year minimum sentence. See MCL 333.7401(4); MSA 14.15(7401)(4). Rather, the court found that the postarrest factors presented to it did not constitute substantial and compelling reasons to depart from the statutory minimum sentence. After reviewing the record, we conclude that this determination did not constitute an abuse of discretion. People v Fields, 448 Mich 58, 78; 528 NW2d 176 (1995).
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Fitzgerald, J.
Following a district court jury trial, defendant was convicted of careless discharge of a firearm resulting in property damage, MCL 752.862; MSA 28.436(22). Defendant was ordered to pay a fine and to forfeit the firearm used during the commission of the crime, pursuant to MCL 750.239; MSA 28.436. Defendant appealed the forfeiture order as of right to the Lapeer Circuit Court. The forfeiture order was affirmed. Defendant appeals by leave granted. Specifically, defendant argues the forfeiture statute does not apply to the statute under which he was convicted. We agree and reverse the portion of the order relating to the forfeiture.
The relevant forfeiture statute provides:
All pistols, weapons or devices carried, possessed or used contrary to this chapter are hereby declared forfeited to the state, and shall be turned over to the commissioner of the Michigan state police or his designated representative, for such disposition as the commissioner may prescribe. [MCL 750.239; MSA 28.436 (emphasis added).]
Citing People v Thompson, 125 Mich App 45, 47; 335 NW2d 712 (1983), defendant contends that the statute is unambiguous and that the phrase “this chapter” refers to violations of chapter 37 of the Penal Code. We agree. The forfeiture statute is unambiguous on its face and provides for a forfeiture of firearms if they are carried, possessed, or used contrary to chapter 37 of the Penal Code. Id. at 47. Cf. Burch v Wargo, 378 Mich 200, 204; 144 NW2d 342 (1966) (use of “this chapter” refers to chapter 5 of the vehicle code of 1949). Defendant contends that he was not convicted of a crime under chapter 37 of the Penal Code and therefore the provision is inapplicable. The question, therefore, is whether a violation of MCL 752.862; MSA 28.436(22) is a weapons offense falling under chapter 37 of the Penal Code.
MCL 750.239; MSA 28.436 originated as § 239 of 1931 PA 328, the act that created the modem Penal Code. Chapter 37 of the act, as designated in the original legislation, was entitled “Firearms,” and included §§ 222 through 239.
Section 235 of Act 328 provided:
Any person who shall maim or injure any other person by the discharge of any fire-arm pointed or aimed intentionally, without malice, at any such person shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than one year or by a fine of not more than five hundred dollars.
The Penal Code was amended with the addition of § 235a by 1939 PA 83. Section 235a, as originally enacted, provided in pertinent part:
Any person who shall use, carry, handle or discharge any fire-arm carelessly and heedlessly in willful or wanton disregard of the rights, safety or property of others, or without due caution and circumspection, shall be guilty of a misdemeanor.
The present controversy stems from the enactment of 1952 PA 45, which provided:
Sec. 1. Any person who, because of carelessness, recklessness or negligence, but not willfully or wantonly, shall cause or allow any firearm under his immediate control, to be discharged so as to kill or injure another person, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison for not more than 2 years, or by a fine of not more than $2,000.00, or by imprisonment in the county jail for not more than 1 year, in the discretion of the court. [MCL 752.861; MSA 28.436(21).]
Sec. 2. Any person who, because of carelessness, recklessness or negligence, but not willfully or wantonly, shall cause or allow any firearm under his control to be discharged so as to destroy or injure the property of another, real or personal, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail for not more than 90 days or by a fine of not more than $100.00, if the injury to such property shall not exceed the sum of $50.00, but in the event that such injury shall exceed the sum of $50.00, then said offense shall be punishable by imprisonment in the county jail for not more than 1 year or by a fine not exceeding $500.00. [MCL 752.862; MSA 28.436(22).]
Sec. 3. Section 235a of Act No. 328 of the Public Acts of 1931, being section 750.235a of the Compiled Laws of 1948, is hereby repealed. [MCL 752.863; MSA 28.436(23).]
The two different compilations of Michigan statutes treat the sections of law added by 1952 PA 45 differently. The West Publishing Company has followed the numbering used by the compiler, an agent of the Legislative Council that, pursuant to statute, compiles all general laws in force and administrative rules filed with the Secretary of State and publishes them in bound volumes. The numbering used in West’s Michigan Compiled Laws Annotated follows the numbering adopted by the compiler. Callaghan & Company, publisher of Michigan Statutes Annotated, uses its own numbering system. Callaghan’s has included the sections added by 1952 PA 45 in chapter 37 of the Penal Code, while West Publishing Company has not. However, the Legislature has not delegated to either of these private publishing companies, or to the compiler, the power to affect the application and reach of any statute.
Here, in 1931 the Legislature divided the Penal Code into chapters, with chapter 37 covering offenses relating to firearms. An additional section relating to careless use of firearms was specifically added to chapter 37 by 1939 PA 83, and was later repealed by 1952 PA 45. However, in enacting 1952 PA 45, the Legislature did not declare that it was repealing §§ 235 and 235a of the Penal Code. Instead, it repealed § 235a and left § 235 unchanged. Conceptually, the sections of 1952 PA 45 belong in chapter 37 of the Penal Code. However, the Penal Code is an act and 1952 PA 45 is another act that, by its terms, does not purport to add any sections to the Penal Code. To add a section to the Penal Code, the Legislature must do so explicitly. Const 1963, art 4, § 24. Because the Legislature elected not to place these new sections in the Penal Code, the offense of which defendant was convicted is not within the ambit of chapter 37 of the Penal Code. Accordingly, the trial court erred in imposing a forfeiture under § 239 of the Penal Code.
The portion of the order relating to the forfeiture is reversed.
1939 PA 83 was specifically entitled in pertinent part:
An act to amend act number 328 of the Public Acts of 1931, entitled, “An act to revise, consolidate, codify and add to the statutes relating to crimes."
1952 PA 45 was simply titled:
An act to prohibit the careless, reckless or negligent use of firearms and to provide penalties for the violation of this act; and to repeal certain acts and parts of acts.
It is possible that the limits on the forfeiture provision arose as a result of legislative oversight. However, it is for the Legislature, not the judiciary, to cure the problem. Const 1963, art 3, § 2. | [
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Griffin, J.
Plaintiff appeals by leave granted an order of the circuit court granting summary disposition in favor of defendants and awarding sanctions. Defendants cross appeal the amount of attorney fees and costs awarded. We affirm. Further, we find plaintiffs appeal to be vexatious and, accordingly, remand to the trial court for an award to defendants of actual damages and expenses, including reasonable attorney fees, incurred as a result of plaintiffs appeal.
i
In 1992, during the height of the media attention for the Biosphere “experiment,” defendant car dealer and defendant radio station organized a contest and publicity stunt termed the “Geo-sphere.” The contest called for two men and two women to live in a Chevrolet Geo automobile as long as humanly possible. The person who, consistent with the contest rules, was able to reside in the Geo automobile the longest would win the vehicle in an “as is” condition. The contest provided for ten-minute breaks every four hours. Among other rules of conduct, the contest rules provided “[n]o smoking will be allowed in the vehicle.” Further, “[a]ny violation of the rules could result in immediate disqualification” and “[c]ontest officials have the ultimate say as to all rule violations and their decision is final.”
On June 6, 1992, the Geo-sphere contest began with plaintiff and three other contestants entering the vehicle. Within eighteen hours, one contestant dropped out of the contest; a second quit after a week and a half. Plaintiff and contestant Jeff Whaley continued to occupy the Geo automobile. It is undisputed that on June 19, 1992, plaintiff got out of the vehicle during a scheduled break and began smoking a cigarette. At the conclusion of the break, plaintiff reentered the automobile with her lit cigarette in hand. Plaintiff proceeded to close the door of the Geo automobile, thereby subjecting the atmosphere inside the “Geo-sphere” to her cigarette smoke. Plaintiff extinguished her cigarette while inside the vehicle.
Defendants thereafter disqualified plaintiff from the contest for violating the rule forbidding smoking in the vehicle. Defendants awarded the Geo automobile to the remaining contestant, Jeff Whaley.
Plaintiff filed suit against defendants in the Kalamazoo Circuit Court, claiming that defendants breached the contest contract by disqualifying her. Plaintiff argued that she was not smoking inside the vehicle because she did not inhale and exhale smoke from her lit cigarette. We find plaintiffs claims in the lower court and on appeal to be frivolous and vexatious.
n
On appeal, plaintiff contends that the term “smoking” is ambiguous and should have been determined by a jury. Further, plaintiff asserts that the trial court erred in relying on the definition of “smoking” contained in the Michigan Clean Indoor Air Act, MCL 333.12601(l)(n); MSA 14.15(12601)(l)(n), which defines smoking as the carrying by a person of a lighted cigar, cigarette, pipe, or other lighted smoking device. We disagree with plaintiffs arguments. Where contractual language is clear, its construction is a question of law for the court to decide. SSC Associates Ltd Partnership v General Retirement System of Detroit, 210 Mich App 449, 452; 534 NW2d 160 (1995). Contractual language is construed according to its plain and ordinary meaning, and technical or constrained constructions are to be avoided. Pakideh v Franklin Commercial Mortgage Group, Inc, 213 Mich App 636, 640; 540 NW2d 777 (1995).
In the present case, the contest rule provided “[n]o smoking will be allowed in the vehicle.” This language is clear, and the trial court properly determined that the rule’s construction was a question of law. SSC Associates, supra at 452. Contrary to plaintiff’s contention, the trial court did not rule that the Michigan Clean Indoor Air Act governed the parties’ contract terms. Rather, the trial court referred to the statutory definition and a dictionary definition to support its finding that plaintiff’s conduct constituted smoking. In granting defendants’ motion for summary disposition, the Honorable William G. Schma stated:
I think there’s no question, not even remotely possible, that a person who’s carrying a lighted cigarette in their hand is smoking, under any common sense understanding of that word, under any legal definition of that word, under any conceivable explanation of what it means.
Public Act 198 of 1987, which is 14.15(12601), which is in the public health section of our statutes, says that smoking means, quote, “the carrying by a person of a lighted cigar, cigarette, pipe, or other lighted smoking device.” In Section 14.15(12601)(n) the statute is amended to say, “Smoking [or smoke] means the carrying by a person of a lighted cigar, cigarette, pipe, or other lighted smoking device.”
According to Webster’s Third New International Dictionary, “smoke” means a number of things, but one of the primary definitions is to emit smoke. And the phrase or the suffix “ing,” according to that same dictionary, means something is connected with an action or a process.
So under any conceivable view of the facts, the defendant was — the plaintiff, excuse me, was smoking in the vehicle. She was disqualified from obtaining the benefits of any contract of which she may have been a party.
We agree and are satisfied that the circuit court correctly determined that, as a matter of law, plaintiff’s conduct fits the plain and ordinary meaning of “smoking.” There was no genuine issue of material fact regarding whether plaintiff was smoking and, there fore, the trial court properly granted summary disposition in favor of defendants. MCR 2.116(C)(10).
in
Next, plaintiff contends that the trial court erred in dismissing her case without addressing her allegations that the contest officials capriciously and arbitrarily enforced the rules by not disqualifying contestant Whaley for rule violations allegedly committed before the “smoking” incident. Again, we disagree. The trial court did not address these allegations because plaintiff did not provide the requisite factual support for these alleged rule violations in her response to defendants’ motion for summary disposition.
A motion for summary disposition premised on MCR 2.116(C)(10) tests the factual support for a claim. The party opposing a motion brought under C(10) may not rest on the mere allegations or denials in her pleadings but must by affidavits, depositions, admissions, or other documentary evidence set forth specific facts showing that there is a genuine issue of material fact for trial. MCR 2.116(G)(4); Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314 (1996); Skinner v Square D Co, 445 Mich 153, 160; 516 NW2d 475 (1994). In the present case, plaintiff failed to meet her burden of producing documentary evidence of the other contestant’s violations but instead relied on her general and conclusory allegations of capricious and arbitrary rule enforcement. Accordingly, the lower court properly granted summary disposition without addressing plaintiff’s unsupported allegations.
IV
Finally, plaintiff contends that the trial court erred in finding that her suit was frivolous. A trial court’s finding that a claim is frivolous or vexatious is reviewed for clear error. Davenport v Grosse Pointe Farms Bd of Zoning Appeals, 210 Mich App 400, 408; 534 NW2d 143 (1995). That factual determination largely depends on the particular facts and circumstances of the claim involved. In re Stafford, 200 Mich App 41, 42-43; 503 NW2d 678 (1993). In awarding sanctions, Judge Schma held as follows:
I think in this case sanctions are appropriate. By every conceivable view of what happened in this case, this party was smoking a cigarette when they walked — or sat in that vehicle with a lighted device. There can be no other possible interpretation of that. There’s no law that argues that there’s any extension of that. There’s no reasonable definition of any kind that could possibly argue that there should be an extension of that. Honest belief as to the merit of a case has nothing to do with it under these circumstances.
And what happens, frankly, is that when cases so clearly devoid of merit are filed and permitted without sanction, they’re encouraged, and already crowded dockets become more crowded and already frustrated parties with genuine claims have more trouble getting to the courthouse for resolution when they need it. And that just isn’t fair, and it’s not reasonable.
We hold that the trial court did not clearly err in finding plaintiff’s complaint to be frivolous. For the reasons stated by the trial judge, we agree that plaintiff’s claims were utterly without merit. Further, we conclude that the present appeal is vexatious because it was taken without any reasonable basis for belief that there was a meritorious issue to be determined on appeal. MCR 7.216(C)(1)(a). See also Cvengros v Farm Bureau Ins, 216 Mich App 261; 548 NW2d 698 (1996); Wilson v Knight-Ridder Newspapers, Inc, 190 Mich App 277, 280; 475 NW2d 388 (1991). Pursuant to MCR 7.216(C)(2), we remand to the circuit court for a determination of defendants’ actual damages and expenses, including reasonable attorney fees incurred in defending against plaintiff’s appeal. Regarding defendants’ cross appeal, we affirm because we are not convinced that the lower court abused its discretion in its award of sanctions.
Affirmed. Remanded to the trial court for an award of actual damages and expenses incurred on appeal. We do not retain jurisdiction.
As we noted in Bellows v Delaware McDonald’s Corp, 206 Mich App 555, 561, n 1; 522 NW2d 707 (1994), a split of authority exists regarding whether a contest rule that makes the decision of the promoter or sponsor final precludes judicial review. In view of plaintiffs meritless challenge, we assume but do not decide that defendants’ decision is subject to judicial review. | [
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Per Curiam.
Following a jury trial, defendant was convicted in the Muskegon Circuit Court of three counts of first-degree criminal sexual conduct, MCL 750.520b(l)(f); MSA 28.788(2)(l)(f), and was sentenced to concurrent terms of twenty to seventy-five years’ imprisonment. Defendant appeals as of right, and we affirm.
The charges against defendant stem from an incident alleged to have occurred between 4:00 A.M. and 10:00 A.M. on January 1, 1991. According to the victim, she was abducted by defendant from the parking lot of a bar as she was walking to a friend’s vehicle. She testified that over the next six hours she was repeatedly forced to engage in acts of sexual intercourse and fellatio in defendant’s vehicle and in defendant’s house. She reported sustaining numerous bruises from being pushed, pulled, manhandled, thrown, and slapped by defendant, but other than one bruise on her left arm incurred during the abduction, she was unable to recall when during the course of the incident the bruises were inflicted. Also, the victim offered testimony concerning the mental and emotional consequences she suffered, both during and after the incident. In response, defendant admitted engaging in sexual acts with the victim, but alleged them to have been consensual. Defendant’s first claim on appeal is that there was insufficient evidence to support his convictions because the prosecution failed to establish the element of personal injury. MCL 750.520b(l); MSA 28.788(2)(1) states in pertinent part:
A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exist:
(f) The actor causes personal injury to the victim and force or coercion is used to accomplish the sexual penetration.
MCL 750.520a(j); MSA 28.788(1)0) defines personal injury as:
“Personal injury” means bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease or loss or impairment of a sexual or reproductive organ.
The instant case was submitted to the jury under both the mental anguish and the bodily injury definitions of personal injury, and defendant does not challenge the sufficiency of the evidence of mental anguish. Rather, defendant contends that the evidence of bodily injury was insufficient because the victim was unable to testify that her bodily injuries occurred contemporaneously with any of the numerous acts of sexual penetration. It is defendant’s assertion that mental anguish and bodily injury are alternative theories of guilt and that if one is insufficient, his convictions must be reversed because of the inability to determine on which theory the conviction rests. See People v Parks, 57 Mich App 738, 745; 226 NW2d 710 (1975). We disagree.
Somewhat surprisingly, we found no cases that have directly addressed the issue whether the various definitions of personal injury constitute alternative theories of guilt for which a jury must make independent findings of fact. While several reported cases have decided claims based on the sufficiency of the evidence relative to both bodily injury and mental anguish, the conclusions in those cases that the evidence was sufficient relative to both bodily injury and mental anguish avoided resolution of the instant issue.
We have found only two cases that deal with this issue in any fashion, and those cases address it only indirectly. In People v Petrella, 424 Mich 221; 380 NW2d 11 (1985), our Supreme Court noted in a foot note that it was unnecessary for it to address the sufficiency of the evidence supporting a claim of bodily injuiy given its conclusion that there was sufficient evidence of mental anguish. Id. at 272, n 23. Similarly, in a separate opinion in People v Burton, 433 Mich 268, 304-305; 445 NW2d 133 (1989), then Chief Justice Riley obliquely addressed the issue in a response to a dissenting opinion by Justice Boyle. Chief Justice Riley stated, without analysis, that her conclusion that the prosecution had presented sufficient evidence of bodily injury for purposes of proving personal injury made it unnecessary to decide an issue relating to mental anguish.
We believe that the obvious conclusion to be drawn from these cases is that bodily injury and mental anguish are not alternative theories upon which a jury is required to make independent findings, as proposed by defendant. When a statute lists alternative means of committing an offense which in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theory. People v Johnson, 187 Mich App 621, 629-630; 468 NW2d 307 (1991). The same reasoning applies here. Because bodily injury, mental anguish, and the other conditions listed in MCL 750.520a(j); MSA 28.788(l)(j) are merely different ways of defining the single element of personal injury, we believe they should not be construed to represent alternative theories upon which jury unanimity is required. Accordingly, if the evidence of any one of the listed definitions is sufficient, then the element of personal injury has been proven.
In the present case, defendant does not challenge the sufficiency of the evidence regarding mental anguish. Therefore, on that basis alone, we find that the evidence of personal injury was sufficient, and we need not consider defendant’s challenge to the evidence pertaining to bodily injury.
Next, defendant claims that the trial court improperly allowed the prosecution to introduce evidence that more than a month before the instant offense he had become enraged with his ex-girlfriend and had punched through a window in an effort to assault her. Defendant argues that this evidence was inadmissible to prove character and conformity therewith. MRE 404(b). At trial, defendant objected to the evidence, not on this basis, but on the ground of relevancy. An objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground. People v Stimage, 202 Mich App 28, 30; 507 NW2d 778 (1993). Regardless, when read in context, the testimony was properly admitted to bolster the prosecution’s theory that the events at issue were not consensual and was not admitted to show defendant’s criminal propensity or to establish that he acted in conformity therewith. See People v VanderVliet, 444 Mich 52, 65; 508 NW2d 114 (1993).
Finally, defendant claims that his convictions should be reversed because an emergency room nurse that attended the victim after the incident testified that the victim was not “faking” and that she personally believed that the victim was raped. Defendant failed to object to the allegedly improper testimony. The failure to object to the admission of evidence waives appellate review in the absence of manifest injustice. People v Turner, 213 Mich App 558, 583; 540 NW2d 728 (1995). Because we conclude that the evi dence overwhelmingly supported defendant’s convictions, we find no manifest injustice here.
Affirmed.
See People v Himmelein, 177 Mich App 365; 442 NW2d 667 (1989); People v Swinford, 150 Mich App 507; 389 NW2d 462 (1986); People v Jenkins, 121 Mich App 195; 328 NW2d 403 (1982); People v Guinn, 111 Mich App 223; 314 NW2d 562 (1981). | [
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Cavanagh, J.
Defendant T & L Operations, Inc., appeals as of right a jury verdict for plaintiffs in this dramshop action. We reverse.
Plaintiff Daniel McCaw* is a police officer with the Waterford Township Police Department. During the evening of August 31, 1991, plaintiff was dispatched to investigate a reported stabbing at a house on Hira Street. When plaintiff arrived at the residence, he saw a man lying on the front lawn and realized that the man had been stabbed. A man, later identified as Michael Williams, came out on the porch. Because of Williams’ behavior, slurred speech, and bloodshot, glassy eyes, plaintiff realized that he was under the influence of alcohol. Williams told plaintiff that he had called the police. When plaintiff attempted to question Williams about the stabbing, Williams became agitated and began to yell at plaintiff. Williams told plaintiff to leave, but plaintiff refused. Williams then informed plaintiff that he was going to leave. Plaintiff stepped in front of Williams to prevent him from departing. Williams began to attack plaintiff. During the ensuing scuffle, Williams struck plaintiff in the face. As a result of this incident, plaintiff suffers from blurred peripheral vision, tinnitus, and an injury to his jaw.
At trial, Williams testified that on August 31, 1991, he was nineteen years old. On that day, he began drinking beer around 3:00 P.M. Around 6:00 P.M., Williams and two friends, Jeff Morgan and Tim Smith, went to the Dixie Bar. At the bar, the three men shared several pitchers of beer and consumed three to five B-52 shots. Williams testified that he was feeling drunk while in the bar. After the men left the bar, Morgan and Smith began to argue. When the men arrived at Williams’ house, Williams went inside and fell asleep or passed out. After Williams awoke, Morgan told him that he had stabbed Smith. Williams then called 911. Williams stated that he was not sober during the altercation with plaintiff.
On February 8, 1993, plaintiff filed suit against Williams and the owner and operator of the Dixie Bar, T & L Operations, Inc. (hereafter defendant), to recover for the injuries suffered in the incident. The claim against Williams was based on negligence and alleged that Williams acted in a “wilful, wanton and reckless manner.” The claim against defendant was based on multiple violations of the dramshop act, MCL 436.22; MSA 18.993. Specifically, plaintiff alleged that defendant served alcohol to Williams when the latter was both underage and visibly intoxicated.
On February 23, 1994, defendant filed a motion for summaiy disposition alleging that plaintiff’s claim was barred by the fireman’s rule. The trial court denied the motion, reasoning that because a violation of the dramshop act is a statutory violation, defendant could not rely on the common-law defense of the fireman’s rule.
On July 21, 1994, a default was entered against Williams. Williams participated in the subsequent trial only as a witness and is not involved in this appeal.
Soon after, the case was tried before a jury. After the close of plaintiffs proofs, defendant moved for a directed verdict on the basis that the fireman’s rule barred plaintiff’s claim and because plaintiff failed to show that the dramshop violation was a proximate cause of plaintiff’s injuries. The trial court denied the motion as it related to the fireman’s rule and allowed plaintiff to recall Williams to establish the element of proximate cause. On August 1, 1994, the jury returned a verdict for plaintiff. Plaintiff was awarded $121,689.89, and plaintiff’s wife was awarded $25,000 for her loss of consortium claim. The trial court later granted plaintiff’s motion for an award of costs and attorney fees and denied defendant’s motion for judgment notwithstanding the verdict.
On appeal, defendant argues that the trial court erred in ruling that the fireman’s rule does not apply to cases involving the dramshop act. This is a question of law that we review de novo. Rapistan Corp v Michaels, 203 Mich App 301, 306; 511 NW2d 918 (1994).
The fireman’s rule was adopted by the Supreme Court in Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347; 415 NW2d 178 (1987). The fireman’s rule provides that a fire fighter or police officer may not recover damages from a private party for negligence in the creation of the reason for the safety officer’s presence. Id. at 358. In other words, fire fighters and police officers may not recover damages for injuries arising out of risks inherent in their respective professions. Id. at 351. The Supreme Court adopted the rule on the basis of public policy considerations. The Court explained:
The policy arguments for adopting a fireman’s rule stem from the nature of the service provided by fire fighters and police officers, as well as the relationship between these safety officers and the public they are employed to protect.
It is beyond peradventure that the maintenance of organized society requires the presence and protection of fire fighters and police officers. The fact is that situations requiring their presence are as inevitable as anything in life can be. It is apparent that these officers are employed for the benefit of society in general, and for people involved in circumstances requiring their presence in particular. [Id. at 365-366.]
The Supreme Court noted that worker’s compensation benefits are available to public safety officers for injuries suffered during the course of their employment. Thus, the cost of injuries to safety officers falls upon the public as a whole rather than on individuals. Id. at 369.
The Supreme Court again addressed the fireman’s rule in Woods v City of Warren, 439 Mich 186; 482 NW2d 696 (1992). In Woods, the plaintiff, a police officer, brought suit against the City of Warren for injuries sustained during a high-speed chase. The plaintiff claimed that the city had failed to maintain its roads in a safe condition as required by MCL 691.1402; MSA 3.996(102). The Supreme Court held that the fireman’s rule applied because the plaintiff’s injury flowed directly from the performance of his police duties. The Court explained that the analytical focus must be on whether the injury stems directly from an officer’s police functions. If the circumstances indicate that it does, the fireman’s rule applies. If the circumstances indicate otherwise, it likely does not. Woods, supra at 192-193.
In the present case, the trial court held that the fireman’s rule, a common-law defense, was inapplicable in a statutory cause of action such as a dramshop action. The trial court based its ruling on this Court’s decision in Barrett v Campbell, 131 Mich App 552; 345 NW2d 614 (1983). In Barrett, this Court held that the doctrine of comparative negligence does not apply to a statutory dramshop action when the noninnocent-party doctrine is implicated. Id. at 557.
We conclude that the trial court erred. This Court has also held that the defense of comparative negligence does apply in a dramshop action when the plaintiff’s fault does not involve participation in bringing about the intoxication of the person who injured him. See Lyman v Bavar Co, Inc, 136 Mich App 407, 410; 356 NW2d 28 (1984). Thus, the pivotal question is not whether the defense is based on the common law, but, rather, whether the purpose behind the dram-shop act is directly implicated by the defense.
Moreover, the fireman’s rule applies to other statutory causes of action. As previously discussed, the Supreme Court held in Woods, supra, that the fireman’s rule could be applied in a case involving the statutorily created highway exception to governmental immunity.
This Court recently addressed the fireman’s rule in Mariin v Fleur, Inc, 208 Mich App 631; 528 NW2d 218 (1995), lv gtd 450 Mich 961 (1996). In Mariin, an off-duty police officer was socializing in a bar. Another patron in the bar attacked the officer, who suffered injuries as a result. This Court held that the fireman’s rule did not bar the police officer’s dramshop action against the bar because the plaintiff’s presence in the bar was not related to his duties as a police officer. The Mariin panel stated in dicta that it might be appropriate to apply the fireman’s rule if the police officer had been dispatched to the bar in question while on duty. Id. at 636-637.
While the Mariin panel’s comments are not binding in this case, we nevertheless agree that the fireman’s rule bars a dramshop action by a police officer when the officer’s damages are sustained in the course of his duties. Police officers are not infrequently required to deal with drunk and disorderly persons. An injury suffered by a police officer in such a circumstance flows directly from the performance of his police duties. See Woods, supra at 192-193. Accordingly, the policy considerations behind the Supreme Court’s adoption of the fireman’s rule are directly implicated. See Kreski, supra at 365-366. In addition, as the Minnesota Supreme Court observed in a similar case:
If police officers are allowed to recover under the statute, bar owners might be inhibited from summoning the police for aid in disturbances and, instead, would resort to self-help measures, creating additional risk to the public. It would not be in the public interest to discourage bar own ers from calling upon those who are trained and employed to deal with these situations. [Hannah v Jensen, 298 NW2d 52, 55 (Minn, 1980). ]
Plaintiff points out that the dramshop act provides a right of recovery to a particular class of persons, namely, individuals who suffer injury after alcohol is unlawfully furnished to a minor or to a visibly intoxicated person. Plaintiff argues that because the Legislature amended the dramshop act two years after the Supreme Court’s decision in Kreski without excluding public safety officers from the class of persons entitled to recovery under the act, the fireman’s rule should not be applied in dramshop actions. However, the Legislature is presumed to act with knowledge of appellate court statutory interpretations. Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505-506; 475 NW2d 704 (1991). Silence by the Legislature following judicial construction of a statute suggests consent to that construction. See Craig v Larson, 432 Mich 346, 353; 439 NW2d 899 (1989). Thus, contrary to plaintiff’s assertion, the fact that the Legislature did not amend the dramshop act to include police officers and fire fighters after the Supreme Court adopted the fireman’s rule indicates that the Legislature did not object to the application of the fireman’s rule to dramshop actions.
Because we conclude that plaintiff’s claim is barred by the fireman’s rule, we reverse the jury verdict for plaintiff. We also reverse the order awarding plaintiff costs and attorney fees. Our resolution of the previ ous issue renders it unnecessary for us to address defendant’s other issues.
Reversed.
Toni McCaw, Daniel McCaw’s wife, joins him as plaintiff. Because her loss of consortium claim is derivative and dependent on Mr. McCaw’s claim, and to avoid confusion, we will refer only to plaintiff Daniel McCaw.
A B-52 contains Grand Marnier, Kahlúa, and Baileys Original Irish Cream.
Under the noninnocent-party doctrine, one who actively brings about another’s intoxication may not recover for injuries sustained therefrom. Craig v Larson, 432 Mich 346, 354; 439 NW2d 899 (1989). Defendant argues that the trial court’s reasoning was flawed because in Barrett, supra, this Court upheld the noninnocent-party doctrine, another common-law bar to recovery under the dramshop act. However, the noninnocent-party doctrine is not a creature of the common law, nor is it based on common-law negligence principles. Rather, the doctrine is a defense to a dramshop action gleaned from the intent of the Legislature in adopting and amending the dramshop act. Arbelius v Poletti, 188 Mich App 14, 22-23; 469 NW2d 436 (1991).
The holding in Hannah was subsequently superseded by the Minnesota Legislature. See Lang v Glusica, 393 NW2d 181, 183, n 1 (Minn, 1986).
See MCL 436.22(4); MSA 18.993(4). | [
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Griffin, J.
This employment wage discrimination suit initially was brought in the circuit court and eventually was submitted to binding arbitration by agreement of the parties. The dispositive issue on appeal is whether the circuit court erred in allowing the arbitration panel to reconsider the merits of its original decision. We reverse and hold that the lower court erred in permitting the reconsideration of a final arbitration award.
i
After nearly two years of discovery, the parties stipulated the submission of plaintiffs claims to a panel of arbitrators. Among other exacting procedural requirements, the detailed “Binding Arbitration Procedure” provided:
The parties understand and acknowledge that a central purpose of resolving through arbitration the issues and disputes which would otherwise be resolved through litigation is to reduce costs and delay and to obtain a final decision. To that end, the parties agree that the decision of the arbitrators shall be final and non-appealable.
The agreement of the parties did not address the subject of rehearing or reconsideration.
In October 1993, the parties submitted lengthy arbitration statements, numerous exhibits, and supplemental briefs to the arbitration panel. Following the arbitration hearing in which the time limits and procedures set forth in the agreement were strictly enforced, defendant’s attorney sent the arbitrators a letter addressing the affirmative defense that a legitimate business reason existed for the disparity between plaintiff’s salary and the salary of the male employee to whom plaintiff compared herself. Plaintiff’s attorney responded by sending the panel a letter, contending that the defense attorney’s letter violated the arbitration agreement, which did not provide for posthearing argument.
On November 5, 1993, the arbitration panel announced a unanimous decision for plaintiff. On November 12, 1993, defendant submitted to the arbitration panel a twelve-page motion for reconsideration, complete with exhibits. Plaintiff contested the motion on the ground that reconsideration would violate the finality clause of the parties’ arbitration agreement. On November 24, 1993, the arbitration panel questioned its authority to reconsider the case and notified the parties that it would reconsider defendant’s affirmative defense only if reconsideration was stipulated by the parties or ordered by the circuit court.
On December 3, 1993, after plaintiff refused to stipulate reconsideration, defendant moved in the circuit court (which had retained jurisdiction) to order the arbitration panel to reconsider its decision. Plaintiff objected on the ground that the arbitration agreement gave the arbitrators no authority to reconsider their final decision. After a hearing, the circuit court ruled that the arbitration panel could reconsider its original decision if it so chose. However, the circuit court stated that the panel could only “police the record to determine they didn’t make a mistake based on an error of law, or an attribution of fact not in evidence” and limited the grounds for reconsideration to those enumerated in MCR 2.119(F)(3).
The arbitration panel decided not only to reconsider its original decision, but also requested additional briefing and provided each party an additional half hour of oral argument with respect to the issue whether defendant had a legitimate business reason for paying plaintiff less than a similarly situated male employee. On January 18, 1994, in a two-to-one decision, the panel reversed its original award and announced a decision for defendant.
On March 24, 1994, defendant filed a motion in the circuit court to dismiss plaintiffs lawsuit on the ground that the arbitration panel had reached a final decision. On March 29, 1994, plaintiff moved that the lower court either enter judgment in accordance with the arbitrators’ original decision or set aside the binding arbitration procedure. After two hearings, the circuit court rejected plaintiff’s motion to enter judgment in accordance with the panel’s original decision and granted defendant’s motion to dismiss plaintiff’s cause of action.
n
On appeal, plaintiff argues that because the binding arbitration agreement provided that the arbitrators’ decision on the merits of plaintiff’s claims would be final and made no provision for reconsideration, the lower court erred in permitting the arbitration panel to reconsider its original decision. We agree.
Initially, we reject defendant’s contention that plaintiff’s stipulation to the arbitration agreement precludes her from raising this issue on appeal. Although the arbitration agreement provides that the “decision of the arbitrators shall be final and non-appealable,” plaintiff is not appealing the “decision” of the arbitration panel. Instead, plaintiff contests the circuit court’s order allowing the arbitration panel to reconsider its original decision. See, generally, Bonner v Chicago Title Ins Co, 194 Mich App 462; 487 NW2d 807 (1992). Nothing in the arbitration agreement precludes appeals of actions taken outside the arbitrators’ authority.
An arbitration agreement is a contract by which the parties forgo their rights to proceed in civil court in lieu of submitting their dispute to a panel of arbitrators. Kaleva-Norman-Dickson School Dist No 6 v Kaleva-Norman-Dickson School Teachers’ Ass’n, 393 Mich 583, 587; 227 NW2d 500 (1975); Horn v Cooke, 118 Mich App 740, 744; 325 NW2d 558 (1982). The parties’ agreement to submit a matter to arbitration constitutes the law of the case, and the arbitrators are bound to follow the guidelines set forth in the four comers of the document. Whitaker v Seth E Giem & Associates, Inc, 85 Mich App 511, 513; 271 NW2d 296 (1978). The scope of arbitration is determined by the contract, Gogebic Medical Care Facility v AFSCME Local 992, AFL-CIO, 209 Mich App 693, 696-697; 531 NW2d 728 (1995); American Fidelity Fire Ins Co v Barry, 80 Mich App 670, 673; 264 NW2d 92 (1978); E E Tripp Excavating Contractor, Inc v Jackson Co, 60 Mich App 221, 251-252; 230 NW2d 556 (1975), and “arbitrators who derive their authority from the contract calling for their services are bound to act within the terms of the submission.” DAIIE v Gavin, 416 Mich 407, 432; 331 NW2d 418 (1982); see also Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 496; 475 NW2d 704 (1991); Stowe v Mutual Home Builders Corp, 252 Mich 492, 497; 233 NW 391 (1930). Independent of the contract, an arbitration panel has no jurisdiction over a particular dispute. Michigan Ass’n of Police v Pontiac, 177 Mich App 752, 758; 442 NW2d 773 (1989).
Because the parties’ agreement did not provide that judgment shall be entered in accordance with the arbitrators’ decision, this case involves common-law arbitration, and the procedures regarding “statutory arbitration” are not applicable. See MCL 600.5001 et seq.; MSA 27A.5001 et seq.; Gordon Sel-Way, supra at 495; DAIIE, supra at 417. Hence, the arbitrators’ authority is governed solely by the terms of the arbitration agreement.
in
In the absence of an express contractual provision regarding reconsideration, we begin by looking to the common law for guidance. In this regard, we agree with and adopt the following principles articulated by the Third Circuit Court of Appeals:
It is an equally fundamental common law principle that once an arbitrator has made and published a final award his authority is exhausted and he is functus officio and can do nothing more in regard to the subject matter of the arbitration. The policy which lies behind this is an unwillingness to permit one who is not a judicial officer and who acts informally and sporadically, to re-examine a final decision which he has already rendered, because of the potential evil of outside communication and unilateral influence which might affect a new conclusion. The continuity of judicial office and the tradition which surrounds judicial conduct is lacking in the isolated activity of an arbitrator, although even here the vast increase in the arbitration of labor disputes has created the office of the specialized professional arbitrator. This policy of finality, founded on practical considerations, is nourished by the primitive view of the solemnity of all judgments. . . .
... Mr. Justice Fell said: “The rule undoubtedly is that, when an arbitrator has made and delivered his award, the special power conferred upon him ends. But an award must be final, complete, and coextensive with the terms of the submission.” [La Vale Plaza, Inc v R S Noonan, Inc, 378 F2d 569, 572-573 (CA 3, 1967).]
In the present case, the parties created a detailed and specific “Binding Arbitration Procedure,” giving a panel of arbitrators the authority to make one decision that “shall be final and non-appealable.” In drafting the contract delegating authority to the arbitration panel, the parties jealously guarded their control over the arbitration proceeding by carefully defining the limited authority of the arbitrators over the one, final hearing contemplated by the agreement. The contract specified the manner by which the panel could use evidence and outlined the means that damages would be calculated. It also established exacting procedural requirements, such as the order of the case and the time limits for the parties’ presentation of evidence. In light of specificity by which the parties ceded authority to the arbitrators, we consider the absence of a grant of authority for reconsideration significant of an intention not to delegate such authority. Inferring a right of reconsideration would impermissibly alter the scope of the parties’ carefully crafted agreement. In our view, such a construction would bestow on the arbitrators more power than the parties agreed to delegate and counter the parties’ stated goals of “reducing] costs and delay and to obtain a final decision.”
We conclude that in this case the arbitration was completed when the original award was rendered. Further, none of the recognized exceptions to the rule of finality are at issue. See, generally, anno: Power of court to resubmit matter to arbitrators for correction or clarification, because of ambiguity or error in, or omission from, arbitration award, 37 ALR3d 200; La Vale Plaza, supra; Eisenstein v Rednick, 8 AD2d 794; 187 NYS2d 409 (1959); Held v Comfort Bus Line, Inc, 136 NJL 640; 57 A2d 20 (1948). Because the special powers of the arbitrators terminated once they rendered their award, the arbitrators exceeded their authority in reconsidering the merits of their original decision. Accordingly, we reverse the order of the circuit court, vacate the second arbitration decision, and reinstate the original arbitration award.
■ Our resolution of this issue makes it unnecessary for us to address the remaining issues on appeal.
Reversed.
The arbitration panel’s letter states in part:
Because the Binding Arbitration Procedure agreed upon by the parties is silent on the subject of a Motion for Reconsideration; because the Binding Arbitration Procedure indicates that the Panel “shall decide the case on its merits”, and because (with the exception of evidentiary matters) the Binding Arbitration Procedure does not appear to grant the Panel the power to decide procedural issues, the Panel is uncertain as to whether it has the power to consider or decide Defendant’s Motion for Reconsideration.
Although no record of the arbitration was made, it strongly appears that on reconsideration the arbitrators exceeded the scope of the remand order. | [
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Bushnell, J.
Plaintiff’s intestate, Garfield Harvey, was taken to the Highland Park general hospital shortly after midnight on Sunday, March 14, 1937, where it was found he had a gunshot wound on the right side of his back just above the hip. First aid was administered and the late Dr. Bern-hard Friedlaender, one of the staff surgeons at the hospital, attended Harvey about 8 a.m. It fairly appears from the record that Doctor Friedlaender thought he felt the bullet through the skin on the right side of Harvey’s abdomen.
Three X-rays were taken. Defendant, Dr. Edward G-. Minor, chief of the X-ray department of the hospital, testified that he never saw the deceased, nor did he take the X-ray pictures himself. He saw the wet X-ray plates sometime during Sunday morning, March 14th, just after they came out of the dark room. It was his opinion at the time that these plates showed the presence of a bullet in the soft structure just below the skin surface and to the left of the median line, in the anterior portion of the left side of the abdomen. The X-ray plates were received in evidence and show the letter “B” thereon, which had been scratched over the letter “L”. Doctor Minor was asked:
“Q. .What was your purpose in changing that right to the left?
“A. Due to the fact that Dr. Friedlaender disagreed on my diagnosis, and his clinical findings were such that I took his word that there might be some confusion in the markings.”
When asked whether Doctor Friedlaender made a special request that the markings be changed, Doctor Minor replied:
“I do not know whether he said just exactly that they be changed but he insisted that the bullet was on the right side. After all, I am just the X-ray man and he is the physician. He has that patient. That conversation took place on the morning when the man was in the hospital.”
Doctor Minor was asked:
UQ. Did you make a careful examination of this plate prior to your conversation with Dr. Friedlaender?
“A. When it was brought from the dark room while wet I looked at it and said, ‘There is the bullet in the lower left quadrant.’ He was present. That is all there was. It did not last over two minutes. I did not look at that plate again that day. The next time I took a look at that plate was the next day. I knew there was a bullet there, and it was reported to the stenographer. That report was made on Monday.”
The report just referred to reads:
“Films were made of the abdomen. These show presence of a bullet in the soft structures right at the median line and approximately just below the skin surface. It occupies a position in the anterior portion of the lower right quadrant. ’ ’
There was also introduced in evidence a subsequent report signed by Doctor Minor, dated June 22, 1937, which reads:
“Further study of the films of March 14, 1937 was made of the abdomen in the two planes. These show presence of a bullet in the soft structures just below the skin surface and to the left of the median line. It apparently occupies a position in the anterior portion of the left side of the abdomen just below the skin surface.”
Harvey died at 6:35 p.m. on Sunday, March 14th, about 18 hours after the shooting. Dr. Paul A Klebba, Wayne county medical examiner and physician to the coroner for the last 17 years, performed the autopsy on the body of the deceased on March 15th, and made the following notes:
‘ ‘ That a bullet entered the body at the right back— right back, and that the bullet took a course from the back forward, from the right to the left, and that the bullet proper was found in the abdominal cavity in the upper left quadrant, and I made a note to refer to my chart on location and description of wounds, which show the approximate entrance of the bullet and the approximate point on the body where the bullet was found. And looking at the chart, it says that the approximate entrance was in the right back to the right of the lumbar spine, which is the small of the back, and in a position at the point of entrance about four inches to the right of the spinal column in the small of the back just a little above the belt line. The bullet went from the back forward and from the right side of the body to the left side of the body, and was found in the left abdominal cavity. That would be below the ribs on the left side, to the left of the medial line, forward medial line, below the left nipple about eight inches.”
He testified:
“Taking the entrance, the point of entrance and the point of finding the bullet, it would have to make several perforations because you do not have one coil on top of the other, you have your coils of the bowel one on top of the other and in front and behind. I do not know how many perforations there were because I did not dissect the entire bowel to determine the number of perforations. I would consider from 6 to 20 or 30 perforations. It might go through both sides of the same section of the bowel. If he was a normal man and the bullet took the course I found from the point of entrance to the point where I found it, it would perforate only the intestines. ’ ’
Doctor Klebba said he found blood in the abdomen sufficient to cause death, and that, in his opinion, the cause of death was an internal hemorrhage following a bullet wound through the abdomen. In answer to the question propounded by plaintiff’s counsel as to the probability of checking and ultimately stopping hemorrhages by suturing the perforations in the intestines, he said such operation “would have a tendency to preserve life.”
On cross-examination, he gave as his opinion that, under the usual and ordinary practice of a surgeon of average skill, a man who is in a state of shock should not be operated on until that condition has subsided.
Plaintiff produced as an expert, Dr. Maxim P. Melnik, who testified that:
“The usual and standard practice in this community or similar communities of ordinary surgeons and physicians is to have immediate surgical intervention, that is, operation, in order to check any bleeding or. hemorrhage caused by the wound. * * * as I said, the operation is the only thing that stops the hemorrhage, and by stopping the hemorrhage one has a chance to save one’s life. * * * The probability is that his life could have been saved by immediate operation when the patient was in fairly good condition, was fairly good.”
At the time Harvey was shot, Doctor Melnik was a student in the medical department of Wayne university. He graduated in 1938, served one year as an intern at Providence Hospital, and has practiced ever since in Detroit. It is claimed the court erred in admitting the testimony of Doctor Melnik because he was only a medical student in 1937 when Harvey was shot. It is admitted that the local practice of treatment of gunshot wounds has not changed since 1937.
In Perri v. Tassie, 293 Mich. 464, the court held that opinion evidence may not be given by one who has no knowledge of experience of the medical standards in the community. See authorities therein cited.
However, the testimony of Doctor Melnik in the instant case was admissible under the authority of People v. Thacker, 108 Mich. 652, wherein the court quoted the views expressed by Mr. Justice Campbell in People v. Millard, 53 Mich. 63. In the Thacker Case, Doctor Dean gave opinion testimony on arsenic poisoning although he had never treated a person who had been poisoned or had ever seen one treated by another physician. He had, however, studied medicine for four years and had spent one year in the hospital under the instructions of the hospital physician. The court held that, since his study had resulted in the formation of a definite opinion, he might express it and that the weight to be given his testimony was a matter for the jury.
The relation of physician and patient is not seriously disputed as to Doctor Friedlaender, but Doctor Minor claims the court erred in instructing the jury that such a relation existed between himself and* Harvey from the time he examined the X-ray plates until Harvey’s death. Doctor Minor contends that this relation did not exist except for a limited time and only for the purpose of taking and examining the X-rays. Since this is sufficient time to sustain plaintiff’s theory whether or not the relation existed from then on is immaterial and nonprejudicial.
Was it proper to admit the hospital records ?
Appellants contend for a rather strained construction of the statute (3 Comp. Laws 1929, § 14216 [Stat. Ann. § 27.911]), which deals with the privilege between physician and patient. This court has fol lowed the rule that the statutory exclusion is for the patient’s benefit and not the physician’s. Storrs v. Scougale, 48 Mich. 387.
In the face of Gile v. Hudnutt, 279 Mich. 358, counsel cannot successfully argue that the hospital • records are not admissible under the provisions of 3 Comp. Laws 1929, § 14207, as amended by Act No. 15, Pub. Acts 1935 (Comp. Laws Supp. 1940, § 14207, Stat. Ann. §27.902), which makes entries in writing made in the usual course of business admissible in evidence. It is argued that the privilege respecting such records can be waived only by a living patient except in a will contest. It is true that the statute (3 Comp. Laws 1929, § 14216 [Stat. Ann. § 27.911]) contains a provision for waiving the privilege in a will contest by heirs at law who shall for this purpose be deemed personal representatives. But it does not follow that a personal representative may not waive the privilege under the circumstances of this case. Under a Wisconsin statute (Wisconsin Statutes 1933, § 325.21) authorizing waiver of the privilege by a “personal representative or other person authorized to sue for personal injury,” the court held in Estate of Gallun, 215 Wis. 314 (254 N. W. 542), that the provision for waiver was not exclusive and the privilege could be waived by an executor or administrator under other circumstances, such as inheritance tax matter, citing among other authorities, Fraser v. Jennison, 42 Mich. 206. See, also, Johnson v. Fidelity & Casualty Co. of New York, 184 Mich. 406, 412 (L. R. A. 1916 A, 475), and 126 A. L. R. 380, for annotated cases on this subject. We think the reasoning of the Wisconsin case is applicable here.
From the autopsy and subsequent study of the X-ray plates it is clear that Doctor Friedlaender misapprehended the course which the bullet had taken. If the bullet had in fact lodged on the right side, the wound would have been superficial. Whether or not Doctor Friedlaender would have operated had he. known the true location of the bullet and whether or not an operation would have saved Harvey’s life are disputed questions of fact.
Was the diagnosis as to the location of the bullet negligent?
As to Doctor Friedlaender’s negligence, the jury could infer that he relied on his manual examination, in which he incorrectly thought that he felt the bullet on the right side, and that he paid little heed to the X-ray. Refusal to give the X-ray due consideration and reliance upon a manual examination could be regarded as negligent diagnosis of this serious injury. See Rogers v. Kee, 171 Mich. 551; Rann v. Twitchell, 82 Vt. 79 (71 Atl. 1045, 20 L. R. A. [N. S.] 1030), and Fortner v. Koch, 272 Mich. 273 (38 N. C. C. A. 334), and Fortner v. Koch, 277 Mich. 429.
As to Doctor Minor’s negligence, he testified regarding his study of the X-ray plates that: ‘ ‘ They were not carefully studied, no. * * * It was a casual examination of a wet plate. * * * I found it (the bullet) over on the left side when I looked over the films carefully.” There was expert testimony that the bullet showed plainly and that an expert roentgenologist could tell which side of the body was the right or left without resort to any markings on the plate.
That Doctor Minor did not make a careful study of the X-ray plate is admitted in his own testimony. However, it is argued on behalf of Doctor Minor that since1 his study of the plate, though casual, disclosed the true location of the bullet, any negligence on his part in that respect could not be the proximate cause of the failure to operate.
The jury could infer that if Doctor Minor had studied the plates more carefully, he would not have so readily concluded that there had been some confusion in the marking of the' plates and would not have had the “R” scratched over the “L”. Doctor Minor’s unconsidered acquiescence with Doctor Friedlaender as to the location of the bullet could be found to have prevented further diagnosis by Doctor Friedlaender and himself. Thus the negligence of both Doctor Friedlaender and Doctor Minor resulted in an inaccurate diagnosis of the course taken by the bullet. See Rodgers v. Canfield, 272 Mich. 562, 564.
Was the negligent diagnosis the proximate cause of Harvey’s death?
Since the medical experts agreed that Harvey was almost certain to die unless an operation was performed, the jury could properly infer that Doctor Friedlaender would have operated if he had known the true position of the bullet. The negligent diagnosis then was the proximate cause of the failure to operate. There is testimony in the record that there was a probability that an operation would have saved Harvey’s life. Therefore the negligent diagnosis could be said to have been the proximate cause of the death. See Lippold v. Kidd, 126 Ore. 160 (269 Pac. 210, 59 A. L. R. 875), and annotated cases, p. 884 et seq., to the effect that proof of “probability” is sufficient.
The court charged the jury that:
“In this ease the plaintiff does not complain that Garfield Harvey was shot, but he complains that Garfield Harvey having been shot, the defendants negligently failed to properly diagnose, care for and treat his injuries, and that that failure deprived Garfield Harvey of the probability that his life would have been saved had he received the careful diagnosis, care and treatment to which he was entitled at the hands of the defendants; and if you find that one or both of the defendants were negligent as I have heretofore defined it, and that that negligence or want of due care deprived Garfield Harvey of the probability of life he would have had if the requisite degree of care had been exercised, then the failure to exercise that care would in this case be the proximate cause of his death, notwithstanding that he would have died and did die from the gunshot wound without intervention or the benefit of that degree of due care.”
Appellants assign error as to this portion of the charge, but in view of the foregoing it was substantially correct. The rights of the parties were fully protected by subsequent language of the charge that:
“I further charge you, members of the jury, that you may not return a verdict for the plaintiff if he has shown only that surgical intervention might possibly have saved the life of Garfield Harvey, but, on the other hand, it is not incumbent on the plaintiff to show that to a certainty surgical intervention would have saved his life. It is sufficient if the plaintiff by a preponderance of the evidence has satisfied you that surgical intervention would with reasonable probability have saved his life, that is, the life of Garfield Harvey. * * * If you find that the bullet wound inflicted upon' Garfield Harvey by David Petty was the proximate cause of Garfield Harvey’s death, you must return a verdict for the defendants.”
The charge taken in its entirety fairly informed the jury on the law applicable to the issues raised by the pleadings and the testimony.
The claimed negligence of defendants was submitted to a jury which returned a verdict of $10,000, on which the trial judge ordered a remittitur of $4,000.
The verdict as modified does not shock the conscience of the court.
The judgment is affirmed, with costs to appellee.
Chandler, C. J., and Boyles, North, Starr, and Sharpe, JJ., concurred with Bushnell, J. Wiest and Butzel, JJ., concurred in the result. | [
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Chandler, C. J.
It appears from the pleadings in this ease that the plaintiffs, desirous of obtaining a home for themselves, on March 30, 1939, entered into a preliminary agreement for the purchase of a certain house and lot in G-rosse Pointe Woods with Robert G. and William J. Ivitchen, title holders, for the sum of $8,500, expecting at that time that they would be able to obtain a loan for this amount from the Federal Housing Administration; that they anticipated that it would take about 30 days to obtain this loan. Plaintiffs then went to defendants, the defendant Frances being a sister of plaintiff Leonard, and also to another sister of plaintiff Leonard, a Mrs. Estelle Krebs, for financial assistance pending the negotiations to obtain the F.H.A. loan. Mrs. Krebs agreed to loan $4,000 and to take defendants’ note for this amount, and defendants agreed to advance the balance of the purchase price, $4,500, and take title to the premises in their own names.
The premises in question were purchased with the $4,000 advanced by Mrs. Krebs and the $4,500 advanced by defendants, and title to same was taken in the names of defendants. Plaintiffs then moved onto the premises.
Negotiations for the F.H.A. loan fell through and defendants then executed to Mrs. Krebs a mortgage on the premises to secure the note they had given for the $4,000 that she advanced.
It is alleged in the pleadings that some payments of interest were made to Mrs. Krebs by plaintiffs and that plaintiffs also paid some taxes.
On June 28, 1940, the plaintiffs herein filed their bill of complaint alleging substantially tbe foregoing facts, but urging that defendants were to take title to the property as security for tbe money advanced by them, and further it is tbe claim of tbe plaintiffs that tbe defendants agreed orally to execute a land contract to plaintiffs for tbe sale of said' premises for tbe sum of $10,500 with interest at 4 per cent., and should allow plaintiffs a credit on said contract of $2,000, thus reducing tbe amount of tbe principal thereof to tbe amount that defendants and Mrs. Krebs bad advanced in payment for said property. Plaintiffs further allege that after moving onto said property they paid interest to Estelle Krebs on tbe mortgage given to her by defendants, and also paid to defendants interest on tbe remaining $4,500 with tbe exception of tbe June 1, 1940, payment, and that their reason for refusing to pay this interest was because defendants refused to execute a land contract to plaintiffs in accordance with said oral agreement. Tbe plaintiffs alleged that they always have been, and still are, ready and willing to enter into a land contract with tbe defendants in accordance with their said oral agreement, and in their amended bill of complaint they seek specific performance by defendants of such oral agreement to enter into a land contract.
For answer to said bill' of complaint tbe defendants admit that plaintiffs went into possession of' tbe premises described in tbe bill of complaint and made payments of interest, and admit that they refused to sign a land contract, which was prepared by plaintiffs, insisting that the agreement to make said contract is invalid and unenforceable because not reduced to writing and subscribed to by tbe party to be charged as required bv 3 Comp. Laws 1929, § 13411 (Stat. Ann. § 26.906).“
Defendants file a cross bill alleging that they took title to said premises as security for tbe repayment of their loan, and urge that it was expressly agreed between the plaintiffs and defendants that the defendants were to hold the title to said premises only until plaintiffs could obtain an F.H.A. loan for a sum sufficient to repay them the $4,500 which they advanced in payment for said premises. They also allege the execution and delivery of a promissory note to Estelle Krebs for the sum of $4,000, and also the execution to Mrs. Krebs of a mortgage to secure the repayment of said sum. Defendants further allege in said cross bill that the proposed land contract was contrary to the agreement between the parties, and allege that the said plaintiffs are in default- in the repayment to said defendants of the amount loaned to them, as well as in interest payments, and allege further default in not paying insurance premiums and taxes assessed against said premises, and ask for a determination of the interest of the parties to this cause, including that of Estelle Krebs, and for a decree requiring plaintiffs to come to an accounting with the defendants, and in the event the court finds the deed to the defendants to be a mortgage lien on said premises, that foreclosure of same be decreed.
On April 21,1941, the defendants herein petitioned the court for the appointment of a receiver, and the determination by the court of a fair rental value for the premises to be paid to said receiver during the pendency of this suit. Said petition alleged, among other things, that the defendants had made Estelle Krebs a party to their cross suit inasmuch as she had started foreclosure against them of the mortgage given to secure her loan of $4,000, but state they had been unable to secure service of process upon her, and that she has deliberately evaded service of process in furtherance of a scheme entered into between her and plaintiffs to defraud the defendants, and that the said Estelle Krebs has com meneed foreclosure of the mortgage given by defendants to her, and that she and plaintiffs are doing all they can to hinder and embarrass defendants, and to defraud them out of the funds which they advanced in the purchase of said property.
After a hearing upon the petition, and the objections filed by plaintiffs thereto, the trial court entered an order appointing a receiver with directions to said receiver to determine and collect a fair monthly rental from plaintiffs so long as they occupied said premises during the pendency of this suit.
From the order so' made as aforesaid plaintiffs take a general appeal asserting: (1) That the order so entered is contrary to law. (2) That such order was entered in violation of the Michigan court rules. (3) That such order in authorizing the receiver to determine the fair rental value of the premises in question is an illegal and unwarranted delegation to a ministerial officer of judicial power. (4) That no showing as to the necessity of appointing a receiver was made.
The appellees insist that the order appointing a receiver is not a final disposition of a part or all of the subject matter of the suit, and that the appeal should be dismissed because no leave to appeal was secured. We appreciate that this court has on many occasions dismissed general appeals taken _from orders which are not final, and has also denied leave to appeal from interlocutory orders, as there is no reason why this court should review cases by piecemeal. We do not think, however, that in a case where the facts are as they appear here, that the cases in which we have enforced this rule are applicable.
It fairly appears from the pleadings in the instant case that the deed by which the defendants obtained record title was accepted by them as security for the moneys advanced in payment of tbe purchase price for the premises now occupied by plaintiffs and that they, plaintiffs, were in some manner, not made clear, to become owners of said property, and were also, in some manner, likewise not made very clear, to repay to defendants and to Mrs. Krebs the loans made by them to insure the purchase of said property.
By the foregoing statement we are not passing upon the merits of the controversy between these parties, nor do we even wish to intimate what the determination should be when finally submitted to the trial court on hearing on the merits.
The order appointing a receiver was upon the application of defendants, based upon their cross bill and motion. The cross bill avers that the deed by which they obtained title was taken as security for moneys loaned by them to plaintiffs and asks that said deed be decreed to be a mortgage and also that foreclosure of same be decreed.
If the defendants are entitled to the relief sought by them then the plaintiffs are the mortgagors and entitled, in case of foreclosure, to redeem the property within the statutory period by complying with the terms of the decree. Furthermore plaintiffs as mortgagors are entitled to the possession of the mortgaged property and the rents and income therefrom until foreclosure sale and until the expiration of the equity of redemption period. Wagar v. Stone, 36 Mich. 364.
In the case of Sanford v. Newell, 204 Mich. 91, we said:
“It has been decided repeatedly that any decree or order divesting possession or rights on a preliminary inquiry is illegal and void so that no one need respect or obey it. People, ex rel. Messier, v. Simonson, 10 Mich. 335; People, ex rel. Port Huron & G. R. Co., v. St. Clair Circuit Judge, 31 Mich. 456; Salling v. Johnson, 25 Mich. 489; McCombs v. Merryhew, 40 Mich. 721; Arnold v. Bright, 41 Mich. 207.
“Any snch order made in an equity case is a final decree and appealable as such. Barry v. Briggs, 22 Mich. 201, and above cases.”
In Mardian v. Wayne Circuit Judge, 118 Mich. 353, we held:
“It has been repeatedly held that orders appointing receivers, whereby the possession of property is divested, are appealable: See Barry v. Briggs, 22 Mich. 201; People, ex rel. Port Huron & G. R. Co., v. Jones, 33 Mich. 303; Taylor v. Sweet, 40 Mich. 736; Morey v. Grant, 48 Mich. 326, 330; Perrin v; Lepper, 56 Mich. 351.”
The order of the court in the instant case which takes from the plaintiffs the control of the premises in question, in view of the foregoing authorities, is obviously a final order from which a general appeal lies.
The effect of this order -is to deprive plaintiffs of the possession, income and control of the premises now occupied by them during the defendants’ foreclosure proceedings, as well as the right of occupancy, control and income during the period of redemption fixed by statute.
After carefully reviewing the cross bill of defendants and their petition later filed asking for the appointment of a receiver pendente lite, we find no averments of any contract or agreement in the alleged mortgage giving to the defendants, in case of default, the right to any income from the premises therein described nor the right of possession thereof pending foreclosure. Neither do we find any averment of any emergency that would justify the court in the appointment of a receiver pending the determination of this case on the merits.
The order appealed from is vacated, set aside and held for naught and the case is remanded for hearing on the merits.
We do not think the equities of this case justify an award of costs.
Boyles, North, Starr, Wiest, Buttzel, Bushnell, and Sharpe, JJ., concurred. | [
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Chandler, C. J.
The parties to this cause were married at or near Salem, Indiana, on February 23, 1920. At that time, plaintiff was 19 years of age and the defendant 15 and one-half. On February 15, 1920, eight days before the marriage, defendant gave birth to a child. The arrangements for the marriage were made by the respective fathers of the parties. Plaintiff and defendant had been keeping-company for about two years prior to the marriage and no question has ever been raised as to the parentage of the child.
There is some conflict in the testimony as to whether or not the parties ever lived and cohabited together subsequent to the marriage. Defendant and her mother testified that during the year 1920, plaintiff called at the home of defendant’s parents about six times and stayed over night with defendant. If he did, and we think the record shows that such was the ease, the occasion of his last call in 1920 was the last time he ever saw his wife or daughter until they met in the court room at the trial of this ease in Detroit on April 14, 1941.
The record is conclusive that plaintiff never contributed one dollar for care or support of either wife or daughter. Neither did he ever write his wife or make any attempt to communicate with her or his daughter after he completed his educational course in 1921.
It is claimed by plaintiff that immediately after the marriage, he asked his wife to come to his parents’ house, in rooms they would provide, and live with him as soon as she was well enough. This was denied by defendant and her mother. If he did do this, it was the only time he ever offered to provide a home for his family.
It appears from the record that plaintiff was expelled from his school immediately after his mar riage, and that he was not to be allowed to return without permission of his wife’s parents. This permission was granted and he finished his education, taught school for a time, and then went to Detroit in 1923 or 1924, where he has since resided. In June, 1924, soon after arriving át Detroit, he secured a position with the Detroit Edison Company where he is still employed at a salary of $65 per week.
On September 29, 1939, plaintiff filed a bill of complaint, charging defendant with ■ desertion and praying for a decree of divorce. Defendant answered, denying the allegations of plaintiff’s bill, and filed a cross bill wherein she charged plaintiff with nonsupport and extreme cruelty and prayed for a decree of divorce and for an award of alimony.
The cause was heard upon the pleadings and proofs taken in open court. The court dismissed plaintiff’s bill of complaint and awarded a decree of divorce to defendant and also awarded her permanent alimony at the rate of $50 per month to be paid until further order from the court. It was further decreed that plaintiff should forthwith pay to the attorney for defendant the sum of $100 as attorney fees, and that the temporary injunction then in force continue until the further order of the court. It is from this decree that plaintiff appeals.
Appellant’s statement of the question involved is as follows:
“Where plaintiff and defendant, husband and wife, were married 8 days after the birth of their child, never lived together and upon final decree of divorce • 21 years later there is awarded to the wife $50 per month permanent alimony, in addition to $755 which she has received as temporary alimony and attorney fees, is such allowance of $50 per month reasonable and warranted under the discretionary powers of the trial judge?”
We also wish to, quote from the findings and opinion of the trial court as follows:
“The court must first decide whether or not the plaintiff is entitled to a decree against the defendant, Mary Yance.
“After listening to the testimony, the court is of the opinion, having had the opportunity of hearing and seeing the witness here, that the defendant is not guilty of abandonment; that the plaintiff failed to provide a proper home for the defendant after their marriage, failed to provide any home. After their marriage he went back to school. The defendant was good enough to remain with her parents and wait until he was through school and finished his studying. That same opportunity was not provided for the defendant, who also was attending school at the time of this marriage; she was denied that right. She was compelled to go to work and provide means of supporting the child of these parties. She did work and earned considerable money during these 20 odd years. All the defendant (plaintiff) paid for the support of this child was that amount which he was asked to pay under an order of this court, which amounted to a little over $300. He paid that amount of money for the support of this girl.
“From what the court could observe this girl has received * # * a good education and she is well trained, well clothed, has had a fine bringing up, all to the credit of this defendant, Mary Yance.
“Mary Yance has filed a cross bill in this case, also asking for a decree of divorce. She charges this defendant with nonsupport and extreme cruelty.
“After hearing her testimony the court is of the opinion that she is entitled to a decree, she is entitled to the relief asked for in this case.
“It seems to me in this case, where this plaintiff and cross defendant has failed to support his wife and this child for 21 years, has not provided any means of support when be was able to do so, has failed to do that which he was bound to do as a father and a husband, there is nothing for the court to do but enter a decree on behalf of the cross plaintiff, against the cross defendant, a decree for absolute divorce, and granting the cross plaintiff in this case alimony until the further order of this court of $50 a month, and $100 attorney fee, and that is until the further order of this court.”
From the record, we find ample justification for the findings of the trial court and the entry of a decree in accordance with such findings.
The record discloses that defendant, for a period of more than 20 years subsequent to her marriage to plaintiff, toiled as a maid for wages of from $5 to $10 per week to support herself and to support and educate her daughter, all of which plaintiff was legally and morally bound to do; and that plaintiff cruelly and cowardly relieved himself of the responsibilities of a husband and father by abandoning his wife and child in a southern Indiana’ town, coming to Michigan, and, although of ample ability so to do, neglecting and refusing to furnish them with any support whatsoever. Nothwithstanding his wrongful conduct, plaintiff comes into a court of equity seeking to be relieved of all future responsibility to his family. This was properly denied, and we find that the trial court committed no error in the entry of the decree.
Appellant urges that defendant is not entitled to any relief because of laches. The question of laches was not raised in the court below. It is not set forth in plaintiff’s statement of questions involved, and was not set forth in his “reasons and grounds for appeal.” We have, however, given consideration to this question, and determine that it is without merit. See Reed v. Reed, 52 Mich. 117 (50 Am. Rep. 247); Stone v. Stone, 162 Mich. 319; Parkinson v. Parkinson, 177 Mich. 336.
Furthermore, it should he borne in mind that defendant was not the moving party, and the record shows no acquiescence on her part in the wrongful conduct of plaintiff in refusing her support. In fact, the record shows that she did not know plaintiff’s whereabouts until the order for her appearance was served upon her by mail at her employer’s place of residence in a Wisconsin town.
The decree is affirmed, with costs to defendant.
Boyles, North, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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Brooke, J.
(after stating the facts). Counsel for appellant contends:
First. That after the agreement of the supreme secretary to see to it that the assured did not lapse out, that the order is not in a position to insist that he did- lapse.
Second. That the assured had not been suspended, because no formal action suspending him had been taken.
Third. That the action of the order in accepting payment on the 8th of January, in retaining that payment. until the 8th of May, and in asking for proofs of loss and additional proofs of loss, involving the expenditure of time and money by the plaintiff, that the order waived any right to insist upon a forfeiture.
Assuming for the purpose of the case (though the question is in dispute), that Loomis, the supreme secretary, promised to remind the assured when he was in default in order that his policy should not lapse, we are of opinion that the contention of counsel for plaintiff cannot be sustained. This action is based upon a written contract and the rights of the parties must be determined according to its tenor. By that contract the insured undertook to make the payments before 10 o’clock p. m. on the last day- of each calendar month. It would, we think, be a dangerous practice to permit the substitution of a verbal agreement for the written contract, even though the same were undisputed, which is not the situation in the case at bar.
We are of opinion that the provisions of section 1 of article 10 are controlling and that the words: “shall be suspended from the order and his policy shall become null and void,” are self-executing. Counsel for appellant cites in support of this contention the following cases: Petherick v. Order of the Amaranth, 114 Mich. 420; Dick v. Order of the Amaranth, 150 Mich. 215; and Roulo v. Schiller Bund, 172 Mich. 557. An examination of these cases will demonstrate that the provisions relative to suspension in the policies there under consideration differed from those provisions in the policy in suit. They are therefore not controlling.
The provision of section 1, article 12, which states that the furnishing of blank proofs of death shall not be construed as a waiver of any of the rights of the order, disposes of this contention.
This case upon its facts is much like the case of Edgerly v. Ladies of the Modern Maccabees, 185 Mich. 148, and is controlled by the same legal principles.
The judgment is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Ostrander, C. J.
Defendants gave their note, dated November 27, 1908, payable sixteen months after date to the order of plaintiff, for $265, with interest at 7 per cent, per annum. To secure payment, they executed a mortgage upon land described as the southwest quarter of the northeast quarter of section 6, and south half of the southwest quarter of section 5, town 30 north, of range 7 west, Antrim county, Michigan. Plaintiff was a nonresident of the State, and it is recited in the mortgage that he is of Seattle, Washington. The mortgage contains a covenant of the mortgagors to pay all taxes which shall be assessed upon the mortgage, whether as personal property or as an interest in real estate. The bill in this cause was filed August 17, 1914, to foreclose this mortgage, and it is charged therein that an examination of the-records shows that Lewis E. Sayre, of Los Angeles, California, has or claims rights in the land “as a prior incumbrancer.” Said Sayre is therefore named in the bill as a defendant. He entered an appearance by solicitor and before the hearing, stating in substance on said notice of appearance that Sayre had assigned his mortgage to plaintiff, and it was stipulated by the parties that an assignment of his said mortgage and the debt to plaintiff was duly made by his attorney in fact October 15, 1915, and recorded.
Answering the bill, defendants (jointly and severally) refer to the Sayre mortgage, say that the loans were made to them by an agent and representative of both mortgagees, the said agent being the only one known personally to them in the transaction, that they have paid the agent interest on each mortgage, are ready and anxious to pay both mortgages, and ask the court to consider both mortgages and ascertain and declare the sum due on each and both. It was agreed that testimony should be taken with respect to both mortgages and the sums due upon them. There was no amendment of the bill, but, before the hearing was concluded, formal proof was made of an assignment of the Sayre mortgage to plaintiff.
The Sayre mortgage was given by defendant Frederick Schaen February 10,1903, to secure his note for $350, dated that day, due three years after date, payable to the order of Lewis E. Sayre, with interest at 7 per cent. The note was written upon or into a printed form, which contained the printéd words “after maturity.” Over these words, but without erasing them, the words “per annum” were inserted with a typewriter, before the note was executed. The mortgage describes the south half of the southwest quarter of section 5, town 30 north, of range 7 west, and describes no land on section 6.
The cause proceeded to a decree, dated October 11, 1916, and filed December 4,1916, in which decree it is found that there is due on the Sayre mortgage $433.32, which sum defendant Frederick Schaén is personally liable to pay, and due on the mortgage described in che bill $408.20, which both defendants are liable personally to pay. In default of payment, the premises described in the joint mortgage to plaintiff are ordered sold, the decree being in the usual form.
The objections made in this court to the decree are stated in the appellants’ brief as follows:
“1. If the testimony introduced by the complainant be taken as true, still the amount found by the court as due upon the mortgages is in excess of the true amount.
“2. The defendants claim that both mortgages were usurious inasmuch as they provided for the maximum rate, of interest allowed under our statutes and provided that the mortgagor in the one instance and the mortgagors in the other shall pay all taxes that might be assessed upon the mortgages. That by reason of usury the complainant is not entitled to interest.
“3. That the defendants were, entitled to certain payments that were not credited to them, and that the court found an amount due in excess of the amount actually due.
“4. That no decree should have been taken on the Sayre mortgage for interest until after the maturity of the mortgage, for the reason that the note itself did not draw interest until after maturity, and there was no allegation in any of the pleadings asking for a correction of the note.
“5. The defendants claim that there were payments made upon the Sickles mortgage, that were credited on the Sayre mortgage, and that this worked an injustice to defendant Edward Schaen.”
1. Following the United States rule, McVicar v. Denison, 81 Mich. 348, Wallace v. Glaser, 82 Mich. 190, Lowe v. Schuyler, 187 Mich 526, the method of computing interest adopted by the court was the correct one. No mathematical mistake is pointed out.
2. The contracts (notes and mortgages) reserve the highest lawful rate of interest. The provision and contract in the mortgages that the mortgagor will also pay “ * * * particularly all taxes which shall be assessed upon this mortgage whether as personal prop-, erty or as an interest in real property,” with the further stipulation that payment “of such taxes on the mortgage interest of said party of the second part, shall not, in any case, be considered and treated as a payment on either the interest or the principal of this mortgage,” amount in form, and in legal effect, to a further reservation of interest. In the opinion of this court in Green v. Grant, 134 Mich. 462, 463, in considering a contract not per se usurious but which might or might not be so, depending upon circumstances, the doctrine that it is the essence of an usurious transaction that there shall be an unlawful and corrupt intent on the part of the lender to take illegal interest, is approved. It was also said:
“If, at the time the contract was made, he knew that the aggregate of interest reserved and taxes to be paid would exceed the statutory rate, — as he would if the interest reserved was the maximum interest, — the contract is usurious.”
See, also, Stack v. Detour Lumber & Cedar Co., 151 Mich., 21; Vandervelde v. Wilson, 176 Mich. 185.
Plaintiff says, in substance, that it appears upon the face of each of the mortgages that the mortgagee does not reside in Michigan, that it was not the policy of this State, when the mortgages were given, and is not now, to tax credits owned by nonresidents. Village of Howell v. Gordon, 127 Mich. 517, and therefore the provision in the mortgages requiring the payment of taxes assessed against the mortgage c?r the mortgagee as its owner is without effect in fact and'should be held to be without effect in law because any intertf. to exact more than 7 per cent, interest is negatived. Inhere is testimony tending to prove that only 7 per cent--has been demanded of the mortgagors and paid by them, that they have never been required or requested to pay any sum as taxes on the mortgages or the mortgage interest of the owners, and that the agent of the mortgagees, before his attention was called to it by the solicitor for plaintiff, did not know that the mortgages contained the clause referred to. If the question of usury or no usury may in this case be determined by the.intent of the lender to exact it, and his intent by evidence outside of the written contracts, the evidence is persuasive that the intent to exact or to receive usury was wanting.
We have held the contract itself to be conclusive when the mortgage is owned by a resident of this State. Ought it to be held to be inconclusive when, the mortgage is, and appears upon its face to be, owned by a nonresident, there being nothing to show whether by the law of the owner’s domicile the mortgage, or the credit of which it is the evidence, is taxable? Upon this record, the question is no broader than this. It must be answered in the negative, because the stipulation in the mortgage is broad enough to impose upon the mortgagor the duty to pay taxes upon the mortgage assessed to the owner at his domicile, and there is no presumption that the mortgage is not taxable by the law of the owner’s domicile. It must be held that the contracts are, both of them, usurious.
3. Defendants were given proper credit for all sums they have paid.
4. This point, in view of what has been said, becomes unimportant.
5. Appellants’ argument in this behalf is not easy to follow. The conclusion to which it is supposed to lead is not stated. What correction, if any, the testimony requires, should be made is not indicated.
6. There is no evidence of a proper tender to plaintiff of the money claimed by defendants to be his due. There is evidence that on February 28, 1914, they considered that they owed him at least ?628, and in a letter to his agent they advise him that this sum is on deposit in a named bank to his credit — “at your order and subject to your control.”
The amount due upon the mortgages must be recomputed, defendants being charged with no interest, and credited in reduction of the principal debt, in each case, with such payments, and such only, as. the trial court found had been made. A decree will be entered, in this court reversing the decree appealed from, stating the sum due to plaintiff in accordance with this opinion, in other respects corresponding with the usual form of decrees in foreclosure proceedings. No more than 60 days from the date of filing this opinion will be allowed for paying the sum found to be due, and a sale of the premises will be ordered in default of such payment. It is probable that counsel will agree upon the; amount due.
Moore, Steere, Brooke, and Stone, JJ., concurred with Ostrander, C. J. | [
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Steere, J.
Plaintiff brought this suit to recover from defendants contribution as cosureties on an indebtedness of $15,000 to the Alpena County Savings Bank paid by him, for which the bank held eight promissory notes for $1,875 each dated July 31, 1914, payable six months after date with 6% interest per annum, each note signed by one of the parties hereto and indorsed by the others. The money represented by these notes was borrowed by the parties to this action in 1912 to meet the necessities of the Alpena Motor Car Company, a corporation in which they were all stockholders, then a going concern, which had become but a regretful memory when plaintiff paid the notes. At the time the loan was originally made, on July 31, 1912, a single note for $15,000, payable six months after date, was given, signed by plaintiff as “trustee under agreement of May 11, 1912,” persohally indorsed by him and defendants. It was renewed in that form as a single note several times and then split up into these individual notes mutually indorsed, which, not being paid when they fell due, were protested for nonpayment by the bank. On' February 26, 1915, the bank wrote the signers and indorsers calling attention to the fact the notes were not paid when due and had been protested, saying in part:
“We will not expect you to delay arranging for these matters later than noon of March 3, 1915.”
On April 16, 1915, the bank sent plaintiff a statement of principal, interest and protest fees due on the notes, amounting to $15,658, saying,
“We have been unable to make collection of these and hereby request that you take same up.”
