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Lesinski, C. J.
Defendant, Robert Secorski, Jr., was convicted by a jury of second-degree murder, MCLA 750.317; MSA 28.549. He appeals as of right.
Testimony at the trial revealed that defendant shot and killed Ronald Schefke, after defendant discovered his wife and Schefke embracing in the dark living room at the home of defendant’s parents. Defendant offered insanity as his major defense at trial.
During opening argument, the prosecutor engaged in a deliberate attempt to discredit defendant’s in sanity defense. He made the following statement to the jury:
“Prosecutor: Why this insanity defense, it is just so that you can have an excuse to find the defendant not guilty of this cold-blooded deliberate well-planned murder. Executed by a man who laid in wait and who thought he had a license to kill, and a license to get away with it. He felt all he had to do was take the stand in front of the jury and tell them that he was defending his marriage, and he thought all he had to do was tell the jury that they could find him insane and set him free.” (Emphasis supplied.)
After the prosecutor concluded his opening argument, defense counsel requested, out of the presence of the jury, the trial judge to instruct the jury, in light of the prosecutor’s deliberate misstatement of the law in Michigan, that defendant would be confined in an institution until adjudged sane if found not guilty by reason of insanity. After hearing argument on the request, the trial court announced that it would so instruct the jury, when informing it of possible verdicts.
However, the trial judge neglected to include the instruction among his charges to the jury. The parties apparently operated under the misconception that the instruction had been included, as the prosecutor stated on the record at the conclusion of the charges that he objected to the inclusion of the insanity instruction, while the defense counsel made no objection to its omission.
On appeal, defendant contends that the trial court committed error when it failed to advise the jury that defendant would be confined in a mental institution until adjudged sane if found not guilty by reason of insanity.
The fixing of punishment in Michigan has traditionally been a concern of the trial court, not the jury. People v Cole, 382 Mich 695 (1969); People v Williams, 218 Mich 436 (1922). As a result, both the prosecutor and defense counsel have been proscribed, unless provoked, from referring to defendant’s disposition on the return of a verdict. People v Dunn, 380 Mich 693, 700 (1968). Until the decision in Cole, supra, this general rule also held true as to the verdict of not guilty by reason of insanity. Thus, by stating that defendant “thought all he had to do was tell the jury that they could find him insane and set him free”, the prosecutor violated the principle that the parties should remain silent as to the fate of defendant upon return of the verdict. (Emphasis supplied.) Not only did the prosecutor transgress that rule, but in so doing, he misled the jury as to the consequences of a finding of not guilty by reason of insanity.
We hold that the remarks of the prosecutor, having been allowed to stand without correctional instruction, so tainted the proceedings below that a manifest injustice has transpired. Defendant, under these circumstances, was denied a fair trial.
Reversed and remanded.
All concurred.
A correct statement of the law on the subject is as follows:
“Any person, who is tried for a crime and is acquitted by the court or jury by reason of insanity, shall be committed immediately by order of the court to the department of mental health for treatment in an appropriate state hospital, until discharged in accordance with Act No 151 of the Public Acts of 1923, as amended. The person shall not be released on convalescent care or final discharge without first being evaluated and recommended for release by the center for forensic psychiatry.” MCLA 767.27b; MSA 28.966(12).
The Michigan Supreme Court, in People v Cole, 382 Mich 695 (1969), held that defendant was entitled to an instruction that he would be committed, when found not guilty by reason of insanity, to a mental institution until adjudged sane, if such instruction was requested by either defendant or the jury. Trial in this case predated Cole. | [
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] |
T. M. Burns, J.
Defendant Dykes appeals his conviction of second-degree murder, MCLA 750.317; MSA 28.549, while defendant Young appeals his conviction of manslaughter, MCLA 750.321; MSA 28.553.
Defendants were charged with the death of one Benny Neal. One witness testified to seeing the deceased backing down a stairway while defendant Dykes stabbed and defendant Young kicked at the deceased from above. The testimony of the eyewitness, an 11-year-old child, varied as to whether both defendants or only defendant Dykes had a knife and stabbed at the victim. The testimony of a second witness placed both defendants at the scene of the crime, while that of a third placed defendant Dykes at the scene.
On appeal defendant Dykes complains that it was error to permit the jury to view the scene after the close of proofs and the beginning of jury deliberations, and that his right to confrontation was abridged because he was not present at the view. We find no merit in this claim. Granting a jury view in a criminal case after the beginning of deliberations is within the discretion of the trial court. MCLA 768.28; MSA 28.1051. People v Pizzino, 313 Mich 95, 106 (1945). The record reveals that defendant was represented by counsel at the view and that no request was made that defendant accompany the jury to the view. Under these facts, we find that defendant was not prejudiced.
Defendant Dykes next objects to the form of instruction given the jury by the trial court in respect to the defense of alibi. No request for instruction was made, and no objection to the instruction given was raised at trial. We find the instruction given by the trial court was proper, and there was no error saved for appeal. GCR 1963, 516.2.
Defendant Dykes further claims reversible error in the admission of certain hearsay testimony concerning a statement made to police by an earlier witness placing defendant at the scene of the crime and which recapitulated the earlier testimony as to defendant Dykes. Since the testimony complained of was merely cumulative and corroborative of earlier testimony, its admission did not constitute reversible error. People v Gregory, 130 Mich 522 (1902); People v Adams, 162 Mich 371 (1910) ; People v Kregger, 335 Mich 457 (1953).
Defendant Young complains that there was insufficient evidence to support his conviction for manslaughter. We find that testimony placing defendant at the scene of the crime and engaging in an assault in common with, defendant Dykes on the deceased and from which deceased died sufficient to support his conviction. It is not enough to say that testimony was equivocal as to whether defendant Young had or used a knife against deceased and that testimony tended to show he merely kicked at deceased and that deceased died of knife wounds and not of blows registered by a foot. To support the manslaughter conviction, it suffices that defendant Young was engaged with another in a homicidal assault on the deceased from which he died. It is irrelevant as to who struck the fatal blows. Under the accomplice statute, MCLA 767.39; MSA 28.979, one accomplice is equally.liable for the actions of the other when operating in concert. People v Elmer Weatherspoon, 6 Mich App 233 (1967); People v Licavoli, 256 Mich 229 (1931); People v Mangiapane, 219 Mich 62 (1922).
Defendant Young further charges error in the failure of the trial court to instruct the jury as to the lesser offenses of felonious assault or assault and battery. The record shows that defense counsel made no request for such an instruction and such failure precludes consideration of the question on appeal. MCLA 768.29; MSA 28.1052. Moreover, such an instruction would have been improper in view of the victim’s death. People v Carabell, 11 Mich App 519, 524 (1968), citing People v Adams, 52 Mich 24 (1883).
Finally, both defendant Dykes and defendant Young claim reversible error in the trial court’s admission of a witness’s prejudicial reply to the assistant prosecutor’s inquiry as to her earlier stated reluctance to talk to police, that it was “Because I have two children. I don’t want them dead.”
In earlier direct examination, the witness having testified to seeing defendants at the scene of the crime, the assistant prosecutor asked, “Did you tell the police what you had seen?” to which the witness replied, “I wasn’t going to tell the police anything, but a man put the police on me because he saw me coming out of there”. The assistant prosecutor later asked why she didn’t wish to tell the police anything, over the objection of defense counsel, which question elicited the witness’s prejudicial reply. The trial court ruled correctly denying defense counsel’s objection on the basis of the people’s right to show that the testimony of the witness was not involuntary.
However, having agreed to give an instruction limiting the inferences from the witness’s statement, the trial court failed to do so at the end of trial. While failure to give the promised instruction may well have been error, there is no evidence that the prosecution intentionally attempted to elicit the prejudicial statement from the witness. Nor was the question asked objectionable. Even where the prosecution asks objectionable questions in good faith, it is not grounds for reversal. People v Tubbs, 147 Mich 1, 8 (1907); People v Bergin, 16 Mich App 443, 449 (1969). We have held that prejudicial responses to nonprejudicial questions do not constitute reversible error on appeal in the absence of a motion for a mistrial except where necessary to avoid a miscarriage of justice. People v Tyrer, 19 Mich App 48, 50, 51 (1969).
The failure of defense counsel to pursue the matter further by motion to strike, or motion for mistrial, or to renew the request for a curative instruction indicates there was minimal prejudice to defendants. In view of the fact that there was ample evidence at trial to convict defendants, we do not feel that the witness’s statement warrants reversal.
Accordingly, the convictions of both defendant Dykes and defendant Yonng are affirmed.
All concurred. | [
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] |
R. B. Burns, P. J.
Defendant was convicted of breaking and entering with intent to commit larceny. MCLA 750.110; MSA 28.305.
Defendant requested the trial court to instruct the jury on the lesser included offense of entering without permission. MCLA 750.115; MSA 28.310. The trial court denied the request and the defendant appeals. However, the trial court gave instructions on the following included offenses: entering without breaking — MCLA 750.111; MSA 28.306, and larceny —MCLA 750.360; MSA 28.592.
In People v Stevens, 9 Mich App 531 (1968), Justice T. Gr. Kavanagh, then a member of this Court, stated on pages 533-534:
“These first two assertions of error indicate confusion about the duty of the trial judge to instruct. Where a request has been made to charge on a lesser included offense, the duty of the trial judge is determined by the evidence.
“If evidence has been presented to support a conviction of the lesser offense, the requested instructions must be given; failure to do so would constitute error. People v. Jones (1935), 273 Mich 430. If, on the other hand, no evidence has been presented to support a conviction of the lesser offense, then the requested instruction should be refused. People v. Utter (1921), 217 Mich 74; People v. Hearn (1958), 354 Mich 468.”
In the present case there was no evidence introduced to support the defendant’s requested charge.
Defendant also claims the trial judge admitted prejudicial hearsay testimony by a detective. The detective was testifying as to what he had said. Such testimony does not constitute hearsay since its value did not depend on the credibility of an out-of-court asserter. McCormick, Evidence, § 225, pp 459, 460.
Affirmed.
All concurred. | [
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Per Curiam.
May 14, 1970, a citizens grand jury convened pursuant to MCLA 767.7 et seq.; MSA 28-.947 et seq., returned a true bill charging defendants with conspiracy to violate gambling laws (enumerated). June 13, 1970, defendants moved the trial court for a preliminary examination in district court. The trial court neither granted nor denied this motion. Instead it dismissed the indictments on the basis of a finding that MCLA 767.19g; MSA 28.959(7) was unconstitutional. On leave granted, the people appeal.
We reverse, but before stating the reasons for our action, we note that had the trial court decided the motion that was before it, instead of initiating the attack on the constitutionality of the statute, we might not be thus occupied.
People v. DeSaussure, 33 Mich App 241 (1971), sustains the constitutionality of MCLA 767.19g. We recognize that the trial court did not have the benefit of this decision when the trial court decided the present case.
The motion for preliminary examination should have been denied, People v. James Harris, 37 Mich App 179 (1971).
Reversed and remanded for trial. | [
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Danhof, J.
The plaintiff commenced this action seeking money damages for breach of contract. From February, 1965, through June of 1967 the plaintiff had been employed by the defendant in its nursing education program with the title, Coordinator of Nursing. In April of 1967 the plaintiff was informed that her contract would not be re: newed. In 1969 she commenced this action. The trial court found that insofar as the plaintiff’s complaint was based on the teachers’ tenure act it failed to state a claim upon which relief could be granted.
The trial court entered an order striking all reference to the teachers’ tenure act from the pleadings. The holding of the trial court was that the tenure act did not apply to community colleges and, therefore, the plaintiff was not entitled to relief under the statute. The proper procedure would have been to enter a summary judgment under GCR 1963, 117.2(1). Thus, insofar as plaintiff’s claim is based on the tenure act the order of the trial court is amended to grant to the defendant a summary judgment because of the jfailure to state a claim upon which relief can be granted. GCR 1963, 820. As amended, we affirm the judgment of the trial court.
The parties agree that the question presented is whether the teachers’ tenure act applies to community colleges organized under the Community College Act of 1966, MCLA § 389.1 et seq. (Stat Ann 1968 Rev § 15.615[101] et seq.).
The teachers’ tenure act applies to teachers and the Legislature has defined the term “teacher” as follows:
“The term ‘teacher’ as used in this act shall include all certificated persons employed for a full school year by any board of education or controlling board of any public educational institution.” (MCLA § 38.71 [Stat Ann 1971 Cum Supp § 15.1971].)
At the present time there are no statutory provisions for certifying community college instructors and the Attorney General has ruled that the State Board of Education cannot validly promulgate rules for the certification of community college instructors. OAG, 1961-1962, No 3478, p 239 (January 24,1962). Since there are no provisions for certificating community college instructors obviously the plaintiff cannot be a certificated community college instructor and therefore a certificated person covered by the act.
The parties have stipulated that between October 15, 1964, and June 30, 1969, the plaintiff held a secondary provisional certificate that was valid for teaching all subjects in grades 7 and 8 and subjects in health and social science in grades 9 through 12. However, the holding of an elementary or secondary certificate does not bring a person under the act. The most logical construction of the terms “certificated person” is a person who holds a certificate which is valid for the position to which he is as signed. This is the construction given to the terms by the State Board of Education which by statute, MCLA § 38.72 (Stat Ann 1971 Cum Supp § 15.1972), is given the power to define the term “certificated.” See 1964-1965 AACS, R 390.661. While not controlling on a court, the construction given to a statute by the agency charged with its administration is entitled to great weight. Magreta v. Ambassador Steel Company (1968), 380 Mich 513.
The plaintiff is not a certificated person and therefore she is not covered by the teachers’ tenure act.
A further reason for affirming the trial court is that plaintiff’s complaint is based on the tenure act and thus plaintiff is limited to the relief provided by the act. That relief is reinstatement with back pay. MCLA § 38.103 (Stat Ann 1968 Rev § 15.2003). Under the circumstances of this case a circuit court action for damages for breach of contract is inappropriate insofar as it is based on the tenure act.
Modified and affirmed.
All concurred.
MCLA § 38.71 et seq. (Stat Ann 1968 Kev § 15.1971 et seq.). | [
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Targonski, J.
Louis H. Cheff and other individuals had formed the First National Mortgage Corporation approximately two to three years prior to May 14, 1969, the date of the transaction complained of in this case. At the time the defendant was serving as president of said corporation.
It was alleged at the trial that on May 4,1967, the defendant offered Mr. Couet, the complainant, a purported first mortgage on the house and property located at 3049 East Outer Drive, Detroit, Michigan. Mr. Couet then wrote three checks which totaled $3,500, which were made payable to the First National Mortgage Corporation, and in return received the purported first mortgage on the property located at that address. Subsequent thereto, Mr. Couet received a total of 14 monthly principal and interest payments in the agreed amount of $60 per month as partial repayment of the money received by the corporation. Then, in the latter part of 1968, the First National Mortgage Corporation suffered financial difficulties and found it necessary to institute bankruptcy proceedings. It was at this time that Mr. Couet’s monthly payment check from the First National Mortgage Corporation was returned by the hank for insufficient funds. The complainant then discovered that the purported first mortgage on the property located at 3049 East Outer Drive was, in fact, a mortgage on the property located at 3702 Charlevoix in the City of Detroit. Mr. Couet then filed this complaint against the defendant.
The complainant, on direct examination, testified that he had known the defendant in a business capacity since 1964 and that he discussed the transaction one week prior to the date thereof personally with the defendant who represented that he had an outstanding deal on the Outer Drive property, a home worth approximately $25,000 with the people owning same needing approximately $3,500. He advised the complainant to examine the home but not to speak to the people because of the fact that they were elderly spinsters and were not to he disturbed. Further, the defendant advised the complainant that this deal would go fast and that he should act promptly. About a week after the initial conversation complainant advised defendant that he was satisfied with the transaction and as a result of such second conversation, the defendant came to the complainant’s home and made further assurances that the property in question was worth between $25,000 to $35,000 and that nobody would lose it for a $3,500 mortgage. The transaction was then consummated.
On cross-examination Mr. Couet testified that the defendant told him that he was president and owner of the First National Mortgage Corporation and it developed that the checks in question were deposited to the account of the First National Mortgage Corporation and that the complainant believed at all times that he was dealing with the defendant as the owner of the First National Mortgage Corporation as an individual.
Defendant appeals from conviction by jury on the charge of obtaining money under false pretenses with intent to defraud contrary to MCLA 750.218; MSA 28.415.
The first issue raised by the defendant is whether or not the people established the requisite degree of conformity between the facts alleged in the information and the subsequent trial testimony. The second question, one of first impression, is whether an officer of a corporation may be held criminally responsible for obtaining money under false pretenses with intent to defraud through a corporate act where the act was done by the individual officer or at his discretion. The third issue raised is a question of procedure, whether or not the defendant was denied due process because the prosecution, on the day of trial, elected to proceed on only one of four informations filed against the defendant. We will consider the third question first for the reason that it is a matter which has been considered previously and which if answered in the affirmative would necessitate remand for trial and would make all other questions moot.
On July 7, 1969, separate preliminary examinations were held on each of four warrants filed against the defendant. The defendant was arraigned on August 14, 1969, and trial was set for October 3, 1969, but was later adjourned to November 18,1969. About one week prior to the trial, the trial court’s secretary telephoned the defendant’s counsel and asked him if he would be ready for trial. The attorney advised the secretary that he was ready for trial. Therefore, the case came to trial 134 days after the preliminary examination on the charge and 96 days subsequent to the date of the defendant’s arraignment on the information on the charge.
On the November 18,1969 trial date, the defendant through his attorney requested a continuance on the basis that he did not have adequate time to prepare because the prosecution elected at that time to proceed on only one of the four informations filed against the defendant. Counsel alleges that as a result thereof defendant did not have reasonable notice necessary for him to adequately prepare and defend against a specific charge elected for trial. The trial was commenced on that day but was continued because of the trial court’s attendance at a judicial conference so that defense counsel had an opportunity during such recess to contact any witnesses that he wished to call. Furthermore, the prosecution did not rest its case until Friday, November 21,1969, and the court was further recessed until Tuesday, November 24, 1969, which made for an interim of six days during which counsel had further opportunity to prepare. It should be noticed that defendant’s attorney did not elect to present any witnesses, even though he had previously based his request for an adjournment primarily upon the necessity of securing the presence at trial of a number of witnesses.
Moreover, the defendant’s counsel told the court, “I have not represented to the court that I am not ready because I do not understand the nature of the charges against Mr. Cheff”. This commentary was made as part of the exchange of comments between the attorneys and the court prior to the commencement of trial.
Thus, it is apparent that defendant’s attorney had more than sufficient time within which to prepare a defense. It is also apparent that he understood the nature of the charges against his client. Defendant further alleges that since reasonable notice was not given, a motion for a continuance should not have been denied by the trial court.
In viewing the court’s action, attention must be given to the following statute:
“No adjournments, continuances or delays of criminal causes shall be granted by any court except for good cause shown in the manner provided by law for adjournments, continuances and delays in the trial of civil causes in courts of record.” MCLA 768.2; MSA 28.1025.
This statute has support from an unending number of cases. One of these is People v. Logue, 30 Mich App 669, 671 (1971), in which the Court states:
“Under MCLA § 768.2 (Stat Ann 1954 Rev § 28-.1025), the granting or denial of a continuance in a criminal case is a matter of discretion with the trial court. The case of People v. O’Leary (1967), 6 Mich App 115, reaffirms the discretionary aspect of granting or denying a continuance and adds that prejudice to the defendant must be apparent or proven to have been at least probable to show an abuse of discretion of a trial court in denying a motion for continuance in a criminal case. It is clear from the record that the defendant was not prejudiced by the denial of the grant of continuance by the trial court.”
See, also, People v. Grenier, 34 Mich App 93 (1971).
Thus, based upon the facts shown that defendant’s counsel was afforded more than ample time for trial preparation, a good-cause argument was not presented in support of the motion for a continu anee. Consequently, there could not be any abuse of discretion in this instance.
The parties are in agreement that the complainant did not receive repayment of any monies advanced on the mortgage in question beyond the 14 monthly principal and interest payments in the amount of $60 each previously reported in the statement of facts. The question here is “did the people establish the requisite degree of conformity between the facts alleged in the information and the subsequent trial testimony”.
For that purpose we quote from the information in the case at bar as follows:
“Louis H. Cheff with intent to cheat and defraud one Elmer Couet # * * did designedly and falsely represent and pretend that he, the said Louis H. Cheff was conveying a first real estate mortgage on property located at 3049 Outer Drive, Detroit, Michigan * * * [and] that * * * said Elmer Couet * * * did deliver money in the amount of $3,500 to the said Louie H. Cheff [who] did then and there * # * obtain from the said Elmer Couet, the said money.”
In the instant case, the defendant was charged with and convicted of violating MCLA 750.218; MSA 28.415, which provides:
“Any person who, with intent to defraud or cheat, shall designedly, by color of any false token or writing or by any false or bogus check or other written, printed or engraved instrument, by spurious coin or metal in the similitude of coin, or by any other false pretense, cause any person to grant, convey, assign, demise, lease or mortgage any land or interest in land, or obtain the signature of any person to any written instrument, the making whereof would be punishable as forgery, or obtain from any person any money or personal property or the use of any instrument, facility or article or other valuable thing or service, or by means of any false weights or measures obtain a larger amount or quantity of property than was bargained for, * * * if such land or interest in land, money, personal property, use of such instrument, facility or article, valuable thing, service, larger amount obtained or less amount disposed of, shall be of the value of $100.00 or less, shall be guilty of a misdemeanor; and if such land, interest in land, money, personal property, use of such instrument, facility or article, valuable thing, service, larger amount obtained or less amount disposed of shall be of the value of more than $100.00, such person shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years or by a fine of not more than $5,000.00.”
The defendant urges this Court to hold that the people failed to sustain the burden of proof necessary to establish the required degree of conformity between the facts alleged in the information and those facts testified to at trial because the information does not allege that the checks were payable to the First National Mortgage Corporation although delivered to Mr. Cheff personally. This argument is wholly unfounded upon a glance at the following statute:
“The indictment or information shall contain: 1. The nature of the offense stated in language which will fairly apprise the accused and the court of the offense charged; * * * .” MCLA 767.45 (1); MSA 28.985(1).
A careful research of the authorities indicates that there are no Michigan cases on this point. However, it would appear that this issue is resolved in Hitchcock v. State, 47 Ohio App 90; 190 NE 773 (1933). There, the defendant was a managing officer of a corporation which engaged in the business of preparing abstracts and certificates of title and dealing in mortgages. Complainant purchased a note and mortgage from the company which were duly assigned and delivered to him. Subsequently, complainant delivered the same to the defendant for collection on the note and received a receipt therefor signed by the defendant as secretary of the company. The company collected the amount due, placed the sum in the corporate account and used the same in its business. A receiver was appointed for the company and the complainant did not receive his money because of the financial problems of the corporation. Defendant was tried and convicted of embezzlement.
On appeal, defendant raised the issue that indictment did not charge that the defendant performed the acts complained of on behalf of, and as an officer of, the corporation. The Court replied at 47 Ohio App 97; 190 NE 775:
“While the indictment did not charge that the defendant performed the acts complained of on behalf of, and as an officer of a corporation, it did describe the transaction complained of with sufficient certainty to inform the defendant of the charge against him and apprise him of what the state proposed to prove, and was therefore sufficient.”
Furthermore, even if a defect could be established in the information, there was no allegation of nor any evidence that there was error committed by such defect that deprived the defendant of substantial rights or resulted in a miscarriage of justice. MCLA 769.26; MSA 28.1096.
The remaining question raised by the defendant appears as questions II and III of his brief. We have combined these as one question as to whether or not an officer of a corporation may be held criminally responsible for obtaining money under false pretenses with intent to defraud through a corporate act, where the act was done by the individual officer or at his discretion.
For purposes of this discussion we quote Gillespie’s analysis of MOLA 750.218; MSA 28.415:
“A false pretense, within the meaning of the statute, may be defined as a representation of some present, existing fact or circumstance, intended and calculated to mislead, which is not true, and, which actually does deceive and induces the person deceived to part with something of value by reason thereof.” 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1432, p 1821.
See People v. Reynolds, 71 Mich 343 (1888); People v. Widmayer, 265 Mich 547 (1933).
The essential elements of this offense are: (1) an intent to defraud; (2) the use of false pretenses or false representations concerning an existing fact or circumstance; and (3) the accomplishment of the intended fraud by means of such false pretenses or false representations. 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1432, p 1821. See People v. Wakely, 62 Mich 297 (1886); People v. Lee, 259 Mich 355 (1932); People v. Bagwell, 295 Mich 412 (1940).
It is stated, in 19 Am Jur 2d, Corporations, § 1391, p. 787, that:
“The general rule is that where the crime charged involves guilty knowledge or criminal intent, it is essential to the criminal liability of an officer of the corporation that he actually and personally did the acts which constitute the offense or that they were done by his direction or permission. An officer or agent, however, cannot shield himself from criminal responsibility for his own act on the ground that it was done in his official capacity as an officer of a cor poration; nor can he assert that acts in corporate form are not his acts merely because they are carried out by him through the instrumentality of a corporation which he controls and dominates and which he employs for that purpose.” (Footnotes omitted.)
It appears in 19 CJS, Corporations, § 931, pp 363, 364, that:
“Officers, directors, or agents of a corporation participating in a violation of law in the conduct of the company’s business may be held criminally liable individually therefor. So, although they are ordinarily not criminally liable for corporate acts performed by other officers or agents, and at least where the crime charged involves guilty knowledge or criminal intent, it is essential to criminal liability on his part that he actually and personally do the acts which constitute the offense or that they be done by his direction or permission. He is liable where his scienter or authority is established, or where he is the actual present and efficient actor.”
The following statement has been excerpted from 2 Wharton, Criminal Law & Procedure (12th ed), § 583, pp 307-310:
“The defendant must act with the intent to deceive or defraud the victim by causing him to part with his money or property in reliance on the defendant’s false representation. * * #
“There is no doctrine of lucri ccmsa in the field of false pretenses. It is accordingly immaterial that the defendant did not gain or intend to gain any personal benefit or advantage from obtaining the property from the victim. Because of this, an employee or a corporate officer may be guilty of false pretenses, although it is his employer or the corporation which benefits from the representation. To illustrate, it has been held that when an official of a bank obtains a deposit of money by means of false statements concerning the solvency of the bank, he may be convicted of the crime of obtaining money by false pretenses.”
In 35 CJS, False Pretenses, § 25, p 845, it is stated :
“To convict of obtaining property by false pretenses, it is necessary that the property obtained, or some part thereof, should have been obtained by or for accused. * * * Further, the property need not be obtained by accused for himself, it being sufficient if, as a result of his false representations, it is delivered either for the benefit of accused or for another’s benefit.”
It is stated, in 6 Callaghan’s Michigan Civil Jurisprudence, Corporations, § 116, p 290, that:
“A director, officer or agent is criminally liable for his acts, though done in his official capacity, if he participates in the unlawful act either directly or as an aider, abettor or accessory.”
There are no Michigan cases on this point even though the defendant in his brief cites People v. Behee, 90 Mich 356 (1892), as analogous to the facts in the case at bar. An examination of that case indicates that it deals with facts totally unrelated to the ones in the case at bar and that the case, for that reason, is not analogous to the one under consideration. We do, however, give consideration to cases from other jurisdictions which we believe helpful in resolving this issue.
In State v. Thomas, 123 Wash 299; 212 P 253; 33 ALR 781 (1923), the defendant was charged with, and convicted of, grand larceny. He was the president and managing officer of a corporation which was engaged in the real estate, insurance, and mortgage loan business. Defendant Thomas had notified the complainant that a note secured hy a mortgage then owned hy the complainant would be paid within a couple of days. The complainant then delivered the note and the mortgage to defendant Thomas, who was acting for the corporation, for collection. The complainant received a receipt signed, “Joseph E. Thomas & Company, Inc., by Joseph E. Thomas”. The person obligated paid the note with a check payable to the order of Joseph E. Thomas & Company, Inc. The check was deposited in the corporation’s account and, in due course, was paid by the payor bank. When the check was received, the corporation delivered the cancelled note and a satisfaction of the mortgage to the obligor. The complainant, after making several attempts to collect the sum due him, was informed that he must see the corporation’s lawyers. The corporation was financially distressed and a receiver had been appointed.
The issue before the Court in State v. Thomas, supra, was whether or not defendant Thomas could be held criminally responsible for the act of the corporation in misappropriating the money due the complainant. The Thomas Court, in concluding that the defendant could not escape criminal liability, stated:
“He (Thomas) directly participated in the transaction which resulted in the money, which was paid in for (the complainant) * * * being placed in the account of the corporation with its bank. He (Thomas) knew at this time that the corporation was in financial difficulties * * * . It is true that the money was not paid in to him individually, but came in through an employee of the corporation, who, acting under the general direction of the appellant and in accordance with the general policy of the company in handling such matters, deposited the same in the corporation’s account. There is authority supporting the holding that the appellant (Thom as) is criminally liable * * * ” Thomas, supra, 123 Wash at 303; 212 P at 254; 33 ALR at 783-784.
In State v. Johnston, 6 Wash 2d 141; 106 P2d 1067 (1940), the defendant was charged with four counts of grand larceny by color or aid of fraudulent and false representations. He was president and manager of a corporation engaged in selling automobiles. The first two counts concerned a chattel mortgage naming a fictitious mortgagor, while the third count concerned a chattel mortgage on an undelivered car. The last count concerned a conditional bill of sale purporting to cover an automobile other than the one purchased. These chattel mortgages and the conditional bill of sale had been assigned to a bank.
The Johnston Court, in affirming Johnston’s conviction, said:
“It was not necessary that the respondent should have received any money from the bank by reason of the assignment of the mortgages and bill of sale above referred to. Even though he acted solely as the agent of the auto parts company, if he obtained the money by false or fraudulent representations, he would be guilty of the crime of larceny.” Johnston, supra, 6 Wash 2d at 143, 106 P2d at 1068.
Even though the money was received and misappropriated by the corporation, the scheme for acquisition of the funds was a fraudulent act perpetrated by Mr. Cheff, the president and principal officer of the corporation. Thus, in the light of the generally recognized principle that a corporate officer is criminally responsible for the fraudulent larceny of the property of another through a corporate act where the act was done by the individual officer, at his discretion, or by his permission and in view of State v. Thomas, supra, and State v. Johnston, supra, it was no defense here that the money was paid to the corporation and not to the defendant, Cheff, personally. Affirmed.
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V. J. Brennan, J.
Defendant was tried and convicted of breaking and entering an office building with intent to commit a larceny therein (MCLA 750.110; MSA 28.305) and appeals. A motion to affirm has been filed by the people.
Upon an examination of the briefs and records it is manifest that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission.
Motion to affirm is granted.
Targonski, J., concurred. | [
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] |
Danhof, P. J.
Plaintiff Louis Walter is an employee of the Chesapeake and Ohio Railway Company. While performing his duties as a brakeman on a C & 0 train the plaintiff was injured. At the time of the injury the train was being operated on the property of the Dow Chemical Company and Dow was the owner of the tracks. Plaintiff then brought this action for damages against Dow Chemical alleging negligence. The trial court allowed Dow Chemical to implead the C & O Railway as a third-party defendant. Subsequently, pursuant to GCR 1963, 204.1(4), GCR 1963, 518.2, and GCR 1963, 117.2(1), the trial court granted the C & O Railway a final judgment on the grounds that Dow Chemical had failed to state a claim upon which relief could be granted. We reverse because we regard a final order terminating Dow’s action against the C & 0 as erroneous.
Dow Chemical’s third-party complaint sets forth a claim upon which relief can be granted. In essence the complaint alleges that if Dow negligently contributed to the plaintiff’s injury, the C & O also was negligent and contributed to the injury. If these allegations are proven, Dow and the C & O would be joint wrongdoers and Dow could have contribution under the rule of Moyses v. Spartan Asphalt Paving Company (1970), 383 Mich 314. The trial court held that. the Federal Employer’s Liability Act, 45 USCA § 51 et seq., was the exclusive remedy of the employee against the railroad, and therefore, Dow Chemical could not implead or have contribution from the C & 0. The trial court relied on Husted v. Consumers Power Company (1965), 376 Mich 41.
Rusted is distinguishable from the case at bar. Rusted held that because of the Workmen’s Compensation Act the employer of the plaintiff could not be jointly liable with a third-party tortfeasor, and thus, the employer could not be joined as a third-party defendant. At pp 54-55, the Court, quoting from 2 Larson’s Workmen’s Compensation Law, § 76.21, said:
“ ‘The great majority of jurisdictions have held that the employer whose concurring negligence contributed to the employee’s injury cannot be sued or joined by the third party as a joint tortfeasor, whether under contribution statutes or at common law. The ground is a simple one: the employer is not jointly liable to the employee in tort; therefore he cannot be a joint tortfeasor. The liability that rests upon the employer is an absolute liability irrespective of negligence, and this the only kind of liability that can devolve upon him whether he is negligent or not. The claim of the employee against the employer is solely for statutory benefits; Eis claim against the third person is for damages. The two are different in kind and cannot result in a common liability.’ ”
At p 55 the Court quoted the following from 18 Am Jur 2d, Contribution, § 48:
“ ‘This conclusion has been usually predicated on the fact that the employer and the third person are not under a common liability to the injured or killed workman, since the employer’s liability is imposed, as well as limited, by the provisions of a workmen’s compensation act, while that of the third-person tortfeasor rests on the principles of negligence.’ ”
On p 56 the Court, quoting in part from Baltimore Transit Co. v. State (1944), 183 Md 674 (39 A2d 858, 156 ALR 460), said:
“ ‘The right of contribution is a derivative right and not a new cause of action.’
“Thus if Husted could not sue his employer (Hertel-Deyo), and we know he could not, Hertel-Deyo and Consumers cannot be joint tortfeasors by law. Consumers therefore cannot sue Hertel-Deyo for contribution should it be held to respond to plaintiffs in damages.”
In this case the employee’s right of action against his employer is based on the FELA (Federal Employer’s Liability Act) not on a workmen’s compensation statute. The FELA does not provide the absolute liability that a workmen’s compensation act provides, but rather provides for an action based on negligence. The claim of the plaintiff against his employer is for damages not for statutory benefits as is the case in workmen’s compensation. His claim against Dow Chemical is based on negligence. The two are alike in kind and can result in a common liability. Furthermore, under the Workmen’s Compensation Act the employer’s liability is limited to the statutory amount. The FELA contains no such provision. Under the Workmen’s Compensation Act the employee may not sue his employer and thus a third-party tortfeasor can derive no cause of action from the employee. Under the FELA the employee can sue his employer.
We conclude that while the FELA is an exclusive remedy in the sense that Federal law has preempted the field and the injured party does not have a state remedy, it is not an exclusive remedy in the same sense as a workmen’s compensation statute. Therefore, it does not bar contribution.
Further support for our holding is found in the . fact that a railroad that has compensated its employee may have contribution from a third-party tortfeasor, when permitted by local law. Patterson v. Pennsylvania R. Co. (CA2, 1952), 197 F2d 252, Southern R. Co. v. Foote Mineral Company (CA6, 1967), 384 F2d 224. Moreover, under Federal practice there is ample authority for allowing a railroad to implead a third-party tortfeasor. Patterson v. Pennsylvania R. Co., supra; Zontelli Bros. v. Northern Pacific R. Co. (CA8, 1959), 263 F2d 194; Kennedy v. Pennsylvania R. Co. (CA3, 1960), 282 F2d 705. Under ordinary circumstances if one wrongdoer can have contribution then the other should also have contribution. We have found one case where a defendant upon being sued by an employee of a railroad has been allowed to implead and receive eon tribution from the railroad. Anderson v. United States (WD Ky, 1953), 118 F Supp 498.
We conclude that where state law would allow contribution, the FELA does not bar such an action, and that Michigan law would allow contribution. Thus, the railroad may be liable to Dow Chemical and is a proper party under GCR 1963, 204.
On appeal the C & O has vigorously argued that the action of the circuit court was discretionary and, in view of the complications caused by joinder, no abuse of discretion has been shown. It is true that matters of this type are ordinarily discretionary. However, in this case we are confronted with a final judgment that terminates Dow’s action against the C & 0. It is the finality of the order that we find to be erroneous. If the C & 0 wishes the trial court to exercise its discretion under GCR 1963, 204, it may request such relief upon remand.
We note that the plaintiffs have requested that the issues raised by the third-party complaint be tried separately. In this case the plaintiffs have suffered the same type of delay that was criticized in Moyses, supra. Plaintiffs commenced this action on April 9, 1969, and they are still waiting for a hearing on the merits. On remand we trust that the circuit judge will expedite this matter. An order vacating the order of impleader or an order granting separate trials would not affect Dow’s substantive rights against the C & O, and the plaintiffs should not be subjected to further delay.
Reversed and remanded.
All concurred. | [
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Per Curiam.
April 16, 1971, the trial court entered an order amending the October 5, 1962 pro confesso decree of divorce in this cause. The amending order reduced child support, provided for visitation that was mutually agreeable to the child and defendant, required installment payment of support arrearage, and cancelled alimony as of November 26, 1969. Plaintiff appeals the support reduction and alimony cancellation. Defendant cross-appeals the effective date of the alimony cancellation and contends that the support should have been terminated rather than reduced.
Appellate relief from an order such as is here involved is restricted. Relief is granted only when de novo review establishes that the trial court abused its discretion, Williams v Williams, 368 Mich 573 (1962), or the appellate court is convinced it would have reached a different result had it occupied the position of the trial court, Hensley v Hensley, 357 Mich 3 (1959).
Although MOLA 552.28; MSA 25.106 authorizes revision and alteration of divorce judgments, it is well settled that modification must be based on new facts or change in conditions arising since the judgment which justify the revision, Verbeke v Verbeke, 352 Mich 632 (1958). This record contains no new fact nor change in conditions which justifies reduc tion of support. The only new fact or change in condition which has bearing on cancellation of alimony is plaintiff’s remarriage. This fact alone is insufficient to support a cancellation of alimony. Groeneveld v Groeneveld, 3 Mich App 284 (1966). On this record, it was an abuse of discretion for the trial court to order reduction of support and cancellation of alimony.
Reversed as to the reduction in support and cancellation of alimony and remanded for a determination of the arrearage in support and alimony that has accrued under the amending order of April 16, 1971. The accrued arrearage thus found shall he added to the arrearage existing on April 16, 1971, and paid pursuant to the order of that date. The balance of the order appealed from is affirmed. Plaintiff may recover costs. | [
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Van Valkenburg, J.
The defendant was convicted by a jury of the crime of robbery armed, MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28-.797), and sentenced to serve a period of 10 to 25 years in prison.
The events which led up to the commission of this crime began at about 10 p.m. on April 9, 1968, when Gary Lapides, an undercover police officer in the City of Ann Arbor, called at the defendant’s apartment at 337 East Jefferson in Ann Arbor and purchased some narcotics. Lapides left immediately, returned to his own apartment, and enlisted the assistance of one Wendell Munn, his roommate and fellow officer. They returned to defendant’s apartment and were able to gain admittance, only to be confronted by a pistol in the hands of the defendant.
Both officers were searched, and Munn was relieved of a revolver and a book which contained the names and addresses of narcotic pushers, users and other vital information. The people in the room, including the defendant, suspected that the two officers were narcotics agents and questioned them for some 45 minutes.
It was decided that the narcotics, sold by the defendant, would have to be retrieved. Thereupon, a plan was entered into by defendant and the others, whereby Officer Lapides would be escorted to his apartment while Munn would be held as a captive until they returned with the goods. It was the understanding that, if Lapides and his escort did not return within 45 minutes, Munn would be killed. Fortunately, they were able to complete the mission within the allotted time.
The room was cleared of narcotics at the suggestion of the defendant; however, in the meantime, a wallet containing $32 was taken from Lapides. Neither the wallet nor the money was returned to the owner.
There was some discussion about killing the officers; however, the defendant decided that as long as they had no evidence about narcotics, it would be safe to let them go.
When the officers were about to be released, Lapides was asked if he had everything. He replied that he did not have his wallet. At this point defendant thrust the pistol towards the officer and said, “What?” Lapides replied “never mind” and left the apartment with Munn, in order to secure other assistance.
The defendant was charged with two counts of kidnapping and two counts of armed robbery. Prior to trial, the defendant filed notice of the defense of insanity, MCLA § 768.20 (Stat Ann 1954 Rev § 28.1043). A sanity hearing was ordered by the trial judge and the defendant was adjudged to be incompetent to stand trial. He was committed to the Center for Forensic Psychiatry at Ionia State Hospital for psychiatric evaluation. On January 14, 1970, the trial court found the defendant was then mentally competent and able to stand trial. At the trial, defendant not only denied committing the charged crime, but also raised the defense of insanity.
I. Did the trial court err in admitting testimony which would tend to indicate that the defendant had committed crimes other than the one charged?
MCLA §768.27 (Stat Ann 1954 Rev §28.1050) provides:
“In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
Michigan law is replete with eases that have attempted to interpret exactly what this statute intends; that is, exactly how much latitude the trial court may, in its discretion, allow in the testimony of witnesses as to other crimes committed by the defendant. In People v. Seaman (1895), 107 Mich 348, 358, 359, the Court propounded what has become the classic statement of what other crimes may be testified to to show a felonious intent:
“It is clear that where a felonious intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain.”
Further interpretations by the Court have been in the same vein. In People v. Savage (1923), 225 Mich 84, 86, the Court said:
“It is elementary that the acts, conduct and demeanor of a person charged with a crime at the time of, or shortly before or after the offense is claimed to have been committed, may be shown as a part of the res gestae. Proof of such acts is not rendered inadmissible by the fact that they may tend to show the commission of another crime.”
The trial judge, in his discretion, should find the evidence to be relevant and that its probative value outweighs its potential prejudicial effect to the defendant. If such a finding is made, the evidence is admissible. People v. Shaw (1968), 9 Mich App 558; People v. Flansburgh (1970), 24 Mich App 470; People v. Burton (1970), 28 Mich App 253; People v. Kowatch (1932), 258 Mich 630; People v. Andriacci (1968), 11 Mich App 482; People v. Henderson (1970), 25 Mich App 28; and People v. McClure (1971) , 29 Mich App 361.
An examination of the trial transcript, in light of the above authorities, indicates that the other crimes testified to by the officers would clearly fall within the res gestae.
Only one item might border upon error; that is the reference in five or six lines to the narcotics. However, any possible prejudice, not only by this evidence, but the other crimes as well, was extinguished by the excellent charge of the trial judge:
“There has been some testimony that might lead the jury to believe that the defendant has committed some other offenses, some other types of offense. The court would instruct you now that you are to disregard any testimony of this nature so far as it might tend to show that the defendant did or did not commit the offense with which he is charged. He is only being charged in this case with armed robbery. So, this is only up to the jury to determine whether he is guilty or not guilty, or not guilty by reason of insanity of armed robbery. The mere fact that some evidence, some other possible offense might have been introduced, does not mean that you can take that into account in determining whether the defendant is guilty of this offense, the offense which he is charged with, the offense of armed robbery.”
II. Did the evidence prove beyond a reasonable doubt that the defendant possessed the necessary intent to commit robbery armedf
The law is well settled that one who “procures, counsels, aids or abets” in the commission of a crime may be prosecuted as a principal. MCLA § 767.39 (Stat Ann 1954 Rev § 28.979); People v. Smith (1935), 271 Mich 553; People v. Miniear (1967), 8 Mich App 591.
The essential elements of robbery armed as set forth in the statute, MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797), are: (1) An assault by the defendant upon the complainant; (2) a felonious taking of any property, which may be the subject of a larceny, from complainant’s person or in his presence; and (3) that the defendant was armed with a dangerous weapon.
The defendant insists that he did not know that the wallet would be taken away and not returned. This argument, as to the lack of intent, is without merit. He held a gun on the officers, which would constitute an assault; there was a felonious taking of the property; and defendant was aware of the fact that the wallet and money had not been returned.
A review of the record indicates that all of the necessary elements were present, and that proper instructions concerning the same were given to the jury by the trial judge. Accordingly, the jury was justified in finding the defendant guilty of such an offense. People v. Poplar (1969), 20 Mich App 132; People v. Lloyd (1967), 5 Mich App 717; People v. Arither Thomas (1967), 7 Mich App 103.
III. Was the question of sanity properly submitted to the juryf
For a clear understanding of this issue, it is necessary to place the facts in the proper perspective.
The episode ran from 10 p.m. until 5:15 in the morning. During this time, the defendant sold certain narcotics to Officer Lapides, only to learn later that he was a policeman. He knew that, upon conviction for the narcotics sale, he faced a prison term of at least 20 years and that it might be better to face a murder charge. Thereafter, he planned a course of action not only to rid the apartment of such evidence, but also to retrieve that which had been purchased.
According to the officers, the defendant, a highly intelligent student, remained calm during the entire period.
For the trial, defendant solicited the services of Dr. Orris E. Yoder, a highly respected psychiatrist with 48 years of experience, who visited with him for 1-1/2 hours on 2 occasions and concluded that the defendant was insane on the said date. This opinion was concurred in by Dr. Stavros Papathanassidu, who had worked as a staff psychiatrist for different hospitals.
The people presented no experts, but relied on the evidence furnished by the officers and the testimony of Detective Fitzgerald that the defendant had admitted to him and others that he had done a good “snow job” on the doctors.
The law is well settled that a defendant is presumptively sane, but that once evidence is introduced of insanity, the burden of proof is on the prosecution to establish his sanity beyond a reasonable doubt. People v. Eggleston (1915), 186 Mich 510; People v. Krugman (1966), 377 Mich 559; People v. Woody (1968), 380 Mich 332.
An excellent definition of mental illness was recently promulgated hy this Court in Dayiantis v. Blackhawk Inc. (1971), 33 Mich App 201, 203:
“A mentally incompetent person is one who is so affected mentally as to he deprived of sane and normal action, or who lacks sufficient capacity to understand in a reasonable manner the nature and effect of the act he is performing. See In re Johnson’s Estate (1938), 286 Mich 213; Hillman v. Huitt (1929), 249 Mich 1.”
The prosecution in this case relies heavily on People v. English (1970), 29 Mich App 36, 49, wherein it was held:
“Based on our analysis of the pertinent Michigan eases, we are of the opinion that when the defendant’s sanity is an issue it is not always necessary for the people to introduce affirmative testimony that the defendant was sane in order to make out a case for the jury.”
The English Court continued on page 51:
“Triers of fact are not bound to accept opinion testimony, however expert and authoritative, because opinion testimony is not of the highest order. Vial v. Vial (1963), 369 Mich 534. If, under all the testimony in this case, the jury was compelled to accept questionable opinions of fact, then the doctors, not the jury, would have been determining the facts. We do not think the law of Michigan requires such a result, nor do we think that it should require such a result.”
It must he remembered that the opinions expressed by the experts were based only upon short interviews with the defendant and were not based on an independent assessment of the facts. As stated in English, the jury was not bound to accept these opinions, but rather, was entitled to determine the true situation after a review of all the facts.
Further, what we have here is a .cunning, intelligent individual, who knew what his defense was going to be. Therefore, his statement concerning the “snow job” takes on added significance.
This was admitted by Dr. Yoder in the following testimony given on cross-examination:
“Q. Now, I’m going to ask you a hard question, Doctor, and I realize it is difficult. Is there any chance Mr. Smedley could have been lying to you on July 11,1968, about anything?”
“A. Yes, there is always that chance, always a chance of bluffing. That’s something which the examiner must determine based on his experience and the reaction. Sure, there’s a chance in the course of your work, you would rather acquire a certain ability to evaluate who’s malingering, who is telling the truth, who isn’t telling the truth, but it is an opinion.”
We hold that the jury, as in English, having before it all of the facts, including the expert opinions, was the ultimate judge of the defendant’s sanity at the time that the crime was committed. This case was fairly presented to that body, and we see no reason for disturbing its findings.
Affirmed.
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Per Curiam.
The defendant, Terry Martin, appeals his conviction of the offense of unarmed robbery. MCLA § 750.530; MSA § 28.798.
The people’s evidence tended to show that immediately before leaving a saloon the victim checked his back pocket and ascertained that his billfold was there, that just outside the saloon he was assaulted by the defendant and a companion, and that after his assailants had fled he discovered his billfold was missing and, upon a search of the area, the billfold could not be found. Clearly there was sufficient evidence to support the jury’s verdict.
The jury was adequately instructed concerning the essential elements of the offense by the judge’s charge as it was supplemented following the jury’s request for further instructions.
Affirmed. | [
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] |
Memorandum Opinion (On Rehearing). This cause is controlled by the recent Supreme Court decision in Buscaino v. Rhodes (1971), 385 Mich 474, decided after our opinion was issued.
We grant a rehearing on our own motion and the decision of the trial court is reversed. Costs to plaintiffs. | [
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] |
McGregor, J.
On December 13,1967, the plaintiff was proceeding east on a highway near Flint; at the same time, defendant was proceeding west and wanted to make a left turn into a parking area at a shopping mall. At that point the highway is six lanes wide, the outside lanes being deceleration lanes for the purpose of allowing ingress and egress to and from the commercial business establishments along the highway.
The defendant stopped and signaled that he wanted to make a turn, and traffic in the two inside lanes stopped; defendant had started to make his turn when his vehicle was struck by the automobile being operated by the plaintiff, who was proceeding in the outside lane.
The plaintiff instituted suit on June 16, 1969, alleging that the defendant made an improper and unsafe turn, in that he had to travel across three lanes of oncoming traffic, and that the defendant had failed to exercise reasonable caution before making his turn. The defendant alleged that the plaintiff was guilty of contributory negligence in that she was in an improper lane of traffic, that she was unlawfully passing stopped vehicles on the right, and that she failed to see the defendant and made no attempt to stop her automobile before the collision.
At trial, the plaintiff, as part of her proof, offered into evidence the deposition of the defendant (the defendant having died in the meantime, from causes unrelated to the accident), but wanted to delete from it the following provisions:
“And he said the only thing — he said the only thing was, he said was, she shouldn’t be driving in that lane.
“Q. He didn’t see this accident, did he?
“A. I don’t think he saw the impact, no. And a kid from across the street came over and said the same remark. She shouldn’t be driving in that lane. I don’t know. I said, ‘Did you see the accident?’ and he said, ‘No,’ he didn’t, ‘I was just pumping gas.’ And I guess he must have heard it.
“Q. You don’t know of anyone who saw the accident?
“A. No, I don’t.
“Q. That is what I’m getting at.”
The defendant insisted, however, that this portion be read also, and the trial judge ruled that that portion had to be read.
A jury trial was had on the issues on September 15 and 16, 1970, and the jury found no cause of action. The plaintiff then made a motion for a new trial, and on November 30, 1970, that motion was denied. The plaintiff now appeals, alleging three grounds as error:
First, plaintiff contends she was materially prejudiced by the refusal of the trial court to allow the objected-to statement in the deposition of William Lawrence to be deleted from the deposition before it was read to the jury.
GCR 1963, 302.4 provides:
“Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any 1 of the following provisions: # * #
“(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.” (Emphasis added.)
GCR 1963, 302.5 provides:
“Objections to Admissibility. Subject to the provisions of sub-rule 308.3, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.” (Emphasis added.)
The trial judge based her ruling that all of the deposition had to be admitted primarily on the fact that no objection was made at the time the deposition was taken. This is error, as GCR 1963, 308.3(1) provides:
“Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.”
The trial court’s error is further compounded by the fact that GCR 1963, 302.5 specifically provides that “objection may be made at the trial”. The court rules clearly require the exclusion of inadmissible evidence if a proper objection is made during trial. See also Koenig v Lake Shore, Inc, 376 Mich 131 (1965); 3 Callaghan’s Michigan Pleading & Practice (2d ed), § 35.92, p 312.
This same problem faced the Michigan Supreme Court in Halzle v Hargreaves, 233 Mich 234, 239 (1925). The defendant in that case took the deposition of a witness, and when asked by the examiner from what direction the car was coming, the deponent answered, “From the south. I think they had time enough to get across”. Before the deposition was read at trial, the defendant asked and the court allowed that portion of the answer struck, which said, “I think they had time enough to get across”. The plaintiff in that case argued that since it was the defendant’s examination that had produced the answer, the trial court had no power to strike the objected-to portion. The Supreme Court simply said, “The portion struck out was so clearly incompetent as to fully justify the action of the court”.
The disputed portion of the deposition has at least three independent grounds for exclusion. First, the statements of the deputy and the gas station attendant were opinions on a matter of law and, as such, should have been deleted (indeed, the trial judge ruled that those opinions were not correct, in ruling that the plaintiff had a legal right to be in that lane of traffic). The second ground for exclusion is that the statements of those two individuals are hearsay. The third ground for exclusion is that, since the judge ruled, as a matter of law, that the plaintiff had a legal right to be in that lane of traffic, then the statements as far as this case was concerned, were irrelevant.
Furthermore, the admission of the objected-to portions of the deposition are not harmless error, nor were they cured hy the trial court’s instructions to the jury.
Plaintiff’s contributory negligence was an issue in the case, and the admission of the disputed answer allowed the jury to hear from two persons, one a deputy sheriff, that the plaintiff “shouldn’t be driving in that lane”.
This remark was again inflammatorily placed before the jury during the closing argument, when the defendant’s lawyer said:
“Now, you heard the deposition of Mr. Lawrence read into it, and you heard what he said was the conversation at the scene of the accident when the sheriff arrived: ‘She shouldn’t have been passing in that lane.’ Now, who would know better than the sheriff? He was called out as investigating officer to investigate and to make a report on this accident. She shouldn’t have been passing in that lane; that lane was not put there for that purpose.”
Just how highly prejudicial the testimony was can be seen from the trial judge’s comments, when asked by plaintiff’s counsel if the plaintiff could testify that at the scene of the accident the sheriff allegedly told her “I have considered it carefully and Mr. Lawrence is completely and totally at fault and you are free of all blame”. The trial judge, in response to that question, said that if such testimony was forthcoming she would declare a mistrial.
At the same time the judge’s instructions covered 22 pages in the transcript. In the middle of those instructions appear two sentences, to the effect that the plaintiff had a legal right to be in that outside lane. Taken as a whole, this Court finds that the instructions were not sufficient to cure the error.
Plaintiff also contends that the trial court erred by allowing the question of plaintiff’s contributory negligence to go to the jury, and that the trial court erred when it refused plaintiff’s motion for directed verdict on the question of defendant’s liability.
As there were disputed questions of fact, as to whether plaintiff was guilty of contributory negligence and as to defendant’s liability, the trial court did not abuse its discretion by submitting these questions to the jury.
Reversed and remanded for new trial.
All concurred.
Plaintiff will be used throughout this opinion even though plaintiff driver’s husband was also a party. | [
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Neff, P.J.
Plaintiff appeals as of right from an order of the circuit court granting summary disposition to defendants pursuant to MCR 2.116(C)(7) on the basis that the period of limitation applicable to his malpractice action against the defendants had expired. We affirm.
i
The facts of this case are not in dispute. Defendants, an attorney and his law firm, represented plaintiff in a criminal matter. On June 4, 1990, after conviction,* but before sentencing, plaintiff discharged defendants and obtained new counsel. Plaintiff sought, and was granted, a new trial on the basis of ineffective assistance of counsel. Ultimately, plaintiff’s conviction was overturned, not directly because of defendants’ representation, however, but because an essential item of evidence was lost by the police. Eventually, this Court affirmed the circuit court’s order reversing plaintiff’s conviction. Van Buren Twp v Chow, unpublished opinion per curiam of the Court of Appeals, issued June 1, 1993 (Docket No. 138761). Plaintiff instituted this cause of action on January 18, 1994.
In granting defendants’ motion for summary disposition in this case, the trial court relied on a case both parties agree is factually similar to this one, Gebhardt v O’Rourke, 444 Mich 535; 510 NW2d 900 (1994). Although plaintiff recognizes that under normal circumstances Gebhardt would control the outcome of this case, he argued below, and now on appeal, that the Court’s opinion in Gebhardt, which was released after plaintiff instituted this cause of action, should not be applied retroactively because it set forth a new rule of law. The trial court disagreed and granted defendants’ motion.
H
As stated, plaintiff does not argue that the trial court improperly analyzed the statute of limitations question under our Supreme Court’s ruling in Gebhardt, supra. Accordingly, that question is not before us. The only question raised by plaintiff, and thus properly before us, is whether the Court’s ruling in Gebhardt may be applied retroactively to this case. We conclude that it may.
As a general rule, decisions of Michigan appellate courts are given full retroactivity unless limited retro-activity is preferred where justified by (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect of full retroactive application of the new rule on the administration of justice. See Buckeye Marketers, Inc v Finishing Services, Inc, 213 Mich App 615, 617-618; 540 NW2d 757 (1995); People v West, 159 Mich App 424, 425-426; 407 NW2d 19 (1987).
Here, we conclude that full retroactive application of Gebhardt, supra, is warranted. First, the Supreme Court’s opinion in Gebhardt did not establish a new rule of law, see West, supra at 426; rather, it is readily apparent that the Court was merely enforcing an unambiguous statute and clarifying existing case law. Gebhardt, supra at 541-544.
Next, although plaintiff argues that he relied to his detriment on this Court’s opinion in Gebhardt, which concededly would have provided him more time in which to file this cause of action, we conclude that the record does not support this argument. Plaintiff could have relied on that opinion as an old rule of law only had that case been published before the statutory period expired. Under the statute, which the Supreme Court found to be clear, plaintiff’s cause of action accrued on the last date of defendants’ representation, June 4, 1990, and therefore the limitation period expired on June 4, 1992. This Court’s opinion in Gebhardt was released in August 1992. Accordingly, plaintiff could not have relied to his detriment on that opinion because the period of limitation had already expired on his claim before this Court released its opinion in Gebhardt.
Finally, in considering whether the administration of justice would be adversely affected by full retroactive application of the Supreme Court’s opinion in Gebhardt, supra, we note “that a putpose of clarifying existing law is sufficient for the retroactive application of a rule of law.” West, supra at 427.
Accordingly, we hold that the Supreme Court’s opinion in Gebhardt, supra, is to be applied retroactively and that the trial court in this case properly relied on that opinion in granting summary disposition to defendants.
Affirmed.
Plaintiff was convicted of larceny under $100. Van Burén Township Ordinance § 6.03.
195 Mich App 506; 491 NW2d 249 (1992).
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] |
Butzel, J.
Plaintiff Allie Greer was proprietor of a gas station near Birmingham, Michigan. He owned six small houses and at various times had acquired stock in corporations, including 1,030 shares of stock in the Packard Motor Car Company. Because he had the highest regard for the father-in-law of defendant Henry B. Parks, and also because Parks was connected with a Detroit bank, he used Parks’s services in selling the 1,030 shares of Packard Motor Car Company’s stock. Parks stopped periodically at Greer’s station to purchase gas. Greer first asked Parks to dispose of 130 shares. This was done and the proceeds returned to plaintiff. In February, 1935, Greer asked Parks to sell for him the remaining 900 shares of Packard stock. He indorsed in blank the nine certificates for 100 shares each and delivered them to Parks for the purpose of selling them for him. Parks took them to the Detroit office of E. A. Pierce & Company, a brokerage firm, where he saw defendant J. Roy Boone, who was customer’s man for the brokers. Greer testified that his reason for selling the stock was because he wanted to use the money to com píete a house in course of construction, but that in June, three months later, he told Parks not to dispose of the stock and asked Parks to return it, whereupon he claims that Parks told him that it was perfectly all right to leave the stock at the brokerage firm for safekeeping, and that it could be disposed of any time he directed. In February, 1935, at the time Parks brought the stock indorsed in blank to the- defendant brokers, the disposition of the proceeds of the stock must have been discussed. Parks evidently wanted the proceeds to be credited to hifn, whereupon the brokerage firm, possibly as an extra precaution, asked an authorization from Greer. Parks was furnished with a printed form which he returned signed by what purports to be Greer’s signature. The printed form (exhibit 1) is as follows (the words in italics were written in after the form was brought back to the Pierce office):
“E. A. PIERCE & CO.
‘ ‘ Gentlemen:
“With respect to certificate No. D. 40734/42 x 100 each representing 900 shares of Packard Motor Car Co. stock standing in my name and delivered to you through Mr. Henry P. Parks I hereby authorize you to dispose of same or the proceeds thereof and any income therefrom in any manner he may direct, including a credit therefor to his personal account with you, and I hereby approve and confirm any accounting respecting same made to the said Henry B. Parks and accept the same to your full discharge.
Very truly yours,
Arlie G. Greer.
(Signed) H. B. Parks.
(Signed) J. Boy Boone.”
Exhibit 1 at the bottom of the sheet contains a printed form for acknowledgment, but was not filled out. The signatures of Parks and Boone were also added at the brokerage office, but the record does not show for what purpose. There is no claim that Boone saw Greer sign the document. The stock was sold by E. A. Pierce & Company for $3,409.91, the last 100 shares being sold on April 24, 1935, at a time during which under the undisputed testimony Greer had ordered the stock to be sold and prior to the time, in June when Greer claims he revoked the order. Plaintiff claims that the first time he learned that the stock had been disposed of was in February, 1936. He, however, did nothing to contact E. A. Pierce & Company. There is no claim that the brokers failed to confirm the sale to Parks or to account to him for the entire proceeds of the stock. In fact, the sums so realized, together with some $5,000 Parks was able to obtain from other sources, were credited to Parks’s account by the brokers so that he was able to trade in stocks from time to time, or withdraw the moneys to his credit. After trading in stocks on rather a large scale, he bought and sold grain futures on margin. The account was closed after Parks had suffered losses. However, besides drawing moneys from time to time from his credit at E. A. Pierce & Company, about July 1, 1936, Parks drew $1,964, the balance to his credit. "We accept Greer’s statement that Parks paid no part of this sum or any other sums to Greer, though Parks testified he paid him $400 at one time. Sometime later, Parks instituted a suit against the brokerage firm, claiming that it had not given him correct information. The suit was settled for $750, Parks executed a complete release to E. A. Pierce & Company, and the suit was discontinued.
Plaintiff knew of this suit, but neither during its pendency nor at any other time until on or about June 1, 1939, did he make any claims against E. A. Pierce & Company or Boone, their agent. Greer knew after February, 1936, that his stock had been sold by E. A. Pierce & Company, and later that Parks had sued the brokerage firm, but remained silent. Greer brought the present suit solely on the ground of conspiracy between Parks, Boone, and E. A. Pierce & Company. It was difficult to pin Greer down as to just what the conspiracy consisted of as the declaration is very indefinite. Characterizing an action as one for conspiracy without giving supporting facts in a declaration is insufficient, but even should the allegations be deemed barely sufficient, judgments must be based upon the testimony, not on general words in a declaration. The judge directed a verdict for defendants E. A. Pierce & Company and Boone. Verdict and judgment were rendered against Parks. Plaintiff appeals and claims that E. A. Pierce & Company and possibly Boone should also have been held liable.
Viewing the testimony in the most favorable light toward plaintiff, we nevertheless find no ground for the claim of conspiracy. In their answer to plaintiff’s declaration, appellees Boone and E. A. Pierce & Company set forth exhibit 1 to show that they disposed of the proceeds from the sale of stock in the manner indicated by Greer. Plaintiff in his reply to the answer of E. A. Pierce & Company states in regard to exhibit 1 that he has no knowledge of ever having signed it, and that if his signature is attached thereto, he signed it without knowing the purport thereof but that it must have been presented to him for signature when the certificates of capital stock were presented to him for indorsement. He does not deny that it is his signature. It is very doubtful whether this reply conforms to Court Buie No. 23, § 2 (1933), which calls for explicit denial or at least a statement of insufficient knowledge to form a belief in reply to material allegations. See Detroit Trust Co. v. Hockett, 278 Mich. 124. Also, see Distasio v. Gervasio, 234 Mich. 482. However, as Greer did not deny that it was his signature and admitted that it looked like it, we accept the pleading for what it is worth, bnt not with any commendation of such loose practice in procedure. Exhibit 1 was executed in blank. It was given to Parks to whom Greer had delivered the certificates of stock indorsed in blank.
One who intrusts an incomplete instrument, to which he has affixed his signature, to another to be completed and delivered by the latter, is bound to anyone who relies in good faith on the genuineness of such instrument, although the person intrusted with the completing and delivering of the instrument has exceeded his authority. And it is immaterial whether the third person knew that the instrument was incomplete when signed, since he has a right to assume that the person in whose hands it was placed for final execution had authority to do what he did do in making it an effectual instrument, and is not charged with knowledge of any limitation upon such authority. Vander Ploeg v. Van Zuuk, 135 Iowa, 350 (112 N. W. 807, 13 L. R. A. [N. S.] 490, 124 Am. St. Rep. 275), quoted in Bronson v. Stetson, 252 Mich. 6, 8, 9. This rule was changed by statute but only as to negotiable instruments (2 Comp. Laws 1929, § 9263 [Stat. Ann. § 19.56]). With respect to contracts of guaranty, the common law imposes a stricter rule: the filling in of a blank even in accordance with the guarantors’ understanding constitutes a material alteration discharging them if done after they have affixed their signatures. McConnon & Co. v. Mench, 235 Mich. 640 (48 A. L. R. 737). The document in question, a power of attorney, is neither a negotiable instru ment nor a contract of guaranty, and is, therefore, governed by the common-law rule stated in Vander Ploeg v. Van Zuuk, supra, quoted in Bronson v. Stetson, supra.
Plaintiff, however, claims fraud on the part of Parks, E. A. Pierce & Company, and their agent. Fraud is not lightly presumed; it must be proven. We are unable to follow plaintiff’s theory as to just what the fraud and conspiracy on the part of E. A. Pierce & Company and Boone consisted of. Under the law there could be no fraud claimed in filling in the blanks of exhibit 1 when Parks brought in the certificates indorsed in blank and the proceeds could have been paid-to Parks by E. A. Pierce & Company without knowledge of any limitation on Parks’s authority. See Austin v. Hayden, 171 Mich. 38 (Ann. Cas. 1915 B, 894); Peckinpaugh v. H. W. Nolle & Co., 238 Mich. 464 (52 A. L. R. 941). The case of Detroit Trust Co. v. Struggles, 289 Mich. 595, is not at all applicable. Plaintiff gave various stories as to just what occurred. He testified that he gave the stock to Parks to sell so that the proceeds could be used to pay the cost of construction of the home that Greer was building for himself; again, in referring to Parks, that if Parks sold the stock, that he was to loan Parks the proceeds in order that Parks could buy stocks but not gamble. (He later instructed Parks to return the stock, but not until the stock had already been sold.) He again testified that he authorized Parks to trade with the stock and offer it as collateral for a loan; also that prior to June, 1935, he told Parks that he would lend him money on the stock but, when asked how that could be done, he stated that he supposed it could be put up for collateral. When finally pressed for a statement as to what he based his claim as to conspiracy to defraud on, he stated it was because E. A. Pierce & Company bad made misrepresentations to Parks. This might constitute a cause of action by Parks against E. A. Pierce & Company, but not by plaintiff after settlement of the suit and release by Parks. Plaintiff in his declaration states that the stock was indorsed in blank to enable Parks to sell it for plaintiff and to return the cash received therefor to him. We shall not discuss further details. After careful examination of the entire record, we find no testimony indicating fraud or conspiracy on the part of E. A. Pierce & Company or their agent.
The question of estoppel is not raised, but plaintiff’s silence during all the years that intervened, during which a single word of complaint by him to E. A. Pierce & Company might have stopped payments by E. A. Pierce & Company to Parks, indicates that either Parks carried out what he was authorized to do or was guilty of fraud without the connivance of E. A. Pierce & Company and their agent Boone.
The judge was correct in directing a verdict in favor of defendants E. A. Pierce & Company and Boone. The judgment is affirmed, with costs.
Chandler, C. J., and Boyles, Forth, Starr, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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North, J.
Plaintiff alleges that in his business of conducting an insurance agency he was damaged by the unlawful conduct of defendant in violation of plaintiff’s rights in and to that portion of his insurance business which he had caused to be written in the defendant Auto Owners Insurance Company and for which it had issued its policies. It is agreed that in plaintiff’s representation of the defendant company as its agent at Kalamazoo, what is known as the American Agency System was embodied in and was a part of the 'contractual rights and obligations of the respective parties. The purport of the American Agency System is that upon termination of an insurance agency, if the agent’s financial obligations to the company are paid in full, all rights in the expiration data of existing insurance procured by the agent belong to him. In effect it is the preservation of the good will of the established business and the business itself as the property right of the agent, not of the insurance company. For an alleged violation of plaintiff’s rights in his so-called expirations or expiration data after defendant had terminated plaintiff’s agency, plaintiff brought this suit and on trial by jury had a verdict for $5,000. Judgment was entered on the verdict. Defendant has appealed. The sole ground of appeal is that no testimony was offered from which a jury could find that defendant maliciously interfered with plaintiff’s property rights; and therefore the trial court was in error in denying defendant’s motion for a directed verdict. Such a motion was made at the close of all the proofs. Later a motion for judgment non obstante veredicto was heard and denied.
On this appeal it is of first importance to consider the extent to which the rights of these litigants are affected or controlled by the so-called American Agency System. It is agreed that this system is a custom generally applicable to insurance agencies and is applicable in the instant case; but there is disagreement as to the extent it governs the rights and duties of the respective parties. Several witnesses testified as to what in effect is meant by the American Agency System. Plaintiff testified:
“One of the main features of this system is that where the company cancels the agency the entire rights to the expirations and all other information which the agent has assembled belongs to the agency and not to the company with the provision that if the agent’s balances are unpaid at the end of the allotted term in the contract the company has a lien upon the business and may sell the agency or continue as they see fit. * * * The expiration as the agents get them is a list or copy of the policy which was written showing the name and address of the person insured, a description of the article insured, and the expiration date and all the necessary information including the premium which is necessary to keep a record of the policy itself.”
In Kerr & Elliott v. Green Mountain Mutual Fire Ins. Co., 111 Vt. 502, 510 (18 Atl. [2d] 164), the supreme court of Vermont said:
“In the insurance field the term ‘expirations’ has a definite meaning. As to this it has been stated: ‘The record known in insurance circles as expirations is in effect a copy of the policy issued to the insured, which contains the date of issuance, name of the insured, expiration, amount, premiums, property covered and terms of insurance.’ ”
We think it is clear that the full purpose of and the need for the application of the custom established by the American Agency System is that the so-called clientele or established business of an insurance agent may be preserved to him as far as possible upon the termination of his agency. To this extent, and no further, the custom should be respected and enforced. This custom does not cut off: all right of the insurer to contact persons to whom its policies had been issued through the discontinued agency. Instead the insurer is only denied what would otherwise be legitimate in the way of attempting to appropriate to itself or some other of its agents the business which under this established custom belongs to the agent with whom the principal has severed its relations.
In determining the scope of the rights and duties of the insurer and its agent it is important to be mindful of the character of the agency, because that materially bears upon what the insurer may rightfully do relative to servicing its policies after termination of an agency or in giving notices of cancellation. As will be noted later, these are two matters of which plaintiff herein complains.
Plaintiff in the instant case acted as a solicitor of applications for insurance in defendant company; and such applications were submitted by him to the defendant company for acceptance or rejection. If accepted, defendant wrote the policy which was delivered through the agency. Plaintiff did not write the policy and deliver it to the insured before submitting the application to the insurance company as is generally done with fire insurance. Further, policies issued by defendant provided it might cancel them upon five days’ notice to the insured; and during all the years that plaintiff acted as defendant’s agent the uniform and accepted practice was for the insurer to send notices of cancellation direct to the insured, not to have such notices given by the agent, though his name as agent appeared on the notices of cancellation. Obviously plaintiff’s right under the American Agency System would not be violated by a continuation of this established practice after termination of the agency, provided defendant did not by its conduct maliciously interfere with plaintiff’s right in his established business.
We are decidedly not in accord with plaintiff’s contention as to the scope or effect of the custom prevalent under the American Agency System. Plaintiff’s extreme and unsound position is indicated by the following from his brief:
“It follows from this that if the agent owns the expiration data, that he owns the name and address of the person insured, and the purpose of his ownership of that name and address is so that the insurance company cannot communicate with those persons for any reason whatsoever. The ownership of the name and address is an exclusive right in the agent. * * *
“We insist that any communication sent to the policyholders of the plaintiff’s agency violated the contractual rights between these parties, since plaintiff Woodruff owned their name and address solely and exclusively.”
The issue here presented is whether there is any evidence that in any of the particulars asserted by plaintiff the defendant maliciously interfered with plaintiff’s property rights in the expirations or expiration data of his established business. In support of plaintiff’s claim that defendant unlawfully and maliciously interfered with plaintiff’s property rights in the expiration data of insurance he had caused to be written in defendant company, plaintiff relies much upon the contents of three letters written by defendant shortly after plaintiff’s agency was terminated to holders of policies solicited and obtained by him.’ There are certain other acts of alleged interference to which reference will also be made.
Plaintiff had been conducting an insurance agency in the city of Kalamazoo for some time prior to 1926. In that year he became the local agent of the defendant company, which is an automobile insurance company incorporated under the law of Michigan. At the time plaintiff’s agency was terminated by defendant the written agency contract between these parties provided: “This contract may be cancelled at any time by either party herewith without prior notice, in which event all supplies shall be immediately surrendered to the Company.” Because of the quoted provision there would be no purpose in reciting the matters of dissatisfaction which led to the termination of plaintiff’s agency by defendant. It was terminated on March 30th as of April 1, 1937, and the office supplies in plaintiff’s possession were demanded and received by defendant’s representatives. On April 5, 1937, defendant from its home office in Lansing mailed to some of its policyholders whose insurance had been procured by plaintiff the following letter:
“Dear Policyholder:
“Please be advised that the H. C. Woodruff Agency of Kalamazoo, Michigan, has been discontinued as an agent for the Auto Owners Insurance Company effective April 1, 1937.
“Therefore, for the time being, any reports of accidents or changes in your policy should be re ported to T. M. Alexander, 803 Hanselman building, telephone number 2-2054. Also if there are any questions regarding your policy or adjustments with this company they may be discussed with Mrs. Alexander.
“Mr. Clarence Naze will continue to promptly and courteously take personal charge of your loss adjustments the same as he has been doing during the last several years.
‘ ‘Assuring you of our continued prompt and careful attention to all matters pertaining to your policy with us, we are,
“Very cordially yours,”
The complaint or objection appellee makes to this letter is stated in his brief as follows:
‘ ‘ The letter was contrary to the American Agency System. Sending plaintiff’s clientele to Mrs. Alexander and letting her discuss with them questions regarding their policy was taking the interest away from the agent in that respect; and there was no proper occasion to send such a letter to plaintiff’s clientele.”
Appellee’s contention that the letter was improper is not tenable. Its truthfulness or accuracy is not challenged. Defendant not only had a right to advise these policyholders of the termination of the Woodruff agency, but it was its legal duty to do so or in the alternative be bound by any action of Mr. Woodruff within the scope of his former agency; and this after his agency had been terminated.