This plaintiff did by then giving to the bank a check for the interest and charges with his personal note for $15,000 secured by certain railroad stock owned by him assigned as collateral. This he paid December 8, 1915.
An order of the trial court overruling defendants’ demurrer to plaintiff’s bill of complaint in this case was reviewed and sustained in Comstock v. Potter, 191 Mich. 629. Reference may be made to the report of that case for the substance and theory of plaintiff’s bill for contribution; also for a historical outline of events connected with the Alpena Motor Car Company leading up to the litigation between the parties, both it and the kindred case of Comstock v. Corbin, 191 Mich. 639, may be consulted. In the latter case defendants’ demurrer to a bill for exoneration was sustained, it not there appearing plaintiff had yet paid the debt for which he claimed defendants were liable, as had' been done in the instant case.
This case having been remanded for further proceedings, defendants filed answer in denial claiming the benefit of a cross-bill, the gist of their defense being that they were induced to enter into the trust agreement of May 11, 1912, and to sign these notes through false and fraudulent representations made by plaintiff and defendant Roberson as to the financial condition of the Motor Car Company and value of an equity in the so-called “Netherlands property,” held as security for the notes, asking as affirmative relief that said agreement and notes be declared void and defendants’ liability thereon decreed to be at an end.
Plaintiff answered the cross-bill in denial of the alleged fraud and the case was heard upon pleadings and proofs, consisting of oral testimony in open court and depositions taken by the respective parties. An opinion was thereafter filed by the trial court holding defendants liable for contribution upon the loan of $15,000, according to the notes they signed and plaintiff had paid, dismissing their cross-bill.
At the time this bill was filed by plaintiff, August 14,1915, the secured note which he had given the bank to take up these notes had not yet been paid by him and it is argued for defendants that the “real situation of the parties and their liability upon their notes was not changed by the trustee putting his own note in their place.” There was no question of trusteeship involved in this matter so far as the bank was concerned. The notes were each signed personally by the makers and indorsers. The bank had protested them for nonpayment, demanded payment, and then called upon plaintiff to take them up, which he did with money and secured paper acceptable to the bank. It thereafter had no claim on the notes nor against the makers or indorsers for the debt they represented. As between it as payee and them, and between plaintiff and defendants, he had paid the notes held by the bank against all of them as makers and indorsers.
It is further contended as a proposition of law that plaintiff’s claim for contribution is premature even if he did pay the notes, and cannot be entertained by the court until he has disposed of the Netherlands property and wound up his trusteeship under the trust agreement of May 11,1912, described in 191 Mich. 629. If defendants’ contention is tenable it would seem to follow that defendants’ demurrer was then wrongfully overruled, for the situation is unchanged in that particular and it was there noted that plaintiff claimed, as is shown here, that he “had held and managed the "Netherlands property’ without compensation, applying the income to payment of interest, charges, taxes, and expenses, but had been unable to sell the property, and so he had not paid any part of the indebtedness scheduled in said last named agreement,” which included the original $15,000 note. Though not especially discussed in that decision, this question, distinctly a matter of demurrer, was then as squarely in the case and before the court as now, and presumably disposed of in the order overruling the demurrer. But if not, we find nothing in any of their agreements making liability on the $15,000 note of July 81, 1912, running for only six months, contingent upon deficiency in the proceeds from a sale of the trust property, which defendants allege in their answer “was of no value above the incumbrance thereon that could be realized by a sale of the same, all of which was well known by plaintiff.” The $15,000 loan was apparently not in contemplation when the agreement of May 11, 1912, was entered into, for it was not made nor- mentioned until July 31, 1912, when it was orally agreed upon, as plaintiff testified, to meet the then pressing necessities of the Motor Car Company, although possibly contemplated in the provision of the trust agreement for application of balance, if any, of the proceeds in case of sale under written consent of all parties after paying all expenses and incumbrances thereon. But by it some $23,000 of other notes previously given would take priority, and it was then recognized the residue might not be adequate for as to them it was ""agreed that if said property does not bring a sufficient sum of money to pay all of said notes in full each of the parties of the second part shall bear equally his portion of the unpaid amounts due on said notes.”
It is claimed by plaintiff, though disputed by defendants, that the parties agreed this $15,000 borrowed by them for the Motor Car Company was a stock subscription, and it appears so credited on the books of the company. Weight is given to this claim by their subsequently splitting up the amount into individual notes ‘mutually indorsed for acceptance by the bank. From the fall of 1911 unsuccessful efforts were made to dispose of the Netherlands property which plaintiff had been caring for in the meantime, without compensation. The change to separate notes was admittedly agreed to and made on his suggestion because, as he claimed, his liabilities in this and other business matters were pressing him. Collins, who was at one time president of the Motor Car Company, testified:
“The $15,000 note was divided up into $1,875 notes, of which I signed one, because Mr. Comstock said they were holding this note against his line of credit at the bank and that if we would sign these notes separately that would help his credit there at the bank and I was willing to do that. And did do so.”
Comstock testified that he requested this—
“because these men who were on these notes know as well as I do that the bank had been hammering for payment of these notes for nearly two years; and when we got them split up it was with the idea that the next time those notes became due they were to have,— if not a substantial payment, to be paid entirely; but each one was going to assume his share. That was the understanding. * * *
“Q. The bank’s understanding?
“A. That is the understanding with these men. They were told that.”
This is controverted by defendants who claim plaintiff assured them they would thus secure an ex tension of credit and eventually the debt would be cared for by proceeds from sale of the Netherlands property. If so, it is difficult to discover how his credit would be helped or the situation relieved in any way as to him by the change. Defendants were business men of mature years, presumably with knowledge of the significance of commercial paper of this kind when given by them. After signing them they did not pay or care for them when they became due and were protested by the payee. When payment was demanded of plaintiff as an indorser he paid them to protect his credit. His right to contribution under the facts in this case was not contingent upon or deferred to the sale of the Netherlands property.
The defense of fraudulent inducement, to which the testimony in this ample record is largely devoted, is essentially an issue of fact with the burden of proof on defendants. The Alpena Motor Car Company was organized in 1910 for the manufacture of automobiles in the city of Alpena and ended in hopeless bankruptcy, in 1913. It was locally promoted with an appeal to local loyalty, and is described as a “Chamber of Commerce proposition.” One of the projects for raising capital for it was a donation by the city and county of a piece of land to the Chamber of Commerce which platted the same and sold lots to citizens at $200 each, giving each purchaser of a lot a bonus of $50 par value of preferred stock and $50 par value of common stock of the company. Plaintiff at that time became a stockholder to the extent of 15 shares of common and 15 shares of preferred stock through becoming one of the subscribers to the original sale of lots. He was absent from Alpena much of the time during 1910 and 1911 and took no part or interest in the affairs of the company prior to the spring of 1912 except with others to indorse for it two $8,500 notes in the fall of 1911. He testified that he first indorsed paper for the com pany because they said, “If you will indorse this paper, why, the bank will take it,” and his interest in the affairs of the company started when he commenced to get home to Alpena more than usual in the spring of 1912, but he did not contemplate becoming interested or active in its management until he became a director in May, 1912, and was forced into it.
Defendant Roberson, with whom it is charged plaintiff conspired to defraud the other defendants, was active from the beginning in the promotion and efforts to finance the Motor Car Company which was launched in a promising period of over-optimism as to that industry, when promotion of automobile manufacturing companies throughout the country was in flower. He had then recently organized the Alpena News Publishing Company, in association with the owners of a paper called the Argus, by purchasing the Alpena Evening News and other papers which they consolidated, had previously been engaged in the advertising and publishing business in Detroit, and testified that he first became interested in the auto factory project through advocating in his paper the contribution of a bonus to help it as a local industry to manufacture an automobile which certain Alpena men had designed. He, however, became one of the directors when the company was organized and was selected as its secretary, treasurer and general manager.
These defendants were all business men of Alpena, of mature years and experience in the business world; most if not all of them were from the beginning connected with this enterprise and more familiar with its promotion than plaintiff. Collins, a contractor and builder, was a director, its president and later its general manager. Corbin and Hill were in the cedar and lumber business together for many years; Corbin was a director; Fred N. Potter, who was also a director, and when these notes were given its secretary, had been in the insurance business and at that time was postmaster of Alpena; J. J. Potter and J. D. Potter were old hardware merchants.
By the efforts of Roberson and those associated with him in the enterprise the company was sufficiently financed locally to acquire and equip a factory and entered upon the manufacture and sale of the designed automobile. Plaintiff is not shown to have had anything to do with his selection as manager, and, as Cor-bin admitted, had no active connection with the management of the auto company until Roberson went away; but the fact is stressed by defendants that he was a former acquaintance of plaintiff and for several years in his employ. Roberson testified that he went to Alpena in 1906 and entered plaintiff’s employ at a salary of $125 a month and, of his duties, that he had charge of plaintiff’s real estate, looked after the bookkeeping in his office and did such other work as he was instructed or authorized to do. Plaintiff testified that the only transactions of importance Roberson had charge of for him were building up the “Temple Theatre” and running a creamery business they had started for the purpose of developing the wild lands around Alpena then going to waste, which was an expensive failure and admitted that as it turned out Roberson did not prove to be a successful business man for him. There is little in the record beyond defendants’ surmise from the bare facts that Roberson was in plaintiff’s employ and they were friendly, to support the charge of their co-operation to defraud defendants by false representations.
Early in 1911, when the need of additional working capital became pressing, Roberson made various efforts to dispose of more treasury stock with indifferent success, but while in Washington on that mission he made a deal through some brokers for the equities in an apartment building called the Netherlands, which was incumbered by two mortgages, the first being for $85,000 and the second for $40,000. For this he agreed to give $50,000 treasury stock of the Motor Car Co. and a third mortgage of $25,000, making the total incumbrance on the property $150,000. From an examination of the property, inquiries as to values and appraisals shown him, he became satisfied, as he testified and told officers and directors of the company, that in his opinion the property was worth about $200,000 and proposed that the company take over the deal. This was accepted by the directors and the equity in the property was assigned to the auto company on issuance of the $50,000 treasury stock to the vendor. Not long thereafter an agreement was entered into by which the title to this property was conveyed to him in trust to secure the indorsers of the two $8,500 notes of September 26, 1911, which plain-, tiff was induced to indorse, and two notes of $3,000 each indorsed by defendants Potter, making $23,000 thus raised to carry on the business of the company. In January, 1912, Roberson resigned his connection with the company as manager and treasurer, owing to ill health, as he stated, and left Alpena, defendant Collins being then. elected general manager and defendant Corbin treasurer of the company. Soon thereafter the directors had an audit made of the books and accounts of the company by expert .accountants from Detroit. Plaintiff became a director in the company in the spring of 1912, after Collins had become manager and Corbin treasurer. Roberson having dropped out, he accepted the trusteeship of the Netherlands property held as security for the indorsers and makers of the $23,000 of notes given the fall before, which were renewed. In July, 1912, the $15,000 note was given for the indebtedness subsequently represented by the notes here involved, and on April 28,1913, to save the Neth erlands which they had been unable to sell, a further agreement was executed between all these parties and one Culligan which provided that plaintiff, under the trust agreement of May 11, 1912, might as trustee borrow $12,000 from Culligan and $12,000 from himself, the same to be applied to paying off the “third trust against the Netherlands property in Washington, D. C., together with interest charges and taxes and expenses accrued against said property,” with a concluding provision that in case the trustee made a sale of the property the proceeds should be applied as stated in Comstock v. Potter, supra, 633.
Defendants’ chief ground for denying liability on these notes arises from their claim that when the first set of notes, aggregating $23,000, was given in September, 1911, and later when the trust agreement of May, 1912, was entered into, plaintiff represented to them that the Netherlands property was worth $200,-000 and they were thereby induced to sign the notes under the belief that the equity in the same held by him as trustee was ample protection. .As to the claimed representation in connection with the first notes we fully agree with the following view expressed in the opinion of the trial court:
“Plaintiff denies making any representations whatever at the September meeting. In my view of the case, it is unnecessary to decide whether or not he did so. It must have been understood by all concerned that plaintiff had no greater knowledge of the value of the Netherlands property than any of the defendants, except Mr. Roberson, who is not contesting this matter. Roberson alone had seen the property and whatever information plaintiff or any of the defendants, except Roberson, may have had as to its value, was based on Roberson’s report, of which defendants had as full knowledge as had plaintiff.”
Plaintiff had not at that time seen or made investigation as to the value of the Washington property, had. been absent from Alpena much of the time since the auto company was organized, had no stock in it except the few bonus shares received with his subscription for a Chamber of Commerce lot, along with other citizens, and had declined to further become interested in the company, or participate in its management. The testimony is persuasive that his knowledge of its financial affairs and the value of its assets came from and was presented to him by defendants in such manner that he rather than they was, if not misled, at least overpersuaded to become actively interested. Beyond his own positive statements there is much in the record lending support to the following testimony of Roberson as to how plaintiff first became an indorser for and associate with defendants in the affairs and management of the company:
“We appointed a committee to confer with Mr. Comstock and see if we could not possibly interest him to help us out by indorsement. Up to this time Mr. Comstock had persistently declined to have anything to do with the company. * * * I may state further that he had 15 shares of common stock and 15 shares of preferred stock when the company was organized, but this stock was merely the bonus that accompanied the purchase by him, along with dozens of other Alpena citizens, of three of the Chamber of Commerce lots. Mr. Corbin frequently told me that if it was possible to get Will Comstock into this Motor Car Company * * * he could be of the very greatest service to us with his name merely attached to the personnel of the organization. Furthermore that if we once got him behind us that he would have to help to see us through. Consequently about this time when we held a meeting Comstock’s name was always suggested by somebody, and various plans were discussed as to how we could get Comstock into it. This committee, above referred to, went to Comstock and by appealing to his civic pride, -his enthusiasm for the Chamber of Commerce, his large interests in Alpena, and so on, finally got him to go into it. Comstock agreed that if Culligan would advance the $8,000, and if J. D. Potter and J. J. Potter would indorse for $3,000, in addition, that he would indorse for his pro rata share of the balance.” * * *
Previous to the meeting of May 11, 1912, when the $15,000 note was given, plaintiff had, at request of the directors, visited the Netherlands property when in Washington and made some investigation as to its value. Defendants charge and testify that on his return he misrepresented its value, claiming it was worth sufficient beyond the incumbrances to protect all the paper they signed or indorsed to raise money for the auto company, and failed to inform them of estimates or appraisals he obtained from certain real estate men in Washington. He positively denied this, and claimed that he not only made no misrepresentations to defendants as to its value but that he truthfully reported to them what he saw and learned touching the character of the property and its probable value.
To review the conflicting testimony on this issue of fact would serve no helpful purpose, but from this record, considered in its entirety, we find no occasion to disagree with the following conclusions and reasons of the learned trial judge who heard the case.and saw the witnesses who testified before him:
“The burden of proof, of course, is upon the defendants. Taking into account the testimony of disinterested witnesses as well as of those that were interested and the probabilities and circumstances that naturally surround such a situation, I am clearly of the opinion that the defendants have failed to make out their case. No motive can be imputed to the plaintiff sufficient to have induced him to deceive any of the defendants or himself and he would naturally become the greatest victim of his own deceit. * * * Sufficient motive has been shown to have induced all of the parties to sign these notes irrespective as to the representations of the value of the Netherlands property. They were all much interested in the Motor Car Company, which was to acquire the proceeds of these notes. . Witnesses Levyn, Krebs and Nunnelley were disinterested and testified that the plaintiff did not make the representations claimed by certain of the defendants. Defendants claim that these witnesses were not present at the meeting in question; but the records of the Motor Car Company signed by one of the defendants and presumably written at a time when this controversy was undreamed of, show that they were present.”
Beyond the showing, which is not disputed, that plaintiff as trustee of the Netherlands property has made honest effort without avail to sell 'it at a fair price which would realize something beyond the in-' cumbrances upon it and was continuing to do so, his stewardship as trustee of that property is not involved or passed upon in this decision. The controlling question determined here is fraudulent inducement to sign these notes, and whether contribution by defendants is contingent upon a sale of the trust property, which defendants alleged was of no value beyond the incumbrances thereon, and the verification of a deficiency. If, as suggested in the brief of defendants’ counsel, changed conditions in Washington owing to the present great war have resulted in enhanced values of property like the Netherlands, it may prove fortunate that forced sale of the property has not been made, for plaintiff is yet bound'to faithful performance of the conditions of his trust agreement by which he holds this property in the interest of defendants, and all for whom he is trustee, and is holden to strict accounting to them for the same, in relation to which this decision is without prejudice.
The decree is affirmed, with costs to plaintiff.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Bird, J.
The plaintiff city passed a resolution requiring defendants to move their car track from the side to the middle of Corunna avenue between .Lincoln avenue and the city limits, a distance of 1,800 feet. After reciting that it has been determined by the commissioner of public improvements that it is a necessary public improvement that Corunna avenue from Lincoln avenue east to the city limits be macadamized, the resolution proceeds:
“Now, therefore, be it resolved that it is hereby determined by this commission that it is advisable and necessary as a proper regulation to protect and promote the interest, safety, welfare and accommodation of the public of the city of Owosso that the tracks of the electric railway, known as ‘The Owosso & Corunna Railway/ now operated by the Michigan Railway Company and owned by the Michigan United Railways Company, be removed to the center of said Corunna avenue from Lincoln avenue east to the city limits.”
Defendants refused to comply with the resolution and denied the power of the city to impose the burden. A hearing was had at which testimony was taken bearing upon the reasonableness of the resolution. The* trial court was of the opinion that the city had the power to make the order, that it was not an unreasonable one, and ordered a compliance therewith. Defendants have removed the proceedings to this court by writ of certiorari and raise two questions which call for our consideration.
Defendants’ first contention is that, assuming the city possesses the power to order a change in the location of the track, the order is invalid because it requires defendants to do an act which they, under the laws of the State, are prohibited from doing except by the consent and order of the State railroad commission, namely: The moving of the track from the point where it now crosses the Ann Arbor railroad track, the crossing being within the 1,800 feet covered by the order.
We are not unmindful of the rule that courts will refuse to order the issuance of a writ of mandamus when it is clear that it will prove unavailing, but we do not think the facts of this case disclose that such an order will be unavailing. While it is true, as urged, that defendants could not legally move their track from its present point of contact with the Ann Arbor track without the consent of the railroad commission (2 Comp. Laws 1915, § 8365), the statute has pointed out the way by which they may secure the consent of the railroad commission. We cannot assume that after the plaintiff city has determined the necessity of the change in aid of a public improvement, the railroad commission is going to withhold its consent. Of course, it may do so upon an investigation of the whole matter, but if it should, a showing to that effect by the defendants would undoubtedly relieve them from the effects of a contempt proceeding for not doing it. It cannot be said that it is an order that the defendants cannot comply with. They can move the track without objection except at the point of contact. At that point they may apply for permission to the railroad commission, with at least a fair prospect that the application will be granted. Therefore, it does not appear to be an impossible act, nor is it clear that the issuance of the writ will be unavailing.
People, ex rel. Green, v. Railroad Co., 58 N. Y. 152, is helpful upon this branch of the case. A mandamus was asked to compel the railroad company to restore a public highway. The railroad company answered that it could not restore it without condemning land and that the outcome of condemnation proceedings was so uncertain that the writ ought not to issue. The specific objections thereto being that:
“A mandamus will not command that which is impossible ; neither will it issue to compel one to do an act which he has not within himself the power to do.” .
In overruling these objections the court said-in part:
“The third point made by the appellant is, that a mandamus will not command that which is impossible. It is claimed that to obey the command of the peremptory writ, in this case, the appellant must acquire by compulsory measures additional land to that now owned by it; and that it cannot now take such measures, for that it has no statutory power so to do. It is true that the court will not, by its writ of mandamus, command a defendant to perform an impossibility. And it is so, that there must be express sanction and clear authority of law before a railroad company can condemn land for its purposes. Rensselaer, etc., R. Co. v. Davis, 43 N. Y. 137. But there is not in this case the difficulty which the appellant fears. * * * The statute cited gives- ample power to take compulsorily the land thus required. * * * It follows that it is possible to acquire the additional land, and that the writ does- not command an impossibility nor an unlawful act.
“The next point made by the appellant grows out of the last. It is, that a mandamus will never issue to compel one to do an act which he has not within himself the power to do. This proposition, applied to this case, is, that the appellant will not be. compelled to restore the highway at a certain point, if lands must be acquired therefor by proceedings under the statute. But this writ has, not seldom, been sent to quasi public corporations directing them to action, which required similar proceedings on their part. Reg. v. Railway Co., 2 Ad. & El. (N. S.) 47. In that case, it was held that though the time in which compulsory proceedings might be taken had expired, that fact presented no reason why a mandamus should not go. A fortiori, may it go if the power to take such proceedings exists. The first position was questioned in Reg. v. Railway Co., 10 Ad. & El. 531-557. The latter position was not.
“To the argument of the appellant, that in proceedings to take lands compulsorily it might be defeated, it is to be answered: that if that result was upon the merits and not from its own default or miscarriage, it would be a good answer for it, if proceeded against as in contempt for not obeying the writ. The same court which adjudged that it should not take the land would not punish it for not taking it when permission to take could not be had.”
Defendants’ second contention is that, independent of the objection just considered, the city has no power to impose the burden upon them of moving the track. The principal reasons assigned are: (a) That to construct the track in the middle of the street is to construct it immediately over the sewer which, when being repaired, will interfere with the operation of its cars; (b) That the track was constructed nearly 22 years ago and the city made no objection to its location; (a) That it made no objection to its re-construction a few years ago, and (d) That while the reservation of power in the franchise gives the city certain right of control and regulation, that control and regulation does not include the power to compel them to move their track at an estimated expense of $3,500.
The reservations in the franchise under which defendants are operating are relied on as well as the statutory provision (which is made a part thereof by reference), to establish the city’s authority to make the order in question. The reservations referred to cil'S I
“And the said street railway shall be constructed and laid on such parts of the streets hereinbefore designated as the common council of said city shall direct, * * * and the rails shall conform to the grade of the street on which the track is laid as now fixed or may hereafter be established by the city.”
“The common council hereby reserves the right to make such further regulations as may from time to time be deemed necessary to protect the interest and safety and welfare and accommodation of the public in relation to said railway, not inconsistent with the provisions of this ordinance.”
“Said railway company shall at all times be subject to any ordinance that shall be passed' by the common council of the city of Owosso, and shall at all times be subject to the laws of the State of Michigan governing railway companies.”
The statutory provision provides that:
“The common council or other corporate authorities of the city or village, in which any street railway shall be located, may, from time to time, by ordinance or otherwise, establish and prescribe such rules and regulations in regard to such railway as may be required for the grading, paving and repairing the street, and the construction of sewers, drains, reservoirs and crossings, and the laying of gas and water pipes, upon, in and along the streets traversed by such road, and to obstructions thereon.” 2 Comp. Laws 1915, § 8550.
We entertain no doubt that these reservations in the franchise are sufficient to establish the authority of the city to make the order in question. City of Detroit v. Railway Co., 90 Mich. 646; City of Kalamazoo v. Traction Co., 126 Mich. 525; City of Lansing v. Railway Co., 109 Mich. 123; 2 Elliott on Roads & Streets (3d Ed.), § 958.
It is said by Elliott in hisuwork on Roads and Streets, supra, that:
“It has also beeii held that street railway companies take the privilege granted to them subject to the municipal authority to regulate the use of the streets as the necessities of the public may require, and that this authority extends so far as to vest in the municipality a right to change the track of the railway from one part of the street to another.”
The considerations of drainage, public safety and convenience alleged in the order and shown by the proofs justify the conclusion of the trial court that it is a reasonable order. The record shows that the 1,800 feet is part of a much traveled street and highway ; that defendants’ track from the business portion of Owosso to Corunna is all in the middle of the street save the strip in question. Travelers leaving Owosso going in an easterly direction are obliged to cross the track twice, which would be unnecessary if the track were located in the middle of the street. The proposed change of location of the track presents no such engineering difficulties nor expense as to make the order unreasonable.
The order of the trial court is affirmed.
Ostrander, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Brooke, J.
(after stating the facts). It is the contention of appellant that under the uniform law relative to the sale of goods, chapter 228, 3 Comp. Laws 1915, there was in the case at bar a completed sale and the court was in error in submitting that question to the jury. Under the testimony above quoted we are of opinion'that the court properly submitted this question. It is, we think, apparent that the minds of the parties never fully met as to what should be required of the plaintiffs with reference to the papers showing breeding and transfers of title of the two stallions named. If this question was properly submitted and properly decided by the jury there remains but one matter for determination and that is whether the plaintiffs are debarred from prosecuting their action because of the provisions of Act No. 164, Pub. Acts 1913 (3 Comp. Laws 1915, § 6354 et seq.). We do not overlook the contention of the appellants with reference to the alleged errors of the court in his instructions to the jury upon the question of rescission. Under the finding of the jury that no completed sale had been made it follows that there was no contract to rescind, and that when the demand was made for the return of the horses to the plaintiffs, defendants were holding them, not under any title acquired by the antecedent negotiations of a sale, but simply pending those negotiations.
Under the liberal provisions of our statute which permits amendments even in this court, in the interests of justice, we have no doubt that the court below was not in error in .regarding the action as one in tort rather than in assumpsit.
Coming, then, to the provisions of the statute, can it be said that the members of a copartnership who have failed to comply with the law in filing a certificate in writing with the county clerk containing the required information as to the details of the copartnership, are prevented from using the courts of the State for the purpose of redressing a wrong? We think not. It would, we think, hardly be claimed that had defendants stolen the 13 horses from a barn of the plaintiffs, the plaintiffs, even though they, had not filed the certificate required by law, could not have maintained an action in replevin or for a wrongful conversion of the animals. We are not unmindful of the fact that we have held (Maurer v. Greening Nursery Co., 199 Mich. 522) that the members of a co-partnership who have not complied with the act cannot prosecute an action under a contract. We do not think, however, that the effect of this statute should be extended, it being in plain derogation of common law rights.
Judgment is affirmed.
Bird, Moore, Steere, Fellows, and Stone, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit. | [
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Brooke, J.
Plaintiff recovered a judgment of $2,-000 against the defendants as damages growing out of an alleged illegal sale of liquor to one Lancour. In her declaration it is averred that the defendant Nelson sold intoxicating liquor to said Lancour after he was intoxicated, and that said liquor so unlawfully sold caused and contributed to the intoxication of said Lancour, who, while so intoxicated, made an assault upon one James O’Brien, a son of the plaintiff, which resulted in the death of said O’Brien. There are some 31 assignments of error which it will not be necessary to consider seriatim. At the close of the plaintiff’s case, and again when the testimony was closed, defendant’s counsel moved for a directed verdict upon the ground that no evidence had been introduced tending to prove that Lancour was intoxicated at the time the assault was made, or that defendant Nelson had sold him intoxicating liquors after he was intoxicated, in contravention of the statute.
We have read this record with care and have no hesitation in saying that this motion should have been granted upon the evidence as it stood at the close of the plaintiffs case. No witness for the plaintiff swore that Lancour was intoxicated at any time on the day in question, and no witness testified that any sale of intoxicating liquors was made by defendant Nelson or his agent to Lancour after he was intoxicated. There is evidence introduced on behalf of plaintiff that during the day in question Lancour was seen to drink one or two glasses of beer. It is asserted by counsel for plaintiff that the witness Merrill testified that Lancour drank enough in the afternoon to become intoxicated. Merrill testified:
“I couldn’t say just how much he did drink. He had a glass of beer occasionally, but I didn’t see that he was a drinking man. I know he wasn’t. * *
I saw him take some drinks.”
On cross-examination he said:
“I seen him take one or two glasses of beer that I can recollect, and further than that I have no recollection. * * * During the time I knew Lancour I had never seen him under the influence of liquor.”
The witness Sheppi testified that he had a few drinks; that they were all drinking together, Lancour with the rest. The witness Davis testified that he saw Lancour take one glass of beer. The witness Smith testified that he could not say that Lancour took a drink; could not swear to that. On cross-examination he testified that he had never seen Lancour drunk and had never seen him take more than one or two glasses of beer, and that at no time during the day did Lan cour show any evidence of being drunk. The witness Davis, being recalled, testified that he saw no evidence of intoxication in Lancour. This is all the evidence contained in the record, either as to the intoxication of Lancour or as to the fact that intoxicating liquor was sold to him by defendant Nelson or his agent, after such intoxication.
We are of opinion that under this testimony it was improper for the court to submit the controlling questions to the jury.
The judgment is reversed, with costs, and a new trial ordered.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Brooke, J.
(after stating the facts). The first proposition presented by plaintiff, appellant, is that the court erred in holding that under the plea fraud was charged. We think plaintiff is foreclosed upon this question. Counsel for plaintiff objected to the introduction of evidence on the question upon the ground that the prior dealings leading up to the con tract were merged in the contract itself, whereupon the following occurred:
“The Court: I understand fraud is charged.
“Mr. Walsh (counsel for defendant): Certainly.
“The Court: We will receive it.”
It will be noted that no claim was made at that time that the plea was insufficient to support evidence of fraud in the making of the contract. During the examination of the defendant, counsel for plaintiff objected to certain testimony stating:
“This is an action for fraud against us on account of this being a counterclaim, and value is not a basis for an action of fraud.”
At the close of the evidence a motion was made by plaintiff’s counsel to strike out the testimony, in which it is asserted:
“The defendant has pleaded fraud, to a certain extent, in the making of the contract, under the holding of your honor in overruling the motion, but he has failed in his proofs to sustain such plea as against plaintiff.”
In his request to charge counsel asked no direction upon the ground that fraud was not charged, but did make a request for a direction upon the ground that there was no evidence of fraud introduced. Under these circumstances the trial court having proceeded upon the assumption that fraud was properly charged in the plea, and counsel for plaintiff having raised no objection to the pleading, the same will in this court be held sufficient. A further claim of plaintiff was made both by motion for a direction of a verdict and also set forth in his request to charge that there was no evidence introduced tending to show fraud sufficient to vitiate the contract. Upon a review of the whole record we are unable to say that the court erred in submitting the question of fraud to the jury. J. B. Millet Co. v. Andrews, 175 Mich. 350. Despite the condition, contained in the order to the effect that the “order slip together with said certificates constitute the complete contract, no other agreement being recognized,” we are of opinion that the contemporaneous agreement signed by Kramer permitting the defendant to cancel the order under certain conditions, paying for what he had already used, should be construed as a part of the contract. Kramer’s name appears in the order itself and is the only one representing plaintiff known to the defendant. Plaintiff in his deposition denied that he had ever authorized Kramer to make such an agreement; nevertheless when the defendant wrote to plaintiff, within 20 days after the execution of the original order, calling his attention to his rights under Kramer’s agreement, the plaintiff did not in any way repudiate said agreement as being beyond the scope of the authority of his agent. Counsel for plaintiff asserts that neither in his. correspondence nor his evidence does defendant claim to cancel the contract by reason of the fact that the proposition had become unprofitable. While defendant was unable to give the exact-sum per gallon for which he sold the whisky received by him, he did testify that he sold it around $2 per gallon. Inasmuch as the government tax was $1.10 per gallon, and the purchase price was from 90 cents to $1 per gallon, it is entirely clear that no profit could have been realized from the sale.
It is further claimed by counsel for appellant that defendant, by ordering out of bond two barrels of whisky in the month of February, after he had received and tested the first two barrels, affirmed the contract and he was therefore estopped from repudiating it thereafter. Defendant’s explanation of his act in this regard was:
“I wanted to bring the lawsuit here instead of having to go to New York city to try it.”
The court submitted this question to the jury, instructing them that if they found that the second two barrels ordered in February were so ordered as a continuation of the deal, under the original order, that such action would constitute an affirmance of the original order and work an estoppel against defendant, but further:
“If, on the other hand, this order was but an attempt on Taylor’s part to regain the amount of money that he claimed was fraudulently obtained from him in excess of the price of the goods and expenses of the barrels of whisky that he received, and you so find from the proofs, then you are warranted in finding that the second order does not operate as an estoppel.”
The judgment in this case recovered by defendant represents the amount of money paid by him to plaintiff in excess of the value of the two barrels of whisky delivered by the plaintiff to him under the contract. Plaintiff has been paid for the goods he has delivered and has in his possession the balance of the order as well as the sum representing the judgment over and above the value of the goods delivered.
There has been no miscarriage of justice in this case, and the judgment is affirmed.
Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred with Brooke, J.
Ostrander, C. J.
In my opinion a buyer cannot, for an alleged ulterior purpose, order goods on his contract and then repudiate it. | [
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Kuhn, J.
(after stating the facts). It is the contention of plaintiff’s counsel, and the trial judge also so determined, that there are really but two questions to be decided in this case, which are questions of fact, viz., first, Was the contract made as claimed by the plaintiff? and second, Was there a substantial per-r formance of this contract or agreement on the part of the plaintiff? It is the contention of counsel for the defendant that, while the proofs unquestionably show a purpose and intent on the part of Philamon K. that the plaintiff should have the right of an heir in his property and that it should go. to the plaintiff at his death, and that such intention had existed from the time of the attempted adoption of plaintiff by the Bromelings in 1873 down to the time of creating the estate by the entirety, yet that there is not sufficient proof of a specific contract and agreement as would be legally enforceable. This is urged for the reasons, first, that there was in fact no actual contract, but that it was a mere family intent and expectation, and secondly, that if there was such a contract, it was not made during the interval between the death of the first wife of Philamon K. Bromeling and his marriage to the second wife, and would therefore be void as to the 40 acres in question, for the reason that it was the homestead of the Bromelings, and, being a homestead, a verbal agreement to convey it would be void. It is also contended that the proofs do not show such performance on the part of plaintiff as would take the case out of the statute of frauds, and that the enforcement of the alleged agreement would be unfair, inequitable, and unjust. The trial judge, who had the benefit of seeing and hearing the witnesses, after a careful review of the facts, sustained the plaintiff’s contention as to the existence of the special contract. Upon a review of this record we are of the opinion that the evidence is ample to sustain the finding that it was made at the time and in the manner claimed by the plaintiff. It would not. be profitable to attempt to review all of the testimony, but it will be sufficient to call attention to certain pertinent facts. In the fall of 1898 the Bromeling farm of 110 acres, including plaintiff’s 50 acres, was rented to Mr. Fred Hall. Shortly after Mr. Hall took possession of the farm, Philamon K. moved out of the house on his 40 acres and Mr. Hall moved in. Philamon K. then took up his residence with the plaintiff at Eaton Rapids. Hall remained upon and worked the farm until some time in June, 1899, and until the marriage of Philamon K. to the defendant, Mary A., when he sold all of his interest to Philamon K. and moved off of the farm and Philamon K. moved into the house that had been vacated and continued to keep possession of the whole 110 acres from then until his death; his own 60 acres as well as plaintiff’s 50 acres which he had before leased to Hall. Mr. Hall testified that when Philamon K. was living at Eaton Rapids, he frequently came to the farm, and that he had several conversations with him in which he said that if anything happened to him, he (Hall) should go right on with Mert (plaintiff) *as Mert took all the property when he (Philamon K.) was through with it. The record shows that these conversations occurred before the marriage with the defendant, Mary, took place. The testimony of George C. Morgan-also proved conversations had with the deceased, which showed that Philamon K. Bromeling had voluntarily told him of an agreement existing between himself and the plaintiff relative to the use he was having of the lands of the plaintiff and what the plaintiff was to have in consideration of such use. As to the existence of this contract, the trial judge found specifically as follows, which in our opinion is justified by the record:
*T am, however, without doubt from the proof in, the case, that a contract such as is claimed by the complainant was made, and that it was carried out by the complainant. The fact that Philamon K. has had the use of this land for so many years, without payment of rent, used it as his own, built the fences as he did, and treated the entire one hundred ten acres as a farm by itself, his statements on many occasions, that it was to be Merton’s after he was through with it, the fact that he made no accounting to complainant for its use, and complainant required none, the fact that he made a will giving to defendant her legal rights as his widow and disposed of the remainder in consonance with the terms of this claimed contract, and that the conveyance and disposition of the land in controversy so many years, is in my judgment strong evidence that he recognized and in a way acknowledged the contract which it is claimed was entered into.”
The contract relied upon and proven by the plaintiff is not an executory contract, but rather one that has been substantially executed and performed on the part of the plaintiff. In the case of Ruch v. Ruch, 159 Mich. 231, 235, this court said with reference to this class of contracts:
“Contracts for the conveyance of land, though resting entirely in parol, have been repeatedly held by this court and others not to be within the statute of frauds where one party has executed the parol contract in whole or in part.”
The contract having been substantially performed on the part of the plaintiff, under the authority of Ruch v. Ruch, supra, and kindred cases, the statute of frauds has no application. A reading of this record has not satisfied us. that the result reached by the court below is unjust or inequitable, and the decree is therefore affirmed, with costs to the plaintiff.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. | [
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MOORE, J.
This case involves a crossing accident which occurred within the limits of the city of Mt. Pleasant, in which the plaintiff, Helen A. Block, was injured. Broadway is a street in the city of Mt. Pleasant which crosses the main track of the Ann Arbor railroad at right angles. The street runs straight east and west and the railroad track runs north and south. North of their intersection and on the east side of the track are located the defendant’s station platforms and station buildings. The platform borders the track on the east and extends northwards from the north side of Broadway.
The plaintiff was 10 years old at the time of the accident. She is the daughter of Henry C. Block, a farmer living some miles west of Mt. Pleasant. She and other young people visited Mt. Pleasant to attend graduating exercises in which her brother took part. After the exercises were over, the young people got into a farm wagon to go home. Edward Block, the driver, was 15 years of age, and was occupying the front seat with his brother, William Block, aged 8 years. Edna Block, aged 15 years, a cousin, and Emma Zier, aged 15 years, a neighbor’s child, were in the middle seat. Evelyn Block, aged 12 years, Helen. A. Block, aged 10 years, and Bessie Block, aged 7 years, were occupying the rear seat. Evelyn Block and Bessie Block were killed in this accident. Helen Block, the plaintiff, received severe injuries. It is for those injuries this suit is brought. From a verdict and judgment of $2,000 in favor of the plaintiff the case is brought here by writ of error.
Very early in the trial the following occurred:
“The Court: Do you agree with counsel for the plaintiff that the question of contributory negligence on the part of the plaintiff is not in this case?
“Mr. Ohlinger: I think we will admit that the negligence of the driver is not imputed to the plaintiff.’.’
Broadway is perhaps the principal street in Mt. Pleasant. The testimony shows that as the team approached the railway crossing there were many automobiles parked at the curb of the street and to within 10 or 15 feet of the right of way. There were also many people on the street and especially at the station and station platforms. The driver had several years’ experience as a driver. His testimony was, in substance, that, as he approached the railway crossing, the horses were on a slow trot, but as they got near the crossing they began to prance, but when doing so were under control and were not going as fast as when trotting. His testimony is that, as he approached the crossing, he looked both ways and listened, but saw no car and heard no bell or whistle until the horses were on the track, when the whistle blew, the car then being, as he found by a subsequent measurement,' 55 feet away. His claim is the car was coming so rapidly that it struck the wagon just forward of the hub of the rear wheel, with the result before stated.
The motorman’s version of what happened is as follows:
“If there were teams north of the automobiles I did not see them. I didn’t have time to do much of anything only stop. The horses of this Block team were 15 or 16 feet from the track when I first saw them. They were running pretty fast. The driver seemed to pull and seemed to steady them a little bit, but they didn’t stop. They kept right on. I don’t know how fast they were going. I know how fast my motor was going, but I just saw the team and when I saw them I had to take my eyes off and do something else and I could tell nothing about how fast they were going. I think we were going about eight miles an hour when I first saw them. I was then about 40 feet from the point where the team crossed the tracks and I put on my emergency brake. I slowed up and I think I.was going about two or three miles an hour when I hit the wagon. We were going eight miles an hour when I put on the brake and then probably six and when I hit the wagon we were going about three miles an hour. Taking all the circumstances into consideration as they existed there that day, I know that the car could not be stopped any quicker than it was then.”
At the conclusion of the testimony for the plaintiff, and at the conclusion of all the testimony, requests for a directed verdict for the defendant were made and overruled. A motion for a new trial was made and refused. .
There are many assignments of error but in view of the concession of counsel to which we have called attention, the only one calling for discussion relates to whether the judge should have directed a verdict for defendant.
We quote from the brief:
“These motions were based briefly on the following grounds: That no negligence had been shown on the part of the defendant; that the speed of the motor car, even granting that it was as high as 30 miles an hour, as claimed by one of plaintiff’s witnesses, was not negligent in view of the circumstances, and the opportunity which a traveler on Broadway had of seeing an approaching car; that the speed of the car was not the proximate cause of the accident; that the sole proximate cause of the accident was the negligence of Edward Block the driver; that the plaintiff was herself guilty of contributory negligence; that this case comes within the rule laid down by the Supreme Court in the Apsey Case.” (Apsey v. Railroad Co., 83 Mich. 432).
We have already called attention to the concession of counsel. The testimony was very conflicting. That offered by plaintiff tended to show the motor car approached Broadway at a high rate of speed. One witness testified:
“When I first saw it the motor car was just coming up on the race bridge. I observed it from that point until it got to the center of Broadway and I saw the accident occur. I should say the motor car was going 20 miles an hour.”
Cross-examination:
“The car didn’t slacken up within inside of 40 feet of wagon, or to amount to anything until it struck the wagon.”
Other witnesses estimated the speed of the car at 25 or 30 miles an hour.
There was testimony on the part of the defendant that the motor car was just drifting when it approached Broadway.
The charge was very long, presumably because of the many requests to charge. The. court told the jury:
“In this case, as I see it, gentlemen, there is but one question for you to decide, and that is, Was the car being run at a reckless and unlawful rate of speed coming down toward the crossing in question and at the time in question, having in mind and considering all the facts and circumstances surrounding the movements of this car at the time and just prior to the time plaintiff drove upon the railroad track?
“A car cannot be operated — neither can a train be operated on any schedule time such as is demanded of business and be run so slowly that it can be stopped at any time when some person may thoughtlessly step upon the track in front of a train or car. And the question here for you is, first, without consideration of this accident, to determine from the testimony in the case whether or not this motorman in coming down toward this crossing was running that car in and of itself, under all the circumstances there, in a reckless and imprudent manner, having in mind the obligations and duties that are imposed upon people to protect themselves from injury such as an ordinarily prudent and careful person will do. Also having in mind that, other things being equal, the railroad car, or train, has a right to proceed along the track upon which it is running without interruption, unless there is something upon the track to show that there is danger impending, or unless there is something so near to the track to lead the engineer or motorman, to believe that danger was to be precipitated at any particular point.”
We think there were questions of fact involved which were properly submitted to the jury. See Huggett v. Erb, 182 Mich., at p. 536.
Judgment is affirmed, with costs.
Bird, Steere, Fellows, Stone, and Kuhn, JJ., concurred with Moore, J.
Ostrander, C. J.
I think there is no evidence of defendant’s negligence and that the judgment should be reversed.
Brooke, J., concurred with Ostrander, C. J. | [
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Moore, J.
Dayton W. Closser recovered judgment in ejectment against relator August 2, 1913. The judgment was affirmed in this court October 2, 1914. Closser v. McBride, 182 Mich. 594. On May 1, 1917, relator applied for a new trial on payment of costs which motion the court denied. This proceeding is brought to set aside the order denying relator’s motion for a new trial, and to have an order entered granting the motion.
We quote from relator’s brief:
“The statute, 3 Comp. Laws, § 10981, provides for a new trial in ejectment as a matter of right within three years after judgment. See Clareview Park Improvement Co. v. Wayne Circuit Judge, 172 Mich. 172.
“The three years begin to run from the date of affirmance in the Supreme Court. Boyce v. Osceola Circuit Judge, 79 Mich. 154.
“Under the old law there could be no question of relator’s right to a new trial. The judicature act took effect January 1, 1916, and before the expiration of the three years given relator under the old law for a new trial. The judicature act took effect also before the application for a new trial was. made.”
The circuit judge thought it governed this case.
Relator contends:
“1. That the judicature act is prospective in its application and does not affect relator’s right.
“2. That by express provisions of the judicature act relator’s rights are governed by the law in force at the time his right accrued,” citing Harrison v. Metz, 17 Mich. 377; Ludwig v. Stewart, 32 Mich. 27; McKisson v. Davenport, 83 Mich. 211; Stambaugh v. Snoblin, 32 Mich. 296; Hathaway v. Milling Co., 139 Mich. 708; McKenzie v. A. P. Cook Co., 113 Mich. 452.
Defendant claims that the right as a matter of course to a second trial in. ejectment was repealed by the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 13197), section 30, chapter 29 of which reads:
“Except as hereinafter provided, new trials may be granted in ejectment cases for the same reasons, and in the same manner as in personal actions; but no new trial shall be granted as a matter of course.”
We quote from the brief:
“Statutes which relate only to the remedy, without creating, enlarging or destroying the right, operate on existing causes of action. Judd v. Judd, 125 Mich. 228; Lohrstorfer v. Lohrstorfer, 140 Mich. 551; Gibson v. Hibbard, 13 Mich. 214; C. H. Little Co. v. L. L. Hazen Co., 185 Mich. 316; Beebe v. Birkett, 108 Mich. 234; State Savings Bank of Detroit v. Matthews, 123 Mich. 56.”
An examination of each of these cases, will show them distinguishable from the instant case.
Much reliance is placed on the last case cited. It may be well to quote from it:
“If we compare the law as amended with it as it was before the amendment occurred, we will find it does not change the time of possession either of the mortgagor or of the mortgagee. It changes the form of the decree. It shortens the time after the suit is brought when sale may be made, but it adds a period of redemption after the sale which did not exist before. We do not think it can be said that there is any such material change in the relation of the mortgagor to the mortgagee, or to the rights of each, as to amount to an impairment of the obligation of contracts.”
Clearly this is a different case than the one before us. Immediately before the time the judicature act took effect plaintiff was entitled as of course to a new trial upon the payment of costs. If he had a meritorious case this was a valuable right which we think is saved by section 9, chapter 9, of the judicature act (3 Comp. Laws 1915, § 12319), which reads:
“All actions and rights shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions or rights of entry.”
The circuit judge should have granted relator’s motion for a new trial. The writ of mandamus will issue as prayed, with costs to relator.
Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Connor, J.
Respondent, the Commissioner of Insurance, appeals as of right from an Ingham Circuit Court order of July 2, 1990, remanding this matter for an evidentiary hearing and vacating the commissioner’s order of December 11, 1989, disapproving petitioner’s proposed insurance appli cation form. Petitioner filed a cross appeal. We reverse the order of the circuit court and reinstate the decision of the Commissioner of Insurance.
i
All issues presented by the parties on appeal concern whether, on the facts of this case, petitioner’s proposed insurance form violated the provisions of the Insurance Code, MCL 500.100 et seq.; MSA 24.1100 et seq., prohibiting unfair trade practices. The Uniform Trade Practices Act, MCL 500.2001 et seq.; MSA 24.12001 et seq., a part of the Insurance Code, has as its purpose the regulation of the insurance industry, MCL 500.2002; MSA 24.12002. In general, unfair trade practices, as defined in the Uniform Trade Practices Act, are prohibited. MCL 500.2003(1); MSA 24.12003(1).
Petitioner’s proposed insurance form was rejected by the Insurance Bureau’s staff because it represented an unfair trade practice in violation of MCL 500.2027; MSA 24.12027. That statute provides in pertinent part as follows:
Unfair methods of competition and unfair or deceptive acts or practices in the business of insurance include:
(b) Refusing to insure or refusing to continue to insure an individual or risk solely because the insured or applicant was previously denied insurance coverage by an insurer.
Petitioner’s proposed application for short-term major medical health insurance, form 600 A (9/ 89), provided in part as follows:
QUESTIONS APPLY TO EACH PERSON PROPOSED FOR INSURANCE.
If Any of the Following Questions Are Answered yes, Such Person is Ineligible for This Policy.
[3.] F. Have you ever been declined for life or health insurance? If yes, who:_
I have read this application and represent that the information shown on it is true and complete, to the best of my knowledge and belief. I understand and agree:
3. Each person named in question 3A, B, C, D, E, or F is excluded from coverage under this policy.
In a letter ruling sent July 10, 1989, petitioner was notified that, on the basis of MCL 500.2027(b); MSA 24.12027(b), its form was disapproved. On August 9, 1989, petitioner requested a contested case hearing pursuant to MCL 500.2236(4); MSA 24.12236(4), contending the disapproval of the form was improper. By a notice of hearing dated September 5, 1989, a contested case hearing was set for October 30, 1989, before a hearing referee.
On October 2, 1989, the Insurance Bureau’s staff filed a motion, for a summary decision pursuant to an administrative rule adopted with regard to hearing procedures, 1983 A ACS, R 500.2111. Consequently, instead of conducting a contested case hearing on October 30, 1989, the hearing referee scheduled that date for arguments on the motion. Following arguments, the motion was denied. The hearing referee determined that this case should continue to proceed to a contested case hearing as petitioner requested.
The bureau’s staff appealed that decision di rectly to the Commissioner of Insurance, pursuant to 1983 AACS, R 500.2127(4), requesting the commissioner to both reverse the hearing referee’s decision and stay the contested case proceedings. In his decision of December 11, 1989, the commissioner declined to grant additional oral argument on the bases that it was not required and that the parties had had ample opportunity to argue before the hearing referee. The commissioner reversed the hearing referee’s decision and found that a summary decision should have been granted because petitioner’s proposed form was properly disapproved by the Insurance Bureau’s staff.
An appeal was filed in the Ingham Circuit Court, and the court vacated the commissioner’s order of December 11, 1989, and remanded the case for a complete evidentiary hearing regarding petitioner’s proposed form pursuant to the rules for contested case hearings.
ii
On appeal to this Court, the commissioner’s decision can be reversed only if that decision
(a) violated the constitution or a statute; (b) exceeded the commissioner’s authority or jurisdiction; (c) was made upon unlawful procedure resulting in material prejudice to a party; (d) was not supported by competent, material or substantial evidence; (e) was arbitrary, capricious, or an abuse of discretion; or (f) was affected by any other substantial or material error of law. MCL 24.306; MSA 3.560(206). [Auto Club Ins Ass’n v Comm’r of Ins, 144 Mich App 525, 531; 376 NW2d 150 (1985).]
This same standard of review applied to the circuit court’s review of the commissioner’s decision. Id.
hi
The commissioner first argues on appeal that his decision should not have been reversed by the circuit court either on procedural grounds or on the merits. In its cross appeal, petitioner contends that it should have had its form approved by the circuit court as a matter of law.
The Legislature has granted the Commissioner of Insurance the power to approve insurance forms before they are used. MCL 500.2236; MSA 24.12236, in relevant part, confers this power onto the commissioner:
(1) No basic insurance policy form or annuity contract form shall be issued or delivered to any person in this state, and no application form where a written application is required and is to be made a part of such policy or contract. . . shall be issued or delivered to any person in this state, until a copy of the form thereof is filed with the department of insurance and approved by the commissioner as conforming with the requirements of this code and not inconsistent with the law. Failure of the commissioner to act within 30 days after submittal shall constitute approval. . . .
(3) Upon written notice to the insurer, the commissioner may disapprove, withdraw approval or prohibit the issuance, advertising or delivery of any form to any person in this state if it violates any provisions of this code, or contains inconsistent, ambiguous or misleading clauses, or contains exceptions and conditions that unreasonably or deceptively affect the risk purported to be assumed in the general coverage of the policy. The notice shall specify the objectionable provisions or conditions and state the reasons for the commissioner’s decision. If the form is legally in use by the insurer in this state, the notice shall give the effective date of the commissioner’s disapproval, which shall not be less than 30 days subsequent to the mailing or delivery of such notice to the insurer. If the form is not legally in use, then disapproval shall be effective forthwith. [Emphasis added.]
This statute provides the standards to be used by the commissioner in disapproving insurance forms. Underhill v Safeco Ins Co, 407 Mich 175, 193-194; 284 NW2d 463 (1979). Form approval is required to protect the public from clauses that mislead, deceive, or unreasonably deny coverage. Progressive Mutual Ins Co v Taylor, 35 Mich App 633, 642; 193 NW2d 54 (1971). Using the rules of statutory construction, we also interpret insurance laws liberally for the benefit of policyholders, creditors, and the general public. Allen v Michigan Property & Casualty Guaranty Ass’n, 129 Mich App 271, 274; 341 NW2d 500 (1983). Consequently, MCL 500.2236; MSA 24.12236 should be interpreted in light of the purpose of protecting the general public from misleading or inaccurate insurance forms before they are put into use.
After reviewing the arguments of both sides as well as the previous tribunals’ decisions, we are of the opinion that the commissioner reached a correct result on the merits. We also find, as discussed in section iv, infra, this case was properly resolved under summary decision rules.
The commissioner found that petitioner’s form violated MCL 500.2027(b); MSA 24.12027(b) because of the provision that excluded an applicant from coverage under petitioner’s policy for short-term health insurance if the applicant answered question 3F affirmatively, admitting the applicant had been previously denied insurance coverage. We believe this clearly was an unfair trade practice in violation of MCL 500.2027(b); MSA 24.12027(b), which prohibits an insurer from refusing to insure an individual solely because the individual previously has been denied insurance coverage.
Petitioner contended that its form did not violate MCL 500.2027(b); MSA 24.12027(b) because petitioner really did not do in practice what its form stated would occur, i.e., flatly deny insurance coverage to anyone who had previously been denied insurance without regard to the validity of that denial. In reality, petitioner would merely require an applicant who answered question 3F affirmatively to complete a more detailed form and go through an underwriting process to determine the risk that individual posed for purposes of health insurance coverage. An applicant who could not qualify for petitioner’s short-term health insurance policy but subsequently was determined to be an acceptable risk would be offered comparable coverage. On the basis of this argument, petitioner has maintained that there were questions of fact involved in this case that precluded a summary decision.
While we agree with petitioner that there certainly are questions of fact concerning its actual procedures, we believe those procedures are both irrelevant and immaterial to the determination whether its application form should be approved. The Insurance Bureau’s administrative rule, 1983 AACS, R 500.2111(c), requires that a summary decision be granted if there is no genuine issue regarding any material fact. What petitioner and its agents or employees may do in practice has no bearing upon whether its insurance application form contravenes the law. The commissioner would be derelict in his duties if he approved an insurance form that could be utilized to promulgate unfair trade practices merely because the insurer had not yet utilized the form for the improper purpose. In this case, the form on its face flatly and unambiguously states that an applicant cannot obtain short-term health insurance from petitioner if previously denied health or life insurance, without regard to the reason for the previous denial. We are satisfied that this form could be utilized to deceive or mislead consumers who apply for insurance. The policy behind prior form approval is to avoid such a possibility. No actual violations need be established, it is sufficient that the form is not an accurate statement of an applicant’s legal right not to be refused insurance solely because he was previously denied insurance coverage. We believe the commissioner’s interpretation and application of MCL 500.2027(b); MSA 24.12027(b) was appropriate and effectuated the Legislature’s intent in regulating the insurance industry. See, e.g., Michigan Life Ins Co v Comm’r of Ins, 120 Mich App 552, 558-559; 328 NW2d 82 (1982).
IV
As alluded to in section in, supra, we believe that, as a procedural question, this case was properly resolved by summary decision.
Among the powers granted to the commissioner by the Legislature is the authority to adopt rules and regulations as the commissioner may deem necessary to effectuate the purposes of the insurance laws of this state. MCL 500.210; MSA 24.1210. Such rules and regulations must be promulgated as provided by the Administrative Proce dures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. MCL 500.210; MSA 24.1210.
The rules the commissioner has previously promulgated are contained in 1979 AC, R 500.401 et seq. More recently, the commissioner has adopted rules for summary decisions in administrative hearings before the Insurance Bureau, 1983 AACS, R 500.2111:
Rule 11. A party may move for a summary decision in the party’s favor upon any 1 of the following grounds:
(c) There is no genuine issue as to any material fact and the moving party is therefore entitled to a decision in that party’s favor as a matter of law.
This rule is to be interpreted to secure a just, speedy, efficient, and fair determination of the issues, but consistent with the parties’ rights and due process. 1983 AACS, R 500.2102.
Rule 11 was apparently modeled after the general court rule regarding summary disposition, MCR 2.116. Consequently, we believe prior interpretations and applications of the general court rules can be referred to for guidance in deciding if this case and others are ripe for summary decision under Rule 11.
In order to be entitled to summary disposition, the moving party must establish that there is no genuine issue of material fact, and it is entitled to judgment as a matter of law. Lepp v Cheboygan Area Schools, 190 Mich App 726, 730; 476 NW2d 506 (1991). The nonmoving party must produce an affidavit or other documentary evidence to establish there is a genuine issue of material fact. Star Steel Supply Co v United States Fidelity & Guaranty Co, 186 Mich App 475, 480; 465 NW2d 17 (1990); MCR 2.116(G)(4). As we discussed in section in, supra, petitioner failed to establish that there was a genuine issue of material fact in this case in order to avoid summary decision under Rule 11. The commissioner found, as a matter of law, that petitioner’s insurance form was an unfair trade practice that violated the Insurance Code. The affidavit produced by petitioner regarding its procedures failed to allege any genuine issue of material fact that related to petitioner’s form, even after construing this evidence in a light most favorable to petitioner. Lepp, supra, p 730.
Petitioner also argues that under MCL 24.272(3); MSA 3.560(172)(3) it was entitled to both an evidentiary hearing and discovery despite the rules for summary decision. That subsection provides:
The parties shall be given an opportunity to present oral and written arguments on issues of law and policy and an opportunity to present evidence and argument on issues of fact.
Petitioner would have us interpret this subsection to mean that an evidentiary hearing and complete discovery are not only available but mandatory in every case.
If we were to adopt petitioner’s interpretation, the summary decision procedural rules would be rendered meaningless because the point of a summary decision is to avoid extensive discovery and an evidentiary hearing when a case can be quickly resolved on issues of law. In Smith v Lansing School Dist, 428 Mich 248, 257-259; 406 NW2d 825 (1987), the Supreme Court held that summary disposition rules were appropriate in administrative proceedings and that MCL 24.272(3); MSA 3.560(172)(3) did not mandate an evidentiary hearing when the material facts were not at issue. Moreover, the Court found that an evidentiary hearing was also not required as a discovery procedure. We believe that MCL 24.272(3); MSA 3.560(172)(3) was adequately complied with in this case because all the relevant facts necessary for a final decision were already part of the record presented to the commissioner, and the commissioner had only to formulate his legal interpretation of the statutory language and apply it to the petitioner’s proposed insurance form. The language in the form could not be disputed, and other allegations of disputed facts were superfluous.
A summary decision motion under Rule 11(c) is a legal question that can be defeated by establishing there is a genuine issue of material fact. However, if the nonmoving party cannot raise a material issue of fact, an evidentiary hearing is pointless. Similarly, it would be futile to require that discovery be completed before a final decision can be made if discovery could not aid in deciding the case. While summary disposition decisions should ordinarily not be made before discovery has been completed when there is a dispute regarding material facts, in this case the only possible reason petitioner proffered for conducting discovery was to investigate the commissioner’s past procedures and decisions related to the enforcement of MCL 500.2027(b); MSA 24.12027(b). The issue in this case involved whether petitioner’s form conformed to the requirements of the applicable statute. We fail to see how discovering the agency’s prior policies would have affected the commission er’s ruling because the law is clear, adequately sets forth the commissioner’s authority, and provided petitioner with notice of the proscribed conduct. See Michigan Life, supra, p 563; American Way Service Corp v Comm’r of Ins, 113 Mich App 423, 436-437; 317 NW2d 870 (1982). Consequently, we do not believe the agency’s past enforcement of this law would inject any material issues of fact into this case.
We believe the parties were afforded due process protection, because they were provided with the opportunity for oral argument before the hearing referee with regard to the motion for summary decision and this case was decided pursuant to the agency’s rules for summary decisions.
We therefore find the circuit court erred in vacating the commissioner’s decision and remanding this case back for a contested case hearing. Petitioner’s cross appeal also must fail for these reasons.
v
The commissioner raises a procedural issue on appeal pertaining to petitioner’s claim in the circuit court that his decision must be vacated because the petitioner was not afforded a timely hearing as provided by statute.
MCL 500.2236; MSA 24.12236 sets forth the time for a hearing involving disapproval of a proposed form. Initially, the commissioner must make a decision within thirty days after a form is submitted for approval. MCL 500.2236(1); MSA 24.12236(1). For a form that was not previously approved and is not in legal use, a disapproval becomes effective immediately upon notice to the insurer of the commissioner’s decision. MCL 500.2236(3); MSA 24.12236(3). If dissatisfied with the commissioner’s decision, subsection 4 of MCL 500.2236; MSA 24.12236 allows an insurer to request a hearing:
Whenever a form is disapproved, or approval is withdrawn under the provisions of this code, the insurer shall be entitled upon demand to a hearing before the commissioner or a deputy commissioner within 30 days of notice of disapproval or of withdrawal of approval; and after the hearing, the commissioner shall make findings of fact and law, and either affirm, modify or withdraw his original order or decision. [Emphasis added.]
Petitioner argued below that, under this section, the thirty-day period begins to run from the date of the notice of disapproval, and that the commissioner is required to hold the hearing within this thirty-day period.
Generally, legislative intent controls statutory construction and it is presumed that intent is expressed in the language chosen. Gobler v Auto-Owners Ins Co, 428 Mich 51, 62; 404 NW2d 199 (1987). When the language used is clear and unambiguous, no further interpretation is required. Id. However, an exception to this rule exists if, under a literal reading of a statute, a result would occur that was absurd, unjust, and clearly inconsistent with the Legislature’s purpose behind the statute. Id.
In this case, the date of the notice of disapproval was July 10, 1989. Petitioner’s request for a hearing was not made until August 9, 1989, which was the thirtieth day after the notice of disapproval. Under petitioner’s interpretation of the thirty-day provision, petitioner was entitled to a contested case hearing on the same day it made the request. This reading of the statute would render an absurd and unjust result and is clearly not what the Legislature intended. Allowing an insurer the right to a hearing on the same day a hearing is requested would be inconsistent with due process. See Westland Convalescent Center v Blue Cross & Blue Shield of Michigan, 414 Mich 247, 268; 324 NW2d 851 (1982) (due process requires notice, an opportunity to be heard as well as to present evidence if necessary, and the chance to respond before final action is taken) (Opinion of Fitzgerald, J.).
We believe the Legislature intended the thirty-day time limit in MCL 500.2236(4); MSA 24.12236(4) to mean only that an insurer who intends to challenge the commissioner’s ruling has thirty days to request a hearing. Otherwise, there would be no time limit on when an insurer could request a hearing. This interpretation avoids absurd results and is consistent with other time limits set forth in the statute, for instance, that the commissioner must respond to a request for form approval in thirty days, MCL 500.2236(1); MSA 24.12236(1).
We also believe this interpretation of the statute is consistent with the administrative procedure rules the commissioner has adopted with regard to hearing procedures, 1983 AACS, R 500.2101 et seq. Under those rules, an insurer must submit a written petition for a contested case, and within thirty days after receipt of the petition, a hearing must be noticed by the commissioner, or other action taken. See 1983 AACS, R 500.2103, R 500.2104. A contested case is commenced by the issuance of a notice of hearing by the commissioner. 1983 AACS, R 500.2105. Given these procedures adopted by the commissioner, we believe our interpretation of MCL 500.2236(4); MSA 24.12236(4) is in accordance with the commissioner’s policy regarding hearing procedures in general. See Auto Club Ins Ass’n v Comm’r of Ins, supra, pp 530-531. Consequently, the initial hearing in this case was timely.
VI
The Commissioner of Insurance also contends that he properly denied petitioner oral argument upon review of the hearing referee’s decision. The commissioner reasoned that, because petitioner already had been afforded the opportunity to argue before the hearing referee, MCL 24.272(3); MSA 3.560(172)(3) was adequately complied with, and any additional argument before the commissioner was at his discretion. We agree that additional argument was unnecessary, because the issues before the commissioner were legal questions, for which extensive briefs were filed, and the commissioner had the record from the previous arguments.
Under § 72(3) of the Administrative Procedures Act, MCL 24.272(3); MSA 3.560(172X3), parties are entitled to present oral and written arguments on issues of law and policy during the contested case hearing phase. See Smith v Lansing School Dist, supra, p 259. The parties were afforded the right to argue the legal issues presented by the staffs motion for summary decision before the hearing referee on October 30, 1989.
Petitioner has failed to cite to this Court any authority that grants it the right to oral argument before the commissioner during review of a hearing referee’s decision. We believe the relevant authority under both the Administrative Procedures Act and the administrative rules adopted by the commissioner make oral argument at this stage discretionary with the commissioner. MCL 24.281(1); MSA 3.560(181)(1); 1983 AACS, R 500.2127(4), R 500.2132, R 500.2133. Consequently, we decline to affirm the circuit court’s decision regarding procedural defects because the commissioner appropriately denied oral argument.
Reversed. The Commissioner of Insurance’s decision of December 11, 1989, is reinstated.
The statute was amended subsequently. All references to § 2236 in this case pertain to the statute in effect on July 10, 1989.
However, even when it is ultimately determined that the reasons for the prior denial were frivolous or no longer applicable, the "comparable coverage” subsequently offered the applicant would require a higher rate to cover the costs incurred as a result of the additional underwriting and investigation.
The Supreme 'Court reversed in part in Smith, supra, p 259, because oral argument was not held with regard to the motion to dismiss and MCL 24.272(3); MSA 3.560(172)(3) gives parties the right to argue both orally and in writing on issues of law and policy.
See Kassab v Michigan Basic Property Ins Ass’n, 185 Mich App 206, 216; 460 NW2d 300 (1990), lv gtd 439 Mich 864 (1991) (summary disposition is premature if it is granted before discovery on a disputed issue is completed; however, this rule does not extend to cases where further discovery does not stand a fair chance of uncovering factual support for the opposing side’s position). | [
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] |
Stone, J.
This is an action on the case brought against the defendants- for alleged false imprisonment of the plaintiff by the defendants, under and by virtue of an instrument called an “attachment,” claimed by the plaintiff to be void on its face. Said instrument was in the words and figures following:
“State of Michigan — In the Circuit Court for the
County of Newaygo, In Chancery.
“In the name of the People of the State of Michigán, To the Sheriff of said County:
“Whereas, it satisfactorily appears to me by petition of Elizabeth Whitman, filed in a certain cause in said court, in which Elizabeth Whitman is plaintiff and Willis Whitman is defendant that the said Willis Whitman is now in default in the payment of temporary alimony and suit money which he was ordered by this court to pay said plaintiff by the terms of an order duly entered and filed in said cause, and
“Whereas, the said petition, as aforesaid, was filed by the said Elizabeth Whitman according to the provisions of Act No. 379, of the Public Acts of the State of Michigan, for the year 1913, the amount in default at this time is thirty-one dollars ($31.00).
“Now, therefore, you are commanded forthwith to arrest the said Willis Whitman and bring him before me at my office in the village of White Cloud, in said county, or at my office or chambers in the city of Big Eapids, county of Mecosta, State of Michigan (whichever place I may be at the time of the apprehension of the said Willis Whitman), without delay, to be dealt with according to law.”
“Dated, September 15, 1917.
“Joseph Barton,
“Circuit Judge.”
The plea was the general issue, with a notice thereto annexed that the defendants would give in evidence on the trial and insist in their defense that a divorce suit' was pending in the circuit court for the' county of Newaygo, in chancery, in which Elizabeth Whitman was plaintiff and Willis Whitman was*defendant; that on August 21, 1917, an order was made in said cause requiring said Willis Whitman to pay certain money to the said Elizabeth Whitman as temporary alimony and expenses; that on September 15, 1917, the circuit judge of said court made and executed the order or attachment above set forth; that said order or attachment was in proper form, and duly and legally issued by the said court, and that the sheriff of Newaygo county, in accordance with the mandate of said order or attachment, did arrest the said Willis Whitman and bring him before said court.
Upon the trial the plaintiff offered in evidence the said attachment, and gave evidence that he was arrested under and by virtue of said instrument on October 20, 1917, and was placed in the county jail of Muskegon county for a period of about two hours, and was then taken by defendant David Moote, sheriff of Newaygo county, to White Cloud, the county seat of Newaygo county, where he was detained in jail until October 23, 1917, when he was taken before the court, and after a hearing was discharged from arrest.
It was alleged and inferentially appeared that defendant William J. Branstrom procured the signature of the circuit judge to said instrument, that defendant0 Carl A. Stauffer was the sheriff of Muskegon county and the keeper of the jail of that county, where plaintiff was imprisoned as aforesaid.
Evidence was also introduced showing the proceedings taken in the divorce suit of Elizabeth Whitman v. Willis Whitman, in the circuit court for the county of Newaygo, in chancery, whereby it was made to appear that said court had jurisdiction of said cause and of the parties thereto, and that all of the proceedings had therein anterior to the issuing of said attachment or order, were regular and in conformity to law.
At the close of the plaintiff’s case, counsel for defendants moved the court to direct a verdict of not guilty, for the reason that the circuit judge had authority to issue said attachment; that it was in proper form, fair on its face, and protected the officer making the arrest, and those acting with him. This motion was granted, apparently upon the authority of Thomas v. Rosecrantz, 193 Mich. 357, and the authorities there cited, and a verdict and judgment were rendered for the defendants.
The plaintiff is here upon a case-made, and under appropriate assignments of error he urges that the so-called attachment was a nullity and void upon its face, was no protection to the defendants and that the court erred in directing a verdict and judgment for the defendants.
Act No. 379, Pub. Acts 1913 (3 Comp. Laws 1915, § 11443 et seq.), should be carefully examined. It is entitled “An act to facilitate the collection of temporary and permanent alimony ordered to be paid in suits for divorce.” It should be said that the constitutionality of this act is not here questioned or involved. Sections 2 and 4 of the act are as follows:
“Sec. 2. When any decree or order shall have been made for the payment of temporary or permanent alimony to be paid in certain stipulated payments directed to be made in said order to the register of the court, and any of such payments shall be in default, the party prejudiced thereby may make a motion before the court making such order showing by the records in the register’s office that such default has been made, and thereupon the court shall forthwith issue an attachment to arrest such party in default and bring him immediately before the court to answer for such neglect.”
“Sec. 4. When said attachment shall be issued it shall be executed by the sheriff of the county, or by any officer authorized to make such arrest, who shall arrest the party named therein and keep him in actual custody and bring him forthwith before the court issuing such attachment, and shall keep and detain bim until the court shall make some further order in the premises.”
By the provisions of section 5 of the act it is clear that the register in chancery is required to issue the attachment.
Section 12405, 3 Comp. Laws 1915, provides:
“The style of all process from courts of record at law or in chancery in this State shall be Tn the name of the people of the State of Michigan,’ and such process shall be tested in the name of the chief justice, or presiding justice or judge, or one of the judges of th"e court from which the same shall issue, be sealed with the seal of the court, and signed by the clerk thereof, and before the delivery thereof to any officer to be exe cuted shall be subscribed or indorsed with the name of the attorney- for the plaintiff.” * * *
A writ of attachment for the arrest of a person, is defined by Blackstone, and by numerous courts, as# a writ issued by the court of records, commanding the sheriff to bring before it a person who is charged with contempt of court.
An examination of section 2 of the act of 1913, shows that it is the court, and not the circuit judge that issues the attachment, and the statute required the officer to bring the party in default “immediately before .the court to answer for such neglect,” and not before the circuit judge at his office or chambers.
It is apparent that this whole proceeding is a court proceeding, and not a matter that could be initiated, or heard before the circuit judge. The statute contemplates that the party is not yet in contempt, and could not be, under our statutes and decisions, until he had had a hearing in court.
Was this so-called process fair on its face? The following excerpt from Cooley on Torts (2d Ed.), p. 538, will, we think, answer that question in the negative:
“The process that shall protect an officer must, to use the customary legal expression, be fair on its face. By this is- not meant that it shall appear to be perfectly regular, and in all respects in accord with proper practice, and after the most approved form; but what is intended is, that it shall apparently be process lawfully issued, and such as the officer might lawfully serve. More precisely, that process may be said to be fair on its face which proceeds from a court, magistrate, or body having authority of law to issue process of that nature, and which is in legal form, and on its face contains nothing to notify or fairly appraise the officer that it is issued without authority. When such appears to be the process, the officer is protected in making service, and he is not concerned with any illegalities that may exist back of it.”
Judge Cooley gives illustrative instances of process not fair on its face; and, among others, at page 544 appears the following:
. “Process of contempt issued by a judge of a court when only the court as a body had authority to issue it.” Citing Van Sandau v. Turner, 6 Q. B. 773.
In the instant case the so-called attachment was not tested in the name of the judge. It was not sealed with the seal of the court. It was not issued and signed by the clerk of the court, and it was not subscribed or indorsed with the name of the attorney for the plaintiff. In fact it does not show on its face that it was issued from, or by authority, of any court.
As was said upon a like subject in State, ex rel. Hansen, v. Carrico, 86 Neb. 448 (125 N. W. 1110), in a mandamus case, “An examination of the process issued in this case shows that every provision of these sections has been violated, or, to say the least, ignored,” and the whole proceeding was held void. If that could be said in a mandamus case, how much more should it be said where a party has béen arrested and imprisoned under such a process. We are satisfied that there is nothing in Act No. 379, Pub. Acts 1913, giving the circuit judge any power or authority to issue an attachment, or to make any such order in the chancery case. The action contemplated by the statute is court action, from beginning to end.
We are constrained to say that the so-called attachment in the instant case, was a nullity, and was no protection to the defendants. In our opinion the case of Thomas v. Rosecrantz, supra, is clearly distinguished, and is not at all controlling here.
The judgment of the circuit court is reversed and a new trial granted, with costs to the appellant.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. | [
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Moore, J.
This case was commenced in justice’s court. It was appealed to the circuit court. From a verdict and judgment in favor of the plaintiff in the sum of $140 the case is brought here by writ of error.
Jefferson avenue is a wide street in Detroit, running east and west, upon which there is a double track street railway line. Bates street is a narrow street with a single track street car line running north and south crossing Jefferson avenue. It was the claim of the plaintiff that while she was driving her electric car west on Jefferson avenue, as she approached Bates street, a large automobile truck coming from the west on Jefferson avenue, driven by an employee of the defendant corporation, as it approached Bates street at a speed of 12 to 15 miles an hour, instead of keeping to the right of the center of the intersection of these streets when it reached Bates street, turned, diagonally to the northeast ahead of her car and before she could stop it a collision occurred causing damage to her car which cost $142 to make good. The defendant denied that the truck was going 12 or 15 miles an hour and claims it was going 6 or 7 miles an hour; that it kept to the right of the intersection of the street, and that, instead of the truck running into the car of plaintiff, she drove her electric car into the truck. The testimony is in sharp conflict. The first question calling for consideration is the claim of appellant that a verdict should have been directed in its favor because of the contributory negligence of the plaintiff. We shall not attempt to recite the testimony, but in view of the law of the road which should be observed by the drivers of automobiles, and the sharp conflict in the testimony we think this feature of the case presented a question of fact for the jury.
The other question calling for consideration is, Did the court err in permitting an amendment to the declaration to the effect that suit was brought in the name of the plaintiff as trustee, for the use and benefit of the Travelers’ Insurance Company. The name of the insurance company does not appear in any of the pleadings in justice’s court. The car of the plaintiff was insured by this company. The policy had a provision that in case a loss was paid the insured would assign her claim to the insurance company upon request. No assignment had been made at the time of the trial though the insurance company had paid the amount the repairs to the car cost the plaintiff before the suit was begun.
Upon the cross-examination of Mrs. Everhard she gave testimony as follows:
“Q. Now, Mrs. Everhard, you were paid your money in this case by the Travelers’ Insurance Company?
“A. Yes, sir.
“Q. And whatever claim you had you turned' over to them, didn’t you?
“The Court: Let her answer, there is no jury here, you may answer.
“A. I don’t know how to answer that. I don’t know as L understand exactly what it means.
“Q. Well you have received your money and this case is now brought for .the purpose of reimbursing the insurance company?
“A. Yes, sir.
“Q. So the only interest you have in it is giving evidence here as to how the accident took place?
“A. Yes, sir.
“Q. You have no other interest in the case whatever?
“A. No.
“Q. That is all. * * *
“Mr. Ward: Did you authorize any action to be brought for them?
“A. No.
“Q. And you never have known and don’t know now, up to. the present time there was any such claim in this suit, did you, Mrs. Everhard?
“A. I don’t know that I did.”
In Fowler v. Hyland, 48 Mich. 179, as to an appeal commenced in justice’s court it was said:
“But when the appeal removed the case to the circuit court it took up the same case that was before the justice. Cross v. Eaton, decided herewith, post 184.”
In Loranger v. Davidson, 110 Mich., at p. 607, it is said:
“The jurisdiction of the circuit court on appeal is appellate only. The appeal transfers to the circuit court the same cause that was before the justice and an amendment cannot be allowed that states a different cause of action from that stated in justice’s court,” citing several cases.
This case is cited with approval in Frohlich v. Graulick, 118 Mich. 65. In overruling the motion for a new trial the circuit judge expressed himself of the opinion that, as substantial justice had been done, though he may have erred in granting the amendment, under the judicature act he had the right to allow the judgment to stand.
Counsel for appellant cite from the judicature act as follows:
“Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought.” 3 Comp. Laws 1915, § 12353.
Counsel for the appellee cite Union Ice Co. v. Railway Co., 178 Mich. 347, as sustaining the action of the trial judge. A reference to the opinion in that case will show that plaintiff had a substantial interest in the subject matter of the litigation and that the case originated in the circuit court. The practical effect of the amendment to the declaration is to bring a new plaintiff into the case without giving the defendant an opportunity to litigate his claim in the justice’s court.
We think the judgment must be reversed without a new trial. Defendant will recover costs.
Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Ostrander, C. J.
(after stating the facts). The provision of the Constitution which is first invoked by appellant grants to the congress the power to lay and collect taxes, duties, imposts, and the other provisio'n denies to the States, without the consent of the congress, power to lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing inspection laws.
The goods of defendant were brought into the United States from a foreign country. Appellee contends that whether they were imports within the meaning of the Constitution depends upon whether a duty had or had not been laid on them by the United States, and reference is made to language found in opinions delivered by the Federal courts to the effect that the payment of duties to the United States gives the right to sell the thing imported, a right which can not be impaired or forbidden by a State. It is said, also, that the tax which was levied is not an impost tax or duty on articles brought into the country. Imports are things imported, the articles brought into the country. A duty on (imports is not merely a duty on the act of importation but is a duty on the things imported. Brown v. Maryland, 12 Wheat. (U. S.) 419, 437, 438. It would seem to be obvious that in providing that certain articles may be admittéd into the country duty free the congress is exercising the power granted to it in the Constitution, the exclusive power to lay duties on imports involving the power to determine whether any tax or duty shall be paid. In any event, the prohibition of State action in the premises remains. Although the tax was not laid as an impost tax or a duty, still, if “the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property, and denies it the privilege of becoming so incorporated until it shall have contributed to the revenue of the State,” it is a tax upon imports. Brown v. Maryland, 12 Wheat. (U. S.) 419, 443.
Although, the indictment in Brown v. Maryland, supra, was against the importer for selling a package of dry goods, in the form in which it was imported, without securing a license required to be taken out by an act of the legislature of the State of Maryland, and the case on the facts in no way involved a tax or duty laid by the State upon the goods, the reasoning which denied the right to require a license involved the statement and application of principles which deny the right of a State to tax the import while it retains its character as an import and remains the property of the importer, in his warehouse, in the original form or package in which it was imported. May v. New Orleans, 178 U. S. 496, 507.
The question presented, then, is whether the goods had lost the character of imports when the tax was laid and had become a part of the general property of the State liable to State taxation. When the tax was laid, the goods were the property of the defendant, the importer, in its warehouse, in the original form and package in which they were imported. That they had been or were to be sold by the importer is true, but the right to sell them goes along with the right to bring them into the country. That under similar circumstances these goods if brought into the State from another State would be subject to taxation without offending the Federal Constitution, is perhaps true. American Steel & Wire Co. v. Speed, 192 U. S. 500. But it is said in the opinion in the case just referred to:
“Since Brown v. Maryland, 12 Wheat. (U. S.) 419, it has not been open to question that taxation imposed by the States upon imported goods, whether levied directly on the goods imported or indirectly by burdening the right to dispose of them, is repugnant to that provision of the Constitution providing that ‘No State shall, without the consent of the congress, lay any imposts or duties on imports or exports.’ Article I, sec. 10, paragraph 2. And Brown v. Maryland also settled that where goods were imported they preserved their character, as imports, and were therefore not subject to either direct or indirect State taxation as long as they were unsold in the original packages in which they were imported. A recent case referring to the authorities and restating this elementary doctrine is May v. New Orleans, 178 U. S. 496. Assuming that the goods concerning which the State taxes in this case were levied were in the original packages and had not been sold, if the bringing of the goods into Tennessee from another State constituted an importation, in the constitutional signification of that word, it is clear they could not be directly or indirectly taxed. But the goods not having been brought from abroad, they were not imported in the legal sense and were subject to State taxation after they had reached' their destination and whilst held in the State for sale. This is as conclusively foreclosed by the decisions of this court as is the doctrine resting upon the decision in Brown v. Maryland. Woodruff v. Parham, 8 Wall. (U. S.) 123; Brown v. Houston, 114 U. S. 622. The doctrine upon which the cases rest was this, that imports, in the constitutional sense, embraces only goods brought from.a foreign country, and consequently does not include merchandise shipped from one State to another. The several States, therefore, not being controlled as to such merchandise by the prohibition against the taxation of imports, it was held that the States had the power, after the goods had reached their destination and were held for sale, to tax them, without discrimination, like other property situated within the State.
“Those two cases, decided, the one more than thirty-five and the other more than eighteen years ago, are decisive of every contention urged on this record depending on the import and the commerce clause of the Constitution of the United States. The doctrine which the two cases announced has never since been questioned. It has become the basis of taxing power exerted for years, by all the States of the Union. The cases themselves have been approvingly referred to in decisions in this court too numerous to be cited, and we therefore content ourselves by mentioning two of the cases where the doctrine was restated.”
Applying the general rule is In re Appeal of Pitkin & Brooks, 193 Ill. 268, it must be held, upon- the stipulated facts, that the goods taxed were not taxable.
The judgment is reversed, with costs to appellant.
Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Steere, J.
On the afternoon of August 30, 1916, plaintiff sustained serious personal injuries in a collision at the intersection of Beaubien street and Med-bury avenue, in the city of Detroit, between a motorcycle he was riding and an automobile claimed to have been owned by defendant, and this action was brought to recover damages therefor. At the conclusion of plaintiff’s testimony the trial court granted defendant’s motion for a directed verdict in its favor, holding that plaintiff had failed to make out a prima facie case against defendant.
Beaubien street runs nurfcb. .and south with a single street car track along its center. Plaintiff was riding his motorcycle north, near the curb on the right side of Beaubien street in the direction he was going. The automobile which struck him was being driven south on the opposite side of the street and car track from him, which was the proper side of the street Nr the direction it was going, and had it kept on N course they would have safely passed each other near the intersection of Medbury avenue, but without previous notice or warning, as plaintiff’s evidence showed, the automobile, which was running at excessive speed, suddenly turned east to take Medbury avenue, cutting at a sharp diagonal across, the intersection of the two streets, instead of keeping to the right of the center as it turned, violently colliding with his motorcycle and seriously injuring him. As it turned plaintiff shouted ■loudly and made strenuous effort to avoid the collision, as then did the automobile driver also, but unsuccessfully.
There were several witnesses to the accident who testified in detail to the circumstances and cause. Plaintiff’s evidence as it stood when he rested clearly-showed him free from any contributory negligence, and the collision solely attributable to the .carelessness of the auto driver, who was apparently paying more attention to some girls on the sidewalk than to his driving and grossly violated the law of the road by making a sudden diagonal cut across the corner when turning down Medbury avenue. He stated when he got down from his vehicle after the collision “I did not see him.” He helped to pick plaintiff up and take him home, and shortly after the accident said that he was in the employ of defendant who owned the automobile he was driving, which bore the name of “Dodge Brothers” painted on each side in gold letters, was what is called a pick-up wagon or semi-truck of the kind customarily used by manufacturers, and the license number on it was 5048M, or M5048 as one witness stated. It was shown that only automobile manufacturers are assigned a license number followed by the letter M, that in 1916 license 5048M was issued by the secretary of State to Dodge Brothers and that for such a license the manufacturer could obtain as many license plates of his number as he paid for.
No question was raised in the trial court or here but that plaintiff had proven actionable negligence on the part of the driver of the automobile; but it was and is urged that plaintiff failed to show the vehicle belonged to defendant, that it was being operated in its business by its servant or employee, or that it was used with the knowledge or consent of the owner, which were essential facts to 'establish defendant’s liability.
In directing a verdict for defendant the trial court found there was “a scintilla of proof as to the ownership which could go to the jury,” and said, “but, even if you prove the ownership, even if you prove that this man who drove the car was the servant of Dodge Brothers, then there is no proof that he, at the time he was driving the ear, was about his master’s business, * * * and if there is no proof, then we cannot hold Dodge Brothers for the accident-”
There was more than a scintilla of evidence of ownership to go to the jury. The statute upon the subject of motor vehicles (chap. 89, 1 Comp. Laws 1915), requires every automobile driven upon a “public highway” to be annually registered by and in the name of the owner with the secretary of State who must assign to it a distinctive number and furnish to the owner, who has paid the license fee and complied with the law, a number plate which must be carried and conspicuously displayed on The vehicle it identifies when the same is in use. Penalties are provided for violation of this legislation which is regulatory in its nature and an exercise of the police power of the State. The manifest intent of many of its provisions, such as registration in the name of the owner with detailed description, assignment of a distinctive license number, issuance of an official number plate of special design which must be conspicuously displayed upon the motor vehicles when driven upon a highway, etc., is for identification of the vehicle and its owner. Proof of the license number upon an automobile being driven upon a highway and of the person in whose name such distinctive number is registered as owner, prima, facie identifies both vehicle and ownership.
In the instant case the name of Dodge Brothers was on the motor vehicle which occasioned the injury and the driver admitted shortly after the accident that it belonged to Dodge Brothers in whose employ he then was. The significance of such evidence and duty it imposes upon a defendant of whom such facts are shown, is commented on in Burns v. Paint Co., 152 Mich. 613, as follows:
“In the absence of any explanation, this circumstance and this.statement might have warranted the inference that the relation of master and servant existed. * * * It may be said that the circumstance and admission of Boyseau cast upon defendant a duty of explanation.”
Aside from this, as the law now stands, it is not a prerequisite for recovery to prove that the motor vehicle causing an injury was being operated in the business of the owner, for his use and enjoyment, or by his servant or employee. Section 29 of Act No. 302, Pub. Acts 1915 (1 Comp. Laws 1915, § 4825), provides in part:
“The owner of a motor vehicle shall be liable for any injury occasioned by -the negligent operation of such motor vehicle, whether such negligence consists in violation of the provisions of the statutes of this State or in the failure to observe such ordinary care in such operation as the rules of the common law require: Provided, That the owner shall not be liable unless said motor vehicle is being driven by the express or implied consent or knowledge of such owner.”
The section further provides that if the vehicle causing the injury was driven by an immediate member of the owner’s family “it shall be conclusively presumed” that it was with his consent or knowledge.
This section was recently under consideration and sustained as valid legislation well within the police power of the State in Stapleton v. Brewing Co., 198 Mich. 170, where it was held the owner of a motor vehicle was liable for an injury resulting from its negligent operation while being driven in the business of another company to whom it had been loaned, by an employee of the borrower between whom and the owner no relation of master and servant existed and who was not under the owner’s direction or control, nor in any particular engaged in the owner’s business.
This act takes special cognizance of recognized rules of evidence upon implications and presumptions arising from proven facts as proper and legitimate in establishing the responsibility of the owner of an automobile for injuries resulting from its negligent operation by another. It recognizes the difficulty to the injured party of securing direct proof in an automobile accident that the use by another is authorized by the owner and makes plain that fact may be presumptively or impliedly shown by proven facts from which it can be reasonably inferred. The permissible presumptions arising from proven facts are either conclusive, or disputable and open .to rebuttal. If the automobile was being driven by specified relatives or immediate members of the owner’s family the presumption that its use was authorized by him is made conclusive by the statute. It is an intendment of the law which he may not deny or contravene by other evidence, direct or indirect.
In the absence of such statutory qualification the possession, use and control of an automobile in a public place fairly gives rise to the inference that the person so in control is the owner of such property or in lawful possession of it with the express or implied consent of the owner. By statute it is made a felony to take possession of and use a motor vehicle without authority (3 Comp. Laws 1915, § 15431; Act No. 220, Pub. Acts 1917), and the presumption of innocence, in the absence of proof to the contrary, attends the driver. Unexplained and undisputed, the reasonable inference of consent by the owner and authority of the driver is such as common sense and common experience usually draws and applies to the possession of those driving automobiles along our highways. A prima facie case was made out by plaintiff’s evidence, putting defendant to its proofs.
The judgment is reversed, with costs, and a new trial granted.
Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Steere, J.
Ostrander, C. J.
Result upon the statute is right. Driver’s admission was incompetent and should not have been received. | [
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Brennan, J.
Appellants appeal as of right from an April 9, 1990, order granting summary disposition to the City of Detroit pursuant to MCR 2.116(C)(8) on the basis that plaintiffs’ claims were barred by the exclusive remedy provision of the Workers’ Disability Compensation Act. We reverse.
Plaintiffs are employees of the City of Detroit. Both were injured in an automobile collision with defendants White. At the time of the accident, plaintiffs were allegedly driving a City of Detroit vehicle and returning to their work site from lunch. It was later discovered that the traffic signal at the intersection where the incident occurred had been malfunctioning for some time preceding the accident. Therefore, in addition to filing suit against defendants White for negligent operation of their vehicle, plaintiffs sued the city pursuant to MCL 691.1402; MSA 3.996(102) for failure to maintain the traffic signal. The city subsequently filed a motion for summary disposition pursuant to MCR 2.116(C)(8), claiming that plaintiffs’ claims were barred by the exclusive remedy provision of the wdca, MCL 418.131; MSA 17.237(131). The court agreed and granted the motion.
Appellants argue that the trial court erred in granting summary disposition to the city on the basis that plaintiffs’ claims were barred by the exclusive remedy provision of the wdca. Appellants contend that the dual capacity doctrine removes the bar to their claim against the city because their injuries did not arise out of or dur-. ing the course of employment and the city has an independent statutory duty to plaintiffs to maintain their traffic signals.
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Formally Inc v Community National Bank, 166 Mich App 772, 777; 421 NW2d 289 (1988). All factual allegations in support of the claim are accepted as true, as well as any reasonable inferences or conclusions that can be drawn from the facts. Id. The motion should be granted only where the claim is so clearly uneforceable as a matter of law that no factual development could possibly justify a right of recovery. Id.
The dual capacity doctrine is an exception to the exclusive remedy provision and allows an employee to state a cause of action in tort against his employer where the employer occupies a second capacity that confers upon it obligations independent of those imposed on it as an employer. Handley v Wyandotte Chemicals Corp, 118 Mich App 423, 429; 325 NW2d 447 (1982). In order for the doctrine to apply, the employer’s second persona must be so completely independent from and unrelated to its status as an employer that the law recognizes it as a separate legal person. 2A Larson, Workmen’s Compensation Law, § 72.81, p 14-229. See also Benson v Dep’t of Management & Budget, 168 Mich App 302, 308; 424 NW2d 40 (1988); Cassini v Detroit, 156 Mich App 573, 575; 402 NW2d 1 (1985). Wells v Firestone Tire & Rubber Co, 421 Mich 641, 653; 364 NW2d 670 (1984).
The dual capacity test is concerned not with how separate or different the second function is from the first, but with whether the second function generates unrelated obligations. . . . However, the dual capacity doctrine will not apply where the plaintiffs cause of action is, in reality, based upon the employer-employee relationship. The exception exists only where the employer-employee relationship is entirely unrelated or only incidentally involved with the cause of action. [Handley, supra, p 429.]
In the present case, plaintiffs allege that the city had an independent duty to maintain the traffic signal in a safe condition pursuant to MCL 691.1402; MSA 3.996(102). It is this duty that invokes the dual capacity doctrine. This duty was totally unrelated to the obligations the city had as plaintiffs’ employer. The city clearly had a second persona completely independent from and unrelated to its status as an employer, justifying its recognition as a separate legal entity. Further, the employer-employee relationship in this case was a mere coincidence and was entirely unrelated to plaintiffs’ cause of action. Plaintiffs’ action is not based on the employer-employee relationship. Moreover, accepting as true plaintiffs’ allegations that they were on their lunch hour when the incident occurred, their injuries did not arise out of or during the course of their employment. See McClure v General Motors Corp (On Rehearing), 408 Mich 191, 209; 289 NW2d 631 (1980). Accord ingly, we find that the trial court erred in granting summary disposition.
Reversed.
Wahls, J., concurred.
See O’Hare v Detroit, 362 Mich 19; 106 NW2d 538 (1960). | [
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] |
Per Curiam.
Respondent appeals from an opinion and order, which essentially denied his motion to dismiss proceedings to enforce payment of his child support .arrearage. We affirm.
Respondent and the relator were divorced in 1962. At the time of the divorce, they had two minor children. Respondent was ordered to pay child support of $10 a week for each child. This amount was never modified.
The record establishes that respondent was chronically in arrears on his child support obligation despite repeated attempts to collect from him. The record also suggests that there had been ongoing negotiations between respondent and petitioner regarding payment of the arrearage. In 1988, respondent made ten payments to petitioner in an effort to reduce the arrearage. This case arises from a bench warrant issued in June 1989, when respondent’s arrearage was approximately $8,400.
At a hearing on the bench warrant, respondent indicated that his last support payment was due on August 21, 1977, the date the younger child reached the age of majority. Respondent argued that the proceedings against him should be dis missed because enforcement of the support obligation was being sought more than ten years after that date, contrary to the ten-year statute of limitation for actions founded upon a court judgment, MCL 600.5809(3); MSA 27A.5809(3). The petitioner’s position was that the ten-year limitation period did not apply to this case, but that even if it did, respondent’s payments made after the expiration of the limitation period waived the statute of limitation defense.
The trial court ruled that the ten-year limitation period applied, citing MCL 552.603; MSA 25.164(3), which provides that a support order is a final judgment on or after the date each support payment is due. However, the court agreed with the petitioner that payments made after the limitation period operated as an acknowledgment of respondent’s child support obligation and as a waiver of the defense of the statute of limitation. •
On appeal, respondent contends that the trial court erred in concluding that he waived the limitation period as a defense by making payments on the arrearage. Petitioner has not cross appealed the court’s decision regarding the applicability of the statute of limitation. We note, however, that this Court recently held that the ten-year limitation period of MCL 600.5809(3); MSA 27A.5809(3) applies to an action to collect a child support arrearage. Ewing v Bolden, 194 Mich App 95; 486 NW2d 96 (1992).
In arguing that his payments did not waive the statute of limitation defense, respondent relies on MCL 600.5865; MSA 27A.5865 and MCL 600:5866; MSA 27A.5866, which allow revival of time-barred obligations to pay contractual debts on the basis of certain writings. These statutes are inapposite to the situation in this case, however. As stated by our Supreme Court in Miner v Lorman, 56 Mich 212, 216; 22 NW 265 (1885), in discussing the identical predecessor statutory provisions:
The statute does not prescribe what effect part payment of a demand shall have, but it is familiar law that it operates as an acknowledgment of the continued existence of the demand, and as a waiver of any right to take advantage, by plea of the statute of limitations, of any such lapse of time as may have occurred previous to the payment being made. The payment is not a contract; it is not in itself even a promise; but it furnishes ground for implying a promise in renewal from its date, of any right of action which before may have existed.
In Collateral Liquidation, Inc v Palm, 296 Mich 702; 296 NW 846 (1941), our Supreme Court again explained that a payment is equivalent to a new promise to pay on an obligation and extends the application of the statute of limitation. More recently, this Court held in Federal Deposit Ins Corp v Garbutt, 142 Mich App 462; 370 NW2d 387 (1985), that a partial payment made on a note after it matures serves to revive the statute of limitation, and a cause of action begins to accrue on that date. See also Bonga v Bloomer, 14 Mich App 315; 165 NW2d 487 (1968). Consistent with these authorities, we find no error in the trial court’s ruling in this case. Respondent had a legal obligation to make child support payments, and his acknowledgment of the continuing vitality of that debt waived the defense of the statute of limitation and allowed enforcement of the obligation.
Respondent’s claim, that the rule of Miner and its progeny does not apply in this case because his payments were involuntary, is without merit. The basis of respondent’s claim of involuntariness— that the 1988 payments were made under duress because they were made to avoid being held in contempt of court—is without both record and legal support. See Neilands v Wright, 134 Mich 77; 95 NW 997 (1903).
Affirmed. | [
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Per Curiam.
Plaintiff appeals as of right the trial court’s grant of defendant’s motion for summary disposition and dismissal of his personal injury action on the ground of intramilitary immunity. We vacate and remand.
On August 25, 1985, plaintiff was a member of the Ohio National Guard and defendant was a member of the Michigan National Guard. Both were participating in annual training exercises at Camp Grayling, Michigan. Plaintiff had just returned to camp from a twenty-four-hour leave, apparently driving his own vehicle. Defendant, who was driving a tanker truck owned by the federal government, allegedly made an improper lane change and struck plaintiff. Plaintiff apparently received benefits from the federal government for his injuries.
Plaintiff sued defendant, the State of Michigan, and the Michigan National Guard. Upon the governmental defendants’ motion to dismiss, plaintiff stipulated the dismissal and refiled the claims in the Michigan Court of Claims. Eventually, the Court of Claims dismissed those claims, holding that because the tanker truck was owned by the federal government, the state and the National Guard were not liable for injuries caused by it.
Defendant Swarthout then successfully moved the circuit court to dismiss the claim remaining against him. Defendant argued that the action was barred by the doctrine of intramilitary immunity because, at the time of the accident, both parties were federal employees acting in the line of duty. Plaintiff argues on appeal that the trial court erred in dismissing the case because there was no evidence that both parties were federal employees acting within the scope of their employment. Plaintiff also argues that the court erred in failing to follow the certification procedures of the Federal Tort Claims Act (ftca), 28 USC 2671 et seq. We agree in part.
As acknowledged by both parties, "members of the National Guard while engaged in training or duty” are considered federal employees. See 28 USC 2671. In general, the federal government has consented to be sued for the negligent acts of its employees committed within the scope of their office or employment. See 28 USC 2674; see also 28 USC 2680 (exceptions). In the context of national guardsmen, " '[a]cting within the scope of his office or employment’ . . . means acting in [the] line of duty.” 28 USC 2671.
On the date of the accident in this case, the ftca was the sole substantive remedy "for injury or loss of property or personal injury or death, resulting from the operation by any employee of the [federal] Government of any motor vehicle while acting within the scope of his office or employment”; the ftca was explicitly "exclusive of any other civil action or proceeding by reason of the same subject matter against the employee . . . whose act or omission gave rise to the claim.” 28 USC 2679(b) (1966 ed); 80 Stat 307. Additionally, federal courts were the only forums available for such actions; state courts do not have jurisdiction to entertain ftca claims. See 28 USC 1346(b).
The ftca provides that a federal employee who is sued for negligence committed during the course of employment should give notice to the United States Attorney General, who may then certify that the employee was in fact acting within the scope of employment, have the United States substituted as the defendant, and have the action removed to federal court. See 28 USC 2679 (c) and (d) (l)-(2) (1988 ed); 102 Stat 4564. "In the event that the Attorney General has refused to certify scope of office or employment . . . the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action . . . shall be deemed to be an action . . . brought against the United States under the [ftca] . . . and the United States shall be substituted as the party defendant.” 28 USC 2679(d)(3) (1988 ed); 102 Stat 4564. The action may then be removed to federal court but may be remanded if the federal court determines that the employee was not acting within the scope of employment. 28 USC 2679(d)(3) (1988 ed); 102 Stat 4564.
In this case, defendant requested certification from the United States Attorney General, but had not received it on the date of dismissal. He did not request that the trial court certify that he was acting within the scope of his employment. Instead, he moved to dismiss on the basis of intramilitary immunity.
In deciding defendant’s motion below, the trial court correctly found that both parties were federal employees, that the ftca was plaintiff’s exclusive remedy, and that it lacked jurisdiction to hear ftca claims. Nevertheless, the court went on to decide the merits of the case under Feres v United States, 340 US 135, 146; 71 S Ct 153; 95 L Ed 152 (1950), which holds that the federal government is not liable under the ftca "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” The court relied on Harris v Missavage, 165 Mich App 96; 418 NW2d 687 (1987), to hold that the Feres doctrine applies even to state-law claims. Harris is the only published Michigan case applying the Feres doctrine.
In Harris, a national guardsman who was injured during a football game while attending annual training at Camp Grayling successfully sued the camp’s doctors for medical malpractice. 165 Mich App 98-99. On appeal, the doctors argued that suit was barred by the Feres doctrine because the injury had been incurred during an "activity incident to service” and the alleged malpractice had occurred while defendants were acting "within the scope of their employment.” 165 Mich App 102. This Court agreed and reversed. 165 Mich 102-104.
Harris, however, is not controlling in this case for several reasons. First, when suit was brought in Harris, and until November 18, 1988, the ftca was the exclusive remedy only for injuries "resulting from the operation ... of any motor vehicle.” See 28 USC 2679(b) (1966 ed); 80 Stat 307. That is, when Harris was decided, a state-law claim such as malpractice was in fact available against the negligent federal employee unless the injury resulted from the operation of a motor vehicle. The Harris Court applied the Feres doctrine of intramilitary immunity to that state-law claim.
Additionally, when Harris was decided and again until November 18, 1988, the ftca had no provision for certification of cases where the United States Attorney General had failed or refused to certify that the federal employee was acting during the course of employment. See 28 USC 2679(d) (1988 ed); 102 Stat 4564. Defendant therefore improperly relies on the Harris Court’s failure to discuss certification. Now, as noted before, the state court may, on defendant employee’s motion, issue the certification and substitute the federal government as defendant. See 28 USC 2679(d)(3) (1988 ed); 102 Stat 4564.
In the present case, the injury arose out of the alleged negligent operation of a motor vehicle by a federal employee and therefore the ftca, even before the 1988 amendment, provided plaintiffs exclusive substantive remedy. There is no state tort remedy available to plaintiff unless he can show that the ftca does not apply because defendant was not acting within the scope of his employment at the time of the accident. The trial court had no jurisdiction to resolve the merits of the ftca claim.
Further, because defendant attempted to obtain certification of his status and had received no response, the trial court was bound to follow the procedures set forth in 28 USC 2679(d)(3), which had already gone into effect. Defendant’s motion to dismiss should have been treated as a motion for certification. Defendant’s failure to request that the trial court issue this certification, though erroneous, is not fatal and certainly does not confer jurisdiction to resolve the merits.
On remand, the trial court is to decide whether defendant was acting within the scope of his employment, that is, in the line of duty, at the time of the accident. Parenthetically, we note that an examination of the facts is necessary and that defendant’s affidavit merely stating that he was acting within the scope of his employment is insufficient. Whether plaintiff was engaged in an activity "incident to service”—and, therefore, whether suit is barred by the Feres doctrine—is a thorny substantive question to be decided by the federal court upon removal in light of the abundant, and often contradictory, federal case law on that point.
The order of dismissal is vacated and the case is remanded for proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Per Curiam.
Plaintiffs appeal as of right from a circuit court order granting defendant’s motion for summary disposition, apparently pursuant to MCR 2.116(0(10). We affirm.
This is a case of an investment gone bad. In July 1983, plaintiffs invested $40,000 from a lump-sum workers’ compensation benefits settlement in the Damson 1983-84 Oil and Gas Income Fund, a limited partnership, on the advice of Steven Malmquist, a broker at defendant, First of Michigan Corporation. Plaintiff Greg Webb testified in a deposition that he made the investment because of the representation that it was risk-free and would yield at least eighteen percent interest. In the months following their investment, plaintiffs became concerned that performance was not as had been "guaranteed.” On several occasions, plaintiffs spoke with Roger Prince, the broker who took over the account from Malmquist. On these occasions, they expressed concern about the soundness of the investment. At no time, however, did plaintiffs decide to terminate the investment, but, rather, they played the odds to see what the future would bring. By 1989, plaintiffs’ investment decreased in value to such an extent that it could be classified as worthless, prompting them to file this action.
Plaintiffs’ complaint named broker Steven Malmquist as a party, in addition to defendant corporation. Malmquist was never served, however, and thus is not a party to this appeal. Rather than file an answer, defendant First of Michigan moved for summary disposition of the four-count complaint. The trial court granted the motion with regard to plaintiffs’ fourth claim, which alleged a violation of the Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq., but denied the motion without prejudice with regard to the remaining claims, which alleged fraud and misrepresentation, unsuitability of investment, and breach of an implied contract. In so ruling, the trial court indicated that material issues of fact existed regarding whether plaintiffs ratified the actions of defendant’s agents by retaining their investment in spite of indications that it was not performing as promised.
Upon completion of discovery, defendant renewed its motion for summary disposition with regard to the remaining three counts pursuant to MCR 2.116(C)(7) and (10), arguing that there existed no factual dispute that plaintiffs had ratified the alleged prior misdeeds of Steven Malmquist. The trial court agreed and granted the motion.
On appeal, plaintiffs contend that a genuine issue of fact does exist regarding whether their conduct constitutes ratification such that summary disposition should have been denied. Even were we to agree with plaintiffs that summary disposition based on ratification was improper, we nonetheless conclude that the trial court reached the correct result in dismissing the complaint, but for different reasons.
A review of plaintiffs’ complaint indicates that their claims against defendant are based on events surrounding the initial investment in Damson Oil and Gas. The essence of the complaint is one for fraud occurring when plaintiffs were deciding on an investment strategy. They claim that they had been misinformed about the nature of the risks involved and the interest potential of the Damson investment opportunity. Plaintiff Greg Webb testified in a deposition that Malmquist stated that the investment was "risk-free” with a "guaranteed” eighteen percent interest return rate. Plaintiffs alleged that these statements were knowingly false when made and were made with the intent that plaintiffs make their investment in reliance upon them.
In general, to constitute actionable fraud plaintiffs must establish that (1) defendant made a material representation; (2) it was false; (3) when it was made defendant knew that it was false, or made it recklessly, without knowledge of its truth and as a positive assertion; (4) defendant made it with the intent that it should be acted upon by plaintiff; (5) plaintiff did act in reliance upon it; and (6) plaintiff thereby suffered injury. Hi-Way Motor Co v Int’l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976), quoting Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919).
Viewing the facts most favorably to plaintiffs, there appears to be no dispute that defendant, through its broker Steven Malmquist, made representations regarding the nature of the risk involved and the return investment "guaranteed.” The question becomes, however, whether these statements relate to past or existing facts and are thus actionable, or whether they relate to a future promise or expectation that does not constitute fraud. See Hi-Way Motor Co, supra. With this in mind, we have little difficulty concluding that the statement regarding the eighteen percent interest return rate was nothing more than a promise of future benefit that cannot, by law, constitute fraud.
The statement that the investment was "risk-free,” however, is more problematic. In the context in which it was made, the statement by the investment broker has the appearance of a mere expression of professional opinion or of "puffing,” neither of which would be actionable. See Hayes Construction Co v Silverthorn, 343 Mich 421, 426; 72 NW2d 190 (1955); Van Tassel v McDonald Corp, 159 Mich App 745, 750-753; 407 NW2d 6 (1987). Giving the benefit of doubt to plaintiffs, as required, we find that under the circumstances the statement was one of past or existing fact and thus could form the basis of a fraud claim. Nevertheless, there can be no fraud where the means of knowledge regarding the truthfulness of the representation are available to the plaintiff and the degree of their utilization has not been prohibited by the defendant. Schuler v American Motors Sales Corp, 39 Mich App 276, 279-280; 197 NW2d 493 (1972). See also Van Tassel, supra. Here, plaintiffs acknowledged receipt of the Damson 1983-84 Oil and Gas Income Fund prospectus and agreement to its terms by signing the subscription agreement form before making their initial investment. The subscription agreement and power of attorney form states that the person signing "warrants, represents, covenants and agrees” that the "undersigned” "understands the nature of the risks involved” in the investment and "the financial hazards involved in the offering, including the speculative nature of the investment and the risk of losing the undersigned’s entire investment.” Further, the front page of the prospectus states that the investment involves special risks and that the reader should consult the risk factors section. Beginning on page four of the prospectus, the risk factors involved are explained in detail and cover 3Vz pages. Even a cursory review of any of these documents would have enlightened plaintiffs that the investment was not "risk free” as represented by the broker. Accordingly, we hold that plaintiffs cannot claim to have been defrauded when they had information available to them that they chose to ignore.
We affirm the order of the trial court dismissing plaintiffs’ complaint for the reasons expressed above. Under the circumstances, we find it unnecessary to address the issue of ratification.
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Shepherd, J.
Following a jury trial, defendant was convicted of three counts of first-degree criminal sexual conduct, MCL 750.520(b); MSA 28.788(2), one count of breaking and entering, MCL 750.110; MSA 28.305, and one count of unarmed robbery, MCL 750.530; MSA 28.798. Defendant was sentenced to concurrent prison terms of thirty to sixty years for each of the esc i convictions and ten to fifteen years each for the breaking and entering and unarmed robbery convictions. Defendant appeals as of right, and we affirm.
Defendant’s convictions arose out of events that occurred in the early morning hours of May 10, 1988, in the victim’s house in Warren. The victim testified that she was awakened at approximately 3:00 a.m. by a man standing next to her bed. The man knocked off her glasses, put his hand over her eyes, and turned off the light. The victim testified that just before he knocked off her glasses, she recognized her assailant as her former baby-sitter’s boyfriend. The victim testified that she felt something sharp in her side and that defendant put a pillow over her face and forced her to put her hands to her sides. After completing the sexual assault, the assailant left the bedroom and ran out the front door of the house, taking the victim’s purse that was on the dining room table.
Defendant first argues that the trial court committed error requiring reversal by permitting Glen Moore, a crime laboratory scientist with the Michigan State Police, to testify as an expert in the field of hair analysis regarding a comparison of hair samples. At trial, Moore testified, over a defense objection, that he analyzed several hairs taken from the victim’s bedsheets and that one of the hairs was similar in all respects to a pubic hair taken from defendant and could have come from defendant. The expert testified that both sets of pubic hair came from a Caucasian with a Mediterranean background. However, the expert was unable to say with certainty that defendant was the source of the hair or what percentage of the subgroup population might be the source.
Defendant urges us to consider Judge Peterson’s forceful dissent in People v Rosters, 175 Mich App 748, 757-776; 438 NW2d 651 (1989), lv gtd 434 Mich 900 (1990), vacated and lv den 437 Mich 937 (1991). In Rosters, the defendant was convicted of sexually molesting his young son and daughter. There, a majority of this Court held that evidence comparing a sample of the defendant’s pubic hair with pubic hairs that were found on the daughter’s diaper immediately after the defendant’s admitted visitation with her was admissible under MRE 401 because it tended to connect the defendant with the crime.
In his dissent, Judge Peterson argued that the pubic-hair evidence should have been excluded under MRE 702, MRE 401, and MRE 403. First, he argued that even if the hair comparison evidence satisfies the test adopted from People v Davis, 343 Mich 348; 72 NW2d 269 (1955), and Frye v United States, 54 US App DC 46; 293 F 1013 (1923), relative to allowing an expert to testify concerning his findings or opinion, the expert was limited to describing the hairs as being Caucasian pubic hairs and could not testify concerning whether the hairs could or might be from the defendant, because such testimony was not necessary to help a jury understand the evidence under MRE 702. Under the Davis-Frye rule, novel scientific evidence must be shown to have gained the general acceptance of the particular field in which it belongs to be admissible at trial. People v Young, 418 Mich 1, 17-18; 340 NW2d 805 (1983), after remand 425 Mich 470; 391 NW2d 270 (1986).
Judge Peterson also argued in opposition to various panels of this Court that had admitted hair-matching evidence under MRE 401. See Peo ple v Horton, 99 Mich App 40; 297 NW2d 857 (1980); People v Goree, 132 Mich App 693; 349 NW2d 220 (1984); People v Furman, 158 Mich App 302; 404 NW2d 246 (1987). In Rosters, Judge Peterson argued that the evidence in question suggests neither a greater nor a lesser probability that the hairs were from the defendant, because no evidence of probability was shown. Moreover, even if the expert testimony had any relevance, Judge Peterson contended that it should be excluded under MRE 403, because its probative value was substantially outweighed by the prejudicial effect of superficial scientific testimony.
In their respective dissents to the Supreme Court’s order vacating its previous order granting leave to appeal, Chief Justice Cavanagh and Justice Levin agreed with Judge Peterson that it was error to admit the hair-matching evidence. Rosters, supra, 437 Mich 937-952. Chief Justice Cavanagh argued that the hair-matching evidence was inadmissible because the expert testimony was irrelevant and improper and because the prosecutor’s distortion and misrepresentation of the nature of the evidence during closing argument may have prejudiced the defendant and influenced the verdict. Chief Justice Cavanagh stated:
The expert’s testimony thus lacked any significant probative value for purposes of identifying the defendant as the source of the disputed hairs. See MRE 401. Because, on the basis of the expert’s testimony, it is conceivable that thousands of individuals in the local area might have produced the hairs, this evidence established only an infinitesimally small possibility that the defendant and the abuser were one and the same individual. Any minuscule probative value such evidence might have would clearly be outweighed by the unfair prejudicial effect. See MRE 403. [Id., pp 939-940].
In arguing that the evidence lacked any significant probative value, Chief Justice Cavanagh noted that the expert witness could not provide "any meaningful statistical grouping for the jury” and could only arrive at "the meaningless conclusion that the disputed hairs might have come from defendant, just as they might have come from any other Caucasian.” Emphasis in original; id., p 942.
More importantly, however, Chief Justice Cavanagh found that the "jury may have vested this evidence with undue weight,” owing to the prosecutor’s misleading and distorted presentation of the hair-analysis evidence. During closing argument, the prosecutor argued:
[CJould it be that somebody else has pubic hair with a similar characteristic to that? Yes, it’s possible, but it’s not likely. Not likely, not likely, not likely, not likely, not likely, not likely. Seven times.
Add it all up. Is it possible that this could be somebody else’s pubic hair other than Elroy Rosters? It’s possible. How likely? We don’t know. There are no numbers for that sort of thing. [Id.]
In his dissent, Justice Levin agreed with Chief Justice Cavanagh that the hair-sample evidence was "pseudoscientific evidence that might very well have misled the jury.” Id., p 952.
In the instant case, we must conclude, as have previous panels of this Court that have addressed the question of the admissibility of hair-matching evidence offered by an expert, that the trial court’s admission of this type of evidence did not constitute error requiring reversal. See People v Hayden, 125 Mich App 650, 658-659; 337 NW2d 258 (1983). First, microscopic hair analysis satisfies the Davis-Frye test for admissibility of scientific opin ion testimony. People v Watkins, 78 Mich App 89, 95-96; 259 NW2d 381 (1977).
Second, the hair-matching evidence constitutes relevant evidence under MRE 401. In this case, the testimony that the pubic hair found in the victim’s bed was similar in all relevant respects to the defendant’s pubic hair has probative value, because it places defendant within the group of suspects that could have committed the crimes and thereby makes it more probable than not that defendant was the perpetrator. In finding that this evidence satisfies MRE 401, we note that it is not necessary to provide evidence of degrees of probability, as Judge Peterson contended. The fact that defendant was not excluded from the class of possible suspects suffices to show that the evidence is relevant and is entitled to some weight by the jury, even though the expert did not positively identify defendant as the source of the pubic hair found in the victim’s hedsheets. Equally, we note that this type of evidence could also be relevant to exclude a person as a possible suspect in a case. See, e.g., State v Acklin, 317 NC 677; 346 SE2d 481 (1986), where the Supreme Court of North Carolina found prejudicial error requiring a new trial in a rape and kidnapping prosecution where the trial court refused to admit laboratory reports showing that pubic hair and semen found on a victim were not attributable to the defendant.
Further, the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice under MRE 403. In this case, there was substantial, if not overwhelming, evidence of defendant’s guilt. The victim identified defendant as the perpetrator. Although the victim saw her assailant for just one second, she immediately recognized him as her baby-sitter’s former boyfriend, who lived down the street from her. Further, defendant owned a blue jean jacket and black leather gloves similar to what the victim’s assailant was wearing. The evidence also indicated that defendant apparently entered the home through the kitchen window. Afterwards, a large knife with a black handle was discovered in the kitchen sink, and a smaller knife with a pearl handle and a serrated blade was found in the victim’s bed. Neither knife belonged to the victim. However, both knives matched other knives that were found several days later in defendant’s house when the police searched his house pursuant to a search warrant. The police found five knives in a kitchen drawer identical to the knife found in the victim’s bed. The police also found a butcher-block knife holder on his kitchen counter that was missing one knife similar to the large black-handled knife found in the kitchen sink.
Moreover, there is little reason to suppose that the jury in this case accorded undue weight to this evidence. During closing argument, the prosecutor fairly summed up the expert’s testimony:
You recall that he told you that, in all respects, the hair that was found in the bed is similar to the known pubic hairs of Kenneth Vettese. That fact, in of itself [sic], does not, I submit, conclusively prove that Kenneth Vettese is the guy. But the mere fact that the hairs in the bed and the hairs plucked from Kenneth Vettese are similar in every respect and at least puts him in the group of people to be considered by you.
We do not believe that the prosecutor’s characterization of the testimony prejudiced defendant or improperly influenced the verdict. Unlike his counterpart in Rosters who apparently sought to exploit the jury’s potential misapprehension of this evidence, the prosecutor in this case presented the evidence as being no more valuable than it actually was, made the jury aware of the limitations of this evidence, and asked the jury to consider it for whatever benefit it may provide.
If the prosecutor had offered only the hair-matching evidence in support of the identification of the defendant, we would have been constrained to conclude that its prejudicial effect substantially outweighed its probative value. By the same token, if the prosecutor had presented the hair-matching evidence in an otherwise weak case in which the other evidence was not sufficient to establish the defendant’s guilt, we similarly would be constrained to conclude that the evidence was more prejudicial than probative. See State v Stallings, 77 NC App 189; 334 SE2d 485 (1985), where the court concluded that evidence of microscopic hair analysis was insufficient to take a case to the jury absent some other substantial evidence of guilt. Where, as here, the prosecutor has substantial, if not overwhelming, evidence of a defendant’s guilt and presents the hair-matching evidence with circumspection, then we do not see how its probative value could be substantially outweighed by any unfair prejudice.
We further note that reversal in this case would be warranted only if the Michigan Supreme Court adopted a rule excluding all hair-analysis testimony offered by an expert because the prejudicial effect substantially outweighs its probative value in all circumstances. Under such a rule, the introduction of hair-matching evidence could never constitute harmless error. As yet, our Supreme Court has not decided this precise question. Further, even Chief Justice Cavanagh in his dissent in Rosters does not clearly embrace a rule excluding this type of evidence in all circumstances. We note that no other jurisdiction that has considered this question has adopted such a rule.
Defendant next argues that he was denied his right to a fair trial because the trial court gave a coercive instruction to the jury and because the atmosphere surrounding the jury’s deliberations was coercive. In support of this claim, defendant presents the affidavit of juror Kyla Miller, who contacted defendant and his counsel more than a year after the verdict. In her affidavit, juror Miller states that the members of the jury were coerced and pressured by the trial court’s instruction to reach a verdict by 5:00 p.m. or return the next day and that certain members of the jury coerced three or four jurors into reaching a guilty verdict so that the jurors would not have to return the next day. The affiant also states that the holdout jurors were coerced by this deadline because the jury was over term and that one juror was excused when she lost her job because of her jury service.
Claims of coerced verdicts are reviewed case by case, and all the facts and circumstances, including the particular language used by the trial court, must be considered. People v Malone, 180 Mich App 347, 352; 447 NW2d 157 (1989). As a general rule, jurors may not impeach their verdicts by affidavits. People v Pizzino, 313 Mich 97; 20 NW2d 824 (1945); Hoffman v Monroe Public Schools, 96 Mich App 256; 292 NW2d 542 (1980). However, affidavits or testimony impeaching the verdict are properly received where they concern overt acts, accessible to the knowledge of all the jurors, that do not involve matters inhering in the verdict. People v Graham, 84 Mich App 663; 270 NW2d 673 (1978). Mistakes or misconduct inherent in the verdict may not be challenged. Id. Moreover, a reviewing court should not rely upon an affidavit that is generalized, ambiguous, or vague. Id.; Peo ple v Van Camp, 356 Mich 593; 97 NW2d 726 (1959).
In the instant case, the trial court instructed the jury as follows:
And if you have not arrived at a verdict by 5:00 [p.m.], you will be excused and asked to report back here tomorrow morning at 8:30 and commence your deliberations in the morning.
It is clear that the trial court’s instruction was not coercive and merely indicated that the jurors would have to return the next day if they did not reach a verdict by 5:00 p.m. There is nothing in the trial court’s instruction to suggest that the jurors had to reach a verdict by that time.
Further, we find no basis upon which to consider juror Miller’s affidavit. The affidavit contains only vague allegations dealing with matters inherent in the verdict that may not be challenged. People v Graham, supra. While the affiant alleges that the jurors were influenced by the fact that one juror had lost her job because of jury service, there is no suggestion that the remaining jurors were confronting a similar situation or were influenced by the excused juror’s situation. Thus, we conclude that defendant was not denied a fair trial because of the trial court’s instruction or a coercive atmosphere during the jury’s deliberations.
Defendant also contends that the trial court erred in denying his motion for a mistrial, in which the defendant argued that the prosecutor improperly shifted the burden of proof to defendant during voir dire by asking prospective members of the jury whether they would have a problem in determining intent by defendant’s words and actions.
Denial of a motion for a mistrial rests within the sound discretion of the trial court and will not be disturbed unless such denial constituted an abuse of discretion. People v Von Everett, 156 Mich App 615, 621-622; 402 NW2d 773 (1986). To find error requiring reversal, a trial court’s denial of a mistrial must have been so gross as to have deprived the defendant of a fair trial and to have resulted in a miscarriage of justice. Reversal is not warranted unless the defendant makes an affirmative showing of prejudice resulting from the abuse of discretion. Id.
After a review of the record, we find nothing to indicate actual prejudice to defendant or that he was denied a fair trial. Thus, the trial court did not err in refusing to grant defendant’s motion for a mistrial.
Defendant next claims that he was denied a fair trial owing to the cumulative effect of the errors. We find this claim to be without merit.
Defendant finally claims that his sentence of thirty to sixty years in prison for each of the three convictions of first-degree criminal sexual conduct violates the principle of proportionality enunciated in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). We disagree.
In Milbourn, pp 635-636, 654, the Supreme Court held that a sentencing court abuses its discretion when it violates the principle of proportionality, which requires a sentence to be proportionate to the seriousness of the crime and the defendant’s prior record. The second edition of the sentencing guidelines is the best "barometer” of proportionality. Id., p 656. A sentence within the guidelines is presumptively proportionate. People v Broden, 428 Mich 343, 354; 408 NW2d 789 (1987).
In the instant case, the sentencing guideline range for each esc i conviction was 180 months to 360 months. Defendant’s thirty-year minimum sentence for each esc i conviction was at the maximum of the sentencing guidelines minimum range of thirty years, and thus presumptively proportionate. Defendant has not presented mitigating factors relating to his criminal history or the circumstances of these offenses sufficient to overcome this presumption of proportionality. People v Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991). Although defendant asserts that this case and the offender are far from being the "worst,” we note that defendant broke into the victim’s home, raped her repeatedly while armed with a knife, and threatened to kill her and her two children, ages ten and twelve at the time, who were awakened by their mother’s screams but were too frightened to leave their adjoining bedrooms to come to her aid. Having reviewed the record, we conclude that defendant’s sentences are proportionate to the seriousness of the circumstances surrounding the offenses and the offender and do not constitute an abuse of discretion.
Affirmed. | [
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North, J.
This is an appeal from the circuit judge’s order dismissing appellant’s petition filed under Court Rule No. 4, by which petition it was sought to have defendant ordered to pay to petitioner money claimed to have come into defendant’s possession while he was acting as attorney for petitioner. The pertinent portion of Court Rule No. 4 reads :
“The circuit court of the county in which any attorney resides has jurisdiction in all matters in which the relationship of attorney and client exists, and, on verified written complaint of any client, * * * and hearing of such complaint, may make any order either for the payment of money or for the performance of any act by any attorney which law and justice may require.”
The petition was dismissed on the ground that the proceeding provided in the rule is available only when the relation of attorney and client’ is established, and such relation was not shown to exist between petitioner and defendant.
Petitioner had taken part in a transaction wherein Timothy A. Roberts and Harry P. Stickney perpetrated a fraud upon Walter A. Reinert. Later petitioner contracted with Reinert to prosecute a suit in the latter’s name to recover for the fraud, one-half of the amount so recovered to go to petitioner and his attorney. The latter two also agreed to divide equally the contingent compensation. The suit was instituted, but before hearing in the circuit court, because of circumstances which prevented the attorney procured by petitioner from continuing to handle the case, Reinert employed defendant as his attorney, although the former attorney also continued of record in the case. Defendant prosecuted the litigation to a conclusion. The case was twice before this court and is reported in Reinert v. Roberts, 250 Mich. 387, and 254 Mich. 433. Defendant received for his client upwards of $7,000. Petitioner seeks in this proceeding under Court Rule No. 4 to recover one-fourth of the amount received by defendant.
The record conclusively discloses that petitioner had nothing to do with employing defendant as attorney in the case; nor was petitioner a party litigant in the suit prosecuted, and defendant in no way became a party to the contract between petitioner and Reinert. In fact, before defendant contracted to represent Reinert, petitioner had assigned in writing his interest in the Reinert contract to the attorney first employed in the case; and this fact was known to Reinert at the time he retained defendant. The circuit judge rightly found that the relation of attorney and client was not established between defendant and petitioner, and was right in holding that in the absence of the relation of attorney and client petitioner could not maintain this proceeding under Court Rule No. 4.
“Before a court can enforce payment by an attorney in a summary proceeding, the attorney must have received the money while the relation of attorney and client existed.” In re Minnesota Phonograph Co., 148 App. Div. 56 (132 N. Y. Supp. 1063 [syllabus]).
“The courts will not enforce ordinary contractual obligations not springing out of the relationship of attorney and client by a summary proceeding, even though the obligor happens to be an attorney.” (Syllabus) In the matter of Niagara, L. & O. Power Co., 203 N. Y. 493 (97 N. E. 33, 38 L. R. A. [N. S.] 207, Ann. Cas. 1913B, 234).
In view of the above holding, it is unnecessary to pass upon appellee’s contention that the contract entered into between petitioner and Reinert is contrary to public policy and void or upon other questions raised. The judgment of the circuit court is affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, Pead, Wiest, and Butzel, JJ., concurred. | [
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] |
Butzel, J.
Miller-Storm Company, Inc., herein referred to as “Miller-Storm,” realtors and builders, acquired or erected over a considerable period of time a large number of medium-priced houses. They turned their capital by first securing mortgages on the houses, then selling them on land contracts with down payments and serial payments at regular intervals, and then finally discounting the equities with investors. In most instances the houses were sold to people whose ability to pay depended upon steady employment. In the fall of 1929, real estate values in Detroit had been steadily declining from the peak prices of former years and land contracts were becoming more speculative in character. This condition appears to have been reflected in the negotiations between Miller-Storm and defendant, the Mortgage & Contract Company, which culminated in the sale of 62 contracts by Miller-Storm to defendant, for the sum of $180,253.96, of which $50,000 was retained by defendant as partial security in accordance with the agreement hereinafter set forth. Assignments of the contracts, accompanied by warranty deeds, were delivered to defendant in each instance. The aggregate amount still due on the 62 contracts at the time of the sale was $562,500.02, from which the following amounts were deducted in the arrangement: $262,679.66 for first and $5,609.26 for second mortgages on the 62 parcels of property, $4,500 for the release of an additional mortgage, various sums for taxes, expenses, etc., the $50,000 security fund, and $102,358.83 as a discount to defendant. The method by which the .discount was arrived at is in dispute. Under the directions of Miller-Storm, $103,003.96 of the remaining $130,000 was paid to a lumber company which was pressing for payment, and the balance was paid to a trust company. Although Miller-Storm did not become surety for the payments on the land contracts, it did secure them in two ways: by leaving with defendant $50,000 of the purchase price as hereinbefore stated, and in addition thereto, by turning over to defendant 10 additional land contracts referred to as “B” contracts to distinguish them from the 62 contracts sold and identified as “A” contracts. The amount due on the “B” contracts after the deduction of mortgages aggregating $38,672.79 on the 10 parcels of property, was $43,956.04. The parties executed a written agreement, Exhibit “1” which is as follows:
“Agreement, made this 26th day of October, 1929, between Miller-Storm Company, Inc., a Michigan corporation, party of the first part, and The Mortgage and Contract Company, a Michigan corporation, party of the second part,
“Witnesseth as follows:
“(1) In consideration of $130,253.96, this day paid by second party to first party, first party hereby sells, assigns and transfers to second party all its right, title and interest in and to the land contracts described in the attached schedule marked Exhibit ‘A,’ and hereby delivers to second party separate assignments of said contracts and deeds covering the property described therein.
“(2) The amounts paid upon ..said contracts by the vendees named therein, or their assignors, fall short of sums which second party feels to be necessary as adequate security to insure the payment by the vendees or their assignees of the sums remaining due upon said contracts. It is therefore agreed that second party shall retain from the purchase price of said contracts the sum of $50,000, paying 6 per cent, per annum semi-annually to first party as interest upon said sum, or such part thereof as shall remain with second party, and shall hold the same under the terms and conditions hereinafter set forth, and as further security for the faithful performance of said contracts by the said vendees or their assignees, first party hereby assigns and transfers to second party all its right, title and interest in and to the land contracts described in the attached schedule marked Exhibit ‘B,’ and hereby delivers to second party separate assignments of said contracts and deeds covering the property described therein, and it is agreed that second party shall hold the said contracts under the terms and conditions hereinafter set forth.
“ (3) On the 1st day of May, 1930, and semi-annually thereafter, if the vendees named in the contracts described in Exhibits ‘A’ and ‘B’ or their assignees shall have at that time paid all instalments of principal and interest which have fallen due upon said contracts to a date 60 days prior thereto, and shall have also paid all taxes and insurance premiums which have fallen due during said period, second party shall remit to first party one-sixth of said fund of $50,000 until the entire fund has been repaid to first party. It is understood that the security of said contracts depends in part upon payments being made thereon by the vendees or their assignees, and that second party shall not be required to recognize contracts as not delinquent where part or all of the payments have been paid by first party in order to prevent said contracts from being termed delinquent hereunder. Second party shall make the collections on the contracts described in Exhibit ‘B,’ and on or before the 15th day of each month, commencing December 15, 1929, shall remit to first party all sums so collected up to the end of the preceding month with a statement showing the application of the same, except' as hereinafter provided.
“(4) First party has the right to inspect the books and records of second party pertaining to said contracts from time to time for the purpose of learning the condition of contracts assigned.
“(5) In the event any of the contracts described in Exhibits ‘A’ and ‘B’ become in default prior to the 1st day of May, 1930, and remain in default for a period of 90 days, first party shall immediately substitute other contracts satisfactory to second party in place thereof, and after the said 1st day of May, 1930, in the event any of the contracts described in Exhibit ‘A’ shall become in default, and remain in default for said period of 90 days, second party shall become the absolute owner of one of the contracts described in Exhibit £B,’ second party having the right to make the selection of such contract to replace the contract so in default, and first party agrees to confirm such selection by giving second party a quitclaim deed to the property in question. In the event any of the contracts described in Exhibit £B! shall become in default at any time, and shall remain in default for a period of 90 days, first party shall immediately substitute .other contracts satisfactory to second party in the place thereof. First party shall have the right to withdraw any of the contracts described in Exhibit £B’ at any time upon substituting therefor other contracts satisfactory to second party. It is understood and agreed that inasmuch as second party has investigated the contracts described in schedules £A’ and £B’ to ascertain the security thereof, all substituted contracts must be satisfactory to second party and second party shall not be obligated to take any such substituted contracts unless it is satisfied with the security thereof. All contracts offered by first party to replace contracts in default shall be accompanied by an abstract of title certified to date, and all expense in connection with investigating such contracts and in having the title examined shall be paid by first party, regardless of whether or not said contracts are accepted by second party. First party shall also pay all expense in connection with substituting such contracts. After such substitution has been completed the defaulted contract shall be returned to first party and second party shall reconvey the property embraced' thereby to first party by warranty deed covenanting only against its own acts and subject to such incumbrances as are assumed by first party.
“ (6) It is further agreed that in lieu of replacing any of the contracts described in Exhibit ‘A’ after such default, first party may purchase the same from second party at their face value less a pro rata reduction of the discount allowed second party on the date hereof in the proportion the time it would take to pay said contracts down to the mortgages now existing against the property in question, computed from the date of the default, bears to the time it would take to pay said contracts down to said mortgages, computed from the date hereof, assuming no extra payments were made thereon.
“ (7) It is further agreed that in the event there is any default upon the part of the first party in making the substitution above provided for, second party mhy withhold remittances due first party from any source until the said default has been cured. It is further agreed that in the event any of the contracts described in Exhibit ‘A’ shall remain in default for a period of 60 days, second party may withhold remittances due first party.
“ (8) In the event default is made by first party in replacing or purchasing contracts as above provided, second party, for the protection of the respective interests of the parties hereto, may commence suit against the vendees or their assignees for the collections of payments in arrears, or may serve notice of forfeiture upon said vendees or their assignees, and institute summary proceedings to re cover possession, of the premises described in said land contracts, although it is expressly understood and agreed that second party shall be under no obligation so to do, and any such action on the part of the second party shall not be construed as a waiver of any of the rights of second party hereunder and shall not cure any default of the first party, and first party shall be liable for the expense of such proceedings and shall pay second party for any loss sustained by reason of the repossession of any such premises, and second party may deduct such expense, and any such loss from any money in its possession due first party and in addition the contracts described in Exhibit ‘B’ shall stand as security for the payment of any such expense or damage.
“(9) For the purpose of satisfying second party of the condition of title of the premises covered by the contracts described in Exhibits and ‘B,’ and to supply it with information upon which it may rely in purchasing the contracts described in Exhibit ‘A,’ first party and the officers executing this instrument on behalf of first party, represent that first party is the owner of the premises embraced by the said contracts described in Exhibits ‘ A’ and ‘B, ’ and that there are no incumbrances against the same except the first mortgages set forth in the warranty deeds delivered to second party, and that the amounts unpaid on the said contracts are as set forth in the schedules attached hereto, and further that all bills for labor and materials performed or furnished for the erection of the buildings upon said premises are paid. ’ ’
Exhibit 1 does not completely define the rights and duties of the respective parties. There seems to be no provision for any substitution for “A” contracts that defaulted after May 1,1930, and were in default for 90 days with the exception of certain provisions regarding “B” contracts. The parties are not in accord as to what should constitute a default. The respective duties of the parties in making and enforcing collections are not provided for. While the agreement provides that “all substituted contracts must be satisfactory to second party and second party shall not be obligated to take any such substituted contracts until it is satisfied with the security thereof,” the parties agree that approval of contracts offered in substitution could not be withheld for any captious or arbitrary reason. On the other hand, many elements may enter into the determination of the value of a land contract offered in substitution for a defaulted one. The financial responsibility of the vendee, the value of the land, the price for which it has been sold, the amount of the down payment and the unpaid balance, the amount of the serial payments, the character and condition of the house as well as its reproduction cost, the amount of the mortgage, the period for which it has to run and the payments to be made thereupon, must all be considered. Very many and serious defaults in the contracts occurred. Three of the class “A” contracts were in default at the time the agreement was executed. On May 1, 1930, it is claimed that “A” contracts, with equities totaling $66,000, were in default over two months. On October 1, 1930, according to defendant’s figures, contracts with equities of over $65,000 were in default; plaintiff claims they amounted to only $26,000. The contracts seemed to become progressively worse. Miller-Storm offered defendant numerous replacement contracts from time to time. The claim is made that Miss Battelle, defendant’s agent, who had charge of the defendant’s contracts, was captious and arbitrary in her refusal to accept substitutions for de faulted contracts. It is further shown that Miller-Storm refused to turn over three contracts satisfactory to defendant in substitution for defaulted contracts. Plaintiff claims that Miller-Storm were not obligated to turn over their very best contracts to defendant. The proposed replacement contracts were at no time offered simultaneously. Testimony is not given in regard to each of these contracts and we cannot tell which contracts were arbitrarily refused.
It is further claimed by defendant that the discount was based upon the yield of the contracts, and that one providing for early mortgage maturities or amortization to be paid by the vendor should be sold at a larger discount than one where the mortgage payments may not become due until much later. It is apparent that the former ultimately would require a larger investment than the latter, and this may be a reasonable ground for dissatisfaction. Many other questions are raised by defendant. The record does indicate that in certain instances some of the contracts may have been summarily and arbitrarily rejected, despite Miss Battelle’s statement to the contrary. Complete testimony, however, is necessary for the determination of all of these questions.
On February 25, 1931, defendant notified Miller-Storm that it had become the absolute owner of the “B” contracts, and demanded quitclaim deeds covering the properties. In reply, the attorneys for Miller-Storm asked whether defendant intended to return the class “A” contracts of the same amount as the class “B” contracts. Defendant thereupon announced that, inasmuch as Miller-Storm had not fulfilled the terms of the agreement, it would not return any of the defaulted “A” contracts, but would credit the hold-out account with the purchase price of the “B” contracts, and that this was the only way to handle the matter, as there were insufficient “B” contracts to replace all of the defaulted “A” contracts. On March 12, 1931, Miller-Storm tendered quitclaim deeds of the properties covered by the “B”' contracts and demanded the reconveyance of the defaulted “A” contracts with equities in the amount of the “B” contracts. One of plaintiff’s attorneys saw Miss Battelle at that time, and she refused to accede to this demand. She stated that she would consult counsel and advise Miller-Storm if she should change her mind. She claims that no time was mentioned in which to give her reply. Plaintiff, however, claims that Miller-Storm were to be notified the following day. On March 19, 1931, Miller-Storm assigned its claim and all rights under the agreement to plaintiff, which instituted the present action on the following day. Under its declaration and bill of particulars, it seeks payment of interest on the $50,000 retained by defendant, two instalments of $8,333.33 each that would have become due on May 1 and November 1, 1930, if plaintiff was entitled to repayment, additional interest on these instalments, collections on the “B” contracts, interest on the collections, and 66 per cent, of the equities in the “B” contracts. It also asks for payments of some minor items which we shall not discuss, except to state that one is for $200 arising out of an acceptance letter on a Playview avenue contract which seems not to have been covered in the assignment by Miller-Storm to plaintiff. It is claimed by defendant that there is an error of $835.40 in plaintiff’s computation. Questions arising in regard to these two latter items may also be answered on a new trial.
The plaintiff claimed that defendant was attempting to enforce a penalty or a forfeiture not contem plated by Exhibit 1, and that through its refusal to return the defaulted contracts in exchange for the “B” contracts, it had become liable in an amount equal to the value of the * ‘B ” contracts as well as for the semi-annual instalments and interest on the $50,000 deposit. The case was heard without a jury. The trial judge rendered a very brief opinion in which he stated that plaintiff was entitled to recover the full amount claimed, and rendered a judgment of $57,414.70 against defendant. Neither findings of fact nor law were requested or filed.
We would remand the case for the taking of further testimony, proper findings, and further briefs on the questions raised were we not of the belief that the matters in dispute can only be decided by full and complete testimony taken at a new trial. The various questions raised have not been answered to our satisfaction, nor do we believe that the judgment is justified by the record. It may be stated as a guide to further proceedings that the security funds were not created as a penalty or forfeiture in the event that the “A” contracts defaulted, but solely as a legitimate protection measure. On the other hand, were there some of the “A” contracts in default, defendant in turn should not be penalized by the loss of security intended for its protection under Exhibit 1. This does not, however, preclude plaintiff from recovering any damages to which it may be entitled through any wrongful action on the part of defendant, nor to a portion of the security should it be able to show a right to its return at the present time. In réversing the judgment, we have considered two questions:
1. Did Miller-Storm make such a tender of replacements of contracts as should have been satis factory to defendant and as should have cured the defaults in the “A” contracts so as to entitle plaintiff to the release of some of the moneys held as security?
2. What is the proper measure of damages for defendant’s failure to return defaulted class “A” contracts to plaintiff upon the appropriation of the class ££B” contracts?
In regard to the first question, we have assumed for the purpose of discussion only that Miller-Storm had the right to replace with new contracts class ££A” contracts which defaulted after May 1, 1930. Inasmuch, however, as the agreement does not appear to confer any such right, we reserve opinion on this point and extend to the parties the opportunity to demonstrate to the satisfaction of the court that such a right did or did not exist, and if it did exist, to what extent. The testimony does not prove tender. While one witness testified that the contracts offered in exchange for defaulted contracts were of the same general character and covered the same type of property as the ££A” contracts and the list of such contracts offered in substitution gives much information concerning the vendees and the mortgages, nevertheless, the evidence does not satisfy us that the contracts were such as defendant did not have a right to refuse. The testimony does not show the amount of specific contracts tendered at any one time nor does it prove that if defendant had accepted what in fairness it should have accepted, the defaults would have been cured. We might add, also, that there is a strong indication that some of the contracts were in fact equitable mortgages and could only be foreclosed in equity.
In answer to the second question, the agreement clearly contemplated that upon the appropriation of class “B” contracts for defaults that continued for 90 days the corresponding defaulted class “A” contracts should be returned to Miller-Storm. This is provided for in section 5 of Exhibit 1. It may be that defendant is liable for the value of some defaulted class “A” contracts, but of what contracts? And to what value? While witness Storm testified that the defaulted class “A” contracts were worth at least 66 per cent, of their equities, this statement, even though uneontradicted, is not of sufficient probative force without further proof. When damages are susceptible of precise proof, the facts showing such damages must be given. Meyers v. McQueen, 85 Mich. 156; Richards v. F. C. Matthews & Co., 256 Mich. 159.
Inasmuch as the case was tried without a jury and is considered de novo in this court, we must hold that the judgment is not supported by the testimony and the' case must be remanded for a new trial. Plaintiff asserts in its brief that the controlling facts are not as complicated or as numerous as the record and briefs containing countless data would seem to indicate. To this we cannot subscribe. Defendant, on the other hand, asks that the case be transferred to the equity side of the court, where a proper account in regard to each parcel may be had, and the respective rights of the parties may be determined. As was said in Butler Bros. Shoe Co. v. U. S. Rubber Co., 84 C. C. A. 167, 187 (156 Fed. 1):
“No action at law furnishes as efficient, practical, or adequate a remedy for the decision of such a controversy as a suit in a court of equity, which, with its deliberate methods, its power to select men trained in the science of accounting to take the evidence and state the result, its authority to consider and modify their reports after exceptions and hear ings, is alone really competent to justly determine such, an issue. ’ ’
While a court of equity may be a better forum in which to determine the questions in the instant case, nevertheless a judgment may be obtained on a complicated account in a law action involving many issues, and transfer should only be had if the plaintiff’s rights will not be jeopardized. Securities have been deposited with the county clerk by defendant in order to release garnishment and to satisfy judgment. If by appropriate instrument, approved by the trial court, defendant, will make such bonds secure also the satisfaction of any decree that may be awarded plaintiff, defendant may upon proper motion transfer the case to the equity side of the court where additional pleadings may be filed by either party so that all issues may be. presented and determined as far as possible, and a multiplicity of suits be avoided.
The case is remanded to the trial court, and a new trial ordered. Either party may move for a transfer of the cause to the equity side of the court. Such motion must be made within 30 days of the time this opinion is filed, and if made by defendant, then only on conditions hereinbefore stated. Defendant'will recover costs.
Potter, Sharpe, North, Pead, and Wiest, JJ., concurred. Clark, C. J., and McDonald, J., did not sit. | [
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North, J.
The defendant moved to dismiss plaintiff’s suit on the ground that the declaration did not state a cause of action. Following the hearing of ■this motion plaintiff filed an amended bill of particulars. Thereafter defendant again moved to dismiss, and, among other reasons, set forth the following :
“For the reason that, as to plaintiff’s alleged agreement pertaining to one Osborne, said declaration and bill of particulars, as amended, set forth no facts which show such agreement, nor the compensation, if any, to be received by said plaintiff for his services, nor any loss resulting to said plaintiff.”
Plaintiff reviews by appeal the trial judge’s order dismissing’ his declaration. Plaintiff is an attorney-at-law. Without quoting the material allegations of his declaration, which contains much irrelevant matter, it may he stated his canse of action is for damages by way of lost compensation which he claims he sustained by reason of the defendant inducing one Fred B. Osborne to breach his contract with plaintiff for professional services. The common counts in assumpsit are added. Defendant’s motion to dismiss stresses the claim that plaintiff’s declaration and bill of particulars as amended do not set forth the compensation, if any, which plaintiff would have received for such services or any other specific loss resulting to plaintiff from the wrong alleged to have been done by defendant.
That plaintiff could have furnished a more informative bill of particulars quite conclusively appears from the statement in his brief as to the character of his damages. He states:
“All of the effort, time and expense in the common project of recovering the purchasers’ losses made necessary by the defendant’s breach of the rights and duties set forth in the declaration are chargeable to the defendant as damages.”
Surely he could have specified the extent of the “effort,” the “time” expended, and the various items of “expense” incurred. On the matter of informing defendant of the nature and extent of his damages, plaintiff’s attitude is thus disclosed in his brief:
“If the declaration justifies the allowance of nominal damages the defendant’s motion must be denied. Whether more than'nominal damages are properly averred or proven, is for the day of trial and for the jury. ’ ’
From plaintiff’s declaration and amended bill of particulars it is not possible to ascertain whether the compensation for the loss of which he seeks recovery was a sum of money to be later agreed upon between him and his client, whether the compensation was to be on a per diem basis, or whether it was to be some definite or indefinite part of the amount recovered for the client. Clearly plaintiff’s alleged damages are special in character; and unless they are pleaded the defendant is left entirely in the dark as to this important element of plaintiff’s suit. Defendant is entitled to be reasonably informed as to the nature and extent of the damages for which plaintiff brought suit.
“Such damages as are presumed necessarily to result from the breach of contract need not be stated with particularity, but in other cases it is essential to state the damage specially and circumstantially in order to apprise the defendant of the facts intended to be proved, or the plaintiff will not be permitted to give evidence of such damage on the trial. ’ ’ 2 Abbott’s Cyc. Michigan Practice (2d Ed.), p. 1394.
“It is a familiar principle that damages which are peculiar to the case and spring from exceptional circumstances must be specially alleged or they cannot be recovered.” Brink v. Freoff, 44 Mich. 69.
See, also, Heiser v. Loomis, 47 Mich. 16; Krueger v. Le Blanc, 62 Mich. 70.
Plaintiff’s declaration and amended bill of particulars were-filed in the circuit court prior to the time that the 1931 court rules became effective. Former Circuit Court Rule No. 21 provides:
“Sec. 8. Whenever a pleading, 'at law or in equity, is. deemed to be indefinite, uncertain or incomplete, a further and better statement of the nature of the claim or defense or further and better particulars of any matter stated in any pleading may be ordered on motion. * * *
“Sec. 10. The court on motion and upon equitable terms, shall strike from the files -every pleading not drawn in conformity to these rules.”
Former Circuit Court Rule No. 30, § 2:
“If the plaintiff shall unreasonably neglect to furnish a bill of particulars, or if the bill of particulars delivered be insufficient, the court may in its discretion nonsuit the plaintiff, allow further time to furnish it, or require' a more particular bill to be delivered. ’ ’
Appellant’s contention that his declaration at least sets forth a cause of action entitling him to recover nominal damages is hardly tenable. If his damages are only nominal, obviously it should be held in a case of this character that a miscarriage of justice has not resulted from dismissal of plaintiff’s declaration. (3 Comp. Laws 1929, § 15518.) Further, if plaintiff’s damages were only nominal, his appeal, which has been brought to this court without first obtaining permission, should be dismissed under the statute. (3 Comp. Laws 1929, § 15491.) The ad damnum clause is for $25,000, and we are constrained to dispose of the case as one in which plaintiff seeks to recover substantial damages. A fair and reasonable opportunity was given plaintiff by the circuit judge to file amended pleadings to meet the objections raised by the defendant. This plaintiff failed to do. The circuit judge acted in accordance with the provisions of the court rules in dismissing plaintiff’s declaration. The judgment of the circuit court is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
North, J.
Plaintiff is a man 64 years of age, a widower, totally blind, somewhat deaf, and has in recent years, resided upon a 50-acre farm located in Cheshire township, Allegan county, worth approximately' $4,500. The defendant Earl Sprague is plaintiff’s nephew. On the 7th day of December, 1929, in accordance with an arrangement entered into between the parties, plaintiff executed a quitclaim deed of his farm to defendants, who are husband and wife, and simultaneously plaintiff and de fendants entered into a contract by which diefendants undertook to occupy the farm home with plaintiff and provide him with suitable care and maintenance during the remainder of his life and upon his death give him a respectable burial. The deed was left in escrow with the attorney by whom it was prepared. Following the execution of the deed and contract defendants moved upon the farm and continued to reside there with the plaintiff until July 24, 1930, at which time the parties seem to have had some rather serious trouble. Plaintiff thereupon left the farm home and went to reside with his daughter in Allegan, Michigan, where he has since remained.
On September 15, 1930, plaintiff filed the bill of complaint herein, and, upon the ground of mistake and defendants’ failure to perform under the contract, seeks cancellation of his deed to defendants and of the contract between the parties. The defendants answered. Testimony was taken before the circuit judge, who found that “it is apparent” that all the parties are aware “that it is impossible” to continue under the contractual arrangement, that “the situation that arose was the. natural consequence of what might have been foreseen;” and that it would be inequitable to refuse cancellation. Relief prayed was granted upon the condition that plaintiff should pay to the defendants $250. No costs were awarded. The defendants appealed.
Consideration of the record leads to the conclusion that in making the foregoing disposition of the case the circuit judge was seeking to reimburse defendants at least in part for expenses incurred incident to the arrangement made by the parties. There-are many details of the record which we have not herein set forth; but upon review of the case we are satisfied that the circuit judge made a fair and equitable disposition of the controversy. The decree entered in the circuit court is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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McDonald, J.
This is a suit for the recovery of rents for the use and occupation of a store building in the city of Detroit, Michigan.
The plaintiffs who owned the store building conveyed it in exchange to Bruno Stange and Clara Stange, his wife, for a farm in Tuscola county, Michigan. Later the conveyance was set aside on the ground of fraud by the Wayne circuit court in chancery. Shortly after the Stanges became possessed of the store building, they leased it to the defendant, Cislo, for a period of three years at a monthly rental of $125. When the chancery suit was begun by the plaintiffs, an injunction was issued restraining the Stanges from collecting the rents. Cislo received a copy of the injunction and after consulting with his attorney refused to pay the rent to either party until the suit was terminated. ■ The decree of the chancery court directed a reconveyance of the store building property to the plaintiffs and awarded them the unpaid rentals. The rent due and unpaid at that time was $625. On demand, Cislo refused to pay the plaintiffs and they brought this suit. They obtained a- judgment for the full amount of the rent, from which the defendant has appealed.
It is undisputed that the rent has not been paid by the defendant. He was withholding it until the termination of the chancery suit in which his lessor’s title to the premises was involved. When that suit was terminated, his lessors sent him the following notice:
“Mr. Stanley Cislo,
“Dear Sir:
“Kindly take notice that I am no more owner of premises known and located at No. 4948' Scotten Ave., Detroit, Michigan, and you may move out of said premises whenever it is convenient for you..
“Yours very truly,
“Bruno Stange,
“Clara Stange.”
Mr. Cislo testified:
“Q. The minute you got that you decided .you would move ?
“A. Yes, sir.”
It thus appears that there is no claim of eviction or other complications involved in the case. It is simply a question of the plaintiffs’ right to recover the rents which were due at the time the chancery decree was entered. The decree stands in lieu of a conveyance. It has the same effect as though a conveyance were voluntarily made. It carries all the interest the Stanges had in the property, including the rents to become due, which are treated as an interest in land. But the right to the rents which are already due does not pass with the conveyance unless so stipulated. 2 Tiffany, Real Property, § 407.
The provision of the decree awarding the plaintiffs the unpaid rentals has the same effect as a stipulation in a voluntary conveyance. Moreover, the deed which plaintiffs gave to defendant’s lessors was canceled by decree of the court on the ground of fraud; and in such circumstances, the plaintiffs are entitled to the rents from the time that the grantees wrongfully took possession. 9 C. J. p. 1264; Hack v. Norris, 46 Mich. 587.
If the court was right in setting aside the deed for fraud, he was right in awarding the plaintiffs the unpaid rents, and the fact that the lessee refused to attorn to them does not excuse payment. He was not released by a change in the lessors. Perrin v. Lepper, 34 Mich. 292.
The judgment is affirmed, with costs to the plaintiffs.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
North, J.
These combined suits are for damages arising out of an automobile accident which occurred about 3 a. m., April 5, 1925, at or near the intersection of Woodward avenue and Twelve Mile road in the village of Royal Oak. The plaintiffs, Mr. and Mrs. Angstman, were returning from Detroit to their home and going in a northerly direction on Woodward avenue. He testified they were driving about 20 miles per hour, and, when within 35 or 40 feet of the point of accident, discovered defend ants ’ truck standing on the easterly side of the pavement, which was about 18 feet in width. There was no light on the rear of the truck, which was in charge of an intoxicated driver. Defendants’ negligence conclusively appears from the record. Plaintiffs claim that as soon as Mr. Angstman observed the truck on the highway ahead of him he applied his brakes to his automobile, but without its rate of speed being diminished it “slid” ahead and collided with the right-hand rear corner of defendants’ truck. Mr. Angstman attempted to pass the truck on the right, where there was an intervening space between the pavement and the interurban railway tracks about 10 feet in width. He testified that he ‘ ‘ attempted to miss the truck — in fact I almost did. ’ ’ The force of the impact was such that it practically wrecked the body of Mr. Angstman’s car, the most of the damage being to the left-hand side. The front' axle was bent and the frame sprung. The automobile was equipped with four-wheel brakes which were in good condition. Under Mr. Angstman’s testimony, his car normally could have been stopped within 45 or 50 feet at the rate he testified he was driving. It is plaintiffs’ theory that Mr. Angstman’s inability to stop his car was due to the fact that there was grease or oil upon the pavement; and that he was not aware of this fact, and though he exercised reasonable care he did not ascertain such to be the condition of the highway. Notwithstanding it was a very dark night, plaintiffs ’ testimony is that in driving all the way from Detroit to the point of accident they used only their dim lights. With these they could see ahead from 40 to 50 feet. There were lights along the highway, but plaintiffs claim these were of no material aid to them. Their automobile was equipped with bright lights which, if they had been used, would have enabled the driver to see approximately 75 feet ahead of the car. In this connection Mr. Angstman testified:
“Q. If you had your bright lights on at that time you would have seen it (the truck) a little sooner, would you not?