“A general agency continues until in some way parties have been notified of its termination, or have sufficient facts in their possession to put them upon inquiry.” Bloomer v. Dau, 122 Mich. 522; quoted in Don G. McAfee, Inc., v. Great American Indemnity Co,, 289 Mich. 143.
Nor was there any impropriety in defendant’s referring its policyholders to Mrs. Alexander as being the defendant’s representative to whom “any reports of accidents or changes in your policy should be reported.” The proper conduct of defendant’s business with its policyholders necessitated communication of this information in view of the fact that defendant’s agency had been terminated. Defendant’s right and obligation to service its policies still remained. Mrs. Alexander was an employee of the defendant company at Lansing. She was sent temporarily to Kalamazoo to take charge of servicing defendant’s policies after the termination of plaintiff’s agency. There is no testimony that she solicited the business of plaintiff’s clientele or did any act which would interfere with his property rights in his established business. We do not understand, as hereinbefore indicated, that the custom established under the American Agency System deprived defendant of the right of properly servicing its outstanding policies to .the extent and in the manner outlined in the letter above quoted, subsequent to the termination of plaintiff’s agency.
At the time of the termination of the Woodruff agency, appellant began pressing appellee for the settlement of his account with defendant on which there was an unpaid balance in excess of $3,000. Substantially a week after plaintiff’s agency was terminated these parties reached an understanding or agreement that if plaintiff paid defendant the balance of his account he would be allowed to service the policies of his clientele' and have the insurance transferred to some other company; and it was agreed that as soon as plaintiff paid defendant the latter would discontinue servicing these policies. After a settlement was later consummated, defendant did not attempt to .service such policies.
On April 14,1937, these litigants and a representative of the American Motorist Insurance Company, which contemplated rewriting the policies procured by plaintiff, met for the purpose of accomplishing an adjustment or settlement of the affairs of plaintiff and defendant. They entered into a three-party contract which will be noted later herein. At this time plaintiff complained that the above-quoted letter of defendant had caused him trouble with his policyholders; and it was agreed defendant should send out another to the same parties. There is much uncertainty as to whether a form letter for this purpose was dictated at the time, as plaintiff claims. If so, it was not used. But on April 19, 1937, defendant mailed to part of plaintiff’s clientele a letter designated in this record as. Exhibit D and to others of plaintiff’s clientele a letter of practically the same purport designated in the record as Exhibit E. Exhibit D reads as follows :
“Dear Policyholder:
“(Becently you were notified that we had can-celled the H. C. Woodruff Agency in your city. As a result of that cancellation it was necessary for us, for a temporary period, to ask you to report any necessary policy changes or any losses you might sustain to T. M. Alexander, 803 Hanselman building.
“Since that letter) we have entered into an agreement with the American Motorist Insurance Company of Chicago, now represented by the above Agency, to have them assume the risk as provided in your policy, beginning April 15, 1937, and pay all losses occurring subsequent to 12:01 a. m., April 15, 1937. They will in due process substitute their own policies for your present policy. You will, therefore, have continuous protection for your policy year.
“We wish to advise that the cancelling of yonr policy is not to he construed by you that we consider you an undesirable risk. It is carrying out a practice between companies that is fairly common where trouble with an agent develops and is in harmony with the practices usually adopted where companies are operating through the American Agency System.”
Exhibit E is the same as Exhibit D except in lieu of the first part of Exhibit D which we have marked with parentheses the following was written in Exhibit E:
“Dear Policyholder:
‘ ‘ Due to the fact that we have cancelled the H. C. Woodruff Insurance Agency, Kalamazoo, the following explanation is necessary and you are requested to observe planned changes affecting your protection. ’ ’
The complaint which plaintiff makes concerning the letters, Exhibits D and E, is set forth in his brief as follows:
“Mr. Cfemrieh [plaintiff’s attorney who had attended the meeting between the parties] was very anxious that the letter that would be sent out following the meeting of April 14th, should correct what he thought was the wrong impression in the other letter [the letter of April 5, 1937]. * * * The last paragraph of the letter [Exhibits D and E] was the very thing they had tried to keep away from the policyholders. Exhibits D and E were in violation of the custom of the American Agency System in that they violated the ownership and control of the business. These letters caused serious harm to plaintiff.”
It is also asserted in plaintiff’s brief that the purpose sought to be accomplished by sending out a letter subsequent to the one of April 5th was that; “A particular letter should be sent out that would advise the people that the matter was back in Mr. Woodruff’s hands.” These letters did state the risks of these policyholders had been transferred to American Motorist Insurance Company “represented by the above [Woodruff] agency.” But in fhis connection it may be noted we do not understand that under the American Agency System the defendant company was obligated expressly tó advise these policyholders that the company to which their insurance was transferred was locally represented by Mr. Woodruff. There is no claim that either of these letters contains an untruthful statement; but the complaint, as stated in plaintiff’s brief, is of the last paragraph in the letters Exhibits D and E. Obviously the specific statement considered objectionable is the reference to “where trouble with an agent develops.” But that statement at most was a rather mild reference to the facts and circumstances which led defendant to terminate plaintiff’s agency; and it does not disclose literally whether the “trouble” was a complaint on the part of the agent against the company or of the company against the agent. According to plaintiff’s brief he contends the defendant company should have in effect written to these policyholders: “It [plaintiff’s clientele] was his business and he was going to handle it and that they were all rewritten and there would be no loss to any of them, and the letter * * * should be placed upon the basis of being a pleasant business transaction between the parties.” Neither under the American Agency System nor under any rule of law of which we have knowledge was there any obligation on the part of defendant to send such a communication to these policyholders. Plaintiff’s right to recover is dependent upon there being some evidence of a malicious injury by defendant to plaintiff’s property right in the expirations and expiration data of the policies issued through his office in the defendant company. "VVe fail to find any statement in any of these letters which is indicative of malice. Defendant had both a legal and a moral right to tell the truth to its policyholders as to why it was cancelling their insurance contracts.
Aá bearing upon plaintiff’s complaint of any of defendant’s conduct touching this business subsequent to April 14, 1937, when the triparty settlement contract was consummated, it should lie noted that regardless of what may have been plaintiff’s rights prior to such settlement, we are of the opinion that thereafter the rights and obligations of these litigants should be determined in the light of the provisions of the settlement contract. The express provision as to plaintiff’s rights in outstanding policies as set forth in this settlement agreement is that the defendant “agrees that the list of policyholders’ names and the list of expiration dates on all policies written by the third party [plaintiff] and now in force in the first party’s [defendant] company are the property of the third party and that first party will not divulge information relating thereto to other agents and will not allow any agent access to its records relating to the same.” From and after the date of settlement the quoted provision in the settlement contract must be considered as controlling the rights and obligations of these respective litigants. It is to be noted that this provision in the settlement contract says nothing about defendant’s right to mail notices of cancellation, which is another aspect of defendant’s conduct of which plaintiff complains. On this phase of the case it is essential to note the following.
In the settlement agreement of April 14th the American Motorist Insurance Company agreed to rewrite, with certain exceptions, all of the outstanding policies which plaintiff had procured and caused to be written in the defendant company and to assume all liability arising from such risks subsequent to 12:01 a. m., April 15, 1937. Plaintiff agreed that after he effected the exchange of policies he would deliver to defendant its policies or obtain a signed release from the insured. The contract provided for the accomplishment of this substitution of policies “as rapidly as can conveniently be done.” Subsequently plaintiff did replace 950 of approximately 1260 of the policies issued through his agency and which were outstanding in defendant company on the date of the settlement agreement. It is obvious that until these substitutions were accomplished or notice of cancellation was given, defendant’s liability on all of these outstanding policies continued. About three months after the date of the settlement agreement, and evidently believing it was justified for the purpose of its own protection from the liability just noted, defendant mailed notices of cancellation to holders of policies issued through plaintiff’s office. Some of these notices of cancellation went to persons to whom plaintiff had not delivered a new policy in the American Motorist Insurance Company; but some of them, through obvious inadvertence, went to people who had received substituted policies in the American Motorist Insurance Company. But it does not appear in the record that any of these latter policyholders terminated their insurance in consequence of having received the cancellation notice from defendant. Defendant under the terms of its contract had a right to cancel these policies, if done in good faith rather than with intent to injure plaintiff’s business. The cancellation notices were in the same form and were served in the same manner as had prevailed during the years plaintiff had acted as defendant’s agent. Since plaintiff had not collected and surrendered these outstanding policies in defendant company or secured policy releases, it was reasonably necessary for the protection of defendant’s rights that it should give the persons holding such policies notice of cancellation. Surely in this exercise of a lawful right for a lawful purpose defendant did not act in a manner which evidenced malice on its part. We are not impressed with plaintiff’s contention that he sustained an actionable injury by reason of defendant having sent these notices direct to policyholders instead of through plaintiff’s agency or by having imprinted on the notices of cancellation: “H. C. Woodruff, Agent.” This had been the common practice during all of plaintiff’s agency. Further, with the exception of the first 50 or 60 notices mailed defendant inclosed with its notice of cancellation the following letter:
“Dear Sir: July 31, 1937
“The inclosed notice of cancellation affects your Auto-Owners Insurance Company’s policy purchased sometime ago through the H. C. Woodruff Agency.
“In the severance of our connection with the above-mentioned agency, our policy, when being substituted by another company’s policy, was to be returned to us and because it has not been returned, this notice is necessary.
“By referring to the policy number on the inclosed notice of cancellation you will know which policy is no longer in force with us. ’ ’
In view of all the circumstances surrounding the mailing of these notices of cancellation, it must be held that defendant’s conduct in so doing did not constitute evidence of malice which would tend to sustain a verdict for plaintiff in this case.
The only other phase of this record which merits notice on this appeal is plaintiff’s contention that there is evidence of malicious injury in the following. For some time prior to the termination of plaintiff’s agency a Mr. Keyser, who Avas a salesman for a biscuit company, as a side line solicited insurance in the defendant company for plaintiff’s agency. He would repbrt to plaintiff’s office about once a week, and at the time plaintiff’s agency was terminated there Avere about 50 outstanding policies which had been procured by Keyser. But as to these policies plaintiff testified:
“All of the policies which Mr. Keyser Avrote while in my employ, the expiration belonged to him. That was the agreement. * * * I had no property right though in the expirations of these policies.”
Sometime after plaintiff’s agency was terminated Mr. Keyser requested the appointment as an agent of the defendant company, and he was appointed as one of its Kalamazoo agents. There is no claim that Keyser Avas under contract obligation to continue as a subagent of plaintiff. Nor is there any testimony that Keyser had any knowledge of plaintiff’s expiration data except that pertaining to the insurance he had written and in which, as plaintiff testified, Keyser possessed the rights in the expirations and expiration data. Nor is there any testimony that defendant permitted Keyser to obtain from it or its records any information of the expirations or expiration data pertaining to policies procured through plaintiff’s agency. Surely upon the termination of plaintiff’s agency, defendant not only had the right but in the natural course of its business would appoint another agent or agents in the Kalamazoo district. Defendant’s having done so is not evidence of malice. Under the circumstances of this case, the fact appearing from the record that Keyser may have solicited insurance from some of plaintiff’s clientele, the same as any other agent might have done, does not tend to establish malicious interference by defendant with plaintiff’s property rights.
We are mindful of the testimony showing that plaintiff, incident to the termination 'of his agency, suffered annoyance, inconvenience, and loss of business. But that alone does not make a case for the jury. Instead there must be competent testimony tending to prove that defendant maliciously interfered with plaintiff’s property rights in his expirations or expiration data. Viewing the testimony in the light most favorable to plaintiff, we are unable to find such testimony in this record. In brief, there is no proof that defendant improperly used or revealed to any other party any of plaintiff’s expiration data or that defendant was guilty of malicious interference with plaintiff’s beneficial use and enjoyment of that property right. In reaching this conclusion we are also mindful that direct evidence of malice is not essential; but “a malicious motive or intent will be presumed or implied in law from the intentional commission of a wrongful act which causes injury to another.” 34 Am. Jur. p. 685.
Judgment entered in the circuit court is reversed without a new trial. Costs of both courts to appellant.
Chandler, C. J., and Boyles, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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Boyles, J.
Plaintiff appeals from an order granting a motion to dismiss a bill of complaint on the ground that it failed to set up grounds for equitable relief. The bill was filed to obtain cancellation of a sheriff’s deed following the usual statutory proceedings for foreclosure of a mortgage and alleged that a sheriff’s sale in pursuance of said proceedings was void on the ground that the notice of sale failed to designate the place where the sale would be held; that the notice stated the sale would be held at the front door of the courthouse in Pontiac, Michigan, without specifying whether the easterly or northerly door was intended; that these two doors are identical in appearance and construction and there is nothing to indicate which of said doors is the front door of the courthouse. The sole question before us is whether the failure to state, in the notice of sale, which door of the courthouse was meant constitutes ground for setting aside the sheriff’s deed.
“The statute governing foreclosure by advertisement is read into every mortgage and becomes a part of the contract. Naylor v. Minoch, 96 Mich. 182 (35 Am. St. Rep. 595).” Oades v. Savings & Loan Assn., 257 Mich. 469.
The notice did not violate any express statutory requirement. 3 Comp. Laws 1929, § 14428 (Stat. Ann. § 27.1224), specifies what the notice must contain and does not in express terms require the place of sale to be stated with any particularity. This statute has remained unaltered since its enactment as a part of the Bevised Statutes of 1846, chap. 130, § 4; 2 Comp. Laws 1857, § 5180; 2 Comp. Laws 1871, § 6915; 3 Comp. Laws 1897, § 11136; 3 Comp. Laws 1915, § 14952. In a case arising under this same statute, this court, in Lee v. Clary, 38 Mich. 223, said:
“We cannot add to the requirements of the statute and hold a notice void for not .asserting or containing what that does not require. In the absence of any statute the power of sale was enforced upon such terms as the contract itself provided. * # * ■
“It seems to be imagined that statutory foreclosures are to be treated as subject to the same rigorous rules that apply to proceedings in invitum contrary to the course of the common law, and that intendments are to be made against them. No doubt every statutory requirement must be adhered to; but these are sales by contract, where the proceeding is authorized by the mortgagor himself to save the expense and trouble of proceedings in equity. Such titles would be worthless if any unreasonable restrictions were laid on them, and the mortgagor would in most cases find it difficult to obtain money on fair terms without some assurance that the enforcement of the security would not be troublesome. No substantial right should be destroyed and no statutory requirement can be overlooked. But all provisions must be reasonably construed.”
In Reading v. Waterman, 46 Mich. 107, referring to Lee v. Clary, supra, with approval, we said:
“Authorities are cited and arguments made on this matter, which relate to proceedings which are had of a hostile character and ex parte, where it is commonly held that such action contrary to the usual course of law, and against persons who have not the common-law benefits of self-protection, should be held invalid, unless conforming strictly to statutory authority.
“We held in Lee v. Clary, 38 Mich. 223, that statutory foreclosures did not come in all respects within the same mischief. The statutes regulating them are made to enlarge and not to cut down the rights of mortgagors. Before such statutes were passed, sales made under a power of sale contained in a mortgage were governed by the same rules applicable to sales under any other power, and courts in the absence of statutes have never applied to such powers any such technical rules as would impair the security of purchasers. The power is part of the contract, and should be construed on principles applicable to contracts, and not as a hostile process.
“The statutes were intended to prevent surprise or unfairness, and they should be enforced in everything substantial. Courts cannot disregard any of their positive provisions. But on the other hand those provisions cannot be enlarged or unreasonably construed so as to render mortgage sales unsafe, or to make bidding hazardous. The law was designed to encourage and not to destroy recourse to these simple and cheap remedies; and while no substantial right should be disregarded, substantial regularity is all that should be held imperative.”
In McCammon v. Railroad Co., 103 Mich. 104, the objection to the sheriff’s deed was that the notice of sale did not state at what particular place the sale would be made, and this court held:
‘‘ The notice of sale stated that it would take place at the courthouse in the village of Mason, Ingham county. This description of the place was sufficient. The notice contained all the requirements of the statute. 2 Comp. Laws 1871, §6915.”
We agree that the bill of complaint sets up no ground for equitable relief. It makes no claim that anyone was actually misled, the sale was held open one hour, and plaintiff claims no lack of notice, or injury. It cannot be gainsaid that a notice of sale to be held at the front door of a courthouse states the place with more particularity than merely designating “the courthouse,” where prospective bidders might have to look for the sale anywhere within the entire building.
It is significant that this bill of complaint was filed June 9, 1941, the day before plaintiff’s right of redemption would have expired (3 Comp. Laws 1929, § 14435, as amended by Act No. 62, Pub. Acts 1937 [Comp. Laws Supp. 1940, § 14435, Stat. Ann. 1940 Cum. Supp. § 27.1231]). The conclusion reached by Mr. Justice Bushnell in Detroit Trust Co. v. Agozzinio, 280 Mich. 402, may well be said to apply to the case at bar:
“The foreclosure of mortgages on real estate by advertisement and sale has been in use in this State for almost 100 years and is well understood. The absence of any cited authority in support of defendants’ contentions and the statement heretofore quoted from appellants’ brief indicates that the appeal is frivolous and was taken only for the purpose of delay.”
A decree may be entered in-accordance herewith, with costs to appellee.
Chandler, C, J., and North, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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Moore, J.
James Medland, the husband of the claimant, was, on the 22d day of May, 1917, in the employ of Houle Brothers. While working in the course of his employment he got a steel sliver in his finger. He received treatment and was removed to a hospital. On May 26, 1917, he died at the hospital. Later the appellee made claim upon the respondent for compensation as the widow and dependent of the deceased under the workmen’s compensation act. The respondent denied the claim of the appellee. The board of arbitration made an award of $9 a week for 300 weeks to the claimant.
It is claimed:
1. That claimant was not the widow of James Med-land, deceased, and therefore has no right to compensation as a dependent under the workmen’s compensation act of the State of Michigan.
2. That James Medland did not meet his death as the result of an accident arising out of and in the course of his employment.
3. That James Medland met his death from a disease known as delirium tremens, which was independent of and not in any way connected with his employment or with any injury that he may have received.
4. That death from delirium tremens is not an accident within the meaning or contemplated by the workmen’s compensation act of the State of Michigan.
5. That claimant is not entitled to compensation from said respondents at the rate of $9 per week.
We quote from the brief:
“The claimant bases her entire claim on the ground that she was a common-law wife of James Medland. If she was not the common-law wife then the case must fall as she has absolutely no grounds to base a claim of dependency. The common-law marriage is alleged to have taken place in May, 1907, and according to the testimony offered by the appellee herself the deceased at that time had a wife named Agnes Medland living in the city of Grand Rapids from whom he had never been divorced. That being the case the deceased and the claimant were not in a position to contract a common-law marriage because the Supreme Court of this State has held that such marriage would not be valid.”
Claimant admits that what was done in May, 1907, did not constitute a common-law marriage, but insists that a divorce was obtained by Agnes Medland from her husband in March, 1909, thus removing any impediment to a marriage between the claimant and Mr. Medland, and that what was done after that constituted a common-law marriage. 'Her testimony is to the effect that after the divorce she and Mr. Medland agreed to live together as husband and wife and that they did so with the exception of a short time, until his death in. May, 1917.
“Q. Do you mean by that you have met the people who Mr. Medland• worked for during this time?
“A. Yes, and other people, too; he has always called me his wife.
“Q. You were presented as his wife?
“A. Yes, always.”
One witness testified that four years before the hearing he rented to Mr/ Medland a house.
“They both came and rented the house.
“Q. State the circumstances of that meeting, if you will, Mr. Gudelsky?
“A. They came in and Mr. Medland asked me if I had that house for rent. I told him, ‘yes, sir,’ and I asked him if he has got any family any children. He said ‘only just me and my wife.’ I said ‘All right I will rent you the house’; so I rented them the house. * * * The last time when he went to the border he come in the store and he said to me, ‘Mr. Gudelsky,’ he said, T am going away,’ he said— * * * So he said to me he said, T am going away,’ he said, ‘and the first money, that I get,’ he said, T will send my wife the money and she will pay you the rent,’ and that is the way it was. When he sent her the money she came and paid the rent.”
Other witnesses gave testimony of a similar kind. In December, 1916, Mr. Medland wrote the claimant from New York commencing his letter, “My Dear Wife,” and telling her in detail of his army life and an offer that had been made him saying:
“Well my dear girl I wold not take the job and stay away from you that long if they gave me 200 pr month becaus I love you to much old sweet hart.”
The instant case is distinguishable from Judson v. Judson, 147 Mich. 518, and Duff v. Judson, 160 Mich. 386, cited by appellant, as a reference to those cases will show. It is controlled by Barker v. Valentine, 125 Mich. 336, and the authorities cited therein.
It was conceded on the oral argument that there was some testimony upon which the industrial accident board could base its finding that death resulted from the injury, making a discussion of groups 2, 3 and 4 unnecessary.
5. Was the award too large? The contention that it is arises from the claim that. Mr. Medland’s wage was $14 a week and that the meals furnished was no part of his pay.
There was testimony that Mr. Medland’s wages were $14 a week and his board and that he took all his meals where he was employed except occasionally tak ing his supper with claimant. Mr. Velo Houle testified : “We always considered that the meals amounted to abo.ut $4 a week with all our help.”
We think there was testimony upon which to base the conclusions of the industrial accident board.
. The award is affirmed, with costs.
Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Brooke, J.
(after stating the facts). The brief of appellants is devoted entirely to a discussion of the question whether plaintiff was in fact engaged in carrying on business in the State of Michigan without a license. The meritorious question thus raised we find it unnecessary to discuss at this time for the reason that in our opinion defendants are not entitled to a final determination thereof upon the record as presented.
Section 4, chap. 14, of the judicature act (3 Comp. Laws 1915, § 12456), is as follows:
“Demurrers, pleas in abatement, and pleas to the jurisdiction, are abolished. All questions heretofore raised by such plea or demurrer, shall hereafter be raised by motion to dismiss, or in the answer or notice attached to the plea; and in case such questions are raised by answer, or by notice attached to the plea, the same may be brought up for determination by the court, in advance of the trial of said cause, upon four days’ notice by either party.” * * *
We had this section under consideration in the late case of Pagenkoff v. Insurance Co., 197 Mich. 166, where we said:
“Unless the matters set up in this motion to dismiss are matters which might have been raised by demurrer, plea in abatement, or plea to the jurisdiction under the former practice, they cannot be made the basis of a motion to dismiss.”
Section 3 of Circuit Court Rule No. 25 provides:
“Pleas in equitable actions, other than pleas in . abatement and to the jurisdiction (which are abolished by' statute) are abolished, and all defenses which might formerly be raised by such pleas shall be interposed by answer provided that on cause shown by motion an issue so raised may be heard in advance of the trial in the cause.”
In our opinion the motion to dismiss cannot properly be considered either as a plea in abatement or a plea to the jurisdiction. Foreign corporations have an undoubted right to litigate their claims in the courts of this State. We are, too, of opinion that the contract itself and the dispute arising thereunder is- within equitable jurisdiction. If plaintiff is barred from maintaining this action because of the statutory provision, that fact has no bearing upon the jurisdiction of the court but may be pleaded by defendants as an affirmative defense in bar of the action. Power Specialty Co. v. Michigan Power Co., 190 Mich. 699. Assuming but not determining that the motion to dismiss may be regarded in the light of a demurrer, defendants’ answer and the affidavits in support of the motion cannot be considered in determining the question. Freeman v. Mitchell, 198 Mich. 207. Upon such an inquiry the only question involved would be whether the bill of complaint stated a cause of action. Allen v. Powers, 196 Mich. 622. Averment in the bill that plaintiff has complied with the statute is unnecessary, as such compliance will be presumed. Prussian National Ins. Co. v. Eisenhardt, 153 Mich. 198. We are quite clear that the defense relied upon is affirmative in character and must be pleaded in bar. Pagenkoff v. Insurance Co., supra. See, also, Fuller & Co. v. Schrenk, 58 App. Div. 222; Illinois Sewing Machine Co. v. Harrison, 43 Colo. 362 (96 Pac. 177).
The order denying the motion to dismiss is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Stone, and Kuhn, JJ., concurred. Fellows, J., did not sit. | [
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Steere, J.
On March 15, 1917, Albert McKenna was in defendant’s employ as a yard conductor in the city of Lansing and lost his life while engaged in directing the making up of New York Central freight train No. 64 in its. Lansing yard. He was on duty there during the nighttime, and as. yard conductor had entire charge of the switch engine and crew, directing their movements in making up this and other trains preparatory to their starting out upon their runs. In his absence it would have been impossible to make up the train in time for it to leave as scheduled. This train regularly carried both inter- and intra-state shipments and on that night consisted of the engine, a caboose and eight freight cars, four of which were loaded with interstate merchandise, billed and bound for points in other States.
There were no witnesses to the accident which caused deceased’s death, but while the train was being made up, shortly after midnight, he was missed and soon thereafter found lying between the rails of the track upon which the train was being placed, crushed and dead with a wheel of one of the cars on his foot.
Deceased was. unmarried with no dependents other than his mother, Catherine McKenna, with whom he lived and who made claim for compensation under the State workmen’s compensation law. Appropriate proceedings were had under that law resulting in an award to her by the industrial accident board of the maximum amount provided by that law in case of death resulting to an employee from accidental injury. The claim was contested by defendant on the grounds that at the time deceased met his death he was engaged in interstate commerce, to which service the State law does not apply; and that in any event the amount claimed, and awarded, was excessive because plaintiff was not wholly dependent on deceased for support, and the permissible award was limited to her shown partial dependency under section 5, part 2, of the act (2 Comp. Laws 1915, § 5435). The industrial accident board found as a matter of fact that deceased was engaged in interstate commerce at the time of his death but held that, as the employer was not shown to have been guilty of negligence, the Federal law did not apply.
At the time the award was made by the board in this case and certiorari taken for review here the case of Carey v. Railway Co., 200 Mich. 12, had not been handed down. It was there said to be settled conclusively by the Federal authorities cited, which are controlling upon the question, that in all American jurisdictions “employees of an interstate carrier engaged in interstate business are not within the jurisdiction of the State workmen’s compensation acts.” In that decision it is held, and recognized as settled by paramount Federal decisions, that the United States employers’ liability statute (35 U. S. Stat. 65) covers the subject of the liability of railroads to their employees for injuries sustained while engaged in interstate commerce to the exclusion of our State workmen’s compensation act. This case has since been cited as controlling and followed in Nichols v. Waters, 201 Mich. 27, and Miller v. Railway Co., 201 Mich. 72.
That deceased’s employment was in interstate commerce at the time of his fatal injury cannot be questioned, and was so found as a matter of fact by the industrial accident board.
It therefore follows from the recent decisions above referred to that the order of award by the board must be and hereby is reversed.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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R. B. Burns, J.
Following a jury trial, defendant was convicted of second-degree criminal sexual conduct involving a member of his household. MCL 750.520c(l)(a); MSA 28.788(3)(l)(a). On September 10, 1990, defendant was sentenced to 2 Vi to 15 years’ imprisonment and now appeals as of right. We affirm.
Defendant first argues that the trial court erred in admitting the victim’s testimony regarding a subsequent sexual act between defendant and the victim. We disagree. People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973); People v Dreyer, 177 Mich App 735; 442 NW2d 764 (1989). Further, MRE 404(b) specifically provides for the admission of evidence of other crimes, wrongs, or acts that occurred after the conduct at issue in the case. Contrast, however, FRE 404, which does not contain language specifically allowing for the admission of evidence of subsequent acts.
Defendant next argues that the trial court erred in failing to give the jury a limiting instruction regarding the evidence of the subsequent sexual act between defendant and the victim. However, defendant failed to request such a limiting instruction and failed to object to the. jury instructions as given. Therefore, this issue is not preserved for appellate review. People v Livery Clark, 172 Mich App 407, 417; 432 NW2d 726 (1988).
Affirmed.
Doctoroff, C.J., concurred. | [
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Shepherd, J.
Plaintiffs brought this action seeking an injunction against enforcement of defendant township’s ordinance prohibiting the possession of certain enumerated exotic or wild animals. Plaintiffs own a cougar, which is prohibited by the ordinance. The trial court permanently enjoined the township from enforcing the ordinance against plaintiffs with respect to the cougar they presently own. We reverse.
According to plaintiffs’ complaint, they acquired a South American cougar kitten in November 1987. At that time, the pertinent township ordinance required that such animals be kept in a "suitable cage or land formation sufficient to prohibit direct or indirect contact with the public.” The ordinance also required the owner of a wild animal to give notice to the township of the kind of animal involved, the propensities of the animal, and other relevant data. The township was empowered to inspect the cage or land formation, to notify appropriate state agencies of inadequacies, and to issue orders reasonably necessary to insure the health, safety, and welfare of the inhabitants of the township. To comply with this ordinance, plaintiffs put bars on the doors and windows of their house. There is no claim that plaintiffs violated the ordinance in effect at the time they acquired the cougar.
In June 1989, the ordinance was superseded by the one at issue herein, Clinton Township Ordinance No. 280, which provides in pertinent part:
Section 2. Deñnitions
As used in this ordinance:
(b) "Exotic or Wild Animal” means a wild animal not occurring naturally, either presently or historically in this state.
Section 3. Animals Excluded
(1) Except as otherwise provided in this Section, it is unlawful in this township for a person to possess, breed, exchange, buy, sell, or attempt or offer to buy or sell, the following exotic or wild animals:
(e) Cats (wild family including but not limited to bobcat, cheetah, cougar, jaguar, leopard, lion, lynx, mountain lion, panther, puma, tiger) ....
(2) A person who owns an exotic or wild animal listed in subsection (1) on the effective date of this ordinance shall within thirty (30) days of the effective date of this ordinance remove the animal from the township.
Section 5. Penalties
A person who violates this ordinance is guilty of a misdemeanor, punishable by imprisonment in the county jail for a term not to exceed 90 days or a fine not to exceed $500.00 or both, in the discretion of the court.
Section 6. Nuisance Per Se
Any continuing violation or a repeated violation of this ordinance shall constitute a nuisance per se and may be abated by an action in circuit court separately or in addition to criminal proceedings.
At an April 19, 1990, hearing, defendant’s counsel indicated that plaintiffs were given a notice to remove their animal from the township on August 19, 1989. Plaintiffs did not comply and, again according to defendant’s attorney, a warrant was requested in November 1989. Plaintiffs were cited for violating the ordinance, and, according to plaintiffs’ trial brief, trial on that charge was set for April 19, 1990, in the district court. The complaint in this case was filed on April 18, 1990, and a temporary restraining order was issued that day restraining defendant from enforcing the ordinance against plaintiffs. At a show cause hearing on April 19, 1990, the trial court in this case entered a preliminary injunction. On August 23, 1990, the trial court entered its opinion and order permanently enjoining defendant from enforcing the ordinance against plaintiffs. A subsequent order clarifies that the injunction applies only to plaintiffs herein and with respect to the cougar they purchased in November 1987. The injunction was based on estoppel, the court’s finding that the ordinance was an ex post facto law, and the court’s finding that the ordinance conflicted with pending state legislation.
On appeal, defendant argues that "criminal prosecutions are precluded from being enjoined.” This is an overstatement. Nonetheless, we agree that injunctive relief was improper in this case.
Granting injunctive relief is within the sound discretion of the trial court. Holland v Miller, 325 Mich 604, 611; 39 NW2d 87 (1949); Holly Twp v Dep’t of Natural Resources (On Rehearing), 194 Mich App 213, 216; 486 NW2d 307 (1992). The exercise of this discretion may not be arbitrary, but rather must be in accordance with the fixed principles of equity jurisprudence and the evidence in the case. Holland, supra, p 612. Injunctive relief is an extraordinary remedy that issues only when justice requires, there is no adequate remedy at law, and there exists a real and imminent danger of irreparable injury. Holly Twp, supra.
Defendant cites the following cases for the proposition that it is the general rule that criminal prosecutions cannot be restrained by injunction: Kleinke v Oates, 187 Mich 548; 153 NW 675 (1915); Osborn v Charlevoix Circuit Judge, 114 Mich 655; 72 NW 982 (1897); Society of Good Neighbors v Groat, 77 F Supp 695 (ED Mich, 1948). Defendant fails, however, to discuss cases applying an exception to this general rule. See, e.g., Ritchie v Hamtramck, 340 Mich 284; 65 NW2d 732 (1954).
In Ritchie, our Supreme Court recognized the general rule stated in Osborn, but noted that an exception to this general rule was made in Michigan Salt Works v Baird, 173 Mich 655; 139 NW 1030 (1913):
Equity has jurisdiction to interfere, by injunction, in a case where public officials are proceeding illegally and improperly under a claim of right, where it is alleged, as in the instant case, that the complainant thereby suffers irreparable injury. [Ritchie, supra, p 288, citing Baird, supra, p 662.]
The irreparable injury referred to must result from the acts of the public officials in enforcing the allegedly invalid law. Diggs v State Bd of Embalmers & Funeral Directors, 321 Mich 508, 514; 32 NW2d 728 (1948). In Diggs, our Supreme Court commented:
This Court has repeatedly held that in cases where an irreparable injury will result from the acts of public officials in attempting to proceed under an invalid law, the jurisdiction of equity may be invoked for the purpose of obtaining in junctive relief and a determination as to the constitutionality of the statute that is involved. [Id.]
In this case, plaintiffs’ alleged irreparable injury consists only of the feared loss of the cougar if the ordinance is enforced. Plaintiffs do not allege that they lack an adequate remedy at law. To understand the requirements of an irreparable injury and no adequate remedy at law, we may look to Baird, supra. In that case, the plaintiff, Michigan Salt Works, apparently had not violated the statute at issue. The plaintiff argued that injunctive relief was proper, and the Supreme Court agreed:
Referring to the contention of defendants that complainant has a full, adequate, and complete remedy at law, it is true that it has a legal remedy. It may refuse to comply with the provisions of the act in question, and so expose itself and its responsible officers to prosecution under the act. Upon such prosecution, it may set up, in its defense, the alleged unconstitutionality of the law; and, if upheld in its contention, it will escape punishment either by way of fines or imprisonment. But suppose complainant should be illy advised, and upon final adjudication it is determined that the law is valid, it then becomes liable to all the penalties provided by the statute.
If a year should be consumed in reaching a legal determination of the question, this complainant, according to the averments in the bill, would (in the event of an adverse decision) be liable to fines aggregating more than $200,000, besides a possible term of imprisonment for some one or more of its responsible officers. [Baird, supra, pp 660-661.]
In this case, plaintiffs had already violated the statute and criminal proceedings had been commenced before they brought this action. Plaintiffs have made no showing that they will be irreparably harmed by the continued pendency of the criminal proceeding in district court, other than that they would be subject to the penalties for violating the ordinance. If the circuit court had upheld the ordinance or refused to enjoin its enforcement, plaintiffs would still be subject to the same penalties because the acts giving rise to the violation have already been completed. Under these circumstances, plaintiffs are not entitled to a determination in a forum other than the district court. The circuit court abused, its discretion in awarding plaintiffs permanent injunctive relief. Holly Twp, supra.
We do not address the merits of the constitutionality of the ordinance. To do so would violate our holding that this issue should have been addressed in the first instance by the district court in the criminal case.
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MacKenzie, J.
Plaintiff Richard G. Nugent, as conservator of the estate of his minor son, Matthew, appeals as of right from an order granting summary disposition in favor of defendants Chris L. Bauermeister and Kenneth L. Cook. We affirm.
The facts of the case are undisputed. Matthew (hereafter plaintiff) and his close friend, Eric John Bosco, were riding their bicycles on the shoulder of M-25 in Bay County when defendant Bauermeister lost control of the pickup truck he was driving. The mirror of the truck grazed but did not hurt plaintiff’s elbow. Plaintiff then watched as the truck struck and fatally injured Eric.
Plaintiff’s complaint alleged that witnessing the death of his friend, due to defendant Bauermeister’s negligent operation of a motor vehicle, caused plaintiff to suffer severe emotional distress. The trial court agreed with defendants that the complaint failed to state a claim and accordingly granted summary disposition under MCR 2.116(C) (8). The sole issue on appeal is whether a person who witnesses the death of a friend has a viable cause of action for emotional and psychological injury. We hold that he does not.
It is undisputed that, in Michigan, a plaintiff may in certain instances recover for mental distress when a third person is injured or exposed to injury by a negligent tortfeasor and the plaintiff is present. The class of persons entitled to such bystander recovery is extremely limited, however. In Gustafson v Faris, 67 Mich App 363; 241 NW2d 208 (1976), this Court, quoting from Prosser, Torts (4th ed), § 54, pp 334-335, adopted the following restrictions for bystander recovery for emotional distress:
[I]t is . . . obvious that if recovery is to be permitted, there must be some limitation. It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one man were compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as his friends. And obviously the danger of fictitious claims, and the necessity of some guarantee of genuineness, are even greater here than before. It is no doubt such considerations that have made the law extremely cautious.
... It is clear that the injury threatened or inflicted upon the third person must be a serious one, of a nature to cause severe mental disturbance to the plaintiff, and that the shock must result in actual physical harm. The action might, at least initially, well be confined to members of the immediate family of the one endangered, or perhaps to husband, wife, parent, or child, to the exclusion of mere bystanders, and remote relatives. As an additional safeguard, it might be required that the plaintiff be present at the time of the accident or peril, or at least that the shock be fairly contemporaneous with it, rather than follow when the plaintiff is informed of the whole matter at a later date. [67 Mich App 368-369. Emphasis added.]
These limitations have consistently been applied by this Court since Gustafson was decided. See Miller v Cook, 87 Mich App 6; 273 NW2d 567 (1978); Williams v Citizens Mutual Ins Co of America, 94 Mich App 762; 290 NW2d 76 (1980); Pate v Children’s Hosp of Michigan, 158 Mich App 120; 404 NW2d 632 (1986); Wargelin v Sisters of Mercy Health Corp, 149 Mich App 75; 385 NW2d 732 (1986) ; Henley v Dep’t of State Hwys & Transportation, 128 Mich App 214; 340 NW2d 72 (1983); Detroit Automobile Inter-Ins Exchange v McMillan (On Remand), 159 Mich App 48; 406 NW2d 232 (1987) .
We decline to deviate from Gustafson by expanding the class of persons entitled to bystander recovery from immediate family members to close friends of the injured third party. Our research has found two cases in which the bystander plaintiffs sought to recover for emotional distress after witnessing the death of a person who was "like a brother or sister” to them, the claim pleaded in this case. Kately v Wilkinson, 148 Cal App 3d 576; 195 Cal Rptr 902 (1984); Trapp v Schuyler Construction, 149 Cal App 3d 1140; 197 Cal Rptr 411 (1983). In both cases, recovery was denied. In a somewhat analogous line of cases, bystander recovery has also been denied where the plaintiff claiming emotional distress cohabited with, but was not married to, the injured third party. See Elden v Sheldon, 46 Cal 3d 267; 250 Cal Rptr 254; 758 P2d 582 (1988); Drew v Drake, 110 Cal App 3d 555; 168 Cal Rptr 65 (1980); Ferretti v Weber, 513 So 2d 1333 (Fla App, 1987). But see Ledger v Tippitt, 164 Cal App 3d 625; 210 Cal Rptr 814 (1985).
Two rationales are generally advanced for the decision to deny bystander recovery to a plaintiff who is not an immediate family member. The first rationale involves the problem of reasonable foreseeability. Under this analysis, courts have held that it is not reasonably foreseeable that a bystander other than a close relative would suffer emotional distress as a result of witnessing a third party’s injury. Trapp, supra; Drew, supra. The second rationale involves the need to circumscribe liability, and is typically articulated as a concern that permitting recovery by bystanders other than close relatives would expose defendants to limitless liability, out of proportion to the degree of the their negligence. See Thing v La Chusa, 48 Cal 3d 644; 257 Cal Rptr 865; 771 P2d 814 (1989). In this regard, at least one court has held that the class of persons who may properly seek bystander recovery for emotional distress should be limited to those individuals who are permitted to bring an action under the state’s wrongful death statute. Gates v Richardson, 719 P2d 193 (Wyo, 1986).
Both rationales are sound and are consistent with the concerns articulated by Prosser, as adopted by this Court in Gustafson, supra, and its progeny. Accordingly, we hold that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person only if the plaintiff is an immediate member of the victim’s family.
Plaintiff also suggests that he should be allowed to recover for the injuries he suffered as a direct victim of defendant Bauermeister’s negligence, i.e., being grazed by the pickup truck and fearing for his personal safety. A fair reading of the complaint discloses that such a claim was not pleaded, however. The trial court did not err in granting summary disposition pursuant to MCR 2.116(C)(8) for plaintiff’s failure to state a claim upon which relief could be granted.
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Fellows, J.
(after stating the facts). It was the claim of defendant that Mrs. Siegel’s marriage to Mr. Siegel was an unlawful one, that she had at that time a husband living, that untruthful statements were made in the affidavit for the marriage license and that her former life had not been above reproach. Defendant’s counsel insist that the cross-examination of this witness upon these questions was unduly limited by the court. It is true, as insisted by counsel, that upon cross-examination, within reasonable limits, a witness may be very thoroughly sifted to develop his antecedents — his true character, for the purpose of affecting his credibility as a witness, and to enable the jury to properly weigh and measure that credibility. Wilbur v. Flood, 16 Mich. 40; but a careful reading of the cross-examination of this witness covering some 24 pages of the record, most of which was devoted to her past life, satisfies us that the trial court was sufficiently liberal in permitting full inquiry as to the matters affecting her credibility, and that defendant was not hampered to his prejudice in the conduct of such examination.
Nor are we persuaded, from an examination of the entire record, that it shows, as claimed by defendant, such antagonistic and prejudicial conduct on the part of the presiding judge as prevented a fair trial of the defendant. The position of the presiding judge was a most trying one. The case bristles with acrimony which we are unable to discover substantial foundation for. Neither side can be entirely absolved for this condition. The trial judge in an attempt to preserve an orderly conduct of the trial at times found it necessary to speak quite plainly and positively. We discover no prejudicial érror in his so doing.
Error is assigned upon the statement made by the prosecuting attorney in his argument to the jury, to the effect that he thought Mrs. Siegel told the truth while on the witness stand, and it is insisted that this was tantamount to saying he believed the defendant was guilty. Upon objection being made the prosecuting attorney promptly told the jury that they were not to follow what he thought, that they were not to be guided in any way by what he thought. When defendant’s counsel, Mr. Snow, objected to the remarks of the prosecuting attorney, the court at once stated:
“What Mr. Snow means is this: the prosecuting attorney in those cases has no right to give his opinion as to the testimony, the truth of it or the falsity.”
We do not find that the court was requested to instruct the jury further on the subject. Within our holdings in People v. Hess, 85 Mich. 128; People v. Ponsford, 181 Mich. 659, and other cases, we should not reverse this case upon this assignment of error.
Error is assigned on the following instruction given by the court:
“Every person charged with an offense is presumed to be innocent until they are proven guilty beyond a reasonable doubt, and that presumption of innocence attends such person all the way through the trial and up until such time as you find beyond a reasonable doubt he is guilty as charged, and when that time comes then the presumption ends.”
It is urged that this instruction permitted the jury to convict upon gossip, prejudice or anything in or out of the case and did not require the jury to be convinced by the evidence in the case. People v. McClintic, 193 Mich. 589, is cited to support this contention. In that case the infirmity in the charge consisted in the instruction that the presumption of innocence obtained “until the people, through the prosecuting attorney, have convinced” the jury of defendant’s guilt. This court there held that such instruction was not the equivalent of saying that the presumption of innocence continued until overcome by evidence which convinced the jury beyond a reasonable doubt of defendant’s guilt. But defendant in the instant case overlooks the fact that in the language complained of here the word “proven” is used. In the first section of Greenleaf on Evidence it is said: “Things established by competent and satisfactory evidence are said to be proved.” The instruction in the instant case, then, must be regarded as the equivalent of an instruction that a person charged with an offense is presumed to be innocent until it is established by competent and satisfactory evidence that he is guilty beyond a reasonable doubt. The instant case is further distinguishable from the McClintie Case in the fact that in the McClintie Case specific instructions were preferred, while in the instant case none were, so far as the record discloses. See People v. Rogulski, 181 Mich. 481.
The trial court also charged the jury:
“If in this case you find beyond a reasonable doubt that the testimony of Mrs. Siegel as to the purchase of the liquor is corroborated by the testimony of other witnesses as to all the facts and circumstances, and you believe the testimony of these witnesses to be true, you have no right, nor can you discard the testimony of Mrs. Siegel as being false. Now, understand that. If you find beyond a reasonable doubt that the testimony of Mrs. Siegel is corroborated by the testimony of other witnesses, which testimony you believe to be true, then you cannot discard her testimony as being false and this same rule applies to each and every witness sworn in the case upon any material issue, no matter in whose behalf they were testifying.”
“Corroborate” is defined in Black’s Law Dictionary (2d Ed.), p. 277: “To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence.” See, also, Still v. State, (Tex. Crim. App.), 50 S. W. 355; State v. Hicks, 6 S. D. 325; State v. Guild, 10 N. J. Law, 163.
If Mrs. Siegel’s testimony as to all the facts and circumstances was strengthened, confirmed, and corroborated by the testimony of other witnesses, whose testimony was believed by the jury beyond any reasonable doubt, then all the facts and circumstances were proven beyond a reasonable doubt, and under such circumstances the jury would not be justified in discarding the testimony of a witness who had testified to such facts and circumstances so proved. But the trial court also stated that this would be true of the testimony of “each and every witness sworn in the case upon any material issue.” We are not persuaded that this instruction was erroneous as' applied to the facts of the instant case. We have examined the other errors assigned and find them without merit.
The conviction is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
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Moore, J.
This is a suit for fraud started by writ of capias, which writ was quashed and the suit proceeded as if started by summons. The plaintiff, a widow nearly 70 years old at the time of the trial, claimed, in substance, that she was the owner of a house and lot in Columbus, Ohio, for which she had been offered $2,800; that she saw an advertisement of defendant stating he owned property On Medbury avenue in Detroit he would.exchange for property in Ohio; that she had an interview with defendant, after which she went to see the Medbury avenue property and stated to defendant she would trade her Ohio property for it; that the defendant went to see the Columbus property and said that he would trade the Medbury avenue property for it; that she delivered to him a deed and abstract of her property, and he was to furnish her a deed and abstract of the Med-bury avenue property; that later he stated to her that the abstract showed there was a defect in the title that would prevent his deeding to her the Medbury avenue property; that she then told him they would call the deal off and wanted her deed and abstract back; that defendant then told her he could not give them back because he had disposed of the Columbus property, but said he owned some desirable property on Hawthorne avenue worth $5,400, and which he would guarantee would rent for $50 a month, and that he would credit her with $2,100 for the Columbus property, and that she could pay the balance at the rate of $35 a month out of the rentals; that a land contract was drawn, that she was unable to rent the Hawthorne avenue property for some time, and that at no time could she rent it for more than $36 a month and that she learned defendant did not own the property; that she complained to defendant and that he then proposed that she surrender the contract on the Hawthorne avenue property and he would convey to her a clear title to five lots in Fairmount Park subdivision he claimed he owned; that she surrendered the contract; that defendant never conveyed to her the lots as agreed and that he in fact never owned them. i.- .- ■ <"'•*
Defendant admitted he had such an advertisement about the Medbury avenue property as plaintiff described and that it was because of that advertisement the parties were brought together. He denied, however, that he agreed to trade the Medbury avenue property for the Columbus property, and claimed in substance that the only trade agreed upon was for the Hawthorne avenue property, and that his statements in relation to that property were true. He denies that the consideration for plaintiff’s surrender of the land contract on the Hawthorne avenue property was an agreement on his part to convey to her the five lots in Fairmount Park subdivision, and says plaintiff abandoned the Hawthorne avenue property because she could not make the payments the contract provided and that while he talked of letting her have the five lots mentioned if he could get the title to them, it was because he was sorry for her and not because he was legally bound to do so. He admitted he had no title to these lots and testified that he realized only twelve hundred or fifteen hundred dollars for the Columbus property. There was testimony tending to support the diverse claims of the parties.
At the close of the testimony for the plaintiff and again at the close of all the testimony defendant asked for a directed verdict in his favor. Both requests were denied and the case was submitted to the jury, which returned a verdict in favor of the plaintiff for $3,255. Defendant then moved the court to enter a judgment in his favor notwithstanding the verdict; this the judge declined to do and entered a judgment for the amount of the verdict for plaintiff, stating his reasons for so doing. A motion was later made by the defendant for a new trial which motion was overruled, the trial judge stating his reasons for doing so, to which exceptions were taken. The case is here by writ of error.
Defendant argues but 6 of the 22 assignments of error, which may be grouped under two heads:
(1) Did the court err in refusing to direct a verdict for the defendant at the close of plaintiff’s1 case on the ground that none of the material allegations in the plaintiff’s declaration had been proved and that there was no fraud shown?
(2) Did the court err in admitting proof as to the dealings between the parties relative to the lots in Fairmount Park?
As to the first group defendant’s position is shown by the following excerpt from his brief:
“While in a civil case it is only necessary to prove fraud or the commission of a crime by a preponderance of the evidence, there should, however, be testimony of sufficient weight and character to satisfy the court or jury that a fraud or a crime has been committed. Baird v. Abbey, 73 Mich. 354; 17 Cyc. pp. 754 and 757.
“There is no preponderance unless the evidence is sufficient to overcome the presumption of innocence as well as the opposing evidence. Monaghan v. Insurance Co., 53 Mich. 238.
“The jury should be cautious in arriving at conclusions prejudicial to character and honesty. Watkins v. Wallace, 19 Mich. 57.
“Clear and convincing proof is required where fraud is the ground for relief and it is sought to rescind bar gains intelligently made. Breemersch v. Linn, 101 Mich. 64.”
It is claimed that the proof of fraud was not clear and convincing and for that reason a verdict should have been directed in favor of the defendant.
In Hoffman v. Loud, 111 Mich. 156, Justice Montgomery, speaking for the court, said:
‘‘In civil cases a preponderance of evidence is all that is required, and by a ‘preponderance of evidence’ is meant such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability is in favor of the party upon whom the burden rests. Proof to a demonstration is not required, and it is usually unfortunate to employ qualifying words when defining' the necessity for a preponderance of evidence, when it is possible that the terms employed may lead the jury to draw the inference that something more than a mere preponderance is required. See Watkins v. Wallace, 19 Mich. 77; Ferris v. McQueen, 94 Mich. 367; Gumberg v. Treusch, 103 Mich. 543. There is respectable authority for holding that the use of the term ‘clear preponderance’ is in itself sufficient to mislead the jury, and that it is error to employ such term in an instruction. McDeed v. McDeed, 67 Ill. 546; Bitter v. Saathoff, 98 Ill. 266; Mitchell v. Hindman, 150 Ill. 538; Marx v. Kilpatrick, 25 Neb. 118. Whether we would be prepared to adopt this view of all cases, without regard to other portions of the charge it is not now important to determine.”
See Fitch v. Vatter, 143 Mich. 568.
The testimony was in sharp conflict. If that offered on the part of the plaintiff is true defendant has obtained valuable property from her without her receiving any substantial return, under such circumstances as to justify the claim of fraud.
As to the second group of errors: Did the court err in admitting testimony? The charge was fraud. The admitted testimony related to the transactions between the parties. An examination of the testi mony does not disclose any abuse of discretion in the latitude granted by the circuit judge as to the admission of testimony. Fury v. Strohecker, 44 Mich. 337; Arnstine Bros. v. Treat, 71 Mich. 561; Gumberg v. Treusch, 103 Mich. 543.
The pivotal questions were questions of fact which were fairly submitted to the jury.
Judgment is affirmed, with costs.
Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Taylor, P.J.
Defendant pleaded guilty of possession with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401X2) (a)(iv), and was sentenced to four to twenty years’ imprisonment, to be served consecutively to a sentence imposed in another case. He now appeals as of right. We affirm. This case has been decided without oral argument pursuant to MCR 7.214(A).
Defendant does not assert that the sentence itself constitutes an abuse of discretion, but only that the trial court gave little or no explanation for the sentence imposed, and therefore failed to satisfy the articulation requirement. In this regard, defendant contends that an expanded articulation requirement is mandated by People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). Despite defendant’s argument to the contrary, a trial court’s express reliance on the sentencing guidelines in imposing sentence continues to satisfy the articulation requirement of People v Coles, 417 Mich 523, 549; 339 NW2d 440 (1983). People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987); In re Dana Jenkins, 438 Mich 364, 376; 475 NW2d 279 (1991); People v Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991).
Defendant is correct in his assertion that the trial court did not explicitly rely on the sentencing guidelines, or any other factors, in imposing sentence. It would appear, upon cursory review, that the lack of articulation by the court would require a remand for articulation under People v Triplett, 432 Mich 568, 573; 442 NW2d 622 (1989).
However, we find that remand is not required. The sentencing record reveals that the imposition of sentence was almost immediately preceded by the prosecutor’s argument that defendant should be sentenced at the high end of the guidelines and defense counsel’s argument that the sentence should fall either at the low end of the guidelines or below the guidelines. The trial court then said, "The sentence will be a sentence , of four to twenty years,” a term falling at the extreme low end of the guidelines. In the context of the preceding arguments of counsel, it is inescapably clear that the court was sentencing defendant under the guidelines even though the judge himself did not actually speak those words.
In Triplett, our Supreme Court said articulation is required so that the factors the sentencing court utilized to impose sentence would be known by the defendant. However, the mere expression by the court that the sentence was imposed pursuant to the guidelines suffices to satisfy that requirement. In re Jenkins, supra; Dukes, supra.
We hold today that the Triplett rationale may be satisfied where the articulation is provided by the context of the preceding remarks, e.g., where the remarks of both the prosecutor and defense counsel reflect an unambiguous understanding that the guidelines would be the basis of the sentence.
Further, this approach will maximize judicial resources. People v Beneson, 192 Mich App 469, 471; 481 NW2d 799 (1992).
Affirmed. | [
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Wahls, J.
Plaintiff appeals as of right from an order of the Wayne Circuit Court, which entered a directed verdict in favor of defendant and assessed mediation sanctions against plaintiff pursuant to MCR 2.403(0). On appeal, plaintiff contests the assessment of mediation sanctions.
The facts of this case are straightforward and fairly common, so much so that we are surprised that the issue raised by plaintiff has not been previously addressed in a published opinion of an appellate court of this state. Plaintiff brought an action for no-fault insurance benefits against defendant in February 1983. Mediation took place in October 1985 and resulted in an evaluation of $12,000 for plaintiff. Plaintiff rejected the award; defendant accepted. The case proceeded to trial in August 1986 where, after the trial court denied defendant’s motion for a directed verdict, a jury awarded plaintiff an amount far in excess of the mediation evaluation. Defendant appealed to this Court, which held that the trial court erred when it denied defendant’s motion for a directed verdict and motion for judgment notwithstanding the verdict. Plaintiff’s pleadings and proofs were insufficient to show that he had paid his insurance premiums. Keiser v Allstate Ins Co, unpublished opinion per curiam of the Court of Appeals, decided March 23, 1989 (Docket No. 101312). We reversed the denial of defendant’s motion for a directed verdict. Our Supreme Court denied plaintiff leave to appeal. 434 Mich 856 (1990).
Defendant subsequently moved for an assessment of mediation sanctions in the trial court. Plaintiff protested, arguing that he had received a verdict from the jury that was more favorable than the mediation evaluation, and that the final outcome of a case reached by "appellate activity” was irrelevant with respect to MCR 2.403(0). The trial court disagreed and ordered plaintiff to pay defendant’s costs and fees. Significantly, the order expressly stated that defendant’s recovery was limited to costs and fees incurred during and before tried. No costs or fees were awarded for any appellate or posttrial activity. The only issue on appeal is whether, after a party rejects a mediation evaluation and, following a trial, a verdict more favorable to the rejecting party is returned, MCR 2.403(0) allows the imposition of sanctions on the rejecting party following appellate reversal of the verdict where the final result is no longer favorable to that party. We hold that it does.
At the time mediation occurred, MCR 2.403(O)(l) provided:
If a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation.
The purpose of mediation sanctions is to impose the burden of litigation costs upon the party who insists upon trial by rejecting a mediation award. Taylor v Anesthesia Associates of Muskegon, PC, 179 Mich App 384, 386; 445 NW2d 525 (1989); Wayne-Oakland Bank v Brown Valley Farms, Inc, 170 Mich App 16, 21; 428 NW2d 13 (1988). The former version of MCR 2.403(0) has been interpreted by panels of this Court as requiring two conditions before sanctions are triggered: (1) the party to be sanctioned rejected the mediation evaluation; and (2) "the action proceeds to trial.” Herrera v Levine, 176 Mich App 350, 359; 439 NW2d 378 (1989); Wayne-Oakland Bank, supra; O D Silverstein, MD, PC v Services, Inc, 165 Mich App 355, 360; 418 NW2d 461 (1987). "The additional language that a 'party must pay the opposing party’s costs unless the verdict is more favorable to the rejecting party’ should be interpreted in such a manner that it is the rejecting party that must obtain a verdict more favorable to avoid sanctions.” Herrera, supra. Thus, in the present case, sanctions have been triggered by plaintiff’s rejection of the mediation award and the occurrence of a trial. The question is whether plaintiff received a verdict more favorable than the evaluation within the meaning of MCR 2.403(0) so as to avoid the imposition of sanctions. The former version of the rule did not define the word "verdict,” although the present version does.
Plaintiff claims that the question is expressly answered by Clute v General Accident Assurance Co of Canada, 177 Mich App 411; 442 NW2d 689 (1989). Clute concerned, in part, an award of attorney fees as a mediation sanction pursuant to former Wayne Circuit Court Rule 403, a rule substantially similar to MCR 2.403(0). The defendant had been granted a directed verdict by the trial court, which was affirmed by this Court. The Supreme Court subsequently reversed and remanded the case for entry of summary judgment in favor of the plaintiff. The trial court then awarded attorney fees to the plaintiff pursuant to WCCR 403. On appeal from that order to this Court, a panel of this Court vacated the award on the ground that the original directed verdict was more favorable to the defendant than the mediation evaluation.
We refuse plaintiffs invitation to extend the Wayne Circuit mediation rule as it then existed to judgments entered pursuant to motions prior to trial or posttrial appeals. See Silverstein v Services, Inc, 165 Mich App 355; 418 NW2d 461 (1987); American Casualty Co v Costello, 174 Mich App 1, 13; 435 NW2d 760 (1989); Mehelas v Wayne Co Community College, 176 Mich App 809; 440 NW2d 117 (1989). [Clute at 423; emphasis added.]
The procedural history of Clute is somewhat similar to that of the present case. However, while the panel’s position regarding pretrial motions was amply supported by existing case law, Silverstein, supra; Mehelas, supra, its statement regarding judgments entered pursuant to posttrial appeals was not. American Casualty Co, supra, held only that costs and expenses incurred on appeal could not be recovered through resort to MCR 2.403(0). American Casualty Co, supra at 13. See also Giannetti Bros Construction Co v City of Pontiac, 175 Mich App 442, 447; 438 NW2d 313 (1989). Rather, sanctions for appellate expenses are expressly set forth in MCR 7.216(C), which does not provide for mediation sanctions. Thus, the result in Clute was not supported by the authority upon which it rested.
We believe that the fact that the instant plaintiffs jury verdict was set aside by this Court is relevant to the imposition of sanctions pursuant to MCR 2.403(0). At the time defendant moved for mediation sanctions, there was but one verdict in this case, a directed verdict in favor of defendant. Because the directed verdict was not more favorable to plaintiff than the mediation evaluation, plaintiff is liable for mediation sanctions. Plaintiff’s construction of the rule would frustrate its purpose of imposing the burden of litigation costs on the party that rejects the mediation evaluation and elects to go to trial by allowing him to escape sanctions and burden defendant because of an error of law on the part of the trial court. We conclude that it is the ultimate verdict that the parties are left with after appellate review is complete that should be measured against the mediation evaluation to determine whether sanctions should be imposed on a rejecting party pursuant to MCR 2.403(C)).
Affirmed.
Mackenzie, P.J. I concur in the result only.
1 MCR 2.403(0) was later amended, effective December 1, 1987. The amendment provides an express definition of the word "verdict” for the purpose of the rule. We will consider the preamendment version of MCR 2.403(0). Mehelas v Wayne Co Community College, 176 Mich App 809, 811, n 1; 440 NW2d 117 (1989).
(2) For the purpose of this rule, "verdict” includes,
(a) a jury verdict,
(b) a judgment by the court after a nonjury trial,
(c) a judgment entered as a result of a ruling on a motion filed after mediation.
Unlike the former version of MCR 2.403(0), the present version allows the imposition of sanctions following a pretrial grant of summary disposition. Johnson v State Farm Mutual Automobile Ins Co, 183 Mich App 752, 767-769; 455 NW2d 420 (1990). We see no meaningful distinction between the past and present versions of MCR 2.403(0) that would be pertinent to the question before us.
Defendant argues that Clute may be distinguished from the present case because the Supreme Court directed that an order of summary judgment be entered for the plaintiff, and summary judgment is not a "verdict” within the meaning of WCCR 403 or MCR 2.403(0) according to established case law. Under the former version of MCR 2.403(0), sanctions were not available upon summary judgment or disposition because the case had not proceeded to trial. Despite the form of judgment ordered by the Supreme Court in Clute, the litigation had "proceeded] to trial,” thereby triggering sanctions. Herrera, supra.
A result similar to that reached today occurred in McAtee v Guthrie, 182 Mich App 215; 451 NW2d 551 (1989). There is no indication in McAtee, however, that the issue raised by plaintiff in this case was before that panel. | [
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G. S. Allen, J.
Pursuant to a plea bargain, defendant pleaded guilty to a reduced charge of unarmed robbery, MCL 750.530; MSA 28.798. On December 14, 1988, he was sentenced to one year in the Ingham County Jail and placed on five years’ probation. The terms of probation included a requirement that he continue drug rehabilitation services and attend school or obtain training for employment. Defendant was released from jail on June 8, 1989, and within two months committed five violations of probation, including failure to obtain vocational training or employment and testing positive for drug use.
On September 6, 1989, defendant pleaded guilty of probation violation and was sentenced to six to fifteen years’ imprisonment. However, sentence was delayed to allow defendant to attend a boot camp program of the Department of Corrections. Defendant successfully completed the boot camp program, and at a delayed sentence hearing on January 10, 1990, the prison sentence was vacated and defendant was continued on probation. However, defendant was placed in an electronic tether program.
Shortly thereafter, defendant violated probation by refusing to answer his telephone as required by the electronic tether agreement and by leaving his home on February 21, 1990. When the police tried to pick up defendant on a warrant issued by the court, defendant’s brother and sister interfered with the police, and defendant fled. He remained at large until some two months later, when he was arrested on April 17, 1990. Upon arrest, defendant fought with the police. On May 16, 1990, the court sentenced defendant to six to fifteen years in prison in accordance with the sentence imposed on September 6, 1989. After hearing defendant speak following the imposition of sentence, the court amended its sentence to five to fifteen years, though stating that defendant deserved a six- to fifteen- year sentence.
At sentencing, the trial court was provided with a sentencing information report (sir), which suggested a minimum sentence range of zero to thirty-six months. The statutory maximum penalty for the underlying offense of which defendant pleaded guilty (unarmed robbery) is fifteen years.
The first issue raised on appeal is whether the sentencing guidelines should apply to defendant’s sentence for probation violation. Relying heavily on the recent case of People v Peters, 191 Mich App 159; 477 NW2d 479 (1991), defendant argues that, although sentencing guidelines were not intended to apply to probation violations, they still are an "invaluable tool” to be used as a "barometer” of the principle of portionality established in People v Milbourn, 435 Mich 630, 635-636; 461 NW2d 1 (1990). (Brickley, J.)
This Court has consistently held that the sentencing guidelines do not apply to probation violations, People v Young, 181 Mich App 728, 731; 450 NW2d 43 (1989); People v Reeves, 143 Mich App 105, 107; 371 NW2d 488 (1985), and that sentences for probation violation should comply with the principle of proportionality announced in Milbourn. People v Leske, 187 Mich App 153, 158; 466 NW2d 361 (1991). Most recently, in People v Peters, supra, a panel of this Court, after first stating that the sentencing guidelines are not applicable to violations of probation, went on to note that they may be utilized as "a starting point” in determining a sentence. Id., 167.
However, Milbourn holds that the second edition of the guidelines is the best "barometer” for use in measuring the proportionality of a given sentence. Id., 656. Under existing precedent, factoring in the sentencing guidelines when sentencing for a probation violation is a difficult proposition, requiring a second analysis of the guidelines initially prepared for defendant’s underlying offense. Peters, 167. Under these circumstances, the guidelines should be utilized only as a starting point in determining the continuum within which the sentence should fall. The trial court is at liberty to consider defendant’s actions and the seriousness and severity of the facts and circumstances surrounding the probation violation in arriving at the proper sentence. The reasons for the sentence imposed should be articulated on the record. Id.
Given the circumstances of the underlying offense, the reduced charge of unarmed robbery, the repeated instances of probation violation, and defendant’s vita, we conclude that the sentence does not violate the principle of proportionality. We come to this conclusion regardless of whether the sentencing guidelines are utilized as a "barometer” or as a "starting point” from which to determine the proportionality of the sentence. Contrary to the defense claim, defendant had more than a peripheral role in the armed robbery. In pleading guilty, he said that he participated in the robbery as an intimidator and received a gold neck chain for his efforts. At the time he was originally sentenced in this case, defendant was already serving a jail sentence for a plea-based conviction of receiving and concealing stolen goods with a value in excess of $100, reduced from an original charge of breaking and entering an occupied build ing. Defendant’s juvenile record includes a misdemeanor larceny, two breaking and enterings, carrying a concealed weapon, confinement at the Boy’s Training School, and a lack of response to programs available in the juvenile system. Given these circumstances, as well as the fact that when twice given a "break” by the sentencing court defendant repeatedly broke the terms of his probation and electronic tether program, we find that the sentence imposed does not violate the principle of proportionality.
The second issue raised on appeal is whether defendant is entitled to receive credit against his sentence for the time he spent in the electronic tether program. This issue is one of first impression in Michigan. The recently developed electronic tether system is used throughout the United States as an alternative to prison. See Note, Home incarceration under electronic monitoring: A statutory review, 7 NYL Sch J Human Rights 285 (1990) . As authority for the claim that credit should be granted, defendant cites People v Granquist, 183 Mich 343; 454 NW2d 207 (1990), for the proposition that confinement in one’s home under a tether program is the equivalent of confinement in prison. Defendant further argues that "since the tether program is equivalent to actual incarceration, the double jeopardy clause requires that he be granted additional credit against his sentence.” We disagree on both grounds.
Defendant reads Granquist too broadly. After first holding that escape from one’s own apartment is an escape from prison under the liberal descrip tion of "prison” contained in the prison escape statute, MCL 750.193(2); MSA 28.390(2), the Granquist Court then stated that "tether” is not a prison:
We agree with defendant’s argument that the electronic tether was not a "prison”; but the tether was not intended to form the bounds of defendant’s physical confinement. The electronic tether is nothing more than a surveillance device which permits corrections officers to monitor a defendant's presence in his approved residence during curfew hours. [Id., 346-347. Emphasis added.]
Under no circumstances can we reasonably conclude that confinement in one’s home or apartment is the equivalent of confinement "in jail.” This is so even where, as here, the conditions of home confinement require the person confined to go directly to work, to return home immediately from work, and to be at home at all times unless approval is given by a probation officer. Home detention does not include the highly structured setting of a prison or jail. One cannot remain on the phone for extended periods, invite friends for extended visits, order a pizza, watch television during periods of one’s own choosing, or have free access to the refrigerator in jail.
For the foregoing reasons, defendant’s conviction and sentence are affirmed.
Defendant does not ask for credit pursuant to the sentence credit statute, MCL 769.11b; MSA 28.1083(2), but rather on double jeopardy grounds. See People v Sturdivant, 412 Mich 92, 96; 312 NW2d 622 (1981). Indeed, defendant is clearly not entitled to credit under the statute. People v Whiteside, 437 Mich 188, 196-197; 468 NW2d 504 (1991) . | [
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T. J. Lesinski, J.
Defendant, Citizens Insurance Company, appeals as of right a September 18, 1989, judgment of the Oakland Circuit Court involving no-fault personal protection insurance (pip) benefits. Following an August 1989 jury trial, plaintiffs, Christopher Noel and Botsford General Hospital, were awarded damages in the amount of $83,211.80, payable by Citizens. Citizens claims as error several rulings by the court.
On November 9, 1985, Christopher Noel was involved in an automobile accident while driving a 1977 Mercury Monarch. That vehicle was uninsured, as were the two other vehicles in the Noel household. The license plate on the Monarch was registered to another automobile owned by Mary Noel, plaintiffs wife. As a result of injuries sustained in the accident, plaintiff was taken to Bots-ford General Hospital, where he subsequently underwent six surgical procedures.
Because Christopher Noel (hereafter plaintiff) had no source of pip coverage for the claimed losses, he filed an application with the Michigan Department of State assigned claims facility, pursuant to MCL 500.3171 et seq.; MSA 24.13171 et seq. On the face of the application, in the space marked "owner of vehicle involved,” the application states "just purchase (sic) by Chris Noel.”
Under Michigan law, the owner of an uninsured motor vehicle involved in an accident is ineligible for no-fault benefits, including benefits through the assigned claims plan. See MCL 500.3113(b); MSA 24.13113(b) and MCL 500.3173; MSA 24.13173. During the investigation conducted by Dena Hen-don of the assigned claims facility, Mary Noel advised Hendon that the vehicle had been purchased by plaintiff shortly before the accident. Dena Hendon denied the claim, after making a determination that plaintiff owned the vehicle and, therefore, was ineligible for benefits.
On May 9, 1986, plaintiff submitted a second application for benefits to the assigned claims facility. In the space designated "owner of vehicle involved,” this application states "Mary Noel.” Upon receipt of this second application, Hendon assigned plaintiffs claim to Citizens for further investigation regarding ownership.
Meanwhile, Botsford General Hospital submitted its billings for treatment of plaintiff to the Michigan Department of State for payment. The Department of Social Services paid the hospital a statutory percentage of the $43,992.92 amount submitted. The dss also began its own investigation into the ownership of the vehicle and applicable insurance coverage for the loss.
After corresponding with Dennis Howder on the subject of the sale and ownership of the Monarch, the dss in October 1986 concluded that plaintiff was the owner of the vehicle and sought no further reimbursement from Citizens for the bills it had paid on plaintiffs behalf.
Plaintiff filed suit against Citizens on October 6, 1986. Botsford General Hospital subsequently moved to intervene for the purpose of recovering its claimed medical expense losses. Intervention was granted on November 15, 1988. The matter proceeded to trial. The jury returned a verdict in favor of plaintiffs in the amount of $83,211.80, including hospital expenses, wage loss, replacement service costs, and interest. Citizens appeals the jury verdict. We reverse.
i
The first issue is whether the trial court properly left to the jury the question regarding who owned the 1977 Mercury Monarch.
Under Michigan law, a person is not entitled to be paid pip benefits if that person was the owner of a motor vehicle involved in an accident and that vehicle was required to be, but was not, insured under Michigan’s no-fault act. MCL 500.3113; MSA 24.13113 and MCL 500.3173; MSA 24.13173. The Vehicle Code, MCL 257.37(b); MSA 9.1837(b), defines "owner” as "a person who holds the legal title of a vehicle.” This provision has been incorporated into the Michigan no-fault act. Albanys v Mid-Century Ins Co, 91 Mich App 41, 45-46; 282 NW2d 11 (1979).
At trial, evidence indicated that not long before the accident the Monarch had been purchased from Dennis Howder. Plaintiff gave $300 cash to Howder and took possession of the car. Although Howder signed the certificate of title, neither he nor Noel filled in the line designated for the new owner. At the time of sale, a license plate registered to Mary Noel was placed on the car.
Over a hearsay objection by Citizens, the trial court admitted an October 15, 1985, handwritten receipt that stated that the $300 paid for the Monarch was "received from Mary Noel.” Evidence was also admitted that at the time of the accident no application for a new title had been filed with the Secretary of State. Thus, title was still under the name of Dennis Howder.
Plaintiff claimed that although he actually conducted the purchase transaction with Howder, the purchase money was his wife’s and he was merely taking delivery of the car as her agent. Mary Noel testified that she had retained actual possession of the title since the purchase and that the car carried her license plates. Additional evidence of ownership included statements made on plaintiff’s multiple applications for insurance benefits.
Section 233 of the Vehicle Code, MCL 257.233; MSA 9.1933, which concerns transfers of title, provides:
(4) The owner shall indorse on the back of the certificate of title an assignment of the title with warranty of title in the form printed on the certificate . . . and deliver or cause the certificate to be mailed or delivered to the purchaser or transferee at the time of the delivery to the purchaser or transferee of the vehicle. . . .
(5) Upon the delivery of a motor vehicle and the transfer, sale, or assignment of the title or interest in a motor vehicle by a person, including a dealer, the effective date of the transfer of title or interest in the vehicle shall be the date of execution of either the application for title or the certificate of title.
According to Citizens, the parties’ failure to comply strictly with the provisions of §233 precluded the lower court from permitting the question of ownership to reach the jury. Rather, Citizens argues that the undisputed fact that plaintiff actually handed the money to the seller, took possession of the vehicle, and received delivery of the certificate of title conclusively established him as the owner under § 233.
Legal title and ownership of a vehicle are not coextensive terms under the Vehicle Code; more than one person may be liable as "owner,” even if no one possesses all the normal incidents of ownership. Messer v Averill, 28 Mich App 62, 65, n 2; 183 NW2d 802 (1970). The question of ownership is one of fact that is to be decided by the factfinder. Albanys v Mid-Century Ins Co, 407 Mich 925 (1979), rev’g 91 Mich App 41; 282 NW2d 11 (1979); John v John, 47 Mich App 413; 209 NW2d 536 (1973).
Citizens accepts that "ownership” is a question of fact relative to plaintiff, but argues that the same is not true relative to Mary Noel. We disagree. The proper focus of inquiry is whether plaintiff was an "owner” of the vehicle, not whether Howder had effectively transferred its title. Plaintiff would be entitled to pip benefits under the assigned claims plan, MCL 500.3171 et seq.; MSA 24.13171 et seq., regardless of whether Howder or Mary Noel owned the vehicle, so long as plaintiff himself was not an owner.
We conclude that the lower court did not err in permitting the question of Mary Noel’s ownership to be decided by the jury rather than granting Citizens’ motion for a directed verdict. Viewing the evidence in the light most favorable to plaintiff, we find that there was a question of fact concerning ownership. See Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988).
ii
Citizens next argues that it was error for the trial court to admit the handwritten sales receipt into evidence under the exception to the hearsay rule that allows documents affecting an interest in property to be entered into evidence.