“A. Unquestionably.
“Q. Perhaps 24 to 30 feet?
“A. Perhaps just the distance between 75 and 45 or 50.
‘ ‘ Q. Had you had your bright lights on you would have had a greater opportunity to bring your car to a stop, would you not?
“A. Yes, sir.”
At the conclusion of the proofs, defendants moved for a directed verdict on the ground that Mr. Angst-man was guilty of contributory negligence. Decision was reserved. The jury rendered a verdict for the plaintiffs. Thereafter defendants moved for judgment non obstante. The motion was denied, and judgments entered for the respective plaintiffs. Defendants’ appeal presents the question as to whether the trial court should have directed a verdict against the plaintiffs on the ground of contributory negligence.
At the point of accident the maximum legal rate of speed was 20 miles per hour; and as to lights, the statute (Act No. 3, Pub. Acts 1921 [2d Ex. Sess.]) required the driver of an automobile to have two front lights which would render “any substantial object clearly discernible on a level highway at least two hundred feet directly ahead.” (For amendments see 1 Comp. Laws 1929, §§4736, 4738, also Act No. 59, Pub. Acts 1931.) On the night in question, Mr. Angstman was admittedly driving at substantially the maximum rate of speed. The highway was level. His view ahead was unobstructed. There were no other vehicles upon the highway bearing lights which in any way interfered with his vision. It seems too clear for argument that if he had been driving with lights which gave him a range of vision 200 feet ahead he would have avoided the accident. With lights that afforded him a range of vision not exceeding 50 feet, he testified he almost escaped the collision.
It is the claim of plaintiffs’ counsel that an issue of fact was presented for the jury under the exceptional decision in Diederichs v. Duke, 234 Mich. 136. There the case went to the jury on the plaintiff’s testimony that just as she approached the rear of the truck with which her automobile collided and on which there were no tail lights, she learned “too late that there was a small strip of icy pavement just behind the trailer;” and that this was the first icy condition on the pavement she had encountered. We are satisfied that the facts here do not come within the exceptional conditions which sent the Diederichs Case to the jury. In the instant case plaintiffs’ theory, as announced to the jury in the opening statement, is:
“He attempted to stop his car, but due to a condition of oil or some condition upon the pavement which hadn’t been discernible to him previously, his car slid and crashed into the truck ahead. ’ ’
Neither of plaintiffs gave testimony tending to sustain this claim, nor did any other witness testify that the condition of the pavement near the point of accident differed from the general condition which had prevailed along this pavement for a considerable time. Mr. Angstman was familiar with this highway, because he had passed over it almost daily in going to and from his office in Detroit. The actual condition is disclosed by the following testimony of one of plaintiffs’ witnesses:
“The condition, it is dark, it was always oily on account of traffic on holidays and Sundays * * * and in fact all the time. At that time traffic moved very slow and a lot of oil dripped on the pavement between Eleven and Twelve Mile road. * * * It is a concrete pavement, it discolored it to a dark color. * * * The pavement has been down a good many years, and the constant passing of automobiles has discolored it:
“Q. All along there it was the same along there for 3 or 4 miles, wasn’t it?
“A. Yes, it was pretty well. * * *
“Q. I said all along between the Eleven and Twelve Mile road the pavement was about the same ?
“A. Yes. _
_ 11Q. And it had been that way for some time?
“A. Yes, sir.”
In the absence of any other testimony which in any material way tends to sustain plaintiffs’ theory as announced in the opening statement to the jury, it cannot be said that any extraordinary condition confronted Mr. Angstman at the point of accident. Plaintiffs here were not entitled to go to the jury under the theory of exceptional and unforeseen conditions as was the plaintiff in the Diederichs Case. Mr. Angstman violated the oft-announced rule of this court that:
“It is negligence as a matter of law to drive an automobile along a public highway in the dark at such speed that it cannot be stopped within the distance that objects can be seen ahead of it.” (Syllabus) Lett v. Summerfield & Hecht, 239 Mich. 699.
As stated by the late Justice Fellows in the case above quoted:
“But we do not think the rule should be weakened by engrafting exceptions on it or modifying it. Its observance bespeaks the safety of human life and limb and of property. Had it been observed on the night in question, this unfortunate accident would not have happened.”
Defendants’ motion for judgment non obstante on the ground of contributory negligence should have been granted. The judgment of the circuit court is reversed, and the case remanded, with direction to enter judgment in accordance herewith. Costs to appellants.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
This is a suit in assumpsit brought by the executor of the estate of Robert W. Brown, deceased, against the Multi-Selecto Phonograph Company, a Delaware corporation, the same being the successor to the Auto Indicator Company, a Michigan corporation. In the circuit court the case was heard by the circuit judge without a jury and judgment rendered in favor of defendant. Plaintiff has appealed.
For convenience we hereinafter refer to Robert W. Brown as plaintiff. He died March 17, 1927. The declaration contains three special counts, and also the common counts. The first two counts are on separate promissory notes and the third count on a so-called account stated.
The promissory note declared on in the first count bears date July 18,1922, for $2,500 payable one year after date to Robert W. Brown with interest at six per cent, per annum. This note is signed “Auto Indicator Co. Robert W. Brown, Y. Pres., V. I. Cilley, Sec.-Treas.” As indicated by the above signatures, both plaintiff and Mr. Cilley were officers of the Auto Indicator Company; and Joseph Renihan was its president. In 1921 a stock selling campaign was prosecuted incident to which plaintiff appears to have been very active. He seems to have had faith in the future of the company, and was instrumental in financing its' affairs. Incident to his activities along this line, he borrowed $2,500 from Mr. Renihan, to whom he gave his note for that amount. The proceeds of this loan, as well as other funds of plaintiff, were advanced to the company to be used in its business. On November 28, 1921, a settlement was entered into between plaintiff and the Auto Indicator Company, incident to which plaintiff gave the following receipt:
“Received of Auto Indicator Company common stock certificate No. 433 for 4,000 shares of the capital stock of the Auto Indicator Company, and certificate No. 434 for 1,000 shares of the capital stock of the Auto Indicator Company, which is payment in full for commissions, cash advanced, and every other obligation to date.”
On July 18, 1922, Mr. Renihan wrote plaintiff in regard to certain sums of money which he had loaned to plaintiff, including the $2,500 above mentioned.. Thereupon plaintiff seems to have been under the impression that this item of $2,500 was overlooked at the time of the settlement of November-28, 1921. Without the knowledge of any of the other officers of the company, plaintiff took the matter up with the bookkeeper, who caused the following entry to be made in the books of the company:
“$2,500. * * * Commission on stock To R. W.. Brown, notes payable $2,500. Error in closing R. W. B. account, December 30,1922. J. Reniban advanced R. W. B. $2,500. R. W. B. guaranteed same, but was not included in final settlement to company, and company still owes R. W. B. $2,500.”
In this connection, the note declared upon in the first count was prepared by the bookkeeper and signed by plaintiff as vice-president of the defendant company. While the testimony is somewhat uncertain, we think the record indicates that the signature of Mr. Cilley as secretary-treasurer was written on this note by Mr. Cilley; but it appears from his testimony that he was accustomed to executing papers at the request of the bookkeeper and often without knowledge as to the details of the particular transaction. Incident to this particular note, the bookkeeper testified:
“The Court: And when you made this note, it was your own understanding that was his due ?
“A. I understood from what he told me that he had it coming to him.
“The Court: Well, regardless of what he told you, was it your understanding of the books that it was?
“A. Well, that is what he gave me to understand. But you see, I didn’t know all that had transpired. I understood he had it coming, and I didn’t know that he had canceled everything through the stock transactions. I tried to keep accurate books. I can’t say I consider that transaction accurate, because I made an error there. I know that. When I closed the books, I should have closed that. I left it open with the $2,500, and I should not have done that. * * * No, all I testify is that it was a direct error on my part in closing that account. * * * My understanding of the settlement of 1921 that it was to wipe out all indebtedness that the company owed Father Brown. ’ ’
A careful review of the record satisfies us that the $2,500 which plaintiff borrowed of Mr. Renihan was included in the November, 1921, settlement between plaintiff and defendant, and therefore this note is without consideration. Having arrived at this conclusion, it is unnecessary to give consideration to the further defense urged that because the note was not executed by the proper officers of the defendant it is not a binding corporate obligation.
Plaintiff’s second count is based on the following promissory note:
“Grand Rapids, Mich., June 9, 1925.
“Ninety days after date for value received we promise to pay to the order of Robert W. Brown $2,778.85 — Twenty-seven hundred seventy-eight and 85/100 dollars with interest at the rate of six per cent. per. annum. * * *
(Signed) “Auto Indicator Co., V. I. Cilley, Sec.Treas. Joseph Renihan, President.”
The circumstances leading to the giving of this note may thus be briefly outlined: On July 16, .1921, the defendant’s 30-day note secured by collateral belonging to plaintiff was used to obtain a bank loan of $3,000 for defendant. This first note was renewed and later the loan by use of the same collateral was secured from another bank, the proceeds of this loan being used by the defendant company tc pay its obligation to the first bank. Later (June 9,1925) plaintiff desiring to repossess his collateral paid the bank on defendant’s note $2,778.85. The balance of the bank’s loan ($520) was paid by defendant; plaintiff was permitted to withdraw his collateral; and defendant thereupon gave plaintiff the note on which he seeks to recover in the second count.
The defense is urged that this note was not executed by any duly-authorized officer or agent of the defendant corporation. Conceding such to he the fact, the indebtedness being established, recovery may be had under the common counts in plaintiff’s declaration. Defendant’s contention that this item was covered by the November, 1921, settlement cannot be sustained, because at that time this was a-debt due from defendant to the bank. It was subsequently paid by plaintiff to enable him to repossess his bonds which he had deposited as collateral to defendant’s note. This was more than four years after the 1921 settlement, and therefore it clearly was not included therein. Under the record plaintiff should recover for this item.
The third count in plaintiff’s declaration alleging an account stated is based upon a memorandum prepared by defendant’s bookkeeper, reading as follows :
“This is to certify that the account between the Auto Indicator Company of Grand Bapids, Michigan, and the Pocket Badio Sales Co. of Grand Bap-ids, Michigan, have balanced their account to date, that is January 7,1924, and have come to the following conclusion:—
“Bobert W. Brown doing business as the Pocket Badio Sales Co. advanced on contract $8,131.36 and took out merchandise to the amount of $1,837.68 which leaves a balance of $6,293.68 on which we allowed him a credit of $750 covering 50 pocket radios which we agree to take back, therefore there is a credit due Bobert W. Brown of $7,043.68.
(Signed) “Auto Indicator Co.,
“By I. B. Lewis.”
Plaintiff entered into a partnership with another man, and the two, operating as the Pocket Badio Sales Company, in 1923 contracted to purchase of defendant and undertook to sell a large number of pocket radios that the defendant manufactured. The venture proved to' be a losing proposition for all concerned. The memorandum above quoted pertained to this phase of the business relations of these parties, but it was not intended to constitute an account stated. At plaintiff’s request this memorandum was prepared by the defendant’s bookkeeper, Isabel R. Lewis. She did this and signed the company’s name thereto without the knowledge of any of the officers of the defendant corporation except plaintiff. Both plaintiff and defendant abandoned the attempted manufacture and sale of the pocket radios as a bad venture. Neither thereafter during plaintiff’s lifetime made any claim against the other. Plaintiff had advanced to defendant a substantial sum of money to be used in the manufacture of pocket radios. He lost practically all of this investment. On the other hand, defendant also lost heavily by reason of plaintiff’s failure to carry out his sales contract. Defendant urges its damages thus sustained as a counterclaim in this case. The record is convincing that each considered the venture closed, and neither asserted a claim against the other; but instead they mutually canceled obligations and abandoned the undertaking. Concerning this phase of the litigation, the secretary-treasurer of the defendant company testified:
“Q. The canceled contract was what?
“A. Well, he just quit selling, that is all; he couldn’t do any more, and that is all there was to it.
“Q. So you canceled the contract?
“A. One account was to offset the other; we charged his account off the books.”
Of this the circuit judge correctly made the following disposition:
“That the writings set forth in plaintiff’s declaration as exhibit £C’ (the so-called account stated) was not authorized by defendant company, was not intended by either party to be an account stated between them and there is no evidence to sustain recovery by plaintiff against defendant for the items or amounts stated in this writing.
“There is no evidence to sustain any claim made by defendant against plaintiff under its plea of set-off and recoupment.”
The case is remanded to the circuit court, where the judgment will be set aside and a judgment entered for plaintiff for $2,778.85, with interest from June 9, 1925, computed at six per cent, per annum. Plaintiff will have taxable costs of both courts.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzbl, JJ., concurred. | [
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McDonald, J.
The defendant has appealed from a judgment in an action of replevin for the recovery of certain corporate bonds which were stolen from plaintiff bank at Defiance, Ohio, and for certain other bonds stolen from the First National Bank of Columbus, Wisconsin, the right to which the plaintiff has acquired by assignment. All of these bonds subsequently came into the possession of the defendant as collateral to a loan made to one of the bandits who stole them. The Ohio bank bonds involved are: — Butte, Anaconda & Pacific Railway Company, $1,000; Kingdom of Belgium, $2,000; Oriental Development Company, Ltd., $2,000; Missouri Pacific Railroad Company, $1,000; Erie Railroad Company, series A, $1,000; Sinclair Pipe Line Company, $5,000; City of Marseilles, $1,000; Government of French ’ Republic, $1,000. The bonds acquired by assignment from the Wisconsin Bank are Ogden Gas Company, $3,000.
The issue involves two questions: (1) Are these bonds negotiable? (2)- If so, was defendant a holder in due course?
It is conceded by the plaintiff that all of the bonds are negotiable except the Butte, Anaconda & Pacific Bailway Company, the Sinclair Pipe Line Company, the Ogden Gas Company, and the Erie Bailroad bonds.
Counsel have' stipulated that decision on the question of negotiability is controlled by the law of New York where the bonds were issued and made payable. This is in line with the holding of our court in Paepcke v. Paine, 253 Mich. 636 (75 A. L. R. 1205).
As to the disputed bonds the question is, Do they contain an unconditional promise or order to pay at a certain time, and, at all events, a certain sum in money? If negotiable, the unconditional promise must appear on the face of the bond. In Paepcke v. Paine, supra, it is said:
“The instrument itself determines its character. It must, of course, conform to the requirements of the negotiable instruments law. But the statute deals with its form — with what an inspection of its face discloses.”
And in Enoch v. Brandon, 249 N. Y. 263 (164 N. E. 45), quoted with approval in Paepcke v. Paine, supra, it was said:
“If in the bonds anything appears requiring reference to another document to determine whether in fact the unconditional promise to pay a fixed sum at a future date is modified or subject to some contingency, then the promise is no longer unconditional.
“It may be stated as the general rule that wherever a bill of exchange or promissory note contains a reference to some extrinsic contract in such a way as to make it subject to the terms of that contract, as distinguished from a reference importing merely that the extrinsic agreement was the origin of the transaction, or constitutes the consideration of the bill or note, the negotiability of the paper is destroyed.” 3 B. O. L. pp. 883, 884.
In the negotiable instruments law it is said:
“An unqualified order or promise to pay is unconditional within the meaning of this act, though coupled with * * * a statement of the transaction which gives rise to the instrument.” (Cahill’s Consol. Laws N. Y., chap. 39, § 22, 2 Comp. Laws [Mich.] 1929, § 9252.)
In applying these tests to the bonds in question, we will first consider the Butte, Anaconda & Pacific Railway bond.
This bond is negotiable unless the promise to pay is modified and rendered uncertain by the following provision:
“This bond # * * is entitled to the benefits and subject to the provisions of an indenture of mortgage dated February 1, 1914, made by the company to Guaranty Trust Company of New York as trustee, to which mortgage reference is hereby made for a description of the property and franchises mortgaged, the nature and extent of the security, the rights of the holders of the said bonds under the same, and the terms and conditions upon which said bonds are issued, received and held.”
If the words “subject to the provisions of an indenture of mortgage” and the words “received and held” were eliminated from the above reference, the bond would be negotiable under the holding in Paepcke v. Paine, supra. If the words “received .and held” were eliminated, it would be negotiable under the holding in Enoch v. Brandon, supra. In the latter case, the court held that the words “subject to the provisions” of an indenture of mortgage did not impair the negotiability of the bonds. It was said that a purchaser scanning the bonds—
“Would interpret the statement that the bonds were secured by and entitled to the benefits and sub ject to the provisions of the mortgage, as meaning that a foreclosure or other relief might be had thereunder only subject to its provisions. He would see that reference to it is also made to determine the terms and conditions under which the bonds are issued and secured. Again it would mean as it means to us, that only by turning to the mortgage might he discover the precise nature of the lien he is to obtain. He would see that the bonds were to be issued not only upon the general credit of the corporation, but upon the faith of some collateral mortgage. To it he must go if further knowledge as to this security is desired.”
In regard to this bond, its negotiability depends on the effect of the words “received and held.” A reference in the bond to a mortgage to determine upon what conditions it was issued does not impair its negotiability. Enoch v. Brandon, supra. The words ‘ ‘ received and held ’ ’ add nothing to ‘ ‘ issued, ’ ’ because the terms and conditions on which the bond is issued show how it was received and held. There is nothing in the words themselves indicating that there may be some condition in the mortgage qualifying the unconditional promise of the bond. They refer to the security.
It is our conclusion that the Butte, Anaconda & Pacific Bailway Company bond is negotiable under authority of Enoch v. Brandon, supra.
The reference in the Sinclair Pipe Line Company bond reads as follows:
“To which trust agreement reference is hereby made for a statement of terms under which said bonds are issued, and of the rights and obligations of the company, the trustee and the respective holders of said bonds thereunder, to all of which terms the holder of this bond assents by the acceptance hereof. ”
With the exception of “to all of which terms the holder of this bond assents by the acceptance hereof” the language of this reference is substantially the same as that in Paepcke v. Paine, supra, where this court held the bond negotiable.
The language providing that the acceptance of the bond is an assent to the terms and conditions upon which it was issued is of no consequence. Without any declaration of that kind, the law would imply from the fact of acceptance an assent to the terms and conditions referred to in the bond. The language is so much surplusage. Under the holding of this court in Paepcke v. Paine, supra, the Sinclair Pipe Line Company bond is negotiable.
The reference in the Erie Railroad Company bond reads as follows:
“To which reference is hereby made for a description of the property and franchises mortgaged and pledged, the nature and extent of the security, the rights of the holders of said bonds under the same, and the terms and conditions upon which said bonds are secured and are to be used.”
Prom the language used, we do not understand that this reference is to the terms and conditions upon which these bonds are to be used by a purchaser. Bonds are issued to sell. They may be a more attractive investment if the investor knows how the proceeds from the sale are to be used. There would be no advantage in restricting their use in the hands of a purchaser. There would be a decided advantage in the sale of the bonds if the investor knew the proceeds were to be put to a proper use. The language of the reference advises an investor that, in considering whether the purchase of these bonds is a safe investment, he may look to the conditions of the mortgage to learn the use which is to be made of the money received from their sale. The Erie Railroad bond is negotiable.
The Ogden Gras Company bonds contain the following recital:
“This bond and the coupons thereto attached are expressly made subject to and shall be bound by all of the provisions in the said mortgage or deed of trust contained, the same as though all of said provisions were herein expressly set forth and the holder hereof expressly acknowledges notice of all such provisions.”
The negotiability of these bonds cannot be determined by their face. They incorporate by reference all of the provisions of the mortgage. Under all decisions of the courts, they are not negotiable.
2. Was defendant a holder in due course? Section 9301, 2 Comp. Laws 1929, defines a holder in due course as one who has taken the instrument under certain conditions, one of which is:
“Fourth, that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”
Section 9305 provides:
“To constitute notice of an infirmity in the instrument, or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”
In this case, the plaintiff having shown that the bonds were stolen, the burden was then upon the defendant to prove that it was a holder in due course.
It is claimed by the plaintiff that, within 10 days after the theft of the bonds, it mailed written notices containing a description of them to all of the prin cipal banks and trust companies of the middle west, including the defendant company. The defendant denies having received such a notice. Proof of the mailing of the notice raises a presumption that it was received, but it is a rebuttable presumption. All of the officers of the defendant company having to do with the loan in question testified that they did not see the notice and had no knowledge of it or of any circumstance tending to show a defect in the title of the bonds. According to the defendant’s custom, mail addressed to the Detroit Trust Company and not to any particular person or department was opened by one of the mail clerks and sent to the person in charge of the business to which it related. Following this custom, the plaintiff’s notice, if received at the mailing department, would be sent to Mr. Butler, vice-president in charge of the financial department, then to Mr. Miller, assistant treasurer, and finally to Mrs. Irving, collateral loan teller. All of these officers had a part in the loan for which the bonds were accepted as collateral. We have no reason to doubt their testimony that they did not see or receive the notice. But assuming that it was received, that they saw it and forgot about it or carelessly mislaid it so that it was not in their minds at the time they acquired the bonds; or assuming that it was received, but through the carelessness of the mailing clerk it was not brought to the attention of the officers, how would these facts affect the company’s title as holder in due course?
In Toledo, etc., R. Co. v. Peters, 177 Mich. 76, this court adopted the following rule stated in Jones on Corporate Bonds and Mortgages (3d Ed.), § 200:
“A purchaser of negotiable bonds before due, for a valuable consideration, in good faith and without actual knowledge or notice of any defect of title, holds them by a title valid as against every other person. Even gross negligence at the time of purchase does not alone defeat the purchaser’s title. A purchaser may have had suspicion of a defect of title, or knowledge of circumstances which would excite such suspicion in the mind of a prudent man; or he may have disregarded notices of stolen bonds; and yet, if he has purchased for value in good faith, his title cannot be impeached. Such suspicion, or ground of suspicion, or of knowledge on his part, may be evidence of bad faith; but before his title can be impeached his bad faith must be established. It must be shown that he did not purchase honestly. ’ ’
In the instant case, if the defendant did not acquire the bonds honestly, it was because it had notice that they were stolen. The plaintiff claims it had actual notice. We think there was no evidence to overcome the presumption that the notice mailed by the plaintiff was delivered to the defendant’s mailing department; but, neither was there any evidence in contradiction of the officers that they did not see the notice or acquire knowledge of its contents. Unless we follow the holding in North Western National Bank v. Madison & Kedzie State Bank, 242 Ill. App. 22, we must find as a fact that when the defendant acquired the bonds it had no notice that they were stolen. In that case, which was an action to recover stolen bonds, it was shown that notice was received by the mailing clerk of the defendant bank. The officers of the bank with whom the bonds were negotiated denied having received the notice. The court said:
“The notice having been received by the proper agent of the bank to receive, open and acknowledge its mail in the line of his duties, we think that the bank is estopped from claiming that it did not have actual knowledge of the defect in the title to the bonds it subsequently received.”
As far as we have been able to determine this case stands alone. It estops the purchaser from showing good faith at the time the bonds are acquired. It makes notice of theft conclusive evidence of mala fides. It overlooks the well-established rule that though one has received actual notice, if by forgetfulness or negligence he does not have it in mind when he acquires the bonds, he may still be a good-faith purchaser. It has been said that the test is one of simple honesty and good faith. In Lord v. Wilkinson, 56 Barb. (N. Y.) 593, the trial court charged the jury that:
“The defendants, once having had notice, are bound by it, although the notice may have been forgotten. ’ ’
In holding the instruction erroneous the court said:
“If the rule is well founded, that notice once given is good forever — that knowledge acquired when notice is given, is conclusive evidence of knowledge possessed when the notes were bought — then this charge is correct. But if the bona fides of the defendants must be judged of from their acts, purposes and knowledge as they existed upon the day of the purchase, then the notice served is only prima facie or presumptive evidence of mala fides, and may be rebutted by proof that the notice was lost, or its existence and contents forgotten.”
And it has been held that one is not required to examine such notices, or, if examined, charge his mind with them or cumber his files with them. Joyce, Defenses to Commercial Paper, § 394, p. 509; Vermilye & Co. v. Adams Express Co., 21 Wall. (U. S.) 138; and Seybel v. National Currency Bank, 54 N. Y. 288 (13 Am. Rep. 583).
In Toledo, etc., R. Co. v. Peters, supra, it was said that one may disregard notice of stolen bonds and yet he a purchaser in good faith. In saying that one may disregard the notice, it was not meant that he may wilfully close his eyes to it. He may not resort to trick or artifice to avoid knowledge of its contents or he may not purposely forget it. He must act in good faith. Such notice may be evidence of bad faith, hut it is not conclusive. In the instant case, the notice was received by the mailing clerk, hut the three officers of the trust company deny that they received it or were made acquainted with its contents. We know of no reason why we should doubt their testimony. The record shows that they acted in good faith.
As the bonds in question were acquired before maturity, for value, and in good faith, the defendant is a holder in due course. All except the Qgden Gas Company bonds are negotiable. The judgment is reversed, and the cause remanded to the circuit court for the entry of a judgment in favor of the plaintiff for the value of the Ogden Gas Company bonds. The defendant will have costs.
Clark, C. J., and Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. Fead, J., did not sit. | [
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] |
Clark, C. J.
1 Comp. Laws 1929, § 5263, provides in part:
“Any dog that enters any field or enclosure, outside of an incorporated city, unaccompanied by his owner or his owner’s agent, shall constitute a private nuisance and the owner or tenant of such field or other enclosure, or his agent or servant, may kill such dog while it is in the field or other enclosure without liability for such killing.”
Defendant shot and killed plaintiff’s dog under precisely the circumstances set forth in the statute. Plaintiff brought suit. Defendant prevailed. Plaintiff has appealed, presenting the question that the statute offends the due process clause of the State Constitution, section 16, article 2.
There is property in dogs (Ten Hopen v. Walker, 96 Mich. 236 [35 Am. St. Rep. 598]), but of an imperfect or qualified nature (Finley v. Barker, 219 Mich. 442), “and they may be subjected to peculiar and drastic police regulations by the State without depriving their owners of any Federal right” (Nicchia v. New York, 254 U. S. 228 [41 Sup. Ct. 103, 13 A. L. R. 826]). In Sentell v. Railroad Co., 166 U. S. 698 (17 Sup. Ct. 693), quoted with approval in Finley v. Barker, supra, it was said that dogs “have, from time immemorial, been considered as holding their lives at the will of the legislature and properly falling within the police powers of the several States.” One drastic feature of the dog law, Act No. 339, Pub. Acts 1919 (Act No. 114, Pub. Acts 1927, section added), was somewhat modified in Finley v. Barker, supra, but what was there said applies only to killing by public officers of dogs running at large and takes nothing from the statute first above quoted, which is held constitutional as against objection urged. Many like statutory provisions have been considered and upheld, as will be seen by reading cases reviewed in Sentell v. Railroad Co., supra. As there set forth, the reason for these police regulations is that, while some dogs are justly regarded for admirable qualities, others are dangerous, mischievous, little better than a public nuisance, and all are subject to attacks of hydrophobic madness,’and as—
“It is practically impossible by statute to distinguish between the different breeds, or between the valuable and the worthless, such legislation as has been enacted upon the subject, though nominally including the whole canine race, is really directed against the latter class, and is based upon the theory that the owner of a really valuable dog will feel sufficient interest in him to comply with any reasonable regulation designed to distinguish him from the common herd.” Sentell v. Railroad Co., supra.
And from 3 C. J. p. 18:
“Whether the property in dogs is regarded as qualified or absolute, they are subject to the police power of the State, and may be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens.”
No other question requires discussion.
Affirmed.
McDonald, Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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Fead, J.
This is a triple suit for specific performance, in which all parties appeal.
Frank Beckton, Sr., died April 22, 1929, leaving a will in which he gave his wife, Lorena, and his son, Frank, not Lorena’s son, each certain parcels of land, and divided another parcel, the personalty, and the residue between them. Among his debts were a mortgage of $4,000 on a parcel devised to Frank and a note of $250, which were filed as claims against his estate.
Mrs. Beckton thought Frank should pay the mortgage and note. She retained counsel, who so advised Frank, and informed him that, unless he relieved the estate of the claims, Mrs. Beckton would file an election to take under the statutes of descent and distribution and not under the will. Frank agreed to pay the claims and made arrangements to borrow the money from plaintiff, negotiating through an attorney who was general counsel of plaintiff and who, in the transaction, represented both Frank and plaintiff.
The loan could not be consummated before the final date for the widow’s election, and Mrs. Beck-ton, her attorney, and Frank met at the probate office on April 22, 1930, and discussed the situation with the judge of probate and representatives of the estate. The widow’s election to take under the statutes was filed, but with the oral agreement that Frank should .obtain a loan from plaintiff, pay the mortgage and note, and the parties then should appear before the probate court and the election be withdrawn.
A day or two later, Frank told the attorney representing him and plaintiff of the agreement, and, on inquiry, the attorney for Mrs. Beckton confirmed it to him. The loan was made for $9,000, secured by mortgage on two pieces of land devised to Frank by his father, and the money was disbursed for various debts _ of Frank and his wife and expenses. The mortgage of $4,000 was paid, but the note of $250 was not and is not yet paid.
Mrs. Beckton’s election was not withdrawn, nor does the record show that any of the parties attempted to have it done before her death. She died June 27, 1930, leaving a will in which she gave a small bequest to Frank, but made her brother, defendant William Isabell, the principal beneficiary.
Defendant Frank Beckton claims his agreement with Mrs. Beckton was that, if he would pay the two claims, she would, by will, leave to his children all the property she received from her husband’s estate and which was undisposed of at her death. As told by the witnesses, he did not agree unequivocally to pay the claims, but told Mrs. Beckton he would try to pay them. He directed payment of both claims out of the proceeds of the mortgage, but it was not done.
Plaintiff prays specific performance of the agreement to withdraw the widow’s election. Defendants Isabell join plaintiff in the prayer. In cross-bill, the latter asked that Prank Beckton be decreed to perform the agreement to pay the $250 note, bnt they now waive its payment. Defendant Beckton asks specific performance of the agreement to will the property to his children. The court dismissed the bill and cross-bills, but without prejudice to further action by Prank Beckton upon the claim he paid.
When the widow filed her election to reject the will and take under the statutes, the titles to the real estate became fixed. As to both plaintiff and defendant Beckton, the case is governed by the rule that payment of money is not such part performance of an oral contract to convey real estate as takes it out of the statute of frauds (3 Comp. Laws 1929, § 13417). In addition:
Plaintiff was not a party to the contract between Mrs. Beckton and Prank, and cannot enforce it.
Defendant Beckton did not perform the contract he claims to have made with Mrs. Beckton, and cannot have specific performance.
Defendants Isabell, or their testatrix, did nothing by way of part performance to avoid the statute of frauds. Moreover, having waived full performance by Prank, they do not point to anything which the court now should compel him to do.
Decree affirmed, without costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiést, and Butzel, JJ., concurred. | [
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Fead, J.
Defendant leases and sublets the WatersKlingman Building in Grand Rapids. Some years ago plaintiff occupied a store in it for about a month. In December, 1926, he negotiated with defendant’s representative, Mr. Hasten, for a lease of a store. He said Mr. Hasten told him:
“that Mr. Philbrick was paying $4,000 a year for each store, making a total of $8,000, and that if I wanted one store I could have one at the same rate which he had given Mr. Philbrick for two stores, namely $4,000 a store. I told Mr. Hasten that I was surprised — that previously I had rented the two stores at $10 a day, or $300, and I was surprised to find him asking now more for one store than I had rented two stores for temporarily, and he said that was the rate now, and if I wanted the store at the price he had given Mr. Philbrick two stores for, I could have it.”
Philbrick was paying $6,000 rental, at the rate of $3,000 per year per store. Plaintiff testified Masten told him that another party, Mathews, was paying $4,000 per year. This was true. He stated he asked Philbrick what rent he was paying, and Philbrick said he would not tell him, as he had promised Masten to keep it confidential.
Plaintiff was reluctant to sign a lease at the rental asked because he thought it was too high, but Masten told him he could not lease for less. Plaintiff took possession and paid rent from month to month until March 1st. In the meantime, he and Masten had several conversations, in which plaintiff attempted to convince Masten that the rent demanded was too high, but Masten refused to make a lease át a lower rental, and plaintiff claims Masten told him several times that he could have the store at the same rate Philbrick was paying, that Philbrick was paying $4,000. Plaintiff said he was induced by these representations to execute the lease.
The lease is dated March 1,1927, and runs for five years at $4,000 per year. Plaintiff paid rent to about January 1,1931. He sought to be released from the balance of the term, but defendant would not consent and pressed him for the rent due. Plaintiff claims that about March 1st he ascertained Philbrick was paying at the rate of $3,000 per store per year. Shortly thereafter he began this action in fraud. The testimony is undisputed that plaintiff’s rent was worth $4,000 per year.
Plaintiff had verdict of a jury for an overcharge of $1,000 per year, less rent owing. The principal issue is upon the character of the representations and the measure of damages.
Masten’s statement that Philbrick was paying $4,000 per year, standing alone, would be, at most, a representation of value. The measure of damages for fraud therein would be the difference between the real and represented value. As the undisputed testimony was that there was no such difference, plaintiff, having shown no damages, could not prevail on this issue.
To recover, plaintiff needs the additional representation that he could have the store at the rate of rental paid by Philbrick. No cases in point have been cited or found, but the situation is analogous to one where a vendor agrees that he will sell at cost to him. In such case, it is settled that the purchaser, if defrauded, may recover the excess of the price he paid over the cost to seller. Barnard v. Colwell, 39 Mich. 215; Hidey v. Sivan, 111 Mich. 161; Hokanson v. Oatman, 165 Mich. 512 (35 L. R. A. [N. S.] 423); Strachan v. Meyering, 168 Mich. 253; McGough v. Hopkins, 172 Mich. 580; Norris v. Home City Lodge, 203 Mich. 90.
The gist of these cases is that the value of the property was not material, because the sale was not made at a price representing or based upon value, but the sole criterion of the purchase price was the cost to seller. So the measure of damages was the difference between such cost and the price paid by the purchaser. Norris v. Home City Lodge, supra.
Statements by Masten that plaintiff could have a lease at the rental paid by Philbrick, and that Phil-brick was paying $4,000, could be construed and relied upon as representations of value for which, under the evidence, plaintiff would not be entitled to recover. On the other hand, they could be taken as constituting the inducement of a lease in which the rate paid by Philbrick was to be the sole criterion of the rental charge, and, therefore, under the above authorities, actionable. Upon the testimony, whether the statements were made and their character and effect upon the lease were for the jury.
Defendant, however, contends that the authorities do not permit an action of fraud, but that recovery must be had in assumpsit for money had and received. Barnard v. Colwell, supra. The intimation to that effect was declared dictum in Hokanson v. Oatman, and recovery was had for fraud and deceit, although in an action of assumpsit under the statute. The later cases cited recognized the propriety of an action in tort. See, also, 35 L. R. A. (N. S.) 175, note; L. R. A. 1916 F, 782, note.
Defendant’s contention that an agreement to rent to plaintiff at the rate charged Philbrick could not be an element of fraud because it would be purely promissory, is not tenable. While promissory in form, it would be, in effect, a statement of fact if it was the inducement of the contract. The promise and statement of the rent paid by Philbrick would be projected into the lease and amount, in law, to representations that the lease as made was at the rate paid by Philbrick.
Several errors are assigned on the charge of the court, but, while some instructions were objectionable in view of the closeness of the issues, they do not require individual attention. On the whole, the charge emphasized plaintiff’s right to recovery upon the representation that Philbrick was paying $4,000 rent. It was not until the conclusion of the charge, and at the suggestion of counsel, that the other element was presented to the jury. In view of the character of plaintiff’s testimony, especially his protest that the rent, was too high, and of his efforts at reduction of rent for months before executing a lease, we think the charge did not sufficiently point out the distinctions to be drawn from the representations claimed to permit the jury to appreciate them, and defendant is entitled to a new trial.
Complaint is made of evidence of similar representations to Mathews taken on impeachment of Hasten. In this State such testimony is competent upon intent and credibility. Stowe v. Mather, 234 Mich. 385; Radloff v. Ruggles Motor Truck Co., 229 Mich. 139.
Complaint is also made of testimony of a conversation between Masten and plaintiff shortly before suit. We find the testimony neither competent nor prejudicial.
Judgment reversed, and new trial ordered, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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Clark, C. J.
Plaintiff’s decedent died of injuries suffered in a collision of automobiles at an intersection of highways. The suit is against the driver and owner of the automobile in which decedent rode as gratuitous guest. Ai the. conclusion of plaintiff’s case, verdict was directed for defendant on the ground that the evidence showed no gross negligence or wilful and wanton misconduct, and, therefore, there could be no recovery because of 1 Comp. Laws 1929, § 4648 (amendment by Act No. 19, Pub. Acts 1929), known as guest statute. From judgment on verdict, plaintiff has appealed.
The accident was in the daytime. There was no important obstruction to view of either driver. Defendant drove his car northerly on a paved State trunk line highway. Johnson, aged 77 years, drove a car easterly on an intersecting gravel road. There was a stop sign on such road near 150 feet from the intersection. Johnson testified that he did not stop, but slowed almost to a stop, then started, with change of gears, to cross the pavement. Defendant slowed to near 45 miles per hour nearing the intersection, and, from testimony of his admissions or declarations adduced by plaintiff, he had in mind that he had the right of way, and, observing Johnson’s car, and assuming he would stop, continued into the intersection without further reduction of speed.
In Boyle v. Moseley, post, 347, Mr. Justice North said correctly:
“The terms gross negligence and wilful and wanton misconduct have no different meaning than that ascribed to them prior to the enactment of the above-cited statute. ’ ’
And he cited Gibbard v. Cursan, 225 Mich. 311, in that regard. If this interpretation of the statute be not adhered to, if ground be given to the repeated attacks by guest plaintiffs upon the statute, the salutary purpose of the legislature in enacting it (Naudzius v. Lahr, 253 Mich. 216 [74 A. L. R. 1189, 30 N. C. C. A. 179]) will be thwarted and further confusion and difficulty introduced into the law of negligence.
It may be that, under the statute, recovery against an owner or driver of a car'may not be by or on behalf of a gratuitous guest for so-called gross negli gence, as a case showing in fact antecedent negligence of the gnest as the remote canse of an injury and subsequent negligence of the owner or driver as the proximate cause may never arise. But beyond that, the statute is also aimed definitely at something more than ordinary negligence so-called, viz., wilfulness or wantonness, as defined in Gibbard v. Cursan, supra, and cases there cited, and, “facts lifting the owner’s faults above ordinary negligence must be set out.” Naudzius v. Lahr, supra, 229.
Most of the trial difficulties under this statute are due to failure to note that there are no degrees of negligence and no different kinds of negligence. Negligence is negligence, that’s all.
Gross negligence does not mean great, bad, or much negligence. Lett v. Summerfield & Hecht, 239 Mich. 699; Fike v. Railroad Co., 174 Mich. 167.
An interesting article, “The Last Clear Chance Doctrine in Michigan,” by Charles C. Hamill, “directed by Professor H. F. Goodrich of the Law Faculty of the University of Michigan,” appears in 7 Michigan State Bar Journal, p. 270. Speaking of conflicting language and misleading definitions found in the cases, it is well said (p. 272):
“An expression much used in Michigan is ‘gross negligence.’ It arose out of an early confusion of the doctrine of last clear chance with comparative negligence. Although it has been repeatedly declared that the doctrine of comparative negligence does not obtain in this State, and that ‘gross negligence’ in this connection simply means last clear chance doctrine, the misconception has had a tendency to persist. Even in recent decisions it has been found necessary to correct the erroneous impression that ‘gross’ is used in the cases in a comparative sense. The use of such a misleading term is to be deplored as increasing the perplexities of a sufficiently involved subject.”
And we quote further (p. 294):
“The customary definition of ‘gross negligence’ aptly illustrates, the point. ‘It means the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting the life or property of another. It also, implies a thoughtless disregard of consequences, without the exertion of any effort to avoid them.’ It is not unlikely that the jury, thus instructed, found the defendant’s great negligence to be gross negligence, two quite different types of misconduct. Obviously, the considerations which should be submitted to the jury where fte*eovery is sought on the theory that the defendant’s fault is ‘wanton’ are not at all the same as those which govern recovery where it is contended that the defendant’s negligence is the proximate cause of the injury.”
Gross negligence, subsequent negligence, antecedent negligence, discovered negligence, discovered peril, last clear chance, intervening negligence, supervening negligence, humanitarian rule, are the same thing. Golob v. Railway, 228 Mich. 201; Gibbard v. Cursan, supra. The number and variety of such designations, two at least inaccurate, another misleading, some not generally accepted, are deplorable. If, by common consent-of bench and bar, this rule, now so variously named, might be known hereafter as last clear chance, the most popular designation, many difficulties of the student, of the practitioner, and of the judge, would be removed ultimately.
If a plaintiff’s negligence contributes to cause an injury, recovery is precluded.’ But where plaintiff’s negligence is antecedent, and defendant’s negligence is subsequent, it is proper to excuse plaintiff’s negligence as remote, and to hold defendant’s subsequently intervening negligence as proximate, in other words, to invoke the doctrine of last clear chance, and it will be noted that under this rule the defendant is guilty of negligence — nothing else, and nothing more. •
If a defendant be guilty of more than negligence, we pass to wilfulness or,wantonness, and find ourselves entirely out of the field of negligence, for wilfulness — wantonness—recklessness ‘ ‘ transcends negligence — is different in kind” (Gibbard v. Cursan, supra), is “above ordinary negligence” (Naudzius v. Lahr, supra).
Tó a charge of wilfulness- or wantonness, contributory negligence is, of course, no defense, for we are no longer in the field of negligence.
The common use of such terms as “intentional negligence” and “wilful negligence” is as unfortunate as it is illogical. It is like saying “white lampblack.” If it is white,'it is not lamp black. If it is lamp black, it is not white. If it is intentional or wilful, it is not negligence. If it is negligence, it is not intentional or wilful;- Also, what possible legal significance can be given the expression “wanton and reckless negligence?”
It is often difficult to determine where negligence ends and wantonness or wilfulness begins. A rule of practical convenience, not of reason, for pleading and trial is that one may plead the injury as caused by wantonness or wilfulness, and, under the pleading, prove the injury as upon negligence, or last clear chance, and this on a theory, akin to that applied in criminal law, of included wrongs. Howton v. Kearns, 226 Mich. 20.
Rules or tests to aid in distinguishing wilfulness or wantonness have been attempted, 20 R. C. L. p. 145; Gibbard v. Cursan, supra. They are quite general, and need not be quoted. Each case must be decided on its own facts.
The question in the case at bar is: Was defendant guilty of negligence, or of wilfulness and wantonness? If the former, the judgment must be affirmed, and if the latter, reversed. An important factor is that defendant had the right of way, and had that right in mind at the time. Kiefer v. Fink, 236 Mich. 274. Johnson’s conduct as he approached the trunk line would, and it appears did, indicate to defendant that he intended to recognize defendant’s superior right of way. Kiefer v. Fink, supra; Pline v. Parsons, 231 Mich. 466. It was upon defendant, of course, to use due care. If he is guilty of anything, it is not having his car under better control as he drove into the intersection. But this, at most, is negligence — clearly not wilfulness or wantonness.
Affirmed.
McDonald, Potter, Sharpe, and Wiest, JJ., concurred with Clark, C. J. | [
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On Rehearing.
Fead, J.
On rehearing, I find no occasion to change my former opinion, but, perhaps, something should be added to it.
Counsel for plaintiff contend that the question of estoppel to deny constitutionality of Act No. 162, Pub. Acts 1927 (see 2 Comp. Laws’ 1929, § 8413), cannot be considered because it was not raised in circuit court. The estoppel is not of the kind which must be formally pleaded, the question was raised by this court, to avoid conflict with Cooley v. Boice Bros., 245 Mich. 325, and is properly here. 3 Comp. Laws 1929, § 13537; Auditor General v. Bolt, 147 Mich. 283.
If the amendment of 1927 is unfairly discriminatory, the discrimination is against the class of minors under 16 years of age illegally employed. As plaintiff’s decedent did not belong to such class, his representative cannot attack the law on that ground. 12 C. J. p. 768; 6 R. C. L. p. 90.
It seems that in several States the law provides for doubling or trebling compensation to minors illegally employed. In only one case, Brenner v. Heruben, 170 Wis. 565 (176 N. W. 228), has the provision been tested. It was sustained by a majority of the court. Relying on the minority opinion, which, by the way, held the increase void and that only single compensation should be awarded, counsel for plaintiff contend that double compensation is a penalty designed to aid enforcement of the child labor law, it is not a measure of compensation for injury, therefore it is void because not within the purview of the compensation act, and it invalidates the whole amendment of 1927.
It may be conceded that the legislature has not unlimited power to incorporate provisions into the workmen’s compensation law (2 Comp. Laws 1929, § 8407 et seq.), even though its acceptance is optional. Its terms must bear a relation to compensation for injuries sustained in the employment. But the act is a departure from the common law, and the rules and theories of the common law cannot be made- the test of measurement of damages under it.
The act does not purport to be justly compensatory under common-law rules. No sum is allowed for pain and suffering. Generally compensation is based upon wages and period of disability. But minimum and maximum awards are provided, regardless of wages, character of injury, or length of disability. As to some specific injuries, specific compensation is allowed, regardless of other factors. In case of death, the employer’s liability varies with dependency. In fine, no rule of thumb governs the amount of compensation, but the method of measuring it, as well as the amount, varies with conditions.
Illegal employment of minors presents a situation of its own kind. The common-law action contained features (Kruczkowski v. Polonia Publishing Co., 203 Mich. 211, Besonen v. Campbell, 243 Mich. 209) which, in substance, amounted to civil penalties for violation of criminal statutes. Relief from such civil penalties furnished consideration for the payment of double compensation, as relief from the hazards and uncertainties of common-law actions afforded consideration for the burdens of the compensation law. The legislature evidently considered that special provision for minors illegally employed must be made in order to maintain the policy of the State to protect children. The protective purpose does not condemn the provision for double compensation because the provision is directly pertinent to the employment and is not an unreasonable means of including in the law a special class of employees as to whom special treatment is proper. Double and treble damages imposed by statute for certain torts have been held valid. There seems no reason why double compensation in connection with certain employments requiring special protection should be held violative of the scope or spirit of a contractual law which either party may accept or reject at his option.
Aside from these considerations, we come back to the question of estoppel. The record in Cooley v. Boice Bros., supra, shows that the claims of unconstitutionality here made were there presented. The opinion was an adjudication that the estoppel applies as to all the conditions here complained of. The same estoppel governs both employer and employee. By the amendment of 1927, minors illegally employed, as minors legally employed, are made sui juris for the purposes of the act, and, when they accept its provisions, by failing to file notice of rejection, they became subject to its provisions in all respects as adults. The Cooley Case is decisive of this case.
Clark, C. J., and Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred with Fead, J.
McDonald, J. I do not concur for the reasons stated in my former opinion. | [
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Carr, J.
The material facts in this case have been stipulated by counsel for the respective parties. The charter of the city of Ecorse makes provision for a council consisting of the mayor and 6 councilmen. It also creates a department of public safety, and vests in the police and fire commission of the city the general control and management of the police and fire departments. Shortly after July 1, 1950, plaintiff was appointed by the commission as a probationary police officer, there being a vacancy in such position. The fiscal year of the city begins on July 1st, and the amount appropriated by the budget for the year beginning July 1,1950, and ending June 30, 1951, was sufficient to include payment of plaintiff’s ■ salary.
Plaintiff remained on the payroll following his appointment and drew his compensation until the 24th of'October, 1950. On that daté the council undertook by resolution to discharge plaintiff, who was the last probationary officer appointed in the police department, for reasons of economy. The resolution further directed the department of public safety to refrain from filling vacancies in the police and fire departments "which hereafter occur” until the further order of the council. The police and fire commission of the city questioned the legal right of the council to take the action indicated by the resolution, and on October 27th following, directed the chief of police to continue plaintiff’s employment as a probationary patrolman. In accordance with the action of the commission, plaintiff reported for work regularly and performed duties assigned to him.
The council having refused to approve the payment of plaintiff’s compensation after the adoption of its resolution, plaintiff instituted a mandamus action in the circuit court of Wayne county to compel it to do so. The petition filed alleged in substance that the discipline, suspension and discharge, of members of the police department were matters solely within the jurisdiction of the police and fire commission, and that, in consequence, the council was without authority to discharge the plaintiff. The answer filed by defendants admitted the power of the commission to discipline and suspend members of the police and fire departments of the city, but asserted that the council had the power under the law to discharge members of either department for reasons of economy. It was conceded that no charges had been filed against plaintiff and that he had continued to perform his duties as directed by the commission.
After listening to the proofs and arguments of the parties, the trial court came to the conclusion that under the pertinent provisions of the city charter plaintiff was entitled to the relief sought, and entered an order accordingly. On leave granted, defendants have taken an appeal in the nature of certiorari, claiming that the order was based on an erroneous interpretation of the charter.
The provisions in question, so far as material, are set forth in an exhibit referred to in, and made a part of, the stipulation of facts. They read as follows :
“Department of Public Safety
“Police and Eire Commission — How appointed:
“Section 19 — Chapter 6. There is hereby created in the department of public safety a police and fire commission which shall consist of 5 members. * * *
“Meetings:
“Section 20 — Chapter 6. The police and fire commission shall have general control and management of the police department and fire department. Said commission shall at its first regular meeting after the adoption of this charter and at its first regular meeting after the 3d Tuesday in November each year, elect a chairman, a vice-chairman and a secretary from among its number. It shall meet regularly each month and at such other times as it deems necessary. All regular meetings shall be held in the municipal building. It shall adopt rules for its own procedure and provide for the keeping of a complete record thereof.
“Department personnel:
“Section 21 — Chapter 6. The police and fire commission shall when a vacancy exists appoint a chief of police and a chief of fire department, both of whom' shall be directly responsible to the commission, and the executive head of the police department shall be the chief of police and the executive head of the fire department shall be the chief of the fire department. In addition to the respective chiefs, there shall be in the police department and in the fire department, such number of policemen and firemen, respectively, ás the council shall from time to time authorize, or deem necessary to protect said city from lawlessness or ravages of fire. The council may also authorize the employment of civilian employees, who, however, shall not be considered as members of the police force or fire force, as those terms are used in this charter. All persons appointed to either the police force or fire force, except those appointed to office of chief, shall be first appointed as probationary members thereof. All members of the police and fire forces shall be residents of the city of Ecorse.
“Appointment:
“Section 22 — Chapter 6. The commission shall from time to time receive applications for the positions of policemen and firemen; it shall cause such applicants to be examined physically and mentally by the city physician or such other physician as the council may designate; it shall determine the fitness of such applicant for the position applied for and shall create and maintain a waiting list of satisfactory applicants for appointment as policemen and firemen respectively. All appointments to positions as policemen and firemen shall be made by the commission.
“Section 23 — Chapter 6. The commission shall adopt rules and regulations for the organization and conduct of the police and fire departments, for the rank of the members of the police and fire forces, and for punishment for breaches of discipline or violations of rules and regulations. The commission may discipline, suspend temporarily and discharge permanently any member of the police or fire department for any cause which the commission in the exercise of their discretion deem sufficient, provided, however, that neither the chief of the police department nor the chief of the fire department, nor any member of the police or fire forces except a probationary member shall be dismissed unless a formal complaint of the cause or causes of his suspension or removal be served upon him, and after trial and conviction by the commission sitting as a trial board. The decision of the commission shall he final. Such rules shall provide for the manner of making such complaint and for the procedure upon such a trial.”
The provisions quoted clearly indicate an intent to vest the general control and management of the police department in the commission. All appointments to positions therein are required to be made by it. It receives applications, gives examinations, determines the fitness of applicants, and maintains a list from which appointments may be made. It is further given express power to adopt rules and regulations for the department and to suspend or discharge any member for cause that the commission deems sufficient. Except in the case of probationary members a formal complaint is required, on the hearing of which the commission sits as a trial board. The express reference to probationary members in section 23 indicates clearly that they, like other patrolmen, are subject to removal by the commission.
Our attention is not directed to any provision of the charter vesting in the council authority to- discharge members of the police department. Under chapter 6, § 21, it is authorized to fix the number of policemen and firemen deemed necessary for the protection of the city, and may also authorize the hiring of civilian employees. Construed together, the sections, above quoted, lead to the conclusion that in the framing and adoption of the charter it was intended to clearly define the powers and duties of the council and of the commission with reference to the police department. The council, through its control of appropriations and the exercise of the expressly granted power to fix the number of policemen to be employed, may require a reduction in the personnel, but the language of the charter clearly indicates that the selection of the particular individ uals to be discharged, or temporarily suspended, rests with the commission.
Counsel for defendants call attention to Smith v. Flint City Commission, 258 Mich 698; Slavin v. City of Detroit, 262 Mich 173; and Fricke v. City of Grand Rapids, 278 Mich 323. These and other decisions of like import recognize the right of the duly authorized officers of a municipality, acting in good faith, to abolish municipal positions as a measure of necessary or expedient economy. It may be noted in this connection that the good faith of the defendants in the adoption of the resolution of October 24, 1950, is not challenged. The issue presented goes simply to the question of the power of the council under the charter to discharge plaintiff. It is conceded that the council has authority to abolish police department positions and to reduce appropriations, thereby compelling the commission to dismiss personnel. It is the position of plaintiff, however, that the selection of the personnel to be dismissed is a matter wholly within the province of the commission. None of the cases above cited supports the theory of the defendants on the legal issue.
In Smith v. Flint City Commission, supra, the chief of police and acting city manager undertook to remove plaintiff, who was a war veteran, as an employee of the municipal police department. The charges filed recited the necessity of taking such action because of the economic condition of the city. The action was sustained by the mayor and city commission acting as a review board. This Court held, there being no evidence of bad faith, that plaintiff’s status as a veteran did not prevent his being discharged as a result of a duly authorized decrease' in personnel made for economic reasons. In Slavin v. City of Detroit, supra, charter provisions vested the right of appointment and removal of policemen and firemen in the police commissioner and the board of fire commissioners respectively. The fact that the council through its control of appropriations might have indirectly limited the number of officers and employees in each department did not detract from the measure of authority granted by the charter to the departmental heads. Of like effect is Fricke v. City of Grand Rapids, supra.
In 62 CJS, pp 1119, 1120, it is said:
“The power to remove policemen is usually provided for by constitutional, statutory or charter provisions, and only such persons or agencies may exercise a power of removal as are authorized by such provisions. The power conferred by the legislature cannot be taken away or abridged by ordinance.
“Authority to remove a policeman may be implied, as where' authority is implied from the power of appointment where the tenure of the office is not otherwise defined and no other provision limits or restrains the implied power.”
See, also, Clark v. Detroit Police Commissioner, 299 Mich 78.
As before pointed out, the council has no express power to discharge members of the police départment. In the face of the specific provisions of the charter such power may not be implied. The procedure contemplated by the charter must be observed. Schurtz v. City of Grand Rapids, 199 Mich 20; Carroll v. City Commission of City of Grand Rapids, 265 Mich 51. See, also, Speed v. Common Council of the City of Detroit, 98 Mich 360 (22 LRA 842, 39 Am St Rep 555).
In Childress v. Peterson, 18 Cal2d 636 (117 P2d 336), the plaintiffs brought-mandamus proceedings to compel their reinstatement as policewomen of the city of San Diego. It was held that the city had the power to reduce the number of employees in the police department if necessary because of lack of funds or other economic factors. In exercising such power, however, it was the duty of the city officials concerned to observe the procedural requirements of the charter. Commenting on the situation in this regard, it was said in part:
“While the executive officers of a city, acting under enabling legislation, have plenary power to exercise full administrative judgment and control over city employees and to' promote a program of economy in good faith, they are required in the enforcement of their judgment to act in conformity with charter provisions and procedural requirements. * * *
“In the present case this was not done. The positions held by plaintiffs were not abolished by the city council, although this would have been one means of reducing the force of policewomen. The fiscal year of the city of San Diego runs from July 1st to June 30th of the succeeding year. In May or June the city council passes a classification ordinance creating and establishing positions in the city service and repealing the ordinance enacted the previous year. The classification ordinance passed in 1939 (Ord. 1611 N. S., enacted June 13, 1939), repeated the provision made by several prior classification ordinances (Ord. 1160 N. S., passed May 25, 1937; Ord. 1387 N. S., passed May 24, 1938), for the creation and establishment of positions for 8 policewomen. This ordinance, like the ones preceding it, created many positions which were never filled, the excess being designed to safeguard against emergencies which might arise during the fiscal year requiring additional help in different departments. In the police department no more than 6 policewomen were ever employed, and just prior to June 1, 1939, there were only 5 in the service. Thus at all times a sufficient number of positions to cover plaintiffs’ employment were established by ordinance and remained unabolished.”
A somewhat analogous question was involved in Simpson v. Handberry, 159 Fla 805 (33 S2d 31). There the chief of police discharged a member of the department for alleged reasons of misconduct. An appeal was taken to the personnel board created by the city charter, which determined, after-a hearing, that the charges were sustained by the proofs. The board, however, undertook to set aside the order of discharge. It was held that such action was beyond the charter power of the board, that the power of appointment of a successor was vested in the chief of police, and that, the charges having been sustained, under a proper interpretation of the charter provisions he alone had authority to act. See, also, Duggan v. Third District Court of Eastern Middlesex, 298 Mass 274 (10 NE2d 61); 4 McQuillin, Municipal Corporations (3d ed), § 13.02, p 433.
In view of the express provisions of the charter involved in the instant case, it must be said that the council of the city of Ecorse did not have power to discharge the plaintiff. The order of the trial court is affirmed, with costs of this appeal to plaintiff.
Reid, C. J., and Boyles, North, Dethmers, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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Reid, C. J.
This is an action for libel. Prom an order of the trial court dismissing the action on motion, the plaintiff appeals.
■Well-pleaded allegations of the declaration must be taken as true.
Plaintiff’s action is founded on a letter written by defendant, who at the time was a member of the Michigan State liquor control commission, to the Michigan State civil service commission, having-reference to plaintiff, who at that time was an employee of the Michigan State liquor control commission. The letter was addressed to the civil service commission, attention: Mr. Arthur Rasch, director, and is recited in the declaration as follows:
“Gentlemen:
“The liquor control commission forwarded to your office, under date of August 1th, a purported reorganization program.
“My vote was cast in opposition to the proposal and I announced I would file a separate recommendation to your commission.
“The proposed reorganization program, stripped of all of its superfluous verbiage, is nothing more than a subterfuge, under the pretense of economy, designed to dispose of General Louis A. Kunzig and replace him with one John K. Schlinkert. It also embodies the reshuffling of administrative responsibilities that would prepare the ground and make it fertile for the return of the political connivery and corruption with which the commission was infested prior to the creation of the position of executive director and the appointment of General Kunzig. This is particularly true in view of the fact - that fear of an investigation by a one-man grand jury has been eliminated. The history of liquor commissions in several Statés has been one of continuous political chicanery and corruption, a condition Michigan can proudly point to as nonexistent since the creation of General Kunzig’s position.
“The proposed reorganization program provides for a new position to be known as that of director of purchasing and merchandising. The duties as outlined cover a preponderant list of important functions controlling virtually every department of the commission. It is intended that Mr. Schlinkert, whose present position is titled director of purchasing, take over these responsibilities. His present title is a misnomer, and he is mqrely a supervisor in charge of a small clerical staff which prepares inventory and sales reports from commission records, as a guide for purchasing requirements. Mr. Schlinkert is not fitted by temperament, experience or ca pacity to take the responsibility of even a small portion of the duties outlined. Mr. Schlinkert has repeatedly boasted that he made a sizable contribution to the Democratic campaign fund and he expected to be rewarded. He is the only civil service employee with the commission, who, to my knowledge, has indulged in partisan politics since I have been a member of this bipartisan commission. In the final analysis the program is designed to eliminate General Kunzig, a man of integrity and capacity, who holds the respect and affection of the hundreds of employees of the commission and promote Mr. Schlinkert, whose qualifications are dubious and who, in effect, is paying for a promotion that he could not attain by meritorious service. In conclusion, it is my opinion that if this ridiculous subterfuge is consummated, it will be a severe blow to the civil service structure. It will create apprehension of insecurity in the minds of thousands of fine men and women now in the employment of the State of Michigan.
“In view of the foregoing, it is my recommendation that the proposed reorganization program be rejected.
“Yours very truly,
“HH/hp Harry Henderson, Commissioner”
The declaration alleges that defendant, actuated by malice, caused the letter to be made available to a number of newspapers, naming 4 newspapers, and that defendant well knew the falsity of the charges and inferences in said letter; it further alleges that plaintiff has never been guilty of paying for a promotion, making sizable donation to the Democratic campaign fund during his employment by the liquor control commission, nor playing politics in connection with his such employment, nor has he, plaintiff, been so suspected.
Plaintiff claims that defendant was not charged with any authority or duty to make a rating for plaintiff, who was an employee of- the liquor control commission of which defendant was one of the 3 commissioners, plaintiff being in the classified State civil service.
Part of the controversy, of which this suit is also a part, is recited in Kunzig v. Liquor Control Commission, 327 Mich 474.
Defendant answered the declaration. He admits that he released a copy of the letter to newspapers but denies the imputed malice and claims the letter to be an absolutely privileged communication made by him in his capacity as member of the State liquor control commission, under CL' 1948, § 436.12 (Stat Ann § 18.983), which is as follows:
“The commission, or any member of the commission, shall not be personally liable for any action at law for damages sustained by any person because of any action performed or done by the commission, or any member of the commission, in the performance of their respective duties in the administration and in the carrying forth of the purposes and provisions of this act.”
It must be considered that the legislature, in enacting this statute, intended to and did grant to the commission in question and each member thereof, a greater immunity than they would otherwise have.
The controlling question is whether defendant’s privilege under the above-quoted statute is absolute.
' An amendment to the State Constitution, art 16, § 11, provides that the legislature may by law establish a liquor control commission and makes certain provisions as to the powers and duties of the commission.
The legislature under the authority of the Constitution passed an act (of which CL 1948, § 436.12 [Stat Aun § 18.983] is one section) providing for the appointment of 3 commissioners and in general terms, it may be said their powers and duties include control of liquor traffic in the State.
Defendant as a member of the commission was charged with the duty of informing the civil service commission of the qualifications of and acceptability of service of employees of the commission.
The writing of the letter in question was an official act of defendant and within the scope of his duties, notwithstanding that the entire commission might designate some of its employees to make reports to the State civil service commission on the services and qualifications of employees of the liquor control commission.
Plaintiff cites and relies on the case of Murray v. Brancato, 290 NY 52 (48 NE2d 257, 146 ALR 906), a New York case brought against a judge of a county court. In that case the declaration was held sufficient by the court of appeals in a majority opinion of a divided court. The majority opinion held the publication by Brancato of his opinion in certain publications to be outside of the scope of the judicial duties of the judge, and to be actionable. • The court in that case say at page 57, “Concededly the’ law placed upon the defendant no duty in connection with such publication.”
In the instant case, the public was interested in the proposed reorganization of the personnel under the commission of which defendant was a member. Under all the circumstances, defendant had an official right to permit the public to be informed.
In Trebilcock v. Anderson, 117 Mich 39, we say (syllabus 1):
“A communication from the mayor of a city to the common council, advising them of his grounds for vetoing a resolution passed by them, is, so far at least as the matter therein contained is pertinent to the subject, absolutely privileged.”
We further note the following:
“A privileged occasion is an occasion when for the' public good and in the interests of society one is freed from liability that would otherwise be imposed on him by reason of the publication of defamatory matter.” 53 C JS, p 142.
“An absolutely privileged communication is one for which, by reason of the occasión on which it is made, no remedy is provided for the damages in a civil action for slander or libel.” 53 CJS, p 143.
The occasion on which defendant Henderson wrote the letter in question was of public interest. The letter itself was within the scope of such a privileged occasion, and its publication was aimed at the same public purpose.
The judgment appealed from dismissed the plaintiff’s action. The judgment is affirmed. No costs, a question of public interest being involved.
Boyles, North, Dbthmers, Btjtzel, Carr, Btjshnell, and Sharpe, JJ., concurred. | [
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] |
Carr, J.
Plaintiff administratrix brought suit in circuit court to recover damage's from the defendants on the ground that they, as osteopathic physicians and surgeons, negligently and improperly treated her decedent, and that his death occurred as a result. The declaration filed alleged that prior to January 19, 1944, Mr. Bryant was suffering from an ailment for which he sought alleviation or cure, and {hat for such purpose he consulted defendant Neilson who recommended that the patient undergo surgery and referred him to the defendant Biggs. On January 20, 1944, Mr. Bryant entered a hospital and on the 23d of January following he underwent a surgical operation known as a thyroidectomy ■which was' performed by defendant Biggs allegedly at the direction of defendant Neilson. Plaintiff further asserted in her pleading that defendants were negligent in failing to make proper examinations and tests prior to the operation for the purpose of determining whether the patient was able to withstand the thyroidectomy, in failing to ■ give proper preoperative medication and treatment, and in performing the operation under the existing circumstances with reference to Mr. Bryant’s condition at the time. The alleged cause of action was based on the theory that the death of the patient, which occurred on the day following the operation, was occasioned by improper methods and lack of due and proper care on the part of the defendants.-
Plaintiff averred in her pleading that it was the duty of the defendants Neilson and Biggs to “attend plaintiff’s decedent in a skillful and careful manner, to use those methods of examination, diagnosis, and surgery which are usually prescribed and used in the art and profession of osteopathic medicine and surgery for same purposes and to use and avoid fáiling to use methods, tests, and laboratory means which plight result in grievous injury to' the plaintiff’s decedent; and to carefully examine and test plaintiff’s decedent, including basal metabolism laboratory tests, cardiograph, and X-ray treatment before undertaking surgery upon the plaintiff’s decedent’s body, and to use proper care, attention, medication, and treatment prior to the .surgical operation for the purpose of properly preparing the plaintiff’s decedent for surgical operation so as to reduce the risks thereto involved.” In answer to the declaration defendant Biggs admitted the performance of the operation and his duty to attend plaintiff’s decedent in a skillful and careful manner, and “to use the methods prescribed by the profession of osteopathy.” He further averred that such duties were fully performed by him. He denied that a basal metabolism test, cardiograph, or X-ray treatment, were necessary to a proper diagnosis of the plaintiff’s decedent’s condition, and alleged that “the usual care, attention, medication and treatment was given to plaintiff’s decedent prior to the surgical operation.” Defendant Neilson by his answer denied any participation in the operation, by direction or otherwise.
The proofs offered by plaintiff on the trial indicated that Mr. Bryant had been suffering for several years from a thyroid condition. He consulted a physician of the allopathic school, who testified to examining him and advising as to the procedure deemed proper by the witness. It does not appear that the patient attempted to follow the advice given him. The witness also testified to what he considered to be the usual treatment of the ailment from which the patient was suffering. His statements indicate that he liad reference to the methods and procedure of his own school of practice. He did not claim any knowledge with reference to osteopathy or the methods, or the degree of care and skill, customarily followed and exercised by osteopathic practitioners in the community or similar Communities. He expressed no opinion as to the alleged negligent conduct of the defendants.
Plaintiff’s principal witness was a physician and surgeon duly licensed as such in the State of Michigan, who was qualified as an expert in his field of practice. He testified to experience on his part in treating thyroid patients. In answer to a hypothetical question based on the history of the case, including the hospital treatment, the witness was permitted to state, over the objection of counsel for defendants, what he considered to be the standard of practice involved in the management of a case of the nature set forth in the hypothetical question. The hospital record indicates that the treatment actually-given Mr. Bryant was not in accord with the claim of the witness as to the standard practice. In answer to a specific question he was permitted, over objections, to express the opinion that the failure in the instant case to comply with the standards of practice detailed by him might or could reduce the patient’s chance of survival or cause death.
Defendants’ objections to the testimony of the witness, and their subsequent motion to strike, were based principally on the claim that the witness did not know the methods of treatment, care, and operation customarily followed by practitioners of osteopathy, or the degree of care and skill customarily employed by ordinary practitioners of such school in the community or similar communities. In this connection the witness testified that he was not familiar with osteopathic schools, and that he had no knowledge as to their teachings other than by hearsay. He had never attended any osteopathic clinics, or discussed with osteopathic physicians and surgeons the question as to what constitutes proper preoperative or postoperative care. He indicated also that he was not familiar with osteopathic literature, and that he had no knowledge of the fundamental concepts of osteopathy or the osteopathic viewpoints of symptomology.
Following the expert testimony offered in plaintiff’s behalf counsel for the defendants moved for directed verdicts.' On behalf of defendant Neilson it was claimed specifically that plaintiff’s proofs were insufficient to connect him with the acts of omission and commission charged in the declaration as the basis of the cause of action. Both defendants urged that the testimony of plaintiff’s expert witness was incompetent because not based on any familiarity with, or knowledge of, the methods and-standards of practice of osteopathic physicians and surgeons customarily observed by reputable practitioners of that school in the community and in similar communities. • After considering the testimony and listening to the arguments of counsel, the trial judge came to the conclusion that he could not say that the testimony was competent and that it established a prima facie case. He also indicated that the testimony relating to defendant Neilson’s connection with the operation, and with the preoperative and postoperative care and treatment given to the patient, was insufficient to impose liability on him. Verdict in favor of both defendants was directed and judgment entered accordingly. Plaintiff has appealed.
On behalf of appellant it is argued that the testimony of her principal witness, above discussed, should be construed as expressing an opinion on his part that the methods and standards of practice detailed by him were recognized and followed by ordinary practitioners of the osteopathic school, as well as by those of his own school. The claim is made that such testimony was sufficient to require submission of-the case to the jury. Defendants contend, as they did in the trial court, that the witness replied to the hypothetical question submitted to him solely from the standpoint of the school of practice to which he belonged, and that his lack of knowledge of the teachings of osteopathy and of the concepts, methods, and standards of practitioners of osteopathy rendered him incompetent to express an opinion on the matter at issue. It is their position, that the trial court properly directed a verdict in their favor.
It has been repeatedly held by this Court that the implied contract between a patient and surgeon requires the latter to use the degree of diligence and skill ordinarily exercised by. the average of the members of the profession in the same locality or in similar localities, with, due consideration to the-state of the profession at the time. Miller v. Toles, 183 Mich 252 (LRA 1915C 595); Rytkonen v. Lojacono, 269 Mich 270; Zanzon v. Whittaker, 310 Mich 340; Nemer v. Green, 316 Mich 307; Facer v.. Lewis, 326 Mich 702. In the instant case it was the-duty of the defendants, as alleged by plaintiff in her declaration, to treat Mr. Bryant’s ailment with due and proper care. Stated more specifically, it was their duty to use that degree of care and skill in their handling of the case, and in the treatment given the patient, customarily used in the community or similar communities by ordinary or average-practitioners of osteopathy. They were not held to the observance of standards of practice or methods of practice customarily observed by practitioners belonging to other schools devoted to the cure, alleviation, and treatment, of human ailments and' diseases. It may be noted in this connection that the registration of physicians and surgeons in this State is subject to the provisions of PA' 1899, No-237, as amended (CL 1948, § 338.51 et seq. [Stat Ann and Stat Ann 1949 Cum Supp § 14.531 et seq.]). The regulation of the practice of osteopathy is provided for by PA 1903, No 162, as amended- (CL 1948, § 338.101 et seq. [Stat Ann and Stat Ann 1949 Cum Supp § 14.571 et seq.]). The latter act created the State board of osteopathic registration and made provision for the examination of applicants for registration as practitioners of osteopathy. The certificates issued to those entitled to registration authorizes the practice of osteopathy “as taught and practiced by the recognized colleges or schools-of osteopathy.”
In the instant case the alleged failure of defendants to exercise the requisite degree of care and skill in the treatment of plaintiff’s decedent could not be established other than by the testimony of an expert or experts familiar with the ordinary methods and standards of practice of osteopathic practitioners in the community or in similar communities. Practitioners of other schools of treatment, no matter how well qualified by study and experience in their own methods and standards but lacking the requisite knowledge of the specific matter in question, could not competently express opinions. In Janssen v. Mulder, 232 Mich 183 (25 NCCA 248), an action for damages for alleged malpractice, the defendant was a graduate of a chiropractic school and assumed to treat human ailments in accordance with the system taught in such school. In commenting on the burden of proof resting on the plaintiff, it was said:
“It necessarily follows that such proof must be made by one engaged in treatment by similar methods to those employed by defendant. With the merits of the several drugless systems of relieving human ailments the courts have no concern. It is sufficient to say that many of our citizens believe in their efficacy and secure the services of those engaged in practicing them. The treatment given by any one of such practitioners would probably be deemed improper and unskillful when judged by physicians who are taught to treat such ailments by the use of drugs and medicines. The unfairness of permitting the test as to whether a particular treatment was proper or skillful to be determined by one who uses a different method, or follows the teaching of another system, must be manifest.”
In Sima v. Wright, 268 Mich 352, it was held that a doctor of osteopathy was not competent to give expert testimony as to local medical practice without a showing that he knew such practice.
It may be assumed that plaintiff’s decedent was aware that defendants were osteopathic practitioners and that for reasons satisfactory to himself he sought treatment from them for the cure or alleviation of his condition. In doing so he was, of course, •charged with knowledge of the fact that they would follow the methods and practices observed in their system of treatment. Plaintiff is not in position to complain that the methods and standards of practice customarily observed by another school were not followed. The general rule is summarized in 70 OJS, p 953 as follows:
“A school of medicine relates to the system of diagnosis and treatment. "While the law recognizes that there are different schools of medicine, it does not favor, or give exclusive recognition to, any particular school or system of medicine, as against the others. When a patient selects a practitioner of a recognized school of treatment he adopts the kind of treatment common to that school, or, as otherwise stated, he is presumed to elect that the treatment shall be according to the system or school of medicine to which' such practitioner belongs. The question whether or not a practitioner in his treatment of the case exercised the requisite degree of care, skill, and diligence is to be tested by the general rules and principles of the particular school of medicine which he follows, and not by those of other schools, since he is only under the duty of exercising the degree of skill and care ordinarily exercised by practitioners of his school. A school of medicine, in order to be entitled to recognition under this rule, must have rules and principles of practice for the guidance of all its members, with respect to principles, diagnosis, and remedies, which each member is supposed to observe in any given case. A practitioner who claims to follow a particular school must be held to the degree of skill and care ordinarily used by practitioners of that school, and where a practitioner of one school follows methods used in another school he must use the skill and care required of a practitioner in the latter school.”
Likewise in 41 Am Jur, pp 242,243, it is said:
“The general rule of substantive law that a physician’s treatment of his patient as to care and skill, or negligence, is to be tested by the principles and tenets of the school of medicine to which he belongs, has already been discussed. And as a general rule, the defendant in a malpractice action is entitled to the testimony of competent practitioners of his own school of medicine as to the teachings of that school and his conformity thereto in his treatment of his patient, on the issue of whether he exercised the requisite degree of skill and care in such treatment. This rule has been applied in favor of members of the school of homeopathy, allopathy, osteopathy, chiropractic, and of Christian Science healers, and practitioners of the botanic school. This rule does not, however, exclude the testimony of physicians of other schools or experts in other lines when that testimony bears on a point as to which the principles of the two schools concur, such as matters of diagnosis, the methods and dangers of the use of X-ray or other electric or mechanical appliances in common use by the several schools, or the existence of a condition that should be recognized by any physician of any school. There is authority, however, which emphasizes the point that the tenets and standards of treatment which form the premises for the testimony must be so substantially the same on the point in issue as to afford a true test.”
The rule as stated in Corpus Juris and in American Jurisprudence is supported by decisions of the courts. In Forthofer v. Arnold, 60 Ohio App 436 (21 NE2d 869), the plaintiff, suing for damages for alleged malpractice on the part of the defendant, a physician and surgeon, offered as expert witnesses 2 doctors of the osteopathic school, each of whom testified as to the treatment that he thought proper in a case of the character in question. At the conclusion of plaintiff’s proofs the testimony was strick en from the record and a verdict directed for the defendant. In holding that the trial court was not in error in striking out the testimony, it was said:
“In malpractice actions' it is a well-recognized rule, and one which has the approval of this court, that the care, skill and diligence exercised by the defendant is to be judged by that standard of ordinary care which ordinarily is exercised by physicians and surgeons of the same school of medicine in the same general neighborhood, or in a similar locality.”
In Bush v. Cress, 181 Minn 590 (233 NW 317), the defendant, a physician of the allopathic school of medicine, was sued for damages for alleged malpractice in connection with an operation in an obstetrical case. Among other experts a witness of a. different school was permitted to testify in plaintiff’s behalf. In holding that such testimony was improperly received, it was said:
“An assignment of error is also based upon the admission of the testimony of Dr. Thorson, a graduate of an eclectic school of medicine. The record does not disclose whether this is a distinct school of medicine, but it seems clear that the witness was recognized as outside the allopathic school of medicine. In order to show a qualification to testify, Dr. Thorson said he knew the practice- of allopathic doctors in childbirth cases. When asked how he-knew, he said that in the medical school from which he graduated one of the textbooks used was King’s Obstetrics, which is allopathic. Tie stated that he did not know of any difference in the treatment of these cases between his method and the school of allopathy. Upon this showing the doctor was erroneously permitted to testify. The rule is that a physician’s professional standard of conduct and the necessities and proprieties thereof are to be tested by the evidence of those who are trained and skilled in Ms particular school of medicine. Nelson v. Dahl, 174 Minn 574 (219 NW 941); Martin v. Courtney, 87 Minn 197 (91 NW 487); Harju v. Allen, 146 Minn 23 (177 NW 1015). The fact that Dr. Thorson studied one single allopathic textbook, which may or may not cover the entire field of childbirth and surgical. operations incidental thereto, is insufficient. Whether such book is all-inclusive is for a member of the allopathic school to state. Here none has spoken. The fact that the witness of one school does not know any difference in the treatments of the 2 schools is meaningless.”