MRE 803(15) excepts from the hearsay rule the following:
A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
Only one Michigan case discusses MRE 803(15), and that case applied the exception to facts contained in a will. See People v Burton, 177 Mich App 358; 441 NW2d 87 (1989). Moreover, there is a dearth of federal case law regarding the issue and none that this Court could find concerning documents dealing with personalty rather than real property. On the other hand, 4 Weinstein, Evidence, § 803(15)[01], p 307, indicates that documents concerning personalty, including contracts or bills of sale, are included in the exception as long as other requirements are met:
The rule rests both on necessity—for litigation may arise so many years after a conveyance that declarants and witnesses to the transaction may be unavailable—and on a number of indicia of trustworthiness: (1) the circumstances in which dispositive instruments are made and the financial interests at stake promote reliability; (2) the fact that the recital is in writing eliminates the danger of inaccuracy of transmission; (3) since the statement must be germane to the purpose of the document, a protest would be expected about an untrue fact intrinsic to the transaction; and (4) the exception does not apply if dealings with the property have been inconsistent with the tenor of the document.
The second element is met here because the receipt is in writing, which eliminates any danger regarding the accuracy of transmission. The third element is met because the document is germane to the purpose of its execution, i.e., to establish the sale of the 1977 Monarch to Mary Noel. And we find that the fourth element is met because the fact that plaintiff was driving the Monarch at the time of the accident is not necessarily inconsistent with an intent to sell the Monarch to Mary Noel. The remaining question is whether the first element was met. We find that it was not.
For the receipt to qualify for admission under the hearsay exception, the first element requires that it must be made under circumstances that promote reliability. Id. The basis for the rule excluding hearsay evidence is that such evidence is not subject to the tests that can ordinarily be applied to ascertain the truth of an assertion, whether written or oral. See 29 Am Jur 2d, Evidence, § 493, pp 551-552. When hearsay evidence is used, its declarant is not before the factfinder, and the factfinder cannot cross-examine the declarant or evaluate his demeanor. Id. at 552. Nevertheless, admission of the evidence may be permitted under an exception to the hearsay rule where the inherent indicia of reliability in such documents weigh in favor of admission, even though the declarant is not before the factfinder. See generally Wigmore, Evidence (Chadbourn rev), § 1420-1423, pp 251-255; see also Solomon v Shuell, 435 Mich 104, 119-120; 457 NW2d 669 (1990).
MRE 803(15) is identical to FRE 803(15). The Advisory Committee’s Note to FRE 803(15) highlights the element requiring that the document be made under circumstances that promote reliability:
Exception (15). Dispositive documents often contain recitals of fact. Thus a deed purporting to have been executed by an attorney in fact may recite the existence of the power of attorney, or a deed may recite that the grantors are all the heirs of the last record owner. Under the rule, these recitals are exempted from the hearsay rule. The circumstances under which dispositive documents are executed and the requirement that the recital be germane to the purpose of the document are believed to be adequate guarantees of trustworthiness, particularly in view of the nonapplicability of the rule if dealings with the property have been inconsistent with the document. The age of the document is of no significance, though in practical application the document will most often be an ancient one.
We believe that the handwritten sales receipt at issue here was not made under circumstances that promote its reliability. The federal committee note refers to a type of document that would be filed with a governmental agency, namely, a deed for real property. Although statements contained in documents intended for filing may meet the standard of reliability, we believe that handwritten documents that would be neither filed nor signed by anyone not a party to the transaction do not satisfy the reliability element. A certificate of title, on the other hand, would meet the reliability standard where filed with the appropriate agency. In light of what little authority exists regarding this issue, we conclude that the handwritten receipt does not qualify for admission under MRE 803(15). The admission of the receipt was therefore an abuse of discretion requiring reversal. See Kochoiah v Allstate Ins Co, 168 Mich App 1, 12; 423 NW2d 913 (1988).
hi
Next, Citizens argues that the health care providers, including Botsford General Hospital, were statutorily bound to accept the amounts received as payment in full for their services, regardless of any additional costs incurred while treating plaintiff. The essence of Citizens’ argument is that acceptance of Medicaid payments for injuries suffered in accidents involving automobiles discharges an assigned claims servicing insurer from liability to the claimant or the providers of medical services for charges exceeding the statutory amount paid by Medicaid._
Medicaid assistance is made available under the Social Welfare Act to the "medically indigent.” See MCL 400.105(1); MSA 16.490(15X1). A "medically indigent” individual is defined by statute as one whose
need for the type of medical assistance available under this act for which application has been made has been professionally established and payment for it is not available through the legal obligation of a contractor, public or private, to pay or provide for the care without regard to the income or resources of the patient. [MCL 400.106(l)(b)(ii); MSA 16.490(16) (l)(b)(ii).]
MCL 500.3172(1); MSA 24.13172(1) provides that a person is entitled to pip benefits under the assigned claims plan where the injury arises "out of the ownership, operation, maintenance, or use of a motor vehicle ... if no personal protection insurance is applicable to the injury . . . .” Assuming that Noel was not an owner of the vehicle involved in the accident, he qualifies for assigned claims pip benefits. Where a person qualifies for pip benefits under the assigned claims plan, he does not satisfy the definition of "medically indigent” found in MCL 400.106(l)(b)(ii); MSA 16.490(16)(l)(b)(ii) for the reason that he is thereby entitled to medical assistance "available through a legal obligation of a contractor, public or private. . . .” Johnson v Michigan Mutual Ins Co, 180 Mich App 314, 320-321; 446 NW2d 899 (1989); see also Workman v DAIIE, 404 Mich 477, 501-502; 274 NW2d 373 (1979). Whether Noel was an "owner” of the vehicle, which would disqualify him from receiving no-fault pip benefits, is another question to be decided upon remand.
IV
Citizens also claims that because the dss was statutorily subrogated to the rights of the claimant and the services providers to pursue Citizens, both plaintiff and Botsford General Hospital lack standing to bring this claim. However, as plaintiff Bots-ford points out, the right of subrogation of the dss is intended to ensure that it does not bear primary responsibility for payment of benefits. The Social Welfare Act does not create in the state an exclusive right of subrogation and, in fact, establishes the right of the injured person to seek payment for reasonáble medical costs. MCL 400.106(l)(b)(ii); MSA 16.490(16)(l)(b)(ii) states:
An action taken by the state or the state department [Department of Social Services] in connection with the right of recovery afforded by this section shall not operate to deny the injured, diseased, or disabled person any part of the recovery beyond the costs expended on the person’s behalf by the state department.
Although the dss had a right of subrogation, it did not have a right of subrogation of plaintiff’s entire claim. Thus, the decision of the dss not to pursue its claims against Citizens did not automatically foreclose claims by plaintiff and Botsford General Hospital seeking recovery from Citizens.
v
Citizens argues that Botsford General Hospital was barred from intervening in this case because Botsford’s claim was submitted more than two years after the period of limitation applicable to plaintiffs claim had expired.
MCL 500.3145; MSA 24.13145 provides:
An action for a recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of the injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. . . . The notice of the injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.
Plaintiff’s original complaint against Citizens, filed on October 6, 1986, claimed reimbursement for "all reasonable charges, unlimited amount for medical and/or rehabilitative expenses and hospital charges.” Botsford’s cross-complaint, filed on November 15,1988, states:
5. The reasonable charges for medical treatment rendered to Plaintiff at Botsford General Hospital totalled $43,922.92.
7. Botsford General Hospital is subrogated to the rights of Plaintiff Christopher Noel with respect to insurance for medical treatment at Botsford General Hospital from Defendant Citizens Insurance Company of America.
The purpose of the one-year limitation is to protect against stale claims and protracted litigation. Pendergast v American Fidelity Fire Ins Co, 118 Mich App 838, 841-842; 325 NW2d 602 (1982). The notice to the insurer anticipated by the statute was provided in the first complaint, which was filed within the one-year limitation period. Bots-ford’s claims did not change or enlarge the claims already in existence. Accordingly, we conclude that the trial court did not err in granting Bots-ford’s motion to intervene, nor was it error to deny Citizens’ motion for a directed verdict with respect to the issue of the statute of limitations.
vi
Citizens contends that the jury award of $3,600 for replacement services was improper because plaintiff did not prove he actually incurred any expenses for such services. The following testimony was given by Mary Noel regarding the changes in their household after the accident:
Q. All right. You were saying your living room is what?
A. Becomes a make-shift hospital room, so to speak. We had the iv’s, and we had medication, and things to clean his wound and dress it.
Q. How long did that go on?
Á. That went on for a long, long, time. At least a year, if not more.
Q. After the accident, was there anything that you had to do around the house that Mr. Noel normally did around the house?
A. Well, yeah, I did everything. I became a mom and a dad. As far as mowing the grass, taking out the trash, shoveling of the sidewalks, you know, being more attentive to the kids . . .
It was everything I had to do, run to the store, which normally he would be the one to run out and get milk, do little things like that.
Personal protection insurance benefits recoverable under Michigan’s no-fault act included, at all pertinent times,
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 herself or of his or her dependent. [MCL 500.3107(b); MSA 24.13107(b), see now MCL 500.3107(c); MSA 24.13107(c).]
In addition, case law also permits the recipient of no-fault pip benefits to recover for replacement services provided by family members. See Van Marter v American Fidelity Fire Ins Co, 114 Mich App 171; 318 NW2d 679 (1982); Visconti v DAIIE, 90 Mich App 477; 282 NW2d 360 (1979); see also Kushay v Sexton Dairy Co, 394 Mich 69; 228 NW2d 205 (1975).
Arguably, the record in this case could have been developed to reflect in more detail the services provided by Mary Noel to plaintiff. However, the evidence that plaintiff spent nearly a year in a makeshift hospital bed in the Noels’ living room could support a finding that Mary Noel’s services exceeded those expected of a spouse under normal circumstances.
When reviewing the sufficiency of the evidence in a civil action, this Court must view the evidence in the light most favorable to the plaintiff, and give the plaintiff the benefit of every reasonable inference that can be drawn from the evidence. If, after reviewing the evidence, reasonable people could differ, the question is properly left to the trier of fact. Boggerty v Wilson, 160 Mich App 514, 522; 408 NW2d 809 (1987). Accordingly, the questions concerning whether plaintiff was entitled to collect the value of replacement services, and the determination of that value, were properly left to the jury. The trial court, viewing the evidence in the light most favorable to plaintiff, did not err in denying Citizens’ motion for a directed verdict with respect to the issue of replacement services.
VII
Citizens argues that the trial court erred in giving the following jury instruction:
In Michigan, two or more writings to a transaction, if they clearly relate to the same transaction, are to be construed together. Therefore, if you find that the receipt from [the seller] and the title to the car sold, were given at the same time by [the seller], you should read them or construe them together.
In its place, Citizens offered an instruction to the effect that ownership of the vehicle under these facts is established by referring to the legal title of the vehicle, MCL 257.37(b); MSA 9.1837(b), and that the transfer-of-title statute, MCL 257.233; MSA 9.1933, mandates that plaintiff, as recipient of the title, keys, and the vehicle at the time of purchase, became the owner.
As discussed earlier, the transfer-of-title statute does not mandate that plaintiff be considered the "owner” of the vehicle. Rather, ownership was a question of fact to be resolved by the jury. However, the objectionable jury instruction does make reference to the handwritten receipt that was improperly admitted into evidence under a hear say exception. For this reason, we conclude that the instruction was erroneous. Whether this error requires reversal need not be addressed because the case is to be reversed and remanded for error in the admission of the handwritten sales receipt.
VIII
Citizens contends that it was error for the trial court to permit the issue of wage loss to go to the jury without production of plaintiffs income tax returns or business records. Citizens requests reversal and remand with instructions to grant Citizens’ motion for a directed verdict or, alternatively, to include a standard jury instruction concerning the failure to produce evidence if plaintiff refuses to produce these records on remand. See SJI2d 6.01(a).
Plaintiff was awarded $7,845.50 for wage loss. He had been working before the accident as an independent contractor for Thermo Window Corporation. Citizens had served plaintiff with a motion to produce income tax returns for the purpose of determining wage loss. When the documents were not produced, Citizens did not move for an order to compel production. During cross-examination, defense counsel asked plaintiff about his failure to authorize release of the tax records. Pursuant to objection, the trial court ascertained that no such order to compel had been filed and precluded Citizens from probing into the issue in this manner at trial.
SJI2d 6.01(a) permits the jury to infer that evidence that was under a party’s control and for which the party gave no reasonable excuse for nonproduction would have been adverse to that party. Zmija v Baron, 119 Mich App 524, 540; 326 NW2d 908 (1982), rev’d on other grounds 422 Mich 900 (1985). It is undisputed that the issue of wage loss was material. Citizens, however, admitted at trial that no motion to compel the production of the tax records had been made.
The trial court’s refusal to give Citizens’ instruction, in light of the fact that Citizens did not zealously pursue the production of the tax documents during discovery, is not so inconsistent with substantial justice as to require reversal. See Moghis v Citizens Ins Co of America, 187 Mich App 245, 251; 466 NW2d 290 (1990). Other evidence from which wage loss could have been determined was presented to the jury, even though some of it was contradictory. At trial, plaintiff testified that his wage loss was $710 a week. His first application for benefits claimed $1,000 a week and his second application claimed $1,200 a week. Plaintiffs 1099 form from Thermo Window was also introduced into evidence.
IX
Finally, Citizens argues that it was error for the plaintiffs taxed bill of costs, including mediation sanctions sought pursuant to MCR 2.403(0), to be entered by the court clerk without a hearing. We believe that this issue should be decided on remand after the matter of liability has been conclusively established.
Reversed and remanded for a new trial.
Jansen, J., concurred.
An employee of Botsford General Hospital in patient accounting testified that of the approximately $40,000 in bills submitted to Medicaid for plaintiff’s expenses, Medicaid had paid a percentage, or approximately $10,000.
Citizens points out that the dss is "subrogated to any right of recovery which a patient may have for the cost of hospitalization” for sums that it pays as Medicaid benefits. See MCL 400.106(l)(b)(ii); MSA 16.490(16)(l)(b)(ii). Thus, the dss is entitled to collect its expenditures, approximately $10,000, from defendant Citizens if it is determined that Citizens is liable to Noel for pip benefits pursuant to the assigned claims plan, MCL 500.3171 et seq.; MSA 24.13171 et seq. | [
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Per Curiam.
Defendant pled guilty to being an habitual offender, second offense, MCL 769.10; MSA 28.1082, after a jury convicted her of felonious assault, MCL 750.82; MSA 28.277, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The trial court sentenced defendant to 3 Vi to 6 years for the assault conviction and two years for the felony-firearm conviction. Defendant appeals her convictions as of right. We reverse.
While in the midst of a divorce, defendant shot her husband in the face in February of 1988. He claimed that it was an act of revenge. She claimed that it was self-defense.
i
Defendant argues that the trial court erred in refusing to question potential jurors about their attitudes toward self-defense and the use of deadly force. We agree.
The scope of voir dire is left to the discretion of the trial court. People v Harrell, 398 Mich 384, 388; 247 NW2d 829 (1976). However, a trial court may not restrict voir dire in a manner that prevents the development of a factual basis for the exercise of peremptory challenges. People v Mumford, 183 Mich App 149, 155; 455 NW2d 51 (1990). In this case, the refusal of the trial court to ask any questions concerning the subject of self-defense and juror attitudes toward the use of deadly, force unduly restricted voir dire and was an abuse of discretion.
Defendant did not exhaust her peremptory challenges. Generally, a party must do so to preserve for appeal a question of jury selection. People v Rose, 268 Mich 529, 531; 256 NW 536 (1934). This is not, however, an absolute requirement. See, e.g., People v Miller, 411 Mich 321; 307 NW2d 335 (1981), rev’g 88 Mich App 210; 276 NW2d 558 (1979) (codefendant Ewing’s conviction reversed despite failure to exhaust peremptory challenges). The purpose of appellate preservation requirements is to induce litigants to do everything they can in the trial court to prevent error, eliminate its prejudice, or at least create a record of the error and its prejudice. In contrast to Rose, supra, defendant refused to express satisfaction with the jury empaneled and repeatedly reminded the trial court that she felt that the voir dire prevented her from intelligently exercising her peremptory challenges. Requiring defendant to unintelligently exercise them would be pointless, because it could not have prevented the error, eliminated its prejudice, or further demonstrated the error and its prejudice.
ii
Defendant contends that the trial court erred in limiting defendant’s ability to testify about her husband’s prior acts of violence toward her, and erred in allowing a witness to testify about a threat defendant allegedly made months before the shooting.
The decision whether to admit evidence is left to the discretion of the trial court. People v Milton, 186 Mich App 574, 575; 465 NW2d 371 (1990), remanded on other grounds 438 Mich 852 (1991). This Court finds an abuse of discretion only when an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling. Id., pp 575-576.
Prior acts of violence by the victim may be relevant to the issue of self-defense. People v Rockwell, 188 Mich App 405, 408-410; 470 NW2d 673 (1991). We find the trial court’s nearly complete ban to be without justification, because it denied defendant the opportunity to present important evidence relevant to her motive and intent. MRE 404(b). On retrial, defendant should be allowed to present evidence of the victim’s prior acts of violence toward her. The trial court may exercise its discretion under MRE 403 in deciding how much of this evidence to admit.
The trial court did not err in admitting the testimony of the victim’s mother that, eight months before the shooting, defendant had told her that she had a gun and would shoot the victim. The threat was used to establish that defendant had access to a gun. At the time the trial court was asked to rule, it was the only evidence regarding the issue of access, and the court’s decision that the probative value of the evidence outweighed its prejudicial effect was not an abuse of discretion. Because defendant subsequently presented evidence at trial establishing that the weapon had been purchased about a month before the shooting, the lower court should reconsider the relevancy and the remoteness of the evidence upon retrial. People v DeRushia, 109 Mich App 419, 426-428; 311 NW2d 374 (1981).
m
Defendant next contends that the prosecutor made improper arguments concerning her prearrest statements. After review of the record, we find the argument to have been permissible comment about the evidence and reasonable inferences drawn from it. People v Gaines, 129 Mich App 439, 445; 341 NW2d 519 (1983). Compare People v Storch, 176 Mich App 414, 422-423; 440 NW2d 14 (1989).
IV
Defendant argues that the trial court abused its discretion when it refused to instruct the jury with regard to two lesser included misdemeanors as she requested. We agree that the jury should have been instructed on one of the misdemeanors.
Defendant was charged with assault with intent to commit murder. MCL 750.83; MSA 28.278. The jury was also instructed on assault with intent to do great bodily harm, MCL 750.84; MSA 28.279, and felonious assault, MCL 750.82; MSA 28.277. Defendant requested, but the trial court refused to give, instructions on reckless use of a firearm with resulting injury, MCL 752.861; MSA 28.436(21), and injuring by discharge of a firearm intentionally but without malice pointed at another, MCL 750.235; MSA 28.432.
In People v Stephens, 416 Mich 252, 261-265; 330 NW2d 675 (1982), the Supreme Court decided that, when properly requested, a trial court should instruct a jury on appropriate lesser included misdemeanors if a rational view Of the evidence could support a verdict of guilty of the misdemeanor and not guilty of the felony, the defendant has proper notice or has made the request, and the instruction would not result in confusion or injustice.
Defendant’s request for both misdemeanor instructions was properly made. We find each to be appropriate because both protect the same interests protected by the felonies and the evidence used to prove the felonies generally will prove the misdemeanors as well. Neither instruction would have created undue confusion or injustice.
However, while a jury viewing the evidence rationally could have found defendant not guilty of the felonies and guilty of reckless discharge, it could not have found defendant guilty of intentionally aiming without malice. Defendant testified that she threatened her husband with the shotgun in self-defense, then intentionally fired the gun without aiming it while her eyes were closed. If the jury accepted her story, it could have found her guilty of reckless discharge, but there was no evidence to support finding that she had intentionally aimed the gun without malice.
The error in not instructing the jury on reckless discharge cannot be held harmless because the jury rejected the primary charge and found defendant guilty of the least serious charge it was instructed on. People v Beach, 429 Mich 450, 465-467; 418 NW2d 861 (1988).
v
Finally, defendant argues that the trial court improperly instructed the jury with regard to flight and the duty to retreat while being attacked in her own home. We agree.
The trial court instructed the jury that defendant’s flight could be evidence of consciousness of guilt and refused to instruct that flight could have resulted from reasons consistent with innocence. The defendant objected to the court’s instruction, claiming that the jury should have been instructed that flight can also demonstrate fear. Flight can result from factors other than guilt, and it is for the jury to determine what caused defendant to flee. People v Stull, 127 Mich App 14, 18; 338 NW2d 403 (1983). The trial court should have instructed the jury on how to evaluate this evidence in accordance with CJI 4:4:01, now CJI2d 4.4. Instructing about the prosecutor’s, but not the defendant’s, theory of the evidence was erroneous. People v Ora Jones, 395 Mich 379, 393; 236 NW2d 461 (1975).
The trial court also refused to instruct the jury that defendant had no duty to retreat from an assault in her own home. See CJI2d 7.17, formerly CJI 7:9:03. Considering that the prosecutor had raised the issue of the reasonableness of defendant’s decision to remain in her home while her husband attacked her repeatedly, the instruction should have been given. People v Fisher, 166 Mich App 699, 710-711; 420 NW2d 858 (1988).
Both instructional errors did not fairly present the issues tried in this case or protect the defendant’s rights. Therefore, reversal is required. People v Harris, 190 Mich App 652, 664; 476 NW2d 767 (1991).
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Per Curiam.
In this declaratory judgment action, plaintiff appeals by leave granted from an order denying its motion for summary disposition and granting partial summary disposition in favor of defendants Castanier and Thayer. We reverse.
In January 1988, Gary Castanier and Terry' Thayer, Jr., were involved in a fatal collision of their off-road vehicles on the banks of the Kawkawlin River. It is alleged that Thayer’s father gave him alcohol before the collision occurred and that his father was aware that he was operating his. vehicle at night without headlights and at an excessive rate of speed while intoxicated. A wrongful death action was commenced on behalf of the estate of Gary Castanier against the estate of Terry Thayer, Jr., as well as his parents, Terry Thayer, Sr., and Sandra Thayer. Plaintiff is the Thayers’ homeowners’ insurer, and it is undisputed that Terry Thayer, Jr., was an insured under the policy.
Plaintiff contended that coverage was excluded under the following provision of the homeowners’ policy:
We do not cover bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of any motorized land vehicle or trailer. However, this exclusion does not apply to:
b) any motorized land vehicle designed principally for recreational use off public roads, unless that vehicle is owned by an insured person and is being used away from the residence premises.
The trial court found this provision to be ambiguous and thus construed it to provide coverage. Plaintiff claims that the court erred. We agree.
When the terms of an insurance policy are plain and unambiguous, their plain meaning should be given effect. Allstate Ins Co v Goldwater, 163 Mich App 646, 649; 415 NW2d 2 (1987). If a policy, though inartfully worded or clumsily arranged, fairly admits of but one interpretation, it may not be said to be ambiguous or fatally unclear. Goldwater, supra, p 648.
The quoted policy provision is identical to the provision at issue in Goldwater. We agree with the Goldwater Court that, while the provision’s language "may initially appear confusing, [it is not] ambiguous; it clearly excludes coverage for an accident involving a motorized land vehicle designed for recreational use off public roads, owned by an insured, that occurred away from the residence premises.” Goldwater, supra, p 649. Contrary to defendants’ argument, we attach little, if any, significance to the fact that Goldwater did not construe the policy term "motorized land vehicle.” Our Supreme Court • recently concluded that the plain meaning of the term "land motor vehicle” is "a vehicle with a motor that travels on land.” Farm Bureau Mutual Ins Co v Stark, 437 Mich 175, 182; 468 NW2d 498 (1991). We can find no meaningful distinction between the terms "motorized land vehicle” and "land motor vehicle.” The inclusion of the term "motorized land vehicle” does not render the policy ambiguous. Stark, supra.
In this case, Castanier was fatally injured in an accident involving "a vehicle with a motor that travels on land,” Stark, supra, designed for off-road recreational use, owned by an insured, away from the insured’s residence. The contract clearly excludes coverage under these circumstances. Goldwater, supra. The trial court thus erred in denying plaintiff’s motion for summary disposition.
We also disagree with the trial court’s conclusion that the various acts of negligence alleged against defendant Terry Thayer, Sr., were not excluded from coverage. Coverage is not afforded where, as in this case, an insured’s claim for coverage is wholly derivative of another insured’s claim that is excluded under the policy. Allstate Ins Co v Freeman, 432 Mich 656; 443 NW2d 734 (1989). See also State Farm Fire & Casualty Co v Huyghe, 144 Mich App 341; 375 NW2d 442 (1985). Further, we decline to adopt the dual-causation theory advanced by defendants. See Vanguard Ins Co v Clarke, 438 Mich 463; 475 NW2d 48 (1991). The injuries resulting from the collision in this case were excluded from coverage regardless of the label the allegations were given in the complaints
Our disposition of these issues makes it unnecessary to address plaintiff’s remaining claim. In any event, we note our agreement with plaintiff that the trial court erred in holding that material issues of fact existed regarding the policy’s exclusion pertaining to criminal or intentional acts. Plaintiff was not required to show that Thayer intended to injure Castanier, but, rather, that a reasonable person would have expected an injury to occur. See Freeman, supra, p 688. We are satisfied that a reasonable person would have expected injury to result from driving an off-road vehicle at night without headlights at an excessive speed while intoxicated.
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Per Curiam.
Defendant, a member of the Saginaw Chippewa Indian tribe, was arrested in Chippewa Township, Isabella County, for operating a motor vehicle while under the influence of intoxicating liquor, third offense, MCL 257.625(6); MSA 9.2325(6). Defendant was also charged with impaired driving, third offense, MCL 257.625b(4); MSA 9.2325(2)(4), and driving with a suspended license, second offense, MCL 257.904(3); MSA 9.2604(3). Defendant moved in circuit court to quash the information on the ground that the state court lacked subject-matter jurisdiction because he was arrested on land within the boundaries of the Isabella Indian reservation. The court granted defendant’s motion to quash. The prosecution now appeals as of right the August 31, 1990, order quashing the information. We reverse and remand.
The sole issue before us is whether defendant was in Indian country. Indian country is defined by 18 USC 1151, in pertinent part, as:
(a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation ....
The circuit court found that "Leaton Road is a right-of-way running through the Isabella Indian Reservation, and is therefore, by definition, 'Indian Country.’ Since federal and tribal jurisdiction are exclusive in Indian Country, it is axiomatic that state criminal jurisdiction over an enrolled member of the tribe in Indian country, including rights-of-way therein, is void, according to the plain meaning of the statute.”
The prosecution asserts that defendant was not in Indian country when he was arrested. Rather, the prosecution contends the location where defendant was arrested is outside the areas that are Indian country.
The prosecution first argues that land patented to non-Indians before the effective date of the treaties was never Indian country as defined by statute.
The Isabella reservation was established by the Treaty of October 18, 1864. That treaty provided, in part, that:
Article II. In consideration of the foregoing relinquishments, the United States hereby agree to set apart for the exclusive use, ownership, and occupancy of the said . . . Chippewas of Saginaw, Swan Creek, and Black River, all of the unsold lands within the six townships in Isabella County, reserved to said Indians by the treaty of August 2d, 1855, aforesaid, and designated as follows, vis:
The north half of township fourteen, and townships fifteen and sixteen north, of range three west; the north half of township fourteen and township fifteen north, of range four west, and townships fourteen and fifteen north, of range five west.
The prosecution argues that any lands within the six described townships that were sold before the execution of the 1864 treaty were never part of the original Isabella reservation and, therefore, could not be considered Indian country for jurisdictional purposes. The prosecution has documented the fact that the area where defendant was ar rested was patented to non-Indians in July 1857 pursuant to cash purchases made in 1854.
Indian treaties must be construed "so far as possible, in the sense in which the Indians understood them, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.” Choctaw Nation of Indians v United States, 318 US 423, 432; 63 S Ct 672; 87 L Ed 877 (1943). "The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense.” Worcester v Georgia, 31 US (6 Pet) 515, 582; 8 L Ed 483 (1832). Ambiguities are to be construed in favor of the Indians. Oneida Co v Oneida Indian Nation, 470 US 226, 247; 105 S Ct 1245; 84 L Ed 2d 169 (1985). Courts may not, however, "ignore plain language that, viewed in historical context and given a 'fair appraisal,’ . . . clearly runs counter to a tribe’s later claims.” Oregon Dep’t of Fish & Wildlife v Klamath Indian Tribe, 473 US 753, 774; 105 S Ct 3420; 87 L Ed 2d 542 (1985).
In this case, the parties have not presented evidence of the negotiations surrounding the formation of the Treaty of October 18, 1864. However, examining the treaty itself, it appears that the parties intended for the previously sold lands to be excluded from the reservation, because the Chippewas were granted all the "unsold” lands within the six townships. Given the plain language of the treaty, and the lack of evidence to the contrary, we believe the Chippewas would have understood at the time of treaty formation that they were not permitted to settle on or own any lands previously patented to individuals. Choctaw Nation of Indians v United States, supra.
Therefore, defendant was not on a right of way passing through Indian country when he was arrested, and he was subject to criminal prosecution in state court.
Our resolution of this issue renders moot the prosecution’s second assignment of error, that lands patented to Indians and subsequently sold to non-Indians are not Indian country.
We reverse the circuit court’s order of August 31, 1990, and remand for trial on all charges. We do not retain jurisdiction. | [
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Fead, J.
As plaintiff and defendant were driving in the same direction and defendant was passing plaintiff, the latter’s car ran off the road, turned over, and he was injured. Each blames the other for the accident. Plaintiff had judgment for $3,500.
Plaintiff suffered a broken leg, a broken nose, a broken and misplaced upper jaw bone, loosened teeth, and other severe injuries. He testified his leg pains him, especially when he walks, his head aches, and his jaw hurts when he eats. In view of this testimony, it was not error to permit the jury to consider compensation for future pain and suffering. Pains from broken bones do not cease in an instant. The verdict demonstrates that the jury did not misuse the instruction of the court.
Defendant’s contention that the court submitted to the jury some elements of compensation which were not covered by the declaration comes too late. The charge was within the evidence. The testimony was taken without objection. No request to limit recovery was made. There is nothing to review.
The testimony as to the cause of the accident was in sharp conflict, with both plaintiff and defendant-corroborated by witnesses, so that their credibility was an important consideration. We cannot - say the verdict was against the great weight of the evidence.
Defendant’s other contentions have no merit and need no discussion.
__ Judgment affirmed, with costs.
Clark, C. J., and- McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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North, J.
Incident to the hearing of the auditor general’s petition for the sale of lands in Oakland county for unpaid taxes of 1928, Mr. John Arthur Tillson filed a petition seeking cancellation of a special assessment against 23 lots owned by him in a comparatively recent addition to the city of Pontiac. He was denied relief and has appealed.
The assessment, totaling $1,437.50, is for an extension of water mains. Mr. Tillson alleges the tax is void on the ground that the city had no authority to levy it, and that it resulted in discrimination amounting to a fraud. In opposition, the city of Pontiac denies the alleged lack of authority to levy this special assessment, and also denies the material allegations of fraud or discrimination.
In objecting to a tax in a proceeding of this character the burden is placed by statute upon the objector. 1 Comp. Laws 1929, § 3458. The alleged lack of implied authority to levy this tax was not established. On the contrary the city’s power in that particular affirmatively appears. Its present charter' was adopted under the home rule act (1 Comp. Laws 1929, § 2228 et seq.). Chapter 12, § 1, of the charter provides:
‘ ‘ The commission shall have the power to provide for the payment of all or any part of the cost of construction, reconstruction, repair, operation or maintenance of any structure or work in the nature of public improvement, by levying and collecting special assessments upon property specially benefited. Such special assessments may be payable in yearly installments for a period not exceeding ten years.” Pontiac City Charter of 1920 as am. April 6, 1925.
The burden of the objector’s effort in the trial court seems to have been to establish as a fact that different methods had been followed by the city in levying special assessments for the extension of water mains upon properties located in other assessment districts; and also to establish that special assessments of this character were not levied if the extension was within the former corporate limits of the city. This, he claims, resulted in discrimination and inequality and worked a fraud upon him. The trial judge excluded the testimony offered as to assessments in other districts, and correctly held that the facts thus sought to be proven were immaterial, and that the issues here to be tried were, first, whether these assessments were or were not within the power of the city to levy; and second, whether they wpre discriminatory or arbitrary or whether there was any fraud or mistake in determining the amount. This record discloses that in accordance with the city charter the commissioners determined that the extension of these water mains was a necessary public improvement; an assessment district was regularly established; the special assessments were spread upon the respective parcels benefited; notice and opportunity for hearing were provided; and no objections were made. The proposed improvement has been completed. Appellant cannot be heard in an effort to relieve his property from paying its proportion of the cost merely because there may have been irregular or invalid charges made for like improvements in other assessment districts. The record is not such as- entitles the objector to cancellation of these assessments. The decree entered in the circuit court is affirmed. Costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fbad, Wiest, and Butzel, JJ., concurred. | [
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] |
McDonald, J.
This suit was brought to restrain the defendants from constructing a gasoline station on a portion of their property iii^which the plaintiff claims to have acquired an easement by prescription for street purposes. From a decree dismissing the bill the plaintiff has appealed.
The defendants own the fee of land located at the intersection of Exchange Place street and Railroad street in the village of Manchester. For the purpose of this suit it is clear enough to describe it as bounded on the north by Exchange Place street, on the west by Railroad street,'on the east by the Raisin river, and on the south by land formerly owned by Amariah’Conklin. There is a flour and feed mill on the property which has been owned and operated by the defendants and their predecessors in title for 50 years. It is built in the northwest corner of the property, and stands a sufficient distance from Railroad street to afford a loading and unloading place for customers. This strip of land between the mill and Railroad street and between the river embankment and Railroad street south to the Conklin property is the land in which plaintiff claims to have acquired an easement by prescription for street purposes. In its bill of complaint the plaintiff alleges :
“That the public has used the strip of land bounded on the north by the southerly line of said Exchange Place street; on the east by the westerly foundation wall of the said feed mill and the crest of the westerly bank of the said River Raisin; on the south by the northerly line of the land formerly owned by the said Amariah Conklin; and on the west by the easterly line of said Railroad street for the purpose of public travel for the past 40 years, and upwards, and that the plaintiff, by its officers and. servants, has worked and maintained said' strip of land as a part and parcel of the said Railroad street for and during the said period of 40 years, and upwards, and all without let or hindrance from any person or persons whomsoever, until on or about the 15th day of June, 1931, when the defendants started to make an excavation on the easterly side of said strip of land.”
The defendants answered with ,a cross-bill denying that plaintiff had acquired an easement in the land and praying for a decree quieting their title.
The essential elements of an easement by prescription are stated by Ruling Case Law and Corpus Juris as follows:
“To establish an easement by prescription there must be: first, continued and uninterrupted use or enjoyment; second, identity of the thing enjoyed; third, a claim of right adverse to the owner of the soil, known to and acquiesced in by him.” 9 R. C. L. § 33, p. 772.
“The use and enjoyment which will give title by prescription to an easement or other incorporeal right is substantially the same in quality and characteristics as the adverse possession which will give title to real estate. That is to say, it must be adverse, under claim of right, continuous, uninterrupted, open, peaceable, exclusive and with the knowledge and acquiescence of the owner of the servient tenement.” 19' C. J. § 32, p. 878.
The principal obstacle in the way of establishing the plaintiff’s right to a highway by user over this land is that the testimony does not show the use of any particular or definite portion by the public. It shows no definite lines or tracks by which the easement may be identified. An easement is claimed, not over any particular way, but over the entire strip up to the foundation wall of the mill and under the nine-foot canopy that extends over the doors where customers unloaded grain. This strip of land west of the mill is 32 feet wide at the north and narrows to 22 feet at the southwest corner of the mill. It im mediately adjoins Railroad street on the east and Exchange Place street on the south. Its use for travel by the public was not necessary or beneficial. It was not even convenient, except that it enabled drivers to cut the corner in going from Railroad street on to Exchange Place street. There was no curb or other mark to designate the boundary line between this strip of land and Railroad street, and the public did not know when they were driving on defendants’ land except possibly when they were cutting the corner onto the intersecting street. A witness for the plaintiff testified:
“The public drove all over; whether they were customers of the mill or not, I don’t think made any difference. It was open; everybody drove there whenever they felt like it.”
Other witnesses testified that the public drove all over the defendants ’ land, that in making the corner onto Exchange Place street they usually took a route closer to the mill and that some even drove under the canopy. A highway cannot be established over a man’s property by that kind of user. He has a right to know where it begins and where it ends. It is an incumbrance and a burden on his land and must be definitely located.
“A prescriptive right of way, for example, cannot be acquired to pass over a tract of land generally ; such right must be confined to a specific way, or a definite, certain and precise line, which has been used as the right of way.” 9 R. C. L. § 35, pp. 775, 776.
As there was no regular driveway established over the defendants’ land, the plaintiff has not acquired an easement therein for highway purposes.
But the plaintiff also claims to have acquired the right to use the land for parking purposes. The manner in which it was used for this purpose was described by the plaintiff’s witness, Samuel Voegeding, who had been familiar with the property for 30 years. He testified:
“During the daytime and the mill was in operation there were teams there all the time, loading and unloading. At night when the mill would close up, people would come there and hitch their horses if they wanted to. And since the advent of the automobile, that practice has been carried on. During the daytime the mill owners have used the property for mill purposes and at night the public would come in and park when the mill wasn’t in operation.”
There is nothing in this testimony showing a public use of the property inconsistent with defendants’ ownership. It was a use exercised in recognition of the owners’ right to use it, not for the same purpose but for other and private purposes. It was not a continuous and uninterrupted use. The public was deprived of its use for parking purposes when the defendants were operating their mill. It was not an adverse use, because it did not interfere with the use the owners made of it in their business.
It is not necessary to pursue the argument further. Other claims might be discussed, but we have said enough to demonstrate that some of the essential elements necessary to constitute a right of way by prescription were wanting. The trial court correctly disposed of the issue.
The decree is affirmed, with costs to the defendants.
Clark, C. J., and Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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] |
McDonald, J.
This is an action on an insurance policy to recover loss from injury to an automobile while it was being transported on a truck from Lansing, Michigan, to Nashville, Tennessee.
The truck was one of a number rented by the plaintiff for that purpose. It was loaded in the usual way with the front end of the forward automobile elevated above and at the rear of the cab. While the truck was passing over an old-fasliioned, wooden, covered bridge near Bardstown, Kentucky, the front end of the forward automobile came in contact with an overhanging plank and was damaged. When requested to make good the loss, the defendant company denied liability on the ground that it was not covered by the policy. Hence this suit.
The issue involved the construction of a clause in the policy relative to an “accidental collision of the truck with any other automobile, vehicle or object.” The truck proper did not come in contact with the bridge, but the plaintiff contended that a collision between the load on the truck and the bridge was a collision with* the truck within the meaning of the policy. The defendant contended that by the clear and plainly expressed language of the policy its liability was limited to a collision of the truck itself with some other object. The trial court accepted the plaintiff’s construction and entered a judgment in its favor for the full amount of the loss. The defendant has appealed.
On the face of the policy it is stated:
“Property Insured.
“All lawful goods and merchandise consisting principally of automobiles, the property of the assured, or of others for which the assured may be legally liable as carriers, while loaded for shipment on and/or in ordinary course of transit in or on the following described automobile trucks owned and operated by the assured within the limits of the United States and Canada.
“This insurance covers from the-time the merchandise is loaded in or on such motor-truck or trucks until unloaded therefrom. * * *
‘ ‘Indorsement.
“It is hereby understood and agreed that this policy is hereby extended to cover against loss by theft of an entire car, but under no circumstances shall this policy be construed to cover pilferage.
“This policy also covers all loss or damage through loading and unloading. ’ ’
On the back of the policy in fair type is printed the following:
‘ ‘ This Policy Insures
“Loss or damage caused by
“(a) Fire and lightning, including self ignition of the conveyance.
“(b) Flood.
“(c) Cyclone, tornado, earthquake, and explosion.
“(d) Accidental collision of the truck with any other automobile, vehicle or object (excluding any loss or damage caused by coming in contact with any portion of the roadbed or by striking rails or ties of street, steam or electric railroad, or any loss or damage caused by coming in contact with any stationary object in backing for loading or unloading purposes).
“(e) Overturning of truck and collapse of bridges.
“(f) Stranding, sinking, fire or collision, including general average or salvage charges, when being transported on or in said trucks while on any regular ferry.”
As we pointed out in our statement of facts, this controversy arises over an interpretation of the language of subdivision (d): “Accidental collision of the truck with any other automobile, vehicle or object.”
The defendant insists that this language cannot be construed to extend liability to a collision of the load on the truck with an object; that there is no ambiguity in the language used; that there can be no construction contrary to its plain meaning*, which limits liability to a collision with the truck itself.
Standing by themselves the words are plain enough, but they must be considered in connection with all of the other language of the policy in order that it may be ascertained what meaning the parties mutually intended to give them which would be consistent with the object and purpose of the insurance.
“A policy should be given effect according to the sense in which the parties mutually understood it when it was made. * * * Such mutual intention is to be deduced, if possible, from the language of the contract alone.” Joyce on Law of Insurance (2d Ed.), § 209.
When considered in its entirety, it will be noted that on its face the policy insures the automobiles on the hazards of the road while they are in transit. It is doubtful whether the so-called exceptions in the subdivisions under the head, “This policy insures” are enlargements or limitations on the liability shown on the face of the policy. The first three regarding damage by fire and lightning, flood, cyclone, etc., are clearly enlargements. Whether subdivision (d) relative to collision of the truck is a limitation, presents a closer question. The truck did not belong to the plaintiff and was not insured. Whether it was intended to limit liability to damage done by collision, admits of much doubt. In Importers’ & Exporters’ Ins. Co. v. Jones, 166 Ark. 370 (266 S. W. 286), the body of the policy provided insurance for direct loss while the automobile was in transportation. On the back the following peril was insured against:
“While being transported in any conveyance by land or water, the stranding, sinking, collision, burning or derailment of such conveyance,” etc.
As to the effect of this clause on the insurance provided in the body of the policy, the court said:
“It was manifestly their intention, by the language used, to cover all conceivable losses to the automobile while it was being transported, and they used the terms ‘sinking, collision, stranding, burning and derailment’ as an enumeration of the methods by which such loss or damage might occur. When the subject-matter of the insurance and the language of the .policy as a whole is considered, it certainly cannot be said that it was the intention of the company to limit its liability to the appellee for a loss or damage caused only by the sinking, collision, stranding, burning and derailment of the conveyance in which the car was being transported rather than the ‘sinking,’ etc., of the car itself. The words ‘sinking,’ etc., were words of enumeration or description of the manner of loss of the car rather than a limitation of the liability to the manner of destruction of the vehicle or means of transportation. Such we believe to be the plain commonsense meaning’ of the contract. ’ ’
This holding of the Arkansas supreme court is not in harmony with a few decisions in other jurisdictions found in 42 C. J. p. 812, but the fact that there is a conflict of opinion shows at least that language like that we are here considering is of doubtful meaning and requires construction.
In construing it, we must adopt that construction which is most favorable to the insured and most consistent with the purpose for which the policy was issued. This leads to the conclusion that the clause in the policy relative to “accidental collision of the truck with any other automobile, vehicle or object” fairly includes and should be construed to include collision of an automobile on the truck with any other object such as an overhanging plank in the bridge.
In this view of the policy, the plaintiff is entitled to the full amount of its loss.
The judgment is affirmed, with costs to the plaintiff.
Clark, C. J., and Potter, Sharpe, North, Pead, Wiest, and Btttzel, JJ., concurred. | [
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Wiest, J.
This is an action against a physician to-recover damages for alleged malpractice in setting and treating plaintiff’s broken leg.
November 30,1926, both bones of plaintiff’s left leg were broken about eight inches above the ankle. He employed a physician, not defendant, and was under his care for 10 weeks. February 3, 1927, plaintiff employed defendant, and an X-ray examination disclosed that the bones were not in apposition but the broken ends passed for some inches. Defendant made an incision in the leg, prepared and aligned the bones in proper manner, sutured them with catgut and encased the leg in a plaster cast. Up to such point the treatment was proper, but, it is alleged, malpractice followed in not taking X-ray pictures of the condition during the curative process, in not em ploying traction or extension weights, and in placing a pillow just back of the heel, raising the foot several inches, without support under the injured leg. Plaintiff’s leg is now bowed backward, there has been union of the small bone but only union in part of the large bone, and the leg is weak.
This suit was brought November 15, 1929, by declaration, without allegation excusing delay for more than two years. The statute, 3 Comp. Laws 1929, § 13976, provides that an action for malpractice of a physician or surgeon shall be brought within two years from the time the cause of action accrues. Section 13983, 3 Comp. Laws 1929, provides, however, that if the cause of action is fraudulently concealed by the physician the action may be commenced within two years after discovery.
Defendant moved to dismiss, and plaintiff asked and was granted leave to amend. There was no error in granting such leave. The amended declaration, however, did not sufficiently allege, neither did the proofs at the trial show, the essential elements of fraudulent concealment of plaintiff’s cause of action. Fraudulent concealment means employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of information disclosing a right of action. The acts relied on must be of an affirmative character and fraudulent.
When did plaintiff’s cause of action accrue? Until treatment of the fracture ceased the relation of patient and physician continued, and the statute of limitations did not run. Schmit v. Esser, 183 Minn. 354 (236 N. W. 622), and reported with annotations in 74 A. L. R. 1312. While decisions are not in accord upon this question, we are satisfied that in such an action as this the statute of limitations does not commence to run while treatment of the fracture continues. Failure to give needed continued care and treatment, under opportunity and obligation to do so, would constitute malpractice. During the course of treatment plaintiff was not put to inquiry relative to the treatment accorded him.
Plaintiff testified that about a week before defendant took an X-ray picture of his leg on February 19, 1929, the defendant placed a bandage around his injured leg and before that he had repeatedly visited the defendant’s office relative to his leg and the pain it was causing him, and defendant had given him capsules to ease the pain, and assured him that it would take time to perfect a cure. If defendant bandaged the injured leg in February, 1929, then this suit, commenced November 15, 1929, was not barred by the statute of limitations. The court so instructed the jury.
Plaintiff claimed that, when the defendant performed the operation and placed the leg in a plaster east, a pillow was placed under or just above the heel, with no support under the encased leg. In a hypothetical question to plaintiff’s experts this was included as a fact. The experts had to assume that it was true. The jury, in answer to a special question, found that it was not true.
Defendant requested the court to instruct the jury:
“You are instructed that an expert witness, in answering a hypothetical question, assumes as true every asserted fact stated in the question. I, therefore, instruct you that if you find that the evidence fails to establish the truth of the asserted facts in the hypothetical question, then you cannot consider the answer of the expert to that hypothetical question, but must disregard such answer. ’ ’
The court instructed the jury:
“An expert witness, in answering a hypothetical question, assumes as true every asserted fact stated in the question.”
The requested instruction should have been given. Turnbull v. Richardson, 69 Mich. 400; Ballance v. Dunnington, 241 Mich. 383 (57 A. L. R. 262). In the latter case we said:
“It should be remembered that an expert witness, in answering a hypothetical question, must accept as true every asserted fact stated therein, but the jury cannot consider the answer of the expert unless they find the evidence establishes the truth of all such asserted facts.”
Counsel for plaintiff contend that:
“Presumably the jury followed the instructions given them to the effect that an expert must assume the statements in the hypothetical question to be true and disregarded that portion of the doctor’s answer. Counsel’s argument, answered at its face value, means that, in any case where a hypothetical question is asked and where special questions are submitted and it appears, from the answer to these questions, that one of the elements stated in the hypothetical question is not true, it follows that there is nothing for the jury to consider. The statement of the proposition carries its own refutation.”
The fact of support, just above the heel and no support under the encased leg, was one allegation of negligent treatment, and the expert witnesses for plaintiff. accepted this as evidence of malpractice. When, the jury, in answer to a special question, found such assumed fact to be untrue, it was their duty to disregard entirely answers to the hypothetical question. The. expert witnesses pointed out that malpractice consisted in failure to take an X-ray picture, failure to apply traction, and the negligent act in placing a pillow Just above the heel without other support to the leg. Want of support was accepted by the experts as of moment in giving their opinions upon the subject of improper treatment, and the fact that later they expressed opinions upon each element of want of care did not save the hypothetical question for consideration by the jury.
It is claimed that plaintiff repeatedly and unnecessarily exhibited his injured leg to the jury. It was proper to exhibit the leg, and we cannot find that there was prejudicial exhibition thereof.
Counsel for plaintiff, in examining defendant’s experts, had a medical work on the table, but did not read therefrom, although he did ask about certain medical text-books, and got before the jury, at least, the impression that the book in court disputed the witness.
The trial judge ruled:
“Is not this the rule, that when the doctor states it is a standard medical work, he may then ask the doctor whether or not' that -standard medical work does not (state) so and so, is not that a proper question?”
Such is not the rule. If a medical witness refers to a text-book as his authority, then the book referred to may be used to contradict him. Marshall v. Brown, 50 Mich. 148; People v. Millard, 53 Mich. 63; Hall v. Murdock, 114 Mich. 233; Foley v. Railway Co., 157 Mich. 67; Sykes v. Village of Portland, 193 Mich. 86; People v. McKernan, 236 Mich. 226.
The court was in error in overruling the objection to the following question to one of the experts in behalf of plaintiff:
“Doctor, I will ask you this question: I want to save the time, but will try to get it in the form so that -it is permissible. Assuming the facts to be true that I have stated in my hypothetical question, what is your opinion as to the cause, the proximate cause, of the bow in that leg?”
This invaded the province of the jury. As far as the expert could go was to state that the alleged malpractice of defendant might' cause the bow in the leg.
The ultimate issue of fact for determination by the jury was whether malpractice of defendant caused the condition complained of by plaintiff. In Jones v. Village of Portland, 88 Mich. 598, 613 (16 L. R. A. 437), a similar question was asked an expert witness. We quote:
“ ‘Q. Taking into consideration simply these things that were asked you on this question, to what would you attribute the condition that you found the patient in at the time of your examination?’
“This was objected to as incompetent.
“ ‘The Court: I am inclined to think that is proper. Leaving out now everything except what was stated to you in this hypothetical question, then what, in your judgment, caused the condition in which you found her. ’ ’ ’
The court held:
“This was improper. It was usurping the province of the jury. The witness was permitted to testify to a conclusion, contrary to our own decisions. Dundas v. City of Lansing, 75 Mich. 499 (5 L. R. A. 143, 13 Am. St. Rep. 457): Tice v. Bay City, 78 Mich. 209.”
The judgment is reversed, and a new triál ordered, with costs to defendant.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, and Butjzel, JJ., concurred with Wiest, J. North, J., concurred in the result. | [
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McDonald, J.
This is an action on a surety bond given to secure the performance of grading and draining streets in a plat known as Stratmore addition to the township of Burton.
The condition of the bond is as follows:
“Now, therefore, if the said Guy M. Wilson, as trustee, shall grade all the streets within the present limits of the township of Burton as shown on the aforementioned plat, said grading to include proper provision for surface drainage, and shall keep said streets closed to traffic until properly graded and placed in condition as required by the township board and highway commissioner of said township of Burton on or before September 15, 1925, and pay any and all damages that may result to the township of Burton by reason of the failure of said Guy M. Wilson, as trustee, to comply with the conditions thereof, then this obligation shall be void; otherwise to remain in full force and effect and virtue. ’ ’
In its declaration the plaintiff charges that the defendants—
“wholly neglected and refused to grade said streets in the aforesaid plat, or provide for proper surface drainage within the period specified in the aforesaid bond.”
In their notice of special defense defendants assert that—
“Said defendant, Guy M. Wilson, as trustee, # * did cause the streets in said plat to be graded in accordance with the terms of the bond, as set forth in said declaration, and spent upwards of the sum of $2,000 therefor.”
The issue thus formed was submitted to a jury, who rendered a verdict in favor of the plaintiff, and fixed its damages at $2,000. Judgment was entered on the verdict, and the defendants appealed.
The parties disagree as to the proper construction of the language of the bond. The defendants say that the words “as required by the township board and highway commissioner” mean that plans and specifications were to be furnished by the township board and highway commissioner as a condition precedent to the performance of any work on their part. The plaintiff contends that, as used, the language means that the grading and draining were to be done in a proper manner subject to the approval of the township board and highway commissioner.
But this question of construction is not involved in the case. The defendants do not claim that the work was not done because no plans and specifications were furnished. They claim to have performed the work without the plans and specifications. The plaintiff contends it was not done at all. The issue which went to the jury was performance or nonperformance. The jury found against the defendants, and, as there was no motion for a new trial, it is settled by their verdict that the defendants did no grading and draining after the bond was given. It was for failure to do any of this work, which constituted 80 per cent, of the entire grading and draining, that this suit was brought. As no grading and draining was done in accordance with the bond, the plaintiff is entitled to its damages. As to the allowance of damages, complaint is made that, in the presence of the jury, the court said, in substance, that, if the plaintiff could recover, it should be in the sum of $2,000, the full penalty of the bond. The court probably had in mind that the $2,000 named in the bond was stipulated damages, but he immediately corrected it by saying that the amount of damages would be for the jury to determine. Subsequently in his charge he was careful to explain that the verdict could not exceed $2,000, but might be in any sum less than that, depending on the evidence. Objections to the testimony of the witnesses, Gould and Decker, who estimated the damages, go to the weight of their evidence rather than to its admissibility. The undisputed testimony of the highway commissioner, who had practical knowledge on the subject and fixed the damages at $2,944, amply supports the judgment.
The record shows no error. The judgment is affirmed, with costs to the plaintiff.
Clark, C. J., and Sharpe, North, Fead, Wiest, arid Butzel, JJ., concurred. Potter, J., did not sit. | [
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] |
Care, J.
Plaintiff brought suit in.circuit court for the purpose of obtaining the winding up of a partnership business and an accounting of rights and liabilities arising therefrom. In August, 1941, defendant Nowakowski and Alfred T. Kubus opened a small store on Schaefer road in the city of Dearborn for the sale of sausage. Both men were employed elsewhere and the business was carried ón by the wife and the sister of Nowakowski, herein referred to as the defendant. It is conceded that the business association was a partnership. In the spring of 1943, both partners were inducted into the United1 States army. Thereupon Kubus sought to dispose of his interest in the business and agreed with Nowakowski to accept the sum of $1,000 therefor. The latter then entered into negotiations with plaintiff Wander ski, as a result of which plaintiff agreed to ■pay defendant the sum of $1,000 for1 a one-third interest in the business. A written agreement was entered into, designated as a “partnership agreement,” dated April 1, 1943, in which defendant was referred to as the owner of a going business described as the Kaszorek Sausage Shop. It was further set forth that the value of such business was fixed at the sum of $3,000, and that it should be continued by the partnership for a term of 5 years. Neither party was required to devote his time exclusively to the. business, which was to be conducted by employees approved by the partners. The profits were to be divided on the basis of two-thirds to Nowakowski and one-third to Wander ski.
At the time of the making of the agreement in’ question the business was being conducted on prem-' ises to which defendant held a 5-year lease containing an option for a renewal for an additional peiiod of 10 years. The partnership agreement expressly recited that the interest acquired by plaintiff should include a one-third interest in this lease and ixx the renewal option. The said sum of $1,000 was paid by plaintiff to defendant. Kubus assigned to defendant, and thereafter claimed no further interest in the business.
During the 5-year term covered by the partnership agreement between plaintiff and defendant the former received payments from time to time, by way of profits in the busixxess, aggregating a total somewhat in excess of $4,000. It does not appear that axxy difficulties between the partners arose during such pexiod, nor that plaintiff expressed any dissatisfaction with reference to the carrying on of the business or the amount of the payments made to him. By mutual agreement operations were extended to include the sale of fresh meats. After the expiration of the term on the 1st of April, 1948, defendant refused to consent to a renewal of the partnership agreement, and, as he claims, offered plaintiff $1,000 for his interest and by way of settlement of the accouxxts between them. He sent plaintiff a check for $100 which the latter cashed. It was Wanderslri’s testimony on the trial’ of the case that he accepted the cheek in the belief that it was in paymexxt of profits to which he was entitled.
The lease of the premises oxx which the bxxsixxess was conducted was not renewed. Defendant testified on the trial ixx circuit court that he sought to exercise the option but that the lessor refused to accede to the request and demanded axx increased rental, under a month-to-month leasing, to which defendant finally consented. It was his claim in the trial court that he thought it would be better to make a •new arrangement on the basis proposed by the lessor rather than to become involved in litigation. Following the expiration of the period covered by the partnership agreement defendant carried on the business at the premises in question. Claiming that he was unable to obtain an accounting with reference to his interest in the assets of the partnership and in the profits of the business, plaintiff instituted the present suit. After the filing of the original pleadings defendant’s wife, Lucille Nowalcowsld, -who was apparently associated with him at that time in the conduct of the business, was, by stipulation, joined as a party defendant.
Following a - hearing in circuit court the trial judge came to the conclusion that a partnership relation existed between plaintiff and defendant, that there was no agreement for settlement as claimed by the latter, and that the value of plaintiff’s interest as of February 7,1950, the date of the original decree in the cause, was $8,000. He further concluded that from such amount should be deducted the money, approximately $4,000, that plaintiff had received during the term of the partnership, and that there should be added to it the sum of $1,000 paid by plaintiff for his interest in the business. The final decree, entered March 23,1950, required that defendant pay to plaintiff the sum of $5,000, and that he assume the obligations of the partnership. It was further provided that on the mating of such payment defendant should become the sole owner of the business and its assets, free and clear of any rights and claims of the plaintiff, who was directed to execute a bill of sale of his right, title and interest, in and to “said copartnership and its assets.” From the decree plaintiff has appealed and defendants have cross-appealed.
On behalf of defendants and cross-appellants it is urged that the so-called partnership agreement was executed for purposes óf security only and that ac tually the money received hy defendant Nowakowski from the plaintiff was a loan. As before indicated, this claim was advanced in the trial court and was rejected. The testimony of the parties clearly indicates that they considered that the written agreement into which they entered created a partnership relation. The fact that over $4,000 was paid to plaintiff by way of profits from the business is scarcely consistent with the theory that he was merely a creditor of defendant in the sum of $1,000. It may be noted also that the bill of complaint alleged the formation of a partnership and the answer of the defendants admitted such allegation. The claim that there was no partnership is without merit. The further holding of the trial judge that there was no agreement between the parties pursuant to which plaintiff bound himself to accept the sum of $1,000 for his interest in the partnership and its assets is fully supported by the proofs.
It is the claim of the plaintiff that he is entitled’ to receive a sufficient sum of money to cover his one-third interest in the partnership business, valued as a going concern, and his share of the profits from the time of the formation of the agreement to the entering of the decree of the court. It is insisted that the appraisal of the business should be based on the assumption that the partnership was entitled to a lease of the premises for the full period of 10 years from and after the expiration of the original 5-year term. It is conceded that the ownership of such a lease, or the right thereto, at the time of the dissolution of the partnership on April 1, 1948, very materially affected the value of the business. The record, however, is in a rather unsatisfactory state. The lease was not produced on the trial. Both defendant and the lessor, who was called as a witness, denied possession of a copy. In consequence the trial court was not advised, nor is this Court, as to the exact terms of the option provision. Whether a. purchaser would he willing to buy the business, as a going concern in reliance on his ability to obtain such a lease is wholly a matter of speculation and conjecture. Determining a valuation that is reasonably satisfactory from the mathematical standpoint is complicated by the unusual situation indicated by the record. The fact is, however, according to the undisputed testimony, that defendant, who held the original lease, had been unable to procure a recognition of his alleged rights under the option.. In effect, he had undertaken to waive those rights in consideration of the act of the lessor in making a new arrangement with him. The proofs in the case indicate that the lease expired prior to the termina-’ tion of the partnership agreement on April 1, 1948. On the record before us we conclude that plaintiff is not justified in contending that the trial judge was= bound to determine the value of plaintiff’s interest in the partnership business on the theory of the existence of an extended lease expiring 10 years after the expiration of the original term.
Certain provisions of the uniform partnership act of the State are material as bearing on the rights of the parties. Said provisions are as follows:
“Sec. 29. The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business.” (CL 1948, § 449.29 [Stat Ann § 20.29]).
“Sec. 30. On dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed.” (CL 1948, § 449.30 [Stat Ann § 20.30]).
“Sec. 42. When any partner retires or dies, and the business is continued under any of the conditions set forth in section 41 (1, 2, 3, 5, 6), or section 38 (2b), without any settlement of accounts as between him or his estate and the person or partnership continuing the business, unless otherwise agreed, he or his legal representative as against such persons or partnership may have the value of his interest at the date of dissolution ascertained and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest, or, at his option or at the option of his legal representative, in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership.” (CL 1948, § 449.42 [Stat Ann § 20.42]).
In the instant case the parties by their written agreement fixed the date of dissolution as of April 1, 1948. Plaintiff was entitled to have the value of his interest in the business fixed as of that time. Defendant continued operations, however, using the partnership assets in the making of further profits.. Such being the case it was and is his duty to account to plaintiff for the latter’s rightful share.
The principles applicable to a situation of this kind, under the provisions of the uniform partnership act, were considered by this Court in Vanderplow v. Fredricks, 321 Mich 483. Analogous questions were involved in Froess v. Froess, 284 Pa 369 (131 A 276). There the partnership, the affairs of which were in question, was dissolved by the death of one of the partners. Commenting on the resulting situation, it was said in part:
“The interest of the decedent is fixed by a valuation as of the time of the dissolution (Hay’s Appeal, 91 Pa 265), and all members of the firm are entitled to a part of the surplus of assets over the amount necessary to pay the creditors of the firm: partnership act, sections 38,. 40, also sections 18, 25; Parker v. Broadbent, 134 Pa 322 (19 A 631). ‘The plain duty of the surviving partner is to collect the assets of the partnership, receive and receipt for payments, pay and settle partnership debts, settle .and wind up the partnership business and distribute the net surplus among the parties entitled to it’: Herron v. Wampler, 194 Pa 277, 286 (45 A 81). The amount found due has preference to any individual creditors of the survivor (note, 6 ALR 160), and is to be distributed in the manner designated by the partnership act (section 40).
“The determination of the right of the deceased partner where there has been no agreement to continue the business or dispose of the estate’s interest for a fixed sum, — facts found by the court in the present case, — may be controlled by an election of the personal representative of the decedent to take a share of the assets and profits which have been gained by the use of the property prior to actual settlement: Mamaux’s Estate, 274 Pa 533 (118 A 411); Maloney’s Estate, 233 Pa 614 (82 A 958); Eisenlohr’s Estate (No. 1), 258 Pa 431- (102 A 115). Or, in lieu of the latter, interest may be demanded on the value of the property, estimated as of the date of dissolution. .‘The legal rule is fixed on this subject. If the survivors of a partnership carry on the concern, and enter into new transactions with the partnership funds, they do so at their peril, and the representatives of the deceased may elect to call on them for the capital, with a share of the profits, ■or with interest. If no profits are made, or even if a loss is incurred, they must be charged with interest on the funds they use, and the whole loss will he theirs’: Brown’s Appeal, 89 Pa 139, 117. ‘The representatives of the dead partner have not only been allowed to elect between interest and the profits, but an inquiry has been directed to ascertain which would be most advantageous’: Beatty v. Wray, 19 Pa 516, 519 (57 Am Dec 677).
“Following the recognized rule, the right to so choose was expressly provided in the uniform part iiersbip act (section 42), and it is by reason of the-wording of that legislation that tbe confusion has arisen, leading to the second appeal now presented by the plaintiff below, and by which complaint is made of the final decree entered. As previously noticed, the administratrix asked, in her bill filed, for an accounting of the partnership assets, and her written election evidenced her desire ‘to take interest at legal rates on the value of the interest of the estate of Philip J. Froess, deceased, in the assets of the late copartnership.’ The statute referred to provides, in part (section 42), that ‘when any partner-retires or dies, and the business is continued * * * without any settlement of accounts as between him or his estate .and the person or partnership continuing the business, unless otherwise agreed, he or his legal representative as against such persons or partnership may have the value of his interest at the date of dissolution ascertained, and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest.’ ' '
“It is contended that this limits the claim of the estate to.a personal judgment against the survivor for the amount fixed, and releases the remaining, surplus of assets of the firm from liability to satisfy in whole or in part the indebtedness found to be due. To so hold wmuld be contrary to the rules fixed by the authorities controlling, prior to the passage of the act. * * * As we read the paragraph in question, the use of the term ‘ordinary creditor,’ means-creditor of the partnership or of the survivor, who is also personally liable for partnership debts, and gives to the representatives of the decedent the right to share in the surplus of firm assets. Any other construction might render such judgment worthless, where the liquidating party had contracted other individual indebtedness, and thus the estate of the deceased partner be deprived of its share of property to which it was entitled.”
In Murray v. Bateman, 315 Mass 113 (51 NE2d 954), the partnership between plaintiff and the defendants had no fixed duration and in consequence a member of-the firm was privileged to retire at any time he desired. The question arose as to whether anticipatory profits might be taken into account in determining the value of the good will at the date of dissolution. It was held that under the proofs the matter rested entirely on “speculation, surmise and conjecture,” and that the value of plaintiff’s interest could not be enhanced on such basis. It was, however, held that plaintiff was entitled to an accounting for the profits made by the remaining partners, subsequently to the dissolution, through the employment of the firm’s assets, the plaintiff not having been paid his share of such assets. See, also, 68 CJS, p 901.'
In the case at bar plaintiff was entitled to have the value of his interest in the partnership business fixed as of April 1,1948, and to be awarded his share of the profits arising from the continued use of partnership assets in the business, as conducted by defendants, from that time until the entry of decree in the circuit court on February 7, 1950. The trial court came to the conclusion that plaintiff was not entitled to a further allowance by way of profits over the 5-year period covered by the partnership agreement. We are in accord with such finding. As before noted, plaintiff raised no question as to the amounts paid to him from time to time. He made no complaint, so far as the record discloses, that he did not receive his proper share of the net proceeds of the business after the payment of expenses, including, of course, the Federal income taxes paid on the net profits from the business. It is true that the records kept were very unsatisfactory. Primarily this was doubtless defendants’ fault, but no claim is made that plaintiff sought, as a partner in the business, to have proper and adequate records detailing fully the transactions carried on and the net proceeds therefrom. It is doubtful, in view of the nature of the proofs offered in court, that evidence of a more definite character was, or is, available.
The trial judge, as appears from the record, gave careful eonsideraticfa. to all of the testimony of the parties, finally reaching the conclusion above indicated. We think that if the amount found by him as the value of plaintiff’s interest is regarded as including, 1st, plaintiff’s share of the profits earned in carrying on the business with partnership assets from April 1, 1948, to February 7, 1950, and, 2d, the value of his interest in the business as of the date of dissolution, on April 1, 1948, such sum may be fairly considered within the range of the proofs. We cannot agree, however, that the amount fixed should be decreased to the extent of the profits previously received by plaintiff, nor increased by the amount that plaintiff paid defendant for his one-third interest in the business. The prior profits earned and received cannot be given the effect of diminishing the value of plaintiff’s interest at the time of the expiration of the partnership agreement, and the initial sum paid by plaintiff was not by way of contribution to the partnership but rather was a payment to defendant for a one-third interest in an established business. It follows, therefore, that plaintiff is entitled to receive the sum of $8,000.
A decree will enter in this Court in conformity with the foregoing conclusions, affirming the decree of the trial court as hereby modified. Defendant avIU be given 60 days in which to make payment of said amount to the plaintiff, or, for his use and benefit, to the clerk of the circuit court of Wayne County. On the filing in this Court of due proof of such payment, defendant will become the sole owner of the business free and clear of any claims on tbe part of the plaintiff, but charged with the duty of paying the claims of creditors of the partnership business, if there are such. In the event that defendant fails to make such payment within the time limited, plaintiff may at his option have compulsory process for the enforcement of the decree, or, in lieu thereof, he may apply to the trial court for the appointment of a receiver to take charge of the business and the assets thereof, and to sell the same under the direction of the court. In such event the business shall be first offered for sale as a going concern with equal rights on the part of the plaintiff and the defendant to bid therefor. If an offer satisfactory to the court is not received, then the assets of the partnership business shall be offered for sale and the proceeds therefrom, after the payment of receivership expenses and the claims of creditors duly presented and proved, shall be divided between the parties in accordance with their respective rights. Plaintiff may have costs of this appeal.
Reid, C. J., and Boyles, North, Dethmers, Btjtzel, Bushnell, and Sharpe, JJ.; concurred.
PA 1917, No 72, as amended (CL 1948, § 449.1 et seq. [Stat Ann and Stat Ann 1949 Cum Supp § 20.1 et seq.]). | [
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Cynar, P.J.
This case involves the consolidated claims of foreign insurance companies doing business in Michigan to recover premium taxes paid under § 440 of the Insurance Code of 1956, MCL 500.100 et seq.; MSA 24.1100 et seq. Defendant appeals by leave granted from a Court of Claims denial of its motion for summary disposition under MCR 2.116(C)(4) and (8), premised on sovereign immunity. This Court directed the parties to brief the following issues: (1) sovereign immunity and (2) the constitutionality of § 440 of the Insurance Code. The Supreme Court denied defendant’s bypass application for leave to appeal.
Between February 28, 1983, and March 29, 1985, fifteen foreign insurers (plaintiffs) filed fifty-nine complaints in the Court of Claims to recover premium tax payments totaling about $147,000,000 for various tax years between 1965 and 1982._
Premium taxes are imposed upon the business written or renewed by the foreign insurer in this state. Payment of the tax is a condition precedent to the privilege of doing business here. Depending on the type of insurance sold, the tax amount is two percent or three percent of gross premium collections. MCL 500.440; MSA 24.1440; MCL 500.441; MSA 24.1441.
By comparison, domestic insurers presently pay a single business tax pursuant to the Single Business Tax Act, MCL 208.1 et seq.; MSA 7.558(1) et seq. The vast majority of the tax years in dispute cover the periods subsequent to the enactment of the sbta, which became effective on January 1, 1976. The single business tax is imposed on the "privilege of doing business and not upon income.” MCL 208.31(4); MSA 7.558(31)(4). The tax base of a domestic insurer is the sum of business income and certain adjustments contained in § 9 of the sbta. MCL 208.22; MSA 7.558(22) and MCL 208.9; MSA 7.558(9). The tax rate is 2.35 percent of the adjusted tax base, which is allocated or apportioned to this state. MCL 208.31(1); MSA 7.558(31)(1).
Plaintiffs alleged in their separate complaints that the effect of these two distinct tax systems was to impose a greater tax burden on foreign insurers. Relying on Western & Southern Life Ins Co v State Bd of Equalization of California, 451 US 648; 101 S Ct 2070; 68 L Ed 2d 514 (1981), plaintiffs asserted that the premium tax is unconstitutional because it violates the equal protection clause of the United States Constitution, Am XIV, and the Michigan Const 1963, art 1, § 2. Plaintiffs’ requests to obtain premium tax refunds were denied by the Insurance Bureau in standard form letters.
Defendant’s affirmative defenses to the com plaints included the following three defenses: (1) even if the premium tax was unconstitutional, any judicial decision involving the tax should be applied prospectively;. (2) plaintiffs’ claims are barred by the statute of limitations; and (3) even if the premium tax is invalid, any refunds should be reduced by the retaliatory tax imposed on foreign insurers, MCL 500.476; MSA 24.1476, or the amount of tax which plaintiffs would have been subject to had they been taxed as domestic insurers.
Plaintiffs’ fifty-nine complaints were consolidated in separate Court of Claims orders, pursuant to the parties’ stipulations. On October 8, 1985, defendant filed a motion for summary disposition under MCR 2.116, contending that (1) the Court of Claims lacked subject matter jurisdiction because the defendant had not waived sovereign immunity from suit and (2) the complaints failed to state a claim because defendant had not waived sovereign immunity from liability. In an opinion and order dated January 16, 1986, the Court of Claims found that it had jurisdiction and that plaintiffs had stated a claim by characterizing their claims as contractual in nature. Defendant’s motion for summary disposition was denied. This Court granted defendant’s application for leave to appeal. On May 28, 1986, the Court of Claims ordered that fifty-nine additional complaints filed by plaintiffs and other foreign insurers be consolidated, subject to the court’s order staying the proceedings pending this appeal.
In October 1986, the Court of Claims ordered that three additional complaints be consolidated in this action, bringing the number of parties plaintiff and complaints to forty-two and 121, respectively. According to defendant’s "first amended Exhibit a,” filed November 19, 1986, with this Court, forty-two plaintiffs have now filed 123 complaints, requesting premium tax refunds of $255,497,647.82, plus interest and attorney fees.
This Court sua sponte directed the parties to brief the constitutionality of the statutory premium tax. In its appellate brief the state concedes that, because of the premium tax imposed, those coming within the definition of a foreign insurer have a greater tax burden than those taxed under the sbta. The issue, then, is whether the admittedly discriminatory tax treatment of foreign insurers violates equal protection.
The presumption of a statute’s constitutionality is especially strong where tax legislation is concerned. Kostyu v Dep’t of Treasury, 147 Mich App 89, 93; 382 NW2d 739 (1985). The party challenging the tax classification must negate every conceivable basis which might support it. American Amusement Co, Inc v Dep’t of Treasury, 91 Mich App 573, 578; 283 NW2d 803 (1979), lv den 407 Mich 942 (1979), appeal dismissed for want of a substantial federal question 446 US 931; 100 S Ct 2145; 64 L Ed 2d 783 (1980). American Amusement sets forth the equal protection principles applicable to tax legislation. In that case, this Court stated:
However, this [presumption] is not to say that the states are exempt from the requirements of the equal protection clause of the Fourteenth Amendment when enacting taxation legislation. As stated in Allied Stores of Ohio, Inc v Bowers, 358 US 522, 527-528; 79 S Ct 437; 3 L Ed 2d 480 (1959):
"[T]here is a point beyond which the State cannot go without violating the Equal Protection Clause. The State must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary. The rule often has been stated to be that the classification 'must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.’ . . . That [a] statute may discriminate in favor of a certain class does not render it arbitrary if the discrimination is founded upon a reasonable distinction, or difference in state policy.” [American Amusement Co, Inc, supra, p 577.]
The standard of reasonableness under the rational basis test is whether any set of facts may reasonably be conceived to justify the legislative discrimination. In re Contempt of Stone, 154 Mich App 121, 128; 397 NW2d 244 (1986). The controlling principle with respect to tax legislation seems to be one of equal treatment for similarly situated taxpayers. Some rational basis for a disputed classification must be shown. Armco Steel Corp v Dep’t of Treasury, 419 Mich 582, 591-592; 358 NW2d 839 (1984).
The premium tax applicable to foreign insurers has been described not as a "gross profits” tax, but rather as a tax on gross premiums. It is levied as a condition precedent to and in exchange for the privilege enjoyed by a foreign insurer engaging in insurance business. The tax relates directly to the exercise of that privilege in the taxing state. Mutual Life Ins Co of New York v Ins Bureau, 424 Mich 656, 662-664; 384 NW2d 25 (1986). In Michigan, different versions of the premium tax date back to 1869. See for example People v American Central Ins Co, 179 Mich 371; 146 NW 235 (1914).
By comparison, domestic insurers have been taxed under various taxing statutes. Under the Income Tax Act of 1967 (repealed by 1975 PA 233), domestic insurers were subject to a tax on income, as defined in the act, MCL 206.61 et seq.; MSA 7.557(161) et seq. Effective January 1, 1976, domestic insurers were taxed under the sbta. The single business tax is imposed on the privilege of doing business and not upon income. It is best understood as a value-added tax, although it is not a pure value-added tax. Town & Country Dodge, Inc v Dep’t of Treasury, 420 Mich 226, 234; 362 NW2d 618 (1984). In conceding that a tax preference is given to domestic insurers, the state addressed only the sbta.
The disputed classification scheme is the foreign/domestic distinction. A "domestic” insurer is defined as an insurer formed under the laws of this state. MCL 500.110(1); MSA 24.1110(1). A domestic insurer which does not comply with certain statutory requirements (i.e., maintaining a principal place of business in this state) is treated as a foreign insurer.
In their complaints, plaintiffs based their discrimination claims on Western & Southern Life Ins Co v State Bd of Equalization of California, supra. At issue in that case was a retaliatory tax imposed on foreign insurers. Under California’s taxing scheme, a premium tax was imposed on both foreign and domestic insurers, thus bringing into question the constitutionality of imposing an additional "retaliatory” tax on foreign insurers. The retaliatory tax was characterized as being a privilege tax. Although the United States Supreme Court acknowledged that a prior case, Lincoln National Life Ins Co v Read, 325 US 673; 65 S Ct 1220; 89 L Ed 1861 (1945), held that a state may impose a tax on out-of-state corporations for the privilege of doing business in the state without being subject to an equal protection challenge, the Court concluded that Lincoln National was an anachronism. Based on cases prior and subsequent to Lincoln National, the Supreme Court considered it now established that the challenged discrimination between foreign and domestic corporations must bear a rational relationship to a legitimate state purpose. Western & Southern, 667-668. The test is (1) does the legislation have a legitimate purpose and (2) was it reasonable for lawmakers to believe that use of the challenged classification would promote that purpose. Western & Southern, 668. The purpose of California’s retaliatory tax was determined to be that of putting pressure on other states to impose a nondiscriminatory tax on insurers and to thereby promote interstate commerce, which in turn would promote California’s domestic industry. The retaliatory tax was upheld despite the United States Supreme Court’s conclusion that statistical data showed the retaliatory tax to be of questionable value. Western & Southern, 674.
In 1985, or two years after the first complaints were filed by plaintiffs, the United States Supreme Court entered another opinion dealing with the foreign/domestic insurer , tax classification. Metropolitan Life Ins Co v Ward, 470 US 869; 105 S Ct 1676; 84 L Ed 2d 751 (1985). At issue in Ward was an Alabama taxing statute which imposed a substantially lower gross premium tax on domestic insurers (one percent) than on foreign insurers (three to four percent). The United States Supreme Court held that neither promoting domestic business within a state by discriminating against foreign insurers nor the encouragement of investments in state assets in a discriminatory manner were legitimate state purposes. Ward, 882-883. The controlling principle seemed to be that a state may not favor its own residents by taxing foreign corporations at a higher rate solely because of their residency. Ward, 878. The case was remanded for further proceedings, during which the state could advance some fifteen other alleged legitimate purposes for the discrimination. Ward, 876, n 5.
Based on Ward, the Supreme Court of North Dakota held that North Dakota’s gross premium tax was unconstitutional. See Metropolitan Life Ins Co v Comm’r of Dep’t of Ins, 373 NW2d 399 (ND, 1985). Under North Dakota’s taxing scheme, foreign insurers paid a gross premium tax, while domestic insurers paid a corporate income tax. The court rejected all the purposes advanced by the state as not being legitimate when furthered by discrimination or, if legitimate, as not being rationally related to the taxing scheme.
In the instant case, the purpose advanced by the state was to establish a reliable source of insurance coverages within the state and to increase the availability of insurance in those areas where the public need is the greatest. According to the state, "but for” the availability of insurance from domestic insurers, many residents and businesses within this state would be involuntarily uninsured.
According to the state, statistical information from 1975 through 1984 shows (1) that there is a direct correlation between the degree of profits generated by a line of insurance and the willingness of the foreign insurance industry to provide insurance coverages for that line of insurance, (2) that foreign insurers will discontinue doing business in this state in a particular line of insurance if that line proves to be unprofitable, (3) that offering a tax exemption for a particular line of insurance will not induce foreign insurers to offer that insurance in this state if it is not profitable, and (4) domestic insurers fill the gap in insurance needs by providing coverage in less lucrative lines of insurance.
Plaintiffs contend that the actual purpose of the legislation was to (1) favor domestic companies and (2) raise revenue at the expense of foreign insurers. In respect to the test requiring it to negate every conceivable basis which might support the taxing statute’s constitutionality, plaintiffs argue that the purpose advanced by the state is illegitimate under Ward because the tax accomplishes its purpose, if at all, only by discriminating against nonresident competitors.
We hold that, unlike in Ward, the purpose advanced by the state is legitimate (i.e., making insurance coverages available to residents), but the means chosen are not rationally related to promoting that purpose. The classification scheme is based on residency. Although it is not required that close distinctions be drawn in making classifications, the foreign/domestic classification scheme made here affords no opportunity for a foreign insurer to share in the tax preference given to domestic insurers if it desires to offer insurance in the areas of greatest public need despite the lower profit potential. The classification scheme also permits a domestic insurer to obtain a tax preference over foreign insurers even if the line of insurance offered is in a more lucrative market. Thus the classification is both under and over inclusive and not rationally related to promoting insurers to offer insurance in the high loss ratio areas such as medical malpractice, farm owners multiple peril, liquor liability, municipal liability, and product liability.
If the state’s purpose is broader than just providing insurance in hard-to-insure markets and instead encompasses the general purpose of encouraging the creation of domestics, we would find the purpose was not legitimate, based on Ward. The taxing scheme does, in fact, seem more rationally related to promoting domestics than to encouraging insurance companies to provide policies in the less lucrative areas. There is no indication that taxing domestic companies more, or foreign com panies less, would change the fact that foreign companies are less likely to provide insurance in high loss categories and domestics will see an open market and provide the insurance. The taxes imposed do not serve as an incentive to provide insurance in high loss categories.
We, therefore, find that the taxing scheme presently used is unconstitutional and this holding will have prospective application only. Although the usual rule is that of retroactivity, the rule is not without exception. In Washtenaw Co v State Tax Comm, 422 Mich 346; 373 NW2d 697 (1985), our Supreme Court gave purely prospective application to its decision requiring that effects of "creative financing” be considered in values of real property used for equalization purposes. The Court noted that the local governments had already collected and spent the tax levies at issue and the administrative burden of reevaluation would be considerable. The importance of the ability to rule prospectively was noted in Placek v Sterling Heights, 405 Mich 638, 665; 275 NW2d 511 (1979):
The benefit of flexibility in opinion application is evident. If a court were absolutely bound by the traditional rule of retroactive application, it would be severely hampered in its ability to make needed changes in the law because of the chaos that could result in regard to prior enforcement under that law.
The importance of flexibility was also pointed out in People v Smith, 405 Mich 418, 432; 275 NW2d 466 (1979): "Like all rules of law its wooden application, resulting in fundamental injustice, is intolerable.” The Smith Court held that extraordinary cases are excepted from the traditional rule of retroactivity; we find that this is an extraordinary case. The receipts from the gross premium tax over the years have long since been used by the state and are no longer available for disbursement. Refunds of the magnitude involved here would place undue hardship on the people of this state. Furthermore, the state has justifiably relied on the constitutionality of this tax and balanced the state budget accordingly.
Our decision finds support in a decision of the North Dakota Supreme Court which held that equitable considerations favored giving a pure prospective effect to a decision declaring the state’s gross premium tax unconstitutional. Metropolitan Life Ins Co v Comm’r of Dep’t of Ins, supra.
Defendant claims that even if the gross premium tax is found unconstitutional the plaintiffs are barred from recovery by sovereign immunity. We need not discuss this issue because of the pure prospective application we have given to our holding.
Reversed. | [
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] |
M. J. Kelly, J.
Plaintiff appeals as of right the trial court’s grant of summary disposition on both counts of his claim. We reverse in part and affirm in part.
Plaintiff, on the bitterly cold night of January 10, 1982, while walking home from a neighborhood tavern, suffered a slip and fall. As a result of the fall plaintiff, who alleged in his complaint that he was profoundly intoxicated, suffered severe injuries, including multiple fractures to his leg and severe frostbite. After a neighbor heard plaintiff moaning and saw him crawling on the sidewalk, she called 911 and told the dispatcher that an injured man was on the sidewalk.
Defendants, Detroit Police Officers Dan Headapohl and Michael Yaklin, responded to a radio run for "one down,” a term used to indicate that a man is lying in the street for no apparent reason. Both officers recognized that plaintiff was intoxicated. However, rather than conveying plaintiff to a hospital or radioing for an ambulance, the officers took plaintiff to the building where plaintiff had a rented room and left him in the vestibule. Sometime later in the day plaintiff was taken to Saratoga General Hospital where he was hospital ized for seventeen days for treatment of his injuries. This lawsuit followed.
Count i of plaintiffs amended complaint alleged that Officers Headapohl and Yaklin breached their duty of ordinary care to plaintiff by negligently failing to provide him proper assistance (transportation to a hospital or calling for an ambulance), when the officers had actual knowledge that plaintiff was intoxicated and suffering from severe injury. Count ii alleged that it was a custom, a policy or an order given by a supervising police officer that authorized police officers to conduct themselves in the manner in which Headapohl and Yaklin did and that this custom, policy or order caused plaintiff serious injuries depriving him of his civil rights.
On August 9, 1985, the trial court granted defendants Headopohfs and Yaklin’s motion for summary disposition on Count i. The trial court held that determination by police officers of the extent of injuries suffered and whether hospitalization was required was a discretionary act entitling the officers to immunity from tort liability.
On December 20, 1985, plaintiff was allowed to amend his complaint for the second time. However, the trial court would not allow the amendment to include Count in, a nuisance claim against the City of Detroit. Plaintiff has not appealed that decision and it is therefore not considered here.
On January 22, 1986, the trial court dismissed the remaining civil rights count against defendants. The trial court ruled that plaintiff had no constitutional right to be taken to a hospital by the police which would support a 42 USC 1983 claim.
Plaintiffs first argument is that the trial court erred in determining that the police officers were engaged in a discretionary function and thus immune. We agree and reverse on this issue.
There was no question raised as to whether or not the defendant police officers were acting in good faith and in the course and scope of their employment. The only issue was whether their acts were ministerial (open to liability) or discretionary (immune). See Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984); Bandfield v Wood, 421 Mich 774; 364 NW2d 280 (1985).
Where low level government officials, employees or agents, including police officers, act in a way that falls short of established procedures, the complained of acts are ministerial. Bandfield, supra at 775-776.
Detroit Police Department Procedures, Volume III, § 17.2, provides in part:
Officers encountering a person who is incapacitated due to alcohol, and has his mental and physical functioning so impaired that he poses an immediate or substantial danger to his own health and safety or is endangering the health and safety to the public, shall take that person into protective custody and ensure that he is conveyed to a designated service facility.
An officer has performed his duty properly when the incapacitated person is delivered to an approved service facility and the signature of a member of the staff acknowledging that the person has been admitted is obtained on a receipt, which is provided by the service facility. The receipt shall be mailed to the Records and Statistics Section through department mail. The officer shall make an appropriate entry on the activity log sheet. No other department report shall be made.
The motion for summary disposition was granted pursuant to MCR 2.116(C)(8), for failure to state a claim. A motion for summary disposition for failure to state a claim tests the legal basis of the complaint. All factual allegations in the complaint are taken as true, and, unless the claim is so unenforceable as a matter of law that no factual development could possibly justify a right to recover, the motion should be denied. Harper v Inkster Public Schools, 158 Mich App 456, 458-459; 404 NW2d 776 (1987).
Here, since plaintiff pled that the officers knew he was intoxicated and severely injured, the actions of the police officers fell short of established procedures for dealing with plaintiff. The trial court erred in granting defendant’s motion for summary disposition on Count i.
Plaintiff next argues that the trial court erred in granting summary disposition on plaintiffs Count n, the 42 USC 1983 civil rights claim. Plaintiff contends that the failure of the officers to convey him to a hospital not only violated departmental regulations, but also deprived him of his constitutional rights. The cases cited by plaintiff to bolster his argument that he has a constitutional right to medical care involve prisoners or detainees. Where detainees are concerned, failure to provide adequate medical care has due process implications. In the case of prisoners, the constitutional prohibition against cruel and unusual punishment is implicated when a prisoner is denied adequate medical care. See Tobias v Phelps, 144 Mich App 272; 375 NW2d 365 (1985), involving a detainee at a state mental hospital; Estelle v Gamble, 429 US 97; 97 S Ct 285; 50 L Ed 2d 251 (1976), involving a denial of medical care to a prisoner; Brewer v Perrin, 132 Mich App 520; 349 NW2d 198 (1984), involving a detainee; Mosqueda v Macomb Co Youth Home, 132 Mich App 462; 349 NW2d 185 (1984), also involving a detainee.
The problem with plaintiffs reliance on these cases is that he was never imprisoned or held in custody, even briefly, by defendants Headapohl and Yaklin. All medical care cases arising under 42 USC 1983 involve plaintiffs who were prisoners or detainees and suggest that the condition of imprisonment or detention presents special circumstances giving rise to the state’s duty to provide medical care. Those circumstances are not present here. See Hill v Saginaw, 155 Mich App 161; 399 NW2d 398 (1986); Rushing v Wayne Co, 138 Mich App 121; 358 NW2d 904 (1984), lv gtd 424 Mich 876 (1986); Brewer, supra; Estelle, supra.
Headapohl’s and Yaklin’s failure to provide medical care to plaintiff was, at most, mere negligence and not a denial of a constitutional right. Ordinary negligence alone will not support a 42 USC 1983 claim. See Daniels v Williams, 474 US 327; 106 . S Ct 662; 88 L. Ed 2d 662 (1986); Hill, supra at 171.
The trial court’s summary disposition of the civil rights claim against defendants Hedapohl and Yaklin was proper, since plaintiff was never held in custody by defendants, never informed defendants about the extent of his injuries, and failed to show that defendants’ actions amounted to wanton and callous disregard or a deliberate indifference to his medical needs. See Estelle, supra at 105; Brewer, supra at 529.
Summary disposition of the civil rights claim in favor of defendant City of Detroit was also proper. A municipality cannot be found liable for deprivation of civil rights under 42 USC 1983 on a respondeat superior theory; the municipality must be sued directly and liability must be based upon an official policy. Hill, supra at 171. Plaintiff must show an affirmative link between the misconduct complained of and the adoption of a plan or policy by governmental agency, showing defendant’s authorization or approval of such conduct. Rushing, supra at 139. Here, plaintiff failed to plead any facts in support of his assertion that defendants’ alleged indifference to plaintiff’s medical needs was a result of a custom, policy or order of defendant City of Detroit. Mere conclusions, without factual allegations to support them, will not withstand a motion for summary disposition. See Central Advertising Co v Novi, 91 Mich App 303; 283 NW2d 730 (1979).
Affirmed in part, reversed in part and remanded. | [
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Per Curiam.
This is an appeal as of right by cross-defendant, Auto Club Insurance Association (acia), from a Wayne Circuit Court order of summary disposition under MCR 2.116(C)(10) against acia on the cross-claim of General Motors Acceptance Corporation (gmac) for breach of a contract of insurance. We reverse the trial court’s order of summary disposition and remand for further proceedings in the trial court. The pertinent facts underlying gmac’s claim are as follows.
On June 14, 1981, Mary Boyd entered into an installment sales contract with gmac to finance the purchase of an automobile. As part of this agreement, gmac retained a security interest in the car. This clause provided:
For the purpose of securing payment of the obligation hereunder, seller reserves title and shall have a security interest in said property until said obligation is fully paid in cash.
An application for a Michigan Title — Statement of Vehicle Sales was filed by gmac with the Michigan Secretary of State. The contract between Boyd and gmac required that insurance be procured while the vehicle was being financed.
Boyd insured the car with acia. The policy of insurance listed gmac as the loss payee — security interest holder and contained a loss-payable clause. The crux of the instant dispute centers on this loss-payable clause, which provides in pertinent part:
Loss or damage, if any, under the policy shall be payable as interest may appear to . . . [lienholder] and this insurance as to the interest of the Bailment Lessor, Conditional Vendor, Mortgagee or other secured party or Assignee of Bailment Lessor, Conditional Vendor, Mortgagee or other secured party (herein called the Lienholder) shall not be invalidated by any act or neglect of the Lessee, Mortgagor, Owner of the within described automobile or other Debtor nor by any change in the title or ownership of the property; provided, however, that the conversion, embezzlement or secretion by the Lessee, Mortgagor, Purchaser or other Debtor in possession of the property insured under a bailment lease, conditional sale, mortgage or other security agreement is not covered under such policy, unless specifically insured against and premium paid therefor; and provided, also, that in case the Lessee, Mortgagor, Owner or other Debtor shall neglect to pay any premium due under such policy the Lienholder shall, on demand, pay the same.
The car was reported stolen by Boyd on June 17, 1983, and was located on June 19, 1983, severely damaged by fire. Subsequently, Boyd filed a claim with acia. Acia denied the claim alleging fraud. Acia also denied the claim of gmac as the security lienholder. Essentially, acia asserted that Boyd intentionally had the car stolen and destroyed.
Boyd filed suit on November 7, 1983, against acia and gmac requesting a judgment against acia for the value of the car pursuant to the insurance contract and a stay preventing gmac from collecting the balance due on the promissory note. Gmac filed a countercomplaint against Boyd seeking the return of the vehicle or a judgment consisting of the unpaid security interest. Gmac cross-complained against acia for judgment under the insurance policy issued to Boyd. On January 20, 1984, a default judgment was entered by the Wayne Circuit Court against Boyd on gmac’s countercomplaint.
On October 11, 1985, the trial court heard gmac’s motion for summary disposition as to its cross-complaint. At the motion hearing, gmac argued that under the loss-payable clause it was entitled to recover against the insurer. Acia argued that it was not liable under the policy because Boyd allegedly destroyed the car. According to acia, this act constituted a "conversion” of gmac’s interest in the car and, therefore, recovery was excluded under the loss-payable clause. Gmac argued there was no conversion because title to the car was in the name of Boyd and gmac’s security interest was not capable of being converted. The trial court found that there was no genuine issue of material fact and granted sum mary disposition to gmac on the basis of the loss-payable clause in an order entered on October 23, 1985.
As we have stated on many previous occasions, a motion for summary disposition based upon the absence of any genuine issue of material fact under MCR 2.116(C)(10) tests whether there is any factual support for the pleadings. In ruling on a motion for summary disposition under this sub-rule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. Giving the benefit of every reasonable doubt to the nonmoving party, the court must determine whether the kind of record which might be developed would leave open an issue upon which reasonable minds might differ. Ambro v American Nat'l Bank & Trust Co of Michigan, 152 Mich App 613; 394 NW2d 46 (1986).
Here acia, as the nonmoving party, asserts that there is a remaining issue of material fact— whether Mary E. Boyd deliberately destroyed the vehicle. However, if the policy is construed as urged by gmac, whether Boyd intentionally destroyed the vehicle would be irrelevant to gmac’s claim. No issue of material fact would remain under the construction of the loss-payable clause argued by gmac. If, on the other hand, we adopt the construction urged by acia, Mary Boyd’s alleged acts of destruction must yet be proven to preclude a claim under the policy, necessitating a remand to the trial court for further proceedings.
Acia offers two arguments in support of its contention that an intentional act of destruction would preclude recovery by gmac under the loss-payable clause: (1) that the loss-payable clause provides no greater coverage than that provided in the underlying policy, which precludes coverage for intentional destruction of the insured asset; and (2) that the loss-payable clause itself precludes recovery for intentional destruction of the insured asset. We have no reason to reach acia’s second argument, since we hold that the loss-payable clause provides no greater coverage than that provided in the underlying policy.
We begin our analysis by noting the basic rules applicable to construction of insurance contracts. As we have recently held,
[t]he language of such a contract will be construed with reference to the parties’ relations and the type of property insured. Zeitler v Concordia Fire Ins Co, 169 Mich 555, 560; 135 NW 332 (1912). The courts will look to the language used and the context to determine the purpose sought to be achieved. In re Certified Question, Ford Motor Co v Lumbermens Mutual Casualty Co, 413 Mich 22, 32; 319 NW2d 320 (1982). The contract language will be given its ordinary and plain meaning, rather than a technical or a strained construction. Weaver v Michigan Mutual Liability Co, 32 Mich App 605, 607; 189 NW2d 116 (1971). See, also, Geerdes v St Paul Fire & Marine Ins Co, 128 Mich App 730, 733-734; 341 NW2d 195 (1983). [Wilson v Home Owners Mutual Ins Co, 148 Mich App 485, 490; 384 NW2d 807 (1986).]
Insurance contracts must be interpreted by reading them as a whole. The reading of an insurance contract as a whole may be necessary to determine whether there is an ambiguity in a particular clause. Murphy v Seed-Roberts Agency, Inc, 79 Mich App 1, 8; 261 NW2d 198 (1977). Ambiguities must be construed in favor of coverage for the insured. Western Casualty & Surety Group v Coloma Twp, 140 Mich App 516, 522; 364 NW2d 367 (1985).
Here, the opening phrase of the loss-payable clause, "Loss or damage, if any, under the policy . . .,” plainly indicates that the clause was intended to operate in reference to the underlying policy. We have no quarrel with other decisions holding that loss-payable clauses constitute a separate contract of insurance. See West v Farm Bureau Mutual Ins Co of Michigan, 63 Mich App 279, 286; 234 NW2d 485 (1975), rev’d on other grounds 402 Mich 67; 259 NW2d 556 (1977), but we also believe that, where one writing refers to another, the two writings should be construed together. Culver v Castro, 126 Mich App 824, 826; 338 NW2d 232 (1983), and cases cited therein. We think it is clear that the loss-payable clause in this policy must therefore be interpreted in reference to the underlying policy of insurance and must be construed in reference to it.
The problem that arises in a further reading of this loss-payable clause is that it appears to confer greater coverage than the underlying policy. Thus, Part v of the underlying policy, entitled "Car Damage Insurance Coverages,” provides insurance only for a "loss.” The latter term is defined in Part v of the policy as follows:
Loss means direct and accidental loss of or damage to the insured car, including its equipment.
We believe that this clause plainly and explicitly restricts coverage to accidental losses. An intentional destruction of the vehicle by the owner would therefore not be covered. On the other hand, the second phrase of the loss-payable clause provides that "this insurance . . . shall not be invalidated by any act or neglect of the . . . owner.”
Gmac urges that the phrase "any act” be con strued to include the intentional destruction of the vehicle by the insured. This construction, according to gmac, would be in accord with two of the basic principles of policy construction in that (1) it adopts the ordinary sense of the term "any act,” and (2) it construes an ambiguity in favor of coverage. Wilson, Coloma Twp, supra. We believe that gmac’s reasoning has some merit. However, it ignores other fundamental principles of policy construction in that it fails to consider the loss-payable clause as a whole and also fails to explain the purpose to be achieved by the loss-payable clause. Wilson, Murphy, supra.
We first note that a construction of "any act” which includes intentional destruction ignores the antecedent phrase "shall not be invalidated.” The ordinary meaning of "invalidate” is to make invalid. Webster’s New Collegiate Dictionary, (1974), p 607. Since the policy only offers coverage for accidental loss, an act of intentional destruction is never covered in the underlying policy. It is difficult in this context to think of an act of intentional destruction as invalidating coverage when there is, in the first instance, no coverage for intentional destruction.
In this regard, intentional destruction contrasts with misrepresentation of ownership, West v Farm Bureau Ins Co of Michigan, 402 Mich 67; 259 NW2d 556 (1977), vacating the premises, Cole v Michigan Mutual Ins Co, 116 Mich App 51; 321 NW2d 839 (1982), wilful concealment of material fact, Vormelker v Oleksinski, 40 Mich App 618; 199 NW2d 287 (1972), lv den 388 Mich 791 (1972), and failure to answer relevant questions subsequent to a loss, Gibson v Group Ins Co of Michigan, 142 Mich App 271; 369 NW2d 484 (1985), lv den 424 Mich 851 (1985). The latter decisions required construction of loss-payable clauses when the policy provided coverage, but for the failure of the loss payee to comply with a condition of the policy. Here, even compliance with all of the conditions of the policy would not allow recovery under the policy.
The distinction between scope of coverage and condition of coverage is a subtle, but nevertheless important and basic concept for interpreting contract or policy language. Thus, according to one treatise,
[a] condition may be a condition subsequent; that is, the existence or satisfaction of the condition terminates or suspends the insurance. Clauses which provide that a policy shall become void or its operation defeated or suspended, or the insurer relieved wholly or partially from liability upon the happening of some event, or the doing or omission to do some act, are not conditions precedent, but conditions subsequent and are matters of defense to be pleaded and proved by the insurer.
A condition subsequent is to be distinguished from an exclusion from the coverage: the breach of the former is to terminate or suspend the insurance, while the effect of the latter is to declare that there never was insurance with respect to the excluded risk. Accordingly, the suicide clause in a life insurance policy is not a condition subsequent but rather suicide is simply not a risk insured against. [7 Couch, Insurance 2d (rev ed), § 36:49, pp 482-483.]
An intentional destruction of the vehicle under this policy of insurance on a motor vehicle is closely analogous to a suicide under a policy of life insurance. It does not invalidate coverage, because intentional destruction is simply not a risk insured against.
Since the phrase "any act” refers to an invalidation, we believe that it can fairly be interpreted to apply only to conditions, not scope of coverage under the policy. Moreover, since the phrase is fairly susceptible of only one meaning, we do not find it to be ambiguous. Petovello v Murray, 139 Mich App 639, 642; 362 NW2d 857 (1984). We therefore disagree with gmac’s contention that the ordinary meaning of the phrase must include intentional destruction and with gmac’s contention that the phrase creates an ambiguity which must be construed against acia as the insurer.
While interpreting the loss-payable clause at issue in this rather technical sense, we are not unmindful of the recent decision of our Supreme Court in Powers v DAIIE, 427 Mich 602, 620; 398 NW2d 411 (1986), where the Court, quoting Pietrantonio v Travelers Ins Co, 282 Mich 111, 116; 275 NW2d 786 (1937), ruled in part that " '[Technical constructions of policies of insurance are not favored.’ ” However, Powers involved an interpretation of the scope of coverage in a no-fault automobile insurance policy in claims by insured laymen. Here we are interpreting a clause which is only of interest to a commercial lender. We are not prepared to conclude that the Powers principle has no application to commercial lenders, but we are also unable to ignore significant differences between individual consumers and commercial lenders in bargaining power and technical expertise. Thus we note that, under one of the few rules of construction provided in the Restatement of Contracts 2d,
technical terms and words of art are given their technical meaning when used in a transaction within their technical field. [2 Restatement Contracts 2d, § 202(3)(b), P 86.]
We believe that a loss-payable clause in an insurance contract falls well within the technical field of a commercial lender.
The conclusion that we have reached through analysis of the language of this loss-payable clause is bolstered by our consideration of the purpose to be achieved by the clause. As explained in one treatise,
[m]any policies insuring property contain provisions which purport to protect the mortgagee against loss from causes insured against. Such clauses have been variously denominated as the "mortgage clause,” the "mortgagee clause,” the "standard clause,” the "standard mortgage clause,” the "standard mortgagee clause,” the "union clause,” the "union mortgage clause,” the "loss-payable clause,” and the "ordinary” or "open-mortgage clause.”
The ordinary mortgage or loss-payable clause merely provides in effect that the proceeds of the policy shall be paid first to the mortgagee as his interest may appear; but the so-called "standard” or "union” mortgage clause is somewhat more specific, in that it also provides that the mortgagee shall be protected against loss from any act or neglect of the mortgagor or owner, so that it shall not defeat the insurance so far as the interest of the mortgagee is concerned. [10A Couch, Insurance 2d (rev ed), § 42.682, pp 723-724.]
Here gmac has obtained more than that which is provided in an "ordinary” loss-payable clause in that the clause also provides protection when the mortgagor or purchaser fails to comply with policy conditions. However, gmac’s interpretation would go still further and actually expand coverage to include illegal acts of destruction by the mortgagor or owner. Since the matter has not been argued or briefed, we are reluctant to conclude that such a policy provision would violate public policy. Nevertheless, where, as here, the policy provides coverage beyond an ordinary loss-payable clause, we would be extremely skeptical of any argument that the mortgagee has been denied the benefit of its bargain by a failure to expand coverage to include illegal acts of destruction by the mortgagor.
In sum, we conclude that acia did not undertake the risk of intentional destruction by the mortgagor of the motor vehicle insured by this policy. Should acia succeed in proving its allegation of intentional destruction by the mortgagor, it would not be liable for a breach of contract. Acia has produced factual support for its allegation in the investigative report of Daniel Terski. We therefore conclude that the trial court erred in granting summary disposition under MCR 2.116(0(10).
Reversed and remanded._
Indeed, even if refraining from intentional destruction is deemed an implied condition or term, compliance therewith would not allow recovery under the contract, since in that instance there would be no loss.
Conditions of coverage are contained, for example, on page 1 of the policy under "what you must do in case of car accident or loss.” | [
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Weaver, J.
Respondent appeals as of right from a probate court order terminating his parental rights to his two minor children pursuant to the Michigan Adoption Code, MCL 710.51(6); MSA 27.3178(555.51)(6). We affirm.
i
When petitioner Mary Ann Clifford and respondent Mark Steven Meredith were divorced in Texas on February 15, 1982, petitioner received general custody of their two minor children. Respondent was awarded limited custody for specified times and was ordered to pay $300 per month in child support. Respondent was employed by a computer firm at the time.
During 1983 and 1984, although respondent’s parents contributed some child support, respondent himself provided none, and sent only $100 per year in each of the years 1985 and 1986. Although petitioner continued to reside at the same Houston address from July of 1982 through August of 1985, and although respondent lived within a one-half hour drive, respondent visited the children only twice in 1983, not at all in 1984, and twice in 1985. He did not telephone and did not send birthday or Christmas cards or gifts in 1983 or 1984. In April, 1984, petitioner married co-petitioner James Clifford, and in August of 1985 moved to Michigan, informing respondent of her new post office box address. Following the move, respondent wrote only one letter to his children. Respondent never explained his failure of support or visitation.
The Tuscola County Probate Court judge terminated respondent’s parental rights at a hearing subsequent to the filing by Mary Ann and James Clifford of an adoption petition and a supplemental termination request. Pursuant to the Michigan Adoption Code, MCL 710.51(6); MSA 27.3178(555.51)(6), the supplemental petition had alleged that for two years or more before the filing of the adoption petition respondent had failed to substantially comply with the conditions of a support order; it further alleged that for two years or more before filing of the petition, in spite of his ability to do so, respondent had substantially failed or neglected to visit, contact and communicate with the children. The court also denied respondent’s motion for reconsideration. Respondent appeals as of right, arguing trial court error in its findings that respondent had the ability to maintain contact with and to assist in supporting his children.
ii
Respondent argues that he was unable to maintain regular contact with his children because of the financial difficulties he experienced subsequent to the divorce. He contends that he stopped regular visitation in 1982 because he felt guilty and did not like the children carrying messages from their mother about needing support money; he did not see the children when they visited his parents because he thought that, if petitioner found out, she would end the visits.
We do not agree with respondent’s contention. Like the probate judge, we fail to see why respon-. dent did not make an effort to maintain greater contact with his children in spite of the alleged hardships. Although respondent claims fear that petitioner might have interfered with his court-ordered visitation rights, she never actually did so, and there is no evidence of threats to this effect. In any event, respondent made almost no effort to even call or write. Hence we discern no error in the probate court’s finding by clear and convincing evidence that respondent failed and neglected to visit or communicate with his children although able to do so. MCL 710.51(6)(b); MSA 27.3178 (555.51)(6)(b).
hi
Respondent also argues that the probate court erred in its finding that he had been able to support or assist in supporting his children. We believe that respondent misstates the court’s finding; the court’s actual finding was that respondent had failed to investigate additional means of support through unemployment benefits in order to send even token payments as proof of concern for his children.
The probate court initially appeared somewhat sympathetic toward respondent’s claim of inability to pay. However, pursuant to In re Colon, 144 Mich App 805; 377 NW2d 321 (1985), the court found that since respondent was subject to a support order his financial ability to support the children need not be proven by petitioner for termination under the Michigan Adoption Code.
Colon held that under the Adoption Code the adopting parent who seeks to terminate the parental rights of a natural parent, against whom there is already a support order, need only prove a substantial failure to comply with the support order for two years prior to the filing of the petition; he need not also prove the natural parent’s ability to comply with the order. Colon, supra at 810-811; MCL 710.51(6)(a); MSA 27.3178 (555.51)(6)(a). Once the adopting parent proves substantial failure to comply with the support order, the probate court may terminate, or not terminate, the natural parent’s rights, as the court, in its discretion, may decide.
In the instant case the court properly found by clear and convincing evidence that the respondent for "two years and upwards preceding the filing of the petition for adoption failed to substantially comply with the support order.” The court also found:
[The respondent] relies upon the language of [Colon, which stated], that "[h]ad (respondent) offered evidence to satisfactorily explain his failure to comply, the probate court could have properly declined to terminate his parental rights.” Colon at 812. This court interprets such language to mean that such testimony could have been considered by the Probate Court in deciding whether or not the explanation for failure to pay support sufficiently mitigates against the exercise of the court’s discretion to terminate parental rights as to cause the court to deny the petition for termination. This court does not interpret such language to require the Probate Court to refuse termination even if excuses for nonsupport were offered to the court.
We agree with the court’s analysis. In the instant case, the probate court correctly found that the explanations and excuses offered by respondent for nonsupport were insufficient to prevent the court from exercising its discretion in favor of terminating his parental rights. The court viewed respondent’s behavior as inconsistent with that of a caring parent who naturally would wish to support his children both financially and emotionally. In its written opinion the court clearly enunciated its reasons favoring termination, expressing incredulity that although respondent was able to further his own lifestyle (which included heavy borrowing from his parents, subsisting by the generosity of his girlfriend and maintaining two vehicles), he could not produce the $50 filing fee to seek a necessary modification of his support obligation and was unwilling to request public assistance by which to make even token payments to support his children.
Respondent appears to argue that Colon, supra, places poor parents at greater risk of losing their children; hence respondent suggests that Colon was wrongly decided and the probate court erred when following it. We do not think that respondent’s conclusion correctly follows from a reading of Colon. Colon appropriately noted that the burden remains with the petitioner to show by clear and convincing evidence that termination is warranted, since the right to custody of one’s children is a fundamental liberty guaranteed by the Fifth and Fourteenth Amendments. Colon, supra at 813; US Const, Ams V, XIV. See also In re Myers, 131 Mich App 160, 165; 345 NW2d 663 (1983). Colon engaged in careful statutory analysis, interpreting the language of MCL 710.51(6)(a); MSA 27.3178(555.51)(6)(a), "having the ability to support, or assist in supporting,” as not applicable to an existing support order, but as only applicable when no support order exists. Colon, supra at 809-812. We find the analysis in Colon to be a reasonable interpretation of the statute.
Since we are in accord with the reasoning of Colon, which imposes no requirement on a petitioner for adoption concerning a respondent’s ability to pay where there is an existing support order, we find no error in the probate court’s reliance on Colon. Had respondent been genuinely interested in his children, he could have petitioned the circuit court for a modification of the support order on a showing of changed circumstances. Jacobs v Jacobs, 118 Mich App 16; 324 NW2d 519 (1982). In so concluding, we need not decide whether to apply a de novo standard of review or a "clearly erroneous” standard, as we reach the same result under either standard.
Affirmed._
Section 51(6) of the Adoption Code provides in pertinent part:
(6) If the parents of a child are divorced . . ., and if the parent having legal custody of the child subsequently marries and that 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 or if a support order has been entered, has failed to substantially comply with the order, 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 failed or neglected to do so for a period of 2 years or more before the filing of the petition.
Respondent asserts that, although at the time of divorce he was gainfully employed, he lost his job in September of 1982 and had to do odd jobs, which paid very poorly, until July of 1985. He maintains that he did not get his support obligation reduced because he could not afford to retain counsel, the legal aid office would not take his case, and he did not have enough funds to pay the filing fee to represent himself. He said he did not apply for unemployment benefits because he did not believe in them.
See n 1, supra.
Bahr v Bahr, 60 Mich App 354, 360; 230 NW2d 430 (1975), lv den 394 Mich 794 (1975).
In re Irving, 134 Mich App 678; 352 NW2d 295 (1984). | [
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Shepherd, J.
Plaintiffs appeal from a grant of summary judgment in favor of defendants in this medical malpractice action. This case requires us to consider again the liability of a physician for both "wrongful birth” and "wrongful life.” Specifically, we are concerned here with whether a physician is liable to both the parents and a child when the latter suffers from birth defects caused by the failure to diagnose an illness in the mother in the first trimester of pregnancy — thereby depriving the parents of the option of aborting the unborn child. We reverse in part and remand for further proceedings. We are allowing the parents’ "wrongful birth” claim because it has existed in Michigan since 1981 and has not been abolished by legislation or by the Supreme Court. We will not create a claim on the part of the child for "wrongful life” since we believe that this issue is more appropriately addressed by the Legislature or the Supreme Court.
i
Plaintiffs David and Yasmin Proffitt filed this suit on February 8, 1978. They alleged that, approximately two weeks before February 11, 1976, Yasmin displayed many of the clinical manifestations of rubella (German measles), including a rash. On February 11, 1976, during the first trimester of pregnancy, plaintiffs retained defendant Dr. Bartolo to provide professional services relating to Yasmin’s pregnancy and delivery. They reported the rash’s history to Dr. Bartolo and his nurse.
Dr. Bartolo sent Yasmin to Mercy-Memorial Hospital in Monroe, Michigan, for studies. On February 26, 1976, the blood studies were performed, including a test for rubella. During March, 1976, Yasmin continued under Dr. Bartolo’s care and complained of chronic headaches, fever, ma laise, and gastrointestinal discomfort. On March 17, 1976, Dr. Bartolo again admitted Yasmin to the hospital for the treatment of a parasitic infection associated with hematemesis and headaches. Dr. Bartolo diagnosed Yasmin’s condition as a whipworm infestation and discharged her from the hospital on March 19, 1976. In the following months, Yasmin continued to complain of chronic headaches, nausea, malaise, and fever to Dr. Bartolo.
David called Dr. Bartolo on June 14, 1976, to complain about Yasmin’s high fever. At the end of the conversation, Dr. Bartolo advised plaintiffs that he could no longer provide professional services to them and that they should seek the services of another physician. Plaintiffs retained the services of another physician who delivered the child, plaintiff Maya S. Proffitt, on August 23, 1976.
Plaintiffs alleged numerous instances of negligent conduct on Dr. Bartolo’s part. Essentially, plaintiffs alleged that Dr. Bartolo failed to exercise the required degree of care and skill in diagnosing and treating Yasmin, including a failure to take an adequate history, to employ sufficient diagnostic tests, to interpret the rubella test properly, and to order additional tests to evaluate the risk of a rubella or other infection which could cause congenital fetal malformations. Plaintiffs allege that Dr. Bartolo failed to advise them of the rubella test results, the significance of those findings and the necessity of further tests, and the risk of severe congenital fetal malformations resulting from rubella or other serious infections during Yasmin’s first trimester of pregnancy. Plaintiffs also alleged that Dr. Bartolo failed to advise plaintiffs of the risks to the fetus so that plaintiffs could decide whether to terminate the pregnancy. Plain tiffs allege that, had Dr. Bartolo properly diagnosed Yasmin’s condition and adequately advised them, they would have terminated Yasmin’s pregnancy. Instead, Maya was born with microcephaly, mental retardation, severe bilateral eye malformations resulting in blindness, and other severe congenital malformations caused by a rubella infection or another intrauterine viral, parasitic or protozoic infection transmitted to Maya during the early stages of fetal development.
In Count i, David and Yasmin sought recovery for the "substantial medical, institutional and educational” expenses they will incur until Maya reaches age eighteen. They also sought damages for "emotional strain and distress, pain and suffering and the loss of services, society, companionship, comfort and support” from Maya. Count n was brought on Maya’s behalf, alleging that she will be unable to earn any income and seeking recovery for the "extensive medical, institutional and educational” expenses she will incur after reaching age eighteen. Maya also requested damages for the "severe pain and suffering, emotional distress and pain, embarrassment and humiliation” resulting from her grave congenital deformities. Count in alleged a breach of contract claim against defendants.
A series of delays not important to the legal issues raised in this appeal followed. After discovery, however, defendants moved on February 20, 1985, for summary judgment under GCR 1963, 117.2(1), now MCR 2.116(C)(8), for failure to state a claim upon which relief can be granted. Defendants argued that Michigan does not recognize a claim for "wrongful life” and, thus, both the parents’ and child’s claims should be dismissed. Following a hearing, the circuit court entered an order on April 19, 1985, dismissing all of plaintiffs’ claims.
ii
A motion for summary judgment under GCR 1963, 117.2(1) tests the legal adequacy of the pleadings. A court must accept all well-pleaded facts as true. The test is whether plaintiffs’ claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development could justify a right to recovery. Abel v Eli Lilly & Co, 418 Mich 311, 323-324; 343 NW2d 164 (1984). Thus, we must determine whether plaintiffs’ complaint adequately alleges recognized claims for "wrongful birth” and "wrongful life.”
The term "wrongful birth” is a shorthand name given to actions brought by the parents of a child born with severe defects against a physician (or other responsible party) who negligently fails to inform them in a timely fashion of the risk that the mother will give birth to such a child, effectively precluding an informed decision as to whether the pregnancy should be avoided or terminated. A "wrongful life” claim, on the other hand, is brought on behalf of a child with birth defects who claims that, but for the negligent advice to the parents, the child would not have been born. See Smith v Cote, 128 NH 231; 513 A2d 341, 344 (1986); Procanik v Cillo, 97 NJ 339, 347-348; 478 A2d 755 (1984). Both causes of action involve claims of professional negligence. Dorlin v Providence Hospital, 118 Mich App 831, 836; 325 NW2d 600 (1982). This Court has previously considered both causes of action.
in
This Court first addressed these causes of action in Eisbrenner v Stanley, 106 Mich App 357; 308 NW2d 209 (1981), lv den 414 Mich 875 (1982), a case involving rubella-caused birth defects. The Court recognized a claim for wrongful birth. The Court in Eisbrenner began its analysis with the seminal New Jersey case of Gleitman v Cosgrove, 49 NJ 22; 227 A2d 689 (1967), in which the New Jersey Supreme Court rejected both causes of action. With regard to wrongful birth, the New Jersey Supreme Court found it impossible to measure damages by weighing the "complex human benefits” of parenthood against the alleged emotional and pecuniary damages. The court was also troubled by a cause of action which appeared contrary to the public policy favoring the preciousness of human life.
Eisbrenner noted that the New Jersey Supreme Court had retreated from its earlier position on wrongful birth in Berman v Allan, 80 NJ 421; 404 A2d 8 (1979). This retreat was premised at least in part on the fact that the parents’ decision whether or not to terminate a pregnancy during the first trimester must be free of governmental interference following Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973). Eisbrenner cited other cases approving the parents’ cause of action but not the child’s. In particular, the Court noted Jacobs v Theimer, 519 SW2d 846 (Tex, 1975), in which the Texas court found it impossible to justify a policy which deprived the parents of information by which they could elect to terminate the pregnancy likely to produce a defective child, required that the pregnancy be continued until a deficient child was born, and then denied recovery from the tortfeasor of the cost of treating and caring for the child’s defects. Eisbrenner allowed the plaintiff parents to seek medical expenses and damages for mental distress, under the rules outlined in Troppi v Scarf, 31 Mich App 240; 187 NW2d 511 (1971).
This Court has not again directly faced the wrongful birth issue until now. Eisbrenner and the wrongful birth cause of action were mentioned in Dorlin, supra, p 835, and Strohmaier v Associates in Obstetrics & Gynecology, 122 Mich App 116, 119; 332 NW2d 432 (1982), lv den 417 Mich 1072 (1983). Both of those cases primarily concerned the wrongful life issue, however.
The jurisdictions considering the issue have now almost uniformly adopted the wrongful birth cause of action. See generally James G v Caserta, 332 SE2d 872, 875, n 6 (W Va, 1985), and Anno: Tort liability for wrongfully causing one to be born, 83 ALR3d 15. Those courts have offered a variety of reasons for doing so.
The Illinois appellate court concluded that "life and family will be more likely preserved if negligent defendants are required to contribute to such extraordinary out-of-pocket expenses as a fact-finder may attribute to their conduct.” Siemieniec v Lutheran General Hospital, 134 Ill App 3d 823, 829-830; 89 Ill Dec 484; 480 NE2d 1227 (1985). It appears, however, that Illinois does not permit recovery of emotional distress damages, save in extreme circumstances. 134 Ill App 3d 831. A similar limitation on damages occurred in Becker v Schwartz, 46 NY2d 401, 414; 413 NYS2d 895; 386 NE2d 807 (1978), with the New York court seeking to avoid "the drawing of artificial and arbitrary boundaries” in a situation inevitably filled with mixed emotions.
The reasons for the decline of the Gleitman view of wrongful birth are well summarized in the recent New Hampshire case of Smith, supra, 513 A2d 344-346. First, health care professionals have an increased ability to predict and detect severe or fatal birth defects. Second, as also recognized by our Court in Eisbrenner, Roe v Wade prohibits during the first trimester regulatory interference with a woman’s decision to terminate her pregnancy or to carry the child to term:
When Gleitman was decided, the science of prenatal testing and risk assessment was nascent, and in many states abortions could not legally be obtained. Today, as a result of Roe and the advances of science, it is possible for prospective parents (1) to know, well in advance of birth, of the risk or presence of congenital defects in the fetus they have conceived; and (2) to decide to terminate the pregnancy on the basis of this knowledge. Courts accordingly have recognized that physicians who perform testing and provide advice relevant to the constitutionally guaranteed procreative choice, or whose actions could reasonably be said to give rise to a duty to provide such testing or advice, have an obligation to adhere to reasonable standards of professional performance. [513 A2d 346.]
The New Hampshire Supreme Court concluded that the wrongful birth action contained the traditional elements of negligence. Given a physician-patient relationship with respect to the pregnancy, a physician assumes a duty to use reasonable care in attending and treating the patient. That duty requires the physician to ensure that the woman has an opportunity to make informed decisions regarding the procreative options available to her. The appropriate standard of care may require testing for and disclosure of exposure to rubella, for example, depending on the factual circumstances. Failure to fulfill these obligations would be a breach of the duty. If a plaintiff can show that but for the defendant’s negligent failure to inform her of the risks of bearing a child with birth defects she would have obtained an abortion, the causation element is satisfied. Finally, injury may result from the imposition on the parents of extraordinary liabilities, both emotional and pecuniary, following the birth of the child. The difficulty of assessing the damages for such injuries is not a sufficient reason to deny recovery. 513 A2d 346-348.
A similar detailed analysis was done by the Washington Supreme Court in Harbeson v Parke Davis, Inc, 98 Wash 2d 460, 467-478; 656 P2d 483 (1983). Harbeson emphasized that the "difficult moral choice” to abort or avoid conception belonged to the parents, who had a right to prevent the birth of a defective child, giving rise to a correlative duty on the part of health care providers to supply material information. This duty in no way affected the right of a physician to refuse to perform an abortion on moral or religious grounds. 98 Wash 2d 472-473. Harbeson also suggests that the theory of informed consent may be implicated in a proper case, as the proximate cause of the injury results from the failure to inform. 98 Wash 2d 477-478. With regard to damages, Harbeson held that the parents could recover for the medical expenses attributable to the child’s defective condition and for emotional injury caused by the birth of the defective child, though the jury could also consider countervailing emotional benefits attributable to the birth of the child. 98 Wash 2d 475.
The Smith court noted that its holding neither encouraged nor discouraged the practice of abortion, nor did it rest upon a judgment that the child should never have been born. The court instead sought to further the first principles of the law of negligence: deterring negligent conduct and compensating the victims of those who act unreasonably. 513 A2d 348. The court allowed recovery of the extraordinary costs involved in treating and raising the child, as well as loss for emotional distress that results in pecuniary losses such as for medical or counseling fees. 513 A2d 349-350. The court in Smith denied recovery for emotional distress. 513 A2d 351.
Of the courts which have recently addressed the wrongful birth issue, it appears that only North Carolina’s has refused to recognize such a claim "absent a clear mandate by the legislature.” Azzolino v Dingfelder, 315 NC 103; 337 SE2d 528, 533 (1985), cert den — US —; 107 S Ct 131; 93 L Ed 2d 75 (1986). The court was troubled by an "untraditional” analysis "holding that the existence of human life can constitute an injury cognizable at law.” The North Carolina Supreme Court also noted that this conceptual difficulty had produced the widely divergent views on the appropriate measure of damages and mitigation of damages resulting from the love and affection of the defective child. 337 SE2d 534. The court was further concerned that the tort would give rise to fraudulent testimony concerning the parents’ desire to abort the fetus or at least a denial of the possibility that they would have changed their minds. The court foresaw difficulties in determining what defects would support the claim, pondering whether the mere fact that the child was of one sex rather than the other would be sufficient to subject the physician to liability. Finally, the court foresaw that pressure on physicians would inevitably lead to their taking the safe course of recommending abortion.
Against this backdrop, we conclude that the Eisbrenner holding with regard to wrongful birth remains the law in Michigan until changed by the Legislature or the Supreme Court. The issue of whether abortion should be allowed and all the related moral, religious, and policy arguments are not before us following the line of privacy cases culminating in Roe v Wade, supra. The issue is instead whether physicians have a duty to ascertain and advise parents of information necessary for the parents to exercise the options provided by Roe, whatever the physician personally believes. If a physician breaches the appropriate duty under the facts of a case, and it can be established that the parents would have avoided or terminated the pregnancy, the necessary causal connection is established. The parents should recover for their extraordinary medical expenses and the extraordinary costs of raising the child, as well as the emotional harm they have suffered.
As long as abortion remains an option allowed by law, the physician owes a duty to furnish patients with adequate information for them to be able to decide whether to choose that course of action. Those who would eliminate such a right of recovery must first abolish the right to have an abortion — a matter not germane to this appeal. We note that our Supreme Court denied leave to appeal in Eisbrenner. We specifically invite the Supreme Court to grant leave now so that the vital issues raised in this case can be put to rest in Michigan.
IV
The wrongful life cause of action has previously been rejected by this Court on three occasions. While Eisbrenner allowed the parents’ cause of action, it rejected the child’s based on the rationale used by the Court in Gleitman, supra, and Becker, supra. In a much cited passage, Gleitman determined that the child’s damages were not legally cognizable:
The normal measure of damages in tort actions is compensatory. Damages are measured by comparing the condition plaintiff would have been in, had the defendants not been negligent, with plaintiff’s impaired condition as a result of the negligence. The infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination. This Court cannot weigh the value of life with impairments against the nonexistence of life itself. By asserting that he should not have been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies. [49 NJ 28.]
Becker rejected the wrongful life cause of action after finding two flaws in claims on behalf of the child:
The first, in a sense the more fundamental, is that it does not appear that the infants suffered any legally cognizable injury. . . . Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honored, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?
There is also a second flaw. The remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant. . . . Thus, the damages recoverable on behalf of an infant for wrongful life are limited to that which is necessary to restore the infant to the position he or she would have occupied were it not for the failure of the defendant to render advice to the infant’s parents in a nonnegligent manner. The theoretical hurdle to an assertion of damages on behalf of an infant accruing from a defendant’s negligence in such a case becomes at once apparent. The very allegations of the complaint state that had the defendant not been negligent, the infant’s parents would have chosen not to conceive, or having conceived, to have terminated rather than to have carried the pregnancy to term, thereby depriving the infant plaintiff of his or her very existence. Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life de mands a calculation of damages dependent upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make. . . . Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant’s damages is best reserved for legislative, rather than judicial, attention. [46 NY2d 411-412. Citations omitted.]
Eisbrenner declined to follow Curlender v Bio-Science Laboratories, 106 Cal App 3d 811; 165 Cal Rptr 477 (1980), a case which recognized the cause of action and allowed the child to seek recovery for costs of medical care, pain and suffering, and punitive damages. Eisbrenner refused to allow the jury to speculate on the child’s damages given the impossibility of comparing nonexistence and deformed life, stating that, since damage awards could range from zero to millions of dollars on essentially the same evidence, the "courts [would become] forums for pure gambling events” and "[i]t would make as much sense to award damages on a throw of the dice.” 106 Mich App 366.
Eisbrenner was followed in Dorlin, supra. The Dorlin Court also rejected the opportunity to consider a limited wrongful life cause of action for special damages for the child’s own extraordinary expenses after the age of majority, as the issue had not been briefed on appeal, the Court believing this task to be more appropriate for the Supreme Court or the Legislature. 118 Mich App 835, n 3. Eisbrenner was also followed in Strohmaier, supra, a case factually very similar to both Eisbrenner and the case at bar. Strohmaier declined to recognize a limited cause of action for the child’s special damages such as that adopted in Turpin v Sortini, 31 Cal 3d 220; 182 Cal Rptr 337; 643 P2d 954 (1982), the case which overruled Curlender. The Strohmaier Court stated:
The special damages that are claimed cannot be considered in a vacuum separate from the reality that, but for the alleged negligence, plaintiff would not exist. Plaintiff’s damages, general and special, consist of the difference between his present life with defects and no life at all. Plaintiff’s economic liabilities, like the daily pain and suffering he must endure, are a part and parcel of his life with birth defects. Therefore, this Court cannot view those economic losses apart from the incalculable benefit of life conferred upon plaintiff by the events antecedent to his birth. Consequently, we conclude that plaintiff’s special damages are as incognizable as any general damages for pain and suffering. [122 Mich App 122.]
This argument was subsequently adopted by the Texas Supreme Court in its denial of even a limited cause of action for special damages. Nelson v Krusen, 678 SW2d 918, 925 (Tex, 1984).
Eisbrenner was decided in mid-1981 and Strohmaier was decided in late 1982. Since that time, the New Jersey Supreme Court has also retreated from its position in Gleitman regarding wrongful life and allowed a wrongful life cause of action for the extraordinary costs of care. Procanik, supra. Moreover, a few other jurisdictions have since adopted the wrongful life cause of action. Therefore, we believe a careful reexamination of the wrongful life issue is required.
The majority of jurisdictions considering the question have refused to recognize wrongful life claims. See generally 83 ALR3d 15; Goldberg v Ruskin, 113 Ill 2d 482, —; 101 Ill Dec 818; 499 NE2d 406, 407 (1986); Bruggeman v Schimke, 239 Kan 245, 249-254; 718 P2d 635 (1986). Again, the courts have offered a variety of reasons for doing so.
Bruggeman, supra, 239 Kan 249-251, summarizes some of the main reasons. Many courts have echoed the rationale of Becker in refusing to recognize a legally cognizable injury in being born impaired rather than not being born at all. Under this view, the tort is often perceived as contradictory to the belief that life is precious and that life, even with a major handicap, is preferable to non-life. Moreover, this view recognizes the difficulty of determining to what deformities the tort should apply. Many courts also follow the reasoning of Gleitman and Becker with regard to the impossibility of measuring damages in terms of weighing the value of a defective life against the value of no life at all.
In addition to its inability to concede that a plaintiff’s birth could constitute an injury, the New Hampshire Supreme Court offered three policy reasons militating against recognition of the tort. First, courts should not be involved in deciding if a given person’s life is worthwhile or not. The court observed that the evolving "right to die” doctrine avoids such objective judgments as to the value of a plaintiff’s life and strives instead to protect the individual’s subjective will. A wrongful life claim, however, requires assessing the worth of a child’s life. A court "has no business declaring that among the living are people who never should have been born.” Smith, supra, 513 A2d 353. Second, the Court concluded that legal recognition that a disabled life is an injury would harm the interests of handicapped persons by denigrating society’s new awareness that handicapped persons can be valuable or productive members of society. Third, the Court found that a finding of injury necessarily hinged upon subjective and intensely personal notions as to the intangible value of life, with the manifest danger of markedly disparate and unpredictable outcomes. 513 A2d 353. Smith declined to adopt even a limited right of recovery for special damages, reasoning that such a rule would have significant "doctrinal and symbolic implications” and was primarily deficient in imposing liability even if the defendant has caused no harm. To eliminate any resultant unfairness, however, Smith allowed the parents to recover the child’s post-majority expenses in a wrongful birth action. 513 A2d 354.
The West Virginia Supreme Court of Appeals concluded that the physician’s duty to give the parents information so that an informed choice could be made did not extend to the unborn child, as it is the parents’ decision to risk conception or to terminate a pregnancy. The court echoed the common theme holding that it should be up to the legislature to create such a cause of action. James G, supra, 332 SE2d 881.
The highest courts of three states, however, have embraced wrongful life causes of action permitting the child to recover special damages for the extraordinary costs of education, and medical and other necessary care beyond the age of majority. Turpin, supra; Procanik, supra; Harheson, supra. The intermediate appellate court of Illinois has also embraced this limited cause of action. Siemieniec, supra. While leave to appeal has been granted in Siemieniec, see Goldberg, supra, 499 NE2d 407, that appeal has apparently not yet been resolved. The Illinois Supreme Court rejected a wrongful life claim for general damages only, offering reasons similar to those offered by the other courts, but left open the Siemieniec question of special damages. Goldberg, supra, 499 NE2d 407, 410. Finally, the Colorado Court of Appeals concluded that an action for wrongful life is a proper claim for relief. The case before the court concerned a dispute between the physician’s malpractice insurers, however. Thus, the court found it unnecessary to decide whether a limited damages rule should apply. Continental Casualty Co v Empire Casualty Co, 713 P2d 384, 394 (Colo App, 1985). The Colorado Supreme Court granted certiorari on January 13, 1986, apparently in an unpublished order.
In Curlender, supra, the California Court of Appeal disagreed with the decisions of other states holding that a child born with serious birth defects as opposed to not being born at all has suffered no legally cognizable injury:
The circumstance that the birth and injury have come hand in hand has caused other courts to deal with the problems by barring recovery. The reality of the "wrongful-life” concept is that such a plaintiff both exists and suffers, due to the negligence of others. It is neither necessary nor just to retreat into meditation on the mysteries of life. We need not be concerned with the fact that had defendants not been negligent, the plaintiff might not have come into existence at all. The certainty of genetic impairment is no longer a mystery. In addition, a reverent appreciation of life compels recognition that plaintiff, however impaired she may be, has come into existence as a living person with certain rights. [106 Cal App 3d 829. Emphasis in original.]
We reject as untenable the claim that plaintiff is entitled to damages as if plaintiff had been born without defects and would have had a normal life expectancy. Plaintiff’s right to damages must be considered on the basis of plaintiff’s mental and physical condition at birth and her expected condition during the short life span (four years according to the complaint) anticipated for one with her impaired condition. In similar fashion, we reject the notion that a "wrongful-life” cause of action involves any attempted evaluation of a claimed right not to be born. In essence, we construe the "wrongful-life” cause of action by the defective child as the right of such child to recover damages for the pain and suffering to be endured during the limited life span available to such a child and any special pecuniary loss resulting from the impaired condition. [106 Cal App 3d 830-831. Emphasis in original.]
Turpin, supra, however, found a basic fallacy in this reasoning, citing the tragic fact that such a child never has the chance "to be born as a whole, functional human being” without defects. The defendant in such cases has not caused the child’s injuries and nothing a physician could do would give the child an unimpaired life. Because at best the child would have no life at all, Turpin concluded that a court must take this into consideration. 31 Cal 3d 232. Recognizing the difficulty that this comparison of impaired life against nonlife has caused many courts, Turpin questioned whether these considerations provide a sound basis for entirely rejecting the cause of action. The court concluded that an award of damages to a severely handicapped or suffering child would not "disavow” the value of life. Moreover, the emerging doctrine permitting terminally ill patients to make decisions regarding further life-sustaining procedures suggested that public policy did not establish, as a matter of law under all circumstances, that an impaired life is preferable to nonlife:
Considering the short life span of many of these children and their frequently very limited ability to perceive or enjoy the benefits of life, we cannot assert with confidence that in every situation there would be a societal consensus that life is preferable to never having been born at all.
While it thus seems doubtful that a child’s claim for general damages should properly be denied on the rationale that the value of impaired life, as a matter of law, always exceeds the value of nonlife, we believe that the out-of-state decisions are on sounder grounds in holding that — with respect to the child’s claim for pain and suffering or other general damages — recovery should be denied because (1) it is simply impossible to determine in any rational or reasoned fashion whether the plaintiff has in fact suffered an injury in being born impaired rather than not being born, and (2) even if it were possible to overcome the first hurdle, it would be impossible to assess general damages in any fair, nonspeculative manner. [31 Cal 3d 234.]
Cf. Continental Casualty, supra, 713 P2d 393-394, reaching a similar conclusion concerning whether impaired life is always preferable to no life. Turpin also found it impossible to determine how the benefit of the child’s "physical existence with the capacity both to receive and give love and pleasure as well as to experience pain and suffering” should be weighed in mitigating damages. 31 Cal 3d 237.
Turpin, however, concluded that it would be "illogical and anomolous” to permit the parents to recover the extraordinary costs of caring for the child yet deny recovery of the same to the child if no duplication results. Turpin permitted the child to recover special damages. Such damages are readily measurable and are not offset by any benefit. 31 Cal 3d 237-239.
In Harbeson, supra, the Washington Supreme Court determined that the child may maintain an action for extraordinary expenses to be incurred during the child’s lifetime, not to duplicate the parents’ recovery, after analyzing the tort under general negligence principles. 98 Wash 2d 480-483. Cf. Continental Casualty, supra, 713 P2d 392-394 (physician’s derivative duty to child based on informed consent). Harbeson concluded that imposing a duty to the child corresponding to that imposed in a wrongful birth claim "will similarly foster the societal objectives of genetic counseling and prenatal testing, and will discourage malpractice.” 98 Wash 2d 481.
In Procanik, supra, the New Jersey Supreme Court withdrew from its earlier position to allow the child to recover extraordinary medical expenses:
When a child requires extraordinary medical care, the financial impact is felt not just by the parents, but also by the injured child. As a practical matter, the impact may extend beyond the injured child to his brothers or sisters. Money that is spent for the health care of one child is not available for the clothes, food, or college education or another child.
Recovery of the cost of extraordinary medical expenses by either the parents or the infant, but not both, is consistent with the principle that the doctor’s negligence vitally affects the entire family. [99 NJ 351.]
In Procanik, the parents’ wrongful birth claim was barred by the statute of limitations, but the court concluded that this situation should not cause the child to forego medical treatment for his defects. The court denied general damages, however, because of the "insurmountable problems” faced by other courts in attempting to compare impaired existence with nonexistence:
Such a claim would stir the passions of jurors about the nature and value of life, the fear of nonexistence, and about abortion. That mix is more than the judicial system can digest. We believe that the interests of fairness and justice are better served through more predictably measured damages — the cost of the extraordinary medical expenses necessitated by the infant plaintiff’s handicaps. Damages so measured are not subject to the same wild swings as a claim for pain and suffering and will carry a sufficient sting to deter future acts of medical malpractice. [97 NJ 354.]
The plaintiff made no claim for general damages in Siemieniec, supra. In allowing the recovery of extraordinary out-of-pocket expenditures, the court emphasized that a real rather than a theoretical injury was asserted, defined by the extraordinary expenses rather than the damages for being born impaired as against the value of not being born at all. The child’s damages were not for "wrongful life”; instead, the child sought "the same legal rights for redress of otherwise cognizable damage that every person possesses.” 134 Ill App 3d 834-835.
We are thus faced with deciding whether we should determine which reasons are more cogent and whether we should accept the wrongful life cause of action in either its limited or more general form. We begin with the proposition that the wrongful birth cause of action already exists as a valid cause of action in this state and elsewhere. It follows, then, that the reasons for accepting it have also been found to be valid. As both the wrongful birth and the wrongful life causes of action generally arise out of the same factual situation, those reasons arguably apply with equal validity and relevancy to the wrongful life cause of action. Nevertheless, this Court has previously refused to allow a wrongful life claim to stand, the Supreme Court has refused to review that point of view, and the Legislature has not seen fit to act in this area. Consequently we are reluctant to resolve all of the moral and public policy arguments that others at a different or higher level have declined to address. There comes a point at which three judges on an intermediate appellate court should restrain themselves from making new law. The decision whether a life with birth defects has a greater or lesser value than no life at all is beyond such a point. Consequently we will allow the law to remain where it stands. The "wrongful birth” claim in this case must go to trial and the "wrongful life” claim will remain dismissed.
Neither the courts, the Legislature nor the public should have any illusions about the long-term financial impact of our decision. By deciding that the physician has no responsibility to the child to pay for his or her extraordinary expenses in an action brought on behalf of the child, we are shifting that responsibility in many cases to the state, which will have to care for the child (and the adult, if the child lives) far into the future in the more aggravated cases where other funds are unavailable. The net economic effect of our holding may be that when the physician fails to give proper information to the parents, all of the people of the state pay the price. If this is not the opti mum result, the conflicting economic and moral interests are best resolved in the Legislature.
v
We note that the trial court dismissed all of plaintiffs’ claims. No argument was made below and the trial court made no explicit ruling on Count in, plaintiffs’ breach of contract claim. Plaintiffs have not raised the issue whether summary judgment was properly granted on this count. We deem the issue abandoned on appeal, and do not address it sua sponte. McGruder v Michigan Consolidated Gas Co, 113 Mich App 664, 667; 318 NW2d 531 (1982).
Affirmed in part, reversed in part and remanded for trial on the parents’ claim for wrongful birth. We do not decide any issues relating to damages beyond those discussed above since this matter should be resolved in the first instance by the trial court.
At oral argument, defendants’ attorney suggested that discovery had revealed no evidence that Yasmin had rubella or any other disease which could produce Maya’s birth defects and that the trial court’s grant of summary judgment was probably based at least in part on this. Such a claim should have been brought under GCR 1963, 117.2(3), now MCR 2.116(0(10), however. The record clearly reveals that defendants brought and the court decided the motion under the subrule concerning failure to state a claim, and we are limited to reviewing the order under that subrule. A review of the record, including plaintiffs’ answers to interrogatories, suggests that plaintiffs may have difficulty in proving that Maya’s birth defects resulted from rubella. While further proceedings in this case may ultimately include consideration of a properly filed motion under MCR 2.116(0(10), see Hircos r Holiday Food Center, Inc, 424 Mich 487, 493; 381 NW2d 404 (1986), we do not consider such a motion now.
A third type of claim, "wrongful pregnancy” involving negligent sterilization or contraception, is not relevant to this case. Both causes of action which we consider must also be distinguished from the situation where negligent injury to a normal fetus results in the birth of a child with birth defects.
Some of the cases cited, however, concern wrongful pregnancy or conception rather than wrongful birth.
See also Eisbrenner, supra, p 367.
Curlender was overruled by the California Supreme Court after Eisbrenner was decided. Turpin v Sortini, 31 Cal 3d 220; 182 Cal Rptr 337; 643 P2d 954 (1982). The Curlender decision is discussed in greater detail below.
At least two jurisdictions have reached a similar result by explicitly allowing the parents to recover post-majority expenses in a wrongful birth action. Smith, supra, 513 A2d 354; James G, supra, 332 SE2d 881-882 (citing additional cases).
In addition to the cases discussed above which have wrestled with this thorny problem, a number of commentators have analyzed the issue, particularly the question of damages. See, e.g., Special Project, Legal Rights and Issues Surrounding Conception, Pregnancy, and Birth, 39 V and L Rev 597, 750-770 (1986); Pace, The Treatment of Injury in Wrongful Life Claims, 20 Colum J L & Soc Probs 145 (1986); Foutz, "Wrongful Life”: The Right Not to Be Born, 54 Tul L Rev 480, 492-498 (1980); Capron, Tort Liability in Genetic Counseling, 79 Colum L Rev 618, 647-673 (1979); Note, A Cause of Action for "Wrongful Life”: [A Suggested Analysis], 55 Minn L Rev 58, 62-67, 74-75 (1970). | [
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M. J. Kelly, P.J.
Defendant appeals as of right from jury convictions of felonious assault, MCL 750.82; MSA 28.277, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). We affirm.
Defendant argues that the evidence is insufficient to sustain his felonious assault conviction. The essential elements of felonious assault are (1) an assault, (2) with a dangerous weapon, and (3) with intent to injure or place a victim in reasonable fear or apprehension of an immediate battery. People v Joeseype Johnson, 407 Mich 196, 210; 284 NW2d 718 (1979); People v Robinson, 145 Mich App 562, 564; 378 NW2d 551 (1985). We are persuaded that, on the basis of the evidence produced in this case, any rational trier of fact could have concluded beyond a reasonable doubt that defendant appeared at complainant’s house on October 15, 1984, accompanied by several friends, one of whom handed defendant a gun which he then pointed at complainant’s house and fired. See People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). Seven eyewitnesses testified to this effect during the prosecution’s case in chief and the only contradictory evidence was the testimony of defen dant and an alleged accomplice. It was within the province of the jury to resolve the evidentiary dispute in favor of conviction.
Defendant also argues that he was denied a fair trial because of several comments made by the prosecutor during closing argument. Defendant, however, failed to object to any of the comments now complained about on appeal. We find that most of the comments challenged by defendant constitute proper closing argument. To the extent that the prosecutor went beyond proper argument when he described or listed the elements of felonious assault and commented upon the credibility of the witnesses, we find that the errors could have been cured by an appropriate instruction. Since the trial court adequately and accurately instructed the jury on the offenses charged, on the lesser included offense of reckless discharge of a firearm, and on the role of the jury in evaluating witness credibility, we are not persuaded that a miscarriage of justice has resulted in this case and we decline to reverse. People v Federico, 146 Mich App 776, 794; 381 NW2d 819 (1985).
There is no Coles issue here but we note that defendant was sentenced to a prison term of from three months to four years on his felonious assault conviction, a lenient sentence. Recently, this Court had occasion to review the sentence of Er-rick Hughes who was convicted in the same court of assault with intent to commit murder for having indiscriminately fired a handgun from a passing car into a group of Pershing High School students. Hughes received a sentence of from forty to eighty years for his demonic act. Both defendant and Hughes were juveniles when they committed their offenses and neither had prior criminal records. Hughes shot, but did not kill, a member of the crowd fired upon. Crook announced he was going to "blow all six of you . . . away,” fired two shots but did not hit anyone. These notably similar felonious acts resulted in very dissimilar punishments, forty years versus three months as mínimums.
One stated purpose of the sentencing guidelines is to promote consistency of sentencing throughout the state. Here, the sentencing guidelines recommended a minimum sentence range of from zero to eighteen months. The minimum sentence imposed fell within the recommended range. In Hughes, the sentencing guidelines recommended a minimum sentence of from 120 to 240 months. The forty-year minimum sentence vastly exceeded the guidelines. Given the obvious similarities between these defendants and their criminal conduct, we are publishing this opinion to underscore the apparent inconsistency even within the guidelines and the pitfalls of gross deviation from guidelines recommendations. Meaningful appellate review is especially difficult when comparisons, always odious, are summoned up. There seems a sentencing range as wide as a church door and deep as a well for either judge in these extreme paradigms.
Affirmed.
People v Coles, 417 Mich 523; 339 NW2d 440 (1983).
His two-year sentence on the felony-firearm conviction was mandatory.
People v Hughes, 160 Mich App 117; 407 NW2d 638 (1987).
Crook was sentenced by Recorder’s Court Judge James Chylinski; Hughes by Recorder’s Court Judge Michael Talbot. | [
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Per Curiam.
Defendant appeals as of right from the trial court’s denial of his motion to set aside an order increasing child support. We affirm.
The parties were married on July 1, 1967, and had one child, Wendy, born September 12, 1967. Plaintiff-wife filed a complaint for divorce on September 18, 1972. A default judgment of divorce was entered on May 4, 1973, awarding custody of the child to plaintiff and ordering child support of $20 per week to be paid by defendant.
On September 30, 1982, plaintiff filed a petition to increase child support. Defendant by that time had apparently remarried and moved to Louisiana. Plaintiff’s counsel sent a summons and copy of the petition to a sheriff in Louisiana to procure service on defendant. In December, 1982, plaintiff’s counsel was informed that service could not be made because, although defendant’s wife was at their residence, defendant, a long-haul truck driver, had not been home since the summons was issued. Plaintiff’s counsel’s office mailed to defendant a copy of the notice of hearing and petition in December, 1982, and again in February, 1983. On March 21, 1983, plaintiff’s attorney filed a motion to allow service of process by substitution on a suitable member of defendant’s family. An order allowing substituted service was entered the same day. The order stated:
[SJervice of process may be made upon the said defendant by leaving summons, a copy of the complaint, in this action, and a copy of this order with any member of the defendant’s family, being of suitable age and discretion, at the defendant’s mother’s residence, and by sending summons, and a copy of the complaint, and a copy of his order to the defendant by registered mail, addressed to him at his usual place of abode.
Defendant’s mother, Mrs. John Doran, was served with the summons and petition on March 31, 1983. The record does not contain proof that defendant was served with a copy of the petition by registered mail or otherwise. A notice of hearing dated April 18, 1983, addressed to defendant appears in the lower court file and plaintiffs counsel has represented to this Court and to the trial court that a copy was sent to defendant, but we find no proof of service of the notice in the court file.
A hearing on plaintiffs petition was held on April 29, 1983. Although no transcript of the hearing has been provided to this Court, the parties agree that defendant was not present. An order was entered on August 26, 1983, increasing child support to $46 per week, the amount recommended by the Friend of the Court following receipt from defendant on April 11, 1983, of his financial information. The Friend of the Court sent defendant a copy of the order increasing child support in August, 1984, and again in 1985.
Wendy turned eighteen on September 12, 1985. Defendant was $3,795 in arrears on his child support. When defendant did not appear for a show cause hearing as ordered by the trial court, he was held in contempt of court and a bench warrant for his arrest was issued on February 28, 1986. Defendant was apparently arrested on the warrant; his $1,000 bond was applied toward the child support arrearage.
On June 12, 1986, defendant filed a motion to set aside the order increasing child support. At tached to the motion were the affidavits of defendant and his mother. Defendant averred that he never received notice or copies of the petition to increase child support or a summons and that his only knowledge of the petition was in April, 1984, when his mother first told him about it. Defendant’s mother, Pauline Doran, averred that she did not inform defendant of the petition until at least a year after she was served and that she never received a notice of hearing regarding the petition.