The language quoted is particularly in point in the case at bar because of plaintiff’s claim that the testimony of her principal witness should be held sufficient to establish that the methods and standards of practice of osteopathic practitioners, in a case of the character here involved, were the same as those of the school to which he belonged. However, a consideration of all the testimony of the witness in question leads to the conclusion that the claim made is not tenable. In view of the repeated statements that he had no knowledge of osteopathy or the methods and standards of practice generally of osteopathic practitioners, the conclusion necessarily follows that he was not competent to testify whether the defendants exercised due and proper care, according to the applicable test, in treating Mr. Bryant’s ailment and in performing the operation. Obviously the standards of practice which the witness indicated should be followed in such a case were those of his own school and which Ms own study and experience had persuaded him were correct. In giving his testimony he was not speaking from the standpoint of osteopathic schools or practitioners, nor was he in position to do so.
We are not here concerned with the duty of a practitioner of any school for the treatment, cure, .and alleviation of human ailments to exercise due and proper care in making a diagnosis. No claim is made that defendants did not correctly diagnose the cause of the patient’s condition. Plaintiff’s cause of action rests primarily on the theory that defendants did not follow, in preparing the patient for the operation and in treating him thereafter, the methods customarily taught in osteopathic schools and applied by ordinary practitioners of such schools in their practice in the same community or in similar communities. Under the situation here presented plaintiff’s claims could not be established other than by the testimony of an expert or experts possessing the requisite knowledge as to proper care .and skill with reference to such matters according to the teachings of osteopathic schools, and the methods customarily employed by osteopathic practitioners, as suggested by the applicable test.
The case of Cook v. Moats, 121 Neb 769 (238 NW 529, 78 ALR 694), is typical of the decisions holding that where the question at issue is the failure to exercise due care in the making of a diagnosis an expert belonging to one school may be competent to testify in an action brought against a practitioner of a different school. For the reasons above stated, it and similar decisions are not in point in the instant controversy. However, Cook v. Moats is reported in 78 ALR 694 where it is followed by a somewhat extended note citing decisions from various States. The general rule is there stated substantially as set forth in the above quotations from Corpus Juris and American Jurisprudence. The great weight of authority is in accord with the principle recognized by this Court in Janssen v. Mulder, supra.
In view of the facts and issues involved in the case, the testimony of plaintiff’s principal witness .was not competent for the purpose for which it was offered. Other questions raised by counsel do not require discussion. The motions for directed verdicts were properly granted, and the judgment is-affirmed, with costs to defendants.
Reid, C. J., and Boyles, North, Dethmers, Butzel,, Bushnell, and Sharpe, JJ., concurred. | [
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Per Curiam.
Plaintiff appeals as of right from a judgment of divorce which awarded custody of the parties’ minor children to defendant. We affirm the custody award, but remand for a proper determination of plaintiffs child support obligation.
The parties were married on June 23, 1973. Two children were born during the marriage: Danielle Marie, born April 12, 1976, and Lisa Joy, born February 2, 1979. Defendant left the marital home with the children in November, 1983. Approximately a week later, plaintiff sought and obtained permission from defendant to take the children for a weekend. He did not return the girls to defendant’s custody, but instead commenced the instant action.
At a hearing held January 20, 1984, the parties entered into a stipulated custody agreement pursuant to which they were to share temporary joint custody of the children. Plaintiff was to have physical custody Monday through Friday and on alternate weekends. Defendant was to have custody on alternate weekends, from Friday evening to Sunday evening. Additionally, defendant was allowed visitation on Tuesday and Thursday evenings. The parties reserved their right to request sole custody.
On May 3, 1985, following a four-day trial, the trial judge rendered his judgment awarding physical and legal custody of the children to defendant and liberal visitation to plaintiff, including eight weeks of visitation each summer. The court stated that at the end of the school year defendant would "be allowed a two-week time period where the children will be in her custody. The children will then return to the father’s custody for the remainder of the summer until two weeks before school begins.” Additionally, the court ruled that child support would "be set in accordance with the support schedule presently used in Kalamazoo County. The attorneys for the parties will work out the support, and if they are not able to do so, the question of support will be referred to the Friend of the Court’s Office . . . .” The court further ruled that the support would abate by one-half during the eight weeks that the children are with plaintiff each summer.
Plaintiff filed a motion for reconsideration for new trial on May 24, 1985. At a hearing held on plaintiff’s motion, on August 7, 1985, defendant stated that plaintiff had not made any child support payments. Defendant’s attorney then informed the court that plaintiff’s counsel had not approved a proposed judgment submitted for entry on July 24, and that no written judgment had been entered. In light of this revelation, the trial judge adjourned the motion hearing. Defendant’s motion to enter judgment was heard on August 26, 1985. At that hearing, it was revealed that during the previous week plaintiff failed to return the children to defendant following a scheduled visitation and still had the children in his custody, causing them to miss their first day of school. Plaintiff was found by the court to be in contempt, and his visitation rights were terminated "until such time as this complete two weeks is made up.” Setting child support at $136 per week commencing June 7, 1985, the court then resolved the plaintiff’s objections to the entry of the proposed judgment and the order was entered that day, at the judge’s insistence.
Plaintiff argues that the trial court erred in awarding custody of the children to defendant. This Court reviews custody cases de novo. We will not disturb a custody order unless the trial court made findings of fact against the great weight of the evidence, committed a palpable abuse of discretion, or made a clear legal error on a major issue. Bednarski v Bednarski, 141 Mich App 15; 366 NW2d 69 (1985); MCL 722.28; MSA 25.312(8).
Plaintiff argues that the trial court committed a clear legal error on a major issue by failing to decide the issue of whether an established custodial environment existed. See MCL 722.27(l)(c); MSA 25.312(7)(l)(c). Where, as here, a review of the trial court’s opinion reveals no mention of a custodial environment, this Court will exercise its de novo review power in child custody matters to make its own determination as to whether a custodial environment has been established. See Meyer v Meyer, 153 Mich App 419; 395 NW2d 65 (1986). The custodial environment of a child is established if over an appreciable time the child naturally looks to the parent in that environment for guidance, discipline, the necessities of life and parental comforts. See MCL 722.27(l)(c); MSA 25.312(7)(l)(c). In the instant case, the record shows that, while the children primarily resided with plaintiff after the parties’ separation, defendant took an active role in their upbringing. Defendant testified that she spent approximately thirty hours per week, between Monday and Friday, with the children and saw them daily when she had to work overtime. She took the children to church during her weekend visitations and attended their school conferences. The children informed the court that they would have no reluctance in changing schools or residences. In view of these facts, we find that no established custodial environment existed whereby the children looked naturally to plaintiff alone for guidance, discipline, the necessities of life, and parental comfort over an appreciable period of time. Thus, the trial court could award custody, as it did, based upon a preponderance of the evidence as to the children’s best interests.
Plaintiff further argues that the trial court failed to consider and evaluate all statutory best interest of the children factors, set forth at MCL 722.23; MSA 25.312(3), in making the custody determination. We disagree. A review of the court’s decision makes it apparent that the court properly made findings on each of the factors and that none of its findings were against the great weight of the evidence. See Scott v Scott, 124 Mich App 448; 335 NW2d 68 (1983). Accordingly, the court’s order granting custody of the children to defendant is affirmed.
Nonetheless, we agree with plaintiff that the trial court erred in setting the level of his child support obligation. Review of child support provisions in judgments of divorce is again made de novo by this Court. The exercise of discretion in such matters by a trial court, however, is generally presumed to be correct. Dunn v Dunn, 105 Mich App 793; 307 NW2d 424 (1981). The party challenging an order of child support bears the burden of showing an abuse of discretion by the trial court. Id., p 797.
The determination of child support is for the court, not the parties. See, e.g., Adamczyk v Adamczyk, 155 Mich App 326; 399 NW2d 508 (1986). In determining the amount of child support to be paid, the court is to consider the needs of the children, Kalter v Kalter, 155 Mich App 99; 399 NW2d 455 (1986), lv den 428 Mich 862 (1987), and the parents’ ability to pay, Wilkins v Wilkins, 149 Mich App 779; 386 NW2d 677 (1986). Additionally, the trial court may look to the parents’ unexercised ability to earn. Wilkins, supra. The trial court may never delegate to the friend of the court its judicial discretion in setting child support. See, Campbell v Evans, 358 Mich 128, 131; 99 NW2d 341 (1959). Support schedules prepared by the friend of the court are guides to the trial judge in determining child support which should not be used mechanically; each case must be decided on its own particular merits based upon facts shown in the testimonial record. Boyd v Boyd, 116 Mich App 774, 786; 323 NW2d 553 (1982), quoting Meeker v Harrington, 15 Mich App 125, 127; 166 NW2d 276 (1968).
In the instant case, the trial judge intentionally set no amount of child support to be paid. Instead, he ruled that the figure would be set in accordance with the friend of the court support schedule. He then instructed the attorneys to work out the support figure. The court ruled that, if they were unable to arrive at an acceptable figure, the matter would be referred to the friend of the court for resolution; either party could appeal from the friend of the court’s finding to the trial court. Subsequently, at the hearing on plaintiffs motion for reconsideration for new trial, the judge learned that a written judgment of divorce had not been entered and that plaintiff had not, as of then, begun support payments. Consequently, he ordered plaintiff to prepare an interim order requiring plaintiff to pay $133 per week in child support, a figure chosen because it was contained in the proposed judgment and erroneously assumed to have been ordered. Finally, at the motion hearing held on August 26, 1985, the court ordered that plaintiff pay $136 a week in child support. While the court ostensibly took this figure from a recommendation made by the friend of the court, no such recommendation appears in the record. Indeed, by defendant’s worksheet calculations, the friend of the court schedule suggests plaintiff’s child support contribution be set at $109 per week. Finally, the judge informed the parties that the friend of the court would have the power to reduce the award retroactively if it believed the initial figure was incorrect.
Ón this record, we are persuaded that the trial judge abused his discretion in setting child support by delegating the task to the parties and to the friend of the court. The trial judge never made any determination as to the income of the parties or their abilities to pay. He never assessed the needs of the children. Additionally, when he did finally set a figure, he did so by adopting, out-of-hand, the recommendation of the friend of the court — a recommendation based upon calculations which plaintiff has disputed. In light of the foregoing, we remand to the trial court for an evidentiary hearing and a proper determination of the amount of child support to be paid. On remand, consistent with the court’s judgment, the support obligation shall be deemed to begin as of the date, after the 1984-85 school year, on which defendant assumed custody of the children and shall be abated by one-half for the eight-week periods during which the children have been in plaintiff’s care. A support obligation in excess of defendant’s request may be set if there is evidence that the children’s needs warrant the same. Hagbloom v Hagbloom, 71 Mich App 257; 247 NW2d 373 (1976). If it is determined that plaintiff has paid more in child support than is appropriate, then he shall be credited for the amount of overpayment. Conversely, if it is determined that plaintiff has paid less child support than is appropriate, then he shall be ordered to pay the arrearage within a reasonable period of time as set by the trial court.
Plaintiff’s remaining arguments require little discussion. The trial court did not commit error requiring reversal when it found plaintiff in contempt for failure to return the children to defendant prior to the beginning of school. The judgment regarding custody of the children during the summer was unequivocally rendered in May, was clearly to be given immediate effect and was relied upon by the parties. It was thus effective upon pronouncement. See Goldstein v Kern, 82 Mich App 723; 267 NW2d 165 (1978). Tiedman v Tiedman, 400 Mich 571; 255 NW2d 632 (1977), upon which plaintiff relies, is distinguishable. See 400 Mich 575, n 1. For the same reason, plaintiff’s argument regarding an automatic stay also fails. Plaintiff’s further assertion, that the trial court abused its discretion in not declaring a mistrial based on the judge’s illness, is without merit. Plaintiff never requested a mistrial on this basis and a review of the record reveals nothing to indicate that the judge was so incapacitated by a cold that he should have sua sponte done so.
Custody of the minor children with defendant is affirmed. Remanded for determination of plaintiff’s child support obligation, consistent with this opinion. We do not retain jurisdiction. No costs. Defendant’s request for attorney fees is denied. | [
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Shepherd, J.
This is an oil and gas case. The judgment entered by the trial court determined that defendant Victor Maneikis had abandoned an oil and gas lease as of 1980 and that the lease was null and void. The judgment also determined that Maneikis’ failure to remove all fixtures, equipment, storage tanks, separators, and production casing and tubing resulted in a forfeiture of the same. The judgment enjoined defendants from entering the leased property. The well holes and casing and related equipment were adjudged to be owned by the surface owners, subject to new oil and gas leases held by plaintiff Robert G. Toles. The judgment declared void a permit issued by the Department of Natural Resources to Maneikis "for the reworking or plugging of operations.” The judgment also contained other miscellaneous relief, including attorney fees. Defendants appeal from the judgment and an order denying defendants’ motion for new trial. We affirm.
Two oil and gas wells exist on the property. Charles W. and Mae F. Williams entered into the oil and gas lease at issue on October 10, 1956. Plaintiffs Dowayne J. and Donamae Brigham later purchased the land from Charles Williams, who apparently retained a life estate. Toles is the owner of subsequent oil and gas leases on the property.
Charles and Mae Williams gave the original oil and gas lease to Smith Petroleum Corporation. Eventually, Kenowa Oil Company received the lease. Kenowa is owned by Maneikis, who also does business as Independent Oil Investors. Defendant Dean Center, doing business as Center Operation, has been hired by Maneikis (or Kenowa Oil or Independent Oil Investors or all three) to plug one or both of the oil and gas wells on the property. Although it appears no formal assignment of the lease to Maneikis occurred, he is nominally an oil and gas lessee of the real estate. The dnr has issued a permit in his name even though his ownership interest is unclear.
At issue are four storage tanks, two heater-treaters, production tubing, pipe, valves, and inch production casing. This equipment was used in the production and storage of oil and natural gas from the wells from 1960 through approximately June, 1980, at which time oil and gas production was discontinued. This case concerns the construction of a clause in a 1956 oil and gas lease known as the "removal of fixtures” clause. Accordingly, some discussion of the history of this lease and the lawsuit is necessary. Since no trial was held, the record is quite limited. We have taken the following facts largely from plaintiffs’ brief, which defendants have not contested on appeal.
The original lease was to Smith Petroleum on October 10, 1956. Smith Petroleum assigned its interest to Frontier Petroleum Company on December 10, 1959. Frontier completed the first well, Williams # 1, on January 24, 1960, and the second well, Williams #2, on June 28, 1960. Both wells produced the maximum amount of oil allowed daily by the dnr into 1969. Both wells later pro duced "significant” amounts of oil through September, 1971, when they were temporarily shut in. Both wells also produced a significant amount of natural gas up to that time.
Frontier assigned its lease on July 7, 1972, to Kenowa Oil. Dnr records indicate that Kenowa transferred permits to Maneikis on December 19, 1978, though apparently no formal assignment of the lease ever occurred. Oil and gas production has apparently been sporadic since the assignment, ranging from no production to "significant” production. Williams #1 has produced only twenty-eight barrels of oil since January, 1977. The pump jack was removed after August, 1977, after being severely damaged, and was never replaced. Williams #1 produced very little gas from January, 1979, through March, 1980, and was completely shut down by pulling production tubing out of the well and capping it. Williams #2 had significant oil production for over a year as well as significant gas production through August, 1980. Williams #2 has been shut in from December, 1980, to the present time, however. According to plaintiffs, Kenowa Oil and defendants have offered no reason why the wells were shut in. Nor have Kenowa and Maneikis made any apparent effort to obtain further production.
Charles Williams subsequently executed a "top lease” on the property to Toles. A top lease is one granted by a landowner during the existence of a recorded mineral lease which will become effective if and when the existing lease expires or is terminated. 8 Williams & Meyers, Oil & Gas Law, p 912. Williams told Toles he had received no shut-in or normal royalties since before 1980, and had not been paid for some production before the wells were shut down. He also advised Toles that the storage tanks were disconnected from the transmission pipeline before the wells were shut in.
Williams sold his property to the Brighams in 1984, retaining a life estate. Maneikis obtained a dnr permit to rework one of the wells in January or February, 1985. Plaintiffs filed the instant action on February 25, 1985, seeking injunctive and declaratory relief. The circuit court granted a temporary restraining order against defendants. Following a pretrial conference on August 23, 1985, the court entered a preliminary injunction effective until trial. The pretrial order indicated that the issue to be tried was whether production had ceased and whether that terminated the lease. The court ordered defendants to provide plaintiffs with all records concerning work done on the wells and production. Defendants apparently failed to produce the records and plaintiffs filed a default.
A hearing apparently took place on October 10, 1985, the date set for trial, though no transcript has been provided to this Court. The court entered an order on November 8, 1985, apparently based on a stipulation reached at the hearing, holding the 1956 lease void and forfeited because no production had occurred for five years. The preliminary injunction was entered and the parties were ordered to brief the issues concerning ownership of the wells, casing, and equipment, and Maneikis’ right to remove the casing and equipment and plug the wells.
The court subsequently entered an opinion finding that, while defendants owned the casings and related equipment at the time production ceased, they only had a reasonable time to remove them after production ceased, which the court concluded was six months. Defendants’ failure to act resulted in abandonment and termination of the lease by operation of law. In addition to granting the relief requested by plaintiffs, the court allowed plaintiffs costs, including reasonable attorney fees permitted by MCL 554.282; MSA 26.1162.
Defendants objected to the proposed judgment. The court took the assessment of attorney fees under advisement. However, the circuit judge died unexpectedly before deciding the allowable amount of attorney fees. An acting circuit court judge, after reviewing the record, awarded plaintiffs $6,600, representing sixty-six hours of work at $100 per hour. This constituted a reduction from the $11,050 requested by plaintiffs. The court disallowed fees for plaintiffs’ attorney’s travel time and reduced other charges as "excessive in view of the type of work that was performed.” Defendants subsequently moved for a new trial, which the court denied. The court awarded plaintiffs $500 additional attorney fees.
We begin our consideration of the issues presented by this case with some preliminary observations on the nature of oil and gas leases. Our Supreme Court has recognized that the oil and gas lease form is more the result of evolution than of initial drafting, J J Fagan & Co v Burns, 247 Mich 674, 678; 226 NW 653 (1929):
It is sufficient for our purpose to appreciate the fact of such evolution, and that the lease at bar is not an isolated or private agreement, drafted by uninformed neighbors to roughly express their understanding, but is a technical contract, reflecting the development and present status of the law of oil and gas, as far as it may be said to have a status in view of the bewildering conflict in reasoning and ruling. The lease should be read not only according to its words, but in connection with the purpose of its clauses.
The Supreme Court later described oil and gas leases as "usually speculative in character, being more in the nature of options” with ambiguities and repugnance of terms strictly construed in the lessor’s favor. McClanahan Oil Co v Perkins, 303 Mich 448, 451; 6 NW2d 742 (1942).
These remarks are consistent with the view expressed by commentators that an oil and gas lease typically does not settle or decide each and every right and obligation of the parties. The lease is generally executed before a lessee knows what development and marketing ramifications will exist. Thus, an oil and gas lease leaves open many important matters, permitting future events, rather than dim foresight, to shape the parties’ conduct. 5 Williams & Meyers, Oil & Gas Law, p 11. For that reason, careful attention has been paid to the language employed in a particular lease. J J Fagan, supra at 678.
At issue in the instant case is construction of the "removal of fixtures” clause in the 1956 lease:
Lessee shall have the right to use, free of cost, gas, oil and water produced on said land for lessee’s operations thereon except water from the wells of lessor. When requested by lessor, lessee shall bury lessee’s pipe lines below plow depth. No well shall be drilled nearer than 200 feet to the house or barn now on said premises without written consent of lessor. Lessee shall pay for all damages caused by lessee’s operations to growing crops on said land. Lessee shall have the right at any time to remove all machinery and ñxtures placed on said premises, including the right to draw and remove casing.
Considerable variety apparently exists with regard to possible "removal of fixtures” clauses. See 4 Williams, Oil & Gas Law, § 674, pp 202-208. The disputed clause in this case is of the sort most frequently found in oil and gas leases. Id. at § 674.1, p 208. A typical construction of "at any time” to mean "within a reasonable time” is found in Terry v Crosswy, 264 SW 718, 720 (Tex Civ App, 1924):
The clause in appellant’s contract giving him the right to remove his casing, pipes and rods "at any time” should be construed as giving him only a reasonable time to remove them after the expiration of his lease. It certainly was not within the contemplation of the parties to the lease that appellant could incumber the land with his fixtures, machinery, piping, and tubes, and, after the expiration of this lease and abandonment of all of his rights thereunder, hold possession of the land by willfully failing and refusing to remove his property. The right to an indefinite possession of the land for the purpose of claiming his fixtures now asserted by appellant would not be to his advantage, because his property would necessarily deteriorate, but would result in great hardship to the owner of the fee. Under appellant’s construction of the contract, he could withhold from the owners of the fee the possession of the land to the extent covered by his improvements for an indefinite time, though all his rights under the lease were forfeited. If we are correct in this construction of the lease, the failure of appellant to remove his fixtures within' a reasonable time resulted in a forfeiture, making them a part of the realty and vesting the owner of the fee with title thereto.
We have located no Michigan decisions construing the phrase "at any time” in such a "removal of fixtures” clause. The rule of construction cited above, however, is followed in numerous other jurisdictions. We conclude that this rule of con struction should also be followed in Michigan. Accordingly, we interpret the lease clause permitting removal of fixtures "at any time” to allow only "a reasonable time” after termination of the lease for removal of the casing and related equipment.
This holding necessitates a further determination of how and when the lease terminated. The lease’s term or duration is expressly described in its habendum clause:
It is agreed that this lease shall remain in force for a term of Ten (10) years from this date, and as long thereafter as oil or gas or either of them is produced from said land by lessee, or from a communitized unit as hereinafter provided.
The lease further provides:
Notwithstanding anything in this lease contained to the contrary, it is expressly agreed that if lessee shall commence drilling operations at any time while this lease is in force, this lease shall remain in force and its term shall continue so long as such operations are prosecuted and, if production results therefrom, then as long as production continues.
In such a "thereafter” habendum clause, the term "production” has been construed to mean production in paying quantities sufficient to yield a return in excess of operating costs. West Bay Exploration Co v Amoco Production Co, 148 Mich App 197, 206-207; 384 NW2d 407 (1986), vacated and remanded on other grounds 425 Mich 879 (1986). In this case, we need not decide whether such a construction is warranted since production had ceased altogether. Thus, the trial court properly concluded that the lease terminated by its terms when production from both wells ended in 1980. No reason for ceasing production is apparent from the record. The partial judgment entered on November 8, 1985, by stipulation of the parties, however, clearly reveals that production had ceased for nearly five years. Contrary to defendants’ assertions, the lease was not terminated by judicial decree on the date of that judgment but, rather, by defendants’ ceasing production.
The question then becomes what constituted a reasonable time for defendants to remove the fixtures. It appears that this question is one of fact, or a mixed question of fact and law, and depends on the circumstances of any given case. See Meers v Frick-Reid Supply Corp, 127 SW2d 493, 497 (Tex Civ App, 1939). Various cases have held that periods ranging from eight months to as much as nine years were reasonable time allowances to remove fixtures under the circumstances, while other cases have found similar time periods to be unreasonable. See generally, 4 Williams, Oil & Gas Law, § 674.1, pp 210-213. The trial court relied upon Michaels v Pontius, 83 Ind App 66; 137 NE 579 (1922), which found a period of from five to six years after production ceased to be unreasonable.
As Michigan law is silent on this point, we believe it is proper to follow Meers and examine such cases on their particular facts. The trial court apparently considered six months to have been a reasonable time to remove the casings and equipment in this instance. Whether six months was a reasonable time, however, we believe that five years was more than sufficient time. The trial court thus did not err in finding that defendants failed to act within a reasonable time by not removing the fixtures within five years following the end of production. The trial court’s consequent determination that defendants had forfeited title to the fixtures by failing to remove them within a reasonable time was in accord with the prevailing rule vesting title in the surface owners. See 4 Williams, Oil & Gas Law, § 674.2, p 215, and Terry v Crosswy, supra.
Finally, defendants object to the award of attorney fees pursuant to MCL 554.282; MSA 26.1162, which provides:
Should the owner of such lease neglect or refuse to execute a release as provided by this act, then the owner of the leased premises may after giving notice as provided in section 1 of this act, in lieu of the method prescribed in the preceding section, sue in any court of competent jurisdiction to obtain such release, and he may also recover in such action of the lessee, his successors or assigns, the sum of $100.00 as damages, and all costs, together with a reasonable attorney’s fee for preparing and prosecuting the suit, and he may also recover any additional damages that the evidence in the case will warrant.
Our review of the record reveals that the acting circuit judge did not award actual attorney fees, as argued by defendants, but reduced the claimed amount to reflect a reasonable fee for the amount and type of work performed. Accordingly, we find no error. Plaintiffs have requested attorney fees necessitated by this appeal. Though we have located no cases on this issue, the statutory language appears broad enough to cover such a request. We remand to the trial court for a hearing and determination of reasonable attorney fees on appeal.
Affirmed and remanded for further proceedings consistent with this opinion. We do not reserve jurisdiction.
See, e.g., Louisiana Oil Refining Corp v Haltom, 188 Ark 117; 64 SW2d 98 (1933); Michaels v Pontius, 83 Ind App 66; 137 NE 579 (1922); Pratt v Gerstner, 188 Kan 148; 360 P2d 1101 (Í961); Locke v Palmore, 308 Ky 637; 215 SW2d 544 (1948); Donnell v Gray, 215 La 497; 41 So 2d 66 (1949); Stevens v Iverson, 179 Okla 401; 66 P2d 12 (1937); Shellar v Shivers, 171 Pa 569; 33 A 95 (1895).
The court termed defendants’ actions an "abandonment.” It does not appear that the court used this term in the same sense as the definitions found in 8 Williams & Meyers, Oil & Gas Law, pp 2-3. We believe the court used,the term "abandonment” to characterize the cessation of production necessary to terminate the lease by its terms. | [
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] |
D. E. Holbrook, Jr., J.
Plaintiff appeals as of right from a circuit court order granting defendants summary disposition and dismissing plaintiff’s claim of employment discrimination. Plaintiff asserted that the City of Grand Rapids’ voluntary affirmative action plan violated the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., because it had not been approved by the Michigan Civil Rights Commission, as allegedly required by statute. Plaintiff, a fire fighter applicant, was passed over for employment in favor of several women who had received lower test scores than he did. We agree with plaintiff’s claim and reverse the summary disposition order.
In 1984, the Grand Rapids Civil Service Board approved the one-time use of a dual, gender-based eligibility list as an affirmative action effort to increase the number of female fire fighters. After taking the written test in 1984, plaintiff ranked thirty-fifth on the list of hires. However, the city selected eight men and eight women for the available positions. Several of the women chosen scored below plaintiff on the examination.
On March 25, 1985, plaintiff filed a two-count complaint in circuit court alleging a violation of the Civil Rights Act and negligence. Defendants answered, denying that they, or the voluntary affirmative action plan, had violated plaintiff’s civil rights. Defendants subsequently moved for summary disposition pursuant to MCR 2.116(C)(8) and 2.116(0(10).
At a hearing held on March 6, 1986, the defendants framed the only issue facing the court as being whether the Civil Rights Act mandated that an affirmative action program be submitted to the Michigan Department of Civil Rights for approval in order for the program to receive the act’s protections. Defense counsel argued that the act, specifically MCL 37.2210; MSA 3.548(210), contains no language that would suggest that submission of an affirmative action plan for approval is absolutely required. Plaintiff’s attorney countered that § 210 explicitly states that, while a municipality need not initiate an affirmative action program, if it does then the plan must be submitted to the Civil Rights Commission for approval. Since the city had not submitted its gender-based eligibility plan to the commission for its approval, the plan was invalid. The trial court, however, agreed with defendants’ argument and granted their motion. We find that the circuit court erred in interpreting §210.
Section 210 provides:
A person subject to this article may adopt and carry out a plan to eliminate present effects of past discriminatory practices or assure equal opportunity with respect to religion, race, color, national origin, or sex if the plan is filed with the commission under rules of the commission and the commission approves the plan.
In dismissing plaintiff’s claim, the circuit court interpreted the statute as being discretionary in nature, i.e., an affirmative action plan may, but need not, be submitted for approval. We believe that such a broad interpretation of the statute is contrary to its clear and unambiguous language.
A cardinal rule of statutory construction is that courts may not speculate as to the probable intent of the Legislature beyond the words employed in the statute. A word or a phrase in a statute is to be given its plain and ordinary meaning. Winiecki v Wolf, 147 Mich App 742, 744; 383 NW2d 119 (1985). When the language of a statute is clear and unambiguous, judicial construction is neither required nor permitted. Such a statute must be applied, and not interpreted, since it speaks for itself. City of Lansing v Lansing Twp, 356 Mich 641, 648-649; 97 NW2d 804 (1959); Winiecki, supra; Attard v Adamczyk, 141 Mich App 246, 250; 367 NW2d 75 (1985).
In the present case, the language of § 210 is clear and unambiguous. It provides that a person (here, a municipality) may initiate an affirmative action plan, but is not required to do so. If a plan is initiated, however, it must be submitted to the Civil Rights Commission for approval before it can take effect. Only the decision whether or not to initiate an affirmative action plan is discretionary. Where defendants and the trial court erred was in construing the statute as giving the city discretion in submitting the plan for commission approval. Clearly, once a plan is initiated, submission of the plan to the commission becomes mandatory.
Requiring prior commission approval of an affirmative action plan would further the act’s purpose of prohibiting discriminatory practices, rulings, and customs. As a general proposition, the act prohibits discrimination of any sort in the areas of housing, education, employment, et cetera. MCL 37.2102(1); MSA 3.548(102)(1). However, the act recognizes that in some instances discrimination in favor of minorities is tolerable when it is employed to rectify past discriminatory practices. But, even this "reverse discrimination” is not without its limits. For example, some case authority has held that an affirmative action plan cannot require the discharge of nonminority workers and their replacement with minorities, it cannot create an absolute bar to the advancement of nonminority employees, and it must be temporary in nature and terminate when the under-utilization of minorities has been corrected. Vanguards of Cleveland v City of Cleveland, 753 F2d 479, 484 (CA 6, 1985). Submission of a plan for approval would allow the commission to review the plan and determine if it exceeds the bounds of tolerable reverse discrimination. Without this review and approval process, a person could discriminate against nonminorities to any extent and in clear violation of the act.
A similar issue was addressed by a panel of this Court in J F Cavanaugh & Co v Detroit, 126 Mich App 627; 337 NW2d 605 (1983). In Cavanaugh, the City of Detroit passed an ordinance which required, among other things, that contractors seeking to do business with the city must take affirmative action to achieve reasonable minority representation in their work forces. That ordinance was enacted without obtaining approval from the Civil Rights Commission. Although primarily a preemption case, Cavanaugh also discussed the validity of the city’s plan. This Court stated:
In view of the statute’s prohibition of discrimination, § 210 implicitly precludes the use of an affirmative action plan unless the plan is "filed with the [civil rights] commission under rules of the commission and the commission approves the plan”. The nature of the interaction between nondiscrimination laws and affirmative action plans is such that we are convinced that the Legislature intended to preclude municipalities from requiring the adoption and use of plans approved only by the municipality. [Id., p 637.]
Hence, because the city had not sought and obtained commission approval, that section of the ordinance was declared invalid. Id., p 638.
Since, in the instant case, defendants failed to obtain approval of the voluntary affirmative action plan, that plan should be held invalid. Without an approved plan in effect, plaintiff alleged a prima facie violation of his civil rights. See MCL 37.2202; MSA 3.548(202). Therefore, the court erred in holding that the plaintiff failed to state a claim upon which relief could be granted. MCR 2.116(C)(8). Further, no evidence was presented by defendants that plaintiff would not have been selected as a fire fighter even in the absence of the affirmative action plan. Giving plaintiff the benefit of every reasonable doubt, we cannot say that his claim could not be supported at trial because of a deficiency which could not be overcome. See Rizzo v Kretschmer, 389 Mich 363, 371-372; 207 NW2d 316 (1973). Hence the trial court also erred in holding that plaintiff’s claim presented no genuine issues of material fact. MCR 2.116(0(10).
Reversed and remanded for further proceedings.
The city had previously utilized a dual eligibility list for hiring racial and ethnic minorities and nonminorities pursuant to a consent decree entered in the United States District Court in January, 1973. The decree, which was entered following the filing of an employment discrimination suit against the city on the basis of practices for hiring fire fighters, provided for the implementation of an equal employment opportunity program within the city’s fire department and utilization of a new testing instrument for the selection of fire fighters. In July, 1984, an order was entered suspending the effect of the consent decree for a period of three years.
In construing the Civil Rights Act, our courts regard federal precedent on analogous questions as highly persuasive, though not binding. Langlois v McDonald’s Restaurants of Michigan, Inc, 149 Mich App 309, 312; 385 NW2d 778 (1986), lv den 426 Mich 867 (1986).
While we recognize that plaintiff ranked only thirty-fifth out of sixteen or seventeen possible available positions, it is possible at trial that defendants could show that he was excluded for a nondiscriminatory reason. | [
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M. R. Stempien, J.
In July, 1984, a jury found Effie Orilla Stricklin guilty of three counts of criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2), and Richard David Stricklin, Sr., guilty of two counts of criminal sexual conduct in the first degree and one count of attempted criminal sexual conduct in the first degree, MCL 750.92; MSA 28.287. Effie Stricklin was sentenced to three concurrent sentences of ten to twenty years imprisonment. Richard Stricklin was sentenced to two concurrent sentences of ten to twenty years imprisonment on the first-degree esc convictions and three to five years imprisonment on the attempted first-degree esc convictions. Defendants appeal as of right from their convictions. The defendants were tried jointly, but filed separate appeals. We consolidated their appeals for purposes of oral argument and submission.
Defendants were convicted for engaging in various sexual acts with two of their five children, a male child, age eight, and a female child, age nine. The acts were alleged to have occurred between May and July of 1983. Effie Stricklin is the natural mother of the children; Richard Stricklin is their stepfather.
i
The trial court permitted three witnesses, a baby-sitter, Terry Kutsch, a Department of Social Services caseworker, Timothy Shaner, and a police officer, Detective Ray Kauer, to testify regarding conversations each had with the children wherein the children described engaging in sexual acts with defendants. Richard Stricklin objected to the hearsay statements of Kutsch, Effie Stricklin objected to the hearsay statements of Shaner, and both defendants objected to the hearsay statements of Kauer. The trial judge recognized that the "tender years” exception was inapplicable. Nonetheless, he overruled the objections, stating that it was his practice to allow police officers and other investigators to recite for the jury what witnesses had told them at earlier stages of the investigation in order to allow the jury to fully evaluate the credibility of the witnesses. Both defendants claim that the trial court’s ruling resulted in error.
Prior consistent statements of a witness are generally not admissible as substantive evidence. Brown v Pointer, 390 Mich 346, 351; 212 NW2d 201 (1973). There are three exceptions to this rule: (1) where a statement is used to rebut a charge of influence, (2) where there is a question whether a prior inconsistent statement was made, and (3) where a witness has been impeached with a charge of recent fabrication. People v Davis, 106 Mich App 351, 355; 308 NW2d 206 (1981). We find that none of the exceptions apply in this case.
The first exception was explained in People v Gardineer, 2 Mich App 337, 340; 139 NW2d 890 (1966):
"A consistent statement, at a time prior to the existence of a fact said to indicate bias, interest, or corruption, will effectively explain away the force of the impeaching evidence; because it is thus made to appear that the statement in the form now uttered was independent of the discrediting influence. The former statements are therefore admissible.” 4 Wigmore on Evidence (3d ed), § 1128, p 203. [Emphasis in the original.]
There were numerous attempts made during cross-examination of the children to impeach the testimony with charges of influence. Both children were questioned concerning possible influence by Terry Kutsch, their baby-sitter. The male child was also challenged about possible influence from Shaner and Kauer. Finally, the female child was questioned concerning possible influence from Wally Richards, who prior to trial had claimed that he was her father and had instituted custody proceedings. However, the consistent statements admitted at trial were not made prior to the existence of the alleged influences on the children.
The second exception only applies where a witness is impeached with evidence of a prior inconsistent statement and the witness denies making the prior statement. People v Hallaway, 389 Mich 265, 277; 205 NW2d 451 (1973). Both children were also impeached with certain inconsistencies between their testimony at the preliminary examination and their trial testimony. The inconsistencies, however, involved areas other than their statements regarding sexual acts with the defendants.
The third exception has been explained as follows:
The charge of recent contrivance is usually made, not so much by affirmative evidence, as by negative evidence that the witness did not speak of the matter before, at a time when it would have been natural to speak; his silence then is urged as inconsistent with his utterances now, i.e., as a self-contradiction (§ 1042 supra). The effect of the evidence of consistent statements is that the supposed fact of not speaking formerly, from which we are to infer a recent contrivance of the story, is disposed of by denying it to be a fact, inasmuch as the witness did speak and tell the same story .... [4 Wigmore, Evidence (Chadbourn rev), § 1129, pp 270-272. Emphasis in the original.]
This exception is inapplicable as there was no claim that the children had opportunities to speak previously and failed to do so.
We also do not find that the error in admitting the corroborating testimony was harmless.
The male child testified to having engaged in a variety of sexual acts with his mother and his sister. He denied that his sister had taught him the sexual acts. The female child testified to having engaged in a variety of sexual acts with her stepfather. She admitted that she had been sexually molested by her grandmother’s boyfriend. It was later revealed that criminal charges had been brought against the boyfriend in 1978. However, she too denied having taught her brother any sexual acts. Defendants claimed that the children had been sexually promiscuous following the female child’s sexual molestation and had been caught engaging in sexual activities with- each other and neighbor children. Both defendants further claimed that the children were sexually aggressive towards themselves and other adults. Given the conflicting testimony, the credibility of the witnesses was crucial to the jury’s verdict. Under such circumstances, we find that it was error requiring reversal to bolster the testimony of the children by allowing three witnesses to corroborate their testimony. See People v Gee, 406 Mich 279, 283; 278 NW2d 304 (1979). Defendants’ convictions are reversed and the case remanded for a new trial.
Even though disposition of this issue requires reversal of defendants’ convictions, defendants’ remaining claims of error will be addressed since they may arise on retrial.
ii
Defendants also claim that the trial court erred in denying their motion for separate trials. We agree.
The decision whether codefendants will be tried separately or jointly is in the discretion of the trial judge. MCL 768.5; MSA 28.1028; People v Missouri, 100 Mich App 310, 348; 299 NW2d 346 (1980). Generally, codefendants facing separate charges arising out of separate transactions should be tried in separate trials. Cf. People v Billingslea, 70 Mich App 371; 246 NW2d 4 (1976), lv den 398 Mich 808 (1976). However, joinder of distinct criminal charges is permitted against two defendants where (1) there is a significant overlapping of issues and evidence, (2) the charges constitute a series of events, and (3) there is a substantial interconnection between the parties defendant, the trial proofs, and the factual and legal bases of the crimes charged. People v Ritchie, 85 Mich App 463; 271 NW2d 276 (1978); People v Slate, 73 Mich App 126, 132; 250 NW2d 572 (1977). Moreover, the improper joining of defendants for trial for separate offenses is not per se error requiring reversal. There must be an affirmative showing of prejudice to the substantial rights of the accused. Missouri, 100 Mich App 348-349.
There were no ¿negations of joint criminal activity in this case. The allegations against Effie Stricklin involve sexual activities with her son. The allegations against Richard Stricklin involve sexual activity with his stepdaughter. The factual and legal issues were similar. However, the testimony of one victim bolstered the testimony of the other. While the trial court instructed the jury that each defendant was entitled to separate consideration of his or her guilt, defendants were prejudiced by the joint trial.
in
Following their convictions, defendants filed separate motions for new trials. Defendants allege that the children’s testimony was induced or influenced by the inappropriate counselling they received during their weekly visits to counsellors in the year prior to trial. In support of Richard Stricklin’s motion for a new trial, a licensed clinical psychologist testified that the children’s memories were altered as a result of their counselling. The trial court denied defendants’ motions, finding that the evidence was not newly discovered and, in any event, would not have affected the jury’s verdict because the children’s testimony was corroborated by other witnesses.
The grant or denial of a motion for a new trial lies within the sound discretion of the trial court. To establish error, a clear abuse of discretion must be shown. People v Newhouse, 104 Mich App 380, 384; 304 NW2d 590 (1981), lv den 411 Mich 978 (1981).
A new trial may be granted when a party’s substantial rights have been materially affected because of material evidence, newly discovered, which could not with reasonable diligence have been discovered and produced at the trial. ... It must be shown that the evidence itself, not merely its materiality, was newly discovered; that it is not cumulative; that it is such as to render a different result probable on a retrial of the cause; and that the party could not with reasonable diligence have discovered and produced it at trial. . . . The grant or denial of a motion for new trial lies within the sound discretion of the trial court. To establish error, a clear abuse of discretion must be shown. [People v Snell, 118 Mich App 750, 766-767; 325 NW2d 563 (1982). Citations omitted.]
In addition, newly discovered evidence is not grounds for a new trial where it would be used merely for impeachment purposes. Id.
The trial court correctly denied defendants’ motions. The psychologist’s testimony would have been used only to impeach the children’s testimony. Moreover, the evidence, with reasonable diligence, could have been discovered and produced at trial. Finally, we are not convinced that the evidence would have rendered a different result probable on retrial.
IV
Richard Stricklin was charged with four counts of first-degree criminal sexual conduct. At the preliminary examination, the female child testified that she had performed oral sex on her stepfather and he had attempted vaginal and anal sex on her. There is no testimony that Richard Stricklin had performed oral sex on her. The district court judge bound Richard Stricklin over on two counts of first-degree criminal sexual conduct, reduced Count in to attempted first-degree criminal sexual conduct, and dismissed Count iv. At trial, the female child testified that Richard Stricklin had performed oral sex on her. The trial court instructed the jury that Counts i and n of the information were based on the child’s having performed oral sex on Richard Stricklin and his having performed oral sex on her. Richard Stricklin did not object.
An information is presumed to be framed with reference to the facts disclosed at the preliminary examination. People v Reedy, 151 Mich App 143; 390 NW2d 215 (1986). Consequently, the trial court’s instructions to the jury effectively amended the information against Richard Stricklin following the close of the proofs. Cf. People v Price, 126 Mich App 647; 337 NW2d 614 (1983). A trial court may amend the information at any time before, during, or after trial in order to cure a variance between the information and the proofs as long as the accused is not prejudiced by the amendment and the amendment does not charge a new crime. MCL 767.76; MSA 28.1016; People v White, 22 Mich App 65, 67; 176 NW2d 723 (1970). Prejudice occurs when the defendant does not admit guilt and is not given a chance to defend against the crime. Cf. People v Willett, 110 Mich App 337, 342-344; 313 NW2d 117 (1981), remanded on other grounds 414 Mich 970 (1982).
We find that Richard Stricklin was not prejudiced by the amendment in this case. He was bound over on a charge of first-degree criminal sexual conduct and was convicted of first-degree criminal sexual conduct. While the information was amended to reflect a variance in the type of penetration, defendant was not convicted of a new crime. Nor was defendant deprived of an opportunity to defend against the crime. He defended the original charges on the grounds that his stepdaughter was promiscuous and sexually aggressive. Nothing in the record suggests that he would have presented a different defense at trial if the charge had originally been first-degree criminal sexual conduct involving oral sex with his stepdaughter instead of first-degree criminal sexual conduct involving anal penetration.
v
Richard Stricklin further claims that the information was defective because the proofs indicated that the offenses occurred some time in the summer of 1983 and the information alleged that the offenses occurred between May and June of 1983.
MCL 767.45(2); MSA 28.985(2) provides that an information shall contain the time of the offense as near as may be, but no variance as to time shall be fatal unless time is of the essence of the offense. Time is not of the essence nor a material element in a criminal sexual conduct case, at least where the victim is a child. People v Howell, 396 Mich 16; 238 NW2d 148 (1976); People v McConnell, 122 Mich App 208, 212; 332 NW2d 408 (1982), rev’d on other grounds 420 Mich 852 (1984); People v Bowyer, 108 Mich App 517; 310 NW2d 445 (1981).
A review of the trial testimony reveals the sexual acts occurred between early June, 1983, and August 5, 1983, while Richard Stricklin’s family resided in a duplex on Oakley Street in Saginaw. Tim Shaner testified that the Stricklins resided at the Oakley residence when he interviewed Richard Stricklin on August 5, 1983. Defendant stated that his family moved to Oakley Street in early June of 1983. The female child testified that the sexual acts occurred while she lived in the white house that was "split in half-like.” Terry Kutsch baby-sat for defendants while they lived on Oakley Street, next to her aunt. When considered together, this evidence establishes that the offense occurred between June and August 5, 1983, while the female child resided with her parents on Oakley Street. Consequently, if there was any variance between the information and the trial proofs, it occurred only with respect to the first five days of August, 1983. As time is not of the essence in criminal sexual conduct cases, the variance, if it existed, was harmless. Moreover, any variance can be corrected during defendant’s retrial.
vi
At trial, Richard Stricklin’s recorded statement to Detective Ray Kauer was played to the jury. Prior to trial, a Walker hearing was held to determine the voluntariness of the statement. Richard Stricklin claimed that he was induced to give the statement upon Detective Kauer’s representation that if a statement was given, the matter might be closed and the children returned to the defendants. The trial court found that Richard Stricklin’s statement was not induced by any promises and denied the motion to suppress. We affirm.
When reviewing the findings of a trial court made during a Walker hearing, we are required to examine the whole record and make an independent determination of the voluntariness of a defendant’s statement. People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972). However, we must affirm the trial court’s findings unless we are left with the firm and definite conviction that a mistake has been made. People v McGillen # 1, 392 Mich 251, 257; 220 NW2d 677 (1974). The voluntariness of a defendant’s confession is a question of fact which is decided by viewing the totality of the circumstances surrounding the confession. People v Crawford, 89 Mich App 30, 32; 279 NW2d 560 (1979). If the determination of voluntariness is largely dependent on the credibility of witnesses, the appellate court should defer to the trial court’s findings. People v Catey, 135 Mich App 714, 721; 356 NW2d 241 (1984), lv den 422 Mich 940 (1985).
At the Walker hearing, Effie Stricklin concurred with her husband’s claim that Detective Kauer made certain representations concerning the children’s return to defendants. She was aware, however, that the statement could be used in court. Richard Stricklin’s attorney, Peter Shek, was present during defendant’s statement. He read defendant his Miranda rights and both he and defendant signed the Miranda form. According to Shek, Detective Kauer merely stated that if the statement was given there was a chance that the criminal aspect of the case would be resolved. Shek did not assure Richard Stricklin that the criminal charges would be dropped merely because a statement was given. Shek further testified that his clients were "quite well aware” that their statements could be used in a court. In addition, Detective Kauer’s statement that "we want to get your kids back and everything right in this matter” was made at the end of the recorded statement. Under the circumstances of the case, we are not left with a definite and firm belief that Richard Stricklin’s statement was induced by any promises.
VII
Richard Stricklin’s final claim on appeal is that the trial court erred in barring the testimony of his expert witness.
At trial, Richard Stricklin sought to admit the deposition of a child psychologist to support his claim that a child who has been sexually molested would be likely to fantasize instances of sexual abuse. The trial court excluded the evidence on the basis that the female child’s credibility was a matter to be determined by the jury.
MRE 702 provides:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Although an expert cannot be used as a human lie detector to give a stamp of scientific legitimacy to the truth of the witness’ statement, People v Izzo, 90 Mich App 727, 730; 282 NW2d 10 (1979), an expert can testify as to the traits or characteristics of sexually abused children if such testimony will assist the jury in understanding the evidence. People v Draper, 150 Mich App 481, 487-488; 389 NW2d 89 (1986). Assuming that the psychologist’s testimony would have been based on his knowledge of child development and not on an evaluation of the female child’s credibility, it cannot be said that he would have usurped the jury’s responsibility for determining credibility. In re Rinesmith, 144 Mich App 475, 482; 376 NW2d 139 (1985). Upon retrial, Richard Stricklin should be permitted to introduce the expert’s testimony, provided the trial judge is convinced that the appropriate foundation has been established.
Reversed and remanded for new trials.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). | [
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Weaver, J.
Plaintiff, Automobile Club Insurance Association, appeals from an order of the Wayne Circuit Court which denied its motion for summary disposition and granted defendant’s motion for arbitration. We reverse and remand._
I
On October 23, 1983, defendant was injured in a collision with an uninsured motorist. Although defendant’s vehicle was not insured, she sought derivative uninsured motorist benefits from plaintiff under her cousin’s automobile insurance policy, claiming such entitlement because they lived in the same home. Plaintiff refused these benefits on the basis that defendant was not an "insured person” within the meaning of her cousin’s policy.
Plaintiff then sought declaratory judgment in Wayne Circuit Court, seeking a determination that defendant was disqualified from recovering uninsured motorist benefits under her cousin’s policy. Defendant answered, seeking an order to force plaintiff’s arbitration of her claim. Both parties brought cross motions for summary relief. Upon concluding that the policy’s language was ambiguous, the court denied plaintiff’s motion and granted defendant’s motion, ordering plaintiff to arbitrate defendant’s claim. From entry of this order plaintiff appeals as of right.
n
Plaintiff argues for the first time on appeal that an "owned vehicle” exclusion clause in the cousin’s policy precludes any recovery by defendant and that under a de novo standard of review this Court may review the issue. Plaintiff also argues that, because the policy’s language, read as a whole and including the owned vehicle exclusion clause, clearly and unambiguously denied coverage to defendant, the circuit court erred in granting declaratory relief in favor of defendant. We agree.
Actions in the nature of declaratory judgments are reviewed de novo by this Court. Smith v Lumbermen’s Mutual Ins Co, 101 Mich App 78, 86; 300 NW2d 457 (1980), lv den 411 Mich 873 (1981). Although we generally will not review issues raised for the first time on appeal, where the question is one of law which is to be decided without reference to material issues of fact in dispute and review is necessary to a proper determination of the case, we will consider the issue. Harris v Pennsylvania Erection & Construction, 143 Mich App 790, 795; 372 NW2d 663 (1985).
Here, both reasons persuade us to review the issue. Since this action is in the nature of a declaratory judgment, de novo review is proper. In addition, the question presented is one of law to be decided without reference to material issues of fact in dispute.
The only fact in dispute at the trial court level was whether or not defendant was an "insured person” under her cousin’s policy. Since plaintiff no longer argues that defendant is not an "insured person,” but instead states that such determination is irrelevant, this fact is no longer in dispute. Therefore the question becomes one of contract construction.
Construction of a contract containing unambiguous language is a question of law for the court. Craib v Committee on National Missions of the United Presbyterian Church, 62 Mich App 617, 620; 233 NW2d 674 (1975). In this case, the language of the policy was unambiguous, and, therefore, the question present is a question of law subject to our review. The owned vehicle exclusion clause found in the uninsured motorist insurance coverage of the policy at issue provides:
This coverage does not apply to bodily injury sustained by an Insured person:
while occupying a motor vehicle which is owned by you or a relative unless that motor vehicle is your car ....
On page three of the policy, "your car” is defined as "the vehicle described on the Declaration Certificate.”
Owned vehicle exclusion clauses are valid so long as they are clear and unambiguous, employing easily understood terms and plain language. Raska v Farm Bureau Mutual Ins Co, 412 Mich 355, 362; 314 NW2d 440 (1982). See also Powers v Detroit Automobile Inter-Ins Exchange, 427 Mich 602, 623-624, 628-629; 398 NW2d 411 (1986). In this case, the owned vehicle exclusion clause was clear and unambiguous, because it admitted of but one interpretation, plainly stating that uninsured motorist benefits would not accrue for injuries sustained by the use of a car owned by the policyholder or a relative unless that car was the car named in the declaration certificate of the policy. Because the language of the policy was clear and unambiguous, defendant had no reasonable expectation that her own uninsured vehicle would be covered under her cousin’s policy. Whether or not defendant actually believed this to be the case is immaterial.
Reversed and remanded. | [
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] |
Hood, P.J.
Plaintiffs appeal as of right from the June 30, 1987, order of Ingham Circuit Court Judge Robert Holmes Bell granting the motion for summary disposition of defendants and dissolving a temporary restraining order which had restrained the application of initiated law 1987 PA 59.
On April 30, 1987, the Committee to End Tax-Funded Abortions, a Michigan ballot question committee, filed petitions with the Secretary of State to initiate legislation to amend the Social Welfare Act, MCL 400.1 et seq.; MSA 16.401 et seq. The aim of the proposal was to prevent state-funded abortions for welfare recipients except where the abortion is necessary to save the mother’s life. The proposed amendment states:
The people of the State of Michigan enact: Section 109a. Notwithstanding any other provision of this act, an abortion shall not be a SERVICE PROVIDED WITH PUBLIC FUNDS TO A RECIPIENT OF WELFARE BENEFITS, WHETHER THROUGH A PROGRAM OF MEDICAL ASSISTANCE, GENERAL ASSISTANCE, OR CATEGORICAL ASSISTANCE OR THROUGH ANY OTHER TYPE OF PUBLIC AID OR ASSISTANCE PROGRAM, UNLESS THE ABORTION IS NECESSARY TO SAVE THE LIFE OF THE MOTHER. IT IS THE POLICY OF THIS STATE TO PROHIBIT THE APPROPRIATION OF PUBLIC FUNDS FOR THE PURPOSE OF PROVIDING AN ABORTION TO A PERSON WHO RECEIVES WELFARE BENEFITS UNLESS THE ABORTION IS NECESSARY TO SAVE THE LIFE OF THE MOTHER.
At the bottom of the petition was the language: "This act shall take immediate effect.” The initiative was filed in accordance with Const 1963, art 2, § 9, the section permitting initiatives.
On June 12, 1987, the Board of State Canvassers certified 395,751 valid signatures on the petitions, more than the 191,000 signatures required for an initiative by article 2, § 9. On June 17, the Senate voted to enact the amendment by a vote of thirty to six. Senator Lana Pollack requested a vote on immediate effect, but the Senate denied the request on the basis of a memorandum by the Senate Committee on Government Operations which concluded that the amendment was immediately effective because so stated in the petition and because under article 2, § 9 the Legislature was not permitted to change or amend the initiative proposal. Consequently, the Senate took no vote on immediate effect.
On June 23, the House of Representatives approved the petition by a vote of sixty-six to forty-one. Representative Charles Harrison, Jr., requested a vote on immediate effect, but the House denied the request for the same reasons the Senate did. The statute was delivered to the Secretary of State and assigned the designation 1987 PA 59.
On June 23, plaintiffs commenced this action in Ingham Circuit Court for declaratory and injunctive relief, arguing that 1987 PA 59 could not have immediate effect. Plaintiffs alleged that under Const 1963, art 4, § 27, the amendment could only have immediate effect if the Legislature voted, by a vote of two-thirds of the members of each house, to give the act immediate effect. Plaintiffs also requested an order of mandamus, requiring defendants to continue Medicaid funding for abortions until such time as the act became effective. The case was assigned to Judge James T. Kallman, and, in his absence, Judge James R. Giddings entered a temporary restraining order, restraining the application of the initiated law. Judge Kallman later disqualified himself.
At a hearing on June 30, 1987, Judge Robert Holmes Bell, to whom the case had been reassigned, granted summary disposition in favor of defendants and dissolved the temporary restraining order. Judge Bell ruled that the initiative process under article 2, § 9 was separate from the legislative process of article 4, and, therefore, the initiative was not subject to article 4, § 27. Judge Bell ruled that article 2, § 9 was self-sufficient and did not require a two-thirds vote for immediate effect. He concluded that the immediate effect language contained in the proposal was a part of the initiative and was controlling.
Plaintiffs filed this appeal as of right from that decision on July 9, 1987. This Court granted plaintiffs’ motion for a stay and motion for immediate consideration, and we now reverse.
The procedure for initiatives and referendums is set forth in Const 1963, art 2, § 9, which states in pertinent part:
The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.
Any law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is received by the legislature. If any law proposed by such petition shall be enacted by the legislature it shall be subject to referendum, as hereinafter provided.
If the law so proposed is not enacted by the legislature within the 40 days, the state officer authorized by law shall submit such proposed law to the people for approval or rejection at the next general election. . . .
Any law submitted to the people by either initiative or referendum petition and approved by a majority of the votes cast thereon at any election shall take effect 10 days after the date of the official declaration of the vote. No law initiated or adopted by the people shall be subject to the veto power of the governor, and no law adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature.
The question in this case is whether Const 1963, art 4, § 27 applies to laws enacted by the Legislature pursuant to initiative. Article 4, § 27 states:
No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.
If article 4, § 27 applies to laws enacted by the Legislature pursuant to initiative, the amendment in the instant case may not go into immediate effect, the question of immediate effect not having been voted on and passed by a vote of two-thirds of each house. If article 4, § 27 does not apply to laws enacted pursuant to initiative, the amendment must be given immediate effect, as stated in the petition.
This is a case of first impression, and we find little guidance in published precedent. After thorough review, we believe that article 4, § 27 does apply to laws enacted pursuant to initiative and that, without the required vote of two-thirds of each house, 1987 PA 59 may not go into effect until ninety days after the end of the session at which it was enacted. We come to this conclusion through what we perceive to be the intent of the 1963 constitutional convention delegates, the language of article 2, § 9, precedent from other states, and common-sense reasoning.
Article 4 of the 1963 constitution is entitled "Legislative Branch.” It contains sections which deal generally with the legislative branch. Included are sections on the number of senators and representatives and apportionment of districts (§§ 2, 3), requirements of legislators (§§ 7, 8), restrictions on legislators (§§ 9, 10), legislative privi lege (§ 11), formation of compensation commission (§ 12), time of convening (§ 13), quorum (§ 14), establishment of committees (§ 17), journal requirement (§§ 18, 19), bills (§ 22), title-object clause (§24), printing and reading requirement (§ 26), local or special acts (§ 29), imposing taxes (§ 32), governor’s veto power (§ 33), publication of laws (§ 35), and vacancies in offices (§ 38).
We first look at the 1908 constitution’s initiative-referendum provision and the changes made in the provision between the 1908 and 1963 constitutions. The initiative-referendum provision in the 1908 constitution was set forth in article 5, § 1. It is important to note that article 5 of the 1908 constitution was entitled "Legislative Department” and contained the same provisions that are included in article 4 of the 1963 constitution. For example, Const 1908, art 5, § 2, setting forth the number of senators and apportionment of districts, is now Const 1963, art 4, § 2; Const 1908, art 5, § 3, setting forth the number of representatives, is now Const 1963, art 4, § 3; Const 1908, art 5, § 6, prohibiting a person holding office from having a seat in the Legislature, is now Const 1963, art 4, § 8; Const 1908, art 5, § 21, the title-object clause, is now Const 1963, art 4, § 24.
The fourth paragraph of Const 1908, art 5, § 1, read:
The second power reserved to the people is the referendum. No act passed by the legislature shall go into effect until 90 days after the final adjournment of the session of the legislature which passed such act, except such acts making appropriations and such acts immediately necessary for the preservation of the public peace, health or safety, as have been given immediate effect by action of the legislature.
This language was repeated in Const 1908, art 5, § 21, the title-object clause.
The initiative-referendum provision found in Const 1908, art 5, § 1, was moved to article 2 of the 1963 constitution, entitled "Elections.” The language that an act passed by the Legislature shall not go into effect until ninety days after the final adjournment of the session of the Legislature which passed such act was eliminated from the initiative-referendum provision. However, a review of the discussions among the delegates to the 1963 constitutional convention indicates that the delegates did not intend that the ninety-day period of delay should not be applicable to the initiative process. Rather, they recognized that the ninety-day wait was provided for in Const 1908, art 5, § 21, now Const 1963, art 4, § 27.
Mr. Hoxie, chairman of the committee on legislative powers, stated:
Removed from constitutional status are the provisions on content and time of filing petitions, canvassing of names on petitions, type sizes, and right of the legislature to prescribe penalties. Also removed is the date of effectiveness of legislative acts which is covered in article v, section 21. [2 Official Record, Constitutional Convention 1961, p 2392. Emphasis added.]
Also significant is the following colloquy between delegates Nord and Kuhn:
Mr. Nord: Now, I would like to raise this one further question, if I may, with Mr. Kuhn. Is it your understanding then that in the so called initiative the people could not enact a law which in terms, or else impliedly, repeals? In other words, in enacting a law, doesn’t that include the possibility of enacting a new law, or amending or repealing an old law?
Mr. Kuhn: If I understand the question correctly, they can enact a law which would repeal another law?
Mr. Nord: Yes. The legislature can do that. They can enact a law which repeals in terms, or else impliedly, another law.
Mr. Kuhn: Well, the people can do that, yes.
Mr. Nord: If that’s the case, doesn’t it seem as though there is an inconsistency, in that in order to repeal a law under the initiative provision it requires 8 per cent, but in order to repeal it under the referendum provision it requires 5 per cent, and yet there’s no difference between the initiative and referendum; they both require petitions?
Mr. Kuhn: There is a difference, sir.
Mr. Nord: What is the difference?
Mr. Kuhn: The difference is the time limit. After a statute is passed by the legislature, there are 90 days before it goes into effect. And the reason for this 90 days is to give the people time to go out and get those [referendum] petitions.
Mr. Nord: Mr. Chairman, Mr. Kuhn, I understand that when there is a 90 day provision, that is the case. But am I mistaken in assuming that that has been stricken from the provision?
Mr. Kuhn: Oh, no; that 90 days is still there.
Mr. Nord: That is still in this proposal?
Mr. Kuhn: It is not in this particular article, but it is in our article v, section 21,1 believe.
Mr. Nord: Oh, I’ve got you, then. All right. Thank you. [2 Official Record, Constitutional Convention 1961, p 2395. Emphasis added.]
This colloquy indicates clearly that the delegates intended the language currently found in Const 1963, art 4, § 27 to apply to initiatives.
The language of article 2, § 9 itself also indicates that article 4, § 27 applies to laws proposed by initiative and enacted by the Legislature. The section states: "The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative . . . (Emphasis added.) When a law submitted by initiative is adopted by the Legislature, the people are merely proposing the law, and the Legislature is enacting the law. If the law is rejected by the Legislature and submitted to the people at the next general election and approved, the people have enacted the law. In the first instance, the Legislature doing the enacting, it is subject to article 4, § 27.
In addition, §9 provides: "The power of initiative extends only to laws which the legislature may enact under this constitution.” Under the constitution, the Legislature may enact immediate-effect laws only by vote of two-thirds of each house. The power of initiative thus must be subject to the same limitation.
Another aspect of the language of §9 compels the same conclusion. Section 9 states that "[a]ny law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 days . . . .” In our opinion, the "law” is the substantive amendment to MCL 400.1 et seq.; MSA 16.401 et seq. proposed by the initiative, that is: the language stating that an abortion shall not be a service provided with public funds to a recipient of welfare benefits. The "law” is that designated as § 109a. The sentence, "This act shall take immediate effect,” is not part of the substantive law. Rather, it is a procedural provision. This view is supported by Thompson v Bd of Supervisors of Alameda Co, 180 Cal App 3d 555; 225 Cal Rptr 640 (1986). In Thompson, opponents of certain redistricting circulated initiative petitions calling for adoption of an ordinance which would repeal an earlier redistricting ordinance. The initiative received the required number of signatures and was submitted to the Board of Supervisors. Thompson, supra, p 559. Under the California elections code, the board was required to either adopt the proposal without change or submit it to the voters at the next election. The board purported to enact the initiative. However, where the initiative stated it was to be effective "immediately upon its passage by the voters,” the ordinance as passed by the board provided that it was to be effective thirty days after its adoption. This was done because the elections code provided that acts passed by the legislature were to go into effect thirty days after adoption. Id. On appeal, the appellants alleged that, when the board changed the effective date, it failed to adopt the purposed ordinance "without change” and was thus obligated to submit the ordinance to the voters. Id., 560. The court disagreed and held that the effective date language was not a part of the substantive law proposed by the initiative. The court noted that California has an "indirect initiative system” wherein, before an initiative can go before the people for a vote, it must be presented to and rejected by the legislature. Since the initiative had been presented to and enacted by the legislature, it was subject to the thirty-day provision of the code. Id., 561. The court noted that, when the board enacted the initiative ordinance, it made no change in the substantive law. Id., 561. Defendants’ and intervening defendants’ attempts in the instant case to distinguish Thompson because it involved a conflict between the language on an initiative petition and a California statute, rather than a conflict between two constitutional provisions, are not persuasive. Thompson stands for the proposition that immediate effect language in an initiative is not part of the proposed law and to adopt the proposed law without the immediate effect language does not violate the requirement that the Legislature adopt the proposed law "without change or amendment.” This is particularly compelling since article 2, §9 also involves an indirect initiative system, which first gives the Legislature a chance to react to the people’s will and an opportunity to spare the expense of a public vote.
Defendants’ and intervening defendants’ position that article 4 is in no way applicable to article 2 is further weakened by the fact that article 2, § 9 states: "No law initiated or adopted by the people shall be subject to the veto power of the governor.” The veto power is conferred by article 4, § 33. If the delegates had not meant to have sections of article 4 apply to article 2, the language exempting initiatives from the governor’s veto power would not have been necessary.
Further support for the proposition that article 4 applies to article 2 is found in Leininger v Secretary of State, 316 Mich 644; 26 NW2d 348 (1947). In Leininger, the Court held that a law proposed by an initiative petition was defective because it did not contain a title in accordance with Const 1908, art 5, § 21, the title-object clause (now Const 1963, art 4, § 24). Leininger, supra, p 648. In holding that the title requirement of Const 1963, art 5, § 21 applied to initiatives, the Court stated:
The Michigan Constitution of 1908, art 5, §21, provides in part as follows:
"No law shall embrace more than one object, which shall be expressed in its title.”_
This makes the title an essential part of every law. That this title requirement applies to laws enacted by the initiative, as well as to those enacted by the legislature, there can be no doubt, particularly in view of the provision of section 1, that no law shall be enacted by the initiative that could not, under the Constitution, be enacted by the legislature. [Leininger, supra, p 648.]
Unless article 4, §27 is incorporated into the initiative process, there is no guide as to when an initiative without immediate effect language, enacted by the Legislature, becomes effective. The Attorney General addressed this question in OAG 1963-1964, No 4313, p 365 (April 9, 1964). In that opinion, the Attorney General discussed the effective date of a law proposed by initiative petition and enacted by the Legislature making tenure of teachers mandatory in Michigan. The initiative petition did not specify that, should the Legislature enact the initiative petition into law, the law would become immediately effective. The Attorney General’s opinion concluded:
Consideration must also be given to Article IV, Sec. 27 of the Michigan Constitution of 1963, which provides as follows:
"No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.”
Reading the provisions of Article II, Sec. 9 and Article IV, Sec. 27 together, in light of the form of initiative petition presented to the legislature calling for mandatory tenure without specifying immediate effect in such petition should the legislature enact it, the conclusion must follow that the initiative petition which has been enacted by the Michigan legislature, entitled Act 2, P.A. 1964, shall not take effect until the expiration of 90 days after the end of the session at which it was passed. [Id., 367-368.]
Intervening defendants claim that with this language the Attorney General expressly recognized that, if a law proposed by an initiative states it is to go into immediate effect, it shall be given immediate effect. However, that issue was not before the Attorney General, as the petition in that case was silent on the effective date, and any recognition that immediate effect language was to be given effect was merely implied.
Rather, we read the above language as indicating a conclusion by the Attorney General that article 4, § 27 applies to initiatives. Either article 4, § 27 applies to all initiatives or it applies to none. It cannot apply only to initiatives which do not specify an effective date, since that would not provide stability to initiatives and assure that laws proposed by initiatives are on an equal footing with acts of the Legislature not proposed by the people.
Acceptance of defendants’ position would place laws proposed by the initiative on a superior, not equal, footing with legislative acts not proposed by the people. Since everything that emerges from the Legislature is legislation, all legislative acts must be on an equal footing. Stated in other language, once it is conceded that it is necessary to refer to article 4 in order to determine the effective date of initiated legislation that does not refer to an effective date, it becomes immediately apparent that the wall that is said to exist between article 2 and article 4 does not exist. _
Finally, were initiatives not subject to article 4, § 27, an anomalous result would obtain where a law proposed by initiative is rejected by the Legislature and submitted to the vote of the people. Under §9, such a law approved by the people takes effect ten days after the date of the official declaration of the vote. Thus, even if the petition contained immediate effect language, it would not take immediate effect. If there is such a waiting period for a law which has been voted on by a majority of the electorate, there is even more reason to have a waiting period for a law which has garnered the vote of only eight percent of registered electors. In this vein, we note that, even if we were to find that the immediate-effect language of the initiative petition in the instant case were a part of the substantive law, had the Legislature not adopted it without change, it would have been submitted to the people for a vote whereupon, had it passed, it would not have gone into effect until ten days after the election.
Defendants rely on Decher v Secretary of State, 209 Mich 565, 576-577; 177 NW 388 (1920). In Decher, the Court held that a resolution by the Michigan Legislature ratifying an amendment to the United States Constitution was not an "act” subject to referendum under Const 1908, art 5, § 1, now Const 1963, art 2, § 9. Decher, supra, p 577. To the extent that Decher stated that the word "act” in article 5, § 1 "had in mind a statute or law passed with the formality required by the Constitution and approved by the governor,” this is dicta and does not control the instant case.
Plaintiffs’ argument that giving the act immediate effect would impair their right to referendum is without merit. Under article 2, § 9, referendum must be invoked within ninety days of the final adjournment of the legislative session at which the law was enacted. Whether the law was given immediate effect is irrelevant. In addition, intervening defendants’ argument that the fact that the constitution uses the term "passed” in article 4, § 27 and the term "enact” in article 2, § 9 indicates that article 4, § 27 is to apply only to bills initiated by the Legislature is also meritless. We feel that the words chosen by the framers are merely a matter of semantics and do not have a bearing on the issue before us.
Our holding that article 4, § 27 applies to initiatives does not impair the practice that the initiative process should "be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises,” Scott v Secretary of State, 202 Mich 629, 643; 168 NW 709 (1918). We uphold the right of the people to initiate legislation through initiative. We hold only that when such a proposed law is enacted by the Legislature, it is subject to article 4, § 27.
We have no question that the people who signed the initiative petition in the instant case intended the act to have immediate effect. However, that fact is not dispositive. Since the Constitution does not permit this to happen without a two-thirds vote of the Legislature, neither the people who signed the petition nor this Court can give effect to that intention. A constitution which is adopted by a majority of the people places limitations upon the people. For example, the people are prohibited from initiating legislation which cannot be adopted by the Legislature. Any limitations placed upon either the government or the people in a constitution can only be changed by a constitutional amendment.
In sum, we hold that when a law is proposed by initiative and is enacted by the Legislature without change or amendment within forty days as required by article 2, § 9, it goes into effect ninety days after the end of the session at which it was passed if the Legislature does not give immediate effect to the act by a vote of two-thirds of the members in each house.
The decision of the trial court is reversed, and summary judgment ordered in favor of plaintiffs in accordance with this opinion.
Shepherd, J., concurred.
All parties agreed in the hearing before Judge Bell, as well as at oral argument before this Court, on a point which we would like to emphasize: Although the issue underlying the initiative involved in this case is public funding of abortions for recipients of welfare benefits, that is not the issue before this Court. The only issue before this Court, and the only issue being decided, is whether 1987 PA 59 may take immediate effect. As Judge Bell succinctly and correctly stated: "Whether or not the underlying subject matter is taxes, abortions, sentencing of criminals, you name whatever that social issue is, is not relevant to this matter.”
Although the number of valid signatures was twice the number required for an initiative, it is inaccurate to label this fact as an expression of a mandate by the "people” of the State of Michigan. The initiative, as we have indicated, is a procedure in which a minority of the state’s voters may propose legislation, which may then be enacted by the Legislature, or, upon the Legislature’s failure to act, by the majority of voters at an election.
The circuit court noted that, if the petition had stated that it was to go into effect in 1990, the Legislature would have had to adopt it as is and the 1990 effective date would have stood. Even if we were to find that a 1990 effective date provision were a part of the substantive law of the initiative there would be no issue as to whether that portion of the initiative would be binding. There is no constitutional limitation on having a law go into effect at some future date. There is a limitation only on immediate effect.
Other constitutionally mandated procedures of article 4 also necessarily apply to legislation initiated under article 2, e.g., § 14 (quorum requirement), § 20 (open meetings), § 35 (publication and distribution of laws). | [
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Per Curiam.
This is an appeal as of right from the Wayne County Probate Court’s grant of accelerated judgment to the respondent heirs of the children of John F. Dodge on Frances Manzer Mealbach’s petition for determination of heirs and from an order dismissing Mealbach’s petition for production of adoption records. According to Mrs. Mealbach’s pleadings, she is the previously unknown Siamese twin of Frances Matilda Dodge (Van Lennep) (also referred to as Mathilda), daughter of John F. Dodge and Matilda Rausch (Dodge).
As reported in a number of previous Michigan appellate decisions, John F. Dodge was an early and highly successful automobile manufacturer. He died testate on January 14, 1920. John F. Dodge’s will was dated April 4, 1918. See In re Dodge Trust, 121 Mich App 527, 534; 330 NW2d 72 (1982), lv den 418 Mich 878 (1983). On March 20, 1922, the will was admitted to probate nunc pro tunc. See Dodge v Detroit Trust Co, 300 Mich 575, 592; 2 NW2d 509 (1942).
John F. Dodge’s will is an eighteen-page document drafted by an attorney who was "able and experienced in the practice of probate law.” In re Dodge Trust, supra at 540. It provides for a number of bequests and then directed that the balance of the estate be paid to John F. Dodge’s, wife, Matilda Dodge, his brother, Horace Dodge, and the Detroit Trust Company as trustees. The will then directs that the proceeds of the trust be paid to specified persons (various relatives of John F. Dodge) and their heirs as long as any of John F. Dodge’s children survive. Finally, the will directs that upon the death of all the children of John F. Dodge, the trust is to be dissolved, with the corpus paid to the heirs of John F. Dodge’s "said children,” Winifred Dodge Gray, Isabella Cleves Dodge, Frances Matilda Dodge and Daniel George Dodge.
Winifred Dodge Gray (Seyburn), the first-born child of John F. Dodge, was also the last to die. Her death in 1980 operated to terminate the residuary trust created under the will. In re Dodge Trust, supra at 537. In re Dodge Trust resolved a controversy over the phrase "heirs of my said children” and affirmed the trial court’s partition of the trust corpus.
On October 29, 1984, Frances Manzer Mealbach filed her petition for determination of heirs with the probate court. In that petition, Mrs. Mealbach alleged that she is an heretofore unknown and unascertained claimant, interested in the property which the deceased owned, including the corpus of the trust established under the will of John F. Dodge.
On December 14, 1984, Mrs. Mealbach filed a petition for production and inspection of adoption records and original birth certificate. In that petition, Mrs. Mealbach alleged that she was born on November 23, 1914. Upon the death of her father in 1967, she learned that she was an adopted child. In 1982, a copy of the birth certificate of Frances Dodge was erroneously sent to Mrs. Mealbach by the Michigan Secretary of State. The birth certificate stated that Frances Dodge was first in order of birth of twins. Mrs. Mealbach has had marks on the back of her head and the base of her neck all of her life. She recently obtained medical confirmation that the marks are surgical scars "consistent with the separation of Siamese twins at birth.”
On December 17, 1984, Mrs. Mealbach filed an affidavit in support of her petition for determination of heirs. According to that affidavit, Mrs. Mealbach has dreams of being taken, as a young girl, to a very beautiful home to see a red-haired young woman who was ill in bed. In late 1982, Mrs. Mealbach was shown a book entitled "The Dodges” and recognized the home as that of John F. Dodge located at 43 Boston Boulevard in Detroit. As a child, Mrs. Mealbach remembers that a friend of her father was one Frank Upton. Mr. Upton was employed as a "secretary” by the Dodge brothers. He also served on the board of the Methodist Children’s Home, from which Mrs. Mealbach’s parents took foster children. Mrs. Mealbach recently learned that Frank Upton was appointed guardian for unascertained heirs in the original probate proceedings for the estate of John F. Dodge.
On February 15, 1985, accelerated judgment was granted to the respondents on Mrs. Mealbach’s petition for determination of heirs. The probate court’s opinion cited as grounds for accelerated judgment the doctrine of res judicata, GCR 1963, 528.3, regarding relief from judgment or orders, and the equitable doctrine of laches. A second order, issued the same day, dismissed Mrs. Mealbach’s petition for production and inspection of adoption records as moot. Mrs. Mealbach appeals from those orders of the probate court. Judith Johnson McClung cross-appeals on the question whether summary judgment should also have been granted to the respondents for failure to state a claim upon which relief may be granted or for failure to raise a material, issue of fact.
As one of the alternative grounds for its decision to grant accelerated judgment, the probate court found that the petition for determination of heirs was essentially a petition for rehearing and was therefore barred by GCR 1963, 528.3, now MCR 2.612(C). Mrs. Mealbach argues that her petition was not one for rehearing and that, in any case, she was not personally notified and therefore falls within the exception provided in GCR 1963, 528.2, now MCR 2.612(B).