At the hearing on defendant’s motion to set aside the order increasing child support, defendant argued that the order was void for lack of service and, since Wendy had turned eighteen, the court could no longer order retroactive support as it had lost jurisdiction over the child. Plaintiff’s counsel, on the other hand, argued that plaintiff had complied with the court’s order allowing substitute service and had sent three notices of hearing, in addition to contacts between defendant and the Friend of the Court. After considering these arguments, the court denied defendant’s motion, stating "I think under the totality of everything here, what the file indicates, what [the Friend of the Court] has told us, indicates that, as far as the Court is concerned, there was notice given.”
On appeal, defendant contends that the trial court erred in denying his motion to set aside the order increasing child support because (1) the court’s order allowing substitute service did not comply with GCR 1963, 105.2(1) (in effect when the order was entered), governing service of process, (2) plaintiff , did not comply with the court’s order allowing substitute service of process, (3) plaintiff did not comply with GCR 1963, 105.2(1), and (4) plaintiff did not comply with RJA § 1913(l)(a), MCL 600.1913(l)(a); MSA 27A.1913(l)(a), governing substitute service of process. According to defendant, as a result of this noncompliance the court lacked jurisdiction over defendant when it entered the order increasing child support, making the order void.
Each of defendant’s contentions fails in its essential premise, that service of process was necessary to acquire personal jurisdiction over defendant before considering plaintiffs petition.
A trial court has continuing jurisdiction in connection with custody- and support to revise, alter, or amend the original judgment of divorce. MCL 552.17; MSA 25.97; Havens v Havens-Anthony, 335 Mich 445, 450-451; 56 NW2d 346 (1953); Ovaitt v Ovaitt, 43 Mich App 628, 634; 204 NW2d 753 (1972). Thus, if the court had in personam jurisdiction when it granted the divorce, the court has the authority to revise, amend, or alter the custody and support provision without new process issuing. Talbot v Talbot, 99 Mich App 247, 253; 297 NW2d 896 (1980). As service of a summons is part of service of process, GCR 1963, 105, plaintiff was not required to issue a new summons along with a copy of her motion to amend custody and support. See also, VanDivort v VanDivort, 165 Ohio St 141; 134 NE2d 715, 718 (1956). [Kelley v Hanks, 140 Mich App 816, 821; 366 NW2d 50 (1985).]
The issue in this case, therefore, is not whether the order increasing child support was void due to defective service of process. Service of process, substitute or otherwise, was simply not required.
Motions to set aside an order of the trial court are governed by MCR 2.612. A trial court’s determination on a motion to set aside a prior judgment or order is discretionary and will not be disturbed on appeal absent a clear showing of an abuse of discretion. Lark v The Detroit Edison Co, 99 Mich App 280; 297 NW2d 653 (1980). We find no such abuse of discretion in this case. Like the trial court, we are satisfied that, under all the circumstances, defendant must have been on notice of the pendency of plaintiffs petition. The file contains proof that defendant was twice sent a notice of hearing on the petition. Defendant has never asserted that these were sent to the wrong address. The Friend of the Court had successfully reached defendant prior to the hearing, and in fact received from him financial information in preparation for the hearing on plaintiffs petition. Defendant’s mother was aware of the petition and it appears that his second wife knew of the attempts to serve him with papers.
Even if we were to disagree with the trial court’s determination that defendant was adequately notified, we would be constrained to affirm the decision of the trial court on the basis that it reached the right result for the wrong reason. See, e.g., Leszczynski v Johnston, 155 Mich App 392; 399 NW2d 70 (1986). MCR 2.612(B) provides:
A defendant over whom personal jurisdiction was necessary and acquired, but who did not in fact have knowledge of the pendency of the action, may enter an appearance within 1 year after final judgment, and if the defendant shows reason justifying relief from the judgment and innocent third persons will not be prejudiced, the court may relieve the defendant from the judgment, order, or proceedings for which personal jurisdiction was necessary, on payment of costs or on conditions the court deems just.
In this case, the court had acquired personal jurisdiction over defendant. See Kelley v Hanks, supra. Defendant did not enter an appearance until June 12, 1986, almost three years after the order in creasing child support was entered, despite the fact that, by his own admission, he was aware of the proceedings no later than April, 1984. Accordingly, under MCR 2.612(B), defendant is now precluded from asserting lack of personal notice as grounds for setting aside the order.
Affirmed. Plaintiffs request for attorney fees is denied. | [
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Per Curiam.
This is a consolidation of two cases, in which defendant McKee and defendant Alexander-El raise the same issue with respect to their sentences. Defendants’ untimely claims of appeal were treated by this Court as applications for delayed appeal and were granted. Defendants argue that the sentencing judge based the length of their sentences on an erroneous belief as to how the Department of Corrections calculates the time served under consecutive sentences. Defendants request that this Court modify their sentences to comply with what the trial court intended. The prosecutor acknowledges that error occurred, but requests that these cases be remanded for resentencing. We agree that the trial court erred, but hold that the appropriate relief is remand for resentencing.
Defendant McKee was serving a three-year and four-month to five-year sentence for unlawfully driving away an automobile (udaa) when he was convicted of assaulting a prison guard. McKee’s twelve-month sentence for assaulting a prison guard was ordered to run consecutively to his udaa sentence. Consecutive sentences are required under MCL 768.7a; MSA 28.1030(1) when an incarcerated person commits a crime during incarceration. While he was still serving the udaa sentence, McKee escaped from prison and then pled guilty to that offense. The court acknowledged that the escape sentence had to be consecutive, but believed that it would be consecutive only to the sentence McKee was serving at that time for udaa. Therefore, the court sentenced McKee to two to five years in prison for escape, stating its intent "to have him do something beyond the assaulting sentence [that] would be served at the same time.”
Defendant Alexander-El was convicted of armed robbery and possession of a firearm during the commission of a felony. In accordance with MCL 750.227b(2); MSA 28.424(2)(2), the to 15-year sentence for armed robbery was ordered to begin after completion of the mandatory two-year sentence for felony-firearm. However, while Alexander-El was still serving the two-year sentence, he was convicted of assault upon a prison guard. Again, the court acknowledged that the assault sentence had to be consecutive, but believed that it would be consecutive only to the sentence Alexander-El was serving at that time for felony-firearm. After some discussion about the consecutive sentences, the court sentenced Alexander-El to 5 to 15 years for the assault conviction based on his status as a fourth-felony offender, to run consecutively to the two-year felony-firearm sentence.
The trial court erred in applying the consecutive sentencing statute. MCL 768.7a; MSA 28.1030(1) provides:
A person who is incarcerated in a penal or reformatory institution in this state, or who escapes from that institution, and who commits a crime during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction thereof be subject to sentence therefor in the manner provided by law for such crimes. The term of sentence imposed for the crime shall commence at the expiration of the term or terms of sentence which the person is serving or has become liable to serve in a penal or reformatory institution in this state.
In the present case, the court believed with respect to both defendants that the sentence it was ordering should be consecutive only to the sentences defendants were serving at that time. However, the above statute clearly provides for a sentence consecutive to that which defendant is serving or has become liable to serve. Both defendants in the present case were liable to serve a sentence in addition to the sentence they were currently serving. Therefore, in defendant McKee’s case, the two to five-year sentence for prison escape must run consecutively to both the udaa sentence and the assault sentence. Likewise, in defendant Alexander-El’s case, the five to fifteen-year sentence for assault must run consecutively to both the felony-firearm sentence and the armed robbery sentence.
Defendants argue at length that the Department of Corrections has the authority to calculate a release date based on its interpretation of the consecutive sentencing statute. However, the Department of Corrections is apparently applying the consecutive sentencing statute properly. Since this is not a case where the Department of Corrections’ interpretation conflicts with the court’s proper interpretation, we will not address defendants’ argument. Since the trial court erred in its application of the consecutive sentencing statute, defendants are entitled to be resentenced.
Remanded for resentencing. | [
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T. E. Jackson, J.
Plaintiffs challenge the validity of reforms to the Michigan workers’ compensation laws, alleging a violation of the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., and improprieties in the holding of a special legislative session at which the reforms were enacted. On December 11, 1985, the trial court granted defendants’ motion for summary disposition as to this allegation in plaintiffs’ complaint. Plaintiffs appeal as of right. We affirm.
Plaintiffs are the Michigan Injured Workers, an organization formed for the protection of the rights of injured employees, and its president, Walter Crowley. Defendants are members of the Legislative Leadership Committee and several other state officials. In Count vi of the complaint, which is the only count at issue in this appeal, plaintiffs alleged that a special session of the Legislature was improperly convened and that the passage of the workers’ compensation reforms then enacted violated the Open Meetings Act.
On July 12, 1985, both the Michigan House of Representatives and the Michigan Senate were declared adjourned until September 18, 1985. On July 24, 1985, every member of the House of Representatives and Michigan Senate was notified that the Legislature would convene for a special summer session on Tuesday, July 30, 1985, at 2:00 p.m. . The purpose of the special session was to consider a conference report for Senate Bill No. 7, which provided for reforms to Michigan’s workers’ compensation system. The Legislative Leadership Committee called for the special session, pursuant to its authority under Rule 14 of the Joint Rules of the Senate and House, after determining that an emergency existed which necessitated reconvening the Legislature prior to September 18, 1985. At that time, the Legislative Leadership Committee consisted of Senator John M. Engler, as Senate Majority Leader, Representative Gary M. Owen, as Speaker of the House, Senator Harry DeMaso, as President pro tempore of the Senate, and Mathew McNeely as the House Speaker pro tempore.
During the special summer session, Senator Basil Brown challenged the procedure by which the Legislative Leadership Committee had reconvened the Legislature. Senator Brown raised a point of order that the Senate was not legally convened in compliance with the Open Meetings Act. However, the Chair ruled that the Senate was legally convened pursuant to Joint Rule 14.
The Michigan Legislature passed Senate Bill No. 7 during the session, which later became 1985 PA 103 (also known as the workers’ compensation reforms). Both houses of the Legislature also moved to have the workers’ compensation reforms given immediate effect. The motions were passed and Governor Blanchard signed the workers’ compensation reforms into law. Thereafter, plaintiffs filed the instant action against defendants.
Defendants moved for summary disposition under MCR 2.116(C)(8) or (10) and, on December 11, 1985, the trial court granted defendants’ motion as to Count vi, holding that the passage of the workers’ compensation reforms did not violate the Open Meetings Act.
On appeal, plaintiffs contend that the Legislative Leadership Committee violated the Open Meetings Act by deciding to reconvene the Legislature without holding a public meeting. We disagree.
Rule 14 of the Joint Rules of the Senate and House of Representatives provides in pertinent part:
In any event where either or both Houses of the Legislature adjourns to a date certain for more than two days, a committee composed of the President pro tempore of the Senate, the Majority Leader of the Senate, the Speaker and the Speaker pro tempore of the House of Representatives may by a majority vote of that committee convene either or both Houses of the Legislature at any time in case of emergency.
Thus, pursuant to Rule 14, the Legislative Leadership Committee had authority to convene the Legislature in the case of an emergency.
The definitional provision of § 2 of the Open Meetings Act, MCL 15.262; MSA 4.1800(12), provides:
(a) "Public body” means any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to the lease agreement.
(b) "Meeting” means the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy.
(c) "Closed session” means a meeting or part of a meeting of a public body which is closed to the public.
(d) "Decision” means a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy.
The public meeting requirement of § 3 of the Open Meetings Act, MCL 15.263; MSA 4.1800(13), provides in pertinent part:
(1) All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided in this act.
(2) All decisions of a public body shall be made at a meeting open to the public.
(3) All deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public ....
Additionally, MCL 15.270; MSA 4.1800(20) provides in part:
(1) Decisions of a public body shall be presumed to have been adopted in compliance with the requirements of this act. The attorney general, the prosecuting attorney of the county in which the public body serves, or any person may commence a civil action in the circuit court to challenge the validity of a decision of a public body made in violation of this act.
(2) A decision made by a public body may be invalidated if the public body has not complied with the requirements of section 3(1), (2), and (3) in making the decision or if failure to given notice in accordance with section 5 has interfered with substantial compliance with section 3(1), (2), and (3) and the court finds that the noncompliance or failure has impaired the rights of the public under this act.
Plaintiffs argue that the Legislative Leadership Committee is a "public body” as defined in the Open Meetings Act and that the committee’s "decision” to reconvene the Legislature should have been made at a public meeting. Plaintiffs maintain that the committee improperly convened the Legislature, without a public meeting, by engaging in "round-robining,” a practice of instituting a series of telephone calls as notification to other committee members. Thus, pursuant to MCL 15.270(2); MSA 4.1800(20)(2), plaintiffs contend that the workers’ compensation reforms, 1985 PA 103, should be invalidated.
On the other hand, defendants deny that the Legislative Leadership Committee agreed on the time and date for reconvening the Legislature by a series of telephone calls. Defendants contend that each committee member affixed his signature to a letter circulated among them.
However, regardless of which method was used, the committee still engaged in a type of roundrobining and did not hold a meeting to consider if an emergency necessitated the reconvening of the Legislature.
Plaintiffs assert that, pursuant to two opinions of Michigan’s Attorney General, the Legislative Leadership Committee should be included within the purview of the Open Meetings Act and may not engage in the practice of round-robining. In OAG, 1977-1978, No 5222, p 216 (September 1, 1977), the Attorney General opined that a legislative committee is a "public body” whose meetings are subject to the provisions of the Open Meetings Act and that the practice of round-robining defeats the public’s right to be present and to observe the manner in which decisions of legislative committees are made. Also, in OAG, 1977-1978, No 5300, p 451 (May 22, 1978), the Attorney General opined that meetings of legislative joint conference committees are subject to the Open Meetings Act.
On the other hand, defendants assert that the Legislative Leadership Committee is not a "public body,” pursuant to MCL 15.262(a); MSA 4.1800(12)(a), because it does not "legislate” or "govern.” Additionally, defendants argue that the committee’s setting of a date and time for reconvening the Legislature was not a "decision” of a public body that effectuates or formulates public policy. Thus, defendants contend that the Legislative Leadership Committee was not subject to the Open Meetings Act and did not have to hold a public meeting in order to set a time and date for reconvening the Legislature. We agree.
The Legislative Leadership Committee is a unique body that should not be subject to the requirements of the Open Meetings Act. This committee does not deliberate or make decisions regarding legislation or public policy in the way that a regular legislative committee does. The Legislative Leadership Committee’s authority amounts to the sole administrative task of reconvening the Legislature in the case of an emergency. Thus, the Legislative Leadership Committee’s work involves the in-house, administrative business of the Legislature and does not deal with matters of public policy that would require a public meeting.
Even if the scheduling decision of the Legislative Leadership Committee was subject to the Open Meetings Act, this Court may not invalidate the decision of the committee unless the rights of the public have been impaired. In Esperance v Chesterfield Twp, 89 Mich App 456, 464; 280 NW2d 559 (1979), this Court stated:
Merely because secret balloting is prohibited by the Open Meetings Act does not automatically mean that the board’s decision in the present case must be invalidated, and that an injunction must issue restraining defendant from utilizing the procedure in the future.
Invalidation of decisions made in contravention of the act is discretionary with the court. Those seeking to have the decision invalidated must allege not only that the public body failed to comply with the act, but also that this failure impaired the rights of the public. MCL 15.270(2); MSA 4.1800(20)(2).
Plaintiffs allege in this appeal that the rights of 9,059 members of the public have been impaired because their right to have their workers’ compensation cases heard has been delayed at least nine months. However, even assuming that plaintiffs’ allegation reaches the threshold of an impairment of public rights, the Legislative Leadership Committee’s decision to reconvene the Legislature is not what caused the delay to 9,059 workers’ compensation claimants. Any such impairment of public rights would have been caused by the passage of the workers’ compensation reforms and not the committee’s decision to reconvene the Legislature.
The instant case involves plaintiffs who are obviously displeased with the workers’ compensation reforms and are looking for a way to invalidate them. Yet, the Open Meetings Act, even if applied to the Legislative Leadership Committee, would only invalidate the scheduling decision of the committee. The act would not invalidate the Legislature’s actual passage of the workers’ compensation reforms. Since the Legislature’s deliberations over the workers’ compensation reforms were open to the public and did not constitute a violation of the Open Meetings Act, the actual passage of the workers’ compensation reforms should not be invalidated.
The trial court properly granted defendants’ motion for summary disposition as to Count vx of the complaint.
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J. M. Batzer, J.
Petitioner appeals as of right from a July 21, 1986, order of the Michigan Tax Tribunal dismissing his petition for review of a property tax assessment. The sole issue on appeal is whether petitioner’s failure to protest the assessment before the respondent township’s board of review deprives the Tax Tribunal of jurisdiction to review the assessment. We find that it does, and affirm the Tax Tribunal’s order of dismissal.
On April 18, 1986, petitioner filed a petition for a review of a property tax assessment with the small claims division of the Tax Tribunal, contending that the respondent had assessed his residential property at more than fifty percent of its true cash value. Petitioner admitted that he had not protested the assessment to the respondent’s board of review in accordance with MCL 205.735(1); MSA 7.650(35)(1), but claimed that the protest requirement did not apply because the board of review failed to meet for the minimum time required by the General Property Tax Act, MCL 211.30; MSA 7.30. In its answer to the petition, respondent submitted a copy of the assessment notice issued to petitioner which contained the dates and times of the board of review meetings, as follows:
Mon. March 10, 1986
9:00 a.m. to 12:00 noon; 2:00 p.m. to 5:00 p.m.
Tue. March 11, 1986
9:00 a.m. to 12:00 noon; 2:00 p.m. to 5:00 p.m.
Wed. March 12, 1986
2:00 p.m. to 5:00 p.m.; 6:00 p.m. to 9:00 p.m.
Petitioner claims that the meeting times violate MCL 211.30; MSA 7.30 in two respects. First, petitioner asserts that the meeting schedule violates the statutory requirement that one session commence at 3:00 p.m. Second, petitioner contends that, even if the March 12, 1986, session commencing at 2:00 p.m. were used to satisfy the 3:00 p.m. starting time requirement, the schedule would still violate the statute because that session does not continue for six hours commencing at 3:00 p.m. Petitioner argues that, since the statute’s meeting requirements are mandatory, Caledonia Twp v Rose, 94 Mich 216, 218; 53 NW 957 (1892), this Court should remand his case to the Tax Tribunal for trial on the merits or with direction that judgment be entered voiding the assessment.
Petitioner does not specifically address the issue of due process in his brief on appeal. However, we may assume that petitioner’s claim of exemption from the statutory protest requirement is based upon the proposition that respondent’s alleged violation of MCL 211.30; MSA 7.30 denied him his constitutional right to notice and an opportunity to be heard. Essential to a claim of violation of due process is a showing of injury arising from the violation.
Thus, where a taxpayer appeared at a set time and place to protest his assessment, but was informed that the meeting had been adjourned and would not be reconvened for his appeal, our Supreme Court foreclosed the township from collecting the tax, holding that the taxpayer had been deprived of his "day in court” before the board of review:
The provision of the statute requiring the board to meet upon the days named is mandatory, and it cannot deprive the tax-payer of his hearing there, and thereby force him to a suit at law to obtain redress. Defendant was entitled to assume that the board would remain in session the full length of time provided by the statute, and to arrange to be present any day he chose. [Caledonia Twp, supra, p 218.]
See also Hampton Twp v Wespinter, 185 Mich 29, 32; 151 NW 643 (1915) (failure to post information regarding adjournment wrongfully deprived taxpayer of right to hearing); Auditor General v Chandler, 108 Mich 569; 66 NW 482 (1896) (unannounced adjournment invalidated tax assessment where taxpayer appeared at appointed time and place, even where board of review offered to schedule an appointment for taxpayer).
In the instant case, petitioner has not presented this Court with any evidence that the township’s alleged noncompliance with the statutory meeting requirement deprived him of his right to a hearing regarding his tax assessment. There is no evidence that the board’s meeting schedule thwarted petitioner’s attempts to enter a protest. Moreover, there is no evidence that petitioner either attempted to appear or sought an appointment before the board within the statutorily mandated time. Where petitioner can make no showing of prejudice as a result of the board’s meeting schedule, we will not hold that the Tax Tribunal abused its discretion in dismissing his petition. See Stevens v Bangor Twp, 150 Mich App 756, 761; 389 NW2d 176 (1986) (Tax Tribunal decisions reviewable for abuse of discretion).
Affirmed.
The text of MCL 211.30; MSA 7.30 reads in part as follows:
(1) The board of review shall also meet at the office of the supervisor on the second Monday in March at 9 A.M., and continue in session during the day and the day following and shall meet in session for not less than 6 hours each day. Persons or their agents who have appeared to file a protest before the board of review on or before the Tuesday following the second Monday in March or at a scheduled appointment shall be afforded an opportunity to be heard by the board of review. The board of review shall schedule a final meeting whenever the board makes a change in the assessment of property or adds property to the assessment roll. In townships having a population of 10,000 or more, the board shall hold at least 1 of its required sessions for review of assessment rolls beginning at 3 p.m.
(2) A board of review shall continue its sessions at least 6 hours each day, and at the request of any person whose property is assessed thereon or of his or her agent, and on sufficient cause being shown, shall correct the assessment as to such property, in such manner as in their judgment will make the valuation thereof relatively just and equal. | [
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D. A. Burress, J.
On October 16, 1985, defendant Patrick Donald Roberson was convicted by a jury in the Cheboygan Circuit Court of the offenses of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On December 12, 1985, defendant was sentenced to a mandatory two-year prison term for the felony-firearm conviction, and to from seven to twenty-five years for the armed robbery conviction. Those sentences were to be served consecutively. Defendant appeals his convictions and sentences as of right.
On May 21, 1985, at approximately 11:55 p.m., defendant entered a Clark gas station in Cheboygan, Michigan, just prior to closing and while the female attendant was counting the day’s receipts. Defendant pointed a shotgun at her and demanded and was given the money. He then demanded more money from the station’s safe. The attendant was unable to open the safe and convinced defendant of this fact only after demonstrating that each of her keys could not open the door. Defendant then made her toss the keys into a back room and ordered her to lie down next to them. Fearing she would be shot, she grabbed the gun and a struggle ensued following which the two stumbled out the door of the station and onto the pavement. Defendant repeatedly pushed the attendant’s head into the cement in an effort to wrestle the gun away. Defendant himself finally let go and stomped on the gun which was lying across the attendant’s chest, causing it to discharge. Defendant then retrieved the money and fled the station without the gun.
At trial, the attendant positively identified the defendant and the shotgun used during the robbery. In addition to testifying to the foregoing facts, the attendant testified she saw defendant’s hand near the gun’s trigger, but not actually on it, and that throughout most of the robbery the gun was held at knee level although it was pointed in the attendant’s direction. Finally, the attendant testified that defendant’s eyes were noticeably bloodshot, although she did not smell alcohol, and that defendant did not seem intoxicated to her.
A neighbor who lived behind the gas station testified that he observed a "loud” car idling in front of his house at approximately 11:45 p.m. on the night of the robbery. There were two occupants in the vehicle, one of whom got out and walked toward the station. That person soon returned and got back into the car. The two occupants then conversed for a short time before the same person got out of the car again and returned to the station. A couple of minutes later the witness heard a gunshot and saw that same person running toward the car, which sped away after he got in. During the time the car was parked in front of his home, the witness had a view of the person’s stature and clothing. The person was observed running and did not appear to be under the influence to the witness.
A second neighbor observed a suspicious older model blue car with a noisy muffler around midnight on the night of the robbery. A few minutes later, he saw the young man slam the trunk of the car and get into the vehicle which then sped away.
Officers from the Cheboygan Police Department were dispatched to the scene of the robbery. Descriptions of the defendant and the vehicle were broadcast over the police radio after the witnesses were interviewed. An officer from the Tuscarora Township Police Department heard the broadcast and subsequently located the suspect vehicle in the vicinity of Indian River, Michigan. Backup assistance was called. Thereafter, with the assistance of two state police troopers, the suspect vehicle was stopped after it drove down a dead-end street in the village of Wolverine. Defendant was arrested.
The troopers testified that defendant did not appear to be intoxicated, did not have any trouble walking (even backward), and his actions were very deliberate. He was described as defiant and uncooperative. The other officer also testified that the defendant did not appear to be intoxicated.
The third state trooper who encountered defendant at the state police post after his arrest testified that defendant had a slight odor of alcohol but did not appear to be intoxicated.
The following morning the suspect’s vehicle was searched and two partial rolls of coins were recovered. Also, defendant’s clothes were confiscated as they matched the description given by the attendant. Both the coins and clothing were admitted into evidence at trial.
Defendant moved for a directed verdict following the close of the prosecution’s case in chief, arguing that the proofs did not establish that the defendant had the requisite intent and present ability to injure, or the intent to permanently deprive the attendant of something of value. That motion was denied.
In his reserved opening statement, defense coun sel theorized that defendant’s alcohol intake prevented him from forming the specific intent to commit armed robbery.
Eileen Jorgensen testified that defendant and her son, Casey, were at her house from 11:00 p.m. to 11:20 p.m. on May 21, 1985. She believed they had been drinking. She could smell alcohol on defendant and he talked very fast (which he did not normally do). On cross-examination, she stated that defendant was not falling-down drunk, did not stagger or pass out, and was able to carry on a sensible conversation.
Dr. Russell Wood, a clinical psychologist and director of Harbor Hall (a residential substance abuse clinic in Petoskey, Michigan), testified that defendant had received treatment in the past for approximately seven months. On cross-examination, the prosecutor questioned Wood about the type of patients the clinic received and elicited the response that a majority of the patients referred were prior felons. Defense counsel objected to this questioning on the ground that it was improper since, prior to trial, the judge had ruled that defendant’s prior arrests or convictions could not be used except for impeachment purposes. The prosecutor withdrew the question conceding that it was unimportant.
Dr. Charles Laufer, a consultant who treated defendant during his stay at Harbor Hall, diagnosed defendant as having a borderline personality disorder and as being an alcoholic. Laufer gave extensive testimony regarding the implications and behavior patterns associated with alcoholism. When defense counsel asked Laufer about an alcoholic’s ability to form a specific intent, the prosecutor objected, stating that the answer would embrace an ultimate issue for the jury. The objection was overruled. The question was again posed to Laufer who stated that it was not for him to decide whether defendant had the specific intent (apparently he too was under the misconception that the evidence rules did not allow such testimony). Laufer then gave an opinion about alcoholics in general without referring to defendant in particular.
Following cross-examination of Laufer, and outside the presence of the jury, the court explained its prior ruling and offered to clarify the law in an instruction to the jury. Both counsel agreed that such instruction would suffice. Laufer was not again requested to opine as to defendant’s ability to form the requisite specific intent.
The prosecutor called rebuttal witness Jay Geyer who had been with defendant until approximately 10:00 p.m. on the night of the robbery. Geyer said that defendant had been drinking but he was not so drunk as to have difficulty moving around.
During closing argument, the prosecutor argued that defendant’s intoxication defense was without foundation because of the planning and execution of the robbery and because there was no physical appearance of intoxication. During rebuttal argument, the prosecutor stated, "I submit to you that at one point in time, when he told the victim to lie down, that he certainly wasn’t going to leave any eyewitness behind — .” At that point, defense counsel objected. The court permitted the argument for the reason that there was evidence at trial upon which to base it.
Over objection the trial judge instructed the jury regarding a defendant’s election not to testify (CJI 3:1:06). The trial court indicated its belief that the instruction was mandatory when the defendant elected not to take the witness stand.
After deliberating for about forty minutes, the jury returned its verdict finding defendant guilty of armed robbery, MCL 750.529; MSA 28.797, and felony-firearm, MCL 750.227b; MSA 28.424(2).
At defendant’s sentencing hearing held on December 12, 1985, defense counsel alleged that two offense variables on defendant’s sentencing information report had been misscored. First, counsel argued that the probation agent had erroneously scored defendant as though he was a leader in a multioffender situation instead of being an equal participant. Second, counsel asserted that the agent also erred in assessing points based upon bodily injury inflicted on the victim because there was no indication of such in the record. The court agreed with the probation agent’s scoring, ruling that defendant was the leader and that the gas station attendant had been touched beyond that needed to commit the offense.
Defense counsel also argued that defendant’s intoxication should serve to mitigate the severity of the offense and thereby reduce his sentence. The court disagreed with that argument, stating: "Alcoholism, I don’t doubt that defendant is an alcoholic, but it’s not an excuse for assaultive conduct. If it were an excuse, the jury would have so found.”
On appeal, defendant raises four claims of error. We affirm both the convictions and the sentences which were imposed.
In his first issue defendant argues that he was denied a fair trial because of claimed inappropriate questioning of a defense witness regarding the referrals and funding of Harbor Hall since such questioning basically revealed to the jury that defendant was a convicted felon. He also argues that the prosecutor’s argument that "defendant did not intend to leave an eyewitness behind” unfairly prejudiced defendant and deprived him of a fair trial. We reject both arguments.
The prosecutor’s closing was supported by the unobjected-to testimony of the attendant that she believed that defendant intended to shoot her. It is well established that as an advocate, the prosecutor may freely relate the facts to his theory of the case, and may argue the evidence, and all reasonable inferences therefrom. People v Jansson, 116 Mich App 674, 693; 323 NW2d 508 (1982). Here, the prosecutor was merely arguing the attendant’s testimony that she believed defendant intended to kill her. Such testimony was certainly in evidence as no objection was made to the attendant’s statement.
In People v Tarpley, 41 Mich App 227, 235; 199 NW2d 839 (1972), this Court held that it was error for a prosecutor to make a remark which is (1) outside the scope of the charges against the defendant, and (2) outside the scope of the testimony which had been presented. Tarpley is distinguished from the instant case since the prosecutor’s remark was not outside the scope of the testimony.
Furthermore, the prosecutor’s remark was not erroneous because it tended to establish one or more of the elements of the crime charged, to wit: the specific intent to permanently deprive the attendant of the money and the intent to commit immediate bodily harm. MCL 750.529; MSA 28.797; CJI 18:1:01; People v Joeseype Johnson, 407 Mich 196, 210; 284 NW2d 718 (1979); People v Harris, 82 Mich App 135, 137; 266 NW2d 477 (1978). Testimony tending to establish the elements of an offense is not rendered inadmissible simply because it may tend to show the commission of another crime as well. People v Savage, 225 Mich 84, 86; 195 NW2d 669 (1923); People v Cas tillo, 82 Mich App 476, 479; 266 NW2d 460 (1978). Additionally, any unfair prejudice resulting from the admission of the attendant’s testimony, or the prosecutor’s reference thereto, could have been eliminated by proper cross-examination, argument, instructions by the court, and the jury’s common sense. People v Trevino, 155 Mich App 10, 17; 399 NW2d 424 (1986); People v Goree, 132 Mich App 693, 703; 349 NW2d 220 (1984).
Defendant further argues in this issue that he was denied a fair trial because of the prosecutor’s questioning of defense witness Russell Wood, director of Harbor Hall, the substance abuse clinic. The prosecutor elicited testimony from Wood that a high percentage of his patients were referred to him through the probation and parole offices and were convicted felons. The prosecutor’s questioning continued for a substantial period of time before defense counsel interjected an objection. Upon hearing the objection, the prosecutor withdrew his question, saying, "I didn’t think it was that important, anyway.”
Defendant now argues that that questioning was improper because it effectively revealed to the jury that defendant had a prior criminal record. This, defendant asserts, violated the trial court’s earlier ruling that his prior convictions could be used only for impeachment purposes should he decide to testify, which he did not. We conclude that the prosecutor’s questions, while improper, did not result in unfair prejudice to defendant.
A review of the prosecutor’s questioning as a whole reveals that it initially started out as an effort to impeach Wood, i.e., to show that the witness had a financial interest in concluding that defendant was an alcoholic. Therefore, the questions were relevant to the matter at issue (Wood’s credibility) and were admissible. MRE 402. As the prosecutor’s questioning continued, though, it focused on the fact that a high percentage of Wood’s patients were convicted felons. The final question, as it pertained to the source of Wood’s referrals in general, was irrelevant; as it pertained to defendant in particular, the question was not only irrelevant but was more prejudicial than probative. It may also have violated the trial court’s pretrial order that defendant’s prior convictions could be used only for impeachment purposes. Thus, the question should have been excluded. MRE 402, 403. However, for several reasons, the prosecutor’s question was not unfairly prejudicial.
Defense counsel only objected to the prosecutor’s final question. No objections were made to the earlier questions which essentially revealed the substance of the testimony of which defendant now complains. Hence, the objection came too late. Had an objection been voiced earlier, the error now complained of could have been avoided. Additionally, a cautionary instruction to the jury, if requested, could have removed any taint resulting from the improper questions and the answers thereto. Defense counsel’s failure to request such an instruction cannot elevate the improper questioning to the level of unfair prejudice. See Trevino, supra, p 17; Goree, supra, p 703. Finally, to the extent that the prosecutor’s questions themselves insinuated that defendant was a "bad man” because he was referred to Wood as a patient, any prejudice arising therefrom was dispelled by the court’s instructions to the jury. The court charged the jury that the statements or arguments of the attorneys were not evidence and should be disregarded if not supported either by the evidence or by the jury’s general knowledge or experience.
Assuming arguendo that the prosecutor’s remarks during closing argument or questioning of Dr. Wood were erroneous, that error was, at the most, harmless. The evidence of defendant’s guilt in this case was overwhelming. The attendant testified that defendant entered the gas station and robbed her at gunpoint. She gave a very detailed description of her assailant which ultimately contributed to defendant’s arrest. She unequivocally identified defendant at trial as the robber. Two neighbors observed the car in which defendant was riding as being in back of the gas station at the time of the robbery. Their description of the car also contributed to defendant’s arrest. A subsequent search of the car turned up two partial rolls of coins which were taken during the robbery. Defendant’s shotgun, which the attendant managed to wrestle away from defendant during their struggle, was also admitted into evidence.
Defendant does not dispute the mountain of evidence, both direct and circumstantial, against him. Rather, his sole defense was that intoxication prevented him from forming the specific intent necessary to sustain a conviction of armed robbery. However, the evidence at trial that defendant was not intoxicated was very strong, while the evidence that he was intoxicated was very weak. Every prosecution witness who observed defendant around the time of the robbery, from the attendant and the neighbors to the arresting police officers, testified that defendant did not appear intoxicated. He was able to run, walk, and stand without so much as a stumble or stagger. He was able to communicate coherently and was aware of what was going on around him. Only defense witness Eileen Jorgensen and prosecution witness Jay Geyer gave testimony that defendant had been drinking just prior to the robbery. (Defense witnesses Wood and Laufer testified only as to defendant’s past alcoholism; they provided no evidence that he was intoxicated on the night in question.) Jorgensen’s conclusion that defendant was drunk was based on the fact that he smelled of alcohol and was talking very fast, which was apparently out of character. An equally logical explanation for his rapid speech might be that he was nervous about the then impending robbery attempt. Even Jorgensen admitted, though, that defendant did not stagger, was not falling-down drunk, carried on a sensible conversation, and understood where he was. Geyer testified that defendant was not so drunk as to have difficulty moving around.
In light of the very strong evidence against defendant, and the fact that his sole defense was intoxication (which was very weak), this Court is satisfied that not one juror would have voted to acquit defendant even absent the complained-of errors. Therefore, the allegedly erroneous remarks and questions by the prosecutor were, at the most, harmless error. MCR 2.613(A); MCL 769.26; MSA 28.1096; People v Swan, 56 Mich App 22, 31; 223 NW2d 346 (1974), lv den 395 Mich 810 (1975).
In his next issue, defendant claims he was deprived of a fair trial because the defense expert witness withheld critical testimony because of the expert’s uncorrected mistaken belief that he could not testify on an ultimate issue of fact.
During direct examination of Dr. Charles Laufer, the consultant with Harbor Hall and defendant’s former doctor at the clinic, he was asked whether an intoxicated person was capable of forming a specific intent to act. The prosecutor objected to that question, arguing that it embraced an ultimate question for the jury to decide. The court overruled the objection, holding that Laufer had been qualified as an expert and, under the rules of evidence, could give an opinion on the matter.
After again being asked about an intoxicated person’s ability to form a specific intent, Laufer stated:
I’m going to stay away from specific intent, leaving that to the trier of facts, because I think that smacks — I understand the law. I’ve read it, but it’s not for me to decide. But I can answer that, at least a good portion of the question, and I can answer it as follows—
With that, the prosecutor objected on the grounds that the answer was unresponsive and outside the scope of the question asked. The prosecutor also argued that it was not the witness’ function to explain the law. The court agreed with the prosecutor but let the witness’ answer stand because counsel could bring out the truth by questioning the witness.
Defense counsel again questioned Laufer about the effect of alcohol on a person’s ability to form a specific intent. Laufer answered as follows:
I believe that in all probability, the person would not know what they were doing. The person would be functioning without due reason, without a rational, logical problem solving process going on: If I do this, then this will happen. If I do that, then that will happen. They just do it. It gets into their head and they block out, blot out, if you will, black out everything except what they’re going to do. They don’t know what they’re doing and they do it, and it’s out of their control. It came from whatever the thing was they were thinking just before it and just before that and just before that or whatever idea somebody put in their head.
Following this answer, defense counsel concluded direct examination of Laufer, who was thereafter cross-examined by the prosecutor.
Upon completion of cross-examination, the trial judge initiated a discussion out of the jury’s presence regarding Laufer’s testimony. He stated that he wanted to avoid a witness’ making a statement to the jury as to what the law is which does not conform to the law. He then asked whether either party desired to ask, or have him ask, questions of Laufer to clarify the matter to the jury. Defense counsel stated:
Your Honor, I think that an inquiry or — Geez I would not want the jury to think that the witness violated their province, you know, defnitely [sic]. I wouldn’t want to leave the jury with that impression, but I don’t think, at this point, that they have the impression. So I don’t think it’s going to be necessary for anything further to be placed relative to that.
The judge volunteered that he would instruct the jury on the proper rule regarding expert witness testimony during jury instructions. Defense counsel replied, "That’s fine, your Honor.”
During final instructions to the jury, the trial judge gave the following instructions:
I instruct you that testimony in the form of an opinion is for you to consider even though it embraces the ultimate issue to be decided by the trier of fact.
In this case, Dr. Laufer has given his opinion as an expert in the field of alcohol addiction. An expert is permitted to give his opinion as to matters on which he is an expert. You are not bound to follow the opinion of any expert but may give it whatever weight you believe it deserves.
Defendant now claims that he was denied a fair trial because Dr. Laufer did not ultimately give an opinion as to whether defendant’s intoxication affected his ability to form the specific intent necessary to sustain a conviction of armed robbery. A review of the record indicates there was nothing improper or erroneous, except for the witness’ own initial belief that he could not testify as to a question of fact.
It is beyond dispute that an expert witness may give an opinion on a certain matter even though it embraces an ultimate issue to be decided by the trier of fact. MRE 704. Here, Laufer did just that. And, contrary to what defendant now asserts, Laufer’s answer was responsive to defense counsel’s question. Counsel asked the following hypothetical:
If a person who is an alcoholic were to drink a quantity of alcohol, what affect [sic] would this or could this — Let’s make that would this — would this have on his reasoning and thought process and ability to form a specific intent to do an act?
Laufer’s response addressed that question specifically. Counsel never asked whether defendant, if intoxicated, would be personally able to form a specific intent. Certainly, error cannot be assigned to Laufer’s testimony simply because he failed to address a question which was never posed to him.
Assuming defendant is now arguing that he was somehow prejudiced by Laufer’s misstatement of the law in front of the jury (that he could not testify as to an ultimate issue of fact), we are satisfied that no error requiring reversal occurred.
Defense counsel was given an opportunity to further question Laufer so as to clarify the misstatement. Instead, counsel stated that he believed that the jury was under no misconception. Therefore, he thought it was unnecessary to do anything more. Defendant should not be allowed to assign error on appeal to something which his own counsel deemed proper at trial. To do so would allow defendant to harbor error as an appellate parachute. People v Murry, 106 Mich App 257, 262; 307 NW2d 464 (1981); People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969).
Furthermore, the trial court, in its instructions to the jury, cleared up any misconception the jury might have had about Laufer’s ability to testify as to an ultimate issue of fact. The jury was told that the witness could give an opinion on an ultimate issue of fact but that it was the sole trier of fact and that it may believe or disbelieve Laufer’s testimony. Thus, the jury was informed as to the correct rule of law.
The Court is at a loss to find anything even remotely prejudicial to defendant arising from the course of events now complained of.
In his next claim of error defendant contends the trial court committed error requiring reversal when it gave a cautionary jury instruction on defendant’s election not to testify.
In his final instructions to the jury, the trial judge gave the following instruction regarding defendant’s election not to testify:
Every defendant in a criminal case has the absolute right not to testify. The defendant, Patrick Roberson, has no obligation to testify or to prove his innocence in any manner. You are not permitted to consider his silence in your deliberations, and his silence must not influence your verdict in any manner whatsoever.
At the conclusion of the jury charge, defense coun sel objected to the giving of the instruction, arguing that the judge disregarded counsel’s previous request not to give the instruction (apparently, the request was made in chambers and not on the record). The judge explained that he believed the instruction was mandatory whenever a defendant did not testify, such as here.
Defendant now argues that the court’s refusal to honor his request not to give the instruction was error. We agree. However, in light of the overwhelming evidence of defendant’s guilt, the error was harmless; therefore, reversal of defendant’s convictions is not required.
In People v Hampton, 394 Mich 437, 438; 231 NW2d 654 (1975), our Supreme Court, in a memorandum opinion, held that, in a criminal case where the defendant elects not to testify, the court may not instruct on the effect thereof if the defendant makes a timely request not to do so.
Unfortunately, the Hampton Court did not discuss the rationale behind its rule nor did it address the question of whether a trial court’s instruction could ever be harmless error. However, in People v Drew, 83 Mich App 57, 62-63; 268 NW2d 284 (1978), this Court held that a trial court’s instruction to the jury regarding the use of a defendant’s prior conviction, despite the defendant’s request not to give the instruction, was harmless error because the instruction favored defendant and the evidence adduced at trial was overwhelming in respect to his guilt.
In his final issue defendant asserts that he is entitled to be resentenced. Defendant raises two separate objections in this issue on appeal: he first claims the sentencing judge erred in refusing to consider intoxication as a mitigating factor; next he claims the sentencing judge erred in scoring defendant’s sentencing guidelines variables in that he had defendant intending to kill the attendant, using excessive force resulting in injury to her, and being the leader of the robbery. This Court is satisfied there was no error.
As to the argument that intoxication must be considered a mitigating factor, there is no merit to that argument under the facts of this case. By returning a verdict of guilty against defendant, the jury must have necessarily found that he was not legally intoxicated and that he was capable of forming the requisite specific intent.
Furthermore, defendant cites no authority in support of the proposition that intoxication is a mitigating factor to be considered in sentencing a defendant. A mere statement of position without citation of authority is insufficient to bring the issue before this Court. People v Federico, 146 Mich App 776, 797; 381 NW2d 819 (1985), lv den 425 Mich 867 (1986). The case cited by defendant, People v Murray, 72 Mich 10; 40 NW 29 (1888), dealt with a factual situation wholly distinguishable from the instant case. Murray involved a defendant accused of statutory rape, a crime in which there was no intent requirement, specific or general. Therefore, it was held that intoxication, while not a legal defense, could serve to mitigate the subsequent sentence imposed. Because armed robbery is a specific intent crime, though, intoxication is a legal defense. People v Lakeman, 135 Mich App 235, 240; 353 NW2d 493 (1984). Since the jury found defendant guilty of robbery, it must necessarily have rejected his claim of intoxication. Therefore, such should not serve to benefit defendant in sentencing.
As to defendant’s assignment of error to the scoring of the sentencing guidelines variables, that too is without merit.
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Mackenzie, P.J.
On July 31, 1985, petitioner filed a petition in the probate court alleging that respondent committed an act the nature of which constituted the felony of assault with intent to commit murder, MCL 750.83; MSA 28.278. The petition requested the court to take jurisdiction of respondent, apparently pursuant to MCL 712A.2(a)(1); MSA 27.3178(598.2)(a)(1), which provides:
Except as otherwise provided in this section, the juvenile division of the probate court shall have: (a) Exclusive original jurisdiction superior to and regardless of the jurisdiction of any other court in proceedings concerning any child under 17 years of age found within the county:
(1) Who has violated any municipal ordinance or law of the state or of the United States.
At the time the petition was filed, respondent was sixteen years old. He was detained at the Wayne County Youth Home following the alleged assault.
When the petition was authorized, both petitioner and respondent’s counsel requested a psychological evaluation of respondent. The juvenile court referee recommended ordering such an evaluation to be performed by the Wayne County Clinic for Child Study. On August 15, 1985, respondent’s attorney filed a notice of insanity defense, accompanied by a request that respondent be referred to the Center for Forensic Psychiatry for evaluation. The presiding judge denied the request for evaluation at the adult forensic center, but ordered evaluation by the Clinic for Child Study. Additionally, respondent was granted his request for an independent psychiatric forensic evaluation.
An adjudicatory hearing was conducted on September 24, October 9, and October 10, 1985. Following petitioner’s case in chief, respondent presented the expert testimony of clinical psychologist Dr. William Nixon, who conducted the independent evaluation of respondent. He testified that respondent suffered from a paranoia disorder and that this disorder fell within the legal definition of mental illness. Further, in Nixon’s opinion, at the time of the assault respondent was unable to resist his homicidal impulse and was unable to see the wrongfulness of his action. Clinic for Child Study psychologist Dr. Charles Rooney testified as petitioner’s rebuttal expert witness. According to Rooney, respondent suffered from a schizoid personal ity disorder but was able to differentiate between right and wrong.
On October 15, 1985, the juvenile court referee found that respondent, while suffering from mental illness, was not insane. The referee then found respondent guilty but mentally ill and ruled that he came within the provisions of the juvenile code. Disposition immediately followed. Respondent was committed to Boys Training School, which would "attempt to work with this young mán for purposes of getting him medication, as well as any type of therapy that could be brought in from Hawthorne [sic] Center by a therapist.”
Respondent filed a petition for review on October 21, 1985. Judge Y. Gladys Barsamian denied the petition on February 19, 1986. Responding to several issues raised by respondent, Judge Barsamian ruled that: (1) the court did not err in failing to follow MCL 768.20a; MSA 28.1043(1), governing procedure when an insanity defense is raised, because the insanity defense does not apply in juvenile cases; (2) the guilty but mentally ill verdict, MCL 768.36; MSA 28.1059, does not apply in juvenile cases, but the referee did not intend respondent to come within that statute; and (3) the referee had adequate information upon which to make his dispositional decision. Respondent now appeals from each of these determinations as of right. We affirm.
Respondent contends that Judge Barsamian erred in concluding that the insanity defense is inapplicable to juvenile proceedings. We find it unnecessary to address the issue on these facts. If, as respondent maintains, the defense is available in juvenile court, there was no error at the adjudicatory proceeding. Respondent presented evidence regarding his, sanity, argued the question, and received a ruling. We agree with the referee and the presiding judge that the evidence was sufficient to support a finding of respondent’s legal sanity. The evidence of respondent’s actions both before and immediately after the assault strongly suggested that he was able to conform his conduct to the law and that he appreciated the wrongfulness of his actions. If, on the other hand, Judge Barsamian correctly concluded that the insanity defense has no application in juvenile proceedings, reversal still would not be warranted. Judge Barsamian’s ruling did not deny respondent due process. As respondent’s counsel stated more than once at the February 19 hearing, the essence of respondent’s theory of the case was that he lacked the requisite intent to commit the charged offense. Obviously one need not raise the question of sanity in order to claim lack of evidence of intent. Here, respondent offered his theory and it was rejected. Judge Barsamian’s ruling did not deprive respondent of his theory.
Assuming, arguendo, that the insanity defense applies in juvenile proceedings, respondent argues that under MCL 768.20a; MSA 28.1043(1) the probate court erred in ordering his evaluation at the Wayne County Clinic for Child Study rather than the Center for Forensic Psychiatry. Respondent cites no cases and we have found none directly on point. Analogous to the instant case, however, is People v Lucas, 393 Mich 522, 527-528; 227 NW2d 763 (1975). In Lucas, the Court fashioned a remedy for when the trial court fails to comply with procedural requisites surrounding the determination of competency to stand trial. The Court stated:
As we said in [People v Blocker, 393 Mich 501; 227 NW2d 767 (1975)], failure to follow a statute or court rule respecting competency determination does not ipso facto entitle a defendant to a new trial. Evidence substantiating incompetency-in-fact must establish that there is a violation of rights before a new trial will be ordered. [Lucas, supra, p 528. Emphasis added.]
Here, respondent’s rights were not violated by the decision to have the Clinic for Child Study perform an evaluation. As Judge Barsamian noted, respondent needed mental health treatment as soon as possible, not the delay of many months which would result from referral to the Center for Forensic Psychiatry. Moreover, the Center for Forensic Psychiatry is an adult facility; both the juvenile code and the court rules governing the juvenile division of the probate court contemplate that juvenile detainees will not be exposed to adult detainees. Finally, while there may exist a difference of opinion as to whether the Clinic for Child Study was better equipped to evaluate respondent, that difference of opinion does not amount to a violation of rights. There was no error.
Again assuming, arguendo, that the insanity defense and the procedures set forth at MCL 768.20a; MSA 28.1043(1) apply to juvenile proceedings, respondent further argues that the court erred in permitting Dr. Rooney to testify as an expert on the issue of criminal responsibility. We disagree. In People v Hawthorne, 293 Mich 15; 291 NW 205 (1940), five justices agreed that psychologists are included among those competent to testify on the issue of sanity. Accord: People v Drossart, 99 Mich App 66; 297 NW2d 863 (1980), lv den 410 Mich 892 (1981). People v Hardesty, 139 Mich App 124; 362 NW2d 787 (1984), lv den 424 Mich 878 (1986), app dis — US —; 106 S Ct 3269; 91 L Ed 2d 560 (1986), upon which respondent relies, dealt with the qualifications of a particular psy chologist and cannot be read as disqualifying all clinical psychologists as experts on the issue of sanity.
Whether witnesses are sufficiently qualified to render expert opinions rests within the sound discretion of the trial court, and that court’s decisions will be reversed only for an abuse of discretion. People v Beckley, 161 Mich App 120, 124-125; 409 NW2d 759 (1987), citing People v Barr, 156 Mich App 450; 402 NW2d 489 (1986). In the instant case, Dr. Rooney testified that he was a licensed psychologist, that he had been employed at the Clinic for Child Study since 1980, that he had evaluated approximately 250 young men "for [the] purpose of psychiatric evaluation” and had testified in court forty to fifty times regarding evaluation of youngsters who had appeared in juvenile court, and that he was a professor of psychology at Wayne State University from 1973 to 1979. Although this was his first examination on criminal responsibility, Dr. Rooney was aware of the requirements of the law and had considered the reports and evaluations of three psychiatrists, Dr. Harold Wright of Hawthorn Center, Dr. Dexter Fields of Northland Clinic, and Dr. Barry Miller, when evaluating respondent. As Judge Barsamian noted, the Clinic for Child Study specializes in dealing with children in contrast to the Center for Forensic Psychiatry which deals with adults. Moreover, as Judge Barsamian noted, respondent is hardly in the position to challenge petitioner’s expert since respondent was given an opportunity for independent evaluation and, rather than choosing a forensic psychiatrist, he also chose a clinical psychologist. We find no abuse of discretion.
Once more assuming, arguendo, that the insanity defense and the procedures set forth in the Code of Criminal Procedure apply to juvenile proceedings, respondent also contends that the court erred in permitting Dr. Rooney’s rebuttal testimony since petitioner did not file a notice of rebuttal. See MCL 768.20a; MSA 28.1043(1) and MCL 768.21; MSA 28.1044. Respondent is correct that petitioner did not file a notice of rebuttal and that the statutory sanction for failure to comply with the notice requirement is the exclusion of the rebuttal evidence. We do not agree, however, that the error mandates reversal. The purpose of the notice requirement is to prevent surprise at trial. People v Williams, 107 Mich App 798, 800; 310 NW2d 246 (1981), rev’d on other grounds 413 Mich 940 (1982). In the instant case, respondent had actual notice not only of the fact that Dr. Rooney would be testifying but also of the content of his testimony. Respondent’s expert, Dr. Nixon, testified that he had read Dr. Rooney’s report. Counsel for respondent stated on the record that he had a copy of Dr. Rooney’s report. Thus, we find the error harmless. The Supreme Court’s reversal of Williams, supra, does not compel a different result. The Supreme Court’s reason for reversal of Williams was not that the trial court permitted testimony in violation of MCL 768.21; MSA 28.1044, but rather that the "trial court erred by calling as its own expert a witness who was, in fact, a prosecution witness.” 413 Mich 940.
Respondent also argues that the guilty but mentally ill statute has no applicability in a juvenile proceeding. Because Judge Barsamian agreed with respondent on this point, we decline to review the question. Furthermore, the record supports the judge’s observation:
When a case comes to this court basically the verdict is does this child come within the jurisdic tion of the court. And we usually say it comes within the provisions of the Code. So we don’t go into all the other kinds of verdicts that might be handed down by an adult criminal court.
I think what I heard Referee Weberman say on that occasion, even though he might have verbalized it as guilty but mentally ill, I think what he said is that he found that the respondent was mentally ill. I don’t think there was a question about that. All the professionals said that this young man was mentally ill. But what he was saying was that even though he was mentally ill at the time he committed this crime or this offense, he did have the prerequisite [sic] intent.
And as we all know, while people may be mentally ill today, they are not mentally ill twenty-four hours a day. They can make wills and do many other things because mental illness is of such a nature that it comes and it goes. And in fact if I recollect correctly, it was indicated by the professional this child could act quite normally and not be detected as being severely mentally ill.
So basically what Referee Weberman was saying, yes, he’s mentally ill but at the time he committed this crime he had the intent. And I think that given [the] testimony [that] was presented to him that that was not an inappropriate finding on his part. That there was testimony beyond a reasonable doubt that all the elements of the offense with [sic] which this child was found guilty had been established. And I don’t see that I have to send it back to him for a new verdict. I having listened to the tape, I think all the evidence was there. I think, as the lower court has indicated, yes, respondent was mentally ill but he was sane at the time he committed the offense.
The referee did not err in taking jurisdiction in this case.
Respondent also argues that he was denied a fair hearing because he was not on notice of the possibility of a guilty but mentally ill verdict at the adjudicatory hearing and that the verdict constituted an impermissible compromise. Because we agree with Judge Barsamian that the referee’s decision to take jurisdiction of the minor did not actually amount to a statutory "verdict” of guilty but mentally ill, we need not address these issues.
Finally, respondent claims that the referee abused his discretion in committing respondent to the Department of Social Services without full inquiry into the grounds for disposition. Again, we defer to the well-reasoned ruling of Judge Barsamian and adopt it as our own:
I think what happened in this case was that through all the pretrial conferences and the reports, and in fact the hearing as it progressed through a variety — a number of days, I think that I would agree with the referee that he did not need to continue this matter, and there is no prerequisite in the law or the court rules that require that. He felt on that occasion that he had more than ample evidence in terms of what needed to be done here, and that’s what he did.
Now, I have to say, you know, you go into resources and all those issues about whether there was a compromise, et cetera. The reality is that because we committed this young man to the Michigan Department of Social Services does not mean he’s precluded from treatment for his mental problem. I think what the Department of Mental Health was saying, yes, this youngster has a problem and is mentally ill, but he needs to be treated, but we do not have the facilities that are physically secure to prevent him from escaping or leaving the premises, and so we do not have a physical plant with which to maintain this youngster.
However, what the referee found was that there are resources in the juvenile justice system by commitment to the Department that would enable this youngster to be securely detained as well as receive treatment for his mental condition, and it was on that basis that he then committed to the Department. So that having been found guilty he then made disposition which he felt was appropriate in light of the condition of this child, and also in light of the concern for public safety. Therefore,
I think that the information and the argument that you have made would not cause me to say that the referee acted inappropriately in this case. . . .
Affirmed.
M. J. Kelly, J., concurred. | [
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Beasley, J.
Defendant, Michael Ross McCord, was convicted by a jury of voluntary manslaughter, contrary to MCL 750.321; MSA 28.553, and felonious assault, contrary to MCL 750.82; MSA 28.277. He was sentenced to serve concurrent sentences of not less than seven nor more than fifteen years in prison on the manslaughter count and not less than two nor more than four years in prison on the felonious assault count. Defendant appeals as of right, raising two issues.
The convictions arise from the stabbing death of a college student by defendant on April 19, 1986, in Mt. Pleasant.
On appeal, defendant first claims that the trial court erred by admitting certain photographs of the decedent. During its case in chief, the prosecutor sought to introduce three photographs of the decedent as he appeared immediately prior to the autopsy. All three photographs were in color and blown up to the size of two by three feet. Defense counsel objected to the admission of the photographs on the grounds that they were cumulative to the testimony of the police officers and patholo gist who viewed and testified to the decedent’s wounds, and that they were more prejudicial than probative. The trial court overruled defendant’s objections and admitted the photographs, finding that they were material to the issue of defendant’s intent and were not being used for the purpose of appealing to the jury’s emotions so as to prevent deciding the case on the evidence. The court made the following comments:
Well, there are three elements. One, the photographs must be material, and they certainly are material and relevant. In either case they are. The witness has stated that they adequately represent what they propose to depict, namely the condition of the victim as he appeared to the officer at the time of his arrival at the scene, and some fourteen hours later at the autopsy. Thirdly, the photographs should not be used to inflame the jurors. They shouldn’t be of such a gruesome nature that you’re going to lack objectivity and base any conclusions simply on the picture itself without considering other aspects. In this case the officer has testified through his observations that the photographs tend to corroborate — the purpose of it is to corroborate the testimony of the witness, and this is perfectly okay. Even photographs showing the extent of the bruises or the wounds, and the fact that they may be gruesome and something that you wouldn’t ordinarily want to see doesn’t necessarily make these pictures inadmissible. Both of the crimes with which defendant is charged are intent crimes, and the court feels that the photographs certainly may assist the jury in that regard. It’s a close question, but we have here the statement that perhaps the pathologist may be in here to give testimony. I don’t know. He isn’t here. He may well use these photographs. But notwithstanding that I feel the witness can testify as to what he observed. The photographs are relevant. The photographs are not calculated to inflame the jury. The photographs adequately represent what they propose to depict, and they corroborate the testimony of the witness. Therefore, exhibits #5, #6 and #7 are admitted.
Officer Sudhoff testified that the photographs would aid him in explaining to the jury the nature and extent of the injuries. Subsequent to admission of the photographs into evidence, defense counsel did not object when the prosecutor asked the trial judge to permit him to mount the blown-up photographs on poster board.
The pathologist, Dr. Werner Spitz, testified and described various injuries the deceased had sustained apart from the stab wounds in the chest. His testimony disclosed five stab wounds, a slash to the nose, scratches on the stomach from a knife, and that the face of the deceased indicated punches in the mouth. The pathologist concluded that the victim had sustained two sets of injuries, those received in a fight and those received in a stabbing. He used the photographs to point out to the jury where the injuries he had described were actually located on the body and testified that the decedent did not run into the knife.
In closing argument, the prosecutor compared photographs of the deceased to show how his face looked before the stabbing, calling attention to the conditions of the face in light of the defense of self-defense. The prosecutor’s position was that the evidence showed no indication of self-defense.
Defendant argued that the photographs were more prejudicial than probative and, therefore, should have been excluded. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Admission of photographic evidence lies within the sound discretion of the trial court. In People v Eddington, the Supreme Court said:
In a criminal case, the burden is upon the people to prove every element of the crime charged. These are not nice pictures but they are not any more gruesome than some of the testimony by witnesses. The pictures showed the vie-, tims as they were found. The pictures depict the corpus delicti. The admission of such evidence is in the sound discretion of the trial judge.
Generally, the admission of photographic evidence is within the discretion of the trial court. The trial court should balance the concern claimed by the defendant that exposure to vivid and gruesome images of the victim will cause a juror to forget that the defendant may not be responsible for the outrage against the need to arrive at the truth of how and at whose hands the victim died. Photographs are not inadmissible merely because they are gruesome and shocking in details. In Michigan, we have applied a balancing test which requires that the probative value outweigh the possible prejudicial effect.
In this case, the trial court properly exercised its discretion in admitting the photographs, noting properly that defendant was charged with intent crimes and defendant had contended that he stabbed the victim in self-defense. In this context, the photographs were material to the issue of defendant’s intent and instructive to the jury regarding defendant’s claim of self-defense. The photographs in the instant case were taken prior to the autopsy and, although gruesome, merely depicted the nature, extent and location of the wounds inflicted by defendant on his unarmed victim. We do not find their admission inflammatory and an abuse of discretion.
Second, defendant claims that the trial court abused its discretion in sentencing him when it departed from the recommended sentencing guidelines and sentenced defendant to seven to fifteen years in prison on the voluntary manslaughter conviction. The trial judge properly considered and articulated on the record his reasons for imposing the sentence given. He specifically articulated the two factors which he believed dictated the sentence: the failure of defendant to depart from the scene and the viciousness of the attack.
Defendant also argues that the sentence imposed is excessive to the extent that it shocks the conscience. Our judicial conscience is not shocked. Affirmed.
This occurred on September 29, 1986, the fifth day of trial.
MRE 403.
387 Mich 551, 562-563; 198 NW2d 297 (1972); also see 29 Am Jur 2d, Evidence, § 787, pp 860-861.
Eddington, supra, p 562.
People v Bryant, 129 Mich App 574, 581; 342 NW2d 86 (1983).
People v Stewart, 126 Mich App 374, 377-378; 337 NW2d 68 (1983).
People v Turner, 17 Mich App 123, 130; 169 NW2d 330 (1969).
People v Sowders, 164 Mich App 36; 417 NW2d 78 (1987).
People v Coles, 417 Mich 523, 549; 339 NW2d 440 (1983).
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Per Curiam.
Defendants/cross-plaintiffs Shawn and Renee Reist, daughters of decedent from a prior marriage, appeal as of right from a grant of summary disposition entered in favor of defen dant/cross-defendant Linda Reist, wife of decedent, on May 27, 1986, by Ingham Circuit Judge Robert Holmes Bell.
The trial judge ruled that, under MCR 2.116(0(10), Shawn and Renee had failed to demonstrate any facts of an intentional killing by Linda Reist, which would have entitled them to life insurance proceeds from the death of Eric Reist pursuant to MCL 700.251(3); MSA 27.5251(3). We reverse.
This matter arises out of a dispute over the entitlement to various life insurance proceeds totaling $438,550. Linda Reist, wife of the deceased, was the designated beneficiary on three policies.
In early December, 1984, decedent suspected that his wife was having an affair with Tim Reid, the seventeen-year-old son of neighbors Jayanne and Pat Reid. Decedent installed a recording device on his home telephone to record incoming and outgoing telephone conversations. The recording device was installed without the knowledge or consent of Tim Reid or Linda Reist. Later, decedent’s suspicions were confirmed by listening to tapes of recorded conversations between his wife and Tim Reid. Tim Reid subsequently admitted to Sarasota, Florida, police detectives that he engaged in sexual relations with Linda Reist.
Between approximately December 8, 1984, and December 11, 1984, decedent appeared extremely distraught and troubled to three of his business associates. Decedent stated that he "feared for his life.” Eric Reist had listened to tape recordings of telephone conversations between his wife and Tim Reid where, according to decedent, the two had discussed "getting rid of him (Eric Reist)” over the Christmas holidays.
In mid-December, 1984, decedent approached Pat and Jayanne Reid concerning taped evidence of their son’s involvement with his wife. Later, Pat Reid approached Linda Reist and advised her that the affair could affect her financially and socially. Jayanne Reid acknowledged that she listened to tapes, but denied having heard any purported homicide plot, although she told police that decedent told her that he was afraid his wife was planning to kill him.
On December 26, 1984, the decedent and his wife boarded a plane to vacation in Sarasota, Florida. That day, they checked into room 805 in the Sarasota Hyatt Hotel. At approximately 11:10 p.m., guests on the eighth floor overheard a loud argument between a man and a woman coming from room 805. The argument concerned the woman having called another man the prior Tuesday. Within minutes after the argument, the front desk received phone calls from rooms 905, 705 and 605 that a man (decedent) had fallen from the eighth floor balcony. Almost ten minutes after the initial report, Linda Reist reported the incident to the hotel. The Sarasota police were summoned, the body and scene were photographed, and a statement was taken from Linda Reist.
The following morning, December 27, 1984, an autopsy was performed on decedent Eric Reist’s body. The cause of death was listed as multiple internal injuries and fractures due to a fall. The manner of death was listed as "undetermined.” The autopsy report revealed a large abrasion posterior to decedent’s left thigh.
Also that morning, Linda Reist left Sarasota for Michigan, leaving decedent’s body in the care of his two daughters. Later that day, the Sarasota Police Department received calls from the decedent’s co-workers and relatives advising that they suspected decedent was the victim of a homicide. The Sarasota police began investigating decedent’s death as a possible homicide.
Lansing police secured decedent’s business office at General Motors Corporation and seized several tapes of recorded telephone conversations, cash and other property. Linda Reist attempted to gain access to the office on the morning of December 28, 1984, but was denied entry. Lansing police later obtained a search warrant for the marital home, but found no other tapes. However, a safe in the garage was found to have already been opened by a locksmith hired by Linda Reist.
The investigation conducted by the Lansing Police Department determined that the tapes did not contain incriminating statements and that no homicide conspiracy existed. On January 6, 1985, the case was closed. However, the investigation revealed that Linda Reist repeatedly told Tim Reid that she wished her husband would die.
On October 30, the Sarasota Police Department completed its investigation and submitted its results to the Florida State Attorney’s office. The State Attorney’s office determined that there was insufficient evidence to pursue a criminal prosecution or to suggest the identity of the responsible party.
On September 25, 1985, plaintiff, Metropolitan Life Insurance Company, filed a complaint for interpleader in the Ingham Circuit Court. Plaintiff alleged that there existed a controversy between competing claimants as to proceeds of certain policies and that plaintiff was unable to ascertain which party was entitled to these funds. Named as defendants were Linda Reist; Linda’s minor daughter by decedent, Erin Reist; the decedent’s three daughters by his previous marriage, Ericka Meyers, Shawn Reist, and J. Renee Reist; decedent’s former spouse, Judith Operlander; and the per sonal representative of the estate, First of America Bank of Lansing. Answers to the complaint were filed. Additionally, a cross-claim was filed by defendants/cross-plaintiffs against Linda Reist which alleged that, based upon information and belief, Linda Reist feloniously and intentionally killed the decedent and, thus, pursuant to MCL 700.251; MSA 27.5251 any interest Linda Reist may have in the insurance proceeds has been severed.
On February 4, 1986, Linda Reist filed a motion for summary disposition as to the cross-claim pursuant to MCR 2.116(C)(8) and (10). Linda Reist alleged that defendants/cross-plaintiffs had failed to state a claim upon which relief could be granted and that there existed no genuine issue of material fact, and therefore she was entitled to judgment as a matter of law.
On May 6, 1986, oral argument was presented to Ingham Circuit Judge Robert Holmes Bell. Judge Bell granted Linda Reist’s motion for summary disposition under MCR 2.116(0(10), finding that there was no genuine issue of fact upon which a jury could conclude that decedent’s death was not accidental.
On June 17, 1986, Shawn and Renee Reist filed the present claim of appeal alleging that the trial court committed error in granting summary disposition in favor of Linda Reist.
The ultimate fact at issue was whether decedent’s death resulted from an intentional killing. At the hearing on the motion for summary disposition, the respective parties supported their arguments with affidavits. It follows that the ultimate issue of material fact turns upon the credibility of the affiants and, particularly, the credibility of Linda Reist herself. In addition, documentary evidence demonstrated decedent’s fear for his safety and Linda Reist’s motive, opportunity, and lack of credibility. We believe this was sufficient to show a genuine issue of material fact.
The threshold requirements of a claim premised on the relevant probate code section are that (1) the policyholder was killed, (2) the beneficiary committed the killing, and (3) the killing was felonious and intentional.
A motion for summary disposition brought under MCR 2.116(0(10), based on the lack of a genuine issue of material fact, tests whether there is factual support for the claim. In ruling on the motion, the trial court must consider the affidavits, pleadings, depositions, admissions and other documentary evidence submitted by the parties. MCR 2.116(G)(5). The opposing party must show that a genuine issue of fact exists. Giving the benefit of all reasonable doubt to the opposing party, the trial court must determine whether the kind of record that might be developed would leave open an issue upon which reasonable minds could differ. Weeks v Bd of Trustees, City of Detroit General Retirement System, 160 Mich App 81, 84; 408 NW2d 109 (1987). A reviewing court should be liberal in finding that a genuine issue of . material fact exists. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). A court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo, supra at 371.
The party opposing a motion for summary disposition has the burden of showing that a genuine issue of disputed fact exists. Fulton v Pontiac General Hospital, 160 Mich App 728, 735; 408 NW2d 536 (1987). The opposing party may not rest upon mere allegations or denials in the pleadings but must, by affidavit or other documentary evidence, set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4). Should the opposing party fail to make such a showing, summary disposition is appropriate. Fulton, supra at 375-376; Rizzo, supra at 372.
In the present case, defendants/cross-plaintiffs alleged that Linda Reist feloniously and intentionally killed decedent and therefore was not entitled to the insurance proceeds, pursuant to MCL 700.251; MSA 27.5251. At the time of Eric Reist’s death this section of the Revised Probate Code provided in relevant part:
(3) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who feloniously and intentionally kills or aids and abets the killing of the principal obligee or the individual upon whose life the policy is issued is not entitled to any benefit under the bond, policy, or other contractual arrangement, and it becomes payable as though the beneficiary predeceased the decedent.
The statute further provided:
(5) A final judgment of conviction of felonious and intentional killing or aiding and abetting therein is conclusive for purposes of this section. In the absence of a conviction of felonious and intentional killing or aiding and abetting the killing, the court may determine by a preponderance of evidence whether the killing or aiding and abetting the killing was felonious and intentional for purposes of this section.
At trial, it would be incumbent upon defendants/cross-plaintiifs to establish by a preponderance of the evidence that (1) the policyholder was killed, (2) the beneficiary committed the killing or aided and abetted in it, and (3) the killing was felonious and intentional. On a motion for summary disposition, however, defendants/cross-plain tiffs were merely required, through affidavits or other documentary evidence, to demonstrate some facts showing that there was a genuine issue for trial.
The Lansing and Sarasota police records provided evidence which, although insufficient to support a prosecution proving Linda Reist guilty beyond a reasonable doubt, demonstrated a genuine issue of fact for trial.
Investigating Officer Whitehead of the Sarasota Police Department observed that the physical evidence weighed against an inference that decedent had jumped forward from the balcony:
Writer, Tech. Casey, and Sgt. Quarmby then responded to room 705 to photograph teh [sic] bent rail on that balcony. Located on the rail was a lone hair and what appeared to be skin. On the edge of the slab beneath the rail was a loage [sic] amount of hair and skin which writer believes came from the abraision [sic] which was previously described and photographed on the posterior of the left thigh. This is significant because it indicates the decedent brushed past with his back to the balcony. This would preclude him jumping or falling forward from the balcony.
The hotel desk operator informed police that Linda Reist did not call for assistance until ten minutes after the incident was first reported. Linda Reist gave conflicting statements to the police concerning her husband’s death. At the scene, she reported that decedent was known to jump from balcony to balcony and that he apparently slipped and fell. She added that the couple had sex shortly before this happened. Later, Linda Reist admitted that she and decedent had engaged in an argument that prompted her to walk into another area of the hotel room such that decedent was out of her view. On April 13, 1985, Linda Reist again met with Sarasota Police Department investigators. This time she stated that decedent had threatened suicide and the couple had a physical struggle in which she chipped her tooth. The investigating officer noted that during this interview "she did change the story substantially.”
Linda Reist’s report of her husband’s balcony-jumping habits is contradicted by the affidavit of a close friend, Verlin Franks, who stated that decedent was terrified of heights. Also, several inconsistencies resulted from police interviews with Tim Reid. Linda Reist’s motion for summary disposition was supported solely by the strength of her own affidavit. Defendants/cross-plaintiffs submitted several affidavits of friends and relatives which contradicted material portions of the sworn testimony of Linda Reist.
It is well settled that where the truth of a material factual assertion of a moving party’s affidavit depends on the affiant’s credibility, there exists a genuine issue to be decided at a trial by the trier of fact and a motion for summary judgment cannot be granted. Brown v Pointer, 390 Mich 346, 354; 212 NW2d 201 (1973); Crossley v Allstate Ins Co, 139 Mich App 464, 468; 362 NW2d 760 (1984). Moreover, summary judgment is especially suspect where motive and intent are at issue, or where the credibility of a witness or deponent is crucial. Crossley, supra. In the instant case, the evidence is sufficient to raise a factual dispute as to the issues of motive, opportunity and Linda Reist’s credibility.
Thus, genuine issues of material fact have been demonstrated by defendants/cross-plaintiffs such that summary dismissal of the action was erroneous. Accordingly, we reverse the trial court’s May 27, 1986, order granting summary disposition in favor of defendant/cross-defendant Linda Reist and remand this case for trial on the merits.
Reversed and remanded. | [
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Per Curiam.
Defendant entered a conditional plea of guilty to carrying a concealed weapon, MCL 750.227; MSA 28.424, following the trial court’s denial of his motion to suppress evidence and this Court’s denial of his application for leave to appeal (Docket No. 94571). Sentenced to two years probation with thirty days in jail, defendant now appeals from the suppression ruling as of right. We affirm.
Defendant was one of three passengers in a car stopped at approximately 1:30 a.m. on Saturday, April 12, 1986, by Police Officer Henry Hartfelder. The driver of the vehicle was arrested for drunk driving. Neither the propriety of the traffic stop nor that arrest is challenged.
After arresting the driver, Officer Hartfelder learned that none of the three passengers had a valid driver’s license. According to Hartfelder, when he informed the passengers that the vehicle would have to be impounded, defendant asked how they were going to get home. Hartfelder told them that they could either walk or be transported to either a nearby all-night restaurant or to the police station to arrange and wait for transportation. The passengers chose to take a ride to a restaurant. Hartfelder then left them with backup Officer Mark Cole to be given a ride. The officers agreed that none of the passengers appeared armed or dangerous and all were free to leave the scene.
According to Officer Cole, he also reviewed the passengers’ options with them and they said they wanted to be taken to a nearby restaurant. Because of the late hour, the fact that the men had been drinking, and because he could not contain their movement in the patrol car, Cole told the passengers they would have to be patted down before entering his patrol car. None objected or left the scene. Defendant was the second passenger to be patted down. During the pat-down, Cole discovered a pistol in defendant’s overcoat pocket.
According to the police officers, none of the passengers ever indicated that he wanted to walk to a phone. The officers never suggested that the passengers had to ride with them; the ride was offered as a courtesy and for their safety. According to Officer Cole, the pat-down was consensual. According to defendant, on the other hand, the officers never asked him what he wanted to do and never offered him a ride. Instead, defendant planned to walk to an all-night gas station approximately one hundred yards away. He was unaware that he was going to be searched until he saw Cole pat down one of the other passengers. When he told Cole that he wanted to walk to the gas station the officer responded by conducting a nonconsensual pat-down.
Defendant contends that the pistol should have been suppressed as the product of an illegal pat- down under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). The people concede that under Terry the police did not have articulable suspicions of criminal activity or that defendant was armed, but maintain that defendant consented to the search. The trial court found that defendant chose to accept a ride from the police. Balancing the intrusiveness of the pat-down against the officer’s need to protect his own safety, the court ruled that under the instant circumstances— where the passengers had been drinking, the stop was made during the early morning hours, the offer of a ride was accepted, and the three passengers would be riding in the back seat of the police car — the pat-down was reasonable and thus not violative of defendant’s Fourth Amendment rights.
Courts in at least three states have considered factual situations similar to that presented in this case. In People v Scott, 16 Cal 3d 242; 546 P2d 327; 128 Cal Rptr 39 (1976), the defendant was stopped on suspicion of drunk driving. Rather than arrest him, the police offered him a ride. Before he was allowed in the patrol car, defendant was frisked and the police discovered a bag of marijuana. The California court held that a police officer who offers a person a ride cannot lawfully subject that person to a non-consensual pat-down search for weapons when the individual is not under arrest, and the officer has no duty to transport him and no reason to believe that he is armed and dangerous.
Two other courts, however, have reached the opposite conclusion. In People v Coleman, 24 NY2d 1005; 250 NE2d 237; 302 NYS2d 831 (1969), a police officer picked up a hitchhiker for the infraction of walking on a highway and offered him a ride. The New York Court of Appeals held that a search for weapons was a reasonable means for the officer to protect himself in the confined space of an automobile.
In Commonwealth v Rehmeyer, 349 Pa Super 176; 502 A2d 1332 (1985), the defendant was stopped on suspicion of drunk driving. After administering field sobriety tests, the officer who stopped the vehicle decided not to arrest the defendant. Instead, he suggested that the defendant either call his home and get a ride from someone in his family or accept a ride from the officer in the patrol car. The defendant accepted the opportunity to use the police car as a taxicab. However, before allowing him to enter the patrol car, the officer subjected him to a pat-down search for weapons. The Pennsylvania Superior Court, noting the potential danger to police officers in such situations, found the officer’s conduct reasonable and the fruits of the resulting search admissible in evidence.
A previous decision of this Court suggests that the better reasoning lies with the New York and Pennsylvania courts, rather than the California court. In People v Otto, 91 Mich App 444; 284 NW2d 273 (1979), a trooper warned the defendant against hitchhiking on a freeway and told him that he would transport him off the expressway. Before putting the defendant in the patrol car, the trooper conducted a pat-down search of the defendant and found a gun. This Court stated:
[W]e have no trouble in sustaining the subsequent pat-down as being reasonable under the circumstances. The alternate to the frisk would be to handcuff defendant but that in itself would be a greater intrusion than a pat-down. Frisks, when made for the officer’s own protection, are justified under both Terry and [Pennsylvania v] Mimms, [434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977)]. As the Terry court noted:
"Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.” 392 US at 23-24.
In Mimms, the Supreme Court noted that a significant number of killings of police officers occurred in connection with traffic stops. While the instant case is not the usual traffic stop where the officer on foot approaches the stopped vehicle, it is obvious that an officer whose hands are on the wheel of his own vehicle is an easy victim of an armed passenger sitting behind him. [91 Mich App 451-452.]
In the instant case, we do not believe that the limited intrusion created by the pat-down search for weapons was, on balance, an unreasonable search under the circumstances. The officers testified that while they do not automatically search everyone entering a police car while not under arrest — it was suggested that there would be an exception for an injured person being taken to a hospital for emergency treatment — they usually do so, particularly where, as here, they are dealing with persons who have been drinking, it is late at night or early in the morning, and particularly where, as here, an officer has no partner who might keep watch on the passengers while another officer attends to the driving. The Fourth Amendment was surely not intended to stand for the proposition that police officers must either abandon civilians on highways at night or transport them at the risk of personal safety, rather than transport them at reduced risk of personal safety by first subjecting them to a frisk for weapons.
Defendant cites People v Parham, 147 Mich App 358; 382 NW2d 786 (1985), in support of his position that this pat-down search was illegal. In Parham the defendant was subjected to a pat-down prior to performing certain field sobriety tests. This Court found the search unreasonable absent a suspicion that the defendant was armed. Parham is clearly distinguishable from the instant case, since it did not involve the transportation of the defendant in a patrol car. Considerations of safety in the confined space of an automobile where the officer’s attention is on driving rather than the person sitting behind him, central to the instant case, were wholly absent in Parham.
Finally, defendant urges that, because there was a twenty-four-hour gas station across the street from where the vehicle was stopped, he should have been allowed to go to the station to make his telephone call, rather than being subjected to a pat-down search preparatory to being transported to the restaurant. The trial court resolved the question of fact as to whether defendant had sought to exercise this option against the defendant and this Court will not disturb that determination. The trial court reasonably accepted the officer’s testimony that defendant had either requested or volunteered for the ride with the officer to the restaurant. Given that factual premise, the officer’s subsequent conduct was entirely reasonable and not in violation of the Fourth Amendment.
Affirmed. | [
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Per Curiam.
Plaintiff appeals as of right from an order granting defendants’ motion for summary disposition. MCR 2.116(C)(8). We affirm.
On May 25, 1982, plaintiff obtained a judgment lien on certain farm property pursuant to a judgment of divorce. The lien, described in the divorce judgment as a "judgment in the nature of a mortgage,” was to be subject to a first mortgage that plaintiff’s former husband, George Clark, was to give to defendant The Federal Land Bank of Saint Paul (bank) within sixty days. Plaintiffs lien was recorded on June 1, 1982.
On June 18, 1982, George Clark executed the mortgage to the bank for $320,000, and it was recorded three days later.
On February 15, 1983, George Clark conveyed the property to the Clarkstead Holstein Farm Partnership (partnership) by quitclaim deed, which was recorded the same date. The partnership consisted of George Clark and defendants John and Kathy Clark.
On October 25, 1985, the partnership and the bank entered into a work-out agreement due to George Clark’s default on the mortgage. Pursuant to the terms of the work-out agreement, and in consideration of personal releases on liability for the note executed by George Clark, the partnership members along with George Clark’s wife, Donna Clark, executed a quitclaim deed to the bank, which was recorded on October 30, 1985. The quitclaim deed stated that it was the intent of the parties that the mortgage would survive and not merge with the bank’s interest as mortgagee. The bank also reserved in the work-out agreement the right to foreclose its mortgage, and further stated in the release of liability form that the mortgage was not to be discharged. The parties then entered into a leasing arrangement for the property.
On November 1, 1985, the bank instituted foreclosure proceedings on the mortgage and purchased the property, obtaining a sheriffs deed in January, 1986.
Plaintiff brought this action to foreclose on her judgment lien and have the bank’s foreclosure adjudged invalid on the theory that the work-out agreement and release of liability extinguished the bank’s first mortgage. The defendants moved for summary disposition, which was granted.
i
Plaintiffs first claim of error is that the trial court erred by granting defendants’ motion for summary disposition because the release from personal liability that the bank gave to all of the Clarks extinguished the mortgage debt and discharged the mortgage. In support of that proposition, plaintiff relies principally on Ladue v Detroit & M R Co, 13 Mich 380; 87 Am Dec 759 (1865).
In Ladue, the Court determined that a mortgage must be secured by a debt in order to have legal effect. However, the Court, while indicating that a mortgage without a debt was not binding on the parties, stated:
The instrument can only take effect as a mortgage or incumbrance from the time when some debt or liability shall be created, or some binding contract is made, which is to be secured by it. Until this takes place, neither the land nor the parties, nor third persons, are bound by it. It constitutes, of itself, no binding contract. Either party may disregard or repudiate it at his pleasure. It is but a part of an arrangement, merely contemplated as probable, and which can only be rendered effectual by the future consent and further acts of the parties. It is but a kind of conditional proposition, neither binding, nor intended to bind, either of the parties, till subsequently assented to or adopted by both. [Ladue, supra, p 397.]
In this case, the release indicated that it did not discharge the debt, but only released the Clarks from personal liability. Therefore, the mortgage was still in place. Further, both parties assented to the agreement whereby the mortgage would not be discharged, which rendered the agreement binding. As evidenced by the work-out agreement, defendants reserved the right to look to the property for satisfaction of the debt through foreclosure of the mortgage. We do not find this result precluded by Ladue or the other cases plaintiff cites.
ii
Plaintiff next argues that the trial court erred by relying for its decision on cases dealing with the doctrine of merger of estates. She contends that the effect of discharge of the debt securing the mortgage does not involve merger of estates principles. However, as previously discussed, the bank did not discharge the debt but, rather, released the Clarks from personal liability thereon.
In Titus v Cavalier, 276 Mich 117; 267 NW 799 (1936), a man named Cavalier deeded property to Nieboer, who first mortgaged it to the plaintiff’s bank, then entered into a land contract arrangement with Cavalier. Cavalier mortgaged the property to Rose. Nieboer then deeded the property to Kidder, who quitclaimed it to plaintiff receiver. In holding that plaintiff’s lien had priority over Rose’s notwithstanding the fact that plaintiff had released Kidder from liability, the Court held:
Appellant’s argument that the bank’s mortgage has merged in its title from Kidder is inapplicable.
There is no doubt about the general rule that when the holder of a real estate mortgage becomes the owner of the fee, the former estate is merged in the latter. This rule is, however, subject to the exception that when it is to the interest of the mortgagee and is his intention to keep the mortgage alive, there is no merger, unless the rights of the mortgagor or third persons are affected thereby. 19 RCL p 484. This exception to the general rule has been considered and relief granted under it by this court in the following cases: Snyder v Snyder, 6 Mich 470 [1859]; Cooper v Bigly, 13 Mich 463 [1865]; Tower v Divine, 37 Mich 443 [1877]; Cook v Foster, 96 Mich 610 [55 NW 1019 (1893)]; Gibbs v Johnson, 104 Mich 120 [62 NW 145 (1895)]; Quick v Raymond, 116 Mich 15 [74 NW 189 (1898)]. In Cook v Foster, 96 Mich 610, 613, it was said:
"It is the well-established rule, in determining the question of merger, that the intent is the controlling consideration. If it be for the interest of him in whom the estates are united to keep the mortgage alive, the law will not imply an intent to merge.” Anderson v Thompson, 225 Mich 155, 159 [195 NW 689 (1923)].
Rose had notice of the Cavalier-Nieboer-Baftk transaction; he knew he was only getting a junior mortgage. He is not a third party in the sense referred to in the foregoing quotation and his rights were not affected by the bank’s apparent intention to keep the mortgage alive notwithstanding its release of Kidder. [Titus, supra, pp 120-121.]
In this case, the quitclaim deed executed by the Clarks to the bank manifested uneqivocally an intention that the mortgage not merge with the fee. Additionally, plaintiffs rights were not affected by the intention to keep the mortgage alive, for she knew her judgment lien was subject to a first mortgage pursuant to the judgment of divorce.
Accordingly, we affirm the trial court’s order granting defendants’ motion for summary disposition.
Affirmed.
The quitclaim deed contained the following clause:
It is the intention of the parties that the Grantors’ title conveyed by this deed and the Grantee’s interest as mortgagee . . . shall not merge and that the Grantee’s interest as Mortgagee under the aforesaid mortgage shall survive the execution and delivery of this deed and continue in full force and effect as to the rights of third parties. . . .
The release contained the following clause:
This release shall not operate as a discharge of the debt executed by said mortgage and shall not in any manner impair the lien of said mortgage upon the real estate covered thereby, nor impair the security held by the undersigned mortgagee.
We note that the pertinent documents were stipulated to be part of the pleadings for purposes of the summary disposition motion.
The work-out agreement provided in relevant part:
The parties acknowledge that flb may have to foreclose on its mortgage to extinguish the interest of Norma E. Clark in this property. | [
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] |
Per Curiam.
Respondent, Taylor Board of Education, appeals as of right from a determination of the Michigan Employment Relations Commission that the substitute teachers employed by the school system could be included in the same bargaining unit as the regular, full-time teachers represented by petitioner, Taylor Federation of Teachers, MFT, AFT, AFL-CIO.
On April 22, 1985, petitioner filed a petition for an election, seeking a certification election in which the substitute teachers would be able to vote on whether they were to be represented by petitioner. Following a hearing conducted on November 1, 1985, before a hearing officer, the merc panel held that substitutes who worked a specific number of days could vote to be represented. The group entitled to vote was described as follows:
All substitute teachers employed by the Taylor Board of Education on the employer’s substituted [sic] list during the payroll period immediately preceding the direction of election who have worked at least one day in 25% or more of the pay periods in both of the full school years preceding the direction of election.
Merc acknowledged it was departing from prior precedent, namely: Waterford School Dist, 12 MERC Lab Op 697 (1977), and Lansing School Dist, 13 MERC Lab Op 453 (1978). In both cases, merc had held that substitute teachers did not share the community of interests necessary to be represented by the same bargaining unit as regular, full-time teachers. However, in the instant case merc stated it felt that the factors relied upon in those cases should no longer be determinative.
Pursuant to MCL 423.9e; MSA 17.454(10.4), the task of determining an appropriate collective bargaining unit is left to merc. Such a determination involves two inquiries:
The first question is which individuals are "em ployees” within the policy of the Act; the next is what group within the class of employees shares a community of interests such that representation by a single bargaining agent will meet the statutory goal of "assuring] to employees the fullest freedom in exercising the rights guaranteed” by the Act. [Michigan Educational Support Personnel Ass’n v Southfield Public Schools, 148 Mich App 714, 716-717; 384 NW2d 768 (1985).]
Further, it is well settled that the determination of an appropriate unit is a finding of fact which will not be overturned by this Court if supported by competent, material, and substantial evidence. Id., p 717.
It is clear that the substitute teachers are public employees within the policy of the act. Waterford, supra, pp 701-702. Thus, the first inquiry has been met.
On appeal, respondent claims that merc’s conclusion that the substitutes share a community of interests with the full-time teachers was not supported by competent, material, and substantial evidence. We disagree. Merc made lengthy findings of fact, all of which are supported by the record. Testimony at the hearing revealed that the Taylor Board of Education maintains a list of approximately 125 substitutes. The substitutes apply for a position at the Taylor School District by submitting an application, their college transcript, and proof of a negative tuberculosis test. They are then placed on the substitute list. The personnel secretary of the board calls substitutes off this list every morning between 5:30 and 6:30 a.m. The substitute may refuse or accept the assignment. The large number of absences by the regular teachers results in practically every substitute being called every day.
In the 1984-85 school year, consisting of 180 days, fifty substitutes worked 1-45 days, thirty-one substitutes worked 46-91 days, twenty-four substitutes worked 92-136 days, and twenty worked 137-180 days. The length of the assignments vary. Richard Lininger, associate superintendent of personnel for the school district, testified that ninety-four percent of the assignments in the 1984-85 school year were for under three days. Only four of the substitutes were given assignments longer than sixty days. Of these, three, Alice Good, Kim Fields, and Ruth Winkler, testified at the hearing. Good testified that she taught fifth grade at Eurekadale Heights Elementary School from October 22, 1984, until the end of the school year. During this time, she prepared lesson plans, attended parent-teacher conferences, graded papers, graded report cards, and attended a teachers’ workshop on computers. Fields testified that she taught from October 11, 1984, until the end of the school year. During this time, she also drew up lesson plans, acquired supplies, attended parent-teacher conferences, graded papers, and passed and failed students. Winkler testified that she substituted 120 days in the 1984-85 school year. She also made lesson plans, attended parent-teacher conferences, made entries in the students’ permanent records, and passed and failed students.
At the end of the school year, all three witnesses received a letter reassuring them of a position as a substitute in the following year. However, Richard Lininger testified that the school district does not guarantee the substitutes teaching jobs, and the substitutes do not commit themselves either. The substitutes are free to have their names on the lists of other school districts and may have other employment. Lininger testified that the substitutes are not given a contract and receive no tenure. They receive no fringe benefits except that, in accordance with MCL 380.1236; MSA 15.41236, if they spend more than sixty days in one specific teaching assignment, they are granted leave time and other privileges granted to the regular teachers. Lininger testified that substitutes do not have to be certified, while regular teachers do, and that regular teachers are required to make lesson plans, while the substitutes are not. While his office keeps track of which substitutes refuse assignments when called, refusal is not held against the substitute. The substitutes can take their name off the list at any time. Lininger testified that, substitutes may specify which days they prefer to work and may designate the grades and subjects they prefer to teach. Lininger further testified that, while regular teachers have a probationary period and undergo formal evaluation, substitutes do not. Substitutes are paid per diem at a rate of $40 per day, twice a month, while regular teachers are paid on a contractual basis. Regular teachers have payroll deductions, while substitutes do not. In addition, regular teachers have a grievance procedure, while substitutes do not.
Upon cross-examination, Lininger admitted that petitioner represents a wide variety of employees, including nurses, diagnosticians, social workers, and adult education teachers who teach leisure classes. He admitted that substitutes are expected to perform as professionals and are expected to be competent. He has terminated a substitute because of incompetence.
As previously noted, merc’s decision first set forth lengthy findings of fact, all of which were supported by the previous testimony. Merc then noted that in its previous decisions it had identified a number of factors as relevant to the determination of whether substitutes were merely "casual” employees: 1) whether the employees work "on call” as opposed to a regular schedule; 2) whether the employees have a right to refuse assignments without penalty; 3) whether the employer guarantees the employees a minimum number of hours or days of work; 4) whether the substitutes themselves commit to being available for certain periods of time; 5) the duration of each substitute assignment; 6) whether the employees are permitted to work for another employer; and 7) differences or similarities between their wages and benefits and those of full-time employees.
Merc then stated:
Although in cases such as Waterford School District, and Jackson Public Schools, supra, we relied on these factors to find substitutes to be casual employees, we are now convinced these factors by themselves do not demonstrate that the employee has no substantial and continuing interest in the wages, hours, and working conditions of full-time employees. As the nlrb noted in Fresno Auto Auction, supra, and as we found in South-held Public Schools [19 MERC Lab Op 164 (1984), aff'd 148 Mich App 714 (1985)] the fact that an employee has the right to work intermittantly [sic] if he chooses may be outweighed by evidence that the employee in fact works regularly and does not often exercise his right to refuse work. Guarantees of work by the employer, or committments [sic] to work by the employee, may be factors indicating regular, as opposed to casual employment. However, such guarantees and committments [sic] are not necessarily a feature even of full-time employment and their absence does not necessarily signal casual status. This is also true of prohibitions against working for another employer. Differences in wages and benefits are an important factor to be considered in determining community of interest among groups of employees. However, we generally give this factor less weight when some of the employees are already represented by a collec tive bargaining representative and receive wages and benefits pursuant to a collective bargaining agreement.
With respect to the other traditional factors to be considered in determining community of interest, we have, as noted above, generally found professional employees whose primary job involves the instruction of students in a K-12 school district to share a community of interest based on similarities in job duties, education, and training. The record indicates that the substitutes who work only short-term assignments do not have the same responsibility for parent conferences, lesson plans, grades, etc. that generally fall on classroom teachers. However, a short-term substitute assignment may be more demanding in terms of other professional teaching skills than a long-term assignment. Although differences in hiring standards can be a factor in determining community of interest, the record shows here that in order to be placed on the substitute list a substitute must produce both references and a college transcript. No specific evidence was put into the record here regarding the factors of common supervision, integration of function, or day-to-day contact with bargaining unit members. We assume for purposes of this proceeding that these factors do not indicate a separate community of interest among substitutes.
In Southfield, supra, relied upon by the merc, this Court affirmed a merc decision which allowed substitute custodians to join the union representing full-time custodians. This Court found that the substitute custodians shared a sufficient community of interests with the regular custodians to be included in the union. This Court stated that the objective in designating bargaining units is to create the largest possible unit consistent with a community of interests of the membership. South-field, 148 Mich App 718-719. This Court noted that the regular custodians and substitute custodians performed essentially the same work in the same buildings under the same supervision and that work assignments were delegated in the same manner for both regular and substitute custodians. Id., p 719.
Our sole determination is whether merc’s decision is supported by competent, material, and substantial evidence. In light of the due deference which we must give merc’s decision, we find we must affirm. The substitute teachers, while not working the same number of hours as regular teachers, are expected to fill the shoes of the regular teachers in the teachers’ absence. The substitutes are expected to be professional in every manner, and, while in class, are expected to perform essentially the same jobs as regular teachers. Merc’s decision to allow the accretion of substitute teachers was supported by the testimony of the witnesses.
Respondent also claims that merc did not state its reasons for departure from precedent. Merc’s reason for departure is apparent throughout the opinion. In addition, merc stated that the factors relied upon in Waterford School Dist and Lansing School Dist should no longer be determinative. Thus, merc stated sufficient reasons for departure.
Finally, respondent claims that the formula propounded by merc to determine which substitutes can vote and which can not was not supported by competent, material, and substantial evidence. In light of the fact that neither party submitted a different formula, we feel the formula is an adequate one to distinguish the substitutes entitled to vote from the substitutes who are not entitled to vote.
Affirmed. | [
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Cynar, P.J.
Following a jury trial in Ingham Circuit Court, on April 26, 1985, defendant was convicted of first-degree felony murder, MCL 750.316; MSA 28.548, and second-degree murder, MCL 750.317; MSA 28.549. Defendant was sentenced to life imprisonment on both convictions. He appeals as of right raising eight issues. We affirm.__
Defendant’s convictions arose out of the October 25, 1984, shooting deaths of East Lansing Police Officer James S. Johnson and homemaker Connie J. Sonnenberg. Defendant and his codefendant, Patricia Louise Ware, were arrested for the shootings.
Ware had been employed as a housekeeper for William Lewis, a resident at a senior citizens apartment building located at 1801 North Hagadorn Road, Apartment 203 in East Lansing. Lewis’ car had been stolen earlier and was located by East Lansing Police Officer Dennis Aven in the parking lot of a shopping center near the apartment building. Officer Johnson went to Lewis’ apartment and was let in by the building manager, Lawrence Helmer. Ware was in the apartment and Johnson ordered her to sit down. While Johnson was attempting to use the telephone, Ware tried to leave three or four times. As she tried leaving, Johnson grabbed her arm. At that point, Helmer closed the apartment door to prevent her from leaving. Helmer then heard struggling inside the apartment. At that moment, Helmer left and went into apartment 207. As he was entering apartment 207, he heard a gunshot, as did another resident. He then looked out of the peephole of apartment 207 and saw Ware and another person running down the hall.
East Lansing Police dispatcher Greg Van Peenan answered Johnson’s call. Johnson told him that Ware was at the apartment and requested assistance. Van Peenan heard people struggling and then the telephone went dead.
Several people testified to seeing a woman matching Ware’s description and a man resembling defendant running down the hall of the apartment building, then outside, and down nearby Hart Street.
Johnson’s body was later discovered lying on the floor by Helmer and the police officers who had responded to Johnson’s earlier request for assistance.
A short time after the pair left the apartment building, they were seen running down Hart Street. Sonnenberg lived at 6071 Hart Street in Meridian Township. Sonnenberg was apparently talking on the telephone to a friend when she asked the friend to hold on while she checked a noise at the front door. The friend heard male and female voices and then the phone went dead.
Hart Street residents saw a black man come out of Sonnenberg’s home and get into her car. A black man and a white woman were also seen driving Sonnenberg’s car near the corner of Hagadorn Road and Birch Row where defendant and Ware were later arrested.
Sonnenberg’s children, Michael and Kristen, testified over defense counsel’s objection that they had seen their mother’s car at the end of their street. Upon arriving home, they discovered their mother just inside the front door of their home. Kristen testified that she, Kristen, ran outside screaming. A neighbor, Alicia Caceras, telephoned the police.
Brian McDaniel, an expert in canine tracking, testified that his dog followed a scent from the apartment building on Hagadorn to Sonnenberg’s home and then to her car where defendant and Ware were subsequently arrested.
Upon being arrested, defendant, while basically cooperative, shouted, "I didn’t hurt anybody, I didn’t kill anybody.” Ware was uncooperative and fought with the police. Ware was carrying Sonnenberg’s purse, which contained a handgun. The gun did not belong to Sonnenberg.
When defendant was booked, he gave his name as Rick Davis. Ware had introduced defendant to Lewis as Rick Davis.
Evidence was collected both from Lewis’ apartment and Sonnenberg’s house. A jacket with defendant’s hair on it was found in the apartment bathroom. In the jacket pocket, there were .22 caliber bullets, the type used in the shootings. Defendant’s fingerprints were found on a five-dollar bill and a package of cigarette papers that were also in the jacket pocket. Partial prints of defendant’s shoes were found in the bathroom of the apartment. Fingerprints were found on Lewis’ car matching those of Ware and defendant.
Ware had a powder burn below her waist. A bullet hole was discovered in the pocket of Ware’s pants. Defendant had lead residue on the waistband of his pants and on his underwear.
An autopsy was performed on both victims. A bullet was removed from each of their heads. Firearms expert David Townshend compared test shots with the bullets taken from the victims and concluded that they probably came from the same gun.
Before trial, on November 30, 1984, defendant moved for a change of venue based on the publicity that the case had received. A supplemental affidavit was filed on February 25, 1985, containing numerous newspaper articles. The court denied the motion in an order filed March 22, 1985. In its bench opinion, the court stated that it was obligated under the law to first try to impanel an impartial jury. On March 28, 1985, defendant moved again for a change of venue. The motion was denied once more. The jury voir dire process was long and the trial judge conducted in chambers individual voir dire of each prospective juror who had heard of the case. Defense counsel made a standing objection to seating any juror who had heard of the case.
After defendant was convicted for both shootings, he moved for a new trial claiming that his convictions were against the great weight of the evidence. The motion was denied in an order filed May 20, 1985. The instant appeal followed.
The first issue raised by defendant centers on whether the trial court erred in denying defendant’s motion for a change of venue. Defendant argues that he did not have an impartial jury because there was a pattern of strong community feeling against him due to the extensive and inflammatory publicity preceding his trial. We disagree.
Venue of a criminal case may be changed upon good cause shown by either party. MCL 762.7; MSA 28.850. A trial court’s determination on a motion for a change of venue is reviewed for an abuse of discretion. People v Lewis, 162 Mich App 558, 564; 413 NW2d 48 (1987); People v Prast (On Rehearing), 114 Mich App 469, 476; 319 NW2d 627 (1982). It is not an abuse of discretion to defer determination of a request for a change of venue until jury selection has been attempted in the original county; on the contrary, it is considered to be a preferable practice. Lewis, supra, pp 564-565.
The existence of pretrial publicity does not by itself require a change of venue. A change of venue is not necessary even though jurors have been exposed to adverse publicity and hold preconceived notions of guilt or innocence if they can lay aside their impressions or opinions and render a verdict based on the evidence presented in court. Irvin v Dowd, 366 US 717; 81 S Ct 1639; 6 L Ed 2d 751 (1961). The burden rests on the defendant to demonstrate the existence of actual prejudice or the presence of strong community feeling or a pattern of deep and bitter prejudice so as to render it probable that the jurors could not set aside their preconceived notions of guilt, notwithstanding their statements to the contrary. Sheppard v Maxwell, 384 US 333; 86 S Ct 1507; 16 L Ed 2d 600 (1966). The totality of the circumstances, including the content of news accounts and the voir dire examination transcript, should be evaluated on appeal in deciding whether a defendant was deprived of a fair and impartial trial due to local prejudice. People v Duby, 120 Mich App 241, 246-247; 327 NW2d 455 (1982).
In this case, our careful review of the voir dire proceedings and the newspaper articles convinces us that defendant did not demonstrate a pattern of strong community feeling or bitter prejudice against him which would have warranted a change of venue. Several of the articles made no reference to defendant or to the murders, but referred solely to the nature of the criminal justice system in general. The others were more concerned about Ware’s pretrial proceedings and trial, with mere reference of defendant as her codefendant. Arguably, the most prejudicial headline appeared to be, "Accused Cop Killer Wants Trial Moved From County.” However, the article made no conclusions as to defendant’s guilt. In fact, none of the articles made any such conclusions and mentioned only that defendant was accused or charged in the killings. In addition, the trial judge questioned in chambers each of the prospective jurors who had possibly heard of the case. We do not believe that the publicity was so extensive and inflammatory that the prospective jurors could not remain impartial. Therefore, defendant has not established error.
Next, defendant alleges error occurred when the trial judge failed to excuse two jurors for cause since they had previous knowledge of the case through pretrial publicity. Defendant argues that jurors Jackson and Sklapsky should have been excused for cause because of their exposure to pretrial publicity. Defendant used all of his peremptory challenges in excusing the two jurors since the court refused to excuse them for cause.
Knowledge of publicity concerning a criminal case does not automatically render a juror unfit to serve unless the juror has a preconceived opinion regarding the defendant’s guilt or innocence which cannot be put aside. MCL 768.10; MSA 28.1033; People v Davis, 122 Mich App 597, 602; 333 NW2d 99 (1983); People v Dixon, 84 Mich App 675, 680; 270 NW2d 488 (1978), lv den 405 Mich 837 (1979). The important inquiry in this area is whether both jurors believed that they could try the case impartially, even if they had previously formed opinions from exposure to publicity. People v Schneider, 309 Mich 158, 164; 14 NW2d 819 (1944).
In this case, both jurors specifically responded that they could base their decisions strictly on the evidence. Thus, we find no abuse of discretion in the trial court’s decision not to excuse the jurors for cause. See also People v Partee, 130 Mich App 119, 127; 342 NW2d 903 (1983).
Next, defendant claims that the court erred in refusing defendant’s request for a continuance when one juror became ill and could not attend trial. On the second day of trial, juror Morgan was excused from the jury because he had been admitted to the hospital with respiratory problems which required the care of a specialist. Defense counsel sought to adjourn the case because Morgan was one of three black jurors. The judge responded that defendant had a jury of his peers and that he could not justify the loss of time involved in waiting until Morgan became well.
The grant or denial of a continuance rests within the discretion of the trial court. Reversal is mandated only upon an abuse of discretion resulting in prejudice to the accused. People v Bell, 155 Mich App 408, 412-413; 399 NW2d 542 (1986). In reviewing this question, this Court must consider (1) whether defendant is asserting a constitutional right, (2) whether there is a legitimate reason for asserting the right, (3) whether defendant is guilty of negligence, (4) whether prior adjournments were at defendant’s behest, and (5) whether prejudice will result to defendant. People v Wilson, 397 Mich 76, 81; 243 NW2d 257 (1976), reh den 397 Mich 962 (1976).
In this case, defendant was asserting his constitutional right to a jury trial. However, we do not find that the trial court abused its discretion in denying defendant’s request for a continuance. MCL 768.18; MSA 28.1041 provides, in relevant part:
Any judge of a court of record in this state about to try a felony case which is likely to be protracted, may order a jury impaneled of not to exceed 14 members, who shall have the same qualifications and shall be impaneled in the same manner as is, or may be, provided by law for impaneling juries in such courts. All of those jurors shall sit and hear the cause. Should any condition arise during the trial of the cause which in the opinion of the trial court justifies the excusal of any of the jurors so impaneled from further service, he may do so and the trial shall proceed, unless the number of jurors be reduced to less than 12.
The statute is intended to avoid mistrials in cases where one or more of the original jurors is necessarily discharged during the trial due to personal disability or legal disqualification. People v Van Camp, 356 Mich 593, 605-606; 97 NW2d 726 (1959). Under the statute, broad discretion is given to the trial judge to empanel a jury of not less than twelve but not more than fourteen, with further discretion to reduce the number to twelve. People v Bell, 74 Mich App 270, 274; 253 NW2d 726 (1977).
In this case, the trial court’s decision to dismiss juror Morgan was not arbitrary or an abuse of discretion. Juror Morgan was seriously ill and could not continue with the trial. Defendant has not established that he suffered any prejudice from the dismissal of this juror.
Defendant also complains that the court erred by permitting Sonnenberg’s children to testify regarding the discovery of their slain mother. He claims that this evidence was more prejudicial than probative. The prosecutor sought admission of the children’s testimony to show the jury "how close in time and space all of this was.” The trial court agreed with the prosecutor. We concur in the trial court’s ruling.
Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. MRE 401. Relevant evidence may nonetheless be excluded from trial "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” MRE 403.
In Scalfani v Peter S Cusimano, Inc, 130 Mich App 728, 735-736; 344 NW2d 347 (1983), this Court defined "unfair prejudice”:
"Unfair prejudice” does not mean "damaging.” Bradbury v Ford Motor Co, 123 Mich App 179, 185; 333 NW2d 214 (1983). Any relevant testimony will be damaging to some extent. We believe that the notion of "unfair prejudice” encompasses two concepts. First, the idea of prejudice denotes a situation in which there exists a danger that marginally probative evidence will be given undue or pre-emptive weight by the jury. In other words, where a probability exists that evidence which is minimally damaging in logic will be weighed by the jurors substantially out of proportion to its logically damaging effect, a situation arises in which the danger of "prejudice” exists. Second, the idea of unfairness embodies the further proposition that it would be inequitable to allow the proponent of the evidence to use it. Where a substantial danger of prejudice exists from the admission of particular evidence, unfairness will usually, but not invariably, exist. Unfairness might not exist where, for instance, the critical evidence supporting a party’s position on a key issue raises the danger of prejudice within the meaning of MRE 403 as we have defined this term but the proponent of this evidence has no less prejudicial means by which the substance of this evidence can be admitted.
The children testified about getting off the school bus near the apartment building on Hagadorn and going to their home in a matter of minutes. The boy stated that it took three to four minutes to walk home. This testimony was probative in showing the time it took to travel from the apartment building in East Lansing to Sonnenberg’s home on Hart Street and the closeness, both in time and space, of the two crimes. We conclude that the testimony was not unfairly prejudicial since the children’s testimony in no way affected the jury to the point that the jury’s attention was diverted from the evidence and an objective appraisal of defendant’s guilt or innocence. People v James Robinson, 417 Mich 661, 664-665; 340 NW2d 631 (1983).
In his fifth claim of error, defendant alleges that the prosecutor intentionally coerced defense counsel to object to inadmissible hearsay, thereby denying defendant a fair trial. We find no merit to this claim.
During the investigation of the case, the police conducted a residue test on defendant’s hands to determine whether he had recently fired a gun. The test was never completed because the type of gun used in the shootings would not have rendered any results. The prosecutor attempted to question several officers as to why the test was never completed. Defense counsel’s objections on the basis of hearsay were repeatedly sustained by the trial court.
The test of whether prosecutorial misconduct requires reversal is whether the defendant was denied a fair and impartial trial. People v Williams, 162 Mich App 542, 548; 414 NW2d 139 (1987). Here, the prosecutor did ask questions calling for hearsay. The hearsay was not admitted. However, once a proper foundation was laid, the prosecutor received an answer to his question. The exchange that took place was part of the adversary system. We find that defendant was not denied a fair and impartial trial. The trial court advised the jury that both counsel would object and that the court would rule on these objections. The jury was not to concern itself with the objections and rulings or reflect badly on either party. Thus, we find no error. See People v Philip Drake, 142 Mich App 357, 360-361; 370 NW2d 355 (1985).
Defendant also claims that his convictions were against the great weight of the evidence since the evidence did not show beyond a reasonable doubt that defendant either killed the victims or assisted Ware in the killings.
The question of whether a conviction is against the great weight of the evidence generally involves issues of credibility or circumstantial evidence. People v McCumby, 130 Mich App 710, 717; 344 NW2d 338 (1983), lv den 419 Mich 911 (1984). In reviewing this issue on appeal, the Court looks to whether there was an abuse of discretion in denying the motion for a new trial rather than to resolving credibility issues anew. People v Atkins, 397 Mich 163, 172; 243 NW2d 292 (1976). An abuse of discretion will be found only where the trial court’s denial of the motion was manifestly against the clear weight of the evidence. People v Ross, 145 Mich App 483, 494; 378 NW2d 517 (1985).
In this case, there was no abuse of discretion. The evidence overwhelmingly established defendant’s guilt as to his involvement in these killings. There were several pieces of physical evidence, including defendant’s fingerprints, shoe prints, and clothing with lead residue. In addition, several eyewitnesses saw Ware and a man matching defendant’s description at the apartment building and Sonnenberg’s house. Moreover, defendant was found pushing Sonnenberg’s car. All of this evidence indicates that the verdict was not against the great weight of the evidence.
Defendant also claims that the trial court erred in instructing the jury on the element of causation. There was no objection by defense counsel to the instructions as issued. In the absence of an objection, alleged errors in jury instructions are deemed waived unless a miscarriage of justice results. People v Amos, 163 Mich App 50, 55; 414 NW2d 147 (1987). A miscarriage of justice occurs when the erroneous or omitted instructions pertain to a basic and controlling issue in the case. People v Sherman Hall, 77 Mich App 456, 462; 258 NW2d 517 (1977), lv den 402 Mich 909 (1978); People v Lamar, 153 Mich App 127, 136; 395 NW2d 262 (1986). Even though jury instructions are somewhat imperfect, there is no error if they fairly presented to the jury the issues to be tried and sufficiently protected the rights of the defendant. People v Bender, 124 Mich App 571, 574-575; 335 NW2d 85 (1983). We see no miscarriage of justice in the instructions that were issued. Our review of the instructions as a whole, People v Barnett, 163 Mich App 331, 337; 414 NW2d 378 (1987), convinces us that no error took place.
In People v Reed, 393 Mich 342, 349-350; 224 NW2d 867 (1975), cert den 422 US 1044, 1048; 95 S Ct 2660, 2665; 45 L Ed 2d 696, 701 (1975), our Supreme Court stated that the instructions to the jury must include all elements of the crime charged and must not exclude from jury consideration material issues, defenses or theories if there is evidence to support them.
In this case, the complained-of portion of the instructions reads as follows:
Second, that his death was caused by the defendant; that is, that Officer James Johnson died as a result of a gunshot wound to the head.
The court gave a similar instruction for the charge of second-degree murder of Johnson and for both the felony-murder and second-degree murder charges for Sonnenberg. Each time the court followed with "if you find that the death was caused by the defendant . . . .” The court followed the standard instructions to the letter. See CJI 16:2:01. The jury was also provided with a copy of all the instructions. Contrary to defendant’s claim, the trial court did not remove the element of causa tion from the jury. Defendant’s reliance on People v Allensworth, 401 Mich 67; 257 NW2d 81 (1977), cert den 435 US 933 (1978), is misplaced. In Allensworth, the Supreme Court reversed the defendant’s conviction for felony murder because the trial judge had removed the element of the felony and the element of death from the jury’s consideration. No such error took place in our case.
Finally, defendant claims that he was denied a fair trial when the prosecution, through testimony of a police officer, revealed that defendant had identified himself by a different name when he was arrested. Evidence of a defendant’s use of an alias is admissible to show his identity. People v Mauch, 23 Mich App 723, 727; 179 NW2d 184 (1970), lv den 384 Mich 765 (1970). Here, evidence of defendant’s use of an alias was properly introduced since identification of the defendant was at issue because he had a fingerprint card with the name of Rick Davis and because he had been introduced to Lewis as Rick Davis.
Additionally, it was not error for Officer Huntley to testify that Ware had killed two people since defense counsel’s theory throughout the trial was that Ware had been the killer. We recognize the general rule that prosecutors and police witnesses have a special duty not to venture into forbidden areas of testimony which may prejudice a defendant’s case. People v O’Brien, 113 Mich App 183, 209; 317 NW2d 570 (1982). However, in this case we find no prejudice resulting from these remarks. Defendant has failed to establish error. His convictions are affirmed.
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WILDER, P.J.
Defendant Flagstar Bank, FSB, appeals by leave granted an August 27, 2011, judgment that established that the construction lien of C. D. Barnes Associates, Inc., was valid for its full amount and had priority over Flagstar’s mortgage interest. We affirm the construction lien judgment in favor of Barnes, affirm in part and reverse in part the award of attorney fees to Barnes, and remand this case.
I. BASIC FACTS
This action arises out of a failed construction project undertaken by defendant Star Heaven, L.L.C., for which Flagstar provided mortgage financing and Barnes served as the general contractor.
The pertinent facts are largely undisputed. In February 2005, Star Heaven purchased a partially completed apartment project in Grand Haven. At the time of acquisition, the property consisted of 19 buildings, each containing, or planned to contain, 10 apartment units of varying sizes, along with a pool and a clubhouse, all in different stages of completion.
After Star Heaven acquired the site, it began to market the project as a “high-end condominium project” and eventually changed the name to “Grand Haven Club.” In July 2005, Star Heaven hired Barnes to finish construction of the 19 buildings on the site and perform upgrades to some of the existing units and structures consistent with the new vision for the project. Barnes submitted a fixed-price contract to Star Heaven for the work to be performed, but because of uncertainty about the configuration of the units to be constructed as the project progressed, Barnes and Star Heaven instead entered into a time and materials agreement under which Barnes was to submit monthly invoices with supporting documentation to Star Heaven for work performed at the site and Star Heaven was to pay each application for payment within 30 days of its receipt.
Barnes performed its first physical improvement to the property for Star Heaven on or about August 10, 2005. On October 4, 2005, Star Heaven filed a notice of commencement as described by MCL 570.1108, which is § 108 of the Construction Lien Act, MCL 570.1101 et seq.
On May 2, 2006, at Star Heaven’s request, Barnes executed a sworn statement that represented that, as of that date, the subject property was “free from claims of construction liens.” On May 16, 2006, Star Heaven recorded the master deed for the new condominium project. Shortly thereafter, Flagstar’s loans to Star Heaven closed. Flagstar recorded its mortgage on May 23, 2006.
In May and October 2007, Star Heaven filed amended master deeds for the project, which changed the name of the condominium to “Grand Haven Club,” amended the total acreage included in the property, redesignated the property into Units 1 to 40 and added Units 41 to 60 to the project.
During the course of the project, Barnes submitted 27 applications for payment to Star Heaven, which totaled approximately $3.11 million. Star Heaven paid the first 20 invoices, leaving 7 invoices totaling $360,909.11 unpaid. Before ceasing work for nonpayment, Barnes completely enclosed all 19 buildings, with two of the buildings achieving “occupancy” status, and another 11 or 12 of the buildings being completed to “white box[]” condition, such that each unit in each building was complete with all mechanical, electrical, and plumbing and was “roughed-in” with drywall. Star Heaven never expressed any concerns with the work that was performed at the site; the explanation for late or slow payments was always an inability to pay.
Barnes last provided labor and materials to the site on March 5, 2008. On May 8, 2008, Barnes recorded nine separate claims of lien, in the amount of $360,909.11. Six of these claims of lien referred to particular individual unit numbers within the project. The three remaining claims were filed against the overall project. Each of the three liens filed against the project referred to the last day on which Barnes provided any work to the “overall project,” and each used a metes and bounds description encompassing the entire property set forth in the 2005 notice of commencement; they did not refer to the dates on which labor or materials were provided to any individual condominium unit within the project.
On December 31, 2008, Star Heaven assigned all of its interests in the property to David Findling, for the purpose of liquidating the assets and distributing the proceeds to creditors according to applicable statutes.
On May 8, 2009, Barnes filed the instant complaint, seeking to foreclose on its claims of lien under the Construction Lien Act and alleging claims of breach of contract and unjust enrichment against Star Heaven and Findling. Flagstar contested the priority of Barnes’s construction lien over its mortgage.
On December 24, 2009, a default was entered against Star Heaven. Thereafter, on December 28, 2009, Barnes moved for partial summary disposition on the issue of the priority of its lien over the Flagstar mortgage. Barnes argued that because there was no issue of material fact that Barnes’s first day of actual physical improvement to the property predated the recording of Flagstar’s mortgage, its liens had priority over the Flagstar mortgage. Barnes also asserted in support of its motion that, in response to discovery requests, Flagstar disclosed no facts and produced no documents contesting the priority of the construction lien.
Flagstar argued that summary disposition was premature because discovery was not set to close until April 23, 2010, and additional discovery stood a fair chance of uncovering evidence to challenge the priority of Barnes’s lien over the mortgage. Flagstar explained that its loan officer who oversaw the closing of the loan between Flagstar and Star Heaven was no longer with the company and consequently was not available to provide the details of the circumstances surrounding the closing of the loan. Flagstar further stated that the documents supporting the closing of the loan had moved several times over the 3V2 years since the loan’s closing, “which has made securing documentation to support that obligation difficult.” Flagstar assured the trial court that it would continue to work to locate additional information.
On January 18, 2010, the trial court held a hearing on Barnes’s motion for summary disposition, during which the parties reiterated the positions set forth in their briefs. Barnes asserted the priority of its lien on the basis of the facts before the trial court, and it argued that under the circumstances, and considering the length of time it took to get all parties properly served, Flagstar had more than sufficient time to conduct discovery. Flagstar acknowledged that the evidence submitted suggested that Barnes’s construction lien could have priority, but it also asserted that this view was the result of an incomplete picture because “it is reasonable to believe that additional documentation exists that supports Flagstar’s position that a subordination agreement may have been executed at the time of the closing of this loan.” Counsel for Flagstar admit ted that he had not been able to “track . . . down” the loan officer who closed the loan or locate what he believed to be the complete documentation relating to the closing of the loan. Counsel explained that there were “two factors that suggest that [a subordination] agreement may exist”:
First of all, it’s an eight-million-dollar construction loan. This loan would have been from the beginning very well documented. There would have been a lot of safeguards in place to ensure that any lien claimants would have subordinated their rights prior to the closing of the loan and especially in light of the Notice of Commencement which had been recorded months prior. We have not found yet, and we’ll admit that to the Court, a subordination agreement. It is our belief, however, that it would be reasonable in this circumstance to think that such an agreement exists.
The second factor that suggests that such an agreement exists is the title work. ... The title commitment we received from the title company had as a requirement a release of all potential liens from potential lien claimants who may have done work prior to the closing of the loan. That requirement was in place on May 10th of 2006. Two weeks later, when that loan closed, that requirement was, was removed by the title company and there is no exception to that requirement in the title commitment. This suggests that something was provided to the title company which satisfied their requirement of a document that would have subordinated or released the potential lien claims that were known to be out there at that time.
Flagstar asked the court to deny Barnes’s motion and allow it until the end of discovery (which was approximately three months away) “to just get to the bottom of what happened” to see if there was a subordination agreement or, alternatively, take the motion under advisement and afford it some defined period, such as six to eight weeks, to continue its efforts to unearth evidence of such an agreement.
At the close of the hearing, the trial court ruled from the bench as follows:
[Flagstar talks] about the discovery period, but, actually, the discovery is so that the parties can find out from each other what they have, and [Flagstar is] trying to delay discovery so [it] can find out what [it has itself] and not from somebody else.
I’m going to grant [Barnes’s] motion, but if [Flagstar] find[s] a subordination agreement or what [it] think[s] is a copy of the subordination agreement, [it has] 30 days in which to file a motion to set aside this order, until February 18th [2010],
The trial court entered an order effectuating this ruling on February 9, 2010.
While the instant action was pending, a separate action was also pending in the Ottawa Circuit Court before a different trial judge, Judge Edward Post. This other action was brought by Findling to liquidate the property for the benefit of Star Heaven’s creditors. As the parties explained to the trial court in the instant action, the sale of the property was proceeding as part of that separate action and that sale was expected to close in March 2009. The parties and the trial court agreed, therefore, that the instant action was solely for the purpose of determining the priority and amount of valid liens to be asserted against the proceeds of that sale.
Flagstar later moved to modify, amend, or vacate the order granting Barnes’s motion for summary disposition. Flagstar filed its motion under MCR 2.612 (as a motion for relief from judgment), under MCR 2.613 (as a request to “correct” the court’s prior order), and under MCR 2.116(C)(10) and (I)(2) (as a motion for summary disposition of Barnes’s claims). Flagstar as serted that the May 2, 2006, sworn statement, in which Barnes represented that the property was free of construction liens as of that date, barred Barnes from asserting that its lien had priority over Flagstar’s mortgage. Flagstar also claimed that the sworn statement was defective because, rather than state that the property was free from “the possibility of construction liens” as required by MCL 570.1110(4) of the Construction Lien Act, the sworn statement provided only that the property was “free from construction liens.” Flag-star further asserted that Barnes’s claims of lien were invalid because they referred to the metes and bounds description for the entire property and not to the individual condominium units to which materials or labor or both were supplied. Last, Flagstar maintained that the liens on the entire property were invalid because Barnes had provided work and materials only to one particular condominium unit within 90 days of recording its claims of lien.
Barnes opposed Flagstar’s motion, asserting that Flagstar’s motion was “essentially a motion for reconsideration” and that it did not present any new evidence for, or any legal basis requiring, reversal of the trial court’s prior decision. Barnes argued that its May 2, 2006, sworn statement did not alter the priority of its lien over the mortgage because the sworn statement was not a lien waiver and did not extinguish lien rights under the Construction Lien Act. Barnes averred that if Flagstar had wanted a lien waiver, it could have requested one pursuant to the Construction Lien Act. Additionally, Barnes asserted that it was permitted to use the metes and bounds legal description set forth in the notice of commencement in its claims of lien, and it denied that Barnes’s lien was rendered invalid because it did not refer to individual condominiums units within the project. Finally, Barnes argued that its claims of lien were timely filed because they were filed well within 90 days of the last furnishing of labor and materials for improvements to the project as contracted for by Star Heaven.
While Flagstar’s motion was pending, Barnes moved for entry of a foreclosure judgment, asking the trial court to enter a judgment in its favor against the property in the amount of $360,909.11, together with its costs, attorney fees, and other relief allowed under the Construction Lien Act.
After conducting a hearing on June 11, 2010, the trial court issued an opinion and order granting in part and denying in part Barnes’s motion for entry of judgment and denying Flagstar’s motion to modify, amend, or vacate its prior order granting partial summary disposition with respect to priority. The trial court noted that the sworn statement did not constitute newly discovered evidence as required by MCL 2.612(C)(1)(b), making Flagstar’s reliance on this court rule misplaced. Additionally, the trial court held that MCR 2.613 likewise was inapplicable “because Flagstar did not provide the sworn statement as evidence or present the arguments that it now submits in its first brief in opposition to [Barnes’s] motion for partial summary disposition.” As a result, the trial court concluded that Flagstar’s motion was in essence a motion for reconsideration under MCR 2.119(F). In this context, the trial court proceeded to consider and reject each of Flagstar’s challenges to the validity of Barnes’s lien.
First, regarding the effect of the May 2, 2006, sworn statement, the trial court reasoned that a sworn statement is not a waiver of construction liens and that
if Flagstar wanted a waiver of all current and future claims, it could have asked for one. In fact, in light of Flagstar’s original request for more “discovery” to find a subordina tion agreement in its files, it appears that Flagstar would not ordinarily rely on a sworn statement to assure it first priority.
The trial court also determined that the sworn statement substantially complied with the Construction Lien Act, despite the fact that it failed to exactly follow the statutory language that “the property is free from.. . the possibility of construction liens.” MCL 570.1110(4).
Next, the trial court rejected the assertion that Barnes’s lien was invalid because it referred to the metes and bounds description of the property rather than the unit descriptions as allegedly required by the Condominium Act, MCL 559.101 et seq. The trial court reasoned that MCL 570.1107 and MCL 570.1108 of the Construction Lien Act allowed for the use of the metes and bounds description and that the Condominium Act did not alter this.
The trial court likewise rejected Flagstar’s assertion that Barnes’s lien was not timely filed or that Barnes was required to file individual liens for each condominium unit to which work was furnished:
Here, Star Heaven did not update its notice of commencement when it converted the project to condominiums and filed its master deed. Instead, it offered the entire property as security for the contractors’ work. Thus, neither law nor equity compels this Court to reform the scope of the lien to attach only to the individual units. Accordingly, it is proper to attach the entire amount of [Barnes’s] lien to the Assignee’s interest with priority over Flagstar’s interest.
With respect to the 90-day limitations period, ... it is undisputed that [Barnes] provided an “improvement” to the Property. There is no genuine issue of material fact that [Barnes] did so pursuant to a contract, of whatever nature. There is no dispute that [Barnes] filed its claim of lien within 90 days of furnishing some labor or material to some part of the property. And as discussed above, the claim of lien properly referenced the metes and bounds description. Thus, if this case did not involve condominium units, based on the plain language of the statute, there would be no question that [Barnes] timely filed its construction lien. And because the lien attaches to the entire property in the notice of commencement, it does not change in this case. [Citations omitted.]
Having concluded that the full amount of Barnes’s lien was valid, that the lien had priority over Flagstar’s mortgage, and that the lien attached to Star Heaven’s interest in the property (as then held by Findling as assignee), the trial court nevertheless determined that, because of the action pending before Judge Post, it lacked the authority to grant a judgment of foreclosure. Therefore, the trial court denied Barnes’s motion for entry of a judgment of foreclosure.
Following entry of the trial court’s order, Barnes moved for attorney fees under § 118(2) of the Construction Lien Act, MCL 570.1118(2), and sanctions under MCR 2.114 and MCR 2.625. Barnes stated that it had incurred attorney fees through July 29, 2010, in an amount exceeding $56,000. Additionally, Barnes observed that Flagstar had failed to disclose during discovery that it discharged its mortgage on March 23, 2010, depriving it of any interest in the property thereafter and that it had continued to argue that its now-discharged mortgage had priority over Barnes’s lien. Barnes asserted that this position was frivolous and devoid of legal merit, thereby entitling it to sanctions.
Flagstar opposed Barnes’s request for attorney fees and sanctions on the basis that an award of attorney fees was discretionary, and not mandatory, under the Construction Lien Act and that it “had a right to defend this $360,000.00 lien claim recorded two years after the closing of the Flagstar mortgage. It had a right to receive and review [Barnes’s] ‘proof of work done, the amounts claimed, and take [Barnes’s] deposition.” Flagstar also noted the novelty of the issues, which it described as “on the cutting edge of construction lien law right now.” Because its defense of the action was justified, Flagstar urged the court to decline to award Barnes attorney fees. Flagstar further requested that if the trial court determined that an award of fees was appropriate, it require Barnes to produce itemized billings of the work performed in order to permit the court to properly evaluate the reasonableness of the fees claimed.
With regard to the request for sanctions, Flagstar explained that it was required to discharge its mortgage so that the property could be sold in the case brought by Findling and that its right to its appropriate share of the sale proceeds because of its mortgage was preserved by Judge Post in that action. Further, Flagstar asserted that Barnes never requested information through discovery that would have included the only very recent discharge of the mortgage.
After conducting a hearing on Barnes’s motion for fees and sanctions, the trial court directed Barnes to provide more detailed invoices related to its requested attorney fees and costs. Barnes did so, Flagstar timely filed objections, and Barnes responded to those objections. On August 26, 2010, the trial court issued its opinion granting Barnes $32,460 in attorney fees but denying sanctions. The trial court found that Flagstar had unreasonably disputed the priority of Barnes’s lien after Flagstar failed to find a subordination agreement by the February 18, 2010, deadline imposed by the court. The trial court also concluded that Flagstar’s subsequent motion to modify, amend, or vacate the court’s order granting Barnes’s motion for summary disposition “raised no issue that could not have been raised in the original response in opposition to summary disposition.” Therefore, the trial court awarded Barnes reasonable attorney fees incurred after February 18, 2010, totaling $32,460. However, the trial court rejected Barnes’s request for sanctions, finding that “[e]ven though Flagstar discharged its mortgage, it did not discharge the underlying obligation. It did not lose standing to assert [that] its claim had priority over [Barnes’s] claim.”
On August 27, 2010, the trial court entered judgment in favor of Barnes, declaring that Barnes’s construction lien had priority over Star Heaven’s mortgage to Flag-star and that it was “valid for the full amount claimed of $360,909.11 and attorney fees in the amount of $32,460.” Thereafter, proceedings were stayed pending resolution of this appeal to this Court.
II. MOOTNESS
As a threshold matter, we note that Barnes argues that the instant appeal is moot because Flagstar discharged its mortgage during the pendency of these proceedings. Barnes correctly observes that an issue becomes moot when an event occurs that renders it impossible for the reviewing court to grant relief. Tenneco Inc v Amerisure Mut Ins Co, 281 Mich App 429, 472; 761 NW2d 846 (2008). However, contrary to Barnes’s assertions, because of the circumstances presented here, Flagstar’s claim to the proceeds of the sale was not rendered moot by the discharge of its mortgage as a part of the judicially approved sale of the property in the action brought by Findling before Judge Post. As Barnes indicates, under Judge Post’s supervision, Fin dling sold the property for $4.5 million. As a condition of that sale, Flagstar executed a discharge of its mortgage so that Findling could convey clear title to the purchaser, and $375,000 from the sale was placed in escrow pending resolution of the priority dispute presented in the instant action. Whether Barnes or Flag-star is entitled to receipt of those funds is solely dependent on whether Barnes’s construction lien has priority or whether Flagstar’s mortgage has priority. Accordingly, under the circumstances here presented, Flagstar’s discharge of its mortgage did not render the instant appeal moot or otherwise deprive Flagstar of standing to challenge the trial court’s orders.
III. validity of claims of lien
A
This Court reviews a trial court’s decision on a motion for summary disposition under MCR 2.116(C)(10) de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). When reviewing a decision on a motion brought under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court must consider all the substantively admissible evidence submitted by the parties in the light most favorable to the nonmoving party. MCR 2.116(G)(6); Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue on which reasonable minds could differ. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
This Court also reviews issues of statutory interpretation de novo. Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). The primary goal of judicial inter pretation of statutes is to discern the intent of the Legislature by examining the plain language of the statute. Driver v Naini, 490 Mich 239, 246-247; 802 NW2d 311 (2011). The starting point in every case involving construction of a statute is the language itself. House Speaker v State Admin Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). “Each word of a statute is presumed to be used for a purpose, and, as far as possible, effect must be given to every clause and sentence.” Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000). If the statutory language is clear and unambiguous, the court must apply the statute as written, and judicial construction is neither necessary nor permitted. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999); Gebhardt v ORourke, 444 Mich 535, 541-542; 510 NW2d 900 (1994). The court must consider the object of the statute in light of the harm it is designed to remedy and apply a reasonable construction that best accomplishes the purposes of the statute. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994). “Also, it is a settled rule of statutory construction that where a statute contains a specific statutory provision and a related, but more general, provision, the specific one controls.” In re Haley, 476 Mich 180, 198; 720 NW2d 246 (2006), citing Gebhardt, 444 Mich at 542-543.
B
Flagstar first argues that Barnes’s claims of lien are ineffective because they described the subject property by metes and bounds instead of as individual condominium units. We disagree.
Barnes relies on §§ 107 and 108 of the Construction Lien Act, MCL 570.1107 and MCL 570.1108, to assert that it properly filed its claims of lien using the metes and bounds property descriptions set forth in the notice of commencement filed by Star Heaven.
The Construction Lien Act “controls] all rights to a construction lien arising from any project” for which a contract was first entered into after certain dates in 1982. MCL 570.1301(1) and (3). Section 107 of the Construction Lien Act provides in relevant part:
(1) Each contractor, subcontractor, supplier, or laborer who provides an improvement to real property has a construction lien upon the interest of the owner or lessee who contracted for the improvement to the real property, as described in the notice of commencement given under [MCL 570.1108 or MCL 570.1108a], the interest of an owner who has subordinated his or her interest to the mortgage for the improvement of the real property, and the interest of an owner who has required the improvement. A construction lien acquired pursuant to this act shall not exceed the amount of the lien claimant’s contract less payments made on the contract.
(2) A construction lien under this act attaches to the entire interest of the owner or lessee who contracted for the improvement, including any subsequently acquired legal or equitable interest. [MCL 570.1107 (emphasis added).]
And relating to the notice of commencement, § 108 of the Construction Lien Act provides in relevant part:
(1) Before the commencement of any actual physical improvements to real property, the owner or lessee contracting for the improvements shall record in the office of the register of deeds for each county in which the real property to be improved is located a notice of commencement, in the form set forth in this section. If all improvements relate to a single project only 1 notice of commencement need be recorded. A subsequent notice of commencement need not he recorded for an improvement to any real property which currently has a notice of commencement recorded in the office of the register of deeds if that recorded notice of commencement contains the same information as the subsequent notice of commencement.
(2) The notice of commencement shall contain the following information:
(a) The legal description of the real property on which the improvement is to be made....
(f) The following statement:
“To lien claimants and subsequent purchasers:
Take notice that work is about to commence on an improvement to the real property described in this instrument. A person having a construction lien may preserve the lien by providing a notice of furnishing to the above named designee and the general contractor, if any, and by timely recording a claim of lien, in accordance with law.
A person having a construction lien arising by virtue of work performed on this improvement should refer to the name of the owner or lessee and the legal description appearing in this notice. A person subsequently acquiring an interest in the land described is not required to be named in a claim of lien.
A copy of this notice with an attached form for notice of furnishing may be obtained upon making a written request by certified mail to the above named owner or lessee; the designee; or the person with whom you have contracted.” [MCL 570.1108 (emphasis added).]
Further, § 111 of the Construction Lien Act describes the form of a valid claim of lien. In this section, the property is to be described by using the “legal description of real property from notice of commencement.” MCL 570.1111(2).
Flagstar, on the other hand, argues that despite those provisions, § 126 of the Construction Lien Act, MCL 570.1126, and §§ 61 and 132 of the Condominium Act, MCL 559.161 and MCL 559.232, required Barnes to file separate liens against each individual condominium unit for work performed on that unit and precluded Barnes from filing a lien against the entire project.
Sections 126 of the Construction Lien Act and 132 of the Condominium Act both provide that a construction lien for an improvement furnished to a condominium unit attaches only to the condominium unit to which the improvement was furnished. MCL 570.1126(1); MCL 559.232.
Additionally, § 61 of the Condominium Act provides:
Upon the establishment of a condominium project each condominium unit, together with and inseparable from its appurtenant share of the common elements, shall be a sole property subject to ownership, mortgaging, taxation, possession, sale, and all types of juridical acts, inter vivos or causa mortis independent of the other condominium units. [MCL 559.161 (emphasis added).]
As defined by the condominium act, the “condominium unit” is “that portion of the condominium project designed and intended for separate ownership and use, as described in the master deed.” MCL 559.104(3).
As this Court recently reaffirmed in Stock Bldg Supply, LLC v Parsley Homes ofMazuchet Harbor, LLC, 291 Mich App 403, 406-407; 804 NW2d 898 (2011):
The Construction Lien Act is a remedial statute that sets forth a comprehensive scheme aimed at protecting “the rights of lien claimants to payment for expenses and ... the rights of property owners from paying twice for these expenses.” It is to be liberally construed “to secure the beneficial results, intents, and purposes” of the act. MCL 570.1302(1). [Citations omitted.]
The Legislature has specified that because the Construction Lien Act is a remedial statute, “[s]ubstantial compliance with the provisions of this act shall be sufficient for the validity of the construction liens provided for in this act.” MCL 570.1302(1); see also Big L Corp v Courtland Constr Co, 482 Mich 1090 (2008).
The unambiguous, plain language of §§ 107(1) and 111(2) of the Construction Lien Act required that Barnes’s claims of lien refer to the legal description set forth in the notice of commencement filed by Star Heaven. It is undisputed that the notice of commencement used a metes and bounds description for the entire property. Thus, the form of Barnes’s liens, using the metes and bounds descriptions, substantially complied with the Construction Lien Act in this regard.
Having determined that the requirements for a valid lien were met under the Construction Lien Act, the question then becomes, upon the filing of the master deed after the notice of commencement was filed, which redefined the project as a condominium project, whether Barnes was required by § 132 of the Condominium Act to file separate liens against each individual condominium unit within the project. As discussed below, we conclude that the statute does not require such individual filings.
At issue is the interplay between the Construction Lien Act and the Condominium Act. Section 126 of the Construction Lien Act, MCL 570.1126, and § 132 of the Condominium Act, MCL 559.232, provide that a construction lien for work performed on a condominium unit or for an improvement furnished to a condominium unit attaches only to the condominium unit on which the work was performed or for which the improvement was furnished.
Generally, “pursuant to MCL 570.1119(3), a construction lien that arises under the [Construction Lien Act] takes effect upon the first actual physical improvement to the property and has priority over all interests recorded after the first actual physical improvement,” and this Court has “further held that liens relate back to the first actual physical improvement regardless of the time when, or the person by whom, the particular work was done or the materials furnished for which a lien is claimed.” Jeddo Drywall, Inc v Cambridge Investment Group, Inc, 293 Mich App 446, 452-453; 810 NW2d 633 (2011) (citations and quotation marks omitted); see also M D Marinich, Inc v Mich Nat’l Bank, 193 Mich App 447, 454; 484 NW2d 738 (1992).
At the time that Barnes performed its first actual physical improvement to the property, under the notice of commencement, Star Heaven had yet to record the master deed designating the project as a condominium project or identifying condominium unit numbers. Consequently, from the outset, Barnes was providing material and labor to a construction project as defined by the metes and bounds description set forth in the notice of commencement; Barnes was not providing labor or material to a “condominium unit” as contemplated by § 126 of the Construction Lien Act and § 132 of the Condominium Act. Considering the importance placed on the date of first actual improvement in determining the priority of construction liens, MCL 570.1119(3), we conclude that at the time Barnes’s lien arose under the Construction Lien Act, the work performed was not “performed upon a condominium unit,” so as to invoke the requirement that Barnes file separate liens on each condominium unit under § 132 of the Condominium Act. As a result, we hold that Barnes’s claims of lien were valid and that the lien was entitled to priority over Flagstar’s mortgage interest. Importantly, Star Heaven did not record a master deed for the condominium project until May 2006, after Barnes began working on the project in August 2005. Flagstar offers this Court no authority requiring that, under these circumstances, Barnes was required by virtue of the subsequently filed master deed to file separate liens against individual condominium units. Barnes had potential liens arising from the date it began the project, and the Construction Lien Act undisputedly controlled at that time. Our holding is consistent with the purpose of the Construction Lien Act, which “is designed to protect the rights of lien claimants to payment for expenses and to protect the rights of property owners from paying twice for these expenses.” Solution Source, Inc v LPR Assoc Ltd Partnership, 252 Mich App 368, 373-374; 652 NW2d 474 (2002). Consequently, the trial court did not err when it similarly found that Barnes’s claims of lien were valid and had priority over Flagstar’s interest.
We further observe that to hold otherwise would require a contractor who begins work on a non-condominium project, under a notice of commencement setting forth a metes and bounds description of the property to be improved, to be hypervigilant about whether at any point during the course of construction the property owner converts the project to a condominium project and then, if the owner does so, to file any liens for work performed before the conversion in accordance with the notice of commencement as required by § 108 of the Construction Lien Act and file separate liens for work performed after the conversion with respect to each condominium unit under § 126 of the Construction Lien Act and § 132 of the Condominium Act. This result runs counter to both the principle that a construction lien arises under the Construction Lien Act as of the date of first actual physical improvement to the property and the remedial purpose of the Construction Lien Act itself.
c
Flagstar next argues that the trial court erred when it determined that the May 2, 2006, sworn statement substantially complied with the statutory requirements. We disagree.
As this Court explained in Big L Corp v Courtland Constr Co, 278 Mich App 438, 441-442; 750 NW2d 628 (2008), vacated in part on other grounds 482 Mich 1090 (2008):
The [Construction Lien Act] ... provides owners with information by requiring general contractors to make sworn statements itemizing their bills. A sworn statement notifies the owner of each subcontractor, supplier, and laborer with whom the general contractor contracted. Thus, the owner can rely on a sworn statement as a comprehensive list of potential lien claimants. The purpose of a sworn statement is to enable the [owner] to retain out of any money due or to become due to the contractor an amount sufficient to pay the subcontractors, suppliers and laborers. [Citations and quotation marks omitted.]
In addition to the general provision of the Construction Lien Act, MCL 570.1302(1), only requiring substantial compliance with the act’s provisions, MCL 570.1110(4) explicitly requires that sworn statements be in “substantially” the form set forth in the statute:
Pursuant to the statute’s exemplar form, the sworn statement must list: (1) the name of each subcontractor, supplier, and laborer with whom the general contractor contracted; (2) the type of improvement furnished by each; (3) the total contract price; (4) the amount already paid to each; and (5) the amount currently owing to each. It must also be subscribed and sworn to before a notary public. [Big L, 278 Mich App at 442, citing MCL 570.1110(4).] a statement of each subcontractor and supplier, and laborer for whom payment of wages or fringe benefits and with-holdings is due but unpaid, with whom the (contractor) (subcontractor) has (contracted) (subcontracted) for performance under the contract with the owner or lessee of the property, and the amounts due to the persons as of the date of this statement.... [MCL 570.1110(4).]
The exemplar form advises the owner that the information provided is
Additionally, the exemplar form sets forth the following attestation by the contractor or subcontractor issuing the statement:
I make this statement as the (contractor) (subcontractor) or as.........of the (contractor) (subcontractor) to represent to the owner or lessee of the property and his or her agents that the property is free from claims of construction liens, or the possibility of construction liens, except as specifically set forth in this statement and except for claims of construction liens by laborers that may be provided under section 109 of the construction lien act, 1980 PA 497, MCL 570.1109. [Id. (emphasis added).]
Flagstar argues that the May 2, 2006, sworn statement from Barnes, in which Barnes represented that the property was “free from claims of construction liens,” but did not state that it was “free from the possibility of construction liens” did not substantially comply with the Construction Lien Act. Flagstar asserts further that “[sjince an invalid Sworn Statement was provided here, there is no Sworn Statement,” which results in Barnes’s claims of lien being invalid.
Addressing Flagstar’s second assertion first, § 110(9) of the Construction Lien Act provides that
[i]f a contractor fails to provide a sworn statement to the owner or lessee before recording the contractor’s claim of lien, the contractor’s construction lien is not invalid. However, the contractor is not entitled to any payment, and a complaint, cross-claim, or counterclaim may not be filed to enforce the construction lien, until the sworn statement has been provided. [MCL 570.1110(9).]
It is not disputed that Barnes provided a sworn statement, reflecting unpaid amounts owing, in advance of instituting the instant action. Thus, even if the May 2, 2006, sworn statement was deemed to constitute a failure to provide a sworn statement, contrary to Flag-star’s position, Barnes’s lien remained valid and enforceable.
Moreover, we conclude that Barnes’s May 2, 2006, sworn statement did substantially comply with the statute. Flagstar does not assert that the sworn statement failed to advise Star Heaven of the name of each subcontractor, supplier, and laborer with whom Barnes had contracted; the improvement furnished by each such subcontractor, supplier, or laborer; the total contract price for those improvements; or the amount paid and remaining owing to each such subcontractor, supplier, or laborer. Flagstar also takes no issue with the accuracy of Barnes’s sworn statement. Instead, Flag-star asserts only that the omission of the “possibility” language from the sworn statement was material. Considering that the purpose to be served by a sworn statement is to advise the owner of outstanding amounts owed to contractors, subcontractors, or laborers who might have a lien on property as of the date of the statement so as to permit the property owner to retain out of payment to the general contractor any money owed to subcontractors or laborers, Erb Lumber, Inc v Gidley, 234 Mich App 387, 399 n 5; 594 NW2d 81 (1999), we reject Flagstar’s position and conclude that the sworn statement substantially complied with the requirements of MCL 570.1110(4). See Big L, 278 Mich App at 443-444 (stating that an unverified sworn statement substantially complied with MCL 570.1110(4) because the owner had notice of its substance); Alan Custom Homes, Inc v Krol, 256 Mich App 505, 510-511; 667 NW2d 379 (2003) (stating that an unverified sworn statement substantially complied with the notice requirement of former MCL 570.1110(8) because the owner had notice of its substance).
IV LIMITATION OF CLAIMS OF LIEN
A
Flagstar argues that the trial court erred by refusing to limit Barnes’s claims of lien to work and material actually provided to each unit within 90 days of the filing of the claims of lien. We disagree.
As noted earlier, § 107(1) of the Construction Lien Act states that a contractor who provides an improvement to real property has a construction lien on the interest of the owner who contracted for the improvement to the real property, “as described in the notice of commencement.” MCL 570.1107(1). However, § 111(1) declares that “a construction lien created by this act shall cease to exist unless, within 90 days after the lien claimant’s last furnishing of labor or material for the improvement, pursuant to the lien claimant’s contract, a claim of lien is recorded... .” MCL 570.1111(1) (emphasis added). Further, § 111(2) of the Construction Lien Act provides that a claim of lien is to identify the legal description of the property against which the lien is claimed, as set forth in the notice of commencement. MCL 570.1111(2). But § 126 of the Construction Lien Act, MCL 570.1126, and § 132 of the Condominium Act, MCL 559.232, each declare that construction liens attach only to the individual condominium unit to which improvements were made.
Examining the pertinent language of each these statutory provisions, we first observe that a claimant must file its lien no later than 90 days from the last date of furnishing labor or material, pursuant to the lien claimant’s contract. Because the time within which a claim of lien is to be filed is determined by reference to the contract under which the labor or material was provided, the contract necessarily defines the scope of the improvement for which the lien (if timely filed) exists. MCL 570.1107; MCL 570.1111(1); MCL 570.1114.
It is undisputed that there was no written contract between Barnes and Star Heaven delineating the scope of the improvement to which Barnes was contributing its labor and material. However, the Construction Lien Act does not require a written contract; it permits a contract “of whatever nature.” MCL 570.1103(4). All the evidence presented below indicated that Barnes was retained, on a time-and-materials basis, to serve as the general contractor for the entire project being undertaken at the property by Star Heaven. Thus, “the improvement” to which Barnes was supplying its labor and material was in furtherance of the entire project. We emphasize that the circumstances of the instant case differ from instances in which the parties contract on a unit-by-unit basis. There being no dispute, however, that Barnes’s claims of lien were filed within 90 days of its last provision of labor or materials to the project as contemplated in the contract, we hold that the trial court did not err by concluding that Barnes’s claims of lien were timely filed and encompassed the entire project — and not just each unit that received labor and material within 90 days of the filing of the claims of lien — since the entire project was the subject of the contract and it was this property that was listed in the notice of commencement.
B
Flagstar next argues that the trial court erred by failing to reduce the amount of the lien for work and materials provided to units that were subsequently sold. We disagree.
Again, § 107(2) of the Construction Lien Act specifies that a construction hen “attaches to the entire interest of the owner... who contracted for the improvement, including any subsequently acquired legal or equitable interest.” MCL 570.1107(2). Star Heaven contracted for the improvements — the materials and labor — that Barnes provided to the property, and Star Heaven did so as part of a single project. Plainly, then, under § 107(2) of the Construction Lien Act, Barnes’s lien attached to the entire interest of Star Heaven in the property as described in the notice of commencement. And, in its notice of commencement, Star Heaven described the property to which the improvement was being undertaken with a metes and bounds description outlining the entire project. It thus exposed the entire project to the possibility of a lien for payment for work performed.