Mrs. Mealbach’s first argument assumes that a petition for determination of heirs states a distinct cause of action within the Revised Probate Code. Thus, she essentially argues that, since there has been no prior determination of heirs within § 184 of the Revised Probate Code, MCL 700.184; MSA 27.5184, her petition is not one for rehearing despite the fact that an order of partition has been entered. Petitioner’s assumption is erroneous.
The probate court, in its opinion granting accelerated judgment, appears to treat Mrs. Mealbach’s claim as one ultimately for a share of the proceeds of the estate. At first blush, that does appear to be Mrs. Mealbach’s objective. The petition for determination of heirs would appear to be merely a means to obtain a share of the estate. However, on appeal, Mrs. Mealbach appears to be arguing that even if she cannot now successfully claim a share of the estate she would still be entitled to a determination of heirs. The issue is one of first impression.
Section 183(1) of the Revised Probate Code provides:
The court may determine the heirs and devisees in any matter before the court. [MCL 700.183(1); MSA 27.5183(1).]
The first thing to note about this provision is that the determination of heirs may be made in the course of "any matter before the court.” If the Legislature' intended to allow a petition for a determination of heirs to be a separate cause of action, there would be no need for the final phrase of § 183(1). It is a well-established rule of construction that every word of the statute must be given meaning and that no word should be treated as surplusage or rendered nugatory if at all possible. Baker v General Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980).
Moreover, that a § 183 petition may not be sought as an end in itself is not only indicated by the literal language of § 183(1), but also by the parallel provisions of the Adoption Code. Sections 67 or 68 of the Michigan Adoption Code allow the discovery of the names of biological parents for good cause shown. MCL 710.67, 710.68; MSA 27. 3178(555.67), 27.3178(555.68). Thus, if Mrs. Mealbach’s only objective is to determine whether John F. Dodge was her biological father, she could do so under the Adoption Code as she has in fact sought to do.
The Legislature is presumed to be aware of and to legislate in harmony with existing laws. People v Cash, 419 Mich 230, 241; 351 NW2d 822 (1984). The Legislature is therefore presumed to have been aware of the provisions of the Adoption Code in enacting the Revised Probate Code. It is difficult to imagine that, in view of the Adoption Code provisions, the Legislature intended to overlay a second mechanism by which an adopted child might attempt to ascertain her biological parents, much less that it would give such a mechanism the unlikely designation of "determination of heirs.” The mechanism for determination of heirs would not only be redundant in these circumstances, but, also, rather awkward since adoptees would be joined in proceedings in which they have no real interest. Therefore, we conclude that a petition for determination of heirs does not, in itself, state a cause of action, and that a cause of action or claim to a portion of an estate must be pending in order to invoke the authority of the probate court to make a determination of heirs under MCL 700.183, 700.184; MSA 27.5183, 27.5184. It thus follows that Mrs. Mealbach’s petition is, as the probate judge determined, one for rehearing.
Mrs. Mealbach alternatively argues that, even if her petition is deemed one for rehearing, it falls within an exception to GCR 1963, 528.3:
Any defendant over whom personal jurisdiction was necessary and acquired but who did not in fact have knowledge of the pendency of the action may, at any time within 1 year after final judgment, enter his appearance, and if he shows reason justifying relief from the judgment and innocent third persons will not be prejudiced, the court may relieve him from the judgment, order, or proceedings as to which personal jurisdiction was necessary, on payment of such costs thereon or such creditors as the court deems just. [GCR 1963, 528.2.]
Here the probate court’s partition order was entered on October 20, 1980, and Mrs. Mealbach’s petition for determination of heirs was not filed until October 29, 1984. However, as Mrs. Mealbach points out, the probate court’s order for partition of the trust corpus was appealed to this Court in In re Dodge Trust, supra. Leave to appeal from the Court of Appeals decision was denied by the Supreme Court on December 6, 1983. 418 Mich 878 (1983). Thus, Mrs. Mealbach would apparently argue that the running of the one-year period of GCR 1963, 528.2 was tolled during the appeal. This issue also is one of first impression.
The order of partition was a final order under PCR 801.3, now MCR 5.801(C). Thus, the partition order would properly be deemed a "final judgment,” at least for the purposes of appeal. It is one thing to stay proceedings in a lower court during the pendency of an appeal. It is another matter to construe periods of limitation as tolled during those periods when the relief is obtainable in appellate courts. Thus, it has been said:
For most purposes a judgment will be considered final and enforceable by appropriate writ as soon as it is entered, read, and signed in open court, notwithstanding a motion for new trial remains undisposed of, that the judgment is still subject to appellate review, or that an appeal is actually pending. A judgment is not "final” for some purposes, however, merely because execution may be issued on it, and it has been variously held that finality attaches to the judgment only at the end of the term of court at which it was entered, or at the end of a specified period of time after the date of its rendition, or after the time for filing motions to prevent entry of judgment has expired without such motions being filed, or, if filed, after they are determined. It has also been held that a judgment becomes final only after expiration of the time allowed by law for appeal therefrom, or, if an appeal is perfected, after the judgment is upheld in the appellate court, but this rule is inapplicable if the judgment is not subject to review. [49 CJS, Judgments, § 11, p 39.]
The seeming contradiction in this general statement of the law can be resolved by distinguishing between "finality” for the purpose of execution and "finality” for the purpose of judicial proceedings. A motion under GCR 1963, 528.2 is more closely analogous to the latter in that it directly affects only judicial proceedings, rather than an execution of the probate court’s order. Accord ingly, we agree with the probate court judge that the probate court’s order of October 20, 1980, was final for the purpose of a motion under GCR 1963, 528.2.
Since Mrs. Mealbach’s petition for determination of heirs does fall within the provisions of GCR 1963, 528, and since it was filed more than four years after the probate court’s October 20, 1980, final judgment, it is untimely. Therefore, the probate court’s order for accelerated judgment is affirmed.
Mrs. Mealbach also argues that the probate court erred in dismissing her petition for the production and inspection of adoption records and original birth certificate as moot in light of the accelerated judgment order. GCR 1963, 116, now MCR 2.116, does not specify mootness in the numerous grounds stated for accelerated judgment. Principles of statutory construction apply to determine the Supreme Court’s intent in promulgating rules of practice and procedure. Issa v Garlinghouse, 133 Mich App 579, 581; 349 NW2d 527 (1984) . Under the well-established doctrine of ex-pressio unius est exclusio alterius, express mention of one thing implies exclusion of similar things. People v Lange, 105 Mich App 263, 266; 306 NW2d 514 (1981), and cases cited therein.
This Court has held that an aspect of mootness is the court’s ability to fashion appropriate and effective relief to resolve the alleged controversy. Plumbers & Pipefitters Local Union No 190 v Wolff, 141 Mich App 815, 818; 369 NW2d 237 (1985) . It would therefore follow that a moot issue would fall within GCR 1963, 117.2(1), now MCR 2.116 (C)(8), since the opposing party has failed to state a claim upon which relief can be granted. However, it has also been held that a question is not moot if it will continue to affect a plaintiff in some collateral way. Swinehart v Secretary of State, 27 Mich App 318, 320; 183 NW2d 397 (1970), lv den 384 Mich 801 (1971), and cases cited therein.
Here Mrs. Mealbach argues that she has shown good cause for an order opening her adoption records. While her argument appears to be addressed to the requirement of MCL 710.67; MSA 27.3178(555.67) which specifies that adoption records shall not be open to inspection or copy except upon order of a court of record "for good cause shown . . .,” it is also applicable to the issue of mootness. Mrs. Mealbach argues that good cause is shown by her need to prove her claim to the John F. Dodge estate. She also contends that she has a psychological need to know. Because we have affirmed the probate court’s order for accelerated judgment, Mrs. Mealbach’s first contention that the need to prove her access to the estate is "good cause” must fail.
However, Mrs. Mealbach’s second argument in favor of good cause is more substantial. Both this Court and the Michigan Supreme Court have held that psychological need may establish good cause. In re Dixon, 116 Mich App 763, 770; 323 NW2d 549 (1982), remanded for hearing 417 Mich 986 (1983). Mrs. Mealbach has pled an "intense” psychological need. Therefore, in accordance with Dixon, she is entitled to a hearing in which she may establish her psychological need for the records. Furthermore, without findings by the probate court on this matter, we cannot say that the issue of the identity of Mrs. Mealbach’s biological parents will not continue to affect her in some collateral way. Thus, the issue is not moot.
The probate court’s order granting accelerated judgment in favor of the respondents on Mrs. Mealbach’s petition for determination of heirs is affirmed. Mrs. Mealbach’s petition for production of adoption records and birth certificate is remanded for a good cause hearing.
Because the probate court was correct in granting accelerated judgment under GCR 1963, 528, we need not consider the propriety of the probate court’s alternative grounds for its decision, that the petition is barred by res judicata or laches. Nor do we need to consider Judith Johnson McClung’s cross-appeal on the question of whether summary judgment should have been granted. | [
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Per Curiam.
Defendant pled guilty to the unlawful manufacture, delivery, or possession with intent to manufacture or deliver the same, of a mixture containing cocaine in an amount of 50 grams or more but less than 225 grams, MCL 333.7401(1), (2)(a)(iii); MSA 14.15(7401)(1), (2)(a)(iii). The sentencing court ordered that defendant be placed on life probation. The order of probation included a condition that defendant be incarcerated in the county jail during the first year of probation.
Defendant’s sole contention on appeal is that the circuit court exceeded its statutory authority by imposing a one-year jail term as a condition of probation. Since we agree, we remand for resentencing.
The offense for which defendant was convicted carries a penalty of either imprisonment for ten to twenty years or life probation. Life probation is statutorily authorized only for two stated offenses, the specific offense for which defendant was convicted, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii), and the similar offense of possession of a controlled substance of the same classifications and in the same quantity as the offense for which defendant was convicted, MCL 333.7403(2)(a)(iii); MSA 14.15(7403)(2)(a)(iii). See MCL 771.1(3); MSA 28.1131(3), MCL 771.2(3); MSA 28.1132(3). Both offenses carry life probation only if the amount of the controlled substance in the defendant’s possession is 50 grams or more, but less than 225 grams.
MCL 771.3; MSA 28.1133 provides in pertinent part:
(2) As a condition of probation, the court may require the probationer to do 1 or more of the following:
(a) Be imprisoned in the county jail for not more than 12 months, at the time or intervals, which may be consecutive or nonconsecutive, within the probation as the court may determine. However, the period of confinement shall not exceed the maximum period of imprisonment provided for the offense charged if the maximum period is less than 12 months.
(b) Pay immediately or within the period of his or her probation, a fine imposed at the time of being placed on probation.
(c) Pay costs pursuant to subsection (4)._
(d) Pay restitution to the victim or the victim’s estate![ ]
(e) Engage in community service.
(3) Subsection (2) shall not apply to a person who is placed on probation for life pursuant to sections 1(3) and 2(3) of this chapter [MCL 771.1(3); MSA 28.1131(3) and MCL 771.2(3); MSA 28.1132(3)].[ ]
We read subsection (3) as an express legislative directive that the sentencing court not impose conditions that would otherwise be permissible under subsection (2) for a probation of lesser duration than life. The statute reflects a legislative determination that the imposition of life probation is sufficiently harsh that it need not be enhanced by a one-year jail term or any of the other conditions set forth in subsection (2). In this regard, it is noteworthy that the maximum probation period for any felony amenable to probation that does not carry a possible life probation sentence is five years (two years in the case of any nonfelony). MCL 771.2(1); MSA 28.1132(1).
The people argue that MCL 771.3(4); MSA 28.1133(4) vests the sentencing court with sufficient discretion to condition defendant’s probation with a one-year jail sentence. Subsection (4) provides:
The court may impose other lawful conditions of probation as the circumstances of the case may require or warrant, or as in its judgment may be proper. If the court requires the probationer to pay costs, the costs shall be limited to expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and probationary oversight of the probationer.
The people’s proffered interpretation would effectively circumvent the subsection (3) prohibition against the imposition of a one-year jail term in addition to life probation. Although the sentencing court’s discretion in matters of the conditions to be attached to probation is considerable, People v Chamberlain, 136 Mich App 642, 650; 358 NW2d 572 (1984), lv den 421 Mich 864 (1985), this discretion is effectively limited by subsection (3).
Our reading is consistent with two generally recognized principles of statutory construction. First, subsections (2) and (3), read together, constitute a specific exception to the more general subsection (4) grant of judicial authority to fashion conditions of probation. Where a specific provision and a general provision encompass the same subject matter, the specific provision is controlling. Bannan v Saginaw, 120 Mich App 307, 319-320; 328 NW2d 35 (1982), aff'd 420 Mich 376; 362 NW2d 668 (1984). Second, the adoption of the prosecutor’s interpretation would render subsection (3) a nullity. This would violate the principle that statutes are to be construed in pari materia in order to give each component subsection the fullest effect. Parks v DAIIE, 426 Mich 191, 199; 393 NW2d 833 (1986).
Having concluded that the circuit court exceeded its statutory authority by imposing the one-year jail term as a condition of probation, we must now address the question of what is an appropriate appellate remedy. Rather than simply vacate the illegal condition, we hold that the proper remedy is to remand for resentencing. In so hold ing, we do not mean to intimate what sentence the trial judge should impose, except that the sentence must not exceed the court’s statutory authority.
Our conclusion is consistent with the general principles articulated in the seminal sentencing case of People v Coles, 417. Mich 523; 339 NW2d 440 (1983), where it was recognized that only the trial court has the authority to impose a sentence. The underlying policy is to insure that the sentence is "tailored to fit the particular circumstances of the case and the defendant.” Id., p 537. If we were to vacate the illegal condition and otherwise affirm the probation order, the resultant sentence would be something other than what the trial judge imposed. Our power to amend the final judgment of the lower court, see MCR 7.216(A)(1), (7), must give way to the weighty policies underscored in Coles.
In People v Gauntlett, 134 Mich App 737; 352 NW2d 310 (1984), modified 419 Mich 909; 353 NW2d 463 (1984), this Court invalidated an order conditioning probation on the administration of Depo-Provera treatments for a defendant convicted of first-degree criminal sexual conduct, holding that the condition of probation was unlawful. Because the sentence without the condition was excessively lenient under the standard for sentence review established in Coles, supra, this Court decided that remand for resentencing was the appropriate remedy. On appeal to our Supreme Court, the remedy of resentencing was not disturbed, but the Court summarily concluded that this Court, having decided that the condition of probation was illegal, "should have remanded the case, without further direction, ... for resentencing.” (Emphasis added.) This Court’s Coles analysis was "premature.” The holding of the Supreme Court was that the defendant must be sentenced anew on remand.
Consistent with the holding in Gauntlett is People v Rondon, 144 Mich App 410; 375 NW2d 761 (1985), rev’d 424 Mich 864 (1985), where the defendant was charged with an offense committed while other criminal charges were pending. The defendant pled guilty in both matters and was sentenced first for the subsequently committed offense. The first sentencing judge ordered that the prison term run consecutively to the term yet to be imposed in the other case. This Court vacated the discretionary consecutive sentence, imposed pursuant to MCL 768.7b; MSA 28.1030(2), on the ground that only the second sentencing judge could impose a consecutive sentence. Rejecting the prosecutor’s contention that the proper appellate remedy was to remand "for a fresh exercise of discretion,” 144 Mich App 414, this Court further ordered that both sentences run concurrently. Our Supreme Court remanded for resentencing because the first sentencing judge (who imposed the invalid sentence) may have erroneously perceived that the other sentencing judge had already imposed a sentence. The Supreme Court explicitly provided that its remand mandate would permit the sentencing judge to exercise his discretion to consider the imposition of a consecutive sentence. Again the underlying principle is that a partially invalid sentence is properly remedied by a remand for resentencing so that the trial court is enabled to fashion a sentence tailored to the specific circumstances of the defendant and the needs of the community.
We do not read People v Carl Smith, 69 Mich App 247; 244 NW2d 433 (1976), to require a contrary result. In that case, the trial court corrected the invalid probation condition prior to appeal. Furthermore, this Court in Carl Smith did not preclude resentencing, but rather it noted only that the "ordinary remedy” is "remand for entry of a proper order of probation.” Id., p 249. Thus, the trial court’s exclusive jurisdiction to impose a sentence was not violated by the appellate remedy.
Reversed and remanded for resentencing.
Both offenses are applicable only with respect to controlled substances that fall within specified classifications. These classifications are narcotic drugs listed in schedules 1 or 2, see MCL 333.7212; MSA 14.15(7212), MCL 333.7213; MSA 14.15(7213), MCL 333.7214; MSA 14.15(7214), and those controlled substances specified in MCL 333.7214(a)(iv); MSA 14.15(7214)(a)(iv). Defendant’s conviction was premised upon his involvement with cocaine, one of the substances listed in MCL 333.7214(a)(iv); MSA 14.15(7214)(a)(iv).
The phrase "or the victim’s estate” did not become effective until after the commission of the acts for which defendant was charged. 1985 PA 89. In all other respects, the above-quoted statutory material has remained unchanged.
MCL 771.1(3); MSA 28.1131(3) and MCL 771.2(3); MSA 28.1132(3) recognize the authority of the court to impose life probation for conviction of the two offenses set forth in MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii) and MCL 333.7403(2)(a)(iii); MSA 14.15(7403)(2)(a)(iii).
We are aware that another panel of this Court has recently decided the precise issue raised in this case in People v Albane, 160 Mich App 331; 408 NW2d 146 (1987). Although we agree with the Albane Court’s conclusion that the one-year jail term was an unlawful sentence for the offense set forth in MCL 333.7401(1), (2)(a)(iii); MSA 14.15(7401)(1), (2)(a)(iii), we believe that the Court’s decision to set aside the illegal jail term and to otherwise affirm the life probation was erroneous for the reasons set forth in this opinion. We note that the appellate remedy was imposed without any citation to authority or any legal rationale. | [
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Shepherd, P.J.
Defendant was convicted of three counts of third-degree criminal sexual conduct and one count of unlawfully driving away an automobile (udaa) following a bench trial in Detroit Recorder’s Court. The trial court sentenced defendant to three terms of from seven to fifteen years for the criminal sexual conduct convictions and from two to five years for the udaa conviction, all sentences to be served concurrently. We affirm.
The sixteen-year-old victim testified that she was stopped at a light in the City of Detroit when defendant entered her car without permission. He told her to drive to another location, which the victim did because she was frightened. The victim insisted that she had to go home, but defendant kept directing her down various streets and asking if "there were any good parties around.” When the victim stopped, defendant asked her for a kiss. The victim refused and told defendant to leave. Defendant then angrily grabbed her wrist and told her to drive him to his friend’s house. The victim believed defendant had a weapon in his pocket.
The victim drove defendant to Harper Woods. Defendant began yelling at her. When the victim tried to leave the car in a friend’s driveway, defendant firmly held her wrist and made her drive on into Roseville in Macomb County. After defendant made her stop the car, apparently while still in Roseville, the victim remembered that a friend had left a knife on the floor of her car and she pointed it at defendant. Defendant tried to take the knife away, cutting the victim’s hand in three places. Defendant threw the knife out of the car and told the victim to drive around some more.
Defendant then told the victim to return to the place where they struggled for the knife. Defendant removed the victim’s clothes. He then forced the victim to engage in sexual intercourse and fellatio. After he and the victim, dressed, defendant drove the car into an empty lot. He then forced the victim to engage in anal sex and sexual intercourse. He then drove the car to his friend’s house. Defendant told the victim she would have to go get his friend, because the friend’s wife didn’t like defendant. Defendant began driving away slowly and the victim fled to a nearby house for help. Her family later took her to the Roseville Police Station and a hospital.
Defendant first argues that the Recorder’s Court had no jurisdiction, which was vested instead in the Macomb Circuit Court, as the actual offenses occurred in Macomb County rather than Detroit. The trial court originally ordered a transfer to Macomb Circuit Court pursuant to MCL 762.7; MSA 28.850. Upon reconsideration, however, the court reversed itself and reinstated the case in Recorder’s Court.
It appears undisputed that defendant entered the victim’s car in Detroit. It also appears undisputed that the sexual acts and the udaa occurred in Roseville in Macomb County. All the offenses, however, occurred within the confines of the victim’s automobile. This is confirmed by defendant’s statement to the police read into evidence at trial, although defendant insisted in his statement that the activity was consensual. The trial court found that defendant’s criminal activity "began in the City of Detroit.”
The basis for the trial court’s reinstatement of the case in Recorder’s Court is unclear from the record. The prosecutor argued that prosecution in Recorder’s Court was proper under MCL 762.9; MSA 28.852, which provides:
Whenever a felony has been committed on a railroad train, automobile, aircraft, vessel or other moving vehicle, said offense may be prosecuted in any county, city or jurisdiction in which such conveyance was during the journey in the course of which said offense was committed.
Defendant argues that this provision requires that the vehicle be moving during the commission of the crime. In the instant case, the victim’s automobile was stopped at the relevant times.
We have located no case discussing the meaning of this statute. Defendant’s interpretation, however, is a reasonable and sensible one given the statutory language "or other moving vehicle.” The Legislature did not use the term "moveable vehicle.” We note that MCL 762.9; MSA 28.852 is not as detailed as MCL 762.3(3); MSA 28.846(3), which appears to concern misdemeanor prosecutions and felony preliminary examinations for offenses committed in a "conveyance in transit” for which it "cannot readily be determined” in which jurisdiction the offense was committed. Under MCL 762.3(3); MSA 28.846(3), venue is proper in any jurisdiction through which the conveyance passed. Nonetheless, we agree with defendant that MCL 762.9; MSA 28.852 is intended to apply to felonies committed in a moving vehicle in situations where it is difficult to determine the county in which the criminal acts occurred.
We believe, however, that another provision permitted prosecution of this case in Recorder’s Court. MCL 762.8; MSA 28.851 provides:
Whenever a felony consists or is the culmination of two or more acts done in the perpetration thereof, said felony may be prosecuted in any county in which any one of said acts was committed.
Neither party discusses this provision, though the prosecutor cites People v Carey, 110 Mich App 187; 312 NW2d 205 (1981), a first-degree criminal sexual conduct case which relied upon MCL 762.8; MSA 28.851 to find jurisdiction in the Recorder’s Court even though the rape allegedly occurred outside Detroit city limits and defendant was acquitted of other charged crimes which allegedly occurred in Detroit.
Third-degree criminal sexual conduct requires the sexual penetration of another person through force or coercion. MCL 750.520d(l)(b); MSA 28.788(4)(l)(b). While penetration occurred in Ma-comb County in this case, it is clear that defendant’s acts of force or coercion began in Detroit when defendant entered the victim’s car and forced her to drive around. See People v Jones, 159 Mich App 758, 761; 406 NW2d 843 (1987); People v De Cair, 23 Mich App 438, 440-441; 178 NW2d 830 (1970). Because defendant’s acts which culminated in the commission of third-degree sexual conduct and udaa began in Detroit, the Recorder’s Court properly had jurisdiction over the case under MCL 762.8; MSA 28.851.
Defendant next argues that the trial court abused its discretion in sentencing him. The sentencing guidelines recommended a minimum sentence of from three to five years for the criminal sexual conduct convictions. The probation department apparently recommended a minimum sentence of from three to six yeárs.
The trial court heard from defendant and his counsel at sentencing. The court also heard from the victim. In imposing sentence, the court stated that defendant’s acts against the victim were very serious, and indicated that Detroit residents should be able to drive in the city without experiencing "this kind of interruption” in their lives. The court noted that the victim would suffer for the rest of her life, as would her family, adding "I don’t have any sympathy for the defendant.” The court indicated that it was departing from the guidelines recommendation "because of the serious nature and very damaging effect it will have on this complainant for the rest of her life.” On the sentencing information report, the reasons offered for departure were "crime too serious” and that defendant committed three acts of third-degree criminal sexual conduct and udaa.
We believe the trial court based defendant’s sentences upon adequate reasons as outlined by the Supreme Court in People v Coles, 417 Mich 523; 339 NW2d 440 (1983). Defendant’s sentences do not shock our appellate conscience. The trial court offered adequate reasons for its departure from the sentencing guidelines recommendation. To the extent that those reasons were included in the factors considered by the guidelines, we find no error. See People v Ridley, 142 Mich App 129, 134; 369 NW2d 274 (1985).
Affirmed. | [
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M. J. Kelly, P.J.
This cause is remanded to us on order of the Supreme Court dated May 15, 1987, following reversal of this Court’s opinion at 139 Mich App 768; 362 NW2d 881 (1984). 428 Mich 51; 404 NW2d 199. In that opinion the majority held that the plaintiff, Steven Gobler’s widow, was improperly awarded survivors’ benefits because "the trial judge’s finding that Steven Gobler would have been employed by the U. S. Forestry Service is clearly erroneous.” 139 Mich App 776. The Supreme Court reversed, finding that "[w]e are not convinced that the trial court made a mistake in its factfinding.” 428 Mich 66. The only issue on remand is whether the plaintiff is entitled to attorney fees under MCL 500.3148(1); MSA 24.13148(1), which states:
An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.
The Supreme Court remanded the question of attorney fees to this Court because it found as follows:
It is unclear whether or not the Court of Appeals considered the defendant’s good-faith arguments. We therefore remand this case to the Court of Appeals for a more thorough disposition of defendant’s substantive arguments regarding its good faith. [428 Mich 67.]
What more thorough disposition can be necessary to vindicate the defendant’s position than the considered per curiam opinion of two judges of the Court of Appeals and two dissenting justices of the Supreme Court, Justice Boyle and Chief Justice Riley. I quote Justice Boyle:
The Court of Appeals decision reversing the trial court’s award of survivor’s benefits based on future employment and denying survivor’s benefits because Steven Gobler was unemployed is evidence that the defendant may have been initially justified in denying plaintiff’s claim. [428 Mich 68-69.]
As the dissenter in the Court of Appeals decision, it is clear to me that the defendant’s refusal to volunteer survivors’ benefits was a good-faith refusal. The majority opinion written by Judge Allen (but perversely and inappropriately labeled per curiam) was well written and well reasoned. It should be abundantly clear to any reader of that opinion and the authorities discussed therein that the good faith of the insurance company was clearly established. Stated another way, the insurance company’s refusal to voluntarily pay the claim was not unreasonable. The trial court’s award of penalty interest and attorney fees is set aside._
I did not address the question of attorney fees in my dissent in Gobler v Auto-Owners Ins Co, 139 Mich App 768; 362 NW2d 881 (1984), and to the extent that the editor assessed my opinion as affirming "the trial court’s award of survivor’s benefits, penalty interest and attorney fees to plaintiff’ at 139 Mich App 769, the editor was incorrect.
As a court we have contended over this practice but never settled on a rule prohibiting the anomaly. | [
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] |
J. C. Timms,
J. In this slip and fall case, plaintiffs appeal as of right from orders granting summary disposition in favor of the City of Livonia pursuant to MCR 2.116(C)(7) and (10) and in favor of defendants Szokola and Julius Barber Shop pursuant to MCR 2.116(C)(8) and (10). We affirm.
On Monday, March 1, 1982, at 8:00 a.m., plaintiff Anthony J. Zielinski had his hair cut at defendant Julius Szokola’s barber shop by defendant Irving Szokola. Plaintiff was Szokola’s first customer of the day. The weather was clear and cold with a light dusting of snow covering the ground. As plaintiff was walking to the parking lot after his haircut, he slipped and fell on the public sidewalk. He suffered a broken ankle which required surgery to correct. He was on crutches for four or five months and was off work for approximately seven months. As a result, he instituted the instant action.
At his discovery deposition, plaintiff testified that he did not see any defects in the sidewalk at the time of his fall. Upon closer examination, he did observe a two-foot-square patch of ice on the sidewalk under the snow.
In his discovery deposition, Szokola described the' condition of the sidewalk as pitted. While there was no expert testimony regarding the cause of the pitting, Szokdla believed it resulted from his saltihg of the sidewalk over the twenty-nine years he had been at his business location. He described the pit holes as being at a maximum of a couple inches in diameter and one-half-inch deep. He recognized that ice soihetimes formed in the pits. According to him,' at the time of plaintiff’s acci dent, ice had formed on the smooth part of the sidewalk as well as in the pitted portion. He attributed the ice to the melting of ice and snow from a nearby snowbank and refreezing of the resultant water. He testified that he had not shoveled, swept, nor salted the sidewalk for several days prior to plaintiffs fall.
i
The general rule with regard to the liability of a municipality or property owner for injuries sustained by a licensee as a result of icy conditions is stated in a doctrine known as the natural accumulation doctrine. The doctrine provides that neither a municipality nor a landowner has an obligation to a licensee to remove the natural accumulation of ice or snow from any location. Hampton v Master Products, Inc, 84 Mich App 767; 270 NW2d 514 (1978); Taylor v Saxton, 133 Mich App 302; 349 NW2d 165 (1984).
The natural accumulation doctrine is subject to two exceptions. The first exception provides that liability to a licensee may attach where the municipality or property owner has taken affirmative action to alter the natural accumulation of ice and snow and, in doing so, increases the hazard of travel for the public. Woodworth v Brenner, 69 Mich App 277; 244 NW2d 446 (1976); Mendyk v Michigan Employment Security Comm, 94 Mich App 425; 288 NW2d 643 (1979); Hampton, supra. To establish liability under this doctrine, a plaintiff must prove that the defendant’s act of removing ice and snow introduced a new element of danger not previously present. Morton v Goldberg, 166 Mich App 366; 420 NW2d 207 (1988). Weider v Goldsmith, 353 Mich 339; 91 NW2d 283 (1958). Thus, for example, in Hampton, supra, the Village of Yale was deemed liable for injuries suffered by a pedestrian who slipped and fell while trying to walk over a snowdrift that had resulted from road plowing undertaken by the village two days earlier. This Court correctly concluded that the snowbank was an unnatural accumulation.
Just as a brief aside, Mendyk, supra, represents an example in which the unnatural accumulation exception was carried to an extreme. There, the plaintiff slipped and fell on a public sidewalk abutting an mesc building and suffered injuries. The sidewalk had been twice shoveled and salted. The Court of Claims rejected the plaintiff’s argument that she had fallen on an unnatural accumulation of ice and entered a verdict of no cause of action. This Court reversed and remanded for a new trial, holding that the mesc’s act of salting the sidewalk could have caused an unnatural accumulation of ice. As the Court explained:
In the instant case the sidewalk abutting the mesc office had twice been shoveled and salted on the morning of plaintiffs slip and fall. It is the presence of this salt on the snow that plaintiff claims caused it to melt and freeze on the sidewalk. If this is true, then the action of the mesc in salting the sidewalk increased the plaintiffs hazard from one involving her trudging through snow to one involving her walking on ice. It is clear that her chances of injury from the latter are greater than her chances of injury from the former. [94 Mich App 435.]
While the panel in Mendyk did not grant a judgment in favor of the plaintiff, but instead only held that the issue of the mesc’s liability should be submitted to the factfinder, the impact of the case is nonetheless staggering. Implicit in the Court’s ruling is the holding that all slip and fall cases caused by icy conditions resulting from salting should go to the factfinder. While liability may not always be found, the defendant must nonetheless suffer the cost of defending the action.
Fortunately, this Court recently tempered the holding of Mendyk. In Morton, supra, this Court reversed an order denying the defendant drug store’s motion for a directed verdict. This Court held that, in order to recover on a slip and fall case, the plaintiff had to prove more than just that defendant had salted earlier in the day and the plaintiff had slipped on ice. To recover, the plaintiff had to establish a causal connection between the defendant’s actions and an increased hazard on the sidewalk. This Court felt that the defendant’s actions in salting and clearing the snow decreased the danger to pedestrians. The Court politely ignored the holding in Mendyk, noting that the opinion did not compel a different result.
The second exception to the natural accumulation doctrine provides that liability may arise where a party takes affirmative steps to alter the condition of the sidewalk itself, which in turn causes an unnatural or artificial accumulation of ice on the sidewalk. Buffa v Dyck, 137 Mich App 679, 682-683; 358 NW2d 918 (1984).
ii
The natural accumulation doctrine applies only to injuries suffered by a licensee. It does not apply to situations involving an invitee injured on private property. With respect to an invitee, the landowner has an obligation to take reasonable measures within a reasonable time after the accumulation of snow to diminish the hazard of injury. Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975). The specific standard of care, i.e., whether salt or sand should be used in addition to clearing the snow, is a fact question for the jury. Clink v Steiner, 162 Mich App 551; 413 NW2d 45 (1987).
In Clink, a newspaper delivery person was injured when he slipped and fell on the defendant’s driveway at 4:00 a.m. while delivering the morning Detroit Free Press. While the driveway had been cleared of snow, the runoff from thawing snow had frozen on the driveway. The plaintiff sued and the circuit judge granted the defendant’s motion for summary disposition, MCR 2.116(C)(10).
On appeal, this Court reversed, ruling that, although the defendant had cleared the driveway, a jury question existed as to whether the defendant should have used salt or sand in addition to shoveling. 162 Mich App 551, 556-557. In so ruling, the panel relied heavily on Lundy v Groty, 141 Mich App 757; 367 NW2d 448 (1985). There, an invitee, the defendant’s cleaning person, slipped and fell on a driveway that had not been cleared of snow. It was uncontested that a snow storm had begun the previous night and that snow was still falling when the plaintiff arrived at noon.
We find it curious that the Clink panel, in holding that a jury question existed as to whether the defendant should have sanded or salted his driveway in addition to having shoveled it, would rely so extensively on a case where the plaintiff slipped during a snow storm on a driveway that had not yet been cleared. While the holding in Clink might support the result in Lundy, the converse does not appear to be true. Such is the nature of the cases in this area of law.
The panel’s holding in Lundy is curious in its own right. The panel reversed the circuit judge’s order granting the defendant’s motion for summary disposition. In doing so, it ruled:
In the instant case, defendant would owe plaintiff a duty because she should know that snow was falling on her property and that it would create a dangerous condition for the elderly plaintiff. The general standard of care would require defendant to shovel, salt, sand or otherwise remove the snow from the driveway.
. . . The specific standard of care in the instant case would be the reasonableness of defendant’s actions regarding the snow. Whether it was reasonable to wait for the snow to stop falling before she shoveled or whether salt or sand should have been spread in the interim is a question for the jury. [141 Mich App 760-761.]
The Lundy holding is curious because the panel relied almost exclusively on Quinlivan, supra, where our Supreme Court merely held that liability might arise for a supermarket’s failure to clean its parking lot for several days following a snowfall. We believe that this Court has strayed significantly from the reasonable holding in Quinlivan.
iii
The instant case presents a hybrid situation between the natural accumulation doctrine and the higher standard of Quinlivan, as it involves a business invitee who was injured on a public sidewalk abutting the business. This precise fact circumstance was addressed in Elam v Marine, 116 Mich App 140; 321 NW2d 870 (1982), where the plaintiff sustained injuries after falling on a public sidewalk outside a business. This Court affirmed the grant of summary judgment, ruling that property owners have no obligation to maintain public sidewalks free from ice and snow even where the owner is a business invitor and the person injured is an invitee. See also, Morton v Goldberg, supra.
We believe Elam and Morton are controlling in this case. Since plaintiff was injured on a public sidewalk, he can only recover if he can establish an exception to the natural accumulation doctrine.
iv
Relying on Mendyk, supra, plaintiff argues that the ice on which he slipped resulted from defendant’s past salting practices. However, plaintiff has a new twist to his argument. He is not claiming that the ice formed from the refreezing of melted snow. Instead, he claims the ice on which he slipped resulted from the accumulation of water in the pits in the sidewalk, which in turn were formed by defendant Szokola’s salting of the sidewalk. Buffa v Dyck, supra.
The issue thus becomes twofold: (1) whether the accumulation of ice in one-half-inch-deep pit holes is a natural or unnatural accumulation and (2) whether one-half-inch-deep pit holes in a sidewalk constitute a failure on the part of the City of Livonia to maintain the sidewalk in reasonable repair so it is reasonably safe and convenient for public travel.
We conclude that the accumulation of ice in the pit holes of the sidewalk resulting from the refreezing of melted ice and snow is an accumulation from natural causes. We further hold that defendant Szokola would not face liability even had the ice accumulated as a result of the refreezing of a salted surface. We do not view the application of salt to an icy surface as the introduction of a new hazard. Weider, supra. Salting does not create a hazard, instead it only alleviates, albeit temporarily, a hazard that already existed. For this reason, liability should not attach merely because the powerful forces of nature reassert themselves and a salted surface refreezes.
We further hold as a matter of law that the City of Livonia was not under a duty to replace the sidewalk merely because ice accumulated in the one-half-inch-deep depressions that had formed. Any other holding would place an impossible burden on the already overburdened municipalities of this state. We do not now decide at which point a municipality would face liability for depressions in which ice has accumulated, "for it is here where we enter into the realms of reasonable men differing, and of 'tape measure justice.’ ” Ingram v Saginaw, 1 Mich App 36; 133 NW2d 224 (1965).
We note, however, that in a different context our Supreme Court has adopted a two-inch rule for injuries caused by holes in sidewalks. The rule states that, as a matter of law, a municipality is not liable for injuries to a pedestrian caused by a hole in a sidewalk that is less than two inches in depth. Ingram v Saginaw, 380 Mich 547; 158 NW2d 447 (1968). Presumably, the accumulation of ice in a hole exceeding two inches in depth would give rise to liability against the municipality. Thus, for example, in Pappas v Bay City, 17 Mich App 745; 170 NW2d 306 (1969), Judge Holbrook dissenting, this Court ruled that a depression in a sidewalk measuring 2% inches below the curb and in which water accumulated and froze might give rise to liability against the city. Today we hold only that, as a matter of law, the accumulation of ice in a depression measuring one-half-inch deep in a public sidewalk is not an unreasonably dangerous condition which would subject the municipality to the possibility of liability.
The grant of summary disposition pursuant to MCR 2.116(0(10) in favor of both defendants is affirmed. Our disposition renders unnecessary the resolution of whether the trial judge’s grants of summary disposition under MCR 2.116(C)(7) and (8) were improper. Defendants are entitled to costs as permitted in MCR 7.219.
Affirmed.
Gribbs, J., concurs in the result only.
The holding of Mendyk is curious for two reasons. First, the case penalizes the homeowner or business person who uses salt. The lesson of the case is that the liability-conscious landowner or business person should never use salt to alleviate icy conditions, for salt melts snow which in turn refreezes and forms ice. And once salt is applied, the landowner or business person faces the fear that the ice that forms on the sidewalk arose from the refreezing of a salted surface rather than from natural thawing and refreezing. But see Morton v Goldberg, 166 Mich App 366; 420 NW2d 207 (1988). Second, the Mendyk panel incorrectly relies on the "invitor’s rigorous duty of care owed to an invitee” as somehow being important to the case. This is nonsense. Since the plaintiff fell on public property, her status as an invitee is irrelevant. See Morton v Goldberg, supra; Elam v Marine, 116 Mich App 140; 321 NW2d 870 (1982).
Apparently, the import of Clink and Lundy is that, during winter months, Michigan homeowners should cancel home delivery of their newspaper and should order the post office to halt home delivery of mail. Instead, the prudent homeowner should walk to the supermarket to buy a newspaper and to the post office for the mail so that those parties will face liability in case the homeowner falls.
Interestingly, one of the cases cited to support this rule was Mendyk. Mendyk is factually similar to Elam and to the present case. Yet in Mendyk, the panel’s holding was premised both on an unnatural accumulation of ice and on the higher duty owed by a business invitor to an invitee. Since the plaintiff in Mendyk slipped on a public sidewalk, we fail to see how her status as an invitee is pertinent.
Defendant testified that he had not swept or salted the sidewalk prior to the accident since the sidewalk had been cleared of snow for severed days prior to the accident.
This case presents yet another reason why the prudent, liability-conscious homeowner or business person will never apply salt to an icy surface. If salt is applied, it may melt the snow and ice, resulting in an unnatural accumulation of ice, see Mendyk, supra, or it might damage the sidewalk, resulting in an unnatural accumulation, as in the present case. Either way, a lawsuit will have to be defended against. From the case law, one can only conclude that salt is akin to sin. | [
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Per Curiam.
Defendants and counterplaintiffs Six Star, Ltd., Inc. and Stan’s Trucking, Inc. filed a counterclaim against plaintiff and counterdefendant, City of Rochester Hills, alleging abuse of civil process. The city moved for summary disposition pursuant to MCR 2.116(C)(7) and (8), raising the defense of governmental immunity and also arguing that counterplaintiffs failed to state a claim upon which relief can be granted. In its May 6, 1986, opinion and order, the circuit court denied the motion on the basis that the city did not enjoy immunity from tort liability for abuse of process and that, while factual issues exist concerning the city’s intent, the counterclaim states a cause of action. The city then sought leave to appeal and peremptory reversal in this Court without success. However, on October 27, 1986, the Michigan Supreme Court remanded the case for reconsideration as by leave granted. We reverse the circuit court’s order denying the city’s motion for summary judgment.
It is necessary to present some of the underlying facts in this case which give rise to the instant dispute. Stan’s owns the subject property, which has been operated as a landfill for approximately twenty years. Pursuant to an agreement and plan, Stan’s offered to donate the land to the city for recreational purposes as the landfill activity was completed. Six Star was the landfill operator since 1975. In essence, Six Star sought and was unsuccessful in obtaining permission to expand the landfill operations. Continued use of that landfill site would result in substantially increasing the contours of the land, which would affect use of the property for recreational purposes and, as claimed by the city, create land incompatible with the residential area.
The instant appeal has its genesis in a lawsuit instituted by the city on March 29, 1982, to prevent the Department of Natural Resources from issuing a construction permit to Six Star for expansion of the landfill on Stan’s property. The permit would have enabled Six Star to build the infrastructure necessary to meet a threshold qualification as an applicant for a landfill operator’s permit from the dnr. The city successfully procured an ex parte temporary restraining order from Ingham Circuit Judge Thomas L. Brown on the date the complaint was filed, which caused Six Star to become disqualified for inclusion in the dnr’s Oakland County Solid Waste Management Plan then being developed pursuant to the Solid Waste Management Act, 1978 PA 641, MCL 299.401 et seq.; MSA 13.29(1) et seq.
Six Star alleges that its exclusion from the plan has now disqualified it from consideration by the dnr as a potential landfill operation, thus leaving it subject to the city’s hostile zoning ordinance. Six Star contends that it would have been exempted from that ordinance under Act 641 had the city not abused the processes of the circuit court in order to prevent it from qualifying for consideration under the waste management plan. Now, Six Star is left with land having no use except as a public park.
On appeal, the city argues that the abuse of process claim is barred by the governmental immunity act because filing of the original lawsuit was a legitimate attempt to enforce the applicable zoning ordinance. Such enforcement was not a tort but a governmental function.
Six Star disagrees, arguing instead that the city’s ulterior purpose in using the temporary restraining order was to prevent it, Six Star, from taking steps under Act 641 to qualify for inclusion in the Oakland County plan rather than to enjoin activity which would result in immediate, irreparable harm or injury. The city’s ulterior motive was to keep Six Star out of the Oakland County Solid Waste Management Plan in order to obtain the landfill site for a public park without just compensation. Six Star argues further that the filing of the lawsuit with such an ulterior motive is not a governmental function and, hence, not insulated from liability under the governmental immunity act.
We think that the city has the better argument and conclude that enforcement of its zoning ordinance was a governmental function for which it was immune.
Recently, our Supreme Court had an opportunity to once again address the issue of governmental immunity, this time in the realm of intentional torts. Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987). The Court expressly held that there is no "intentional tort” exception to governmental immunity and that a governmental agency is immune from liability for any intentional torts so long as those torts were committed during the performance of a general activity which constituted a governmental function. See Eichhorn v Lamphere School Dist, 166 Mich App 527; 421 NW2d 230 (1988). Specifically, the Smith Court held:
[I]ntentional torts are immune if committed within the scope of a governmental function; however, the intentional use or misuse of a badge of governmental authority for a purpose unauthorized by law is not the exercise of a governmental function. [428 Mich 611.]
It is the essence of an abuse of process claim to allege that the tortfeasor has sought to accomplish an ulterior, unlawful objective by dint of judicial processes ostensibly directed to a collateral, permissible end. See Three Lakes Ass’n v Whiting, 75 Mich App 564, 570; 255 NW2d 686 (1977). Here, Six Star alleged that the city involved the process of the Ingham Circuit Court to prevent it from qualifying in a plan which would have preempted the zoning ordinance. However, we agree with the city that it was within its authority to use the courts to redress its legal rights and to enforce its zoning ordinance. Despite Six Star’s claims, the city’s enforcement of its own zoning ordinance is a governmental function authorized by the Township Rural Zoning Act, MCL 125.271 et seq.; MSA 5.2963(1) et seq. Although Six Star wanted to obtain a landfill operator’s license under the dnr, it was unable to meet a dnr licensing prerequisite, construction of the landfill, without violating the zoning ordinance. This Court held in a prior appeal from the Oakland Circuit Court’s injunction ruling involving the same parties that, in the absence of an already approved solid waste management plan, the city’s local zoning ordinances are not preempted by the Solid Waste Management Act, MCL 299.401 et seq.; MSA 13.29(1) et seq. Avon Twp v DNR, unpublished opinion per curiam of the Court of Appeals, decided March 5, 1987 (Docket Nos. 72932, 75101), lv den 424 Mich 860 (1985). Thus, the dnr lacked authority to issue a license for landfill construction, since it too was bound by the zoning ordinance. However lawful Six Star’s objectives, they could not sanction a violation of the applicable land use ordinance. It follows then that the city’s enforcement of the ordinance was proper.
It is also worthy to note that expansion of the landfill operation as sought by Six Star would have been in breach of the original licensing agreement with the city, which required Six Star to turn over the site upon completion of the landfill in accordance with a predetermined plan. Logic would dictate that Six Star can hardly complain that the city attempted to use the courts to foreclose Six Star’s anticipated breach of the prior agreement.
To conclude, the city is immune from liability under Smith, supra, because any intentional torts, if any were committed, occurred during the exercise of a governmental function, namely, enforcement of its zoning ordinance. Smith, supra. Accordingly, the order denying the city’s motion for summary disposition should be reversed and judgment entered in favor of the city.
Reversed.
The original action was commenced by the Charter Township of Avon. During the pendency of the proceedings in the trial court, Avon Township became the City of Rochester Hills. Since that change of incorporation has no effect on the legal issues presented, plaintiff and counter-defendant will hereafter be referred to as the city even though some of the activities referred to occurred during the time it was still Avon Township.
In a September 29, 1982 order, Judge Brown dismissed Count n of the city’s claim for failure to exhaust administrative remedies. The judge also found that the location of the site in Oakland County deprived the Ingham Circuit Court of jurisdiction to enforce the ordinance. Finally, the court dissolved the temporary restraining order. However, the court retained jurisdiction of the Michigan Environmental Protection Act counts and enjoined any operation of the landfill pending a demonstration of compliance with mepa.
The dnr issued Six Star a construction permit on September 29, 1982. That same day, the city was successful in having the Oakland Circuit Court issue a temporary restraining order prohibiting construction.
In rendering the initial temporary restraining order, however, Judge Brown gave the city nothing it was not entitled to receive in the proper forum, i.e., Oakland Circuit Court, by virtue of its own zoning ordinance. | [
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Wahls, P.J.
Defendant, Celina Mutual Insurance Company, appeals as of right from a February 25, 1987, judgment of the Muskegon Circuit Court granting summary disposition in favor of plaintiff, Lewis Snellenberger, and ordering defendant to pay plaintiff $1,136.16 per month in no-fault work-loss benefits from April 6, 1985, through June 20, 1987. We reverse and remand for further proceedings consistent with this opinion.
Plaintiff states that on June 20, 1984, he was injured in a motor vehicle accident. According to plaintiff, although defendant initially paid work-loss benefits pursuant to MCL 500.3107(b); MSA 24.13107(b) in the proper amount, it failed to fully pay such benefits after April 6, 1985, when plaintiff began working for his employer in "a lighter job which he could handle within the restrictions placed on him by his treating physician.” This "lighter job” paid significantly less money than plaintiff’s preinjury position. Each of the parties filed a motion for summary disposition under MCR 2.116(C)(10), and on January 30, 1987, the Muskegon Circuit Court issued an opinion favorable to plaintiff. The court decided the issues based on the briefs submitted, as neither party requested oral argument. In its February 25, 1987, judgment, the court directed defendant to pay plaintiff $1,136.16 per month in no-fault work-loss benefits from April 6, 1985, through June 20, 1987, subject to plaintiffs reattainment of his preinjury wages. Defendant now appeals, arguing that the court erred in calculating plaintiffs work-loss benefits under MCL 500.3107(b); MSA 24.13107(b) and MCL 500.3109(1); MSA 24.13109(1) in the no-fault act. Defendant especially contends that the monthly wages plaintiff earned in his postinjury job and the monthly workers’ compensation benefits he received must be deducted from the applicable maximum work-loss entitlement under the no-fault act. We agree.
MCL 500.3107; MSA 24.13107 provides, in pertinent part:
Personal protection insurance benefits are payable for the following:
* * *
(b) Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured and expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or of his dependent. Work loss does not include any loss after the date on which the injured person dies. Because the benefits received from personal protection insurance for loss of income are not taxable income, the benefits payable for such loss of income shall be reduced 15% unless the claimant presents to the insurer in support of his claim reasonable proof of a lower value of the income tax advantage in his case, in which case the lower value shall apply. The benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed [$2,252.00,] which maximum shall apply pro rata to any lesser period of work loss. The maximum shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner but any change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of change in the maximum.
Thus, according to § 3107 of the no-fault act, the plaintiff in this case is entitled to receive the loss of income from work he would have performed between June 20, 1984, and June 20, 1987, minus fifteen percent. His work-loss benefits during any thirty-day period, however, when added to income earned during that same period, cannot exceed $2,252. At the time of his injury, plaintiffs monthly income alone was $3,302.56. This amount minus fifteen percent is $2,807.18 — a figure higher than the applicable statutory maximum of $2,252. Therefore, the maximum monthly amount of work-loss benefits payable to plaintiff is $2,252.
Section 310703) specifies that "[t]he benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed [$2,252].” (Emphasis added.) Accordingly, the income earned by an injured person for work performed during a thirty-day work-loss benefits period must be deducted from the statutory maximum before benefits are paid. In the present case, plaintiff, since April 6, 1985, worked in a less strenuous and lower-paying position than that of his preinjury employment, earning $1,157 per month. Thus, the amount of plaintiffs work-loss benefits payable after April 6, 1985, as calculated under § 3107(b), would be $1,095 per month: $2,252 (the monthly statutory maximum) minus $1,157 (the monthly income earned by plaintiff).
In making this calculation, we follow statutory dictates by deducting the amount of plaintiffs wages from the applicable statutory maximum of $2,252 and not from plaintiff’s actual work loss of $3,302.56 per month. The circuit court deducted the wages earned in the less strenuous job from plaintiffs actual work loss, observing that plaintiff’s wages were earned from "favored work” and that the treatment of wages from such work is "not addressed in the existing case law insofar as no-fault benefits are concerned.” The circuit court reasoned that "it does not make sense to subtract favored work income from the statutory maximum since this would also effectively punish [discourage?] an injured person from working.” We believe, however, that the language of § 3107(b) is plain and unambiguous in requiring, without qualification, "income earned by an injured person” to be deducted from the statutory maximum payable as no-fault work-loss benefits during a single thirty-day period. We are bound to uphold this plain meaning. City of Saugatuck v Saugatuck Twp, 157 Mich App 52, 56; 403 NW2d 100 (1987), lv den 428 Mich 905 (1987); Grier v DAIIE, 160 Mich App 687, 690; 408 NW2d 429 (1987). Moreover, this Court has previously stated that "it appears that the Legislature intended that the statutory maximum [of § 3107(b)] be a ceiling from which deductions are to be made, and not a maxi mum to be used when considering the difference between a claimant’s actual work loss minus deductions and the statutory limit.” Featherly v AAA Ins Co, 119 Mich App 132, 137; 326 NW2d 390 (1982).
Plaintiff’s adjusted thirty-day work-loss benefits of $1,095 must further be reduced by the amount of monthly workers’ compensation benefits he received. Section 3109(1) of the no-fault act provides:
Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.
In Mathis v Interstate Motor Freight System, 408 Mich 164, 187; 289 NW2d 708 (1980), the Supreme Court held that workers’ compensation benefits fall within the scope of § 3109(1) and must, therefore, be set off from no-fault benefits otherwise payable. In Featherly, supra, p 137, this Court clarified that "when reference is made to 'benefits otherwise payable’ in § 3109(1) the Courts and Legislature are referring to any benefits payable up to the maximum statutory limitations.” Thus, in the present case, to determine the appropriate amount of benefits due to plaintiff from defendant, we must subtract the amount of workers’ compensation benefits received monthly by plaintiff after April 6, 1985, from the amount of benefits payable to plaintiff under § 3107(b), which, as already determined, is $1,095 per month.
Plaintiff asserts that he received $1,008.37 monthly in workers’ compensation benefits, whereas defendant asserts that plaintiff received $1,115.84 monthly. Using plaintiffs figures, we find that the amount of benefits due to plaintiff equals $86.63 per month: $2,252 (the monthly statutory maximum) minus $1,157 (the monthly income earned by plaintiff) minus $1,008.37 (the monthly workers’ compensation benefits received by plaintiff). On the other hand, using defendant’s figures, we find that the amount of benefits due to plaintiff equals zero (or, actually, negative $20.84): $2,252 minus $1,157 minus $1,115.84. The question whether plaintiffs or defendant’s figures are correct regarding the amount of workers’ compensation benefits received monthly by plaintiff requires a factual finding. Accordingly, we remand the case in order to permit that finding to be made and, thereafter, for the entry of an appropriate judgment regarding plaintiff’s entitlement, if at all, to payment of no-fault work-loss benefits.
The circuit court’s grant of summary disposition in favor of plaintiff is reversed and the case is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction._
The $1,000 maximum originally stated in the statute was applicable from March 30, 1973, which was the effective date of the statute, through September 30, 1974. Annual adjustments to the maximum, as required by the statute itself, have been made. One of those adjustments provided that the work-loss maximum would be set at $2,252 per month for accidents occurring between October 1, 1983, and September 30, 1984. Since plaintiffs accident occurred on June 20, 1984, the applicable work-loss maximum in his case is $2,252.
Plaintiffs average weekly wage as a truck driver was $762.13. This amount multiplied by 13 and divided by 3 equals $3,302.56.
Plaintiffs weekly wage in this favored-work position was $267 per week. This amount multiplied by 13 and divided by 3 equals $1,157.
In Featherly, this Court reversed a trial court and held that workers’ compensation benefits received by an insured in the wake of an automobile accident had to be set off, as provided in § 3109(1) of the no-fault act, from the statutory maximum under § 3107(b) rather than from the insured’s actual wage loss.
Neither party explains on appeal this discrepancy in the amount of monthly workers’ compensation benefits paid to plaintiff. In defendant’s brief opposing plaintiffs motion for summary disposition filed in the lower court, however, defendant mentioned that plaintiffs weekly workers’ compensation benefits, although payable at $257.70, were reduced by $25 to $232.70 per week in order to permit defendant to recoup certain overpayments previously made.
In its January 30, 1987, opinion, the Muskegon Circuit Court apparently accepted,, without explanation, defendant’s figure of $1,115.84 regarding the amount of workers’ compensation benefits received monthly by plaintiff. Thus, it determined that plaintiff was entitled to $1,136.16 in monthly work-loss benefits by subtracting $1,115.84 from the monthly statutory maximum of $2,252, and by failing to further subtract the amount of monthly wages earned by plaintiff in his postinjury position. | [
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PER CURIAM.
The question presented in this case is whether an easement is void ab initio or merely subject to a lien-type interest when the male owner of a servient estate violates the statute of frauds by granting an easement without securing his wife’s waiver of her then inchoate dower interest. Consistent with longstanding precedent of the Michigan Supreme Court, an inchoate dower interest is an encumbrance on a husband’s property that can be valued. Therefore, a purchaser who takes land subject to such an encumbrance can be recompensed without invalidating the conveyance.
In this case, defendant is the successor in interest to a husband who, without his wife’s participation, granted an easement across his property in plaintiffs favor. The husband’s wife has since waived her dower interest in the property and there is nothing left to encumber the easement transfer. Although there may be notice issues nullifying plaintiffs claimed easement, the transfer is not void under the statute of frauds. We affirm the circuit court’s grant of partial summary disposition in plaintiffs favor.
I. BACKGROUND
In 2003, Gregory Hoover (Hoover), although married to Linda Hoover (Linda), purchased in his name alone contiguous lots 2 and 3 in the North Bay Shores site condominium development in Fenton. When Hoover bought the lots, Linda acquired a dower interest in the property, although that interest would not vest unless or until Hoover died before Linda. MCL 558.1. Hoover hired plaintiff, Raji Zaher, to construct a house for him on lot 2. In the construction contract, signed by Hoover without his wife, Hoover agreed to transfer ownership of lot 3 to Zaher as payment. Zaher built a home for Hoover on lot 2 and simultaneously constructed his own home on lot 3.
During the construction process, Zaher concluded that he would not have sufficient room to maneuver into his sideways-facing garages if his driveway occupied only his own lot. Accordingly, he sought and obtained a “joint driveway easement” over lot 2. Hoover signed a written easement on October 27, 2007, in his name alone and without his wife’s participation. Neither Zaher nor Hoover recorded the easement. Thereafter, Zaher constructed a single, 30-foot-wide driveway straddling the boundary line between the lots. Twenty feet of the driveway’s width was on lot 2, which was then owned by Hoover. The driveway was paved with a uniform brick pattern and shared a single entry ramp from the road.
On April 26, 2010, Hoover sold lot 2 along with the newly constructed home to defendant, Michael Miotke. Hoover and his wife, Linda, signed the warranty deed transferring Hoover’s interest in the property. On August 30, 2010, Hoover and Linda signed a warranty deed transferring Hoover’s interest in lot 3 to Zaher. Both deeds were recorded. Both also provided that the property interest conveyed was subject to “easements of record.”
In May 2011, Miotke removed a line of brick pavers just inside his property’s boundary line and planted a row of rosebushes. Miotke claimed that his decision to divide the driveway coincided with his decision to have other masonry work performed on the property. Miotke also had his front porch repoured and installed a new pattern of brick pavers on the porch and “his” 20-foot portion of the driveway. Zaher, who was out of town at the time, returned to discover that he could no longer park his vehicles in his garages as he only had access to a 10-foot-wide portion of the driveway.
The current lawsuit ensued. Zaher sought a preliminary injunction to return the driveway to the condition it had been in before Miotke changed it and also a permanent injunction to enforce the joint-driveway easement. Miotke filed a counterclaim seeking demolition of Zaher’s garages as they were constructed outside the “building envelope” allowed by the condominium development’s master plan. Miotke also filed a third-party action against the Hoovers and their real estate broker for their alleged failure to advise him of the joint-driveway easement before closing the sale.
The circuit court granted Zaher’s motion for a preliminary injunction and Miotke does not challenge that decision. The court thereafter denied the parties’ motions and cross-motions for summary disposition, determining that there remained questions of fact regarding, among other issues, Miotke’s awareness of the joint driveway use when the sale occurred. The court did, however, grant partial summary disposition in Zaher’s favor on one issue. The court ruled, contrary to Miotke’s protestations, that the easement over lot 2 was not void or voidable from its inception even though Linda was not a party to the document and therefore did not release her inchoate dower interest in the encumbered lot 2.
Miotke continues to contend that the joint-driveway easement was void from its inception. Under the statute of frauds, MCL 566.106 and MCL 566.108, an easement is the transfer of a property interest and must be made in writing and signed by everyone with an interest in the property. Linda, although not a coowner of lot 2, obtained an inchoate dower interest in the property when her husband purchased it. And, according to Miotke, Linda did not waive her inchoate dower interest by joining the transfer of the easement to Zaher, rendering that transfer invalid.'
Zaher counters that Linda’s failure to sign the easement did not render the easement void; rather, Linda’s failure to waive her inchoate dower interest at the time the easement was created “merely cloud[ed] the title to that grant.” If Hoover died without Linda having waived her dower interest, then the property subject to the easement also would have become subject to Linda’s realized dower interest. However, according to Zaher, Linda did waive her inchoate dower interest in lot 2 when she joined Hoover’s transfer to Miotke through the warranty deed and no longer has an interest to claim in the property.
The circuit court agreed with Zaher that the easement was not void ab initio. The court concluded that the situation had to be “evaluated or reviewed” by “looking at it now, not then.” The court held that Linda had since waived her dower interest in lot 2 by joining her husband’s transfer of his fee interest to Miotke and thereby “cured” any deficiency in the easement conveyance. The court therefore granted partial summary disposition in Zaher’s favor and denied Miotke’s motion for summary disposition on this limited issue.
II. STANDARD OF REVIEW
We review a trial court’s decision on a motion for summary disposition de novo. Wayne Co v Wayne Co Retirement Comm, 267 Mich App 230, 243; 704 NW2d 117 (2005). A motion under MCR 2.116(C)(8) “tests the legal sufficiency of the complaint on the basis of the pleadings alone to determine if the opposing party has stated a claim for which relief can be granted.” Begin v Mich Bell Tel Co, 284 Mich App 581, 591; 773 NW2d 271 (2009). We must accept all well-pleaded allegations as true and construe them in the light most favorable to the nonmoving party. Id. The motion should be granted only if no factual development could possibly justify recovery. Id.
A motion under MCR 2.116(C)(10) “tests the factual support of a plaintiffs claim.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “In reviewing a motion under MCR 2.116(0(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh, 263 Mich App at 621. “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West, 469 Mich at 183.
We review de novo underlying issues regarding the interpretation and applicability of a statute, such as the statute of frauds relied upon by the parties in this case. Adams Outdoor Advertising, Inc v City of Holland, 463 Mich 675, 681; 625 NW2d 377 (2001).
III. ANALYSIS
“An easement is an interest in land that is subject to the statute of frauds.” Forge v Smith, 458 Mich 198, 205; 580 NW2d 876 (1998). The statute of frauds is codified at MCL 566.106, which provides:
No estate or interest in lands . .. shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized by writing.
MCL 566.108 provides similar requirements for contracts covering the transfer of a property interest:
Every contract ... for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized in writing ... .[ ]
The easement granted by Hoover over his property, lot 2, for the benefit of Zaher and his property, lot 3, was reduced to a written document. Under the statute of frauds, however, to transfer an interest in property, all parties possessing an interest in the subject property must sign the document. Forge, 458 Mich at 206 (“[a]ll owners of jointly held property must sign a contract conveying an interest in the property,” e.g., an easement in Forge); Slater Mgt Corp v Nash, 212 Mich App 30, 32; 536 NW2d 843 (1995) (holding that the statute of frauds applies to a seller’s wife holding only a dower interest in the property so the wife must sign the purchase agreement as well as the seller husband). It is undisputed that Hoover’s wife, Linda, did not sign the document granting Zaher an easement over lot 2. Accordingly, the granted easement clearly violated the statute of frauds. The question then becomes one of remedy: should the easement be nullified as void from its creation, or is Linda’s inchoate dower interest a cloud on the property’s title that evaporated when Linda joined the warranty deed transferring the property and waived her dower rights?
In Forge, 458 Mich at 206, the Supreme Court held: “All owners of jointly held property must sign a contract conveying an interest in the property; the absence of a signature by a co-owner renders the contract void.” Like the current case, Forge involved an action to enforce an easement. Id. at 201-202. However, Linda was not a coowner of lot 2; the property was held by Hoover alone, not jointly with his wife. There is no precedent demanding this Court to hold an easement invalid when the holder of only an inchoate dower interest in the property has failed to sign a contract conveying the easement to the property.
A. THE NATURE OF DOWER INTERESTS
MCL 558.1 governs a wife’s dower interest as follows: “The widow of every deceased person, shall be entitled to dower, or the use during her natural life, of Vs part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage, unless she is lawfully barred thereof.” The statute, first enacted in 1846, codified the common-law rule of dower. Redman v Shaw, 300 Mich 314, 316; 1 NW2d 555 (1942). While a woman’s husband is alive, she has only an inchoate dower interest; the right does not vest or become consummate until her husband’s death. Oades v Std S & L Ass’n, 257 Mich 469, 473; 241 NW 262 (1932); Cummings v Schreur, 236 Mich 628, 630; 211 NW 25 (1926). Once she becomes a widow, a woman does not take a fee interest in one-third of her late husband’s real property; she is entitled only to the use of one-third of the property. The widow’s use extends only for the period comprising the remainder of her natural life. Basically, dower confers on a wife a life estate to one-third of her husband’s real property after his death. Steams v Perrin, 130 Mich 456, 459; 90 NW 297 (1902). See also 25 Am Jur 2d, Dower & Curtesy, § 1, pp 60-61; 28 CJS, Dower & Curtesy, §§ 1-5, pp 105-109.
A wife’s dower interest is different from an ownership interest in several ways. First, an inchoate dower interest might never ripen into a consummate possessory interest. If a wife dies before her husband, her dower rights die with her. Vanderlinde v Bankers Trust Co of Muskegon, 270 Mich 599, 606; 259 NW 337 (1935). A wife’s dower rights are barred if she and her husband divorce before his death. See MCL 552.101(1) (requiring the court to include in a divorce judgment “a provision in lieu of the dower” to bar the wife’s future dower claims). A husband might bequeath an inheritance to his wife in his will and the wife could elect to accept that inheritance in lieu of dower. See MCL 700.2202 (l)(a) and (b), (2) (a) (the surviving widow of an intestate decedent may elect to take her intestate share or her dower right and the surviving spouse of a testate decedent may elect to “abide by the terms of the will,” take her dower right, or take a modified intestate share); see also Vanderlinde, 270 Mich at 605.
Second, even if a wife elects to take her dower interest, a particular piece of her late husband’s property might not be affected. A wife has an interest in only one-third of her husband’s property. She must file an action or petition the court to assign property to satisfy her dower interest. The court might assign the wife a one-third interest in each of her late husband’s properties or it might grant her the use of a selected one-third of the properties. See, e.g., Walker v Kelly, 91 Mich 212, 217-218; 51 NW 934 (1892) (concluding that a widow’s dower interest could be satisfied monetarily rather than by possession where the subject property was not the homestead of the widow’s late husband at the time of his death).
Third, because a wife possesses only a life estate in her dower properties, her interest has a finite term. The property will not forever be subject to her claims and this cloud on the property’s title will eventually and naturally be cleared.
B. EFFECT OF A WIFE’S FAILURE TO WAIVE HER DOWER INTEREST
Only a wife may divest herself of her dower interest; her husband “may not bargain [it] away . . . .” Slater, 212 Mich App at 32; M & D Robinson Co v Dunitz, 12 Mich App 5, 12; 162 NW2d 318 (1968). See also Buchoz v Walker, 19 Mich 224, 228 (1869). The language of MCL 566.108 provides that a contract that violates the statute of frauds “shall be void ....” And certain courts have held a contract void when a husband conveys away a property interest without securing his wife’s waiver of her dower interest. However, the vast majority of precedent concludes that such a contract is not void and we are bound to follow those decisions.
28 CJS, Dower & Curtesy, § 55, p 145 provides:
Inchoate dower is an encumbrance on the husband’s estate. Although it has also been held to be in the nature of a lien upon the husband’s land, it is not, at least not in the ordinary sense, a lien, since the estate or interest is contingent and the amount is uncertain and variable. [Emphasis added.]
A wife’s inchoate dower interest can be valued to cure any improper transfer made without the wife’s permission:
[I]t is generally held that the present cash value of the inchoate right of dower is capable of computation, a common formula being to ascertain the present value of an annuity for the wife’s life, equal to interest in a third of the proceeds of the estate to which her contingent right attaches, and then deduct the value of a similar annuity depending upon the joint lives of herself and her husband. Factors to be considered in determining the value include the relative ages, life expectancies, constitutions, and habits of the husband and wife[.] [28 CJS, Dower & Curtesy, § 59, p 147.]
In Slater, 212 Mich App at 32, this Court acknowledged that “[a] husband may not bargain away his wife’s dower interest” and therefore a wife must sign any contract transferring her husband’s interest in his sole property. Slater held that a purchase agreement was “ineffective to convey marketable title” absent the seller’s wife’s signature. Id. at 33. Accordingly, the purchaser could take title to the property, but that interest would be subject to the seller’s wife’s inchoate dower interest and, upon the seller’s death, his wife would become entitled to a one-third interest in the property. Thus, the purchase agreement was not void, but could transfer only a clouded title.
Slater held that Berg-Powell Steel Co v Hartman Group, 89 Mich App 423; 280 NW2d 557 (1979), controlled its decision. In Berg, the purchaser sought to back out of a purchase agreement, in part, because the seller failed to secure his wife’s signature on the contract. This Court concluded that the purchase agreement was “void” and that “no valid contract was ever created” because the seller’s wife had not waived her dower interest by signing the contract. Id. at 427-428, citing Fields v Korn, 366 Mich 108; 113 NW2d 860 (1962). In a manner inconsistent with its later decision in Slater, the Berg Court held that the contract was nullified, not that the purchaser took the title clouded by the seller’s wife’s dower interest.
Berg comports with Supreme Court decisions holding that a contract to transfer a fee interest in land is “void” absent signatures from all coowners of the property. See Forge, 458 Mich at 206 (“All owners of jointly held property must sign a contract conveying an interest in the property; the absence of a signature by a co-owner renders the contract void.”); Fields, 366 Mich at 109-110 (“It is simple assumpsit to recover money paid on a contract which the applicable section of the statute of frauds says ‘shall be void’ [, MCL 566.108,] for want of required signature of the parties to be charged. . . . That word ‘void’ is the mandate of the statute. It means the ultimate of legal nullity.”).
However, an inchoate dower interest is merely a potential future interest. If a wife survives her husband and has not waived her dower interest, she will become entitled to a one-third interest in the property. This is not an ownership interest that prevents a current transfer to another. As noted, it is possible that the wife’s interest will never become consummate and the purchaser’s rights will never be affected. Property law is equitable at its core and voiding a contract because of a murky potential interest can be unjust. In a manner consistent with this idea, our Supreme Court has held in many cases that the courts have the equitable power to enforce a conveyance even absent the participation of the seller’s wife and have the power to value a dower interest’s impact on the property.
In Rhoades v Davis, 51 Mich 306, 309; 16 NW 659 (1883), the Supreme Court noted that an inchoate dower right is not an “estate” but “it is a right concerning land, and one which possesses value.”. That value could be reduced to “a money value, and may be the object of sale and release.” Id. at 310.
In Walker, 91 Mich 212, the plaintiff sued for specific performance of an oral agreement for the transfer of property owned by the defendant, her father. She claimed that her father had promised her a deed to the property, while her father claimed that she was to be a tenant from year to year. Id. at 213-215. The defendant argued “that the contract [was] not enforceable, because [his] wife cannot be compelled to release her dower.” Id. at 217. The Court disagreed, holding that while the defendant’s wife “cannot be compelled to release her dower, there is no reason why [the plaintiff] may not have a decree for specific performance so far as defendant Kelly is concerned, and for compensation as to the dower interest of his wife.” Id. at 217-218 (citation omitted).
In Solomon v Shewitz, 185 Mich 620; 152 NW 196 (1915), a man named Pierson entered into an agreement to sell property to the defendant within 30 days. Pierson’s wife was purportedly a party to that agreement, but she did not sign it. Id. at 622-623. Pierson and his wife then sold the property to the plaintiff despite the earlier contract with the defendant. Id. at 623-624. The plaintiff sued the defendant to quiet title and the defendant sued the Piersons for specific performance. Id. at 624-626. The trial court ruled in the plaintiffs favor and the Supreme Court reversed. It held that Pierson’s agreement with the defendant was a valid executory land contract, not an option, and that the plaintiff had notice of the contract. Id. at 629-630. The Court noted that Pierson’s wife had an inchoate dower interest in the property at the time Pierson agreed to sell it to the defendant and that, because she was not a party to the land contract, she “cannot be compelled to release her dower in the land” and “is not a proper party to a bill by the purchaser for specific performance.” Id. at 630-631. The Court took note of Walker, in which the plaintiff had been granted “specific performance, subject to the dower rights .. . where the wife was not a party to the contract,” but also noted that specific performance “is not a matter of right” but a matter within the trial court’s discretion. Id. at 631. It held, under the circumstances of the case, the defendant was not entitled to specific performance with an abatement for the value of Mrs. Pierson’s dower interest but was entitled to sue for damages. Id. at 631-632.
In Gluc v Klein, 226 Mich 175, 176; 197 NW 691 (1924), the defendant entered into a contract to sell certain lands to the plaintiffs. The defendant did not secure his wife’s signature on the contract because she was residing in a psychiatric asylum in another state. The plaintiffs sought specific performance of the defendant’s promise to convey title free and clear by warranty deed. Id. The Court held that “a perfect title to lands owned by” a man cannot be conveyed without his wife’s barring her inchoate dower right. Id. at 177. The Court did not find the purchase contract void, simply that it could not be enforced to convey clear title.
In Tandy v Knox, 313 Mich 147; 20 NW2d 844 (1945), the defendant owned certain property that he agreed to sell to the plaintiff. The defendant’s wife was not a party to the agreement. Id. at 149-151. The plaintiff took possession of the property and paid the defendant a substantial portion of the purchase price. Id. at 151. The agreement called for a land contract to be executed, but that was never effectuated because a dispute arose regarding how much of the property was covered by the agreement. Id. at 151-152. The plaintiff sued for specific performance. The trial court determined which part of the property was subject to the agreement and granted the plaintiff the option of specific performance or an accounting. The plaintiff elected specific performance and was granted an abatement of the purchase price equal to the value assigned to the defendant’s wife’s dower interest. Id. at 152-153. The Supreme Court modified and affirmed the decree of the trial court. Id. at 158. Regarding the dower issue, the Court stated:
Because of the refusal of Mrs. Knox to join with her husband in the execution of a land contract, such contract must be made subject to her inchoate right of dower. Recognizing the situation in this regard, the trial court held that plaintiff, if he elected to accept specific performance in lieu of an accounting, was entitled to an abatement of the purchase price in an amount equal to the present value of the inchoate dower interest, such value being fixed at the sum of $1,000. [Id. at 156.]
These cases all stand for the proposition that the transfer of a property interest may stand despite a husband’s failure to secure the release of his wife’s inchoate dower rights. There is no support therefore for a holding that Zaher’s easement across lot 2 was invalid from the outset.
Further, this Court has held that a wife may bar her dower interest through a later transfer, thereby curing a defect in an earlier conveyance. In M & D Robinson Co, 12 Mich App at 7-8, the defendant owned a one-half interest in certain property that he agreed to sell to the plaintiff on land contract. The defendant was married but his wife did not join in the purchase agreement. Id. at 9-10. After the execution of the purchase agreement but before execution of a land contract, the defendant and his cotenant on the property became indebted to Lawyers Title Insurance Corporation. Id. at 8. In partial payment of the debt, the defendant assigned Lawyers Title his interest in the land contract that was to be executed. The defendant’s wife participated in the Lawyers Title agreement and consented “to join with her husband in the execution of any and all instruments called for by” the assignment. Id. at 8-9.
Consistently with the previously discussed precedents, this Court agreed with the trial court that, even without the Lawyers Title contract, the plaintiff would have been entitled to specific performance of the agreement to execute a land contract “with damages for the cloud on title represented by the inchoate dower rights” of the defendant’s wife. Id. at 9-10, 12. This Court also agreed with the trial court’s order to the defendant’s wife to execute a land contract and thereby waive her dower rights relative to the land contract as she had promised to do in her consent to the Lawyers Title agreement. Id. at 12-13.
C. APPLICATION TO THE CURRENT CASE
Applied to the facts now before this Court, the law dictates, and equity suggests, that Miotke cannot avoid Zaher’s easement simply because Linda did not join Hoover’s transfer of that interest. If Hoover still owned lot 2 and blocked Zaher’s use of the joint driveway, Zaher could successfully file suit to enforce the easement. Hoover created the problem by failing to secure Linda’s written consent at the time of the conveyance. To the extent that the easement may have reduced the value of lot 2, Hoover’s estate could be required to recompense Linda in some way for the monetary effect on her dower interest, but only if Hoover predeceased Linda. Ultimately, however, the inchoate dower rights would not nullify the easement. Linda’s dower rights are an encumbrance on the property separate from the encumbrance from the easement. The two are not directly contrary and can coexist.
But Hoover did transfer his ownership interest in lot 2 to Miotke with Linda’s approval. Linda can no longer claim that the value of her dower interest was somehow affected by Zaher’s easement; she no longer has a dower interest. Because Linda extinguished her dower rights to lot 2 by joining Hoover’s conveyance to Miotke, those rights no longer impair lot 2 or sit in competition with Zaher’s easement. Miotke might successfully challenge the easement on notice grounds, but Linda’s extinct dower rights are not a defense available to him.
In summary, an inchoate dower interest is merely a potential future limited possessory interest in land. The interest can be valued and recompensed so that an improper transfer of a property interest without a wife’s waiver of her inchoate dower interest can be enforced. Although Hoover’s grant of an easement to Zaher violated the statute of frauds because Linda did not join it, the transfer was not void. In any event, Linda subsequently waived her dower interest when Hoover sold the property. Linda’s former dower interest is not a defense available to Miotke in Zaher’s action to enforce his claimed easement.
Affirmed.
GLEICHER, P.J., and SAWYER and FORT HOOD, JJ., concurred.
Despite that several issues remained pending in the circuit court, this Court granted Miotke’s interlocutory application for leave to appeal. Zaher v Miotke, unpublished order of the Court of Appeals, entered July 27, 2012 (Docket No. 307394).