Flagstar maintains that because of § 126 of the Construction Lien Act and § 132 of the Condominium Act, the unpaid amounts attributable to work performed on condominium units since sold by Star Heaven should be apportioned from the lien amount enforceable against the remaining Star Heaven property. However, MCL 570.1126(l)(a) addresses a construction lien “for an improvement furnished to a condominium unit” and provides that the lien “shall attach only to the condominium unit to which the improvement was furnished.” (Emphasis added.) MCL 559.232(a) provides a similar limitation for “work” performed on a condominium unit. But as discussed in part IV(A) of this opinion, the scope of an “improvement” is defined by the contract. Because the contract addressed furnishing material and labor to the entire project, rather than individual condominium units, the complete unpaid amount of Barnes’s lien attached to the entire remaining interest of Star Heaven. As a result, the trial court did not err by permitting Barnes to satisfy its lien out of the proceeds of the sale of Star Heaven’s remaining interest in the property.
V FLAGSTAR’S motion to amend, vacate, or modify
Flagstar next argues that the trial court erred when it denied its motion to amend, vacate, or modify the court’s prior order granting Barnes’s motion for summary disposition. We disagree.
This Court reviews both a trial court’s decision whether to set aside a prior order or judgment under MCR 2.612(C)(1) and a trial court’s decision regarding a motion for reconsideration for an abuse of discretion. Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000); Heugel v Heugel, 237 Mich App 471, 478; 603 NW2d 121 (1999). Accordingly, those decisions will only be reversed if they fall outside the range of principled outcomes. Pontiac Fire Fighters Union Local 376 v City of Pontiac, 482 Mich 1, 8; 753 NW2d 595 (2008).
Flagstar asserts on appeal that the trial court’s order granting Barnes partial summary disposition with regard to priority was premature because discovery remained open and, further, relief from that order was warranted under MCL 2.612(C)(1)(f). Concerning Flagstar’s first argument, while we agree that the granting of summary disposition can be premature when discovery is ongoing,
the mere fact that the discovery period remains open does not automatically mean that the trial court’s decision to grant summary disposition was untimely or otherwise inappropriate. The question is whether further discovery stands a fair chance of uncovering factual support for the opposing party’s position. [Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769 NW2d 234 (2009) (emphasis added).]
At the January 18, 2010, hearing on Barnes’s motion for partial summary disposition, Flagstar represented to the trial court that it needed additional time to locate a subordination agreement, which it believed would have been executed in conjunction with the closing of its loan to Star Heaven. Flagstar did not identify any other discovery it believed pertinent to its defense. Despite granting Barnes’s motion, the trial court afforded Flag-star an additional 30 days to locate the agreement. Flagstar did not, and does not, complain that this amount of time was insufficient. Flagstar does not assert that it needed additional time or that more time would have resulted in it locating additional documentation supporting its position. It merely asserts that the trial court should have waited until the close of discovery to rule on Barnes’s motion. Therefore, because Flagstar has failed to establish that discovery stood a fair chance of uncovering additional facts to support its position, the trial court’s decision to grant Barnes’s motion for partial summary disposition was not premature.
Further, to the extent that Flagstar’s argument is premised on MCR 2.116(C)(1)(f), we conclude that Flagstar has not established “[a]ny other reason justifying relief” from the trial court’s order. Instead, as discussed earlier, the trial court properly determined that Barnes’s claim of lien was valid and was timely filed, that the entire amount of that claim was enforceable against Star Heaven’s interest in the property, and that the primacy of Barnes’s lien was not affected by the May 2, 2006, sworn statement.
MCR 2.612(C)(1) provides:
On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds:
(a) Mistake, inadvertence, surprise, or excusable neglect.
(b) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under MCR 2.611(B).
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the judgment.
As this Court explained in Heugel, 237 Mich App at 478-479:
In order for relief to be granted under MCR 2.612(C)(1)(f), the following three requirements must be fulfilled: (1) the reason for setting aside the judgment must not fall under subsections a through e, (2) the substantial rights of the opposing party must not be detrimentally affected if the judgment is set aside, and (3) extraordinary circumstances must exist that mandate setting aside the judgment in order to achieve justice. Generally, relief is granted under subsection f only when the judgment was obtained by the improper conduct of the party in whose favor it was rendered. [Citations omitted; emphasis added.]
Assuming arguendo that the first two requirements were met, there is no extraordinary circumstance present in this case and no allegation that the trial court’s order was obtained as a result of improper conduct by Barnes. Thus, Flagstar fails to show any justification to set aside the trial court’s order under MCR 2.116(C)(1)(f), and the trial court did not abuse its discretion by denying Flagstar relief from the prior order under that court rule.
Finally, Flagstar asserts that there were additional questions of fact about the validity and amount of Barnes’s lien for resolution by the trial court. However, Flagstar does not specifically identify any such questions. Rather, Flagstar simply asserts that the trial court failed to give appropriate effect to the May 2, 2006, sworn statement as related to the issue of priority. Moreover, as the trial court concluded, Flagstar’s mo tion to vacate, amend, or modify the prior order of the trial court was essentially a motion for reconsideration. Flagstar’s motion was premised on the existence of the sworn statement. However, Flagstar did not assert that the sworn statement constituted newly discovered evidence, and even had it done so, a trial court properly denies a motion for reconsideration when, as was the case here, the evidence offered in support of the motion could have, with reasonable diligence, been produced at the time the court made it initial ruling. Churchman, 240 Mich App at 233. Therefore, we hold that the trial court did not abuse its discretion by denying Flagstar’s motion to amend, vacate, or modify the prior order granting Barnes’s motion for partial summary disposition with regard to the priority of its lien.
VI. ATTORNEY FEES
Flagstar last argues that the trial court erred when it awarded attorney fees under the Construction Lien Act. We disagree.
This Court reviews a trial court’s decision to award attorney fees under the Construction Lien Act for an abuse of discretion. Solution Source, 252 Mich App at 381. Any attendant findings of fact are reviewed for clear error. Id. Findings are clearly erroneous when, although there is evidence to support them, the reviewing court on the entire record is left with a definite and firm conviction that a mistake was made. Id. at 381-382.
Section 118(2) of the Construction Lien Act, MCL 570.1118(2) provides that “[t]he court may allow reasonable attorneys’ fees to a lien claimant who is the prevailing party.” The word “may” denotes permissive and not mandatory action. AFSCME v Detroit, 267 Mich App 255, 260; 704 NW2d 712 (2005). Thus, the award of attorney fees to Barnes was discretionary with the trial court.
The trial court considered the complexity of the case, the validity of Flagstar’s position, the amount and purpose of the fees charged, and the results obtained. It determined that Barnes was not entitled to any fees for prosecuting this action to enforce its lien up to, and through, the granting of its motion for partial summary disposition with regard to the first priority of its lien, noting that
it was reasonable for Flagstar and the other defendants to contest the validity and priority of [Barnes’s] lien and complete discovery in this case. It was reasonable to require that [Barnes] obtain the Court’s decision on priority by filing its motion for summary disposition, and it was not unreasonable to ask this Court for a little more time to find a subrogation [sic: subordination] agreement. Accordingly, defendants had a legitimate reason to litigate the issue until after the hearing for summary disposition and the allotted time to file a motion to set aside the summary disposition order passed (until February 18, 2010).
It concluded, however, that Flagstar’s continued litigation of the issue of the priority of Barnes’s lien, in the absence of any subordination agreement elevating the Flagstar mortgage over the Barnes lien, became unreasonable and warranted an award of attorney fees, “particularly when the subsequent motion raised no issue that could not have been raised in the original response in opposition to summary disposition.”
Flagstar does not challenge the trial court’s evaluation of the complexity of the case. It instead argues that its defense of the action was justified, asserting that it “had an absolute right (even if the [trial court’s] priority order was appropriate) to thereafter examine and challenge the lien based upon its invalidity and amount.” But Flagstar fails to recognize that the only-requirement for a claimant to receive attorney fees under the Construction Lien Act is to be the prevailing party. Vugterveen Sys, Inc v Olde Millpond Corp, 454 Mich 119, 133; 560 NW2d 43 (1997), citing MCL 570.1118(2). In the present case, the trial court correctly determined that Barnes was the prevailing lien claimant; no more was required to permit the trial court to exercise its discretion to award Barnes its attorney fees under the Construction Lien Act. Therefore, the trial court did not abuse its discretion by awarding Barnes reasonable attorney fees.
The trial court did err, however, by combining the awarded attorney fees with the amount of the construction lien. The judgment stated that Barnes’s construction lien had priority over Flagstar’s mortgage interest and that the lien was “valid for the full amount claimed of $360,909.11 and attorney fees in the amount of $32,460.” (Emphasis added.) MCL 570.1118(2), which authorizes the award of attorney fees to a lien claimant as long as it was the prevailing party, does not address whether the attorney fees should be included in or excluded from the lien claimant’s entitlement under the construction lien.
MCL 570.1107(1) states that “[a] construction lien acquired pursuant to this act shall not exceed the amount of the lien claimant’s contract less payments made on the contract.” The word “shall” in a statute denotes mandatory action. Costa v Community Emergency Med Servs, Inc, 475 Mich 403,409; 716 NW2d 236 (2006). Thus, examining the plain language of the statute, as this Court is required to do, Driver, 490 Mich at 246-247, we conclude that MCL 570.1107(1) mandates that the amount of any construction lien not exceed the amount the property owner owes on the contract with the claimant. Adding an amount of attorney fees to the unpaid amount of the contract would, as a matter of mathematical certainty, result in a total lien amount necessarily higher than allowed by law. Thus, because the statute expressly states that the amount of the lien is limited to the amount owed for the work performed, we hold that the award of attorney fees is not properly added to the amount of a construction lien, but must instead be awarded by way of a judgment separate from the lien itself.
Flagstar alternatively argues that if an attorney fee award is proper, any such award should be included in a judgment against “the contracting party” — that is, against Star Heaven. However, Star Heaven did not contest Barnes’s lien, and Barnes did not prevail against Star Heaven. Rather, for purposes of the trial court’s award of attorney fees, Barnes prevailed against Flagstar, the awarded attorney fees are properly attributable to conduct by Flagstar, and the attorney fee award is properly enforced by way of judgment against Flagstar, not Star Heaven.
Since the attorney fees are to be enforced on remand through a judgment against Flagstar, we agree with Flagstar’s assertion that it was improper to award attorney fees for work that was not related to Flagstar. The trial court concluded that, because all the proceedings after February 18, 2010, involved the enforcement of Barnes’s construction lien, to be paid from the proceeds of the sale of the remainder of Star Heaven’s interest in the property, it did not need to apportion the fees among the various defendants to the action. However, as discussed, because those awards are to be enforced through a judgment against a particular party, it is not reasonable to have that party pay for attorney fees that were incurred for work associated with other parties. Thus, on remand, the trial court is to assess attorney fees only for work related to Flagstar’s contest of Barnes’ lien.
VII. conclusion
We affirm in part, reverse in part, and remand. We affirm the validity and priority of Barnes’s construction lien. However, on remand, the trial court is to remove the award of attorney fees to Barnes from the construction lien and enter a separate judgment awarding attorney fees to Barnes against Flagstar. Further, the trial court is to award only the amount of the attorney fees that were incurred as a result of work attributable to Flagstar’s actions after February 18, 2010. We do not retain jurisdiction. No costs are taxable pursuant to MCE 7.219, neither party having prevailed in full.
O’CONNELL and K. F. KELLY, JJ., concurred with Wilder, P.J.
Section 104 of the Construction Lien Act defines “improvement” as
the result of labor or material provided by a contractor, subcontractor, supplier, or laborer, including, but not limited to, surveying, engineering and architectural planning, construction management, clearing, demolishing, excavating, filling, building, erecting, constructing, altering, repairing, ornamenting, landscaping, paving, leasing equipment, or installing or affixing a fixture or material, pursuant to a contract. [MCL 570.1104(5) (emphasis added).]
Our Supreme Court has clarified that the Construction Lien Act’s allowing of substantial compliance does not apply to this requirement. Instead, the 90-day window is a certain deadline that must be met in order for a claimant to successfully maintain a construction lien. Northern Concrete Pipe, Inc v Sinacola Companies-Midwest, Inc, 461 Mich 316, 322-323; 603 NW2d 257 (1999).
Section 103 of the Construction Lien Act defines “contract” as “a contract, of whatever nature, for the providing of improvements to real property, including any and all additions to, deletions from, and amendments to the contract.” MCL 570.1103(4).
MCR 2.612(C)(1)(f) permits a court to relieve a party from an order for “[a]ny other reason justifying [such] relief.” | [
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PER CURIAM.
In this real property dispute, plaintiff, Cheryl Knight, appeals as of right the trial court’s order dismissing her complaint for title to the disputed property free of any claim by defendants, Northpointe Bank and NEB Mortgage, LLC (collectively the Bank). On appeal, we must determine whether the trial court erred when it determined that Knight’s claim was untimely under the equitable doctrine of laches. Because we conclude that the trial court did not err when it applied laches to bar Knight’s claim, we affirm.
I. BASIC FACTS
Knight’s mother, Laurene Marian Coe, was a partner in Laurendal Enterprises, which owned 240 acres of real property in Kalkaska County, Michigan. In November 1997, Coe and another partner caused the partnership to transfer ownership of the property to Coe in her individual capacity through a warranty deed. Coe was a widow at the time and living in Florida.
Knight’s sister, Charlene Diane Cutro, lived in Ann Arbor, Michigan. At some point before June 2001, Coe executed a power of attorney that gave Cutro the authority to transfer Coe’s real property in Michigan.
In June 2001, Cutro executed a warranty deed on Coe’s behalf that transferred 200 acres of the original property to Cutro. At the same time, Cutro used her power of attorney to grant herself an easement over that portion of a trail that crossed through the remaining 40 acres. The easement described a right of way “following the existing trail” that was 15-feet wide; the easement was for ingress and egress only.
In February 2002, Coe executed a warranty deed transferring the remaining 40 acres to Knight along with an easement for ingress and egress. The 40-acre parcel included a house, pole barn, and shed. The easement covered a 15-foot right of way that followed an existing trail that wound over parts of both the 40-acre parcel and the 200-acre parcel. Coe executed the warranty deed and easement in Florida.
In June 2003, Coe executed two new warranty deeds— both on the same day — covering the same 240 acres that she had already conveyed to her daughters, Cutro and Knight. In the deeds, Coe again transferred 200 acres to Cutro and 40 acres to Knight, but she also provided for an easement that differed from that contained in the original transfers: it was now 66 feet wide, 33 feet on either side of a line described in the deed, rather than 15 feet wide, and the easement was for ingress, egress, and utilities.
In March 2005, Cutro borrowed $180,000 from the Bank. To secure the repayment of the debt, Cutro granted the Bank a mortgage on the 200 acres that she obtained from her mother. In October of the same year, Cutro transferred the 200-acre parcel to her trust.
Cutro died in October 2006 and Coe died in February 2007.
In August 2007, Cutro’s daughter, Edith Enders, acting as the successor trustee of her mother’s trust, transferred the 200-acre parcel to herself. Thereafter, Enders made payments on the Bank’s note, but she fell into arrears.
The Bank foreclosed on the 200-acre parcel and purchased it at a sheriffs sale in September 2010 for more than $193,000. The redemption period for the 200-acre parcel expired in October 2011 and the Bank began to seek a purchaser for the property.
In November 2011, Knight sued the Bank. In her complaint, Knight alleged that her sister, Cutro, was “disabled as a matter of law” from making the “self-dealing conveyance” of the 200-acre parcel to herself as the attorney-in-fact for her mother. Moreover, because the “defect” in Cutro’s title was “plain on the face of the public record,” the Bank could not claim to be a bona fide purchaser from Cutro. On the basis of these allegations, Knight asked the trial court to “decree” that she was the rightful owner of the property and that she owned it free of any claims by the Bank.
In March 2012, the Bank moved for summary disposition under MCR 2.116(C)(7). The Bank argued that Knight’s complaint was untimely under the applicable statute of limitations and under the equitable doctrine of laches. The trial court disagreed with the Bank’s contention that the applicable period of limitations had expired, but agreed that Knight’s decision to wait so long to sue prejudiced the Bank. Accordingly, in an opinion and order signed in April 2012, the trial court dismissed Knight’s claim as untimely under the doctrine of laches.
This appeal followed.
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Knight argues on appeal that the trial court erred when it dismissed her claim under the equitable doctrine of laches. This Court reviews de novo a trial court’s decision to grant summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). This Court also reviews de novo a trial court’s decision to apply equitable doctrines such as laches. Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 40; 700 NW2d 364 (2005).
B. LACHES
With her complaint, Knight challenged whether Cutro validly transferred the 200 acres owned by their mother to herself. She also asked the trial court to determine, on that basis, that she owned the 200 acres free of any claim by the Bank. Thus, although she did not refer to her claim as one to quiet title, it is evident that Knight invoked the trial court’s equitable power to quiet title. Beach v Lima Twp, 489 Mich 99, 106; 802 NW2d 1 (2011).
As our Supreme Court has explained, a complainant in equity must come to the court with a clean conscience, in good faith, and after acting with reasonable diligence: “ ‘Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these are wanting the court is passive, and does nothing.’ ” Henderson v Connolly’s Estate, 294 Mich 1, 19; 292 NW 543 (1940), quoting Campau v Chene, 1 Mich 400, 405 (1850). If a plaintiff has not exercised reasonable diligence in vindicating his or her rights, a court sitting in equity may withhold relief on the ground that the plaintiff is chargeable with laches. Lothian v Detroit, 414 Mich 160, 168; 324 NW2d 9 (1982). “[W]hen laches appears, the court merely leaves the parties where it finds them.” Duck v McQueen, 263 Mich 325, 328; 248 NW 637 (1933). This is so because equity will not lend aid to those who are not diligent in protecting their own rights. Mogk v Stroecker, 243 Mich 668, 672; 220 NW 730 (1928). The rule that equity aids the vigilant is designed to discourage laches by making it a bar to relief and to prevent the enforcement of stale demands. Henderson, 294 Mich at 19.
Although considerations of timing are important when determining whether laches applies to the facts, laches is not triggered by the passage of time alone. Lothian, 414 Mich at 168. Laches is an equitable tool used to provide a remedy for the inconvenience resulting from the plaintiffs delay in asserting a legal right that was practicable to assert. Dep’t of Pub Health v River gate Manor, 452 Mich 495, 507; 550 NW2d 515 (1996). As such, “when considering whether a plaintiff is chargeable with laches, we must afford attention to prejudice occasioned by the delay.” Lothian, 414 Mich at 168. It is the prejudice occasioned by the delay that justifies the application of laches. Dunn v Minnema, 323 Mich 687, 696; 36 NW2d 182 (1949) (“This Court has repeatedly held that mere delay in attempting to enforce a right does not constitute laches, but that it must further appear that the delay resulted in prejudice to the party claiming laches of such character as to render it inequitable to enforce the right.”).
C. APPLYING THE LAW
Here, Knight sued to quiet title to the 200-acre parcel at issue more than 10 years after the transfer that she claims was invalid. During that 10-year period, the property was transferred several times: Cutro transferred it to herself using the power of attorney from her mother in June 2001, Coe executed a deed transferring a similarly described 200-acre parcel to Cutro in June 2003, Cutro transferred the property to her trust in 2005, Enders transferred the property to herself after her mother’s death, and the Bank foreclosed on and purchased the property at a sheriffs sale in 2010. These transfers were recorded and, therefore, a matter of public record. In addition, each transfer contained a right of first refusal that named Knight (among others) and required notice before the property could be sold. Coe also transferred the adjacent 40-acre parcel to Knight just months after Cutro transferred the 200- acre parcel to herself using the power of attorney and Coe transferred the 240 acres involved here to Cutro and Knight along with a revised easement in 2003. Thus, Cutro and Knight were, in effect, neighbors for more than eight years before Knight’s decision to sue.
Given the evidence, Knight had to have been aware that her sister, and later her niece, had possession of the 200 acres that neighbored her 40-acre parcel and that they had possession under a claim of title. She could easily have asserted her claim against either her sister, before she died, or her niece. Yet, she chose not to do so; she did not assert her rights when her sister took possession of the property, did not assert her rights when her sister mortgaged the property and transferred it to her trust, and did not assert her rights when her niece transferred the property into her own name. Moreover, Knight did not, and has not, offered any reason for her decision to delay suit until after the Bank acquired the property. Knight’s apparent knowledge of the facts and circumstances surrounding these transfers suggests that she deliberately chose to sleep on her rights while her sister, and later her niece, had possession of the property at issue. See Campau v Van Dyke, 15 Mich 371, 378-379 (1867) (stating that the plaintiff must show that he or she is “prompt and eager for redress, and any delay must be accounted for and excused”).
Moreover, Knight’s decision to delay suing until after the Bank acquired the property at the sheriffs sale plainly prejudiced the Bank’s ability to defend itself against Knight’s lawsuit. During the 10-year delay, the two most important witnesses to the underlying facts died. Had Knight sued before her sister died, Cutro could have provided evidence that her mother actually authorized her to transfer the property to herself using the power of attorney. Cutro may also have been able to produce a copy of the power of attorney that showed that her mother specifically authorized her to make the transfer. Coe too could easily have cleared up whether she authorized her daughter to use the power of attorney to transfer the property. By waiting to sue until after the deaths of her sister and her mother, Knight seriously prejudiced the Bank’s ability to obtain evidence to support its position. Under such circumstances, Michigan courts will apply laches to bar the plaintiffs request for relief. See German American Seminary v Kiefer, 43 Mich 105, 111; 4 NW 636 (1880) (“[I]t would be the height of injustice to permit complainant, with full knowledge of the facts, to delay suit while the persons who were familiar with the facts were one by one passing away, and at last bring suit under circumstances which at the best must leave the court in doubt whether the remaining evidence does not disclose a partial, defective and misleading case.”); Campau, 15 Mich at 380-381 (holding that laches barred the claims because the deceased witnesses “must have been more intimately acquainted with all the material facts than any witnesses who can now be produced” and, as a result, the court had “no satisfactory assurance that a very different state of facts might not have appeared”).
Knight’s delay also prejudiced the Bank’s position by increasing its financial exposure. Had Knight sued before the Bank lent money to Cutro, it could have avoided the potential for losses by refusing to loan Cutro money until after Knight’s claims were resolved. Similarly, had Knight sued before the Bank purchased the property at the sheriffs sale, it might have been able to mitigate its losses by seeking compensation from Cutro’s estate or from Enders. Knight’s decision to sleep on her rights while the Bank acquired rights to the property also strongly supports the trial court’s decision to apply laches. See Ford v Loomis, 33 Mich 121, 122-123 (1876) (holding that application of laches was proper where the plaintiff “stood silently by while the property was being improved, by parties claiming to own it in fee, until it has now become very valuable, and third parties have acquired rights therein”). Given the record evidence that Knight delayed suing for years after the point at which she knew or should have known of her claim and that the Bank’s ability to defend against her suit was severely prejudiced by the delay, we cannot conclude that the trial court erred when it dismissed Knight’s claim on the basis of laches.
Notwithstanding the evidence that the Bank was prejudiced by her delay in bringing the suit, Knight claims that the Bank could not avail itself of laches because it was plainly on notice that Cutro’s title was defective. Specifically, she claims that whenever a person transfers title to himself or herself using a power of attorney, that transfer is facially invalid. Generally, an agent cannot use his or her agency to transfer the principal’s property to himself or herself. See Wilson v White, 223 Mich 497, 503; 194 NW 593 (1923); see also McKay v Williams, 67 Mich 547; 35 NW 159 (1887). Nevertheless, where an agent’s transfer is not inconsistent with his or her duty to the principal, the agent may make such a transfer. See Hutton v Sherrard, 183 Mich 356, 358-359; 150 NW 135 (1914). If Coe authorized Cutro to transfer the property to herself, then the transfer was valid and Knight would have no right to complain. For that reason, the Bank could have defended against Knight’s claim by presenting evidence that Coe had actually authorized Cutro’s transfer. But, as a result of Knight’s unexplained delay, the Bank no longer has access to the evidence that would prove the validity of the transfer. Therefore, under the circumstances, the fact that the Bank knew, or at the least should have known, that Cutro transferred the property from her mother to herself using a power of attorney did not preclude the Bank from asserting laches as a defense.
Knight also argues that laches does not generally apply to bar a claim that was brought within the applicable period of limitations and where the plaintiff comes to equity for the protection of a vested legal right. However, this Court has held that laches can apply “even though the period of limitations has not run.” Tenneco Inc v Amerisure Mut Ins Co, 281 Mich App 429, 456; 761 NW2d 846 (2008); see also Lothian, 414 Mich at 175 (characterizing laches as a “cut-off measure, interposed as a defense designed to lay to rest claims which are stale as well as prejudicial to the defendant”). Accordingly, the fact that Knight sued within the applicable period of limitations does not preclude the application of laches to bar her claim. Likewise, Knight did not have a vested right to the property that would render laches inapplicable; in cases where there are vested rights, the plaintiff has no obligation to assert his or her rights as against some third party because the world is on notice of the plaintiffs good title. See Angeloff v Smith, 254 Mich 99,101; 235 NW 823 (1931). Knight never had record title to the 200-acre parcel, and, to the extent that she claimed such a right after her sister’s transfer, she had to assert that in a timely fashion, which she did not do.
III. CONCLUSION
The trial court did not err when it dismissed Knight’s claim against the Bank under MCR 2.116(C)(7). Knight delayed bringing her suit to quiet title to the property at issue for years. During that time, the primary witnesses to the events underlying Knight’s claim died and it is reasonable to infer that significant evidence has been lost. Given the degree that Knight’s delay prejudiced the Bank’s ability to defend, we cannot conclude that the trial court erred when it applied laches to bar Knight’s claim. As our Supreme Court explained in a case where the primary witnesses had similarly died:
[W]e can feel no satisfactory assurance that a very different state of facts might not have appeared, fully establishing the validity and good faith of the proceedings, had this suit been brought, and the testimony taken, while those who best knew the facts were able to speak. Nor can we grant the relief asked without just apprehension of doing injury alike to the rights of the living and the memory of the dead. [Campau, 15 Mich at 381.]
Under the facts of this case, it was proper for the trial court to leave the parties where it found them. Duck, 263 Mich at 328.
Affirmed. As the prevailing parties, Northpointe Bank and NPB Mortgage, LLC may tax their costs. MCR 7.219(A).
Sawyer, P.J., and Markey and M. J. Kelly, JJ., concurred.
The legal description for the 40-acre parcel used in the 2003 deeds varied from that used in the 2001 and 2002 deeds in some respects but still covered the area with the house and pole barn.
The trial court held that the applicable period was the 15-year period provided under MCL 600.5801(4). The bank has not cross-appealed that determination. Accordingly, the application of MCL 600.5801(4) to this case is not at issue on appeal.
Having concluded that the trial court did not err when it dismissed Knight’s claim on the basis of laches, we decline to consider Knight’s remaining argument on appeal. | [
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Sharpe, J.
Plaintiff, as administrator of the estate of Alex T. Young, brings this action to recover the indemnity of $3,000, provided for in an insurance policy issued by the defendant, “in consequence of a cyclone or tornado.” He was drowned in the waters of Lake Superior on November 30, 1929. In defendant’s answer it denied that his death was so caused. The trial court held that there was no proof of a tornado. He submitted the question of whether the storm was a cyclone to the jury, who found for the plaintiff, and judgment was entered thereon. Defendant reviews by appeal.
The deceased was the captain of a steam vessel called “Kiowa.” It left Duluth on November 28, 1929, for Chicago. It was laden with flaxseed. While passing down Lake Superior, it encountered a severe storm. Plaintiff called but one witness, Patrick McCarty, the second mate on the vessel and the holder of a pilot’s license on the Great Lakes. He testified that he had been sailing on the lakes since 1913; that it was the worst storm he had ever seen except oné in 1913, and was quite similar to that; that the sea was very high, came over the sides of the boat and ‘ ‘ tore all the after hatches off; ” that—
“the seas was rolling and the wind was blowing, snowing and hailing. The boat would go down like this and come up like that (illustrating), snowing and hailing, window closed, couldn’t look out nor nothing; couldn’t see or hear-nothing;”
—and that it was a storm of unusual violence; that deceased, in an effort to jump into a boat that was being launched, fell into the water and was drowned.
On cross-examination he testified:
“Q. Now, do you know what a cyclone is?
“A. A cyclone is — I am not very much experienced, but I believe that the wind goes around in circles and everything like that.
“Q. Yes. In a cyclone, the wind blows in a circle, does it not?
“A. Yes. * * *
“Q. And the wind was blowing steadily all the way down the lake from the time you left Duluth, steady wind; is that right?
“A. No, it would shift; just shift at times, shift two points one side and two points the other side; two points of a shift.
“Q. It never got in a circular motion. It was the wind coming from this direction?
“A. Northwest wind.
“Q. Northwest wind?
“A. Yes, sir.
“Q. Blowing from the northwest?
“A. Yes, sir.
“Q. All the time?
“A. Yes, sir.”
The record of the coast guard station at Grand Marais was then put in evidence. It disclosed that the direction of the wind was from the northwest and its velocity at times from 48 to 56 miles per hour. While the defendant submitted proof as to the nature of the storm, it in no way strengthened that above referred to as to its being a cyclone.
In his instructions to the jury the trial court said:
“A cyclone has been defined in various of the standard dictionaries and I will give it to you as given in the Encyclopedia Britannica; it is defined as an atmospheric condition where the pressure is lowest at the center and that the winds in consequence tend to blow toward the center spirally inward, in a whirling motion. The Century Dictionary defines a cyclone as any atmospheric movement, gentle or rapid, general or local, on land or at sea, in which the wind blows toward the center. And Webster defines it as a storm characterized by high winds rotating around a calm center of low atmospheric pressure. I have given you those definitions so that it may enable you to apply them to the testimony in the case, in determining whether or not this particular storm comes within the definition of a cyclone and within the meaning of the policy when the word is used as I have read it to you. ’ ’
The jury, in answer to special questions submitted to them, found that the vessel encountered a cyclone, and that the death of the deceased resulted in consequence thereof. Defendant insists that its motion for a directed verdict, made when plaintiff rested and renewed at the conclusion of the proofs, should have been granted, as there was no sufficient proof that the storm was a cyclone.
The nature and character of the storm must be determined from the evidence submitted. That it was a severe one admits of no doubt. The liability of the defendant was restricted to death caused by a cyclone. No witness testified that it was such.
“The distinguishing characteristic of the cyclone or tornado is that of high winds rotating about a center of low atmospheric pressure, and this center moving with greater or less velocity across the country.” Maryland Casualty Co. v. Finch, 77 C. C. A. 566 (147 Fed. 388, 8 L. R A. [N. S.] 308).
If on land, the result of a cyclone is evidenced by its resistless force in twisting, breaking down, or uprooting trees, or unroofing buildings, and the term is so understood in common parlance. At the time of the captain’s death, the boat was about 20 miles from the shore, and drifted in to a point about four miles from “Point Au Sable light.”
Arthur J. Cronk, the “first officer”, on the steamer, testified that a few days after landing he walked on snow shoes to the eastward to Grand Marais, 16 miles distant, and that no destruction had been caused by the wind to the trees or property on the shore. His testimony relative thereto was interrupted by an admission of plaintiff’s counsel that “there was no damage to anything such as trees, houses or anything.” The wind was blowing in the direction of this shore line, and, while the effect of a cyclone maybe confined to a somewhat small area, we think this testimony has some bear ing upon whether the storm was in fact a “cyclone” or a heavy wind, accompanied by cold weather and a fall of snow. In our opinion, there was no evidence submitted under which the jury could find that the deceased lost his life “in consequence of a cyclone” as defined to them in the instructions given by the court, and the motion of the defendant for a directed verdict, renewed after verdict, for judgment non obstante veredicto should have been granted.
The judgment entered will be reversed, with costs to appellant, and the cause remanded, with direction to enter a judgment for the defendant.
Clark, C. J., and McDonald, Potter, North, Pead, Wiest, and BuTzel, JJ., concurred. | [
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Butzel, J.
Phebe J. Alvord was the mother of Artemas, or Art, as he was called, a young son by a previous marriage, when she married Austin G. Alvord, a prominent citizen of Flint. Art was taken into the Alvord home, assumed the surname of Alvord, and was treated as a son by his stepfather. The Alvords had no other children. Mr. Alvord predeceased his wife after .a happy married life of 40 years, or thereabouts. Mrs. Alvord, who inherited all of his property, died on May 6, 1930, leaving what purported to be a last will and codicils, and an estate appraised at $64,000, which included the Alvord Block and other valuable property in Flint. The will, drawn on August 7, 1929, and the codicils, drawn shortly thereafter, provide that $5,000 be placed in trust for the benefit of Jessie Baird, a friend, and be paid to her at the rate of $40 per month, and if any amount of such legacy remain unpaid at the time of her death, it should revert to the estate. There are bequests of $500 to a former servant, $2,000 to a housekeeper, $7,000 to Mrs. Powell, a sister-in-law, and $1,500 to several friends. Mrs. Bess Alvord, a former daughter-in-law, and the divorced wife of Art, is given a specific legacy of $10,000 and the entire residue. The will and codicils were drawn by an able attorney of high standing. 'He first went to Mrs. Alvord’s home, where he took notes. She discussed the reasons for including or excluding some of the members of her family. Mrs. Bess Alvord was not present at the time that the will and codicils were drawn. As tes tatrix left no immediate family, a brief review of her relations and associations is necessary.
Her entire interest and affection were centered on her son, Art. He was both worthless and shiftless, and addicted to drink. He seldom, if ever, worked and was a source of constant worry and expense to those interested in him. Mrs. Alvord had a favorite niece, Minnie Dell, of Port Huron, Michigan, of whom she had been very fond. Jessie Baird was also an intimate friend of the Alvords. As a young girl, she had lived in the Alvord home for a few years, and Mrs. Alvord always retained her friendship for her. Mrs. Alvord was about 75 years of age when she executed the will in question. In 1925 and 1926, after Mr. Alvord’s death, she executed several wills in which Mrs. Dell was left a specific legacy and the residue of the estate in the event that Art, to whom the income from the estate was given for life, should die without leaving issue. In 1920, Art married Bess Schultz, who had been divorced from her former husband after a married life of but a few years. She seemed able to look after Art, and was regarded as a daughter by the testatrix, although at times there was serious friction between them. Bess was not devoid of the frailties of human nature; also, she occupied a very difficult position between a husband addicted to drink on one side and his devoted, loyal, and partial mother on the other. Serious quarrels arose, and at one time Bess was paid a sum in settlement of alimony in a divorce proceeding that was contemplated. She lived out at a lake cottage that had been given to herself and her husband. In order to care for Mrs. Alvord, who had become ill, Bess secured the services of a trained nurse by the name of Jean, who had taken care of Mr. Alvord during his last sickness. When Jean thus again came to the Alvord home, she very quickly supplanted Bess in Art’s affections. Before a year had elapsed, Art secured a divorce from Bess and married Jean. The following year they took a trip to Europe, where he left her and returned home. Jean’s return was delayed because she had been born abroad and had not a copy of her husband’s birth certificate with her so that she could prove her right of re-entry into the country. Art showed no haste in sending the certificate to her, and upon her return she did not live with him. Bess had meanwhile opened a rooming house in Pontiac, and, at the request and expense of Mrs. Alvord, Art roomed and boarded at Bess’ home, where he died suddenly on February 19, 1929. After his death Mrs. Alvord and Bess became more intimate. The old lady’s affections remained centered about Art, and it was not unnatural that she should turn to Bess, who had been Art’s wife and who had taken or assumed the place of a daughter. Mrs. Alvord did not like Jean, wIiq had lived with Art but a short time.
Upon Mrs. Alvord’s death the will and codicils were offered for probate. Mrs. Dell and two nephews filed objections, claiming mental incompetence on the part of the testatrix, and that fraud, undue influence, duress, misrepresentations, etc., were practiced upon her. The probate court certified the hearing to the circuit court, where the jury found in favor of contestants. The trial judge promptly and properly entered judgment non obstante veredicto in favor of the proponent of the will. He found that neither mental incompetence nor undue influence, fraud, etc., were shown. In the event that the will and codicils had been disallowed, it is not shown whether Mrs. Dell would have claimed the bulk of the estate under a former will.
The questions are largely of fact. It is well nigh impossible to review even briefly the many incidents that arose in the drab life of the testatrix. They are related in the several hundred pages of testimony of over 40 witnesses. Contestants sought to prove mental incompetence by the testimony of a doctor who treated the testatrix for a fistula at a hospital confined to the treatment of rectal troubles. Although he stated that she suffered from senile dementia on account of her age, in accordance with his theory that everyone arriving at the age of 65 begins to suffer from senile dementia, and that at the age of 70 to 75 the disease is progressive, he did not state that she was incompetent to make a will, but on the contrary, advised her to attend to her business matters at once. Three doctors who attended her showed that her mental condition was good. An attorney who had drawn previous wills for her testified that he had refused to draw a will for her because he did not believe her competent to make a will. It was shown, however, that he saw her just when she was recovering from pneumonia, and that thereafter, partly with his knowledge, participation, or advice, she executed important legal documents and transacted business requiring greater mental competence than the making of a will. The testimony shows beyond any question that the testatrix was mentally competent to make a will.
The only other important question is whether the execution was obtained through undue influence, fraud, duress, misrepresentations, etc. Several incidents are claimed to show undue influence. At one time she consulted a fortune teller, who, it is claimed, told her to leave her property to Bess. Mrs. Dell, who appears to be the main contestant, and who had herself consulted a fortune teller, aroused Mrs. Alvord’s interest in the ability of fortune tellers. In a letter telling about her own experiences, Mrs. Dell wrote to Mrs. Alvord that a fortune teller had told her that one of Mrs. Dell’s relatives, answering Mrs. Alvord’s description perfectly, was trusting someone who was going to bring her a great loss in the future. Mrs. Dell sent her a bitter letter in which she referred to some of Mrs. Alvord’s friends as “jail birds,” and stated that there was nothing on earth that could ever again make her take one thing from Mrs. Alvord. The latter replied, stating that she showed the letter to her lawyer and other friends, and that she was not deserving of such treatment. She took Mrs. Dell at her word and cut her off with a legacy of a dollar. She did remember Mrs. Powell, a sister-in-law, with a very substantial legacy. She also looked after other people who had been kind to her.
It was the right of Mrs. Alvord to make such disposition of her property as she saw fit, notwithstanding the fact that a jury or others might have preferred a different disposition of her property. It is unnecessary to recite other minor incidents shown by contestants as evidence of undue influence. We do not believe that they rise to the dignity of proof, or that they would be of sufficient importance, if true, to establish contestants’ claims. The most that can be said is that the testatrix was a strong-willed old lady, with a few eccentricities, and one great interest in her life — her son. While there was ample opportunity for undue influence, and probably the desire on the part of many of the interested parties to share in her bounty, there is no showing that the old lady was prevented from seeing whom she-wanted and from doing substantially what she pleased. She showed kindness and judgment in remembering her former servant and also her housekeeper, and providing for others, including the Powell family. After the drafting of the will she transacted her business understandingly. The right to make a will should be carefully vouchsafed to elderly persons who have testamentary capacity. Mere opportunity to exercise undue influence, the fact that property is not disposed of in the manner that a judge or jury would have preferred, or the fact that beneficiaries appear not to be as deserving of testamentary bounty as others might be, do not, of themselves, affect the validity of the will.
We find in the present case that the will and codicils were properly executed, that the testatrix was mentally competent to make a will, that there was no undue influence, fraud, duress, force, restraint, misrepresentation,- etc., practiced on her, and that the will and codicils were properly allowed. So many of the questions raised have been so frequently ruled upon in recent years that we need not restate well-known principles, but shall simply refer to the following cases: In re Luders’ Estate, 238 Mich. 87; In re Ferguson’s Estate, 239 Mich. 616; In re Littlejohn’s Estate, 239 Mich. 630; In re Kirschbaum’s Estate, 242 Mich. 291; In re Aylward’s Estate, 243 Mich. 9; In re Spinner’s Estate, 248 Mich. 263; In re Estate of Trombley, 251 Mich. 117; Brereton v. Estate of Glazeby, 251 Mich. 234; In re Kenney’s Estate, 250 Mich. 289; In re Hayes’ Estate, 255 Mich. 338.
The judgment is affirmed, with costs to appellees.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
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Fead, J.
This is a bill to construe and declare void parts of the will of Ellen Wentworth, who died February 15, 1931, at the age of 71 or 72. It is claimed the will violates the statute on restraint of alienation (3 Comp. Laws 1929, § 12935), and the rule against perpetuities.
Mrs. Wentworth had no immediate relatives except a sister, Mary Burke, and her family. The original will, executed November 14, 1928, devised the whole of her property to the Central Trust Company and Frank J. Burke, in trust, with power of control but without power of sale. The estate consisted of real property appraised at $109,000, and personalty of $18,850. It included the Wentworth Hotel in Lansing.
The will directed the trustees to pay Mary Burke, aged about 69, out of income, or, if necessary, out of principal, $300 per month for life; and, at her death, to pay her son, Leo Burke (51), if living, $200 per month for life; and to his wife, Sophronia, if living, $100 per month for life.
In addition, the trustees were directed to pay, out of income, from death of testatrix:
1. Leo Burke, $100 per month for life;
2. Frank J. Burke (31), son of Leo, $300 per month for life, and, at his death, $100 per month to his wife, Marie Burke (32), for life;
3. Eva Anderson, niece of Mr. Wentworth, $200 semi-annually for life.. At her death, to her son, if living, the single sum of $1,000.
If the net income was insufficient to make the monthly payments in full, they were to be prorated, except as to Mary Burke. Surplus income was to be accumulated and kept separate from principal, to be used in making up prior deficiencies in payments. Then followed paragraph 10, with important words italicized :
“Tenth. Whereas, my said grandnephew, Frank J. Burke, now has three children, Leo Thomas Burke, Manley Burke and Wentworth Burke; now therefore I will and direct that when the youngest of such children, or of any child or children hereafter horn to my said grandnephew, Frank J. Burke, shall attain the full age of 25 years, then upon the happening of such event the trust herein created shall terminate, and the principal or corpus of said trust estate, together with such net income as may have accumulated at that time shall be transferred and paid in equal shares or portions, to such children of my said grandnephew as shall be living at the date when the youngest of said children shall attain the age of twenty-five years as herein specified. ’ ’
Leo Thomas Burke was 10 years old at the death of testatrix, Manley was five, and Wentworth four. Another great grandnephew, Robert, was born three months after testatrix died.
Paragraph 11 provided that if Mary, Leo, Sophronia, Frank, or Marie—
“shall be living at the date when the youngest of the children of my grandnephew, Frank J. Burke, shall attain the full age of 25 years, then in such case I will and direct that the principal or corpus of said trust estate and any accumulation of net income shall be charged with a lien to insure to each of said beneficiaries who shall then be living the receipt of the monthly or other payments herein provided for each such beneficiary,”
Such beneficiaries were to be at liberty to apply to the court “for an extension of the time when the principal or corpus of said estate shall be transferred, paid to, or become the property of the said children of my said grandnephew, ’ ’ and testatrix expressed the wish that the court would grant the petition, unless the children insured the payment of monthly instalments.
On November 15,1928, testatrix executed a codicil to her will, in which she modified the provision for Frank Burke and his family, to be as follows:
To Frank during his life, $300 per month. At his death, $100 per month to his wife, Marie Burke, for life—
£ £ and the remaining $200 of said $300 shall be paid to said Marie Burke as guardian for the children of my said grandnephew and his wife, such payment of $200 per month to be continued until the youngest of said children shall attain the age of 25 years. In the event- of the death of said Marie Burke the sum of $300 shall be paid to such person as may be appointed guardian of said children, for the support of said children, such payments to be continued for the period of time hereinabove specified, namely, until the youngest of said children shall attain said age of 25 years.”
The codicil confirmed the will in all other respects. February 11, 1931, testatrix executed another codicil, in which she confirmed the will and former codicil, except in the respect that, by the last codicil, she devised her interest in premises covered by a mortgage to her sister, Mary, and gave a sum of money to her spiritual adviser. The will was admitted to probate March 24, 1931. The scrivener testified, under objection, that it was the intention of testatrix to have the trust terminate when the youngest of the three great grandnephews in being should reach the age of 25 years, with after-born children then living to participate in the division, and that, in some way, he misplaced the italicized words in drafting the will.
Testimony of the scrivener of a mistake in drafting a will or of an intention of testator different from that expressed in the will is not admissible, in the absence of ambiguity or mistake appearing upon the face of the will. Wheeler v. Wood, 104 Mich. 414; Defreese v. Lake, 109 Mich. 415 (32 L. R. A. 744, 63 Am. St. Rep. 584); 40 Cyc. p. 1436. Nor may the court reform a will. 28 R. C. L. p. 203; 65 Am. St. Rep. 521, note; Polsey v. Newton, 199 Mass. 450 (85 N. E. 574, 15 Ann. Cas. 139, and note); Lewis v. Reed’s Executor, 168 Ky. 559 (182 S. W. 638, Ann. Cas. 1917 D, 1155, and note).
It is also contended that the court may eliminate words and phrases in a will whose presence would render it void if, after such elimination, the will would be valid. In a limited way this is the rule, but only where the prohibited provisions are not inseparably connected and interwoven with the general scheme of the testator, and where, after the elimination, the will would fulfil the general plan and primary purpose of the testator, and the estate would devolve upon the persons to whom he intended it to go. Palms v. Palms, 68 Mich. 355; VanDriele v. Kotvis, 135 Mich. 181; Rozell v. Rozell, 217 Mich. 324; Gettins v. Grand Rapids Trust Co., 249 Mich. 238.
The dominant notes of the will are, first, the security of support for life of testatrix’s sister and her relatives named; and second, the final devolution of the estate upon the children of Frank Burke, living at termination of the trust, and only those then liv ing. The trust provisions could not be eliminated without defeating what was doubtless testatrix’s major purpose. The elimination of the italicized clause in section 10 would change the scheme of the will for determining the persons who finally were to take the property, and, except by accident, the residue would not devolve upon the persons to whom she intended it to go. Consequently neither deletion is permissible.
It is contended further that the provision in paragraph 11 contemplating Frank Burke’s survival of termination of the trust is inconsistent with the provision of paragraph 10 for termination of the trust and modifies its language. The argument is that, as it is a presumption of law that children could be born to Frank Burke at any time during his lifetime (Rozell v. Rozell, supra), he could'not possibly be alive when his youngest possible child became 25 years of age, and, therefore, testatrix must have intended such a construction of paragraph 10 as would enable him to survive termination of the trust.
Paragraph 11 is a general insurance provision, drawn with a sweep of words, to protect all the named beneficiaries from possibility of lapse of their annuities. The clause bears no indication that testatrix was considering details, weighing probabilities, or considering presumptions of law, but rather that she was insuring against possibilities, however remote or whatever the cause. Even though the presumption of law were in her mind, inconsistency between the paragraphs does not necessarily follow, because of the possibility that a fact of nature may render obsolete a legal presumption.
In considering the elimination of any language in the will, we are further confronted by the two codicils, one made the next day and the other over two years after execution of the will, which expressly confirm it as written. And in the first codicil there appears affirmative evidence that the trust was not to be terminated until the youngest child after-born or living reach the required age, because, to that time, support was provided for all the children of Frank Burke and his wife in case of their parents’ death.
There is no escape from the conclusion that the will violates the statute on restraint of alienation of real estate because the prohibition of alienation it provides is not restricted to two lives in being at the creation of the estate. Unfortunate as it is, this result is reached, not because testatrix intended to violate the statute, but because the law will not permit to be accomplished the intention she clearly expressed in the will.
The trust being void because of violation of the statute on restraint of alienation (3 Comp. Laws 1929j § 12935), it is not necessary to consider the application of the rule against perpetuities.
Decree that the trust provisions are invalid is affirmed, in substance, but we think should be modified in form, to state the construction reached and provide for its certification to the probate court where the estate is to be administered.
McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. Clark, C. J., did not sit. | [
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] |
McDonald, J.
This suit was brought to recover the purchase price of goods sold on open account to Neumeister & Schultz after the death of Mr. Neumeister, who was the husband of Flora L. Neumeister, the defendant.
Gustav H. Neumeister and Albert J. Schultz were equal partners in the retail shoe business in the city of Muskegon, Michigan. They had been in business together for some years prior to 1922, at which time Mr. Neumeister died. After his death Mr. Schultz continued the business, using the name of the former firm. In September, 1930, he became insolvent and filed a petition in bankruptcy. The trustee sold the firm property and divided the proceeds among the creditors. The plaintiff brought this suit against Mrs. Neumeister on the theory that she became a partner in the business after the death of her husband. The circuit judge held against the plaintiff on this issue, and entered a judgment in favor of the defendant. The plaintiff has appealed.
When Mr. Neumeister died he left a will containing the following provisions concerning his interest in the partnership business:
“9. I give and bequeath to my wife, Flora Louise Neumeister, all the interest in the copartnership mercantile business now carried on and conducted by the firm of Neumeister & Schultz, to her, for the term of her natural life, subject always to the control, management and operation of said business by my partner, Albert J. Schultz, who will have.'full, complete and ample management of said business during the lifetime of my said wife. I direct in regard to this bequest that my partner, Albert J. Schultz, shall pay to my said wife the sum of $200 monthly and the further sum annually that shall together with the said payments of $200 monthly, equal one-half of the net profits of the business, the division of the profits of the business to be made after my decease the same as now, excepting, that Albert J. Schultz shall have and receive a reasonable monthly salary for his services.
“10. After the decease of my wife, Flora Louise Neumeister, I give and bequeath to my said partner, Albert J. Schultz, all my interest, property and claim of, in, and to the said partnership business of Neumeister & Schultz, to him and to his heirs and assigns forever.”
It is the contention of the plaintiff that the will created a new partnership between Flora L. Neumeister and Albert Schultz.
The will cannot be so construed. It gave Mrs. Neumeister a life interest in testator’s share of the partnership property, .but excluded her from any part in the control and management of the partnership business. That was left to the surviving partner, to whom was also given absolute ownership on Mrs. Neumeister’s death. It was the evident intention of the testator to secure for his wife an income from the partnership business, and to accomplish that purpose he gave possession and control of his interest to Mr. Schultz to be kept and used in the business subject only to certain profits and monthly payments to Mrs. Neumeister. But if he had intended to create a partnership relation between them, it could not be accomplished without their consent, and there is no evidence that either of them ever consented.
When Mr. Neumeister’s estate was closed in the probate court, the testator’s interest in the partnership business was assigned to Mr. Schultz subject to the allowance made to Mrs. Neumeister by the will. He accepted it and continued the business in the name of the old firm. No change was made in the certificate of partnership on file with the county clerk. Mrs. Neumeister took no part in the business. The undisputed evidence shows that for seven and a half years she did not go to the store except as a customer for shoes or to call for checks. In nothing she did during that time is there any evidence of partnership.
If a partnership existed it must have been created by consent of the parties either orally expressed or by conduct in connection with the business sufficient in law to constitute such a relation. In this case there is no evidence of an agreement to become partners. It is all to the contrary. There is no evi dence of acts on the part of Mrs. Neumeister from which partnership could be inferred, and no evidence of holding out that would estop her from denying that such a relation existed. In this connection the plaintiff gave evidence that, before selling goods and extending credit to Neumeister and Schultz, it made inquiries from the R. G. Dun Company and obtained a report which showed that the firm was composed of Flora Neumeister and Albert Schultz and gave the individual and financial responsibility of each. The information contained in this report was obtained from a statement furnished by Mr. Schultz. The reporter who obtained it testified:
“The statement was signed by A. J. Schultz for Neumeister and Schultz. * * * I have been reporting for R. G. Dun & Company for eight years. I never talked with Mrs. Neumeister or took up with her any matter or investigation, or talked to her and never saw her. I never saw her until now to know who she was.”
Mr. Schultz testified:
“I never conferred with her regarding the financial statements and never talked with her about the stock. I made the financial statements myself and never conferred with her about it. I never went to her and consulted with her as to the amount I might be owing or the amount of goods I might have or anything of that kind. I knew from the will that upon her death I was to get it and I had the sole control and operation in the meantime. * * *
“Mrs. Neumeister after her husband’s death did not have anything to do with the business. She did not even come to the store, only occasionally when she would want a pair of shoes for herself.”
The testimony relative to the financial statements was offered as showing that Mrs. Neumeister was held out to the public as a partner, but they could not affect her in that way, because she knew nothing about them. They were made without her knowledge or consent. Any such statements by Mr. Schultz were not binding on her and would not estop her from denying a partnership relation. The question is not what he did or said without her knowledge or consent. It is rather what she did in connection with the business that would bind her as a partner. In the absence of an express agreement, her acts and conduct in relation to the business are the test to be used in determining if a partnership existed. In this case the essential elements of a partnership are lacking. The trial court correctly held that there was no liability on the part of Mrs. Neumeister.
The judgment is affirmed, with costs to the defendant.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
(for affirmance). This case involves-the forfeiture of 2 land contracts dated April 15, 1946. On the above date Charles A. Lent, as vendor, and Clara Dickinson, as vendee, entered into 2 executory land contracts for the sale and purchase of approximately 83 acres of land. The purchase price of one parcel of land containing approximately 40 acres was $18,000, with a down payment of $3,000 and the balance payable at the rate of $150' per month with interest at the rate of 5% per annum. The other contract relating to the 43-acre tract of land was for $6,000 with $1,000 paid upon the execution of the contract and the balance due in monthly instalments of $50, with interest at the rate of 5% per annum. Both contracts provided for interest at the rate of 7% per annum if the purchaser is in default on her payments.
Defendant, Clara Dickinson, having failed to keep her payments up to date, the plaintiff, Charles A. Lent, on February 15, 1949, filed a complaint for summary proceedings before the circuit court commissioner for possession of the property. On March. 19, 1949, the circuit court commissioner rendered judgment of restitution and determined the full balance due of principal on one land contract of $14,-112.86 plus interest of $558.35 and the full balance due on the other contract of principal $3,916.89 plus interest of $155.80. It appears that the husband of defendant had been ill since January, 1949, and died on July 9, 1949, as a result of his illness.
On July 5, 1949, defendant filed affidavits for the purpose of securing delayed appeals. The affidavits alleged that she supposed the judgments before the circuit court commissioner would not exceed the sum of $300 in one case and $900 in the other and would have appealed the cases during the statutory period, but was prevented from appealing because of the severe illness of her husband; and that she relied upon her attorney to perfect appeals if the judgments were not in accordance with her just rights. The affidavits accompanied petitions for delayed appeal. On October 15, 1949, the trial court granted defendant’s petitions for delayed appeal.
The cause came on for trial and on May 12, 1950, the trial court determined that there was nothing due on the 43-acre contract which was originally in the amount of $6,000; and that the sum of $1,451.83 was due as of May 6, 1950, on the 40-acre contract which was originally in the amount of $18,000.
Plaintiff appeals and urges that there was an abuse of discretion on the part of the trial court in allowing delayed appeal from the circuit court commissioner’s court 105 days after entry of judgment therein because the grounds alleged in the affidavits of Clara Dickinson were not sufficient to justify the lower court in allowing a delayed appeal.
Appeals to the circuit court from a judgment of a circuit court commissioner are regulated by CL 194.8, § 678.2a (Stat Ann 1949 Cum Supp § 27.3482 [1]). Appeals after the expiration of 5 days are governed by CL 1948, § 678.8 (Stat Ann § 27.3488), wbicb .provides:
“Appeals may be authorized by the- circuit court, or by the circuit judge in chambers, after the expiration of 5 days, when the party making the appeal has been prevented from taking the same by circumstances not under his control.”
The law in Michigan involving the right to a delayed appeal from a judgment of the circuit court commissioner is well settled.
In Selby v. Brading, 218 Mich 667, we said:
“In the early case of Draper v. Tooker, 16 Mich 74, where this statute was under consideration, it was said by Mr. Justice Christiancy speaking for the Court:
“ ‘It is quite clear that the statute did not intend to give a general discretion to the circuit court to allow appeals in any case after the 5 days, where, in their judgment, it would be equitable, or when the party had made a mistake, or drawn an erroneous inference ; but that by the restrictive language used, the intention was to confine that discretion to the class of cases in which the appellant had been prevented from appealing within the 5 days by circumstances beyond his control. The discretion is, therefore, confined to cases falling within this class.’
“This Court has quite consistently followed the rule here announced. Stanton v. Wayne Circuit Judge, 126 Mich 715; Stock v. Wayne Circuit Judge, 143 Mich 339; Graham v. Wayne Circuit Judge, 143 Mich 360; Goldhamer v. Wayne Circuit Judge, 107 Mich 259; Anderson v. Wartenberg, 196 Mich 529; Huddleston v. Charles Amos & Co., 180 Mich 253; Combs v. Saginaw Circuit Judge, 99 Mich 234; Feldman v. Zimmerman, 208 Mich 240. * * *
“Vincent v. Bowes, 78 Mich 315, is cited to us as holding that the granting of such leave is discretionary. That case does so hold. It is the only case so holdina which we have been able to find in the time at our disposal. In so holding it is out of line with, the other decisions of this Court. But the language there used was not necessary to decision and must be regarded as obiter dictum and not controlling.
“This statute has been recognized as affording relief to those parties who have been prevented from taking an appeal seasonably by circumstances not under their control. Thus serious illness of a member of a party’s family furnishes grounds for bringing the statute in use (Braastad v. Alexander H. Dey Iron Mining Co., 54 Mich 258); likewise reliance up, on one’s attorney (Capwell v. Baxter, 58 Mich 571); reliance upon a codefendant to perfect the appeal (Potter v. Lapeer Circuit Judge, 119 Mich 522); want of notice and absence from the State (Jackson v. Jackson, 135 Mich 549).”
In Kowalsky v. Wayne Circuit Judge, 221 Mich 457, we said:
“An appeal may be allowed upon a showing that one has been prevented from taking the same by circumstances not under his control. CL 1915, § 14408. Severe sickness preventing an appeal has been recognized as a reason for allowing a belated appeal. Bearse v. Aldrich, 40 Mich 529; also severe sickness of a member of the family demanding constant attendance. Braastad v. Alexander H. Dey Iron Mining Co., 54 Mich 258.”
In Capwell v. Baxter, 58 Mich 571, we. held that reliance upon an attorney who neglects to take an appeal is a circumstance beyond the control of the client within the meaning of the statute. See, also, Meyers v. Wilson, 319 Mich 80.
In defendant’s affidavits in support of her motions to take delayed appeal we find the following:
“Deponent further says that had she known that judgment had been entered for the full balance purchase price of said lands she would have appealed but that she was prevented from ascertaining the status of said proceedings and prevented' from appealing from said judgment by the severe illness of her husband, Forrest Dickinson; that said lands con-' stitutes the home of herself and Forrest Dickinson, her husband; that her said husband has had a stroke and was on March 19, 1949, confined to his bed and was extremely ill and has been a constant care and worry since.
' “That deponent relied upon her attorney to perfect an appeal if .the said judgment was not in accord to her just rights but said attorney was honestly mistaken as to the provisions and terms and form of said land contract and honestly believed that said plaintiff had the right to take a judgment for the full balance purchase price when deponent was only in default to the extent to [of?] 6 monthly payments.”
Under the circumstances in this case it was not error to grant defendant’s motions for delayed appeal.
Plaintiff also urges that the trial court was in error in failing to allow the whole amount due on the land contracts. The land contracts in question contain the following:
“That if default is made by the purchaser in the payment of any tax assessment or insurance premium or in the delivery of any policy as above provided the seller may pay such tax assessment or premium or procure such insurance and pay the premiums therefor, and any sum or sums so paid shall be a further lien on the land payable by the purchaser to the seller forthwith with interest at 7% per annum and if proceedings are taken to enforce the contract in equity after the purchaser shall have been in default for a period of 30 * * * days or more, the entire amount owing hereon shall be due and payable forthwith, notwithstanding anything herein contained to the contrary and any sum paid by the seller incident to such proceedings or to summary proceedings to recover possession, for. mortgage tax upon this contract shall be a further-lien upon the premises payable by the purchaser to-the seller forthwith with interest at 7% per annum (provided if the addition of such tax shall make the interest reserved usurious, only so much thereof shall be paid by the purchaser as will require the payment of interest at a rate not in excess of IJo per annum). *• * *
“That the purchaser shall have possession of said lands from and after * * * the delivery hereof,, while he shall not be in default on his part in carrying out the terms hereof, taking and holding such, possession hereunder, and shall keep the premises in as good condition as they are at the date hereof and. if purchaser shall fail to perform this contract or any part thereof the seller immediately after such default shall have the right to declare the same void and retain whatever may have been paid hereon and all improvements that may have been made upon the-premises and consider and treat the purchaser as his tenant holding over without permission, and may take immediate possession of the premises and the-purchaser and each and every other occupant remove and put out.”
The only clause in the land contract referring to-this matter is the so-called acceleration clause which provides that if default is made by the purchaser and if proceedings are taken to enforce the contract in equity then the entire amount shall become due. The parties to these contracts provided the condition under which the entire amount can be declared due.. They are bound by the terms of the contract. The trial court was not in error in failing to declare the whole amount due on these land contracts.
Plaintiff also urges that the trial court erred in requiring plaintiff to credit on land contracts an unpaid note in the amount of $1,600. It appears that when the contract was entered into for the sale of. the 40-acre tract of land for $18,000, with a down payment of $3,000, the down payment was partly paid by a promissory note of $1,600.
The rule consistently followed in Michigan as to whether a note should be-regarded as payment is stated in People, for use of P. Koenig Coal Co., v. Davis, 237 Mich 165, where we said:
“Since Gardner v. Gorham, 1 Doug (Mich) 507, it has been the settled law of this State that the giving of a promissory note is not payment unless so understood by the parties, but if so understood and agreed by the parties, it is payment as a matter of law.”
See, also, Chase v. Gregory, 274 Mich 32, and In re Dunneback’s Estate, 302 Mich 73.
The contract shows that the note was accepted as part payment of the initial payment on the contract.
Plaintiff, Charles A. Lent, testified:
“Q. Mr. Lent, I will hand you a paper marked ‘exhibit B’ and will ask you what that is?
“A. That is a note that Mrs. Dickinson gave me as part of the down payment.
“Q. Did you give her credit on the land contract?
“A. Yes.
“Q. But the note hasn’t been paid?
“A. No, it has not been.”
Plaintiff’s admission that the note was accepted as part payment is sufficient to justify the trial court In holding that it was so accepted.
It is also urged that the trial court was in error in crediting as payments on the land contracts the amount due by Sam Wasyliw and wife to defendant. It appears that on October 13, 1947, defendant sold the 43-acre tract of land to Sam Wasyliw and wife on a land contract; and that since April, 1948, Sam Wasyliw and wife have been making their payments directly to plaintiff at the rate of $60 per month. In determining the amount due from defendant, the trial court made the following finding of facts:
“That a second land contract between Clara Dickinson and Sam Wasyliw and Justyna Wasyliw, his wife, date October 13, 1947, covering a portion of the lands in said complaint described was taken over by plaintiff and appellee, Charles A. Lent, and he has been receiving payments of $60 per month thereon .since August, 1948, and that the balance due 'thereon as of May 6, 1950, is $5,055.62.
“3. That the defendant and appellant Clara Dickinson should be given credit on the original contract for such portion of said sum of $5,055.62 plus the monthly payments in the amount of $1,140 as has not been applied upon the contract involved in the • suit consolidated and tried with this case to-wit the sum of $1,487.36.
“4. That no payments have been made on said land contract since September 15, 1948, so that there is now due on said contract 19 monthly payments of $150 each making a total of $2,850 due as of May 6, 1950.
“5. That applying the credit above set forth of $1,487.36 against the said sum of $2,850, the court finds that there is due on said land contract in monthly payments the sum of $1,362.64.
“6. That the plaintiff and appellee paid taxes in the amount of $89.19 on said lands.
“7. That the defendant and appellant is guilty as alleged in said complaint and that the annual rental value is $500.
“The total amount determined to be due under said contract is the sum of $1,362.64 as of May 6, 1950, together with sum of $89.19 paid on taxes or a total of $1,451.83.
“It Is Therefore Ordered and Adjudged that said plaintiff and appellee Charles A. Lent, have restitution of the premises described'in said complaint after 90 days from May 6, 1950, unless said sum of $1,-451.83 be paid o.n or before said period of time.”
Defendant urges that she and plaintiff entered into an agreement whereby plaintiff was to take over the Wasyliw contract and allow defendant credit for the amount due on said contract.
Defendant testified:
“It was prior to the first collection by Mr.- Lent on the Wasyliw contract, may be 2 or 3 weeks before. My conversation with Mr. Lent was 2 or 3 weeks prior to April of 1948. It took place at his home on Martindale in Detroit. * * * Mr. Lent did not see the contract so far as I know at that time, but I told him exactly what it was, and he asked me to get it surveyed so that we could properly describe the property sold to the Wasyliws. He would then take over the contract and apply the entire amount so owing him on my other contracts. * * * I brought the contracts up to date in April in 1948.”
Defendant also testified that she received a letter from plaintiff a copy of which reads as follows:
“April 13,1948.
“Dear Mrs. Dickinson:
“Thanks for the- payments. Now you can get the land surveyed so we can have the legal description of both properties north and south of M-59. We will take over Mr. Wasyliw’s contract. I think we should have a new contract on both properties so Mrs. Lent’s name will be on same. T prefer to have this deal closed in Mr. Smith’s office in Howell. Just let me know when you are ready and I will meet you there any time. Thanks again.
“Charles A. Lent.”
Plaintiff testified:
“I do not know what is the principal balance due on the Wasyliw contract. I have never seen the contract. * * * The money on that contract has been paid directly to me. * * * I have accepted $900 on the Wasyliw contract since September 15, 1948. I don’t known how much I accepted before that time. * * * I have been accepting payments since that time on this contract. As of January 15, 1949 there was still $5,376.69 due on the Wasyliw contract.”
Sam Wasyliw testified:
“Then Mr. Lent came to see me. Nobody was present except the 2 of us. Oh, he told me, ‘Mr. Wasyliw, I got that place closed. Don’t worry, you can go to sleep. I can protect you good, not protect her. Don’t worry anymore.’ That is all about that.
“He told me to make the payments to him. My attorney looked the contract over and the contract said in fine print if anything goes wrong I could write right straight to the owner. He told me to make the payments to him and he would protect me. I have continued to make the payments directly to him.”
Defendant testified:
“I have not made any collections whatever on the Wasyliw contract. As far as I know Mr. Lent has had complete charge of the contract since the agreement and has made the collections. I am willing to transfer this contract to Mr. Lent. I have signed such papers and they have been 'offered in court. I am willing to sign a new contract with the Lents name on it for the property south of M-59 after .delivering copy of survey to Mr. Berriman. The property covered by the Wasyliw contract is north of M-59. I have exercised no control of the Wasyliw contract since April of 1948.”
It also appears that defendant made out a quitclaim deed and assignment of the contract to plaintiff and the same was offered to plaintiff in court. In the. ease at har, defendant having disclaimed any title or interest in the proceeds of the so-called Wasyhw contract and plaintiff having promised to take over such contract and having accepted pay.ments from Wasyliw, it will be considered that the rights of. defendant in and to such contract have been equitably assigned to plaintiff. "We also hold that there is competent evidence to support the finding of fact made by the trial court of the amount of credit to be allowed defendant by reason of her [payments made on both contracts and the equitable assignment of the Wasyliw contract to plaintiff.
The judgment is affirmed, with costs to defendant. However, defendant may have 60 days from the date of affirmance of judgment to comply with its terms.
Boyles, Carr, and Btjshnell, JJ., concurred with Sharpe, J.
Butzel, J.
(for reversal). It appears from the record that this petition for a delayed appeal is a result of neglect or afterthought, and that Clara Dickinson was at all times apprised of the action which had been taken against her and could have protected her rights by a prompt appeal as provided by law. Under the circumstances, the trial court abused its discretion, as the application for delayed appeal should have been dismissed. Draper v. Tooker, 16 Mich 74; Selby v. Brading, 218 Mich 667, and cases cited therein.
A short chronological statement of the facts will be helpful. On September 15,1948, Clara Dickinson, as vendee, defaulted on 2 land contracts held by Charles A. Lent, vendor. On December 7,1948, a letter was sent to her at her business address, informing her that if she did not bring the contract up to date the whole amount would be declared due, and foreclosure proceedings would be instituted. A similar letter was sent to her home on December 17,1948. In January of 1949, Mr. Dickinson, Clara’s husband, became seriously ill, and it appears that he required much attention from Mrs. Dickinson until July 11, 1949, when he died. On January 24, 1949, the con tracts were declared forfeited. Proceedings were begun before the circuit court commissioner on February 15, 1949, and service was had on the 21st of that month. The cause was set for hearing on March 5th, but the attorneys for the parties stipulated that it be continued until March 19th. On March 18th, the day preceding the hearing, Clara Dickinson appeared at the office of plaintiff’s attorney in connection with a survey of the Wasyliw property. At that time she was informed that a judgment for the full amount of the contract would be taken the next day. On March 19th, Clara Dickinson was not personally present at the hearing, but appeared through her attorney when judgment was taken for the full amount due. On July 5, 103 days after the time to appeal had expired, the instant proceeding was begun.
In her affidavit, Clara Dickinson listed 3 reasons why her application for leave to take a delayed appeal should be granted.
(1) She claimed that she supposed that judgment would only be taken for the amount that she was in default and not for the entire amount of the contract. The testimony shows that Mrs. Dickinson- learned in her conversation on the day immediately preceding the hearing that the plaintiff intended to take judgment for the entire amount. In this connection it might be added that Mrs. Dickinson is not the classic “poor widow” type, uninformed as to her rights, and easy prey for every unscrupulous passerby. She is a woman of considerable astuteness. She was familiar with proceedings before the circuit court commissioner as there had already been 2 prior actions by the present plaintiff to compel payments on the contracts in question. She had been a real estate broker and it appears that she handled her husband’s business affairs even prior to his illness.
Moreover, even if slie were not actually informed of the outcome of the case the excuse would not be legally sufficient. She had knowledge of the date of the hearing and was represented at the hearing by an attorney. Either of these would be sufficient to charge her with notice of what transpired at the hearing. Anderson v. Wartenberg, 196 Mich 529; Huddleston v. Charles Amos & Co., 180 Mich 253; Draper v. Tooker, supra. To hold otherwise would be to allow every litigant whose presence was not deemed necessary or convenient at the trial to take a delayed appeal, and this would be an unwarranted circumvention of the statute.
(2) She further claims that she was prevented from taking the appeal because of the sickness of her husband. In Kowalsky v. Wayne Circuit Judge, 221 Mich 457, Judge "Wiest, speaking for the Court, said that sickness in and of itself was not a sufficient circumstance beyond the control of the litigant to warrant a delayed appeal. The applicant must show that the sickness incapacitated him from attending to his affairs. The earlier cases involving sickness, Bearse v. Aldrich, 40 Mich 529; and Braastad v. Alexander H. Dey Iron Mining Co., 54 Mich 258; are not in conflict with this decision.
Mrs. Dickinson, after her husband’s illness began, found time to arrange for a survey of the Wasyliw property, to appear at the office of Lent’s attorney, and later' to substitute attorneys and institute the present proceedings. While her presence was often required at her husband’s side, we do not believe it was a sufficient burden to excuse the long delay.
(3) She further claims that she relied upon her attorney to take an appeal if the judgment was not in accord with her just rights, hut that her attorney was honestly mistaken as to the provisions of the land contract and believed that plaintiff had a right to take judgment for the entire amount. This con tention is not valid. There was no mistake here. The attorney did not take an appeal because he thought that Mrs. Dickinson did not want to further contest the matter. This is not a case of attorney’s negligence as was presented in Meyers v. Wilson, 319 Mich 80, where the attorney attempted to perfect an appeal but omitted necessary steps, or as in Frank v. Union Trust Co., 239 Mich 646 (affirmed by an equally divided court), where the attorney negligently allowed the matter to go' by default. Nor is it a case of honest mistake as in Capwell v. Baxter, 58 Mich 571, where the attorney was honestly mistaken as to the date of trial and allowed the opposing party to take a default judgment and the appeal period to lapse. . See contra: Denver & Rio Grande Western R. Co. v. Wayne Circuit Judge, 227 Mich 589; Draper v. Tooker, supra. In this regard we are impressed with the statement of Justice Nelson Sharpe in Frank v. Union Trust Co., supra, at page 653:
• “To hold that under the showing made in the petition and affidavits this defendant was prevented from taking an appeal ‘by circumstances not under his control’ is, in my opinion, equivalent to saying that the statute does not mean what it says. If so interpreted, any person seeking an appeal under it may simply say, ‘I left it to my attorney to decide and he neglected to take an appeal.’ And the attorney may well say, ‘I need give it no attention. The court will- grant a delayed appeal as my client is not chargeable with my neglect.’ ”
Moreover, Mrs. Dickinson waited 108 days before attempting to perfect her appeal. A delay which is excusable after the passage of a few days may become inexcusable after several months have passed. Pickell v. Coates, 147 Mich 53. In the Pickell Case, we said:
“The statute (CL 1897, § 909) relieving parties who have been prevented from taking appeals by circumstances not within their control, should be considered a remedial statute, and while it should have a reasonable construction no construction should be adopted which does not take account of the evident intention of the legislature to require prompt action by the defeated party, if he would appeal.”
While we have at times been inclined to grant a. delayed appeal when there are good reasons given or the delay is a short one, we believe that under the circumstances of this case it was an abuse of discretion to allow the appeal from the judgment of restitution 108 days after rendition of the judgment.
The order allowing the delayed appeal should be reversed and the case remanded to the circuit court with directions to enter an ordér dismissing the appeal from-the judgment of the circuit court commissioner. Costs to appellant.
Reid, C. J., and North and Dethmers, JJ., concurred with Butzel, • J.
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] |
Dethmers, J.
This is habeas corpus and ancillary certiorari to inquire into the cause of plaintiff’s detention in the Lapeer State home and training school. He was committed there, while a minor, as a feeble-minded person, by order of the probate court, pursuant to the provisions of PA 1923, No 151, §§ 10, 11, as amended by PA 1947, No 106 (CL 1948, §§ 330.20, 330.21 [Stat Ann 1947 Cnm Snpp §§ 14.810,14.811]). Plaintiff claims the proceedings in that court defective. They must be in strict conformity with statutory requirements. In re Myrtle Davis, 277 Mich 88; Freedman v. Freedman, 303 Mich 647; In re Payette, 315 Mich 700. The necessity for strict-compliance with the statute was in nowise diminished by the fact that the proceedings were brought while plaintiff stood committed to the State hospital at Ionia as an insane person under the provisions of CL 1948, § 767.27 (Stat Ann 1949 Cum Supp § 28.967) in a certain criminal cause then pending and thereafter nolle prossed, nor by the fact that said proceedings were brought solely for the purpose of transferring plaintiff from the one institution to the other.