Zaher incorrectly posits that MCL 566.108 is inapplicable because “[tlhere was no contract to grant an easement in the future,” only a document representing a contemporaneous conveyance. Zaher has cited no support for this proposition. Moreover, nothing in the language of MCL 566.108 suggests that a “contract ... for the sale of any lands, or any interest in lands” cannot be entered into at the same time as the conveyance.
We further note that since its inception in the statutes of 1846, this provision has stated that transfers not conducted consistently with the statute “shall be void.” 1846 RS, ch 80, § 8.
Although the claim was predicated on an oral agreement, the statute of frauds was not an issue, possibly because of the doctrine of partial performance. The plaintiff and her husband had sold their own property and turned the proceeds over to the defendant, who used the proceeds to buy another property. The defendant and his wife then moved from the disputed farmland to the new property and the plaintiff and her husband moved to the disputed farmland. Walker, 91 Mich at 213. | [
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PER CURIAM.
Defendant, Marlon Jermell Howell, appeals as on leave granted the trial court’s order denying his motion for relief from judgment after the trial court amended his judgments of sentence to indicate that he must serve his new sentences consecutively to a previous parole sentence, as required by law. We affirm.
I. FACTS
A. THE SENTENCING AGREEMENTS
The prosecution charged Howell in three separate cases for offenses that he committed while he was on parole. For an arson that occurred on August 30, 2006, it charged Howell with six counts of assault with intent to commit murder, arson of a dwelling house, and felonious assault. For a home invasion that occurred on January 8, 2007, it charged Howell with first-degree home invasion, being a felon in possession of a firearm (felon-in-possession), and possessing a firearm during the commission of a felony (felony-firearm). And for an assault that occurred on January 15, 2007, it charged Howell with assault with intent to do great bodily harm less than murder, disarming a police officer, carrying a firearm in a vehicle, two counts of felon-in-possession, two counts of felony-firearm, and three counts of resisting or obstructing a police officer.
In the arson case, Howell agreed to plead guilty to arson of a dwelling house (1) if the prosecution agreed to dismiss the remaining charges in that case and dismiss the home-invasion case, and (2) if the trial court sentenced him to 8 to 20 years’ imprisonment, to be served concurrently with the sentence in the assault case.
In the assault case, Howell agreed to plead guilty to attempted disarming a police officer, felon-in-possession, and felony-firearm (1) if the prosecution agreed to dismiss the remaining charges in that case and dismiss the home-invasion case, and (2) if the trial court sentenced him to serve terms of one to five years’ imprisonment for the attempted-disarming and felon-in-possession charges, to be served concurrently with the arson case, and a consecutive term of two years’ imprisonment for the felony-firearm charge.
Neither agreement addressed Howell’s status as a parolee. Howell’s presentence investigation report indicated that, because he was a parolee when he committed the offenses, he must serve the new sentences consecutively to the sentence from which he was on parole.
B. THE SENTENCES AND AMENDMENTS
On September 21, 2007, Howell entered his pleas in the arson case and the assault case. On October 5, 2007, the trial court sentenced Howell to serve terms of (1) 8 to 20 years’ imprisonment in the arson case; (2) one to five years’ imprisonment for disarming a police officer and one to five years’ imprisonment for felon-in-possession in the assault case, to be served concurrently with each other and to the arson case; and (3) two years’ imprisonment for felony-firearm in the assault case, to be served consecutively to the other sentences.
The trial court’s judgment of sentence in the arson case indicated that Howell would serve his sentence concurrently with his sentences in the assault case, and did not give Howell any credit for jail time served. The trial court’s judgment of sentence in the assault case checked the box indicating that Howell was to serve the sentences consecutively to each other, but also recommended that they be served concurrently with the file number corresponding to the assault case rather than the arson case. It also granted Howell 262 days’ credit for time served. On October 11, 2007, Howell wrote the court to request that it also grant him 262 days’ credit for time served on the arson case. The trial court denied his motion for jail credit on the basis that the law does not allow credit for time served to parole violators. •
On November 9, 2007, the trial court amended the judgment of sentence in the assault case. The new judgment of sentence reflected that Howell was convicted of attempted disarming of a police officer, removed the indication that Howell was entitled to credit for time served, and, after the box checked “sentence(s) to be served consecutively to,” stated “see recommendation.” The court’s recommendation clarified that Howell would serve the felony-firearm and attempted-disarming sentences consecutively, and that the sentences in the assault case were to run concurrently to those in the arson case.
Howell again wrote the court on August 19, 2009, requesting that the court correct his sentences in the assault case from consecutive to concurrent sentences. On September 14, 2009, the trial court again amended the judgment of sentence in the assault case, removing the word “attempted” and clarifying that the felony-firearm and disarming sentences were consecutive to each other and to the arson case. The judgment of sentence again failed to mention Howell’s status as a parolee.
On October 21, 2009, the trial court amended the judgment of sentence in the assault case a third time to again add the word “attempted,” and to indicate that Howell’s sentence was “consecutive to parole.” The term “consecutive to parole” typically refers to MCL 768.7a(2), which provides that a person must serve the remainder of the term of imprisonment for their previous offense before serving time for a new offense if he or she commits a felony while on parole.
On October 22, 2009, the trial court amended the judgment of sentence in the arson case to add that Howell’s sentence was “consecutive to parole.”
C. HOWELL’S MOTION FOR RESENTENCING
On March 5, 2010, Howell moved the trial court for relief from judgment and requested resentencing. Howell contended that the trial court violated his constitutional right to due process by imposing consecutive sentences without affording him the opportunity to be heard and represented by counsel, that it failed to give him the benefit of his plea bargain, and that it improperly eliminated his jail credit.
The trial court issued a written opinion and order. The trial court declined to revisit its October 2007 decision concerning Howell’s jail credit. The trial court indicated that it amended Howell’s sentence to correct a typographical error, to reflect the plea agreement by adding “attempt” to the charge of disarming a police officer, and “to run these files consecutive to the defendant’s parole sentences according to Michigan law.” The trial court opined that Howell misunderstood the judgment of sentence because it reflected the plea agreements — that is, the arson sentence was concur rent with the assault case’s sentences for felon-in-possession and disarming, and consecutive to the felony-firearm sentence. It further noted that “[t]he court’s later amendment to the judgments ran both of [Howell’s] files consecutive to his parole sentences as the law requires. [Howell], as a fourth habitual offender no doubt was informed that as a parolee any subsequent offenses would be served consecutive to his parole sentences.” The trial court therefore denied Howell’s motion for relief from judgment.
Howell filed a delayed application for leave to appeal in this Court, which we denied. Howell sought leave to appeal in the Michigan Supreme Court. In lieu of granting leave to appeal, our Supreme Court remanded to this Court “for consideration, as on leave granted, of the issue whether the trial court erred in amending the judgments of sentence to impose consecutive sentences,” and directing us to consider MCR 6.435, the Michigan court rule concerning a trial court’s correction of error in a criminal judgment of sentence.
II. CORRECTION OF ERROR ON A JUDGMENT OF SENTENCE
A. STANDARD OF REVIEW
This Court reviews de novo questions of law, including the interpretation and application of our court rules. “[W]e interpret court rules using the ‘same principles that govern the interpretation of statutes.’ ” If the plain and ordinary meaning of a court rule’s language is clear, judicial construction is not necessary.
B. CORRECTION OF ERROR UNDER MCR 6.435
We conclude that the trial court appropriately modified Howell’s judgments of sentence to correct an omission, and that neither our court rules nor standards of constitutional due process required it to give him a hearing before doing so.
“[C]orrections or modifications to a judgment of sentence must comply with the relevant statutes and court rules.” MCR 6.435 indicates when and how the trial court may correct an error in a criminal judgment of sentence:
(A) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party, and after notice if the court orders it.
(B) Substantive Mistakes. After giving the parties an opportunity to be heard, and provided it has not yet entered judgment in the case, the court may reconsider and modify, correct, or rescind any order it concludes was erroneous.
Under this court rule, the trial court may not modify a judgment of sentence that contains a substantive mistake after it has entered the judgment of sentence. However, the trial court may correct “[c]lerical mistakes in judgments . . . and errors arising from oversight or omission ... at any time[.]” Thus, this case hinges on whether the trial court’s modification imposing Howell’s new sentences consecutive to his parole sentence fell under MCR 6.435(A), in which case the trial court could correct the errors, or under MCR 6.435(B), in which case it could not.
1. THE AMENDMENT RELATING HOWELL’S NEW SENTENCES TO HIS PAROLE SENTENCE
We conclude that the trial court’s failure to address Howell’s parole status in the original judgments of sentence was a mistake arising from an omission under MCR 6.435(A), because the trial court was required to specify that Howell’s new sentences were to be served consecutively with the sentence from which he was on parole, but it entirely failed to do so.
MCR 6.435(A) indicates that the trial court may correct “errors arising from oversight or omission[.]” When interpreting a court rule, we generally give words their plain and ordinary meanings. Because our court rules do not define what an “omission” is, we will consider a dictionary definition to assist our interpretation. Random House Webster’s College Dictionary defines “omission” as “the act of omitting. . . [or] something left out, not done, or neglected,” and defines “omit” as “to leave out; fail to include.”
MCL 769.1h(1) requires the trial court to specify whether a defendant’s sentence is concurrent with or consecutive to any other sentence that the defendant is, or will be, serving. MCL 768.7a(2) provides that
[i]f a person is convicted and sentenced to a term of imprisonment for a felony committed while the person was on parole ..., the term of imprisonment imposed for the later offense shall begin to run at the expiration of the remaining portion of the term of imprisonment for the previous offense.
Thus, “consecutive sentencing is mandatory when someone commits a crime while on parole.”
Here, the trial court failed to specify whether Howell’s sentences were concurrent with or consecutive to his parole sentence at both the sentencing hearing and in its first judgments of sentence. But our Legislature requires the trial court to both indicate whether any new sentences are consecutive to or concurrent with an existing sentence, and to make any new sentence consecutive to an existing parole sentence if the defendant committed the new offense while on parole. The trial court recognized on the record at the sentencing hearing that Howell was on parole, and Howell’s presentence investigation report indicated that Howell’s new sentences were to run consecutively to his parole sentence. Thus, the trial court’s failure to address whether Howell’s new sentences were consecutive to or concurrent with his parole sentence was an omission— something that the trial court “left out” or “failed to include” in its original judgment of sentence.
Further, our conclusion is consistent with the staff comment to MCR 6.435(B), which suggests that a substantive mistake is one based on the trial court’s mistake of facts or law. We recognize that a staff comment is not binding authority. But we consider the staff comment persuasive in this case because it is consistent with the plain language of MCR 6.435(B), which provides that “the court may reconsider and modify, correct, or rescind any order it concludes was erroneous.” Here, the trial court did not reconsider or correct any previous action. Nor was the trial court operating under the mistaken belief that Howell was not actually on parole. As noted above, the presentence investigation report clearly mentioned Howell’s parolee status, and the trial court recognized his status as a parolee at the sentencing hearing.
We conclude that our court rules allowed the trial court to amend Howell’s judgments of sentence to reflect that he was to serve his new sentences consecutively to the sentence from which he was on parole at the time he committed the new offenses. The trial court’s mistake was an omission within the meaning of MCR 6.425(A), not a reconsideration within the meaning of MCR 6.425(B).
2. THE PLEA AGREEMENT
Howell asserts that because his plea agreement specifically mentioned concurrent sentences, the trial court was required to sentence him to serve concurrent sentences on all charges. If this were true, it may have affected whether the trial court impermissibly modified the judgments of sentence to correct a mistake of fact. However, we disagree with Howell’s reading of his plea agreement.
The plea agreement for the assault clearly indicates that his sentence would be “served concurrent w/ case no. 07-14033 [the arson case]”; it does not mention Howell’s parole sentence. Similarly, the plea agreement for the arson case indicates that its “term [is] concurrent w/ case no. 07-11139 [the assault case].” The agreement refers only to Howell’s new sentences; it does not even imply that Howell would serve either sentence concurrently with his parole sentence. Further, Howell’s presentence investigation report indicated that, because he was a parolee when he committed the new offenses, he must serve the new sentences consecutively to the sentence from which he was on parole. Howell did not challenge the presentence investigation report on this ground at the sentencing hearing. Howell’s counsel indicated on the record that “we have had a[n] opportunity to go over the presentence report.... No changes, corrections or deletions.”
C. ENTITLEMENT TO NOTICE AND A HEARING
We conclude that the court rule did not require the trial court to give Howell a hearing before correcting his judgments of sentence. The plain language of MCR 6.435(A) is that the trial court may correct clerical mistakes and omissions “at any time on its own initiative or on motion of a party, and after notice if the court orders it.” There is no mention of a hearing in MCR 6.435(A). We will not add language to an unambiguous court rule. Because MCR 6.435(A) does not require the trial court to give the defendant a hearing before correcting a clerical error, we conclude that the trial court did not err when it denied Howell’s request for a hearing.
Further, we conclude that a defendant’s rights to due process do not require the trial court to give a defendant a hearing before correcting a clerical error under MCR 6.435(A). Generally, a person’s rights of due process include the “ ‘right to reasonable notice of a charge against him, and an opportunity to be heard in his defense ... .’ ” A defendant’s due process rights must be satisfied before the trial court may correct a sentence.
But this Court has held in several different contexts that, when the trial court corrects a mistaken sentence and it does not have discretion to sentence a defendant any differently, the defendant is not entitled to a hearing. In the context of MCR 6.429, which allows the trial court to modify an invalid sentence, this Court has concluded that even when the trial court was not aware at the time of sentencing that it was required to sentence a defendant to consecutive terms of imprisonment, the trial court was not required to resentence the defendant to correct the error because the trial court would not have been able to sentence the defendant any differently. And in the context of statutory maximum sentences, where the trial court also lacks discretion, the trial court is not required by precepts of due process to give a defendant a hearing before correcting a mistaken maximum sentence. We see no reason to distinguish those cases from this case.
MCL 768.7a(2) requires the trial court to make Howell’s sentences consecutive to the sentences for which he was already on parole. The trial court does not have the discretion to impose any other sentence than that contained in the judgments of sentence as amended. Thus, we conclude that precepts of due pro cess did not entitle Howell to a hearing before the trial court corrected his judgments of sentence.
We affirm.
OWENS, P.J., and WHITBECK and Fort Hood, JJ., concurred.
People v Howell, 491 Mich 919 (2012).
MCR 6.502.
See People v Holder, 483 Mich 168, 172 n 7; 767 NW2d 423 (2009).
People v Howell, unpublished order of the Court of Appeals, entered August 16, 2011 (Docket No. 300405).
Howell, 491 Mich at 919.
People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012).
People v Buie, 491 Mich 294, 304; 817 NW2d 33 (2012), quoting Ligons v Crittenton Hosp, 490 Mich 61, 70; 803 NW2d 271 (2011).
See People v Breidenbach, 489 Mich 1, 8; 798 NW2d 738 (2011).
People v Holder, 483 Mich at 176.
Id. at 177; MCR 6.435(B).
MCR 6.435(A).
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
See id.
Random House Webster’s College Dictionary (1997).
Id.
People v Chavies, 234 Mich App 274, 280; 593 NW2d 655 (1999), overruled in part on other grounds People v Williams, 475 Mich 245, 254-255; 716 NW2d 208 (2006).
MCR 6.435, 1989 staff comment.
See People v Petit, 466 Mich 624, 632 n 9; 648 NW2d 193 (2002).
See Petit, 466 Mich at 633.
People v McGee, 258 Mich App 683, 699; 672 NW2d 191 (2003), quoting In re Oliver, 333 US 257, 273; 68 S Ct 499; 92 L Ed 2d 682 (1948).
People v Harris, 224 Mich App 597, 601; 569 NW2d 525 (1997).
People v Kaczorowski, 190 Mich App 165,174; 475 NW2d 861 (1991).
In re Pardee, 327 Mich 13, 17-18; 41 NW2d 466 (1950). | [
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Wilder, J.
In this insurance dispute, defendant AAA Michigan appeals by leave granted from the trial court’s order permanently enjoining AAA from refusing to pay regular inpatient telephone and television access charges for hospitalized insureds and certifying a class of plaintiffs consisting of all those insured by AAA who have received fourteen days or more of inpatient medical treatment and incurred telephone and television access charges that were denied by AAA. We reverse and remand.
I. BASIC FACTS AND PROCEDURAL BACKGROUND
Plaintiff Angela Hamilton, as next friend of her teenage daughter Tiandra Gunn, filed suit against AAA for automobile insurance benefits under subsection 3107(l)(a) of Michigan’s no-fault insurance act, MCL 500.3107(l)(a), after Tiandra was severely and permanently injured in a bus accident. Plaintiff’s insurance, primary health insurance through Omni Care and coordinated no-fault medical coverage through AAA, covered all Tiandra’s medical expenses incurred during her eight-week hospitalization except for a $140 charge for Tiandra’s telephone and television use while hospitalized. Both Omnicare and AAA refused to pay the television and telephone charges.
Plaintiff initially sued AAA to recover only for Tiandra’s attendant care and replacement services and those claims have been settled. Plaintiff later filed an amended complaint adding count m, alleging that AAA was responsible under § 3107 of the no-fault act for Tiandra’s basic telephone and television charges while hospitalized, and count IV, alleging that AAA’s policy of denying claims violated the Michigan Consumer Protection Act, MCL 445.901 et seq. Plaintiff additionally requested that the trial court certify a class of plaintiffs, including all insureds who, while hospitalized, incurred basic telephone and television use fees that AAA refused to pay.
AAA filed a motion for summary disposition pursuant to MCR 2.116(C)(10) with regard to counts m and IV of plaintiffs amended complaint. With respect to count m, the trial court ruled that plaintiff was allowed to recover from AAA the telephone and television expenses under subsection 3107(l)(a) of the no-fault act, reasoning as follows:
Under the circumstances of this particular case, where we have a person who evidently is unable to leave bed without some difficulty because of the amputation of a leg, who has had to have extensive rehabilitation in a hospital setting, the Court finds that a [sic] telephone access and TV access are reasonable services to be made available to an injured person and the Court does not interpret [subsection] 3107(l)(a) as limiting those services to medically necessary services, but as those services that would accommodate an injured person. And for those reasons the Court will grant... plaintiff’s motion for summary disposition for payment of those costs and deny defendant’s motion to dismiss those counts.
The trial court declined to consider plaintiff’s request for class certification, but briefly stated that it was not inclined to certify the class because it made findings based on the particular facts and circumstances of plaintiff’s case and, thus, plaintiff was not representative of the class. However, the trial court agreed to entertain arguments regarding the issue at a subsequent hearing.
At the subsequent hearing on plaintiff’s request for class certification, plaintiff argued that a class action would be the only remedy for persons such as Tiandra who were charged for basic television and telephone service while hospitalized, but had already paid their hospital bill. Plaintiff described the question presented as whether AAA’s insureds who were hospitalized for fourteen days or longer were entitled to reimbursement for all medical expenses, including basic telephone and television services, under subsection 3107(l)(a) of the no-fault act. AAA responded that individual fact questions existed in each case and, while it did not dispute the trial court’s award of $140 to plaintiff for the telephone and television charge in the instant case, class certification was not appropriate because the no-fault act was not designed for class action claims or other broad injunctive relief where every case requires an individual factual determination regarding the proper remedy. AAA further noted that, contrary to plaintiff’s contention that AAA has a strict “no-pay” policy regarding these charges, its policy was to pay for basic inpatient telephone and television expenses only when a doctor opined that the services were necessary for cognitive stimulation or other medical reasons.
At the conclusion of the hearing, the trial court found that basic inpatient telephone and television expenses were “reasonable accommodations” and were “reasonably necessary” under subsection 3107(l)(a) of the no-fault act:
I guess the ruling, I should say, goes on how I interpret what § 3107 says for allowable expenses. I cannot fathom that in this day and age where televisions — they would wheel them in if you said, if you wanted them, and the television would come in, television and telephones have become so acceptable as a reasonable accommodation of daily living, that they are made available in virtually every hospital or health care facility to every bed, not only to a room, but to a bed in a room, in recognition, I believe, that this is a reasonable accommodation of daily living and certainly under the No-Fault Act it is to accommodate the care, recovery and rehabilitation of a person and therefore one should be at least as comfortable as possible as they would be at home. That is what those natural accommodations of a TV or a telephone are. The Court will take judicial notice of just the standard of our homes in today’s society having not one television but multiple televisions. There are very few homes that don’t have multiple televisions. There are very few homes that don’t have multiple telephones including — what do you call those — cordless telephones, cell phones, now cell digital phones. So I believe that the No-Fault Act is a live and breathing act because it doesn’t delineate the specific items for which compensation is allowed, but it gives categories, and that is those as previously indicated under § 3107 that are reasonably necessary or a reasonable accommodation for an injured person.
The trial court granted a permanent injunction prohibiting AAA from refusing to pay basic inpatient telephone and television access charges for hospitalized insureds, and ordered AAA to pay reasonable charges for basic inpatient telephone and television access, excluding extra items such as charges for long distance or toll calls, pay-per-view television, and video rental fees. The trial court additionally certified a class of plaintiffs consisting of all insureds who received fourteen days or more of inpatient medical treatment and incurred during their stay in the hospital basic telephone and television access charges that were denied by AAA. This Court granted AAA’s application for leave to appeal the trial cpurt’s entry of a permanent injunction and certification of a class. Hamilton v AAA Michigan, unpublished order of the Court of Appeals (Docket No. 217618).
fi. STANDARD OF REVIEW
Statutory interpretation is a question of law that is reviewed de novo on appeal. Oakland Co Bd of Co Rd Comm’rs v Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998); Ypsilanti Housing Comm v O’Day, 240 Mich App 621, 624; 618 NW2d 18 (2000). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). The first criterion in determining legislative intent is the specific language of the statute. Housing Comm, supra at 624. If the plain and ordinary meaning of the language is clear, judicial construction is neither necessary nor permitted, unless a literal construction of the statute would produce unreasonable and unjust results inconsistent with the purpose of the statute. Id. When interpreting a statute, courts should avoid any construction that would render a statute, or any part of it, surplusage or nugatory. Id. at 624-625.
The granting of injunctive relief is within the sound discretion of the trial court and must be based on the facts of the particular case. Cipri v Bellingham Frozen Foods, Inc, 235 Mich App 1, 9; 596 NW2d 620 (1999); Wilkins v Gagliardi, 219 Mich App 260, 276; 556 NW2d 171 (1996). Injunctive relief should be granted only when justice requires it, there is no adequate remedy at law, and there exists a real and imminent danger of irreparable harm. Wilkins, supra.
This Court reviews a trial court’s order of class certification for clear error. Mooahesh v Dep’t of Treasury, 195 Mich App 551, 556; 492 NW2d 246 (1992), criticized on other grounds in Silverman v Univ of Michigan Bd of Regents, 445 Mich 209; 516 NW2d 54 (1994).
m. DISCUSSION
A. PERMANENT INJUNCTION
AAA argues that the trial court erred in issuing a permanent injunction requiring it to include basic inpatient television and telephone charges as an “allowable expense” under subsection 3107(l)(a) of the no-fault act for all insureds, without considering the individual circumstances of each claimant. Although Michigan courts have previously decided whether certain expenses constitute “allowable expenses” under the no-fault act, the question whether basic television and telephone service fees are “reasonably necessary” to a patient’s “care, recovery, or rehabilitation” under subsection 3107(l)(a) of the no-fault act has never been addressed by our courts. Therefore, in resolving this issue of first impression, we look first to the plain language of the statute. Because the statutory language is clear and unambiguous, we conclude that the trial court’s finding that AAA must pay basic inpatient television and telephone expenses for all hospitalized insureds, irrespective of the unique circumstances of each claimant’s case, contradicts the express language of subsection 3107(l)(a). Accordingly, we find that whether charges for basic inpatient telephone and television services axe allowable expenses under the no-fault act is a question of fact subject to analysis case by case in each claim. We further find that the trial court abused its discretion in granting a permanent injunction against AAA and we reverse that part of the order.
Pursuant to § 3107 of the no-fault act, personal protection insurance (pip) benefits are payable for “[a]llowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.”
Under this statutory scheme, an insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular product or service, or if the product or service itself is not reasonably necessary. The plain and unambiguous language of § 3107 makes both reasonableness and necessity explicit and necessary elements of a claimant’s recovery, and thus renders their absence a defense to the insurer’s liability. In addition, the burden of proof on these issues lies with the plaintiff. [Nasser v Auto Club Ins Ass’n, 435 Mich 33, 49; 457 NW2d 637 (1990) (emphasis in original).]
In order for a no-fault insurer to be responsible for a particular expense, three requirements must be satisfied: (1) the expense must have been incurred by the insured, (2) the expense must have been for a product, service, or accommodation reasonably necessary for the injured person’s care, recovery, or rehabilitation, and (3) the amount of the expense must have been reasonable. Id. at 49-50; Booth v Auto-Owners Ins Co, 224 Mich App 724, 727; 569 NW2d 903 (1997). Where a plaintiff has failed to meet the burden of showing that a particular expense has been incurred for a reasonably necessary product or service, “there can be no finding of a breach of the insurer’s duty to pay that expense, and thus no finding of liability with regard to that expense.” Nasser, supra at 50.
The disputed issue in this case is whether basic inpatient telephone and television use is an expense that is “reasonably necessary” for the “injured person’s care, recovery, or rehabilitation” as contemplated by the statute. AAA contends that the trial court’s grant of injunctive relief, effectively holding that basic inpatient telephone and television use is always “reasonably necessary” for a patient’s “care, recovery, or rehabilitation” and, therefore, is always an “allowable expense” under subsection 3107(l)(a) of the no-fault act, was an overly broad remedy that runs afoul of the express language in the statute. AAA argues that whether an expense is “reasonably necessary” for a patient’s care, recovery, or rehabilitation is a fact question, dependent on whether the claimant can meet the burden to show not only “reasonableness” and “necessity” of the product, service, or accommodation, but also a causal connection between the expense and the injured patient’s “care, recovery, or rehabilitation.” We agree.
Section 3107 of the act was promulgated in order “to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses at the lowest cost to both the individual and the no-fault insurance system.” Kitchen v State Farm Ins Co, 202 Mich App 55, 58; 507 NW2d 781 (1993); see also Nelson v Transamerica Ins Services, 441 Mich 508, 514; 495 NW2d 370 (1992). While “the no-fault act is not limited strictly to the payment of medical expenses,” Heinz v Auto Club Ins Ass’n, 214 Mich App 195, 197; 543 NW2d 4 (1995), it has never been found to require payment for expenses not causally connected to an injured person’s care, recovery, or rehabilitation. Id. To this end, costs resulting from the appointment of guardians or conservators to perform services for seriously injured persons, and room and board, attendant care, modifying vehicles for paralyzed individuals, rental expenses, and similar costs have been found by this Court to be reasonably necessary expenses under subsection 3107(l)(a). However, this Court has also ruled that an insured is not entitled to reimbursement for ordinary mileage and increased office expenses, nor are insured’s entitled to own a home provided by the insurer. It is under the framework of these cases that we examine whether television and telephone charges are “reasonably necessary expenses” that require reimbursement from the no-fault carrier.
Our courts have routinely used the ordinary dictionary definitions of words in construing the no-fault act. Maxwell v Citizens Ins Co of America, 245 Mich App 477, 482; 628 NW2d 95 (2001); see also Bailey v DAIIE, 143 Mich App 223, 225-226; 371 NW2d 917 (1985). In Bailey, supra, this Court stated:
It is a cardinal rule of statutory interpretation that the reviewing court is to give effect to the intent of the Legislature. Words should generally be given their ordinary meanings. If the language of the statute is clear, it is assumed that the Legislature intended the plainly expressed meaning, and the statute must be enforced as written. [Id. at 225 (citations omitted).]
In this regard, we note that “reasonable” is defined as “agreeable to or . . . logical” and that “necessary” means “essential, indispensable, or requisite.” Random House Webster’s College Dictionary (1997). In addition, we note that “care” entails “serious attention” or “protection” and that “recovery” refers to “restoration or return to any former or better condition, especially] to health from sickness, injury, addiction, etc.” Id. Further, we note that “rehabilitate” is defined as “to restore or bring to a condition of good health, ability to work, or productive activity.” Id.) see also Maxwell, supra; Bailey, supra We are not persuaded that televisions and telephones can, in light of the ordinary usage of the words and the plain language of the statute, always be considered to be “reasonably necessary” for the “care, recovery, or rehabilitation” of an injured person.
Our conclusion that televisions and telephones are not always reasonably necessary items under the no-fault act is buttressed by the farther provision in subsection 3107(l)(a) that “[a]llowable expenses within personal protection insurance coverage shall not include charges for a hospital room in excess of a reasonable and customary charge for semiprivate accommodations except if the injured person requires special or intensive care....” (Emphasis supplied.) The structure of the statute dispels the notion that there is a “bright-line” rule for determining allowable expenses under the act. Consistent with our Supreme Court’s holding in Nasser, supra at 55, we find that the question whether expenses are reasonably necessary is generally one of fact for the jury to decide.
Similar conclusions have been reached by various federal courts deciding whether television and telephone expenses are reimbursable under the Medicare Act, 42 USC 1395 et seq. In Bethesda Hosp Ass’n v Harris, 1984 WL 48804 (SD Ohio, 1984), the United States District Court for the Southern District of Ohio considered whether certain items of care provided by the hospital to Medicare beneficiaries were excluded from reimbursement as “non-allowable” expenses. The district court noted that items or services that are unnecessary for patient care or that constitute “personal comfort” items were not reimbursable. Id. The phrase “personal comfort items” was not expressly defined in the statute, but the Secretary of Health and Human Services promulgated regulations describing “personal comfort items and services” to include a television set, telephone, or radio. Id. The district court rejected the plaintiffs’ argument that costs for bedside telephones should be covered because telephones were a therapeutic aid in the treatment of patients, and instead ruled that the costs of these items, which were furnished to patients solely for their personal comfort, were not included in allowable costs of providers under the Medicare program. The district court noted that
[i]f telephone service were to be made reimbursable as a therapeutic item, all items or services which might arguably be therapeutic, such as televisions or gift shops, would also have to be allowable expenses under the Medicare Act [and a] reading of the Act and its legislative history indicates that Congress clearly did not intend that result. [Id. at 4.]
Likewise, in Arlington Hosp v Heckler, 731 F2d 171, 174 (CA 4, 1984), the Fourth Circuit Court of Appeals upheld the Secretary of Health and Human Services’ decision that “the costs of telephones for the personal use of patients, like television sets, are, despite their therapeutic value, not reimbursable under Medicare.” The court noted that a bedside telephone was a personal comfort item that, despite its therapeutic benefit, was not directly related or essential to the delivery of health care services so as to justify reimbursement under Medicare. Id. “Certainly, it was not the intent of Congress to reimburse the cost of every item with tangential therapeutic value, merely because a hospital undertakes to furnish that item routinely to its patients.” Id. In a footnote, the court acknowledged that reimbursement was available where patient telephones were used in a manner directly related to health care (e.g., intrahospital medical communications), but held that, in general, the costs associated with bedside telephones were not reimbursable under the Medicare program. Id. at 174, n 5. See also Saint Mary of Nazareth Hosp Center v Schweiker, 698 F2d 1337 (CA 7, 1983).
We agree with the federal courts’ conclusions that, on the surface, services such as telephones and televisions are more properly seen as personal comfort items that have no relation to a patient’s health care, recovery, or rehabilitation. Something more, such as a specific prescription by a physician or medical professional, is required to establish the causal relationship required under the no-fault act. Consistent with the underlying purpose of our no-fault statute “to provide . . . assured, adequate, and prompt reparation for certain economic losses at the lowest cost to both the individual and the no-fault insurance system,” Kitchen, supra at 58; Nelson, supra, we conclude that plaintiff has failed to satisfy her burden of showing that television and telephone services used during hospitalization are always “reasonably necessary” for a patient’s care, recovery, or rehabilitation sufficient to warrant recovery under subsection 3107(l)(a) as a matter of law.
We do not quarrel with plaintiff’s observation concerning the practicality and convenience of telephones and televisions in today’s society. However, plaintiff offers no meaningful distinction between basic telephone and television service and other items such as books, radios, laptop computers, and so forth, all of which may be claimed to contribute in a general way to a patient’s care, recovery, or rehabilitation, but none of which may be reasonably necessary in a specific instance. As a matter of law, the no-fault act requires more than a general notion that a certain item might assist a patient for that item to be found to be an “allowable expense” under subsection 3107(l)(a).
For the reasons articulated above, we conclude that the trial court erred in granting a permanent injunction against AAA and we reverse that part of the order.
B. CLASS CERTIFICATION
AAA argues that the trial court erred in certifying a class of potential plaintiffs for a class action because there was not a common fact question amongst the class of plaintiffs. We agree.
Under MCR 3.501(A)(1), five requirements must be met in order to certify a class action: (1) numerosity of claims, (2) typicality of claims, (3) a plaintiff that adequately represents the class, (4) commonality of law and fact questions, and (5) promoting the convenient administration of justice. The parties agree that the only two requirements that are at issue in this case are factors four and five, whether a “common fact question” exists amongst all the claimants, and whether the class action will promote “the convenient administration of justice.”
Plaintiff contends that “commonality” is satisfied because the class members all have insurance policies issued by AAA, were all injured in automobile accidents, were all hospitalized within the past four years for fourteen days or longer as a result of their injuries, were all billed for basic television and telephone access while hospitalized, and none were reimbursed by AAA for these charges. Plaintiff also contends that a class action would promote “the conve nient administration of justice” because all the potential claimants have been treated the same by AAA (i.e., refused payment for basic television and telephone use while hospitalized) and none could afford to bring individual suits given the small recovery each would receive. AAA, on the other hand, argues that a class action is inappropriate because the nature of the inquiry under the statute does not lend itself to class certification where the Legislature intended for the court to inquire into each claimant’s particular facts and circumstances in order to decide whether certain charges were “allowable expenses” and, thus, reimbursable, under subsection 3107(l)(a).
In light of our conclusion that the question whether access to basic telephone and television services for hospitalized insureds is an “allowable expense” under subsection 3107(l)(a) depends on an individual analysis of the facts and circumstances of each claimant, we find that the requisite “commonality” for certification of a class action has not been established. Each claimant seeking reimbursement for basic inpatient telephone and television services will have unique circumstances that must be examined before determining whether telephone and television use were “reasonably necessary” for that patient’s care, recovery, or rehabilitation. Accordingly, the trial court erred in certifying the class and we reverse that part of the order.
Reversed and remanded for action consistent with this opinion. We do not retain jurisdiction.
See Booth v Auto-Owners Ins Co, 224 Mich App 724; 569 NW2d 903 (1997) (attendant care provided by family member is an “allowable expense” under subsection 3107[1][a] of the no-fault act); Reed v Citizens Ins Co of America, 198 Mich App 443; 499 NW2d 22 (1993) (family members may be compensated for room and board and maintenance costs provided to injured person in need of care who would otherwise be institutionalized); Botsford General Hosp v Citizens Ins Co, 195 Mich App 127; 489 NW2d 137 (1992) (recipient of no-fault personal protection insurance benefits can recover for replacement services such as mowing the grass, taking out the garbage, shoveling the snow, and grocery shopping provided by family members).
See Heinz, supra (the appointment of a guardian and conservator, and the services they performed for a person seriously injured in an automobile accident, were reasonably necessary to provide for the person’s care); Reed, n 1, supra (room, board, and attendant care are covered expenses); Davis v Citizens Ins Co of America, 195 Mich App 323; 489 NW2d 214 (1992) (cost of acquiring a van modified for use by a paraplegic insured was a covered expense); Sharp v Preferred Risk Mut Ins Co, 142 Mich App 499, 511-512; 370 NW2d 619 (1985) (rental expenses to accommodate an injured person after discharge from the hospital were reasonably necessary and thus compensable under the statute). See also Booth, supra; Botsford General Hosp, n 1, supra.
This Court refused to hold an insurer liable for mileage expenses related to the insured paraplegic’s use of a modified van, Davis, n 2, supra, and did not require an insurer to give the insured legal title to a newly constructed home designed to accommodate her limitations because such ownership was not necessary for the insured’s care. Kitchen, supra at 58-59. More recently, this Court held that increased office expenses as a result of an injured person’s limitations are not recoverable expenses “relating to ‘rehabilitation’ ” under subsection 3107(l)(a) and further opined that they were not recoverable as “care” or “recovery” expenses either. Maxwell v Citizens Ins Co of America, 245 Mich App 477, 483, 487 n 1; 628 NW2d 95 (2001).
While we note that there are alternative definitions to all these terms, we are persuaded that the definitions described above are appropriate to this discussion. | [
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Saad, J.
Plaintiff, Dennis Eggleston, as personal representative of the estate of Louisa Eggleston, deceased, appeals as of right from the October 25, 1999, order granting defendants Bio-Medical Applications of Detroit, Inc., and Fresenius Medical Care’s motion for summary disposition. We affirm.
1. NATURE OF THE CASE
In this medical malpractice case, we address an issue of first impression regarding the wrongful death “saving” provision that suspends the running of the statutory period of limitation until a personal representative is appointed to represent the estate. MCL 600.5852. Specifically, we address the question whether a successor personal representative, appointed after the death of the initial personal representative, has “his own” two-year period to file an action on behalf of the estate or, if not, whether the two-year period is tolled during the time that the estate is without a personal representative.
Here, the probate court issued letters of authority to plaintiff as successor personal representative of decedent’s estate approximately fifteen months after the original personal representative died and plaintiff filed the malpractice complaint almost three years after the alleged malpractice occurred. Plaintiff contends that he timely filed the complaint because the “saving” provision allowed him two additional years to do so, or, that the limitation period was tolled from the time the prior representative died until the court appointed a successor, plaintiff. We disagree and hold that, pursuant to the plain language of the statute, a successor personal representative does not acquire a new two-year period to bring an action on behalf of the estate and that, under these facts, the period of limitations was not tolled between the time the first representative died and a new representative was appointed.
n. FACTS AND PROCEEDINGS
The dispositive facts are undisputed. Louisa Eggleston died on June 22, 1996. Plaintiff alleges that she died as the result of defendants’ negligence in rendering dialysis treatment. Mrs. Eggleston received the treatment at a kidney dialysis clinic owned by Fresenius and operated by Bio-Medical. James Lawson, D.O., is a specialist in nephrology and is the chief executive officer of the clinic. According to plaintiff, in June 1996, Mrs. Eggleston made numerous complaints to dialysis workers about tenderness and swelling at the dialysis graft site on her left arm. Plaintiff further alleges that the dialysis workers continued to use the graft and failed to refer her for treatment. After Mrs. Eggleston completed her dialysis treatment on June 21, 1996, plaintiff claims she telephoned the clinic to report that the swelling and pain at the graft site had worsened. Plaintiff also states that defendants’ employees negligently failed to instruct her to seek immediate medical attention and that, as a result, Mrs. Eggleston died the following day.
On April 4, 1997, the probate court issued letters of authority to Donald Eggleston, Mrs. Eggleston’s husband, as temporary personal representative of Mrs. Eggleston’s estate to enable him to file an action on behalf of the estate. The court issued letters of authority to Donald Eggleston as personal representative on June 10, 1997, however, Donald Eggleston died of lung cancer on August 20, 1997. Thereafter, on December 8, 1998, the probate court issued letters of authority to plaintiff, Dennis Eggleston, as successor personal representative of the estate.
On June 10, 1998, before the probate court appointed plaintiff as successor, plaintiff’s attorney sent a “notice of medical malpractice claim” to BioMedical indicating that the personal representative intended to commence a medical malpractice action “against all medical practitioners who provided medical services to [Mrs.] Eggleston at [the clinic] during the week prior to June 22, 1996, for kidney dialysis.” The letter also states that Bio-Medical had to provide all relevant medical records within fifty-four days pur suant to “applicable Michigan statutes.” The parties agree that the notice did not set forth the allegations of the malpractice and, thus, did not comply with the requirements of MCL 600.2912b(4). Plaintiff also sent a subpoena for the medical records on October 8, 1998.
Bio-Medical did not forward Mrs. Eggleston’s medical records to plaintiff’s counsel. On April 1, 1999, plaintiff’s attorney again sent a letter to Bio-Medical requesting the decedent’s medical records and stating that he would file a motion for an order to show cause if Bio-Medical failed to produce the records within ten days. Fresenius sent a response on April 5, 1999, informing plaintiff’s counsel that, likely because of address and delivery errors, the April 1999 letter was the first record request received by Bio-Medical and that the records would be copied and forwarded.
On June 7, 1999, plaintiff’s attorney sent a notice of intent to file a claim against defendants for medical malpractice. This notice set forth the factual and legal basis for the medical malpractice claim in compliance with MCL 600.2912b(4). Counsel for Fresenius sent a response on June 25, 1999, stating that he was not aware of any previous notices served on Fresenius or Bio-Medical. Two days later, on June 9, 1999, plaintiff filed his complaint alleging that Mrs. Eggleston’s death was caused by defendant’s medical malpractice and included an affidavit of merit as required by MCL 600.2912d.
(4) The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the claimant.
(c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility.
(d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care.
(e) The manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice.
(f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim.
In lieu of filing an answer, Bio-Medical and Fresenius filed a motion for summary disposition pursuant to MCR 2.116(C)(7). Defendants argued that, because the alleged malpractice occurred on June 21, 1996, plaintiffs medical malpractice action, filed on June 9, 1999, is barred by the two-year statute of limitations. Defendants further claimed that the saving provision of MCL 600.5852 does not apply because plaintiff failed to file the action within two years after the probate court appointed Donald Eggleston as temporary personal representative of the estate on April 4, 1997.
In response, plaintiff argued that the estate could not take any action without the appointment of a personal representative and, therefore, the two years in the wrongful death saving provision did not begin to run until the probate court issued letters of authority to plaintiff as successor personal representative. Alternatively, plaintiff argued that the action was timely filed because the period of limitation was tolled from the date Donald Eggleston died to the date on which the probate court appointed Dennis Eggleston.
Following oral argument, the trial court granted defendants’ motion for summary disposition and adopted defendants’ arguments in support of its decision. Thereafter, plaintiff voluntarily dismissed James Lawson and James Lawson, P.C.
IE. ANALYSIS
A. APPLICABLE LAW
The statute of limitations for a wrongful death action is governed by the statute of limitations applicable to the underlying theory of liability. Poffenbarger v Kaplan, 224 Mich App 1, 6; 568 NW2d 131 (1997). Because plaintiff alleges a medical malpractice claim, the applicable statute of limitations provides that the action must be brought within two years of the accrual of the claim. McKiney v Clayman, 237 Mich App 198, 201; 602 NW2d 612 (1999); MCL 600.5805(5). A medical malpractice claim accrues at “ ‘the time of the act or omission which is the basis for the claim.’ ” McKiney, supra at 203, quoting MCL 600.5838a(l) as enacted by 1986 PA 178. However, MCL 600.5852 contains a “saving” provision applicable in wrongful death cases that states:
If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after the letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run.
In other words, “where a potential claimant dies within thirty days after the statute of limitations has expired or within the two-year period of limitation, the statute of limitations saving provision operates to suspend the running of the statute until a personal representative is appointed to represent the interests of the estate.” Lindsey v Harper Hosp, 455 Mich 56, 61; 564 NW2d 861 (1997).
B. APPLICATION OF THE LAW TO THE FACTS
Mrs. Eggleston died one day after the alleged medical malpractice occurred and, therefore, she died during the two-year period of limitation. Accordingly, the saving clause, MCL 600.5852, applies, giving the personal representative of Mrs. Eggleston’s estate two years to file a medical malpractice claim after the probate court issued the letters of authority.
As noted above, the probate court appointed Donald Eggleston as temporary personal representative on April 4, 1997. Because this Court has held that, under the saving provision, temporary personal repre sentatives have the authority to “perform essentially the same functions and to bear the same responsibilities as personal representatives,” Lindsey, supra at 66, Donald Eggleston could have filed an action against defendants any time before April 4, 1999. However, Donald Eggleston died on August 20, 1997, Alh months after his appointment and before he filed a claim. Fifteen months later, on December 8, 1998, the probate court appointed plaintiff as successor personal representative and he filed this claim on June 9, 1999, nearly three years after the malpractice accrual date and two years and two months after the probate court issued letters of authority to Donald Eggleston.
Plaintiff contends that he timely brought this malpractice claim because he filed it within two years after the probate court issued him letters of authority as successor personal representative. Specifically, plaintiff claims that the saving clause grants a successor personal representative a new two-year grace period to file a malpractice claim if the prior personal representative’s appointment is terminated through discharge, resignation, or death. To support his claim, plaintiff avers that the saving clause language referring to “the personal representative” who must file the lawsuit within two years after “the letters of authority are issued,” evidences the Legislature’s intent that the period of limitation begin to run when the probate court appoints the personal representative who files the lawsuit, rather than when the court first appoints a personal representative.
Unfortunately for plaintiff, to accept his argument we would have to give the saving clause an expansive reading, but the law requires that we give the saving provision a narrow reading. As this Court held in Lindsey, “[a]s an exception to the statute of limitations, the saving provision should be strictly construed.” Lindsey, supra at 65. Accordingly, we must reject plaintiff’s expansive reading of the saving clause that would allow a new two-year limitation period to begin after any successor personal representative is appointed. The plain language of MCL 600.5852 states that “the personal representative of the deceased” may commence an action “at any time within 2 years after the letters of authority are issued.” The Legislature could have employed, but did not, words suggesting that a new period of limitation begins after each set of letters of authority are issued or after the letters of authority are issued to the representative bringing suit.
Furthermore, the plain language of the saving clause refers to one set or “the” letters of authority, not multiple letters of authority. The statute applies to “the” personal representative, not “a” personal representative, which might suggest that any personal representative who receives letters of authority, initially or as a successor, has two years to file a claim. Clearly, if the Legislature had intended that the two-year grace period begin anew each time an appointment is terminated and a new appointment made, it could have easily done so by specifically stating as much. Absent language to that effect, we are bound to construe the saving provision strictly: the two-year limitation period begins when the probate court issues the letters of authority to the personal representative, regardless of whether the court later appoints one or more successor personal representatives.
Moreover, the interpretation of MCL 600.5852 that plaintiff urges is contrary to the well-established purpose of the saving clause and the limitation period. As our Court observed in Poffenbarger, supra at 9:
The primary purpose of courts in interpreting statutes is to discover and give effect to the intent of the Legislature. Statutes of limitation will be construed to advance the policy that they are designed to promote. While one policy is to afford plaintiffs a reasonable opportunity to bring suit, statutes of limitation also further “the sound public policy of establishing a time frame beyond which defendants will not be forced to defend.” [Citations omitted.]
Our Court has characterized the purpose of the saving provision as a way “to preserve actions that survive death in order that the representative of the estate may have a reasonable time to pursue such actions.” Lindsey, supra at 66. On the other hand,
[s]tatutes of limitation are designed to encourage the rapid recovery of damages, to penalize plaintiffs who have not been assiduous in pursuing their claims, to afford security against stale demands when the circumstances would be unfavorable to a just examination and decision, to relieve defendants of the prolonged threat of litigation, to prevent plaintiffs from asserting fraudulent claims, and to remedy the general inconvenience resulting from delay in asserting a legal right that is practicable to assert. [Sills v Oakland General Hosp, 220 Mich App 303, 312; 559 NW2d 348 (1996).]
Therefore, as a general rule, “Courts should uphold statutes of limitation unless the consequences are so harsh and unreasonable that they effectively divest a plaintiff of the court access intended by the grant of the substantive right.” Id.
Here, construing the statute according to its plain terms better serves the purpose of the saving clause by allowing a personal representative reasonable time to discover a decedent’s potential claims while protecting the underlying principles of the limitation period by encouraging the prompt filing of claims and relieving “defendants of the prolonged threat of litigation.” Id. Moreover, limiting the grace period to one two-year period encourages personal representatives to diligently pursue potential claims and encourages successor personal representatives to continue that diligence and to make use of information already gathered by the original representative.
We also believe that construing the statute as written does not result in consequences “so harsh and unreasonable” that it denies the personal representative court access. The record reflects that Donald Eggleston contemplated filing a lawsuit when the probate court appointed him as temporary personal representative and he had reasonable time thereafter to pursue the claim. Furthermore, plaintiff did not petition the court to become successor personal representative until fifteen months after Donald Eggleston’s death. While Donald Eggleston’s death may have been unexpected, plaintiff’s delay in petitioning for letters of authority was well within plaintiff’s control. To allow an additional two years from the time plaintiff chose to seek his appointment to pursue a malpractice claim would be tantamount to sanctioning his tardiness and would encourage personal representatives to sit on the rights they could assert on behalf of the decedent.
For similar reasons, we reject plaintiff’s alternative argument that, if the saving clause period of limita tion began to run when the probate court issued letters of authority to Donald Eggleston, it was tolled during the fifteen-month period when the estate had no personal representative.
Plaintiff cites Wright v Estate of Treichel, 36 Mich App 33; 193 NW2d 394 (1971), in support of his claim. In Wright, the administrator of the defendant-estate died 3V2 months after his letters of authority were issued. Id. at 35-36, 39. This Court held that the plaintiffs’ service of the complaint on the attorney for the estate was defective because a successor administrator, the proper party to the suit, had not been appointed and because the attorney-client relationship between the administrator and his attorney had ceased with the death of the administrator. Id. at 35, n 1, 36-37. However, this Court also held that, because an administrator is essential for obtaining jurisdiction over an estate, the period of limitation was tolled while the estate was without an administrator. Id. at 39.
Later, in Turner v Mercy Hosps & Health Services of Detroit, 210 Mich App 345; 533 NW2d 365 (1995), the probate court issued letters of authority to the plaintiff as personal representative on February 13, 1990, but suspended the appointment on May 13, 1991, for the plaintiff’s failure to file an estate accounting. Id. at 347-348. The probate court reappointed the plaintiff on May 7, 1992, and she filed the wrongful death claim on June 4, 1992, more than two years and four months after the court issued the original letters of authority. Id. at 347.
Relying on Wright, the plaintiff argued that the period of limitation was tolled while her letters of authority were suspended and that, before 1992, she had no reasonable cause to believe that the defendants’ malpractice caused the decedent’s death. Id. at 347. This Court disagreed and held that the tolling of a limitation period implies “the existence of an obstacle that is beyond the control of the plaintiff, such as a legal disability or affirmative act on the part of another person that prevents the timely bringing of a claim.” Id. at 350. This Court further stated that, as a general rule, a limitation period is tolled only by a substantive restriction on the plaintiff’s ability to bring an action in a timely manner, not by mere procedural or technical irregularities the correction of which is within the control of the plaintiff. Id. This Court distinguished the holding in Wright, and observed:
While, the plaintiffs in Wright had attempted to bring suit against the defendant estate, plaintiff here is the estate’s personal representative, who is attempting to bring suit against defendants over whom personal jurisdiction is not an issue. Thus, while the plaintiffs in Wright were prevented from commencing the lawsuit by an event beyond their control — i.e., the death of the estate administrator — no such obstacle prevented plaintiff here from commencing a timely lawsuit against defendants. Indeed, it is undisputed that plaintiff’s original letters of authority were suspended when she, or her attorney acting on her behalf, failed to file a required estate accounting. Plaintiff’s apparent negligence does not constitute a tolling act or event. [Id. at 351-352.]
Here, as in Turner, plaintiff is the personal representative attempting to bring suit and plaintiff was not prevented from bringing the lawsuit by an event beyond his control.
While we appreciate that Donald Eggleston’s death was tragic and beyond the control of the decedent’s family, no “legal disability or affirmative act” by another person prevented plaintiff or the decedent’s family from petitioning the court to appoint a new personal representative in order to timely file this claim. Further, no court delay or other legal impediment caused the delay. In fact, the court appointed plaintiff as successor personal representative on the very day he petitioned for his letters of authority. Accordingly, though we sympathize with the family for the circumstances that required them to seek the appointment of a new personal representative, the decision to wait fifteen months to seek the appointment was a matter within plaintiff’s or the family’s control.
For these reasons, we affirm the trial court’s order granting summary disposition to defendants. The action was filed more than two years after the probate court issued letters of authority to Donald Eggleston as temporary personal representative and the grace period was not tolled during the period between Donald Eggleston’s death and plaintiff’s appointment as successor.
Affirmed.
MCL 600.2912b(4) provides:
Defendants also claimed that plaintiff failed to wait 182 days after serving his notice of intent to sue before commencing the action as required by MCL 600.2912b(l) and that plaintiff could not take advantage of the tolling provision of MCL 600.5856(d) because the limitation period had already expired before the notice was sent.
This Court reviews a trial court’s decision to grant a motion for summary disposition under MCR 2.116(C)(7) de novo to determine if the moving party was entitled to judgment as a matter of law. Rheaume v Vandenberg, 232 Mich App 417, 420-421; 591 NW2d 331 (1998). In reviewing a motion under this rule, we consider all affidavits, pleadings, and other documentary evidence submitted by the parties and construe the pleadings in favor of the nonmoving party. Id. at 421. Further, absent a disputed issue of fact, the determination whether a cause of action is barred by a statute of limitations is a question of law that this Court reviews de novo. Colbert v Conybeare Law Office, 239 Mich App 608, 613-614; 609 NW2d 208 (2000). We also review the interpretation of a statute de novo as a question of law. Id. at 614.
On rehearing, this Court affirmed the trial court’s dismissal of the plaintiffs’ claim after learning that they had failed to serve a successor administratrix who performed those duties for eight months after her appointment by the probate court. Wright v Estate of Treichel (On Rehearing), 47 Mich App 626; 209 NW2d 806 (1973). Though she was appointed after the plaintiffs filed the complaint, this Court found the plaintiffs’ failure to serve her was unreasonable, particularly because they were “aware of the absence of an administrator and the attendant service of process difficulties connected therewith.” Id. at 629.
Because we affirm the trial court’s grant of summary disposition on statute of limitations grounds, we decline to address plaintiffs remaining claim regarding appropriate notice. | [
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Hooker, C. J.
The plaintiff entered defendant’s train at Detroit. The first stop regularly made upon this road is at a junction with the Lake Shore road some distance from the starting point, but within the city. Some blocks before reaching the junction, the road crosses Farnsworth street. Demand was made upon plaintiff for his fare, which he refused to pay, and when the train made its first stop (according to the testimony of the witnesses upon the train) he was told by the conductor that he must get off. He had not yet sat down in the car, according to some of the testimony, and he walked to the door, down the steps, and alighted without assistance. He was left upon the grouúd, the conductor staying with him until the train passed, when he mounted the rear platform. The conductor and trainmen say that this occurred at the Lake Shore junction, and the only testimony said to show the contrary from witnesses on the train is that of two of plaintiff’s witnesses, — DeConick, who said he did not know where it was, but that it was at the first stop; and Adcock, who testified that he thought he was put off at the first stop; that he knew the train stopped at Lake Shore junction, but did not think plaintiff was put off there, because he saw no lights where he was put off. Two other witnesses testified to seeing a passenger train stop about 50 feet north of Farnsworth street, where a man was put off. The witnesses stood on Farnsworth street, and one or both of them stated that the rear end of the train passed them about the time the man got to them as they stood near the flagman’s house on Farnsworth street. He came up to them as they stood by the shanty, 25 or more feet east of the track, and one said that he asked the way downtown, and" both stated that he was told to come with them, and they would put him on a car going downtown. This he did not seem inclined to do, and he was left standing by the shanty. They agree that it was about 9 p. m. One of them, said that he read the next morning of an accident at Farnsworth street corner to a man named Gaukler. The other heard of it two or three days after seeing the man. One was a constable and the other a deputy sheriff. Both said the man was drunk, and agreed that they did not see anything to indicate that he could not take care of himself. We think this testimony was sufficient to make the place where plaintiff was put off a disputed question, and therefore we must assume that the plaintiff’s claim that he was put off at Farnsworth street was accepted by the jury.
The next person who saw this man was the engineer of another train. He was walking between two tracks on the railroad right of way, and was struck by the engine as it passed by him, and injured. This was 100 or 200 feet from where he alighted from the train, and south of Farnsworth street. The negligence complained of is— First, leaving him in a place of danger; second, abandoning him to look out for himself at a time when he was incapable of doing so by reason of his intoxication.
The testimony of these two officers is all that shows that the man was put off near Farnsworth street, instead of at the Lake Shore junction, and they agree that he left the track, and went with them to the flagman’s shanty, 25 or 30 feet east of the tracks. We may treat the case, then, as though he had been left at that point, and taken 25 or 30 feet from the tracks, in a public and well-frequented street in the city, and left in the presence of two citizens, and the question of the fitness of the place where the train stopped is eliminated. In this respect the case is like that of Hamilton v. Railroad Co., 183 Pa. St. 638 (38 Atl. 1085), where one walked back'to a station after being carried by, and was there injured. The court said it was as though he had gotten off at the station.
Plaintiff’s counsel insist that it must be left to the jury to say how drunk the man was, and whether, under the circumstances, it was negligence to put him off. We should add to that, “And leave him 25 feet east from the tracks on a public highway, in the presence of two officers, who were conservators of the peace.” The evidence in this case is practically undisputed.- Evexy witness who testified said that the man could walk and could talk. He knew that fare was required of him, and he insisted that the conductor should carry him for the same fare that the electric line charged; and, when he was informed that he could not do so, he refused to pay more, and at once acquiesced in the conductor’s demand that he leave the train. He alighted unaided. He then left the track to go to Detroit, found some citizens and inquii’ed the way, but declined to go with them. All knew that he had been drinking, — perhaps considered him drunk, — but the testimony of no one indicates that he was unable to care for himself. All, from the saloon keeper — who testified that he was in the'habit of keeping track of his patrons’ trains, that they might not miss them, so that they might freely drink all that they were disposed to buy, and who obligingly assisted them to their respective trains — to the last man to talk to him, agree that he was able to care for himself, though drunk. There is nothing’on this record to make it incumbent on this conductor to do more than to see that this man, in his apparent condition, left the railway premises, and was talking with citizens 25 feet away from a point of danger. If there was any negligence at any stage of the proceeding, — -which we do not intend to intimate, — it ceased as a factor in this case when the plaintiff left the premises and reached a place of safety.
It is unnecessary to cite and discuss the numerous cases which counsel have cited in their briefs. Each rests upon its own facts, as this one must do; and the rule that, wherever a claim of negligence is made, the case must be given to a jury, though the undispted facts conclusively show an absence of negligence, does not obtain in this State, as numerous decisions show. A verdict for defendant should have been directed.
The judgment is reversed, and a new trial ordered.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Grant, J.
( after stating the facts). This suit was properly launched. No application to the court for leave to bring suit is required. Chancery Rule No. 31; 3 Comp. Laws, §§ 10841, 10842. A judgment creditor is entitled to maintain a bill to seek assets to satisfy his judgment and execution. Turnbull v. Lumber Co., 55 Mich. 387, 392 (21 N. W. 375); Young v. Iron Co., 65 Mich. 111, 127 (31 N. W. 814). Other creditors can come in under such a proceeding if they so desire, and the court may make an order for serving notice upon them. A judgment creditor is under no legal or moral obligation to bring in other creditors. He may proceed to secure his own rights independent of them. The bill in this case is substantially the same as that in Young v. Iron Co.; the only difference being that in that case the receiver in his petition stated that he instituted the suit for himself and other creditors who should choose to come in, while this bill contains no such allegations. The bill, however, is broad enough to include other creditors who may choose to come in, for one of the prayers is that the debts of the defendant company may be ascertained and decreed.
Was the C. C. Wormer Machinery Company entitled to the judgment it took? The title to the machinery did not pass, but was expressly reserved in the vendor. The vendor retook it under its contract, and, as stated by counsel for complainant, who was the attorney for the Wormer Company, “sold the property for its then value, ‘the then selling price, which was all that we could get for it,’ applied the amount on the notes, and brought suit against the Elevator Company for the balance. ” The record is conclusive that the judgment was taken for the difference between the contract price and the estimated value when retaken.
In Perkins v. Grobben, 116 Mich. 172 (74 N. W. 469, 39 L. R. A. 815, 72 Am. St. Rep. 512), the contract provided that the title should not pass until full payment, and that all payments made on the notes which were given for the purchase price should be deemed “to be payments for the use, wear, and tear of the property up to the retaking thereof.” There is no substantial difference between the above provision of that contract and the one in this providing that the monthly rental value of the property was $750, if such provision be conclusive as ■an implied contract to pay that amount as rental if the vendor should retake the property. In that case money had been paid, while in this case none had been paid. But that difference cannot change the rule of law. The notes were given in consideration of the property contracted to be sold. When the property was retaken under the contract, there was no longer any consideration for the notes. The only remedy open to the vendor in such case is to sue for the rental value, or bring a suit for damages for nonperformance of the contract. He cannot bring suit to recover the purchase price, or any part thereof. A defense upon this ground would, therefore, have been fatal to the plaintiff’s right of action, based upon the theory upon which the judgment was rendered. The judgment is, of course, valid as against the defendant Elevator Company, and is not open to a collateral attack by it. The judgment could only be set aside by that company upon a direct proceeding for that purpose.
It is also urged that the judgment should be sustained because judgment for a larger amount might have been rendered for the rental of the property, and therefore the stockholders are not prejudiced. Counsel for the defendants, challenge the right to recover the rental during the time claimed by the complainant. Upon this question, as well as upon the construction of the contract, the defendant company was entitled to be heard in the suit at law. A judgmentrendered upon an illegal basis cannot be sustained because one might have been rendered upon a legal basis.
It is claimed that the Wormer Company retook this property by agreement. Whether Mr. Moore, the president of the company, had any authority to make such an arrangement, we need not consider. All Mr. Moore said to the agent of the Wormer Company was to advise him that he had better take back his property, and dispose of it. This did not make a new contract. It was advice simply to the company to take advantage of the contract it had made.
Is the judgment conclusive against a' stockholder ? While it is the general rule that judgments against corporations are conclusive upon the stockholders, an exception is equally well established in cases where judgments are rendered through fraud or collusion, or without jurisdiction. 3 Thomp. Corp. §§ 3392, 3400; 2 Mor. Priv. Corp. § 865; 1 Cook, Corp. § 209; Bohn v. Brown, 33 Mich. 257, 263. In Bohn v. Brown this court said:
“ If the proceedings against the corporation should appear to be tainted by fraud or collusion between the-claimant and the corporation, the judgment would not be good as inducement, or as an adjudication to fix the liability of the stockholder through it, or to fix the amount, and the suit against the stockholder would fail inevitably.”
This exception is approved in the following cases: Irons v. Bank, 36 Fed. 843; Schrader v. Bank, 133 U. S. 67 (10 Sup. Ct. 238); Slee v. Bloom, 20 Johns. 669; Warrington v. Ball, 33 C. C. A. 609, 90 Fed. 464; Saylor v. Banking Co., 38 Or. 204 (62 Pac. 652); Ward v. Joslin, 44 C. C. A. 456, 105 Fed. 224.
In Schrader v. Bank judgment was rendered against the bank on a contract of guaranty. In a suit against the stockholders to enforce their liability as such, it was held that they could go behind the record of the judgment, and show that the guaranty of the bank had been released by the release of the principal debtor before judgment was taken against the bank. In Slee v. Bloom, it was said that a judgment “is not of itself, as res judicata, binding on the stockholders, if it was procured by fraud, or is founded in error.” In Warrington v. Ball the defense set up was that the judgment was obtained by collusion between the plaintiff and the representatives of the bank, and that the certificate of deposit on which the judgment was based was issued for money furnished to the cashier personally. The judgment was held not to be conclusive upon the stockholders. The opinion says:
‘ ‘ To bind one by a judgment to which he is not a party, as provided for by the statute, is barely tolerable. To bind him by such a judgment obtained by fraudulent collusion would be intolerable.”
In Saylor v. Banking Co. the judgment against the corporation was based upon a promissory note executed by the president and secretary of the corporation to the president, and plaintiff sought to enforce payment of the .judgment by assessments against the stockholders for unpaid subscriptions. It was held that they could attack the validity of the judgment upon the ground that the execution of the note had not been authorized by the directors. See, also, Mandeville v. Reynolds, 68 N. Y. 528, and Conway v. Duncan, 28 Ohio St. 102, in which judgments were held not conclusive.
We think the principle approved in these decisions is sound, and that when a stockholder can show, even aliunde the record, that the judgment is wholly void, he may do so as a defense to his liability as a stockholder.
We might rest here without determining the important questions raised as to the value of the assets which comprised the value of the capital stock issued as fully paid, and as to the liability of the original and subsequent stockholders, but the record and briefs are mainly devoted to these questions. There are other creditors of the defendant corporation who are entitled to come in, prove their claims, and enforce the liability of the stockholders, if there is any. The parties have been subjected to large and expensive litigation, which ought to be brought to an end. We should, therefore, dispose of these questions.
The duty of the corporators in putting in property as paid-up capital stock is fully stated in Moore v. Universal Elevator Co., and needs no further discussion by us. The original incorporators exercised no judgment whatever upon the value of the assets transferred to the corporation by Schoonmaker Bros. & Co. as worth $63,250, and for which stock was issued to that amount as fully paid. No one asked, and no one volunteered an opinion, as to their value. Moore, Stanton, and Brotherton, the only original incorporators of any financial responsibility, testified that they did not ask or consider the value of the assets. They considered themselves as mere dummies to sign the articles of incorporation, make the solemn assertion and certification that stock of the value of $63,250-had been actually paid in, and that they each had subscribed for a certain number of shares. They believed that they could immediately transfer their stock to the Schoonmaker Bros, without incurring any liability whatever. They testified that an attorney, who was present, so advised them. This attorney was not produced as a witness. Frank E. Schoonma'ker was not a witness. James N. Schoonmaker testified that he did not know the value of these patent devices. This case, therefore, affords no room for the application of the rule of Young v. Iron Co., 65 Mich. 111 (31 N. W. 814), that “corporators are not responsible for an honest error of judgment, or a mistake, in placing a valuation upon property appropriated or used as capital,” and as approved in Graves v. Brooks, 117 Mich. 424 (75 N. W. 932). In cases where the incorporators passed no judgment upon the value of the assets turned in as capital stock instead of money, the only course left open to courts, when called upon to determine whether the stock has been fully paid, is to ascertain the actual value of the property which was turned in as capital stock, and hold that the stock is only paid to the extent of the value of the property so found. This brings us to ■ the question of the value of these assets.
We found in Moore v. Universal Elevator Co. that the property conveyed was not worth the amount stated in the articles.of association, and that as to the Schoonmakers and Hultgren it was a fraud in fact, and that as to the other parties it was a fraud in law, if not in fact. The assets put in to form a corporation with $63,350 of capital stock fully paid in are as follows: Elevator patents, $37,000; business of the Otto Gas-Engine Company, $10,000; factory and property, $15,500; business incidental with mechanical engineering, $10,750.
Schoonmaker Bros. & Co. were agents for the Otto Gas-Engine Company. That agency was revocable at any time. Schoonmaker Bros. & Co. could not transfer it to the Elevator Company without the assent of the Gas-Engine Company. There is no evidence of any such arrangement with that company, or any agreement .that the Gas-Engine Company would accept the Elevator Company as its agent. It may be inferred from the. record that the Gas-Engine Company raised no objection to the' Elevator Company’s acting as its agent during the time the latter carried on business. It appears from the depositions of the officers of the Otto Gas-Engine Company that the commissions paid- Schoonmaker Bros. & Co. were as follows: 1893-4, $337.90; 1895, $1,043.34; 1896, $1,399.91; 1897, $1,160.73. Out of this, however, were to come Schoonmaker Bros. & Co.’s expenses, and it is not shown how much these were. At the same time Schoonmaker Bros. & Co. were selling elevators for Morse, Williams & Co., of Philadelphia, and had the exclusive agency for the Variety Machine Company, a manufacturer of hand elevators. Is a revocable commission agency, yielding from $300 to $1,400 a year, worth $10,000 as part of the capital stock of a corporation organized for another and entirely different purpose ? If this contention were sustained, it would result that three or more agents, having no tangible property, might form a manufacturing corporation of $20,000 to $100,000, fully paid up, by simply putting in their revocable agencies as salesmen. This is not the tangible property which the statute requires to constitute a part of the paid-up capital stock of a corporation. It was an intangible asset, of no value whatever to the creditors of the Elevator Company.
“Business incidental with mechanical engineering, $10,-750.” No tangible property whatever, except perhaps $150 worth of tools used by Schoonmaker Bros. & Co., was included in this asset, and I find no evidence that these tools became the property of the corporation. Schoonmaker Bros. & Co. employed from three to five men in connection with their business as agents for the three companies, viz., the Gas-Engine Company, the Variety Machine Company, and Morse, Williams & Co., for -whom they sold elevators.. Naturally, Morse, Williams & Co. would not employ the Elevator Company to act as their agent when it was engaged in a rival business. James N. Schoonmaker testified that this item “was for our business as experts; our ability to carry on the business ; our skill. It didn’t represent any tangible property. There was no contract made by which we-were to work for the company.” Mr. Schoonmaker was unable to tell whether there was any profit in the agency, and, when asked upon what he based or computed the agency to be worth $10,000, replied, “As to the possibility there was in the business we were doing.” What is the cash value of a possibility, and that a possibility which Schoonmaker Bros. & Co. had not contracted to continue for the benefit of the corporation?
Within four months after the making and filing of these articles of association, the directors of the Elevator Company made and filed a statement of their assets and liabil ities, in which these two items disappeared as a part of the capital stock. In that statement the only assets are: Cash paid in, $17,000, and five United States patents, $46,250. Not only was this done, but the stock issued for the item of “Business incidental with mechanical engineering” was surrendered and canceled. To hold that this action on the part of the incorporators was in compliance with the statute, which, 'under the decision in Young v. Iron Co., at least requires that the incorporators pass an honest judgment on the value of the assets put in as capital stock, would defeat the purpose of the statute, and render it utterly valueless. If the statute required the articles of association to state the property put in as capital stock, it .might be held that creditors should deal with the corporation at their own risk. But until the legislature sees fit to enact such a provision, incorporators must be required to act in good faith in placing values upon property put in as a part of paid-up capital stock, and the right of those dealing with the corporation to rely upon these solemn statements must be preserved.
There was no factory in existence at the time the company was organized, but it had bonus subscriptions, amounting to something like $8,000, and a bonus subscription of an acre and a half of ground on which to place the factory. There was no other property at that time, except those bonuses.
The one-third interest in the patents, which was turned in at $27,000, consisted of a one-third interest in five devices used in making elevators. There were other devices used by other companies designed to accomplish the same purposes. Mr. Hultgren, the patentee, and Mr. Ellithorpe, who was interested with him, estimated these devices as worth much more than the interest conveyed by Mr. Hultgren to the Elevator Company through the Schoonmakers. An attorney, an expert in patents and their value, testified that these devices were of little value. As against these ■opinions, what are the facts ? Mr.' Hultgren sold one shop right to a company in Springfield for $200. This gave that company the right to manufacture only in Springfield, but the right to sell anywhere in the world. He also received, for a similar right, about $200 or $300 from an elevator companyin Chicago, in 1891-92. He has received no royalty since, because that company ceased to use the device. He was employed by the Michigan Elevator Company at a salary of $2,000, requiring him to devote his whole^time to the business. This salary included the right to use his devices. He worked for an elevator company in Toledo at $1,800 a year, which included his services and the use of one of his devices. Mr. Hultgren refused to sign the articles of association, “ because I couldn’t see where any money would be forthcoming by which it would place us in a position to manufacture; ” and that, although the assets, in his judgment, were worth $63,000, yet they would not give the company any credit. If,these patent devices are of the value placed upon them by Hultgren and Ellithorpe, the receiver ought to be able to sell a one-third interest in them for something; but none of the parties to this litigation have seemed to regard them as of sufficient value' to justify an attempted sale, and no one has offered to buy such valuable property. These facts are much more convincing than the opinion of interested parties. I reach the same conclusion that was reached in Moore v. Universal Elevator Co., that these devices were practically worthless.
It is urged on behalf of Moore, Stanton, and Brother-ton that they had transferred their stock before the debt of the Wormer Company was contracted, and that therefore they are not liable. No question of the bona fide transfer of stock is involved. The question is, Can original incorporators make a false statement as to the amount of capital stock actually paid in, and escape liability for such false representations, immediately after executing the articles of association, by transferring their stock to other parties ? The wrong was done by the original incorporators in making a false statement as to the amount of stock actually paid in. The public, and creditors dealing with the corporation, had the right to rely upon this statement as true. Subsequent purchasers of stock were also entitled to rely upon it as true. It would be unjust to visit the sins of the original incorporators upon subsequent stockholders who purchased in good faith. It would be a disgrace to the law if creditors, dealing with the corporation in reliance upon these statements, which they examine in the public offices, where they are on file, had no remedy. Justice and good morals require that they who make such false statements, whether they make them intentionally or, as in this case, recklessly, should respond in damages therefor. The law does not permit them to evade this liability by a transfer of their stock.
I think the decree should be modified in accordance with this opinion, and the case remanded, with directions to the receiver to sell the interest in the patent devices, if a purchaser can be found, and to apply the proceeds thereof in payment of the judgment in favor of the Wormer Company, and to proceed under the order and direction of the court below to assess the original incorporators to pay other debts, should any be proven; but my brethren think the decree should be sustained, with costs, and it is so ordered. | [
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] |
Montgomery, J.
Plaintiff boarded defendant’s car in Detroit, paid bis fare to Wayne, and received a check or ticket in receipt for it. Conductors were changed before the car reached Wayne, and plaintiff testified that he presented the check given him by the first conductor to the second conductor. The conductor informed plaintiff that the ticket was not good, and, on plaintiff’s refusing to pay his fare, ejected him from the car. A ticket was received in evidence, which the conductor testified was the one in question, and which obviously did not entitle plaintiff to ride from Detroit to Wayne. One of defendant’s assignments of error relates to the refusal of the court to charge that the ticket offered by plaintiff was not good between Detroit and Wayne. We think plaintiff’s testimony on this point was in conflict with the theory of the request to charge, and that the request was properly modified by the statement that it was true if the ticket received in evidence was the one given the conductor by the plaintiff. Plaintiff again boarded the car, paid his fare again, and, it was testified, demanded the return of the ticket, which was refused. A few minutes later plaintiff went to the rear platform, where the conductor was, and again demanded the return of the ticket. In an altercation which ensued the conductor struck the plaintiff, and inflicted the injuries sued for.
The principal contention of the defendant is that the company is not liable for this act of the conductor, because not within the scope of his authority. We think the rule relieving the master from liability for a malicious injury inflicted b'y his servant when not acting within the scope of his employment does not apply between a common carrier of passengers and a passenger, and that it is the duty of the carrier to protect its passengers against injury from the willful misconduct of its servants while performing the contract to carry. See Haver v. Rail road Co., 62 N. J. Law, 282 (41 Atl. 916, 43 L. R. A. 84, 72 Am. St. Rep. 647); Dwinelle v. Railroad Co., 120 N. Y. 117 (24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611); Bryant v. Rich, 106 Mass. 189 (8 Am. Rep. 811); Hanson v. Railway Co., 75 Ill. App. 474; Atchison, etc., R. Co. v. Henry, 55 Kan. 721 (41 Pac. 952, 29 L. R. A. 465); Dillingham v. Russell, 73 Tex. 51, 52 (11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753).
The court instructed the jury that the circumstances occurring before plaintiff’s return to the car were material only as they bore on the credibility of the witnesses, and that the plaintiff could not recover if he provoked the assault or was the aggressor. We think this sufficiently favorable to defendant, and that other parts of the charge complained of could not have prevented the jury from understanding that it was the rule which must govern the case.
The action was brought in the circuit court, and the jury awarded plaintiff $100 damages. Defendant asked for judgment for costs. This was refused. The declaration' states the form of action as trespass on the case, but sets forth the acts constituting the wrong complained of. The statute (3 Comp. Laws, § 11258) provides :
“ If the plaintiff in an action for assault and battery, or false imprisonment, or for slanderous words, or for libel, recover less than fifty dollars, such plaintiff shall recover no more costs than damages.”
It is contended that this case does not fall within the statute, as the action is brought against the corporation, and not against the conductor. Nevertheless the action is one for an assault and battery, and comes within the express words of the statute.
Judgment affirmed.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Per Curiam.
This suit is the companion of Ellis v. Ballou, decided January 28th last, and reported in 129 Mich. 303 (88 N. W. 898). The suit is based upon two promissory notes, given and held under precisely the same circumstances as were the notes in the other suit. Both counsel make their arguments in that case the arguments in this. The appellants in their brief ask for the same ruling in this case as in the other. That case, therefore, is controlling, and further discussion is unnecessary.
The judgment is affirmed. | [
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Hooker, C. J.
The city of Detroit assessed personal property of the defendant within the city, and levied a tax against it, for the year 1899. The property consisted of personalty used in defendant’s business of telegraphing, and the taxes levied included city, school, highway, and police taxes. This action of debt was brought by the city to enforce payment. The plea alleges that defendant had been previously assessed on all of its personal property for the year 1899 in accordance with the provisions of Act No. 179 of the Public Acts of 1899, and that it paid the tax levied as required by that act. The court held that the levy upon which this action was brought was void, and gave judgment for the defendant, and the city has appealed.
It appears to be conceded that a law passed in 1851 imposed a specific State tax upon telegraph companies. This act continued in force until 1879, when an act was passed providing for the assessment of telegraph and telephone companies. It contained a clause repealing all acts and -parts of acts inconsistent therewith. In 1881 a similar act was passed, containing some modifications, and repealing the law of 1879 and all acts and parts of acts inconsistent with the new act of 1881. Under our Constitution, specific taxes must be applied to the educational fund, and that was done with all taxes raised under these acts until the year 1899, when Gov. Pingree sought to have them applied to other purposes, upon the claim that they were not specific taxes, inasmuch as they were assessed upon an ad valorem basis. His contention was sustained to the extent of holding that the taxes were not specific taxes, but the court held that the act of 1881 was unconstitutional, for reasons stated in the opinion; and these reasons would be equally applicable to the law of 1879. Pingree v. Auditor General, 120 Mich. 95 (78 N. W. 1025, 44 L. R. A. 679). Notwithstanding the fact that it is obvious that the laws of 1881 and 1879 were ineffective to create a method of assessment and the collection of taxes, counsel for tfie city maintain that they were effective to repeal the law theretofore existing, i. e., the statute of 1851. In other words, they would sustain the acts to the extent of the repealing clauses, and no further, and upon this theory they seek to tax the property of the defendant under the general tax law of the State.
We have often applied the rule that an act may be sustained in part, where we can reasonably say that the portions held valid are adequate to accomplish the legislative intent, but never when it is clear that they are not. The apparent intent of these two acts was not to change the rule by which the telegraph companies paid taxes to the State in lieu of all other taxes, but simply change the basis upon which the tax was computed. It is evident that there was no design to relieve them from the payment of any tax, and it is equally clear that ikwas not the intention to have them taxed under the general tax law. To hold, notwithstanding these facts, that the pre-existing statute was repealed, and thereby make telegraph companies liable to pay a tax under the general law, would do violence to the rule above stated. No one can doubt that the only reason for the repeal is to be found in the invalid provisions for taxation provided by those acts. We think, therefore, that the repealing clauses must fall with the acts of which they are parts. See Campau v. City of Detroit, 14 Mich. 276; Blades v. Board of Water Com’rs of Detroit, 122 Mich. 381 (81 N. W. 271).
The judgment is affirmed.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Moore, J.
This is an action of replevin to recover the possession of horses, the ownership of which is claimed by the respective parties. The giving of the following paper was part of the transaction:
‘ ‘ Memorandum of agreement made and entered into this fifteenth day of December, 1897. It is hereby understood and agreed that, inasmuch as C. A. Van Slyck & Sons are desirous of purchasing two pair of horses of Jacob Ullman, and in order that said Van Slyck & Sons can obtain said horses, the Sparrow-Kroll Lumber Co. agree to and do pay said Jacob Ullman the sum of five hundred and five dollars ($505.00) for said horses: Provided, however, that the said horses so purchased shall be the property of the said Sparrow-Kroll Lumber Co. until fully paid for by said Van Slyck & Sons, and, in case said Van Slyck & Sons fail to pay said Sparrow-Kroll Lumber Co. on or before May 1st, 1898, said Van Slyck & Sons agree to deliver on demand said horses in good condition to said Sparrow-Kroll Lumber Co.
[Signed] “C. A. Van Slyck & Sons.”
In September prior to the making of this paper, Van Slyck & Sons entered into a written agreement with plaintiff to cut, skid, and haul certain'logs for them. It is claimed by the plaintiff that, to enable Van Slyck & Sons to carry out this agreement, the horses in controversy were purchased, and were to be paid for out of the proceeds of the lumber contract, and that the teams were never paid for, but Van Slyck & Sons still owe plaintiff over $1,700. It is the claim of defendant that Van Slyck & Sons desired these horses, and asked Mr. Kroll to aid them in buying the teams; that Mr. Kroll suggested the lumber contract could probably take care of itself; and it was then agreed that if Van Slyck & Sons would sell to plaintiff certain logs they owned, at $6 and $7 per thousand, plaintiff would buy the teams, and apply the proceeds of the logs in payment for the teams; and that under this agreement more than enough logs were delivered to pay for the teams.
The testimony was in sharp conflict. The jury returned a verdict in favor of defendant. The only assignments of error relate to the charge of the court. The court permitted the plaintiff to show its entire account with Van Slyck & Sons, and that Van Slyck & Sons were largely indebted to the plaintiff when these teams were bought. Complaint is made of what the judge said in his charge about this account. Particular stress is laid on the following language:
“Something was said in the progress of the case about the equities of the case being entirely with the plaintiff. I wish to say to you, gentlemen, that the balance as testified to on the general account between the plaintiff and the defendant, as existing in November and December, 1897, and the final balance, have absolutely nothing whatever to do with this case. That is a question that must be determined in another suit. The only possible bearing it could have would be to show the contract relation of the parties at the time the bargain with regard to the horses was made; that they were having other deals, some of them having been reduced to writing, and some of them without writing, oral bargains; and you will take all the circumstances together, so far as they bear op the single question of ownership. That is the only one. Let us put everything else out of our mind.”
We cannot understand fully the charge without reading what immediately preceded this statement. It was as follows:
“If you find that it was agreed or understood that the logs sold by Van Slyck to the plaintiff were to be applied in payment of the purchase price of the horses, then all matters relating to the lumbering contract of September 25, 1897, and the state of the accounts between the parties, or the claim that Van Slyck, or his firm, is now indebted to the plaintiff, are immaterial, and have nothing to do with the question of the ownership of the horses. The plaintiff has no claim or lien upon the horses as security for, or by reason of, any indebtedness to the plaintiff, and the question of such indebtedness is immaterial in this case, except in so far as it may have a bearing upon the question as to whether the purchase price of the horses was paid, and you will not consider the question of such indebtedness as having any application to this case except on that one question. In determining the one question as to the ownership of the horses, the testimony with regard to .the circumstances and surroundings of the parties at the time they entered into the contract should appear before the jury, in order that you may better determine that one question. But the question of who was the owner of the horses is the only one for us to determine. ”
The court gave plaintiff’s second request as follows:
“ The undisputed evidence shows that the horses in controversy in this case were to remain the property of the plaintiff until paid for. If you find from the testimony that the horses have not been paid for by the defendant, or any one in his behalf, you will return a verdict for the plaintiff. ”
We think it clear the jury were made.to understand that if the horses were to be paid for from the proceeds of the logs, and sufficient logs were delivered to pay for them, the condition of the other portions of the account was immaterial ; but, for the purpose of learning what the agreement was, the account might be taken into consideration. We do not think the jury could have misunderstood the charge.
The case was tried with exceptional fairness. The legal questions involved were stated clearly. The question of fact was in dispute. It was fairly submitted to the jury, who decided it in favor of the defendant, and we cannot disturb their verdict.
Judgment is affirmed.
Hooker, C. J., and Montgomery, J., concurred. Long and Grant, JJ., did not sit.. | [
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Grant, J.
(after stating the facts). The writ of prohibition is the appropriate remedy only where the court is acting entirely without jurisdiction or in clear excess of its jurisdiction. It is not applicable where the party has a complete and adequate remedy in some. other and more ordinary form. It will not lie to determine whether the petition for contempt is defective, any more than mandamus or certiorari will lie to determine whether a declaration, information, or indictment is defective. In such cases the circuit courts have full jurisdiction to pass upon the validity of the pleadings, and the proper course is by writ of error, appeal, or certiorari, after the proceedings are concluded. The principle is thus stated:
‘‘ The broad governing principle is that a prohibition lies where a subordinate tribunal has no jurisdiction at all to deal with, the cause or matter before it, or where, in the progress of a cause within its jurisdiction, some point arises for decision which the inferior court is incompetent to determine. But a prohibition will not lie where the inferior court has jurisdiction to deal with the cause and with all matters necessarily arising therein, however erroneous its decision may be upon any point.” Heard, Shortt, Extr. Rem. 436.
See, also, High, Extr. Leg. Rem. § 770, where it is stated that “it is always a sufficient reason for withholding the writ that the party aggrieved has another and complete remedy at law.” This rule is approved in Hudson v. Judge of Superior Court of Detroit, 42 Mich. 239, 248 (3 N. W. 853), and authorities there cited.
In People v. Wayne Circuit Court, 11 Mich. 394, 404 (83 Am. Dec. 754), in a unanimous opinion, written by Justice Campbell, it was said:
“ As the writ of prohibition, if issuable, is only for excess of jurisdiction, it is not material, on this motion, whether the facts charged are true or not. There seems to be no power to issue this writ to restrain any action which can be disposed'of by appeal or other ordinary method of review.”
The clear weight of authority sustains the rule as above stated.
The United States Supreme Court has held that:
“ A writ of prohibition is never to be issued unless it clearly appears that the inferior court is about to exceed its jurisdiction. It cannot be made to serve the purpose of a writ of error or certiorari to correct mistakes of ' that court in deciding any question of law or fact within its jurisdiction.” Smith v. Whitney, 116 U. S. 167, 176, (6 Sup. Ct. 570).
See, also, Ex parte Kearney, 7 Wheat. 38.
Repeated attempts have been made in this court by application for the writ of mandamus and certiorari to determine the validity of declarations, indictments, and information; but we have for several years consistently refused to entertain them. Only when the court below has held the pleadings bad, and quashed them, have we entertained such applications, and then for the reason that the parties had no other remedy. But where the court has retained jurisdiction, the party has another adequate and appropriate remedy. The most recent decisions upon this point are People v. Thompson, 108 Mich. 583 (66 N. W. 478), where the respondent was charged with manslaughter, and the circuit court refused to quash the indictment; and Maynard v. Ingham Circuit Judge, 124 Mich. 465 (83 N. W. 102), where the relator was under indictment, which the court refused to quash on the ground that the indictment was fatally defective. Certainly, the writ of prohibition should not be used to determine the same questions which we have refused to determine upon applications for mandamus and certiorari.
In the case now before us, relator denies that the respondent has any jurisdiction over proceedings of this character. No attack is made upon the form of the proceedings or upon the sufficiency of the papers. It is a clear case of denial of jurisdiction. We are therefore of the opinion that the writ of prohibition furnishes the proper remedy to determine the jurisdiction of the court.
The legislature is, by the Constitution, authorized to establish municipal courts of criminal and civil jurisdiction. Const, art. 6, § 1. The, superior court of Grand Rapids is a creation of the legislature, with such powers and jurisdiction as the legislature has seen fit to confer upon it. We must, therefore, look to the act of the legislature establishing this court to determine what power is given it over the subject of contempts. The statute is silent upon the subject, except as it is covered by the general and broad jurisdiction conferred upon the court. The act gives such court original and exclusive jurisdiction over all criminal proceedings committed within the corporate limits of the city, with certain exceptions, and “power to issue all lawful writs and process, and to do all lawful acts, which may be necessary and proper to carry into complete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts, which the circuit courts of this State, within their respective jurisdictions, may in like cases issue and do by the laws of the State of Michigan.” Pub. Acts 1875, Act No. 49, §§ 13, 14 (1 Comp. Laws 1897, §§ 630, 631). Under this law the superior court is subject only to the control of the Supreme Court. It is governed by the same rules of practice as the circuit courts. Appeals are taken from it to the Supreme Court. In short, it is subject to the mandate of this court in precisely the same manner and to the same degree that the circuit courts are.
This act is similar in its provisions to the act establishing the superior court of Detroit. This court held that:
“As respects civil jurisdiction, the superior court [of Detroit] is a tribunal of the same class as the circuit courts. There are no limitations upon its powers. * * * The nature of the subjects of its jurisdiction, so far as the jurisdiction extends, is the same. It.is a court of original jurisdiction, proceeding according to the course of the common law.” Wyandotte Rolling-Mills Co. v. Robinson, 34 Mich. 428.
See the further reasoning of the court on page 432. See, also, People, ex rel. Covell, v. Kent County Treasurer, 36 Mich. 332.
The power to punish for contempt is essential to the due administration of the law, and to carry out the orders, decrees, and judgments of the court. If it was the intention of the legislature to limit the jurisdiction of the court over contempts to the causes specified in section 1098,1 Comp. Laws, — a law which was enacted long prior to the adoption of the present Constitution, and when there was only one constitutional court, viz., the Supreme Court, — it would certainly have used language appropriate to express such intention. On the contrary, it expressly confers upon the court the same powers in this respect that circuit courts possess under the Constitution. It follows that, if the circuit courts are clothed with the power to punish for con-tempts, and are not limited to the cases provided for in the statute, which was enacted under the Constitution of 1835, then the respondent possesses the same power. The ques tion, therefore, is again presented to this court, Have the circuit courts of this State the inherent power to punish for contempts, or are they subject to the control of the legislature? The question is an important one in the administration of the law. If the legislature can determine what acts shall constitute contempts in the circuit courts, it can abolish the power of such courts to punish for con-tempts. There is no middle ground; either the courts have the absolute control, under the Constitution, over contempt proceedings, or they have only such as the legislature may see fit to confer.
The language of this court in Langdon v. Wayne Circuit Judges, 76 Mich. 367 (43 N. W. 310), is a broad statement that this power is inherent in the circuit courts of this State to the full extent that it existed in the courts of England at the common law. This was an authoritative statement of the law, but seems not to have been so considered by the entire profession. The subject was again before the court in Re Chadwick, 109 Mich. 588 (67 N. W. 1071). We there cited many-authorities from other courts holding the same view that was expressed in the Langdon Case. We will not cite those authorities again, but content ourselves with this reference to them and with the citation of a few others. . We found it unnecessary to pass directly upon the question, but said:
“We must not be understood as assenting to the proposition that the legislature, under the guise of regulation, may destroy a constitutional power of the courts.”
The Constitution of 1835 provided that “the judicial power shall be vested in one Supreme Court, and in such other courts as the legislature may from time to time establish.” Const. 1835, art. 6, §1. The people were dissatisfied with the courts organized by the legislature, and, in the adoption of the new Constitution, made an important change by providing that:
“ The judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the legislature in cities.” Const. 1850, art. 6, § 1.
Thus the unlimited power to create courts, given by the Constitution of 1835, was taken away by the new Constitution, and the legislature was limited to the creation of “municipal courts of civil and criminal jurisdiction.” The reason for this important change in the organization of the courts is stated in Streeter v. Paton, 7 Mich. 341.
By sections 13 and 18 of article 6, the jurisdiction, powers, and duties of the probate and justices’ courts may be limited and prescribed by the legislature. No such power is found as to the circuit courts or the Supreme Court. Section 8, art. 6, provides:
“The circuit courts shall have original jurisdiction in all matters, civil and criminal, not excepted in this Constitution, and not prohibited by law.”
This refers to causes which may be instituted in those courts, and not to the practice and proceedings in those causes when once instituted. The sole power conferred upon the legislature by that provision is to determine what causes may be instituted in the courts. It has no reference to the power to enforce their orders, judgments, and decrees by punishment for contempts or by other proceedings. As an illustration of this power, this court has held' that the legislature may take away from a taxpayer the remedy by injunction where an adequate and complete remedy at law is provided instead. Eddy v. Township of Lee, 73 Mich. 123 (40 N. W. 793). But when the legislature attempted to provide a jury trial in equity cases, and make the verdict of the jury binding upon the conscience of the court, it was held in a well-considered opinion, written by Justice Campbell, that the act was unconstitutional. The learned justice used language which is applicable here:
“ Our constitutions are framed to protect all rights. When they vest judicial power, they do so in accordance with all its essentials; and, when they vest it in any court, they vest it as efficient for the protection of rights, and not subject to be distorted or made inadequate.” Brown v. Kalamazoo Circuit Judge, 75 Mich. 274, 284 (42 N. W. 827, 5 L. R. A. 226, 13 Am. St. Rep. 438).
Nor is this all. Section 1098, 1 Comp. Laws, in regard to criminal contempts, includes every court of record. This would include the Supreme Court, and it may, with the same propriety, be urged that the legislature has control -over contempts in the Supreme Court as in the circuit courts. The Constitution is silent as to both. So, also, .are the. debates in the constitutional convention. There were able and experienced lawyers in that convention, who were thoroughly conversant with the powers of these constitutional courts. We must assume that they were .familiar with the decisions upon this subject. If they had intended a limitation upon this power, which had been so long exercised, they would certainly, either in their debates or in the Constitution itself, have left some record of such intention. This intention is further made manifest by the fact that they did make a distinction between probate and justices’ courts and the circuit and supreme courts, as above shown.
The Constitution provides that “no person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this Constitution.” Article 3, § 2. There is no provision in the Constitution which expressly or by implication confers upon the legislature control over this important power. Neither is there anything in it which confers upon the courts any power over the same subject in the legislature. Each was intended to be, is, and ought to be, independent of the other upon this subject. The sound and reasonable rule of law is that, in the absence of express provision in the Constitution itself, the courts of record, established by the Constitution, are clothed by that instrument with the exclusive power over contempts,- — a power which has existed from time immemorial. This rule is also established by a long line of authorities.
This subject has received a careful examination and discussion in Carter v. Com., 96 Va. 791 (32 S. E. 780, 45 L. R. A. 310), decided in March, 1899. The constitution of that State upon this subject is quite similar to our own. The legislature of that State passed an act similar to the one now under discussion.. In addition to defining contempts, it provided for a trial by jury. The act was held unconstitutional in a unanimous opinion. The court say:
“These courts do not derive their existence from the-legislature. They are called into being by the constitution itself, the same authority which creates the legislature. * * * The power to punish for contempts is inherent in the courts, and is conferred upon them by the constitution by the very act of their creation. It is a trust confided and a duty imposed upon us by the sovereign people, which we cannot surrender or suffer to be impaired without being recreant to our duty.”
The constitution of Georgia contains this clause: “ The-. power of the courts to punish for contempts shall be-limited by legislative acts.” Article 1, § 1, par. 20. Held, that this did not confer upon the legislature the-right to determine what acts shall constitute contempts, but only the power to prescribe the punishment therefor. Bradley v. State, 111 Ga. 168 (36 S. E. 630, 50 L. R. A. 691, 78 Am. St. Rep. 157). The court use this significant language:
“Where a court is established by the constitution, it is given all the powers usually possessed by all courts; and we will not construe another provision of the constitution so as to take away from the court a power which is essential to its preservation, and to its accomplishment of the purposes for which it is created, unless constrained to do-so by express words or necessary implication.”
The power to punish for contempts is as ancient as the courts, and antedates Magna Gharta. Chief Justice Wilmot, nearly -a century and a half ago, said of this-power:
‘ ‘ The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution. It is a necessary incident to every court of justice, whether of record or not, to fine and imprison for contempt acted in the face of the court; and the issuing of attachments by the supreme courts of justice in Westminster Hall for contempts out of court stands on the same immemorial usage which supports the whole fabric of the common law. It is as much the lex terree, and within the exception of Magna Charta, as the issuing of any other legal process whatsoever. I have examined very carefully to see if I could find out any vestiges of its introduction, but can find none. It is as ancient as any other part of the common law. There is no priority or posterity to be found about it. It cannot, therefore, be said to invade the common law. It acts in alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society. Truth compels me to say that the mode of proceeding by attachment stands upon the very same foundation as trial by jury. It is a constitutional remedy in particular cases, and the judges in those cases are as much bound to give an activity to this part of the law as to any other.” 3 Camp. Ch. Just. 190.
To bribe or to attempt to bribe a witness in a pending case is a most serious contempt of court, and one which should be promptly dealt with. The fact that it involves a criminal charge does not take away the jurisdiction of the court to investigate and punish it as a contempt.'
Undoubtedly the legislature has the right to limit control over contempts in those courts which are of its own creation. Ex parte Robinson, 19 Wall. 510. Section 1098, 1 Comp. Laws, is first found in the Revised Statutes -of 1846, and has remained without change since that time. It then applied to the courts which the legislature was authorized to create. So, if the legislature, in creating the court in question, had used any language from which it could be inferred that, in establishing it, it intended to limit its powers over contempts, it would undoubtedly be held valid. It did not choose to do so, but, on the contrary, it did choose to give it all the powers which were conferred by the Constitution upon the circuit courts in all those matters intrusted to its jurisdiction.
Inasmuch as the superior court withheld proceedings until the prosecuting attorney should institute criminal proceedings in the matter, it is unnecessary to discuss the third question raised, viz., are the proceedings according to law ?
The writ is denied.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Grant, J.
(after stating the facts). Counsel do not disagree as to the law of the case. The statute provides for compensation for transporting any' passenger and his ordinary baggage, not exceeding in weight 150 pounds. 2 Comp. Laws, § 6234, subd. 9. All the authorities agree that the baggage which a passenger is entitled to have carried is the articles which are necessary and requisite for his personal convenience. Story, Bailm. § 499. If a passenger ships merchandise in his trunk without notice to the railroad company, or knowledge on its part, of the contents of the trunk, the company is not responsible for its loss. It is the duty of the passenger to give the carrier notice that his trunk contains merchandise, or things which cannot be included as baggage, unless the carrier has knowledge that the contents of the trunk are not bag-, gage, but merchandise. Knowledge is equivalent to notice. The question, therefore, is, in this case, Was there any probative testimony from which a jury could infer that Mr. Jones, the agent of the defendant, knew that these trunks contained merchandise ?
We think this question must be answered in the affirmative. If the jury believed Mr. McCormick, Mr. Jones did know that Mr. Amory’s trunks contained merchandise, and that he was transporting such merchandise for business purposes. Were it not for the testimony of Mr. McCormick, the question would be more doubtful. But, in connection with that, the fact that Mr. Amory had traveled over this road so often for several years, using these same trunks; that they were delivered by an employe of the omnibus line as the trunks of Mr. Amory, the •ladies’ tailor; that Mr. Jones knew Mr. Amory and his business; and the large and uniform size of the trunks,— were competent for the jury to consider in connection with Mr. McCormick’s testimony in determining Jones’ knowledge of the character of the contents of the trunks. Sloman v. Railway Co., 67 N. Y. 208; Jacobs v. Tutt, 33 Fed. 412; Hannibal Railroad v. Swift, 12 Wall. 262; 2 Fetter, Carr. Pass. § 606; Ft. Worth, etc., R. Co. v. Rosenthal Millinery Co., (Tex. Civ. App.) 29 S. W. 196; Oakes v. Railroad Co., 20 Or. 392 (26 Pac. 230, 12 L. R. A. 318, 33 Am. St. Rep. 136). See, also, Lake Shore, etc., R. Co. v. Hochstim, 67 Ill. App. 514.
Judgment is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
This case is brought here upon a writ of certiorari to review the proceedings of the State court of mediation and arbitration in a matter submitted to that court by the firm of Pingree & Smith and some of that firm’s employés. During the summer of 1899 serious differences arose as to the question of wages between the firm and its employés, which resulted in strikes and lockouts.' It was finally agreed to submit the differences to the respondent, and in the meantime the employés returned to their work. The submission was a written instrument, in words and figures as follows:
“Detroit, Dec. 16, 1899.
“ State Board oe Arbitration :
“ Gentlemen: Being unable to agree on prices of the following work, we hereby jointly request an arbitration of same by your honorable board, agreeing to abide by your decision. Prices to remain in force until May 1st, 1900.
“ 1st. For pulling over uppers and operating consolidated lasting machine on women’s, misses’, and children’s McKay sewed work.
“ 2nd. For pulling over uppers on women’s welt work, and operating the ideal lasting machine on same.
“ 3rd. For turning and second lasting women’s turned' work by new method now in use in our factory, styled ‘ string work.’
“ 4th. For trimming spring heels.
“5th. For automatic leveling.
“6th. For cleaning, ironing, and dressing.
“ 7th. For trimming bead-edge turns.
“ Frank C. Pingree,
‘ ‘ For Pingree and Smith. “Timothy O’Connor,
“Ernest A. Allen,
“ For Employés.
“In signing this agreement, we, the employés, do not relinquish any rights that we may have in any other matters not specified therein.”
March 9, 1900, the questions in dispute had been fully heard. March 31, 1900, the court rendered its decision, and served a copy on the counsel for the parties. It did not, however, file a copy with the clerk of the county of Wayne until April 19, 1900.
Pingree & Smith insist that, as a matter of law, the finding of the State court of mediation and arbitration was erroneous, because said court did not confine itself to the terms of said written submission. It is said by counsel:
“ In the case at bar the award departs from the submission, in that the arbitrators, in fixing prices for the work mentioned in the third, fourth, fifth, and sixth counts or paragraphs of said submission, treated that work as if it were piece-work, and fixed piece-work prices; thus, in effect, calling upon Pingree & Smith to change their method of doing the work embraced in those counts.”
“The decision of this court of mediation and arbitration makes a new contract between employers and employés, and substitutes it for the one existing at the time the submission was made.* Without any authority under the submission or elsewhere so to do, the court of arbitration said to the firm that the men who were engaged to work and who were working by the day or week must be considered or treated as if they had been engaged to work and were working by the piece. To permit the decision to stand would be to place a new and heavier burden upon the employers without their assent, and without any knowledge on their part that an attempt to do this was to be made.”
It is, of course, well settled that when arbitrators go beyond the submission, they exceed their jurisdiction, and the award may be set aside. The record discloses that, when this submission was made, some of the men claimed, under the system adopted by their employers, that, where they had formerly been able to earn $12 to $15 a week, they were able to earn less than $10 a week. It also shows that an attempt had been made to have the prices fixed by the piece, instead of having the work done by the day or week, and that upon the hearing, without objection, testimony was given upon both sides, not only by local experts, but by witnesses from a distance, in relation to the scale of wages by the piece as well as by the day. The terms of the submission were doubtless prepared in view of the actual situation and the claims of the respective parties, and, we think, aré sufficiently broad to justify the court in saying the compensation should be by the piece, instead of by the day or week.
In its decision the court fixed a time when the scale of prices should take effect. Counsel say of this:
“ The court of mediation and arbitration departed from the submission, also, when it decided that this decision, under the agreement of submission to this court, is ‘to take effect from the 26th day of July, A. D. 1899, and be paid from that date.’ An examination of the submission will show that the court is not asked or expected to fix the date from which the prices it may determine shall be paid. It might be said that the prices are to be paid from the date of the submission, December 16, 1899, — five months later than the date set by the court of mediation and arbitration. It seems to us that it might just as reasonably be said that these prices were to be paid from the date of the award. But, however this may be, there is nothing in the submission which authorizes the court of mediation and arbitration to fix a time antedating the submission itself. ”
It is difficult to justify this claim in view of what is disclosed by the record. It is shown that on the 26th of July, 1899, a machine was put. in the factory upon which the work was done which is mentioned in count 1 of the submission. Upon the trial Mr. Oakman was giving testimony in relation to the prices which should be paid to the employés, when the following occurred:
‘ ‘ Q. At the time this matter was submitted to arbitration for this board to decide on what prices should be paid, that price would then be paid and operate back to the time the work began ?
“A. Yes; but this shoe we are talking about now was not made this way, and consequently could not be put down until possibly a month or so after.
“ The Court: Is the witness referring to a past arbitration ?
“ Q. No, to the time this consolidated machine came over there, and Mr. Pingree said he would pay them a cer tain amount, and the amount due should be in abeyance. I ask the witness the date.
“Mr. Whiting: July 26, 1899.
“Mr. Pingree: I don’t think there is any question in regard to that, Mr. Oakman, and the men all fully understand that whatever price is set today is to go back to the time the machine was put in.”
Another witness was also testifying that he was being paid four cents a pair for lasting shoes, when counsel stated, “We do not claim we have paid anybody in full, because we expected some day it would be settled by this court.” In view of these statements made during the progress of the trial, we do not think the relators can be heard to say the court erred in fixing the date it did when its decision should take effect.
It is also said the court erred in failing to fix a limit to the time when the prices fixed by them should be in effect. As the articles of submission themselves fixed the limit, we cannot see what would be accomplished by naming the time in the decision.
It is said:
“ The State court of mediation and arbitration was act; ing under the terms of the act under which it was created, and it must therefore act, if it act at all, in the manner pointed out by the statute. Section 563, 1 Comp. Laws, says:
“ ‘After the matter has been fully heard, the said board, or a majority of its members, shall, within ten days, render a decision thereon in writing, signed by them or a majority of them, stating such details as will clearly show the nature of the decision and the points disposed of by them. The decision shall be in triplicate, one copy of which shall be filed by the clerk of the court in the clerk’s office of the county where the controversy arose, and one copy shall be served on each of the parties to the controversy.’
“The matter had been fully heard by and on March 9, 1900, but the decision was not rendered until March 31, 1900, and was not filed in the clerk’s office of Wayne county, where the controversy arose, until April 19, 1900. As there was no waiver of this requirement of the statute, it was obligatory upon the court to render its decision within the time limited, and its failure to do so rendered its award void.”
In the case of Renaud v. State Court of Mediation and Arbitration, 124 Mich. 648 (83 N. W. 620), the constitutionality of the statute creating this court was attacked; It was held the statute was constitutional; that it called into existence a court contemplated by article 6, § 23, of the Constitution. The respondent then being a court, the case of Rawson v. Parsons, 6 Mich. 405, is germane to the subject under discussion. Section 10260, 3 Comp. Laws, provides, among other things:
“ Upon the trial of a question of fact by the court without a jury, the decision of the court shall be given on or before the first day of the term succeeding that in which the cause was submitted.”
In Rawson v. Parsons, 6 Mich. 405, it was said:
“We are all of opinion that this provision, as relates to the time within which the decision shall be given and filed, is directory merely. It imposes a duty upon the judge; but, as the parties have no control over his action, it would be a harsh construction which should deprive them of the fruits of the litigation because the judge fails to decide by a particular day. ” ’
No case could exemplify such a hardship more than the one at bar. The testimony taken makes more than 500 pages of printed record. Several complicated scales of prices were introduced, and, if the testimony was to be intelligently considered and passed upon, some time would necessarily elapse. What little delay there was is not to be charged against the parties to the litigation, if to anybody ; and the law ought not to be given such a construction as is contended for by the relators.
The other questions raised by counsel have been considered, but we do not deem it necessary to discuss them.
The case is affirmed.
Montgomery, J., concurred with Moore, J.
Hooker, C. J.
This cause is before us upon certiorari. It involves an award made by the State court of mediation and arbitration in a cause between Frank C. Pingree et al., manufacturers, and some of their employés, whose names do not appear. The court referred to attempted to settle some differences between the employers and employés, and after a hearing they made an award fixing rates of compensation, etc. Pingree claims that the award is invalid for several reasons, among them the following, viz.: That the board attempted to adjudicate matters not submitted, and therein “exceeded their jurisdiction;” that it did not make its award within the period of 10 days, prescribed by statute; that it erred in receiving hearsay evidence upon the trial.
This proceeding arose under chapter 30 of the Compiled Laws, which is entitled:
“An áct to provide for the amicable adjustment of grievances and disputes that may arise between employers and employes, and to authorize the creation of a State court of mediation and arbitration.”
The act is a recent one, and is apparently designed to afford a means of adjusting matters relating to wages, hours of labor, and perhaps other matters entering into the relation of employer and employés. The act has been before us but once, and that was in this same cause. On that occasion the present relators attacked the law upon the ground that it was unconstitutional. The law was sustained under article 6, § 23, of the Constitution, as a court of conciliation, and it was held that such court has not the power to grant rehearings.
The term “court of conciliation,” as used in the Constitution, has not been judicially defined. If it should be held to mean a tribunal which might interest itself in controversies with a view to inducing the parties to compromise, or otherwise harmonize and adjust their differences, without power to bind the parties by its own opinions or conclusions, it would certainly be a court of conciliation; and such we understand to be the limit of the power of some such courts. Whether the term used in the Consti tution can be properly held to apply to a court which has power to make a binding and enforceable judgment may be a doubtful question. That question is not here, because the law contains no provision indicating such an intention, unless we are to say that the provision for the making and filing an award is tantamount to authorizing it to render judgments. If that view should be taken, and we should hold that certiorari lies to review and correct such judgments, it is obvious that the court of conciliation would not differ materially from other courts in existence in this State under the other provisions of article 6 of the Constitution. See section 1, which names the courts in which the judicial power shall be vested. Courts of conciliation are not mentioned in section 1, and there is force in the claim that they do not fall within the definition usually applied to courts, and that they were intended to provide an entirely different method of settlement of disputes, viz., conciliation of the parties, and settlement of controversies, as contradistinguished from the establishment of legal rights by force of judicial'trials. If they are thus distinguishable, the decision to be made and filed under this law might have no judicial force, and there would be no occasion to review it. If this view is not taken, and it shall be said that a tribunal may be erected to act as arbitrators, and that it can be said to be within the constitutional term “courts of conciliation,” may we hold that it is within the power of the legislature to authorize such tribunal to go further than to make an award in the ordi-' nary acceptation of the term, which has a settled legal meaning, if in fact it may go so far? We may not discuss the former of these questions, for there has been no attempt to do more in this act than to erect a tribunal which should perform the functions of arbitrators by making an award. Its award is made, and, under the provisions of the act, must be filed with the clerk of the county. The question then arises whether, being a court of conciliation, its award may be enforced, and, if so, how.
As no one is here trying to enforce this award, we need not consider whether it is enforceable or not; but, assuming that it is, for the purpose of the case, we must conclude that it is to be enforced in one of two ways: (1) By action, or by way of defense in an action, or suit in equity to set aside the award in a proper case. 3 Enc. Pl. & Prac. 155. (2) Under our statute (3 Comp. Laws, chap. 302), if that is applicable. In either case the proceeding is to be taken in a court of original jurisdiction. See Morse, Arb. 574. An award at common law is usually enforced by' the appropriate action, or it may be' by suit to compel specific performance. Id. 610; 3 Enc. Pl. & Prac. 154. On the other hand, it may be used by way of defense; and, where proceedings have been taken under a statute which makes the award returnable into court, a motion may be made in that court to vacate it. Morse, Arb. 611, 613, 614. To hold that the intervention of this court may be invoked to supervise, control, and direct this court of mediation and arbitration, to review its proceedings, and reverse its awards because it has not followed the technical methods and rules applied in ordinary judicial proceedings, to deprive it of its summary influence or power — if “power” is an appropriate term to use — by dragging through the courts proceedings which the law attempts to have disposed of in 10 days, will be, in my opinion, to thwart the purpose of the act, and turn the court of conciliation or arbitration into the ordinary tribunal, with its attendant evils of technicality, delay, and expense to litigants.
We have purposely left many questions pertaining to this statute undecided, because they have not been djscussed by counsel, and it is unnecessary to pass upon them. The writ was improvidently issued, because it is not an appropriate or proper remedy in the premises. It should, therefore, be dismissed, with costs.
Long and Grant, JJ., did not sit. | [
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Per Curiam.
This action arose as a result of a dispute between the parties over the validity and interpretation of a written agreement settling the interests of the respective parties in a joint venture.
In the course of the proceedings below, a conference between the parties was held and terms of settlement were agreed upon. The settlement was subsequently submitted for the approval of the court, and judgment in accordance with its terms was entered on May 11, 1970. Plaintiff moved shortly thereafter for a new trial; the trial court denied the motion on August 14, 1970. Plaintiff appeals.
Plaintiff first contends that the trial court improperly forced a settlement thereby denying him his day in court. The record reveals no instance of improper participation by the trial court. In fact, plaintiff specifically stated at the hearing on the motion for a new trial that the judge did not ask him to settle out of court. Plaintiff’s contention, lacking evidentiary support, is without merit.
Plaintiff, appearing in propria persona in this appeal, alleges that his trial attorney acted without his authority and contrary to his intention in effecting settlement and that his attorney at the hearing on the motion for new trial did not adequately represent him. If plaintiff’s allegations have substance, they are more properly considered through independent procedures.
The granting or denial of a motion for new trial rests largely within the discretion of the trial court; this Court will not reverse the trial court except for abuse of discretion. Hoven v. Hoven (1967), 9 Mich App 168; Goodman v. Stafford (1969), 20 Mich App 631. At the hearing on the motion for new trial, the judge determined that plaintiff had consented to the settlement arrived at in the trial court. Subsequent to a discussion of the terms of the settlement at trial, the following colloquy between plaintiff and the court occurred:
“The Court: If this case is stipulated out, the court had a means of carrying out and effectuating the stipulation that is entered into. Mr. Parker, you have heard the proposed settlement of this matter, is that agreeable to you?
“Mr. Parker: Yes, your Honor.”
At the hearing on the motion for new trial, plaintiff reaffirmed the fact that he had answered the court’s inquiry in the affirmative. Plaintiff’s statements provide ample support for the conclusion of the trial court that plaintiff consented to the terms of the settlement.
The trial court did not abuse its discretion in denying plaintiff’s motion for a new trial.
Affirmed. Costs to appellees. | [
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Holbrook, P. J.
This case arises from a disputed claim to the proceeds from a $5,000 life insurance policy on the life of Reverend Vincent J. Balcer.
The pertinent facts appear as follows: On May 23, 1941, Reverend Vincent J. Balcer designated his sister, Monica Balcer, as beneficiary on the policy. In 1946 Reverend Balcer borrowed $9,700 from the defendants. A note was given by Reverend Balcer to the defendants as evidence of the debt. This was the only business transaction between the parties. Subsequently, at the defendants’ request Reverend Balcer assigned to defendants the $5,000 life insurance policy as security for the loan, and designated defendants as beneficiaries in the policy. The defendants recognized the “security” nature of the transaction in their testimony. On or about December 29, 1965, Reverend Balcer remitted a check for the final payment on the loan. Further facts and conclusions are contained in the trial court’s opinion as follows:
“Sometime soon after final payment the note was marked paid by Dorothy Peters, the defendant, and returned. The insurance policy previously given as collateral security for the loan was returned either by mail, by defendant Cass Peters, or by his wife, Dorothy Peters; all three being supported by the statement of the defendants. The important fact is the policy was returned, and rightly so, to the Eev. Balcer.
“A few months later the Eev. Balcer died. The policy of insurance had not been changed as far as the names of the beneficiaries.
“The court finds Eev. Balcer intended the change in beneficiary to the defendants for the purpose of giving them collateral security for the money loaned, as evidenced by the note, and the preponderance of evidence clearly supports the intention of Eev. Balcer, that he intended it as collateral security pure and simple.
“The payments of money by Eev. Balcer to defendants, the cancellation of the note and the return of the insurance policy clearly terminated the security transaction.
“The untimely death of Eev. Balcer shortly after the return of the insurance policy, before he effectuated the change of the beneficiary will not be allowed in this court to deprive the family of the proceeds of a policy given as collateral security for a loan which admittedly had been paid in full.
“Thus the names of the defendants will be stricken from the insurance policy, the security arrangements having been terminated, and the proceeds of said policy will be paid to the Estate of the Eev. Balcer.”
At trial defendants testified that Eev. Balcer had indicated to them that they were to have the insurance proceeds notwithstanding repayment of the loan. Sitting as a court of equity the trial court concluded that defendants held a security interest in the insurance proceeds which was terminated by remittance of the final loan payment.
The issue herein presented is: Whether under the facts in this case the persons named as beneficiaries in a policy of life insurance for the purpose of securing a loan to the insured are, after the loan has been completely repaid, entitled to the proceeds of the policy upon the death of the insured?
It is established law that a creditor named as beneficiary in an insurance policy on the life of his debtor is entitled only to reimbursement to the extent of his security interest in the policy. Metropolitan Life Ins Co v O’Brien, 92 Mich 584 (1892); McDonald v Birss, 99 Mich 329 (1894); Great Camp Knights of the Modern Maccabees v Deem, 143 Mich 652 (1906). See also, 46 CJS, Insurance, § 1162, at p 46.
The defendants’ security interest terminated when the final payment on the loan was made. Any claim that defendants have to the insurance proceeds must be based upon a showing that Rev. Balcer expressly intended to continue defendants as beneficifiaries notwithstanding repayment of the loan. There was no such showing made.
The trial court explicitly indicated its displeasure in the conflicting versions of the events which took place according to the testimony of the defendants, Cass and Dorothy Peters. The trial court’s observation finds support in the record. The court chose to disbelieve defendants’ testimony. Moreover, defendants’ testimony as to the intent of deceased Reverend Balcer was incompetent. MCLA 600-.2166; MSA 27A.2166.
On appeal we hear and consider chancery cases de novo on the record. However, we give considerable weight to the findings of the trial judge in equity cases. We do so primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify. We do not ordinarily disturb the findings of the trial judge in an equity case unless, after an examination of the entire record, we reach the conclusion we would have been required to have arrived at a different result had we been in the position of the trial judge. Christine Building Co v City of Troy, 367 Mich 508, 517-518 (1962).
The trial court properly ruled that upon the termination of the defendants’ security interest, the insurance proceeds belonged to plaintiff as executrix of deceased’s estate. Metropolitan Insurance Co v O’Brien, supra; McDonald v Birss, supra; and Great Camp Knights of the Modern Maccabees v Deem, supra.
Affirmed. Costs to plaintiff.
All concurred. | [
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] |
Hooker, C. J.
The plaintiff has sued for damages arising upon his expulsion from a car by defendant’s conductor. He purchased three tickets on the áfternoon of May 5, at defendant’s ticket office in Detroit, for passage to Marine City and return. Each ticket consisted of eight coupons. Four of these coupons, colored respectively white, pink, yellow, and blue, were the “going portions of the ticket” between the stations in the following order: Michigan Central Railroad Depot, Junction Line, Chesterfield, Broad Bridges, and Marine City. Four coupons, colored respectively blue, yellow, pink, and white, were for the return trip in inverse order. Each coupon contained the names of the stations between which it was good, and the words, “Detroit to Marine City, and Return,” and, “Void if Detached from Signature Coupon.” Plaintiff, with his wife and daughter, entered defendant’s car at the Michigan Central Depot. He handed the three tickets to the conductor within the city limits, and he tore from each a portion, and kept the same. Defendant’s conductor in charge of the car between Junction Line and Chesterfield tore off and kept another portion of each. At Chesterfield defendant’s conductor Jones took charge of the car, and, on being shown the tickets, told plaintiff that the previous conductors had made a mistake, and had taken coupons from the wrong end of the tickets, and then for the first time the plaintiff discovered that the last two returning coupons had been detached from each of the tickets. Jones then tore off from each ticket the first two going coupons, and handed them to the plaintiff, and then took the third going coupon, leaving the remainder with plaintiff. Plaintiff asked if he could use the detached portions, and was told that they would be accepted by succeeding conductors. On their return the defendant’s conductor Gordon refused to honor these coupons, and, notwithstanding plaintiff’s explanation, and offer to corroborate his statement by other passengers, on his refusal to pay another fare, expelled the passengers from the car at New Baltimore, and plaintiff and family took the next car .an hour later, paying $1.20 fare, after offering the coupons to the conductor, who refused to accept them after learning of Gordon’s action. Testimony was offered to show that the plaintiff had been sick, and suffered a relapse, being confined to his bed for four or five weeks thereafter. The plaintiff recovered a judgment for $500 in 'justice’s court, and defendant appealed to the circuit, where a verdict was directed for the defendant, and the plaintiff has taken a writ of error.
The evidence shows conclusively that the defendant’s conductor detached the wrong coupons from the tickets in the first instance. The next conductor, Jones, had no means of taking his fare but to take off the coupons preceding the one covering his own section of the road. These he returned to the plaintiff, but it was obvious to the plaintiff that he was left without transportation for his return, and it is equally plain that, notwithstanding that fact, he insisted on being carried by a conductor who had no personal knowledge of the circumstances, without the surrender of appropriate tickets, or any other payment that he was authorized to receive, or that the plaintiff had a right to insist that he should receive. It seems to be conceded that the trouble was the result of the mistake of defendant’s first conductor. The most serious inconvenience that the plaintiff need have suffered was to pay 40 cents for his return fare, present his tickets, with proof of the circumstances, and get his money refunded. He was not content to do this. Rather than lose 40 cents, or be to the trouble of asking that it be refunded, he preferred to refuse to recognize the reasonable rule of the company. He refused to leave the car, notwithstanding the suggestion of the conductor that he pay his fare, and have it refunded later, and allowed the conductor to drag him through the car, and actually made him lift him off. The other members of his family appear to have used better judgment, and left the car when required to do so.
We have several cases that hold that, under such circumstances as these, the conductor does not commit a wrong by ejecting from his train one who has no ticket, and refuses to pay, and that it would be absurd to hold that the conductor must take his passenger’s word regarding his failure to have an appropriate ticket, or take the evidence of fellow passengers, and determine the matter at his peril, or that of the company. These two coupons which the plaintiff had were the first that should have been detached. Had he succeeded in riding over the first two sections without detection by the conductor, and detached them himself, he could have made the same claim, or sold them to another for second use. The law permits these companies to make reasonable rules for their protection, and the plaintiff has no cause of action arising out of his ejection from the car, as the learned circuit judge-properly held. It is unnecessary to append a list of our own cases upon the subject. They are cited in the briefs of counsel.
Under the proofs this plaintiff paid 40 cents by reason of the inadvertence of the conductor. Under this declaration he had a right to recover that amount, but he had no right to expect a verdict of 1500. We cannot agree with the defendant’s contention that the declaration counts only on the expulsion of the plaintiff. The action is not trespass, but case, and the declaration alleges the contract and its breach, as well as the expulsion in aggravation of it. We are therefore constrained to reverse the judgment, and order a new trial, but it will be without costs to either party.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.
Viz.: Frederick v. Railroad Co., 37 Mich. 342 (26 Am. Rep. 531); Hufford v. Railway Co., 53 Mich 118 (18 N. W. 580); Thomas v. Railway Co., 72 Mich. 355 (40 N. W. 463); Heffron v. Railway Co., 92 Mich. 406 (52 N. W. 802, 16 L. R. A. 345, 31 Am. St. Rep. 601) Mahoney v. Railway Co., 93 Mich. 612 (53 N. W. 793, 18 L. R. A. 335, 32 Am. St. Rep. 528); Van Dusan v. Railway Co., 97 Mich. 439 (56 N. W. 848, 37 Am. St. Rep. 354); Keen v. Railway Co., 123 Mich. 247 (81 N. W. 1084); McWethy v. Railroad Co., 127 Mich. 333 (86 N. W. 827). Plaintiff’s counsel, to the contrary: Hufford v. Railroad Co., 64 Mich. 631 (31 N. W. 544, 8 Am. St. Rep. 859); Rouser v. Railway Co., 97 Mich. 565 (56 N. W. 937); Vining v. Railway, 122 Mich. 248 (80 N. W. 1080). | [
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Moore, J.
This is an action of ejectment. It was. tried before a jury. The case is brought into this court by writ of error. In its facts it is almost like the case of Carpenter v. Carpenter, recently heard in this court, and reported in 126 Mich. 217 (85 N. W. 576). In this, case the title to the undivided one-fifth of lot 10 is involved, while in the other case it was the title to the undivided one-fifth of lot 12. The case of Carpenter v. Carpenter, supra, was pending in this court when the case now under consideration was tried in the circuit court. It is. probable, if the opinion in Carpenter v. Carpenter had been handed down before the trial of this case, this case would not now be here. A reference to the reported case-of Carpenter v. Carpenter will make a long statement, of facts unnecessary.
Upon both trials three defenses were interposed: First, that there was no delivery of the deed from Miriam Carpenter to Miss Rogers, through whom, by mesne conveyances, plaintiff claims title; second, adverse possession;, and, third, res adjudicflta, because of an ejectment suit wherein defendants Frank L. Carpenter and Lucy G. Jones were plaintiffs, and John I. Carpenter and one Sautelle were defendants. As to the third defense, the circuit judge held it was not made out, and charged the jury in favor of the plaintiff as to that defense. As to the other two defenses, the court allowed the jury to pass upon them. The jury found there was am delivery of the deed, and the-judge entered a verdict for the defendants.
A comparison of this record with the record before us in Carpenter v. Carpenter, supra, upon the fh’st of the defenses, shows the testimony was nearly identical. Where it differs, it is even stronger in this case in favor of the plaintiff. As to the question of adverse possession, it is substantially the same in both cases. As to both of those defenses, we think the case of Carpenter v. Carpenter is coixtrolling, and the judge shoxxld have instructed the jury that neither of those defenses had been established.
As the coxxrt decided the third defense in favor of plaintiff, and defendants took no appeal, and the bill of exceptions was settled in view of having plaintiff’s assignments of error passed upon, and the record discloses that some of the testimony as to what issue was tried in the ejectment case against Carpenter and Sautelle is not incorporated in the record, we do not think we can -now definitely settle that phase of the case.
Upon the cross-examination of witness John I. Carpenter, the court allowed testimony to be given that he had presented a large claim against the estate of his mother, which was disallowed, and also that he contested her will, which will was duly probated. This testimony was not germane to the issue involved, and the objection to it should have been sustained.
In view of the conclusions we have reached and herein expressed, it will not be necessaxy to discuss the other assignments of error.
The judgment is reversed, and a new trial ordered.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Per Curiam.
Defendant was found guilty by. a jury of breaking and entering with intent to commit a larceny. MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305). Defendant appeals and asserts that reversible error resulted from (1) the failure of the prosecutor to indorse on the information and call two accomplices and (2) the trial court’s admission of a statement made by defendant to the police.
Although the prosecutor is under a general obligation to indorse and call as witnesses all noncumulative res gestae witnesses, this duty does not extend to the calling of accomplices. People v. Virgil Brown (1969), 15 Mich App 600; People v. Chaney (1970), 21 Mich App 120; People v. Leroy Morgan (1970), 24 Mich App 660; People v. Alonzo Sanders (1970), 28 Mich App 510; People v. Moore (1971), 29 Mich App 597. No error resulted from the failure of the prosecutor to indorse and call the two accomplices.
At trial defendant asserted that the statement given by him to the police was induced by a promise of leniency. A Walker hearing was held. The trial court found that the statement was freely and voluntarily given and was not induced either by threats or promises. A determination of voluntariness by the trial court following a Walker hearing will not be overruled by this Court unless clearly erroneous. People v. Hummel (1969), 19 Mich App 266; People v. Stewart (1970), 25 Mich App 204; People v. Werner (1970), 26 Mich App 109; People v. Kelly (1971), 30 Mich App 154. A review of the record fails to substantiate any claim that the trial court’s determination was clearly erroneous. The statement was, therefore, properly admitted into evidence.
Affirmed.
People v Walker (on rehearing, 1965), 374 Mich 331. | [
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Gbant, J.
(after stating the facts). The learned counsel for complainant states the theory upon which complainant seeks a decree as follows:
“A large number of persons put money into a common fund. The purposes for which it was paid are illegal. The fund became a trust fund, in which every member who contributed thereto became beneficially interested pro rata the amount of his contribution. Some put in more than others. Equity requires that there should be an adjustment among all the contributors on a fair accounting. A receiver has been appointed to'make the proper and equitable distribution. In order to'clo this, there should be returned to him all amounts which have been taken from the fund in violation of the trust. The holders of matured certificates are not entitled to be paid in preference to other certificate holders.”
In support of this theory he cites Burton v. Schildbach, 45 Mich. 504 (8 N. W. 497); Stamm v. Benefit Association, 65 Mich. 317 (32 N. W. 710); Calkins v. Bump, 120 Mich. 335 (79 N. W. 491); In re Youths Temple of Honor, 73 Minn. 319 (76 N. W. 59).
All these cases involved the rights and liabilities of the membership of the corporations at the time of dissolution and the appointment of receivers. They relate to the distribution of the assets of the corporations as they existed at that time. Neither one is authority for setting aside settlements with and payments to members which have been made in accordance with the terms of their contracts. It may be very properly said that the scheme to mature these certificates in six years was impracticable, and that it could not be maintained for any length of time; but there was nothing morally wrong in the proposition. All parties acted in good faith. Mr. Green’s certificate was matured and the company paid it while it was a going concern, and more than a year before proceedings were taken to wind up the affairs of the company. There was no fraud in the settlement. Mr. Green had performed his contract. The corporation also performed it, by paying the money. The fact that it was paid by canceling a mortgage is of no consequence. The same principle which would now reinstate the mortgage would also compel Mr. Green to repay the money. Under complainant’s theory (and we presume this is a test case to establish the rule), every person who has once been a member, and received his money upon his matured certificate, can be compelled to repay it into the common fund. The statute of limitations, in that event, would be the only bar to recovery from members who have been paid.
Settlements between debtors and creditors, made in good faith and in accordance with the terms of their contracts, cannot be set aside by a receiver. Hyde v. Lynde, 4 N. Y. 387. The learned counsel concedes this rule, but maintains that it is inapplicable to cases of this character, where the contracts are ultra vires, and the funds paid in, therefore, constitute a trust fund to be distributed among the members interested. I do not find that this point has been raised in any of the cases arising out of these mutual benefit associations. Certainly the corporation itself, when a going concern, could not have sued the defendant to recover payments made by the express authority of its articles of association, and contracts based thereon. The members of the corporation deliberately entered into these contracts, hoping to make large returns. Every one undoubtedly expected to make the same profit that Mr. Green did. In six years he invested in his certificate $408, and received back therefor $1,200. Every member knew that this money would be paid to each certificate holder as his certificate matured. Each member made his contract with his eyes wide open. Each, upon reflection, would undoubtedly have concluded that the scheme was wholly impracticable and must fail. Its members are not, therefore, in position to appeal very strenuously to the conscience of a court of equity for relief. Mr. Green was paid just as they agreed he should be paid. If the company itself could not sue Mr. Green to recover the money back, we think that, for the same reason, the receiver cannot do it. If no right of action existed in the corporation against Mr. Green, certainly it was not a part of the assets of which, under the decree of the court, he was appointed receiver.
The decree is affirmed.
Hooker, O. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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R. B. Burns, P. J.
The basic issue in this case is whether defendants’ evidence at trial level was sufficient to extinguish plaintiffs’ easement on the theory of adverse possession.
Plaintiffs’ five-foot-wide easement was created by a deed and runs over the defendants’ property. The trial court eliminated plaintiffs’ rights of passage over the easement but preserved their right to construct and maintain a waterline.
In Michigan use of an easement by the owner of the servient estate will not ripen into adverse possession unless such use is inconsistent with the easement. Greve v. Caron (1925), 233 Mich 261; Harr v. Coolbaugh (1953), 337 Mich 158.
The defendants have an “undoubted right to make any use of the premises not inconsistent with the easement”. Greve v. Caron, supra, p 266.
The record reveals extensive nse of the easement by defendants and their predecessors in title. Two rows of trees were planted along the length of the easement, a privy was erected on the easement, for a period of time a bathhouse stood on the strip, and prior to the time the land was sold to defendants’ predecessor in title a fence was constructed along one end of the strip. A careful review of the testimony, however, indicates that none of these uses interfered with plaintiffs’ rights of passage. None of the uses seriously blocked passage on the strip. A gate had been put in the fence and was eventually removed. Even if not removed, maintenance of a gate across the right of way if it permitted use of the way “would not constitute an obstruction to the way or result in the loss of the way by ouster or adverse possession”. Greve v. Caron, supra, pp 266-267.
Strictly construing the evidence supporting the claim of adverse possession, as we must (Martin v. Arndt [1959], 356 Mich 128), we find that the record here fails to establish acts evidencing hostile prevention of the plaintiffs’ rights of passage.
Eeversed and remanded for entry of judgment in accordance with this opinion. Costs to plaintiffs.
All concurred.
The trial court preserved plaintiffs’ easement over the five-foot-wide strip as it pertained to the construction and maintenance of a waterline because of this Court’s determination in this case’s prior appearance before this Court. Nicholls v. Nealy (1969), 20 Mich App 393. | [
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Danhof, P. J.
The defendant was convicted, after a jury trial, of illegal possession of narcotics in violation of MCLA 335.153; MSA 18.1123. He now appeals. We reverse because the people failed to prove that the defendant did not have a license to possess narcotics.
This case is controlled by the Supreme Court’s decision in People v Rios, 386 Mich 172 (1971). In Rios the Supreme Court held that a defendant’s lack of a license was an essential element of the offense of sale of narcotics. The only difference between Rios and this case is that Rios involved a prosecution for sale of narcotics under MCLA 335.152; MSA 18.1122, and this case involves the prosecution for possession of narcotics under MCLA 335.153; MSA 18.1123. However, we do not regard this as a viable distinction. In pertinent part the wording of the statutes is identical. MCLA 335.152; MSA 18.1122 provides:
“Any person not having a license under the provisions of Act No. 343 of the Public Acts of 1937, as amended, being sections 335.51 to 335.78, inclusive, of the Compiled Laws of 1948, who shall sell, manufacture, produce, administer, dispense or prescribe any narcotic drug shall be deemed guilty of a felony.”
MCLA 335.153; MSA 18.1123 provides:
“Any person not having a license as required under the provisions of Act No. 343 of the Public Acts of 1937, as amended, being sections 335.51 to 335.78, inclusive, of the Compiled Laws of 1948, who shall possess or have under his or her control any narcotic drug shall be deemed guilty of a felony.”
Reversed and remanded for a new trial.
All concurred. | [
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Bronson, J.
Defendant was convicted in the Saginaw County Circuit Court by a jury of selling narcotics, specifically heroin, contrary to MCLA § 335-.152 (Stat Ann 1971 Eev § 18.1122). His motion for a new trial was denied, and he was sentenced to prison for a term of 20 to 25 years. He now timely appeals as of right, raising six issues which merit discussion.
The alleged sale took place between the defendant and a plainclothes police officer, Udell Holmes, on November 11, 1969. Holmes testified that he was taken to a house at 215 South Tenth Street in Saginaw by a third person and that he purchased five little packets of which the contents of one was later analyzed as heroin. The purchase was from a man later identified at both the preliminary examination and the trial as the defendant, John Martin. Defendant’s arrest was based on a lab analysis of the substance sold as heroin and on a photographic identification of defendant by Officer Holmes that occurred two or three days after the sale.
The issues raised by defendant will be listed as discussed.
I. Did the trial court err in limiting defense counsel’s cross-examination of Officer Holmes as to his out-of-court photographic identification of defendant?
The facts pertinent to this issue follow. Upon returning to the police station after the sale, Holmes was shown five or six photographs by a Detective Shelby for the purpose of identifying the seller. At the preliminary examination, upon questioning by the prosecutor, Holmes testified as follows:
“Q. And did he also show you, was John Martin’s picture in that group of pictures, that day?
“A. It was in that group, but it was a real old one, and I couldn’t identify it.
“Q. Alright, how many pictures did you see, do you know?
“A. Maybe five or six, something like that.
“Q. Alright, and you couldn’t identify any of them as the man, who you made the buy from earlier in the day, is that right?
“A. No, sir, I wasn’t specific.
“Q. Alright, well, were you specific at that time, when he showed you those pictures? Did you tell Detective Shelby, that you couldn’t identify any of those men?
“A. Yes, sir. I looked at the old picture. I said, ‘It could be him, but I’m not sure.’
“Q. I see.
“A. Because it was an old picture. I don’t know how old it was.”
At trial, upon questioning by defense counsel, Holmes testified thus:
“Q. Okay. Now, after you left that house you say you returned back to the police department, isn’t that correct?
“A. Yes, sir, I did.
“Q. Okay. And at that time, isn’t it true that you were shown some photographs of certain people?
“A. Yes, sir, I was.
“Q. All right. Now, did you know John Martin by name when you left his house ?
“A. All I knew was John, sir.
“Q. That’s all you knew was John, right? You knew no name? Now, were you shown a photograph of John Martin at police headquarters when you returned back on that particular day?
“A. None that I could identify of the defendant, sir.
“Q. Do you know whether or not you did see a photograph of the defendant on that particular day?
“A. None that I could identify, sir.
“Q. All right. How many photographs were shown to you, if you recall?
“A. About six, I believe, sir.”
Detective Shelby later testified, upon questioning by defendant counsel, as follows:
“By Mr. Tarachas:
“Q. Officer Shelby, the testimony of Udell Holmes was that the photographs that you showed him the day he came in on November 11 was an old photograph of John Martin, would that testimony be wrong? That you showed him an old photograph.
“A. I would say that there was a John Martin, a man by the name of John Martin, among the photo- ' graphs I showed him, but it was not the John Martin.
“Mr. Tarachas: Are you saying there was another John Martin’s picture in there?
“A. Yes, sir.”
At both the preliminary examination and at trial Holmes testified that two or three days after the sale he was shown two pictures and only two pictures, both of which he identified as the seller. These pictures were of the defendant, John Martin. At the preliminary examination, on cross-examination Holmes testified that he looked at these same two pictures about two or three weeks before the exam. On redirect examination he testified that he looked at the two pictures only once. Defense counsel, on recross, explored this apparent inconsistency. It was then established that he did indeed see pictures of defendant at a later time, but only in connection with another case.
At the trial, defense counsel again sought to pursue the issue of how many times Holmes viewed defendant’s pictures prior to trial. The prosecutor then objected and the jury was excused. A conference was held in chambers. The prosecutor argued that there was no timely motion to suppress the out-of-court identification and that it could not be attacked at trial. Defendant argued that he had the right to cross-examine further relative to the identification and to introduce the photographs. The trial court ruled that the photographs were inadmissible and that cross-examination relative to the identification should cease.
Defendant argues on appeal that limiting his cross-examination of Officer Holmes was error. In Simmons v. United States (1968), 390 US 377, 384 (88 S Ct 967, 971; 19 L Ed 2d 1247, 1253), the United States Supreme Court made the following observation concerning cross-examination in photographic identification cases:
“The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error.”
The scope of cross-examination is within the trial judge’s discretion. People v. McClure (1971), 29 Mich App 361.
Defendant sought to attack the identification procedure through cross-examination of Officer Holmes. We must determine whether the trial judge abused his discretion in limiting the cross-examination. Had defendant been allowed to pursue the issue of how many times Officer Holmes viewed pictures of the defendant, subsequent to the original identification, it is highly likely that the testimony extracted would have been the same as that brought out at the preliminary examination; namely that Officer Holmes did view the pictures again, but in regard to another case. It appears that more harm to defendant would have resulted had the jury known his picture was in a police file of possible criminals and that he was suspected in another crime. See People v. Hill (1970), 28 Mich App 502. Consequently, any prejudice which may have resulted was harmless. People v. Wardell (1970), 26 Mich App 69.
II. Was defendant’s constitutional right to counsel violated when no counsel was present during a pretrial photographic identification?
Officer Holmes identified defendant in a photographic identification two or three days after the sale, when he was shown two pictures of defendant. This was the only time that Holmes looked at photographs to connect defendant with the crime in the instant case. Only when Holmes made this identification did police know defendant’s identity. Prior to this he was known to them only as “John”.
Defendant was identified during the “investigatory stage” where no right to counsel exists. The right does not attach until the “accusatory stage”. United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149); Gilbert v. California (1967), 388 US 263 (87 S Ct 1951, 18 L Ed 2d 1178); Thompson v. State (1969), 85 Nev 134 (451 P2d 704). Defendant had no constitutional right to counsel when the photographic identification took place.
III. Was the out-of-court photographic identification of defendant so impermissively suggestive as to deny defendant due process of lawf
The defendant did not object to the out-of-court identification below. This does not preclude this Court from reviewing an alleged violation of constitutional rights. People v. Limon (1966), 4 Mich App 440.
Defendant argues the out-of-court photo identification was unduly suggestive. The test for setting aside a photographic identification is found in Simmons v. United States, supra:
“[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”
Assuming, but not deciding, that the identification procedures used in this case were suggestive, an in-court identification is not thereby tainted if there is an independent basis of identification. United States v. Wade, supra; People v. Hutton (1970), 21 Mich App 312; People v. Anderson (1971), 29 Mich App 578. The test for determining whether the In-court identification has an independent basis is found in Wong Sun v. United States (1963), 371 US 471, 488 (83 S Ct 407, 417; 9 L Ed 2d 441, 455):
“ ‘[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”
See People v. Childers (1969), 20 Mich App 639, 647.
Normally, the independence of the in-eourt identification is made at a hearing out of the jury’s presence. Defendant lost his right to such a hearing by failing to make a timely motion to suppress. People v. Childers (1969), 20 Mich App 639. This Court will not consider such an issue where it is not preserved at trial or in a motion for new trial and does not come within the rule stated in People v. Degraffenreid (1969), 19 Mich App 702. The record before us does not show a mistake which requires a new trial.
IV. Did the trial court err by admitting into evidence a document stating that defendant did not have a license to sell narcotics?
The trial judge admitted a document signed by the Michigan Director of Drugs and Drug Stores stating that there is no license to sell narcotics for John Martin of 215 South Tenth Street, Saginaw, Michigan. It was admitted under MCLA § 335.54a (Stat Ann 1971 Rev § 18.1074[1]) which requires that such a document be certified.
Defendant contends the document was inadmissible due to improper certification. He further contends the presence of the South Tenth Street address on the document was prejudicial since he claimed he did not live at that address.
The document complied with the statutory requirements. It contained statements by the appropriate public official that he was in charge of drug license records pursuant to cited statutory authority and that defendant had no license. It was signed by that official and had the State Board of Pharmacy seal.
The defendant’s contention that the address on the document was prejudicial to him must also fail. This was not the only evidence linking defendant to the South Tenth Street address. The record shows that the defendant was arrested at that address, which he admitted; that he gave the South Tenth Street address when he was booked; and that a, John Martin of the same address had filed a complaint with the police in September, 1969. The error , if any, was harmless.
Y. Did the trial court err in denying defendant’s motion for a continuance based on current publicity about narcotics and drug abuse of a general nature ivhich did not relate specifically to defendant?
On the weekend preceding defendant’s trial there was considerable state-wide publicity concerning drug abuse arising from the Goose Lake Rock Festival. Defendant contends that this publicity denied him his right to an impartial trial.
The grant or denial of a continuance is within the trial judge’s discretion subject to reversal for a clear abuse of discretion. People v. Pruitt (1970), 28 Mich App 270. In People v. Andrew Thomas (1970), 27 Mich App 539, this Court upheld the denial of a continuance where a local paper ran a series on drug abuse just prior to the defendant’s trial. As in the instant case, the articles were general in nature and made no reference to the defendant. The Court stated that “the only requirement is that a juror be able to view the evidence alone without influence from prior impressions or opinions”. Thomas, supra, at 543. There is no indication in the record that the jurors were so prejudiced by the articles as to not be able to reach an impartial verdict nor is there any evidence of a “deep pattern of prejudice and bias within the community”. Irvin v. Dowd (1961), 366 US 717 (81 S Ct 1639, 6 L Ed 2d 751). The record does show that the trial judge took note of the problem raised by the defendant when the jury was chosen and that defendant did not object to the jury finally chosen. There was no abuse of discretion in denying the continuance.
VI. Were the prosecutor’s remarks in closing argument, including calling defendant a “pushed’ so prejudicial and inflammatory as to deny defendant a fair trial?
In his closing argument, the prosecutor made the following remark:
“This is what we allege are the circumstances here. What is a seller of narcotics? What does he do? Well, I think we have to call him a pusher. I think that’s a synonymous term. WTio goes to the pusher ? Many people.”
Defendant argues there was no evidence presented which permitted the prosecutor to make this statement.
A prosecutor in closing argument may draw inferences from facts in the record. People v. Morlock (1925), 233 Mich 284; People v. Badge (1968), 15 Mich App 29; People v. Russell (1970), 27 Mich App 654. This Court will reverse only when a clear case of abuse is shown by a prosecutor’s remarks which prejudice defendant’s rights. People v. Dawson (1971), 29 Mich App 488; 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 621, p 801. The facts in this case show defendant charged with a single sale of a small amount of heroin. There is no evidence of sales to other people. In the context of the entire summation, we find no clear abuse.
If any prejudice occurred, it was cured by the trial court’s instruction to the jury that it was to make its findings of fact and draw inferences from what was said by the witnesses, not from what counsel said. See Frazier v. Cupp (1969), 394 US 731 (89 S Ct 1420, 22 L Ed 2d 684); People v. Pig gee (1970), 27 Mich App 367.
Affirmed.
All concurred.
The document was prima facie evidence that defendant had no license. It was not rebutted. The question of whether People v. Rios (1971), 386 Mich 172, which held that the prosecution must prove no license as an element of the crime in narcotics cases, applies is thus not before this Court. | [
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Per Curiam.
A jury found the defendant guilty of murder in the first degree, MCLA § 750.316 (Stat Ann 1971 Cum Supp § 28.548), for which he received a sentence of life imprisonment.
It is asserted that the trial judge erred reversibly when he neglected, sua sponte, to charge the jury on other than first-degree murder. The well-established rule in Michigan is exemplified in People v. Phillips (1971), 385 Mich 30, where it was stated:
“Where a request has been made to charge the jury on a lesser included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser offense, refusal to give the requested instruction is reversible error hut, in the absence of such a request, the trial court does not err by failing to instruct on the included offenses. People v. Jones (1935), 273 Mich 430.” (Emphasis supplied.)
As to defendant’s other assignment of error, it is apparent that “poisons” include narcotics such as morphine. 72 CJS, Poisons, § 1, p 162. It is further apparent that when poison has been administered and death ensues, there is an inference that the killing was intentional and with malice aforethought. People v. Gerndt (1928), 244 Mich 622,1 Wharton’s Criminal Evidence (12th ed), § 132, p 251.
There was direct evidence that defendant was one of two men who administered an injection to the deceased victim and his brother, who survived the injection he received. It was not necessary to show further details of the poison used. People v. Kuhn (1925), 232 Mich 310. Premeditation and malice may he inferred from circumstantial evidence. People v. Crawford (1971), 30 Mich App 221.
Affirmed. | [
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Fitzgerald, J.
Defendant appeals as of right from his nonjury conviction on June 26, 1970, of selling heroin without a license. MCLA 335.152; MSA 18.1122.
On November 1, 1969, Robert Griffin visited the Kalamazoo City Police Department and described alleged narcotics traffic occurring at a Kalamazoo address. He offered to co-operate with the police by making a narcotics purchase at that address. He was then thoroughly searched, given a five-dollar bill, and was kept under continuous surveillance by police officers on his way to and from the house in question. When Mr. Griffin left the house and rejoined his police escort, he turned over to them a small red capsule containing a white powder, which he said he had purchased from defendant inside the house. Laboratory analysis indicated that the white powder in the before-mentioned capsule was heroin.
Since this appeal centers about events transpiring during defendant’s preliminary examination, the facts pertaining thereto will be carefully scrutinized.
Defendant was arraigned on November 3, 1969. He then demanded preliminary examination within ten days. Defendant refused the offer of a court-appointed attorney and stated that he would hire his own lawyer. Preliminary examination was set for November 5,1969. On November 5, Pulley indicated that his brother had contacted an attorney, but neither the brother nor the attorney appeared at this time. Therefore the examination was adjourned to November 12,1969, at 11 a.m.
On November 12, defendant appeared in court without an attorney. He claimed he had talked with an attorney whose name he could not recall and had told this lawyer the date and time of the preliminary examination. The court made several telephone calls in an attempt to locate the attorney or the defendant’s brother, who was to have hired a lawyer for defendant. When these efforts proved unavailing, the court decided to proceed and the following colloquy ensued:
“Defendant Pulley: I don’t really think I have an attorney.
“The Court: You talked to an attorney last Wednesday.
“Defendant Pulley: That is all I did, was talk to him. He didn’t ever tell me he was representing me or anything.
“The Court: It is your duty to hire an attorney, it’s not mine, so I am going to allow this witness to testify to preserve his testimony.”
The preliminary examination was then conducted with no counsel present to represent the defendant. Mr. Griffin’s testimony was given and the defendant was allowed to cross-examine and recross-examine the witness.
In the interim, Mr. Griffin had been held in jail as a material witness pending his opportunity to testify at the preliminary examination. Griffin was held because he had stated that he intended to leave the area permanently at the earliest opportunity. Plaintiff thereupon obtained an order from the Circuit Court for the County of Kalamazoo detaining Griffin in jail until 9:30 a.m. November 13, when he was to be released. Thus, both the plaintiff and the court were desirous of conducting the November 12 preliminary examination. Plaintiff wished to preserve Griffin’s testimony before the latter’s departure and the court desired to expedite release of Griffin at the time specified in the hold order.
After receiving Griffin’s testimony, the examination was adjourned to November 19, 1969, on which date the examination continued. By that date, defendant had retained an attorney who appeared on his behalf. Defendant’s counsel moved to strike all of Griffin’s testimony on the ground that defendant had not been represented by counsel at that time. This motion was denied and defendant was bound over for trial.
Since Mr. Griffin could not be found at the time of trial, plaintiff sought to use Griffin’s preliminary examination testimony. Defendant’s objections were overruled and the testimony was admitted. Defendant was convicted and moved for a new trial. This motion was denied, defendant was sentenced, and he now brings this timely appeal.
The sole issue on appeal is whether defendant was unconstitutionally deprived of his right to counsel at a preliminary examination after his refusal to accept a court-appointed attorney upon his statement that he had obtained or was going to obtain his own counsel. An exhaustive study of the instant case substantiates plaintiff’s belief that it is one of first impression in this jurisdiction. The United States Supreme Court, however, has declared that the Sixth Amendment right to cross-examine and to confront witnesses is secured to state-court defendants through the Fourteenth Amendment. Douglas v Alabama, 380 US 415; 85 S Ct 1074; 13 L Ed 2d 934 (1965). Accordingly, where defendant has been denied his rights to cross-examination and confrontation at a preliminary hearing, testimony taken at the examination may not be introduced at the trial. Pointer v Texas, 380 US 400; 85 S Ct 1065; 13 L Ed 2d 923 (1965).
The question to be determined then is whether defendant was in fact denied his right to cross-examination at the preliminary examination. In People v Martin No 2, 21 Mich App 667 (1970), the Michigan Court of Appeals adopted Pointer v Texas, supra, stating at p 675:
“Where defendant is not represented by counsel at the preliminary hearing, all testimony given at the hearing is inadmissible at trial.”
If applied literally, Martin would seemingly preclude admission at trial of preliminary examination testimony in any case where the defendant was not represented by counsel, including those cases in which defendant waived his right to an attorney. Clearly, this was not the Court’s intent in Martin. Martin should be read with cases holding that a defendant’s right to counsel can be waived. People v Matthews, 22 Mich App 619 (1970). This interpretation avoids a construction which would permit defendant to preclude later use of preliminary examination testimony simply by waiving an attorney at the preliminary examination. In this case, however, the record is replete with evidence that defendant did not intend to waive his right to an attorney.
The trial court would have been forced to violate the ten-day rule, MCLA 766.4; MSA 28.922, which was in effect at that time, if it had granted another adjournment. It is not reversible error, however, to hold a preliminary examination more than ten days after arrest where the delay, as in the present case, can be adequately explained. People v Farley, 13 Mich App 132 (1968). MCLA 766.1; MSA 28.919 states that it is the duty of all courts and public officers having duties to perform in connection with such examination to bring them to a final determination without delay except as it may be necessary to secure to the accused a fair and impartial examination. Delay in this case would have provided a fairer and more impartial examination. Therefore, the only rationale for denying defendant’s request for continuance is that a material witness would be released from incarceration and he would immediately take flight. Yet, to hold the witness a few days longer would not have been unreasonable. In re Grzyeskowiak, 267 Mich 697 (1934), stated that a witness should not be held for more than a reasonable time. In that case, where a material witness had been held for four months, the Court determined (at p 702) that, “it would be unreasonable to hold the witness any longer”. In the instant case, the material witness had only been held in jail for nine days. The circuit court would undoubtedly have extended the “hold” for a few more days.
Nor was this the only alternative available to the court. The court could have appointed counsel for the defendant for that particular period in which Griffin’s testimony was recorded in view of the fact that defendant had no intention of waiving counsel. This the court failed to do.
This Court does not impose an undue burden on the lower court, in view of the fundamental importance of defendant’s right to counsel, by determining that defendant was unconstitutionally deprived of his right to counsel at a preliminary examination where delay was refused when such delay was reasonable and would have allowed defendant time to hire an attorney.
Reversed and remanded.
All concurred. | [
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Per Curiam.
On December 8,1961, defendant was arraigned in the Macomb County Circuit Court on an information charging him with breaking and entering in the nighttime pursuant to CL 1948, § 750.110 (Stat Ann § 28.305). Defendant, without the presence of counsel, pleaded guilty, following a reading of the information. He was sentenced on December 15,1961, to a prison term of 1 to 15 years. His application for delayed appeal in this Court was granted on March 26, 1971.
Defendant claims that the trial court, prior to accepting his plea, did not properly advise him as to his right to court-appointed counsel in the event of his indigency, pursuant to Court Rule No 35A (1945), citing People v. Faulman (1970), 23 Mich App 635; and that, although the court did inform defendant that he was waiving that right, the court’s advice was not clearly given due to the failure to inform defendant as to his right to court-appointed counsel.
“The Court: Do you understand what you are charged with?
“The Respondent: Yes, sir.
“The Court: Breaking and entering in the nighttime. Do you know what you are going to do with this case?
“The Respondent: Yes, sir.
“The Court: What do you want to do?
“The Respondent: Plead guilty.
“The Court: Do you understand you have a right to have a trial by jury if you want one ?
“The Respondent: Yes, sir.
“The Court: Do you understand you have a right to have a lawyer if you want one?
“The Respondent: Yes, sir.
“The Court: Do you understand that?
“The Respondent: Yes, sir.
“The Court: Do you understand that you are waiving those rights when you plead guilty and there will he no trial, any trial, do you understand all that?
“The Respondent: Yes, sir.”
A defendant can offer a plea of guilty without waiving his right to counsel. Indeed, he is entitled to counsel and to have counsel offered him before he is asked to decide what he “wants to do”. He is entitled to the benefit of the advice of counsel when he decides whether to plead guilty. Here, he was asked how he pled and then perfunctorily advised as to his right to counsel.
Gideon v. Wainwright (1963), 372 US 335 (83 S Ct 792, 9 L Ed 2d 799, 93 ALR 2d 733) was decided after the defendant in this case pled guilty, hut the mandate of that case is fully retroactive and applies to guilty pleaders. See People v. Carson (1969), 19 Mich App 1, 5, fns 4,7.
Our conclusion obviates discussion of other issues appealed.
Beversed and remanded.
See, presently, MOLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305).
318 Mich xxxix; see, presently, GCR 1963, 785.3(1). | [
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