Plaintiff complains first of the insufficiency of the petition for his admission to Lapeer. Section 11 of the statute provides in part that such petition shall ■“contain a statement giving the facts and not the conclusions upon which the allegation of such mental disease is based.” The petition in the case at bar represented that the facts upon which the allegation of feeble-mindedness was based were as follows: “Simple, childish, immature, cannot read or write, I.Q. of 41, behavior typical of an imbecile.” The averment of inability to read or write and of an I.Q. of 41 does not afford a sufficient factual basis for the conclusion of feeble-mindedness, as such facts may not necessarily be inconsistent with the existence of an untrained but, nevertheless, sound mind. The remainder of the statement consists of conclusions and opinions without the facts upon which they are based.. Such petition, fatally defective, could not servé to confer jurisdiction on the probate court and ■ its subsequent order was, therefore, a nullity. In re O’Neil, 239 Mich 450; In re Joseph Nowack, 274 Mich 544.
Complaint is also made of the certificates of the 2 physicians for failure to state the. grounds upon which their opinions of feehle-üiindedness were' based. We think this objection also well taken. Under section 10 of the statute, as then in effect, such certificates were required to “contain the facts and circumstances upon which the opinion of .the physician is based.” This requirement is jurisdictional. Freedman v. Freedman, supra. In the instant case one of the certificates represented those facts and circumstances to have been as follows:
“Evidently has only the intelligence of a very low-grade imbecile, with no power of judgment or reasoning. He cannot name the days of the week, nor months of the year. Cannot add 2 and 3, though he' has learned to count. He could not be held responsible for his acts, since he has no conception of right, and wrong.”
The other represented them as follows:
“This young man is 20,years of age and has a mental I.Q. of 40. He cannot read or write. He was-, arrested for gross indecency and committed to prison and then transferred to the Ionia State hospital. This man is definitely feeble-minded and should be transferred to the Lapeer State home and training-school.”
So much of the above as constitutes statements of facts and circumstances suffers from .the same infirmity hereinbefore noted concerning the like statements contained in the petition. The remainder, as in the case of the petition, amounts to nothing more than statements of the opinions and’ conclusions of the physicians. It should be said here that the requirements of the statute that the specified statements-of the petition and certificates shall set forth -facts,, not mere conclusions, are mandatory not only when made by ordinary laymen but as well when made by physicians, despite the fact that the latter may well qualify as expert witnesses for the giving of opinion, evidence for certain purposes. Such opinions do not satisfy the statutory requirements in this connec-' tion. It is the prohate judge, not the physicians, who must make the determination of feeble-mindedness; it must be predicated upon a showing of facts, not merely upon the opinions of others, whether laymen or physicians.
Plaintiff also urges that the probate judge erred in failing to appoint a guardian ad litem for him in the, proceedings. "When, as here, personal service of the notice of hearing is had upon the person alleged to be feeble-minded, the statute permits but does not require such appointment. Plaintiff contends that even though such appointment be not mandatory but permissive only, the failure to make it amounted, under the facts of this case, to an abuse of discretion. The consideration of this claim involves the review of the probate judge’s determination of those very facts and requires our decision of a question of judicial discretion, which is not the office of habeas corpus. See In re McKinney, 326 Mich 190.
The law then in effect did not require a stenographic record to be taken of the testimony and proceedings before the probate court. We are not in accord with plaintiff’s position that failure to take it rendered the order of the probate court a nullity. The probate judge has filed a return, certifying to the substance of the testimony adduced and the proceedings had before him, which proved sufficient in those respects for a determination of the issues in this case. In passing, it may be said that on each of those issues the excellent brief of the solicitor general was of inestimable value and assistance to the Court.
An order may enter discharging plaintiff without prejudice to such further proceedings ás may he deemed necessary..
Carr, Btjshnell, and Sharpe, JJ., concurred with 'Dethmers, J. Reid, C. J., concurred in the result.
CL 1948, § 330.21 (Stat Ann 1947 Cum Supp § 14.811). — Reporter. | [
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Dethmers, J.
Defendant Gilmore, then owner of the 4 lots in question, defaulted in payment of the 1930 to 1935 taxes. The lots were put up for sale at the May, 1938, tax sale and bid in by the State of Michigan. Gilmore did not redeem within the 18-month period expiring in November of 1939, fixed for that purpose by the statute then in effect. CL 1929, § 3467, as amended by PA 1939, No 52 (CLS 1940, § 3467, Stat Ann 1940 Cum Supp §7.120). By deed dated August 7, 1940 (and also by later deed), after the 18-month redemption period had expired and title had vested in the State of Michigan but before the lots were sold by the State land office board on ■ so-called scavenger sale, defendant Gilmore and wife conveyed them to defendant Michigan State highway department. No application was made to the State land office board by any municipality to withhold the lots from the scavenger sale. Thereafter said board sold on scavenger sale and conveyed the lots to Herman Domine by deed dated November 25, -1940. The latter and wife conveyed by deed to plaintiffs. They brought this.suit praying for decree setting aside the deeds from Gilmore to the State highway department and quieting title in plaintiffs. From decree granting such relief the defendants appeal.
Did the deeds from-Gilmore convey any interest in the lots to the State highway department? At the expiration of the statutory period for redemption in November of 1939 the auditor general deeded the lots to the State and title thereto became absolute in the State of Michigan. Meltzer v. State Land Office Board, 301 Mich 541,. and cases cited therein. There remained to Gilmore the right to match bids at the subsequent scavenger sale. That right was not assignable. Redford Union Schools, District No. 1, v. State Land Office Board, 297 Mich 535; Cobleigh v. State Land Office Board, 305 Mich 434. It was not sought to be exercised by either Gilmore or the State highway department.
Defendants contend, however, that under section 5 of the State land office board act (PA 1937, No 155, as amended by PA 1939, No 244 [CLS 1940, § 3723-1 et seq.; Stat Ann 1939 Cum Supp § 7.951 et seq.]) any municipality within whose boundaries the lands lie may, at any time prior tó the scavenger sale provided for in section 7 of the act, apply for withholding of such lands from such sale and redeem them; that such right of redemption, although exercisable only by a taxing unit,.is for the direct.benefit of. the prior owner who upon payment of the amount necessary to redeem would become entitled to a deed from the State, citing Oakland County Treasurer v. Auditor General, 292 Mich 58; and that it is that right of redemption which Gilmore conveyed to the State highway department. While it is conceded that no municipality made application to have the lots withheld from the scavenger sale, defendants claim that once the highway department acquired' the claimed interest from Gilmore, no taxing agencies thereafter had authority to sell the lots to pri vate purchasers under the provisions of the tax laws, citing Graham v. City of Detroit, 174 Mich 538 (44 LRA NS 836), and King v. School District No. 5, 261 Mich 605.
In the very case of Oakland County Treasurer v. Auditor General, supra, relied upon by defendants, this Court, in speaking of the provisions of section 5 of the State land office board act relating to withholding of lands from the scavenger sale, said with respect thereto:
“Even under the most liberal construction of section 5, there is nothing which either expressly or by implication gives the owner an extension of time within which to pay taxes and redeem his land. * * * The opportunity to pay the taxes and redeem the property after title has become vested in the State, if given at all, is given the municipality, and not the owner.”
The difficulty with defendants’ reasoning is that Gilmore had no right under the statute to demand that the lots be withheld from the scavenger sale or to require that any municipality apply for such withholding and, further, that if any .municipality had so applied it could have redeemed the lots with its own funds and could not have been compelled by Gilmore to use his funds for that purpose so as to-bring his case within the equitable considerations involved in Oakland County Treasurer v. Auditor General, supra. The hope, if it existed in this case, on the part of Gilmore that a municipality would make application for the withholding of the lots from the scavenger sale and, second, that such municipality would accept and employ his funds for the purpose of redeeming the same in order to entitle him to a deed from the State under our holding in Oakland County Treasurer v. Auditor General, supra, hopes which were utterly unfounded and unrealized in this case, or even the possibility that such events might occur, did not constitute an interest in land assignable by Gilmore any more than the right to match bids at the scavenger sale heretofore held by this Court to be nonassignable. After title had vested in the State upon expiration of the period for redemption, the owner had no interest in the land, but only a nonassignable privilege of matching the bid at the scavenger sale. James A. Welch Co., Inc., v. State Land Office Board, 295 Mich 85; Mount Clemens Savings Bank v. State Land Office Board, 309 Mich 153. After November of 1939, Gilmore had no assignable interest in the lots in question and, in consequence, the State highway department took nothing under the deeds from Gilmore.
Decree affirmed. Costs to plaintiffs.
Reid, C. J., and Boyles, North, Carr, Btjshnell, and Sharpe, JJ., concurred. Btjtzel, J., did not sit.
But for later amendment, not applicable to this case, making privilege assignable, see PA 1937, No 155, § 5a, as added by PA 1941, No 363 (CLS 1945, § 3723.5a, Stat Ann 1950 Rev § 7.955[1]). | [
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Bttshnell, J.
Geneva C. Mayo was granted a decree of divorce on October 26,1945. She was awarded the custody of Ronald Wayne Mayo, then 2 years of age. Defendant Bertrand C. Mayo was ordered to pay $7.50 per week to Geneva for the support and maintenance of Ronald.
Shortly after the divorce, Geneva’s health began to fail and she was obliged to return to her parents’ home near Kunkel, in Ohio, where she died bn June 12, 1948. In her last will and testament she expressed the hope and desire that her mother, Isa Osmun, be given the custody of Ronald. It is stated in appellant’s brief that pursuant to the testamentary request she was appointed the guardian of Ronald by the probate court for the county of Williams, State of Ohio, that being Ronald’s domicile.
Ten days after the death of Geneva, defendant filed a petition seeking the custody of Ronald. An answer was filed by Isa Osmun and her Husband. The trial judge filed an informative opinion in which he recited that 3' attachments had been issued because of defendant’s failure to obey the court’s order respecting the support and maintenance of Ronald. An order was entered continuing the custody in Isa Osmun for 1 year after August 9,1948, and until further order of the court. The right of visitation was accorded the defendant and he was permitted to have Ronald in his home in Litchfield, Michigan, during the last 2 weeks in July.
Defendant filed a second petition on September 2(J 1949 (erroneously stated in the record as 1948), to. which Isa Osmun filed an answer.
The trial judge again considered the situation. In a written opinion he reviewed in detail all the material facts, including those pertaining to conditions in the home of the remarried father, the unusual care given the boy by the maternal grandparents,- and the testamentary desire of the mother. He emphasized the child’s need of parental care in the future as the grandparents become “progressively older.”
The divorce decree was amended to give the custody of Ronald to his father at the conclusion of the current semester of his school year, and that Mayo thereafter be relieved from payment of any sums for Ronald’s support and maintenance. The maternal grandparents were awarded custody during the month of July each year, and in the event they became unable to provide a suitable home for Ronald during that month, and the half-sister of Ronald (15 years his senior) could do so, she was to have the child during July each year.
The maternal grandmother, now 69 years of age, has appealed from the amended decree.
She denies that there has been any change in circumstances which would warrant a change in custody, and that the best interests of the child, in view of Ms tender age, Ms mother’s will and his father’s conduct, do not require such a change. She also argues that the prosecuting attorney of Hillsdale county, Michigan, has not been notified as required by statute (CL 1948, § 552.45 [Stat Ann § 25.121]), did not appear, and has not made any recommendations in the matter.
The controlling question, or as it has been sometimes described, the polar star to guide to the conclusion, is the good of the cMld and his future welfare. In re Stockman, 71 Mich 180, 193.
We are impressed by the loving care accorded the child by the maternal grandparents and the present home and family conditions of the father. Especially are we impressed by the careful consideration accorded the matter by the trial judge on. each of the petitions. We are not disposed to substitute our judgment for that of the trial judge..
Notwithstanding our view of the correctness of the decision of the trial judge, the statutory requirement of notice to the prosecuting, attorney is mandatory. Bishop v. Bishop, 286 Mich 567; McClellan v. McClellan, 290 Mich 680 (127 ALR 731) ; and Geark v. Geark, 318 Mich 614.
The amended decree is vacated and the cause is remanded for further proceeding in compliance with the statute, supra. No costs.
Reid, C. J., and Boyles, North, Dethmers, Butzel, Caer, and Sharpe, JJ., concurred. | [
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Bxjtzel, J.
Wilbur F. Held, defendant, in an information filed September 28, 1948, containing 3-counts, was charged:
First: “On or about the 15th day of June, A.D. 1943, and on divers other days and times between that day and the 1st day of December, A.D. 1945, * * * Wilbur P. Held, Arthur P. Sauve and Johnny Sierens, did unlawfully * * * conspire * * * to wilfully and corruptly violate the laws of this-State, against gambling.”
Second: (as amended at the commencement of the trial) “On or about the 15th day of June, A.D. 1943, and on divers other days and times between that day and the 1st day of December, A.D. 1945 * * * Arthur P. Sauve and Johnny Sierens, did unlawfully * conspire * * * with Wilbur P. Held, who was from the 1st day of January, A.D. 1943 through the 23d day of June, A.D. 1946, the duly elected * * prosecuting attorney for said county of Macomb * * * for the purpose and with the intent of thereby inducing and conspiring with said Wilbur P. Held, a public official, to become lax, negligent and to refrain from the full performance of his official duty relative to the enforcement of the criminal laws of the State of Michigan.”
Third: “On or about the 15th day of June, A.D. 1943 * * * Wilbur P. Held * * * did then and there corruptly accept * * * $400 * * * under an agreement and understanding with one Arthur P. Sauve, that his judgment and decision would be given in favor of allowing illegal gambling to operate.”
Some 8 months after a-jury found the defendant-guilty on all 3 counts, the court, on its own motion, dismissed count 2, and sentenced Held on each of counts 1 and 3 to not less than 15 months nor more than 5 years, the terms to run concurrently, with a recommendation that the minimum terms be served. Upon leave granted, a general appeal was taken.
On June 6,1946, Held appeared before Judge Herman Dehnke, sitting as a one-man grand jury (so-called) in the county of Macomb under the authority -of CL 1948, §§ 767.3, 767.4 (Stat Ann §§ 28.943, .'28.944) . On motion of the attorney general, Held was asked:
“Have you since January 1, 1943, received from 'Merton "Wertheimer, Dan Sullivan, Lincoln Fitzgerald, (other names), * * * or from any other person in their behalf (emphasis added) any moneys ■or other things of value ?”
“If so, state full details thereof as to dates, ■amounts, and place and number of payments, and of all conversations relating thereto or to the understanding of the purpose under or for which such ■payments were made?”
Judge Dehnke granted immunity from prosecution to Held, as provided in CL 1948, § 767.6 (Stat Arm § 28.946), ordered that he be not prosecuted for any •offenses concerning which his answers may have tended to incriminate him, and required him to an•swer the questions propounded to him. It will be ■noted that the crimes alleged in the information fell within the period covered by the immunity order. There was also a second grant of immunity given to "Held by Judge Dehnke based on Held’s activities ■during the term of Ivan Johnston, the prosecuting ■attorney who immediately preceded Held in office.
To prove the conspiracies in counts 1 and 2, and the bribe in count 3, the prosecution introduced the testimony of Arthur P. Sauve and John Sierens. 'Sauve testified that he met with Wertheimer, Sullivan and Fitzgerald, who were in the gambling business and are referred to as the “syndicate,” and Sauve entered into an agreement with them. It provided that Sauve was to contact and arrange for bribes to be paid to 2 Michigan State Police officers whom he knew, and in return the “syndicate” was to allow Sanve and his partner Sierens to place their slot machines in the gambling ' places run by the “syndicate.” Except for the placing and servicing of slot machines Sanve- had nothing to do with the operation of the .gambling places. The collections' from the slot machines were made by Sierens’ employees. The profit was split 50% to the “syndicate,” the other 50% to Sanve and Sierens in equal shares.. Out of the latter 50%, Sauve paid Held more or less-regular monthly amounts, aggregating some $3,800.. This money was paid to Held in order to operate the slot machines without interference, and the “syndicate” arranged for its own protection in running its gambling places. During cross-examination Sauve testified:
“q * * * Everything these men did to enable that gambling operation of the slot machines you owned, to proceed and go ahead and operate, redounded to your benefit because you were getting half of the proceeds. Eight?
“A. That is right. * * '
“Q. * * Whatever you did to keep the ball rolling to keep your machines operating in these places you testified they were operating, the same places owned by the syndicate, whatever you did operated to their benefit? * * *
“A. Yes.”
This arrangement lasted from April, 1943, until some time in 1946. There was other testimony not relevant to the immediate decision.
It is not necessary to indulge in semantics, or to> look for authorities to determine the meaning of the phrase “in their behalf” in the immunity order, and its application to the present facts. Its meaning is plain. If Sauve had not given the money to Held, presumably he would not have been allowed to con tiixue his illegal business. Had this happened, .Sauve’s full partners in the slot-machine business would have lost their share of the profits. Clearly, any money paid to Held by Sauve also was in behalf -of the “syndicate,” who obviously thus ran their gambling places without any interference from Held.
The defendant attempted to stand on the immunity order. It was presented as the basis for a plea in abatement as well as in the opening statement, again •during the people’s case and finally as a matter of defense. However, it was never admitted into evidence, the court first holding that the crimes charged did not fall within the immunity order, and then, after the testimony was in and it had become apparent that it did, that it was incumbent upon the defendant to show that he had answered the questions, and also that such answers did tend to incriminate him, relying on People v. Norwood, 312 Mich 266. The jury was charged that it was not to consider any immunity order in reaching its decision.
' It seems more than likely that if Held gave a complete answer to the questions in the immunity order, he would have told of his nefarious dealings with the “syndicate’s” agent. However, the record does not contain Held’s answers to the questions,' nor were they introduced during the trial. This may, perhaps, have been due to Judge Dehnke’s desire to maintain secrecy in the proceedings, for the statute provided: '
“And any such questions and answers shall be reduced to writing and entered upon the docket or journal of such justice or judge, and no person required to answer such questions upon such motion shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate him.” CL 1948, § 767.6 (Stat Ann § 28.946).
It was not incumbent upon Held to see to it that the judge performed this statutory duty.
During the trial of the instant case, the people did not deny the validity of the immunity orders (nor could they conscientiously do so, for Held had already been adjudged guilty of contempt of court for refusing to answer questions at the trial of Ivan Johnston, the court there holding that he could not refuse to answer having been granted complete immunity from prosecution by Judge Dehnke’s immunity orders). However, the people claimed that the immunity order did not prima facie include the conspiracy and bribe with Sauve and Sierens as they were not named, and before immunity could become effective the defendant must shcny that he gave answers that tended to incriminate him. The people contended that if Held was in fact protected, he had the burden of producing his answers.
Held claimed that the only reason he did not have his answers in the immunity order was because Judge Dehnke had neglected the administrative step of recording the answers on his docket. He argued that satisfactory answers to the questions in the immunity order would have included the conspiracy and bribery, and that the answers must have been satisfactory for the immunity order was never rescinded, and, in fact, Judge Dehnke certified in writing that the immunity order was valid in June of 1948 long after the testimony was given. Thus, Held claims, he has been prima facie protected by an immunity order, and that it was incumbent on the prosecution, which at all times had ready access to the grand jury records as far as they existed to show that he had not incriminated himself.
The State could have introduced Held’s answers to the questions in the immunity order. People v. McCrea, 303 Mich 213; People v. Karoll, 315 Mich 423. Held also could have forced the introduction of the testimony. People v. McCrea, supra; People v. Norwood, supra. It is conceded by the prosecution that the immunity order is valid, and it is conceded by Held that if his answers did not tend to incriminate him, he would not be immune from prosecution. Thus the primary question for our decision is: Hid the State have the burden of showing that Held’s answers did not incriminate him, or was that burden upon the defense? We are constrained to hold that the trial court erred in not requiring the State to show that Held had not incriminated himself.
We will first distinguish the Norwood Case, supra, for it seemingly holds that a defendant, relying upon an immunity order must show that he incriminated himself before he can take advantage of that order. In the Norwood Case, the crimes charged were committed after the grant of immunity. An immunity order does not protect against subsequently committed crimes. People v. Woodson, 309 Mich 391 (157 ALR 419). Moreover, the defendant did not introduce the immunity order, and there was nothing before the court to indicate the nature of his testimony. We recognized that it might be possible, due to the peculiar facts in the ease, that the defendant had incriminated himself. However, the contingency was so remote that we felt it was incumbent upon the defendant to make a showing. In the instant case, the crimes charged fall within the period covered by the immunity order. Defendant made repeated efforts to introduce the immunity order at the trial. By the testimony of the State’s principal witness, it was shown that Sauve was acting on behalf of the men named in the immunity order. The probability that Held had incriminated himself was not too remote, as it was in the Nor-wood Case. For these reasons the Norwood Case, supra, is not applicable.
We believe- under the authority of In re Watson, 293 Mich 263, that the prosecution had the burden of showing that Held’s answers did not tend to incriminate him. The Constitution of 1908, art 2, § 16, provides:
“No person shall be compelled in any criminal case to be a witness against himself.”
We held in the Watson Case that the statute, CL 1948, § 767.6 (Stat Ann § 28.946), was as broad as the constitutional inhibition, and that a person could only be made to answer incriminating questions upon the granting of absolute immunity against prosecution for any offense that the defendant may have tended to incriminate himself of by his answers. It is apparent in the instant case that if Held’s answer was of. any length, there could have been many facts or references given which could have been the key •to the discovery of the Sauve conspiracy. See In re Watson, supra, at page 271, where we quote from Chief Justice Marshall’s opinion in the Burr trial. Under these circumstances it would be unjust to require Held to prove that he had incriminated himself in answering the questions.
For this reason the judgment of conviction must be reversed, and the sentence set aside as there was no showing that Judge Dehnke’s order of immunity was not effective.
The defendant also claims that there was a misjoinder of counts, relying principally on People v. Ormsby, 310 Mich 291. In the Ormsby Case the defendant was tried on 16 counts. The first 15 each charged the defendant with conspiracy to violate the gambling laws, and the 16th charged the defendant with conspiracy to obstruct justice. We held that the 16th count was entirely different and inconsistent with the first 15, and that they were not provable by the same testimony. Since it is well settled that the State cannot prosecute for separate and distinct crimes by means of one information, People v. Bommarito, 309 Mich 139; People v. Stuart, 274 Mich 246, the sentence was set aside, and judgment of conviction reversed. At first glance, it would seem that the Ormsby Case is controlling, for in the present case, the first count charged a conspiracy to violate the gambling laws, and the second a conspiracy to obstruct justice.' However, because of Held’s position as prosecuting attorney, the 2 counts were not inconsistent.
The purpose of prohibiting inconsistent counts in a single information is to protect the defendant. In People v. Ormsby, supra, we said, quoting from People v. Aikin, 66 Mich 460, 472 (11 Am St Rep 512) :
“He (defendant) has a right to be warned by the complaint and warrant of what he is accused, and ought not to be convicted of 2 different crimes, committed at different times, under 1 information, with the evidence of each confounded as a whole, and used indiscriminately to convict him of both.”
And in People v. McKinney, 10 Mich 54, at page 94, we said:
“As a general rule, in cases of felony, when it clearly appears, from the indictment or otherwise, that several entirely distinct felonies are intended to be charged and proved, the court will, in its discretion, either quash or compel the prosecutor to elect: * * * But there is nothing technical in the rule; and in the exercise of this discretion the court will not be governed simply by the question whether several different offenses in point of law are charged and intended to be proved; but mainly, as a general rule, by the consideration whether the trial of these several offenses would involve the proof of substantially different transactions, and thereby tend to confuse the defendant in his defense, or deprive him of any substantial right. And therefore where the several offenses charged, though distinct in point of law, yet spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction, or connected series of facts, the defendant cannot be prejudiced in his defense by the joinder, and the court will neither quash nor compel an election.”
Held was prosecuting attorney, charged with enforcing the law of the State of Michigan. By his acts in conspiring to allow gambling, he was also conspiring to obstruct justice. Thus both crimes arose out of the same acts and transactions, and were provable by the same testimony. People v. Lowenstein, 309 Mich 94. The joinder was not prejudicial to the defendant. As count 2 has been dismissed we need not discuss whether certain testimony given thereunder was properly admitted.
Nor is there any merit to the defendant’s contention that it was improper to join the bribery count with the conspiracy counts. The bribery was an integral part of a single transaction, the agreement between Held and Sauve regarding gambling;. It is true that the time element is different, but this is of no consequence, for if the bribery were the sole charge, the events which took place over the years would be admissible in evidence to show the purpose for which the money was paid. CL 1948, § 768.27 (Stat Ann § 28.1050). See People v. Summers, 115 Mich 537; People v. Dyer, 79 Mich 480; People v. McKinney, supra.
During the instant trial, the State introduced testimony given by Held, while under a grant of immunity, as a people’s witness at a preliminary examination in criminal proceedings against Ivan Johnston. In the excerpts read, Held admitted that Johnston was taking bribes for allowing gambling, and that he, as assistant prosecutor, received his share of the money. In listing the people who had paid, both Sauve’s and Sierens’ names were mentioned.
The people claim that the testimony was admissible under the provisions of CL 1948, § 768.27 (Stat Ann § 28.1050), to show the defendant’s motive and the absence of mistake or accident. It is argued that the testimony could not possibly incriminate the defendant for it covered a period prior to Held’s term as prosecuting attorney, and that, therefore, the grant of immunity was inoperative. Moreover, the State claims that it was so obvious that the defendant was guilty that the testimony could not possibly have been prejudicial. We find that the State’s conduct in introducing this evidence was improper and highly prejudicial to the defendant.
Held would not have been convicted unless the State could have proved beyond a reasonable doubt-all of the elements necessary to constitute the crimes of conspiracy or bribery, the overt acts and the requisite criminal intent. If the jury believed that Held had acted without criminal intent, it would have been its duty to find the defendant not guilty. Thus one of the elements of guilt was shown in part by the excerpts from. Held’s testimony at the Johnston examination. There can be no doubt as to the effect of this testimony on the jury. Held, in the excerpt, admitted that he was guilty of identical conspiracies, with the same conspirators, as those charged .in the information. Whatever reservations the jury may have felt prior to hearing this testimony must have been dispelled, and Held’s conviction became a predictable result.. Thus we have the situation where a man testifies freely, assured that the State could not henceforth punish him for the crimes lie admitted committing; and then finds that the same testimony is used to complete the proof of his guilt. While the judge stated that he only allowed the testimony to show Held’s criminal intent, the grant of immunity was a protection against the use of the testimony for any purpose. The judge apparently was aroused hy Held’s infamous conduct, hut the lowest criminal is entitled to a fair trial. In re Way, 41 Mich 299. In Re Watson, supra, we held that the statutory safeguard was as broad as the constitutional inhibition against self-incrimination. If we allow this evidence to be admitted, we must ignore the plain words of the Constitution. In 'the event of a retrial, the above testimony will not be admissible in evidence. The State’s claim that Held did not make a proper objection to the evidence is without substance and merits no discussion.
Held claims other errors in the admission of evidence. As they will not recur on a new trial, we shall not discuss them.
The judgment of conviction is set aside and the sentence vacated, and the cause remanded for a new trial, at which it must he shown by the State that Held’s answers to the questions in the immunity orders given by Judge Dehnke did not tend to incriminate him of the- crimes charged.
Boyles, J., concurred with Btjtzel, J.
Amended by PA 1949, No 311; PA 1951, No 276, which amend-' :ments have no effect on the instant decision.
1 Burr’s Trial, p 244, Fed Cas No 14692e, 25 Fed Cas 38, 40. — Reporter. | [
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Dethmers, J.
This action was brought for the wrongful death of plaintiff’s decedent. A jury returned a verdict for plaintiff. The trial court entered a judgment for defendants non obstante veredicto. Plaintiff appeals. Defendants have not cross-appealed but, in their brief, request a new trial in the event of reversal.
Defendants, husband and wife, were co-owners of an automobile, which the wife was driving and the husband occupying as a passenger. She stopped the car, as directed by a stop sign, for a through street. Decedent, a 16-year-old boy, rode a bicycle through a gasoline station located at the corner immediately to defendants’ right and proceeded toward defendants’ car. Plaintiff claims that decedent rode the bicycle onto the crosswalk in front of defendants’ standing car, whereupon it started forward abruptly, striking the bicycle broadside. The record is devoid of testimony for plaintiff concerning decedent’s course of conduct and manner of riding the bicycle prior to the collision, leaving nothing from which it may be inferred that he saw defendants’- car, maintained a proper lookout or conducted himself as an ordinary, careful and prudent person -would have done under like circumstances. Testimony for the defense was that the car had started forward and almost reached the center of the intersecting street when decedent’s bicycle suddenly cut in front of defendants’ right fender after having passed the car along its right side. Defendant driver admitted that she first saw the hoy on the bicycle at the instant of the collision. When struck the boy was thrown onto the hood of the car. Defendant driver testified that she thereupon became very distraught, excited and upset and that she could not remember clearly what she did or what happened after the impact. Defendants entered the intersection with the intention of making — and they did make — a left turn. After the collision the car continued forward, increasing its speed gradually to. about 10 or 15 miles per hour, with the boy bouncing up and down on the hood, for a distance claimed by plaintiff to be from 135 to 150 feet. In completing the left turn the car went up over the far curb and then back onto the pavement, during which time the boy fell, was dragged under the car for about 30 feet and then run over by a rear wheel. Within a couple of hours he died of resulting injuries; Plaintiff claims that decedent would not have been seriously injured had the car stopped promptly after the collision.
There was evidence sufficient to go to the jury on the question of whether defendant driver was guilty of negligence which was one of the proximate causes ■ of the accident by reason of her admitted failure to “ observe decedent’s approach. On the other hand, the learned trial judge was correct in holding that plaintiff had failed to sustain the burden of proving decedent’s freedom from contributory negligence constituting a proximate cause of the collision. It was upon that ground that judgment non obstante veredicto for defendants was entered. That judgment should not be permitted to stand, however, because of the existence in this case of the question of defendants’ subsequent negligence.
Plaintiff’s declaration contained 2 counts. The first declared on defendants’ negligence and .dece-. dent’s freedom from contributory negligence. Count 2 incorporated all of count 1, including allegations that defendants were guilty of gross negligence and wanton and reckless misconduct in failing to look out for decedent and in failing to. stop the car within a reasonable distance after striking him and discovering him in a position of peril on the hood of the car. Count 2 also alleged that it had become defendants’ duty to discover decedent in that position of peril and so to avoid injuring him, and that they had had the iast clear chance to avoid such injury to him. The trial court declined, however, to submit the case to the jury on the last clear chance theory on the ground that, as a prerequisite thereto, plaintiff must allege and prove decedent’s contributory negligence, or negligence on his part which placed him in the position of peril, citing Gibbard v. Cursan, 225 Mich 311; Davidson v. City of Detroit, 307 Mich 420; Morrison v. Hall, 314 Mich 522; and Dulemba v. Tribble, 325 Mich 143.
Plaintiff refused to plead or concede decedent’s contributory negligence and contended for the right to go to the jury on the alternative theories that decedent was free from contributory negligence but, if found guilty thereof, that he was excused therefrom by defendants’ subsequent negligence. In that contention plaintiff was correct. The trial court’s view is not supported by the cases just above cited. In the Gibbard Case this Court held that the question of plaintiff’s contributory negligence was properly one for the jury, but, at the same time, held the lower court correct in also submitting to the jury the question of defendant’s “gross negligence” (not in that case synonymous with “subsequent negligence”). In the Davidson Case this Court considered at length the question of whether the trial court was correct in holding plaintiff guilty of contributory negligence as a matter of law, following which we passed on the question of whether, under the facts of that case, defendant was guilty of subsequent negligence. This was a plain recognition by this Court of plaintiff’s right to have considered both the question of his own freedom from contributory negligence and that of defendant’s subsequent negligence. In the Morrison Case it happens that plaintiff’s negligence was an admitted fact; but the question'of whether plaintiff could go to the jury, first on the question of his own freedom from contributory negligence and, if found guilty thereof,, then of defendant’s subsequent negligence, was not involved nor considered. Likewise, in the Dulemba Casera considered first whether the question of plaintiff’s guilt of contributory negligence was one of law or fact, and thereafter the claim of defendant’s subsequent negligence, which wTe rejected on the single ground that it was not shown that defendant had or should have discovered plaintiff in a position of peril in time sufficient to avoid the injury to him.
While neither the trial court nor defendants cite nor rely upon the case, this Court’s opinion in Kerns v. Lewis, 246 Mich 423, would seem, upon cursory reading, to lend support to the trial court’s view. We think, however, as an examination of the record and briefs bears out, that the real meaning of that case is that the doctrine of last clear chance, apparently never urged by plaintiff, was not in the case because not pleaded. Language in the opinion appearing to support the view of the trial court in the instant case we reject as utterly out of harmony with the views of this Court uniformly reflected in its other opinions on the subject, both before and ever since. In addition to the cases above discussed, see, also, in this connection, Kelley v. Keller, 211 Mich 404 (20 NCCA 228); Golob v. Detroit United Railway, 228 Mich 201; Howell v. Hakes, 251 Mich 372; and Mallory v. Pitcairn, 307 Mich 40.
The confusion in this case appears to have resulted from a misconstruction of the expressions of tliis Court on the subject, of which the following from Davidson v. City of Detroit, supra, is typical:
“In order to apply the doctrine of subsequent negligence * * * plaintiff’s negligence must have put her in a position of danger, must have ceased to operate as the proximate cause of the accident, the defendant must have discovered plaintiff’s peril or should by the exercise of ordinary care and diligence have discovered plaintiff’s peril, the defendant must have had sufficient time and ability to avoid resulting harm by ordinary care and diligence in the use of the means at hand, and failed or omitted to use such care and diligence to avert the threatened injury.”
The quoted language does not lay down the rule that a plaintiff must plead or concede his own negligence in order to be entitled to go to the jury on the last clear chance doctrine. Bather, it means that even though the court or jury should find that plaintiff was placed in a position of peril through his own negligence, the latter will not bar recovery by plaintiff if it had ceased to operate as a'proximate cause of the injury caused by defendants’ subsequent negligence. The law has been well stated in Gibbard v. Cursan, supra, as follows:
“In the ordinary case of negligence, if the plaintiff has been guilty of negligence, contributing to the injury for which the action is brought, he cannot recover. It is to avoid this rule and to excuse contributory negligence of a plaintiff that the doctrine of gross negligence is usually invoked. * * *
“The theory of gross negligence is that the antecedent negligence of plaintiff only put him in a position of danger and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proxi mate cause. Cooley on Torts (2d ed), p 674; Labarge v. Pere Marquette Railroad Co., 134 Mich 139.
“If the plaintiff is in a position which has become dangerous and he is free from negligence, and the defendant knows, or ought by the exercise of ordinary care to know, of plaintiff’s peril, and never-, theless negligently injures him, there is no occasion to invoke the doctrine of gross negligence to excuse negligence of plaintiff, for there is no negligence of plaintiff to be excused. Schnurr v. Detroit United Railway, 222 Mich 591.”
Whether decedent’s injuries were due solely to defendants’ negligence, without contributory negligence on his part, or, on the other hand, were due to defendants’ subsequent negligence after decedent’s negligence had placed him. in a position of peril and then ceased to operate as a proximate cause of the ensuing injuries, in either event plaintiff would be entitled to recover. If defendants discovered or, in the exercise of due care, should have' discovered decedent in a position of peril, in sufficient time to be able, by the exercise of due care and diligence in the use of the means at hand, to avoid injury to decedent but failed to exercise such care and use such means, with the result that decedent was injured by reason of such neglect by defendants, the latter are liable to plaintiff in damages regardless of whether decedent came into such position of peril without fault or negligence on his part or through his own negligence which had ceased to operate as a proximate cause of the ensuing injury. Gibbard v. Cursan, supra. That right of plaintiff to recover under either of those 2 sets of circumstances the court may not defeat by requiring her, at her peril, to gamble on whether the jury might prefer the theory of decedent’s freedom from contributory negligence or that of defendants’ subsequent negligence. When sub sequent negligence- is properly pleaded by plaintiff tbe occasion for tbe application of that doctrine by court or jury arises when the court or jury has found antecedent negligence on plaintiff’s part, regardless of whether such negligence was pleaded or conceded by plaintiff or not. Here the court found plaintiff’s decedent guilty of contributory negligence as a matter of law. Inasmuch, therefore, as plaintiff was entitled to have the case considered by the jury under the last clear chance doctrine, a right denied her by the trial court, the judgment non obstante veredicto in favor of defendants ought to be set aside.
It remains to be determined whether the case should be remanded for entry of judgment for plaintiff on the jury verdict or for a new trial. Under the court’s instructions, which in nowise touched on the law pertaining to subsequent negligence, the jury’s verdict could have been predicated only upon a finding of decedent’s freedom from contributory negligence. They so answered a special question. As previously stated, the verdict cannot be sustained on that theory for lack of proofs. The verdict is not saved by the fact that answers to special questions, submitted at defendants’ request, indicate that the jury might have found for plaintiff on the subsequent negligence theory had the case thus been submitted to it. Without deciding what the rule might be if the undisputed and established facts warranted holding defendants guilty of subsequent negligence as a matter of law (In this connection see: Emerson v. County of Santa Clara, 40 Cal 543; O’Neill v. Thomas Day Co., 152 Cal 357 [92 P 856, 14 Ann Cas 970]; Armstrong’s Admr. v. Keith, 26 Ky 107 [3 Marsh 153, 20 Am Dec 131] and annotations under latter.), suffice it to say that in the instant case defendants’ subsequent negligence, if any, presented a question of fact for the jury. Under such circumstances a verdict erroneously returned in plaintiff’s favor on the theory of decedent’s freedom from contributory negligence cannot be upheld merely because it might have been returned under the last clear chance doctrine, when the jury actually was permitted and required to arrive at- its verdict without the benefit of any instructions whatsoever touching the law governing the application of that doctrine. Before judgment may enter against defendants on that theory, they are entitled to the decision of a jury under proper instructions as to the law applicable thereto. Jorgensen v. Howland, 325 Mich 440.
Relying on Court Rule No 66, § 8 (1945), plaintiff urges that defendants are not entitled to a new trial nor to have errors against them considered other than as waived because defendants have not cross-appealed nor attached to the record a statement of reasons and grounds therefor. Compliance with this rule serves the desirable purpose of placing both parties in the same position as relates to the necessity for apprising each other and this Court of their claims of error and limiting the scope of their appeals thereto. An appellee ignores the requirements of the rule at his peril. In re Knox’s Estate, 220 Mich 469; Yacobian v. Vartanian, 221 Mich 25; Levin v. Fisher, 217 Mich 681; Peters v. Aetna Life Ins. Co., 282 Mich 426. This Court possesses inherent power, however, to order a new trial whenever it deems that the ends of justice so require. The rule cannot operate to compel this Court to invade the province of the jury or to function as a trial court in .determining whether, as a matter of fact, defendants were guilty of subsequent negligence entitling plaintiff to recovery. It was no doubt with the thought of avoiding such and other highly undesirable consequences of a strict enforcement of Rule No 66, § 8, that this Court in 1945 promulgated Court Rule No 72, § 1(h), which provides, under the head ing of “Miscellaneous Belief Obtainable in Supreme Court
“In the event that a judgment non obstante veredicto is set aside on appeal, the Supreme Court may-grant a new trial, provided, however, that such relief has been asked for and reasons therefor set forth in'the brief.”
To hold otherwise and to give. Buie No 66, § 8, a strict construction would serve to render Buie No 72, § 1 (h) meaningless. While this Court should and does give due regard to its own rules, the promulgation thereof cannot shackle the powers of this Court to do that which ought to be done if otherwise within the powers of the court. We note, in passing, that the granting of a new trial here.is not inconsistent with CL 1948, § 691.692 (Stat Ann §27.1462). We do not base decision thereon inasmuch as the subject comes within the esclusive powers of this Court and is, therefore, outside the legislative province. (Const 1908, art 4, §§ 1, 2; art 7, §§ 1, 5.)
Judgment non obstante veredicto reversed and cause remanded for new trial. No costs on this appeal, neither party having prevailed in full. Costs in the court below to abide the final result.
Beid, C. J., and Boyles, North, Butzel, Carr, Btjshnell, and Sharpe, JJ., concurred. | [
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Sharpe, J.
This is a chancery suit in which plaintiff asks that he be decreed the legal and equitable owner of a 1948 International dump truck and Fruehauf dump trailer. Defendant filed a cross bill in which he asks for an accounting for moneys received by plaintiff in payment for the employment of the vehicles under a “lease agreement.”
In September, 1949, plaintiff was associated-with his brother in the business of hauling sand and gravel under the name of the Allstate Supply Company. He owned several heavy dump trucks and trailers, among them being a 1948 International dump truck and a 1948 Fruehauf trailer. Sometime prior to September 19, 1949, plaintiff had an argument with 2 of the drivers in his employ regarding wages and the number of trips that were being made, which re- suited in plaintiff offering to let them maintain the trucks and take the responsibility of their operation with payment to plaintiff for such use. This conversation was overheard by defendant, Yallie Earp, who subsequently offeréd to accept the proposition that plaintiff had offered his 2 employees.
At this time, defendant was a crane operator for Ready Mix Concrete, Inc. William L. Hendon was a son-in-law of defendant and had beén employed by plaintiff’s brother as a driver for the Allstate Sup-’ ply Company. Plaintiff’s trucks worked .out of 'the yards of the Ready Mix Concrete, Inc. Plaintiff’s-equipment was usually laid off from about the- first of November through the following March or April.' Plaintiff was approached by defendant who informed ■ him that if he (defendant) had a truck it would have a preference at Ready Mix Concrete, Inc., and urged plaintiff to transfer title to him so that the same could be displayed to the yard owner and the truck kept operating. After some discussion, plaintiff -agreed to transfer title to defendant and put William Hendon on his payroll. Plaintiff took a lease back on, this equipment. After the title was transferred, William Hendon was placed on plaintiff’s payroll and drove the equipment until April, 1950. The arrangement with Earp continued until the middle of January, 1950, when William Hendon had an accident and was informed by plaintiff that there was no liability insurance.
The cause came on for trial at which time defendant claimed that he purchased plaintiff’s equipment ■for the sum of $6,500 on September 20, 1949, which was paid at defendant’s home.
During the course of the trial the court indicated ¡he wanted lie detector tests before deciding the issues. He said:
“I am not going to decide this case until your clients take a lie detector test. This case will he adjourned until — it will be the first case on the call Tuesday, the 25th and we will keep on it until we are through.”
The trial resumed and later, the following took place in the court’s chambers.
“The Court: I will put this on the record. Both counsel are. present and I want to confirm the agreement of counsel that their clients have consented voluntarily to submit to this polygraph test. They are each paying half of the expense of the test. This is $25 cash. Have you collected that 1
“Mr. Gallagher: I have.
“The Court: Have you?
“Mr. Eggenberger: I will.
“The Court: You also consent to have your client answer any questions that the operator feels might aid the court in reaching a decision and having the questions and answers taken by the operator and then read in court afterwards subject to your cross-examination?
“Mr. Eggenberger: As far as the plaintiff is concerned it is so agreed and I will stipulate upon the same lines with Mr. Gallagher, counsel for the defendant.
“Mr. Gallagher: We will enter our agreement on the record and make the same stipulation.
“The Court: As to all those matters.”
(Thereupon the polygraph tests were given in a private room, after which at 1:05 o’clock p.m. all parties returned to the courtroom.)
Alex L. Gregory, the witness called by stipulation: of counsel, testified that he was a personnel consultant and conducts lie detector examinations. He stated: j
“I have formed an opinion with relation to' that; matter and it is my opinion that Garrett Stone is' not telling the entire truth regarding the matter and that Yallie Earp has told me the truth regarding ' the payment of money.”
At the close of the proofs, the trial court filed an opinion decreeing defendant to be the legal and equitable owner of the vehicles in question. The court’s opinion contains the following:
“The polygraph tests were a definite aid to the court in this case, in supporting what appeared to be the preponderance of evidence, and in removing doubt in the court’s mind as to the possibility of fraud owing to the fact all of defendant’s 3 witnesses to the payment were his own immediate family.
“The court is satisfied from the testimony and the written instruments that a sale and purchase and payment in full ($6,500) took place, vesting title in the defendant.”
Plaintiff appeals and urges that it was error to give consideration and weight to the opinion of the polygraph operator. In our opinion it was error to introduce in evidence the result of the tests, but such error was not prejudicial for reasons hereinafter discussed.
In People v. Becker, 300 Mich 562 (139 ALR 1171), we held that it was not error to refuse admission in evidence of the result of such tests for the reason that such tests used in ascertaining the truthfulness of a witness are still too much in the experimental field for courts to approve of their general use. "We. find no reason why a different rule should be followed in civil cases than in criminal cases.
Defendant urges that the use of the polygraph and resultant opinion evidence given at the trial were not necessary for decision and relies on Central Rent-A-Car & Garages, Inc., v. Franklin Mutual Ins. Co. of Illinois, 291 Mich 578, where we said:
“This being an appeal in equity we hear the case de novo and, if the competent proofs establish plaintiffs right to the relief granted in the circuit court, the error, if any, in admitting incompetent testimony is of no decisive moment. The competent evidence established the alleged representations.”
We are not unmindful of the fact that at the direction of the trial court, the parties agreed to submit to the tests, but whether by voluntary agreement, court direction, or coercion, the results of such tests do not attain the stature of competent evidence. In the case at bar the trial court had about concluded that the preponderance of evidence was in- defendant’s favor prior to the admission of such tests. This is only another' way of stating that plaintiff liad not maintained the burden of proof. In all civil cases, whether in law or chancery, the burden of proof is upon the claimant. Under the circumstances of this case the admission of the result of the tests in evidence, while error, was not prejudicial for reasons heretofore stated.
Plaintiff also urges that the findings, opinion and decree of the trial court are not supported by the record and are against the Weight of the evidence. The principal issue in this case is whether the truck was paid for. Plaintiff claims that no money was paid, while defendant claims that the sum of $6,500 was' paid by him to plaintiff in bills which he had in a bos in- his bedroom closet.
Plaintiff testified:
“Mr. Earp never paid me any money at any time. Erom September 20 on I never paid him any money, I did give him one check around the first of October for around $12 for a side mirror that had been put on by Hendon and an oil change and transmission grease that he had. a bill on. The check was made out to Earp and this was after Hendon started to drive.” •
Joanna Stone, wife of plaintiff, testified:
“I have never received any money from Earp and never saw him pay any money to my husband. In the conferences between them there was never any discussion about paying for the truck. I have never received any money from Earp and never seen him pay any money to my husband and never saw any of the $6,500 that Earp claims he paid for the truck. In the conferences between them there was never any discussion about paying for the truck.”
Defendant testified:
“That is my signature on plaintiff’s exhibit 3, the title. It was signed on September 20, 1950 at a notary public’s on Van Dyke. Only Mr. Stone and I were present. The lease and title were signed the same night but the lease was signed after the title was transferred. The title was transferred to me because I bought the truck and paid Stone $6,500 that I had in my home. I have had some of it since ■1941. I had more than $6,500 at the time I paid Stone. I had $585 left in the box after I paid him.”"
Marie Earp, wife of defendant, testified:
“I know of my own knowledge that there was money paid to Garrett Stone that night. I saw the money. We had it in our bedroom closet. I think I know how much money was there. I saw the money paid to Garrett Stone. My husband had. told me how much money he was going to pay. The night before he had talked to me about buying the truck and we went out and looked at several different trucks. My husband paid $6,500 for this truck. There was $6,500 in the house previous to the transaction. I saw the money in Mr. Stone’s possession.’
William Hendon, son-in-law of defendant, testified:
“I saw Mr. Earp go in his bedroom and come out with some money. It was a stack of bills and him and Mr. Stone went in the kitchen and Mr. Earp counted the money out to Garrett Stone. I didn’t see how much money it was. At that time I was sitting in the doorway between his kitchen and the living. The couch sits right at the door. I was not in the kitchen. I did see Mr. Earp with the money in his hand. The money was open and stacked up in a stack. I don’t know how much was there. I saw- Mr. Stone put the money in his pocket and his wife was sitting in the living room with the rest of us. When Mr. Earp got through counting the money he went to the door and asked was she ready to go and they both left. Stone was in the kitchen when he put his money in his pocket. I saw the money being counted but I didn’t hear it. I heard some of it but not all. I didn’t pay any attention.”
Nell Hendon, daughter of defendant, testified:
“I saw some money- in the kitchen. My father went in the bedrom and got it. After I saw the money in the kitchen Mr. Stone put it' in his pocket. At that time 1 was sitting on the couch near the door and could see through the door into the kitchen. * *
“After the Stones left that night my father told me that he paid $6,500 for the truck. I saw my father come out of the bedrom with money in his hand and he walked out into the kitchen. Mr. Stone was standing in the door and no one else went into the kitchen. I didn’t hear any discussion, between Stone and Earp as I was looking at the televisión. It wasn’t hard to watch the television and watch the cash being passed out in the kitchen. The money was counted out by my father after he put it on the table. I saw him count it but I didn’t hear him- count it. I don’t have any idea what the bills were. My father never told me what denominations the bills were.”
It is apparent that the testimony of the witnesses is in hopeless conflict, but this being an appeal in equity we hear the case de novo. We do not have the benefit of seeing the witnesses and observing them as they testify in order to assist us in judging their credibility. The trial judge had such benefit. The record sustains his finding of facts. .
The decree is affirmed, with costs to defendant.
Reid, C. J., and Boyles, North, Dethmers, Carr, and Bushnell, JJ., concurred. Butzbl, J., did not sit. | [
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Carr, J.
The declaration filed in circuit court by the plaintiff in this case alleged the right to recover damages on the ground of wilful and wanton misconduct. During the evening of October 17, 1949, Roland B. Anderson and his wife, Elaine, residents of the village of Sparta, went for a ride in an automobile owned and driven by the husband. They took with them as invited guests a man named Kenneth Streeter and plaintiff’s decedent, Lucille G-iesey, a young lady 22 years of age. They were re turning to Sparta some time after midnight when the car left the highway and, after proceeding-through various obstacles, struck a culvert. Mr. Anderson and Miss Giesey sustained fatal injuries.
On the trial of the case in circuit court it was the claim of the plaintiff that Mr. Anderson operated his automobile at such a rate of speed and in such manner as to justify the conclusion that he was guilty of gross negligence or wilful and wanton misconduct' resulting in liability under the provisions of the guest passenger act. At the conclusion of-plaintiff’s proofs defendant moved for a directed verdict. The trial court came to the conclusion that the testimony received was insufficient to establish a prima facie case, and that plaintiff was not entitled to have the issue submitted to the jury. The motion was granted, and judgment entered on the directed verdict. Plaintiff has appealed.
The first question presented involves the admissibility of the testimony of Mrs. Anderson who was called as a witness by plaintiff. Counsel for defendant interposed a general objection, apparently on the ground that Mrs. Anderson ought not to be permitted to testify against the estate of her deceased husband. After certain preliminary questions were asked and answered, specific objection was made to the witness testifying- to a conversation between herself and her husband prior to their starting- on the automobile ride. Thereupon the jury was excused and the examination continued for the purposes of the record. The witness testified that she and her husband had been having some marital difficulties, that they were separated at the time, and that the husband had instituted a suit for divorce. She then testified to the substance of a conversation between them, the gist of which was that Mr. Anderson sought a reconciliation and that she refused. She also testified as to her husband driving at a high rate of speed over gravel roads, that she requested him several time's to decrease his speed, that each time he did so temporarily, later increasing it, and that some beer was purchased and consumed on the trip but without intoxication on the part of any of the occupants of the car resulting therefrom. She also stated that Mr. Anderson displayed irritation because of her rejection of his plea for a reconciliation. Apparently this matter was brought out in support of plaintiff’s claim that Mr. Anderson’s state of mind was unhappy and that his manner of driving was, in part at least, prompted thereby. Following the completion of the testimony of Mrs. Anderson the trial judge concluded that her testimony was not competent, and accordingly he excluded it. Appellant claims that the refusal to allow the jury to consider such testimony was erroneous.
The pertinent statutory provisions on which the ruling of the trial court was based are set forth in CL 1948, § 617.67 (Stat Ann 1949 Cum Supp § 27.-916). Said section reads in part as follows:
“A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, * * * nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage.”
To the inhibition contained in the first part of the section certain exceptions not material in the instant case are made. In the enactment of the statute the legislature did not see fit to extend the bar in such planner as to prevent one spouse, after the termination of the marital relation, from testifying against the other, or the estate of the other, without consent thereto. In the instant case the statute may not be construed as barring the testimony of Mrs. Anderson except as to matters covered in the last provision above quoted. Termination of the marital relation, by death or divorce, does not open the door to one spouse testifying against the other, or against the estate of the other, as to privileged communications between the spouses during the continuance of the relation.
The interpretation of the statute has been considered by this Court in several cases. In People v. Bowen, 165 Mich 231, the defendant was prosecuted for the murder of his wife. As a witness in his own behalf he undertook to testify to a conversation that he claimed to have had with his wife. In holding that the statute barred the testimony, it was said:
“According to the claim of the defense, they were having a last talk before a final separation, and doubtless they were discussing a matter of extreme delicacy and vital importance, closely related to their marital relation, and in our opinion the most liberal construction of the statute would not justify a suspicion even that the communications were not intended to be in marital confidence. 23 Am & Eng Enc Law (2d ed), p 99. They were then privileged, and under the explicit words of the statute the husband could not testify to them without the consent of his wife, which, being dead, she could not give. The privilege secured by this statute survives separation, divorce, and death. 4 Wigmore on Evidence, § 2341; 23 Am & Eng Enc Law (2d ed), p 98.”
In Hendrickson v. Harry, 200 Mich 41, the plaintiff sought to recover damages for alienation of his wife’s affections. At the time of the trial the parties were divorced. The defendant, sought to introduce in his behalf the testimony of plaintiff’s former wife. After quoting the statute, it was said:
“According to the letter of the law the witness Hilma Hendrickson was a competent witness for the defendant except that she could not testify to communications made by herself to her husband and by him to her during their marriage, this action being treated by counsel for both parties as not being- one instituted in consequence of adultery. It is said for plaintiff, appellee, that if she is permitted to answer as to her feeling towards and affection for him, the real reason for her state of mind at the time must be developed by cross-examination, which it is obvious cannot be conducted without inquiry into the domestic relations; that
“ ‘Had she been permitted to testify that at said time she had lost her affection for her husband, the question would at once arise as to why she had lost her affection for him. Had she been permitted to testify that she lost her affection for her husband on account of his acts of physical violence against her, the cause of such acts of physical violence would necessarily have to be inquired into.. In any event, it would be impossible to cross-examine the witness so as to show the real reason for her loss of affection for the plaintiff, without going into their marriage relation.’
“It must be held that the divorced wife was a competent witness, generally, for the defendant— and for that matter'for the plaintiff — and it appear-' ing that no objection was made that the offer to prove was too broad, no suggestion made that it should be more specific, it is held that the court should have permitted the examination to proceed until testimony was called for which she was not competent to give. "What questions may be asked her cannot be anticipated, nor can this Court upon this record lay down any rules for the trial court beyond the one above stated. The witness will be subject to cross-examination like any other witness, and her credibility and the weight of her testimony will be for the jury.”
In re Doty’s Estate, 212 Mich 346, involved the validity of a will which the daughter of the testator contested. In an attempt to etablish that testator was subject to insane delusions, his widow was called as a witness, testifying as to conversations and actions on his part tending to belittle and discredit him. Knowledge with reference to such matters came to her because of the marital relation. It was held that the widow could not testify competently to such matters. In Patterson v. Hill, 212 Mich 635, an action for alienation of the wife’s affections, tried after the granting of a decree of divorce, it was held that the trial court was in error in wholly excluding the testimony of the divorced wife called as a witness in defendant’s behalf. It was there said:
“We are of the opinion that when the marriage relation has been terminated, the statute prohibits the testimony of either spouse against the other only to the extent of privileged communications. That Mrs. Patterson was a competent witness in many matters pertinent to the issue is very evident. It seems unreasonable to hold that she might not testify as to many matters, including her conduct and relationship with the defendant; and as was said by Chief Justice Ostrander (Hendrickson v. Harry, supra):
“ ‘What questions may be asked her cannot be anticipated, nor can this Court upon this record lay down any rules for the trial court beyond the one above stated.’ ”
See, also, People v. Gessinger, 238 Mich 625; People v. Zabijak, 285 Mich 164; People v. Ignofo, 315 Mich 626. In the instant case Mrs. Anderson was a competent witness as to matters not involving privileged communications between herself and her husband. Her testimony as to their conversations relating to their marital affairs was open to objec tion. She was not a competent witness with reference to Mr. Anderson’s attempt to effect a reconciliation, nor generally as to matters concerning which she had knowledge because of the existence of the relation of husband and wife between the parties. This applies particularly to statements by her indicating that Mr. Anderson was angered by her refusal to agree to a reconciliation. Plaintiff was entitled to have her testimony as to matters concerning which she could competently testify submitted to the jury, and the exclusion thereof was erroneous.
In determining whether the verdict for defendant was properly directed, consideration must be given to such portions of Mrs. Anderson’s testimony as were competent and also the testimony of other witnesses in plaintiff’s behalf. Two deputy sheriffs of Kent county who investigated the accident the following morning told the jury of the situation existing at the place where the accident occurred. The car left the road at a curve and the results of its impact with obstacles in its path suggests that it was traveling at a high rate of speed. It is a matter of inference from plaintiff’s proofs that Mr. Anderson lost control of the car which went off the highway on the left side. Kenneth Streeter, plaintiff’s principal witness, told in some detail of the trip taken by the young people and particularly with reference to the speed at which the automobile was driven. He heard Mrs. Anderson protest to her husband .with reference to the latter driving so fast. He also testified to hearing certain profanity used. On one occasion he protested to the driver with reference to the speed, and thereupon Mr. Anderson slowed down but shortly thereafter speeded up again. At one time he heard the driver remark that he was going 75 miles per hour. He further stated that after the parties left the gravel road and start ed on a so-called “black top” highway toward the village of Sparta the speed increased. The accident happened after the car had proceeded approximately 1| miles on the tarvia road. On behalf of plaintiff it is claimed the conduct of Mr. Anderson in the operation of his car indicated a spirit of recklessness and wantonness, that he proceeded in the face of danger, of which he knew or should have known, at such a rate of speed that he could not control his automobile, and that he did so with a total disregard of consequences as affecting the safety of his passengers. On behalf of defendant it is contended that Mr. Anderson’s conduct was not, under prior decisions of this Court, of such character as to justify the conclusion that he was guilty of wilful and wanton misconduct or gross negligence within the scope of the guest act.
The trial of the instant case began in circuit court on January 15, 1951. Since that time this Court has decided 2 cases somewhat analogous on their facts to the case at bar. In Kocks v. Collins, 330 Mich 423 (decided May 14, 1951), testimony was introduced tending to establish that the defendant had operated his car on a city street at a speed in excess of 70 miles per hour, that he disregarded the objections and warnings of his guest passengers, and at one time increased his speed in response to a warning rather than decreasing it. The trial judge submitted the case to the jury which found that defendant was guilty of wilful and wanton misconduct and returned a verdict for the plaintiff. This Court affirmed the judgment entered, holding that a jury question was presented. The defendant lost control of his car while endeavoring to pass another vehicle. In reaching the conclusion indicated the Court pointed out that the defendant was bound to observe the physical conditions existing on and along the highway on which he wa,s proceeding. A somewhat similar situation was presented in Price v. Western, 330 Mich 680 (decided June 4, 1951). There defendant drove at a high rate of speed and when his guest passenger remonstrated he failed to slow up. Because of such rate of speed the defendant lost control of his car at a curve, in consequence of which plaintiff sustained serious injuries. It was held that the trial court properly submitted the case to the jury. Kocks v. Collins, supra, was cited, and the further statement made that:
“To the extent that previous decisions of the Court seem to hold to the contrary we now decline to follow the same.”
See, also, Titus v. Lonergan, 322 Mich 112; Davis v. Hollowell, 326 Mich 673 (15 ALR2d 1160); Cramer v. Dye, 328 Mich 370.
In the instant case defendant places some emphasis on the testimony indicating that Mr. Anderson decreased his speed each time when requested to do so by his wife and by Mr. Streeter. Such fact does not, however, render the situation here materially different from that involved in either of the recent cases above cited. It may be'argued that Mr. Anderson decreased his speed in recognition of the fact that he actually was traveling at a dangerous rate and that he then increased it in the realization of such fact but with a deliberate intention to drive at such excessive speed irrespective of the danger or the wishes of his passengers. Regardless of the reaction of the driver of the car in a case of this nature warnings given to him by other occupants of the vehicle are of significance because they have the effect of directing the attention of the driver to his speed and the attendant dangers therefrom. His .persistence in such conduct, as in the ease at bar, after the matter has been called to his attention, is indicative of deliberate purpose on his part. Whether Mr. Anderson was guilty of wilful and wanton misconduct or gross negligence was a question, under plaintiff’s proofs, for the jury to determine.
The judgment is reversed and the case is remanded to the trial court with directions to set aside the judgment in defendant’s favor and to grant a new trial. Plaintiff may have costs.
Reid, C. J., and Boyles, North, Dethmers, Btjtzel, Bushnell, and Sharpe, JJ., concurred.
See PA 1949, No 300, § 401 (CL 1948, § 257.401 [Stat Ann 1949 Cum Supp §9.2101]), which re-enacted CL 1948, § 256.29 (Stat Ann § 9.1446). . | [
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Sharpe, J.
Plaintiff, Kenneth L. Busco, filed a petition in the circuit court of Muskegon county praying for an amendment to a decree of divorce granted him on May 24, 1948.
The original divorce decree granted defendant, Ethel Mae Busco, custody of Lois Ann Busco horn October 22, 1939, and Vida Mae Busco born August 29, 1941. The divorce decree awarded defendant, Ethel Mae Busco, custody of the 5 minor children of the parties until June 11, 1948, and thereafter, plaintiff was given the custody of Lloyd Busco born September 12, 1938, and Boyd K. Busco born April 1, 1945. Plaintiff does not ask for the custody of Duane Busco born April 18, 1948.
In his petition for amendment of the divorce decree, plaintiff alleges:
“IV. That since the granting of the decree of divorce in the above cause and since the defendant has had the custody of the 2 minor children as set forth above, the defendant, Ethel Mae Busco, has engaged in a course of grossly immoral conduct and in a manner detrimental to the welfare of said children, as follows :
“(1) That since the divorce Avas granted to the parties on May 24, 1948, the defendant has not been married and is now a single person; that during the month of February, 1950, the defendant became pregnant and in the month of November, 1950, gave birth to an illegitimate child; that after the birth of said child, the defendant, without any legal proceedings Avhatever, gave said child to a family who is living in the vicinity of Kent City, Michigan; that the defendant had the children who are in her custody in the home with her all during her pregnancy, and said defendant’s immorality with respect to the above matters is of such a nature as to render her unfit to have the care, custody and control of the 2 minor children.
“(2) That the defendant has made a habit and practice of 'frequenting taverns in the vicinity of her. home and, on those occasions, drinks intoxicating liquor and, on occasions, has drunk intoxicating liquor to excess and become intoxicated.
“(3) That the defendant has left lier home on many occasions, leaving the children with another small child in care of them, and has returned to the home on these occasions after excessive drinking.
“(4) That the defendant has neglected the children and has failed to provide them with proper food regularly and has so conducted herself that, she is totally unfit to have the care and custody of said children, and that the custody of said children should be granted to the plaintiff.
“Y That since the granting of the decree of divorce in the abdve cause, the plaintiff has married a woman of good moral character and has a good home near Ravenna, Michigan; that the present wife of the plaintiff has a great interest in the plaintiff’s children and has taken good care of the children who have been in the plaintiff’s custody, and is desirous and interested with the plaintiff in having the custody of the children now in the custody of the defendant granted to the plaintiff; that the plaintiff is a fit and proper person to have the care, custody and control of the minor children who are now in the custody of the defendant.”
Upon the hearing, plaintiff introduced evidence in support of his petition. The trial court denied plaintiff any relief and in an opinion stated:
“The only misconduct established against defendant was relative to a child being born to her out of wedlock. It appears that she was in love with the man in question, and that the child was not born to. her as a result of promiscuous conduct with the man in question, but in the hope and belief that they were to be married. It appears that the man in question ceased associations with her after the birth of the child. There is no proof that defendant had any affairs with any other men, or that she was promiscuous in her relations with him. She gives every evidence of being remorseful for having been intimate with the father of the child born to her out of wedlock, and to be genuinely sorry for having had relations with this man in the expectation of marriage.
“It appears from the admissions of plaintiff that he resided in a home with his present wife, and the children in his custody, since a few weeks after the granting of the decree of divorce, and until they married on December 18, 1948. It is only reasonable to infer- that he was on fairly friendly terms with his present wife before he obtained a divorce from defendant, although there is no proof that he was guilty of any misconduct prior to the granting of the divorce.
“While the conduct of defendant, in having relations with the man who is the father of the child born to her out of wedlock, cannot be upheld or condoned, such misconduct is not decisive of the question of defendant’s present fitness to care for the 2 children in question. She was apparently in love with the man, and consented to relations with ■him under the belief and understanding that they were to be married. As far as the proofs in this case are concerned, she has taken good care of the children and was guilty of no other misconduct. If the proofs indicated that she was otherwise immoral or unfit to have the' custody of the 2 children, I would not hesitate to take them from her custody and award them to plaintiff. Despite the fact.that she made the 1 mistake mentioned, I am convinced that she is a good mother to the 2 children; that she is perfectly competent to give them good care and attention in the future; and that plaintiff has failed to prove that the best interest and welfare of the children require that their custody be given to him.
“Plaintiff’s petition is, therefore, denied.”
Defendant, Ethel Mae Rusco, was called for cross-examination under the statute and admitted the birth of an illegitimate child. Rose Wright, a witness for plaintiff, testified that in 1949 she lived in the home of defendant; that upon several occasions, defendant became intoxicated in public places; that defendant and the father of her illegitimate child occupied a day bed in the kitchen and upon many occasions he did not leave until early morning; and that the children lived on cold lunches most of the time.
. Plaintiff testified:
“I have petitioned for custody of the 2 older girls. I have remarried and am now living at Sullivan, where I am buying a home on a contract. My home has 4 rooms, but I intend to build 2 more rooms and a utility room if the court should award me custody of these 2 girls. I would immediately enlarge the facilities of my home. I have 2 bedrooms now; the boys occupy one and my wife and I the other, but we would immediately make available other facilities if granted the custody of these children.”
This is a chancery case in which we review the record de novo and having done so, find ourselves in disagreement with the finding of facts of the trial court wherein he stated, “The only misconduct established against defendant was relative to a child being born to her out of wedlock.” In our opinion the record clearly establishes that defendant drank to excess, neglected the proper feeding of her children and pursued a course of conduct with the father of her illegitimate child which in our opinion is detrimental to the welfare of young children.
The record establishes that plaintiff is a fit and proper person to have custody of the children. , It follows that the order of the trial court continuing custody of the 2 girls in defendant is reversed. A decree will be entered granting custody of the 2 girls to plaintiff and the cause remanded to the trial court to determine the proper amount of alimony that defendant should be paid for the support of Duane Ñusco whose custody is with defendant. No costs.
Need, C. J., and Boyles, North, Dethmers, Butzel, Carr, and Bushnell, JJ., concurred.
See CL 1948, § 617.66 (Stat Ann § 27.915). — Reporter. | [
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Carr, J.
The general drain law of the State provides for locating, constructing and maintaining drains when conducive to the public health, convenience and welfare. Chapter 7 of the law (CL 1948, § 267.1 et seq. [Stat Ann and Stat Ann 1949 Cum Supp § 11.67 ét seq.]) regulates the procedure to be observed when it is found necessary to clean, widen, deepen, straighten, and extend, any previously constructed- drain. Acting under the provisions of said chapter the defendant drain commissioner is proceeding with a project having for its purpose, as indicated by the record, the deepening, widening and cleaning out of a drain established in Jackson county some 40 to 50 years ago, designated as' the HurdMarvin drain.. It appears that the drainage district to be served by the project is substantially identical with that established at the time of the original construction. The preliminary steps taken by defendant drain commissioner are not questioned.
Chapter 7, § 1, of the drain law requires that the commissioner, as soon as practicable after the order of determination has been filed, shall “go over the line of said drain and fix the per cent, of the cost of such work that the State of Michigan, any county, township, city or village and the owners of land benefited thereby shall bear: Provided, That such apportionment shall be made according to .the benefits received and shall be subject to appeal the same as in the first instance.” The requirement as to the basis of the apportionment is repeated in section 3 of the chapter (CL 1948, § 267.3 [Stat Ann § 11.69]). The total cost of the work to be done in the instant case was estimated, at $66,243.10, and the defendant drain commissioner proceeded to apportion such cost to the State, the county, the township of Blackman, and the owners of lands within the assessment district.
The drain in question is crossed by the Michigan Central Railroad, which is operated by the plaintiff New York 'Central Railroad Company under lease, in 2 places, one on the main line and the other on the Grand Rapids-Saginaw division. At the latter location a new culvert consisting of two 72-inch tubes are to be installed, pursuant to the plans on which the. drain commissioner has let a contract for the work, in lieu of a culvert 48 inches in diameter which was installed by the Michigan Central Railroad Company in 1898 and apparently used subsequently as a part of the Hurd-Marvin drain. Of the total estimated cost of the project the aggregate sum of $4,-948.75 was apportioned to the plaintiffs as the benefit to 3.2 acres of land within the right-of-way of the subdivision in proximity to the crossing. Other property of the plaintiffs was also assessed for benefits but the controversy here has reference principally to the apportionment to the 3.2 acres mentioned.
Claiming that they were aggrieved by the apportionment made by the drain commissioner, plaintiffs petitioned the probate court for the appointment of a board of review as provided for by chapter 6, § 5, of the drain law (CL 1948, § 266.5 [Stat Ann § 11.60]). In accordance with the request made, a board was appointed. Hearings were had and proofs introduced with reference to the acts of the drain commissioner in making the apportionment to the lands within the drainage district of the estimated cost of the project. The members of tbe board viewed tbe lands referred to and reached tbe conclusion, based thereon and on tbe proofs received, that tbe assessment of benefits as made by tbe drain commissioner was “without manifest error.” Tbe appeal was, in consequence, dismissed. Plaintiffs then applied to the circuit court of Jackson county for a writ of certiorari to review the acts of tbe drain commissioner and of tbe board'of review, claiming in tbe affidavit for tbe writ that tbe drain commissioner bad not made a proper and lawful apportionment of benefits against tbe property of plaintiffs and that tbe decision of tbe board of review was erroneous. Tbe writ was issued and, following a bearing in tbe circuit court, an order was entered affirming tbe apportionment and denying tbe relief sought by plaintiffs. Prom tbe order dismissing tbe writ plaintiffs have appealed, alleging that in tbe proceedings by tbe drain commissioner and by tbe board of review there was error requiring reversal.
In tbe decision upholding tbe action of tbe drain commissioner tbe board of review did not make specific findings of fact, merely indicating tbe conclusion that no error bad been established. On behalf of plaintiffs it is argued that because of tbe form of the decision tbe circuit court did not have before it tbe findings of fact upon which it was based, and that, in consequence, they have been deprived of their rights without due process of law. It is conceded that tbe point raised is a novel one, at least insofar as this State is concerned, and no authority is called to our attention that supports tbe argument. Tbe appointment of a board of review under the drain law and the functioning of such board are governed by the express provisions of the statute. The legislature has not seen fit to require the making of a report setting forth specifically the findings of fact on which the conclusion is based. We may not read into the law a requirement that the lawmaking body has seen fit to omit. In the instant case the board of review made its report in the form customarily followed under the drain law. In view of the situation presented we are not impressed that plaintiffs have been deprived of any inherent right, guaranteed by either State or Federal Constitution. The claim that they have been so prejudiced because of the form in which the decision of the board was rendered is not tenable. .
It is also contended by appellants that the drain commissioner in order to properly perform his statutory duties, in assessing the property within the drainage district, should have employed a definite formula, or formulae, in reaching his results. However, as suggested by counsel for defendants, the statute does not prescribe any specific formula but, rather, in terms requires the apportionment of the cost of the project to be made on the basis of benefits received. The language used implies that, in determining what portion of the cost each parcel shall bear, the commissioner shall take into consideration all surrounding facts and circumstances tending to throw light on the question as to the extent of the benefits resulting from the improvement, with due regard to the location of the land, the nature of the soil, the effect, if any, that drainage will have on the adaptability of the land for use, and, as the testimony taken before the board of review suggests, other factors pertinent in each instance. It is apparent from the nature of the problem that no definite formula, applicable in all cases, may be followed. Our attention is not called to any decisions in which, courts have undertaken to fix such a formula. In the instant case one of plaintiffs’ engineers, testifying in their behalf, referred to the so-called “runoff” factor as a matter properly to be considered in the assessment of benefits, but the witness further stated that other factors must also be taken into account in determining the extent of benefits to any particular parcel. We do not understand that on this appeal the plaintiffs contend that the Talbot formula, to which the witness alluded as involving the runoff factor, should have been applied by the drain commissioner in making assessments in the instant case, or that it can be applied in every instance, without reference to the character, location and use of the property, and other pertinent factors. It is doubtless true that in many instances rapidity of drainage is a matter to be considered in the determination of benefits received, but under the statute the determination of the factors affecting the result is committed to the drain commissioner and the board, if appointed, subject to judicial review by writ of certiorari. Obviously the problem is one requiring the proper determination of pertinent facts, and the basing of action thereon. It is equally imperative that, in the determination of apportionment, factors that have no legitimate bearing on a correct result must be disregarded. The serious question at issue in the present case is whether the defendants performed their duties in the manner required by the provisions of the drain law.
In making the apportionment of benefits to the parcel of land, 3.2 acres in extent, above referred to, the drain commissioner included the cost of the material entering into the culvert beneath the roadbed on the Grand Rapids-Saginaw division. The cost of the labor necessary for the installation was assessed on the drainage district generally. The following excerpt from the testimony of the drain com missioner, on the hearing before the board of review, indicates the situation:
“Q. Now, included in the railroad’s assessment —I want to go over this if I may — of benefit is $2,-332.80, being the material?
“A. Cost of the structure.
“Q. Cost of the structure?
“A. That is based upon actual breakdown of the bid as received from the contractor as his cost, his proportionate cost of the drain applied to the railroad construction.
“Q. Then in addition to that you added 4% of the total cost of the drain. Is that correct?
“A. Yes, I think that’s what. I said. There is a copy of that somewhere. If that’s what that statement is, that’s what it is.
“Q. And that amounts to $2,649.72, which, added to the material cost of $2,232.80, comes to $4,982.50 which approximates the $4,948.75 which, you say, is allotted to these 3.2 acres ?
“A. If you are quoting the figures the way I have them, that is what I mean.
“Q. So you want the board to understand that for the apportionment of benefit to the railroad on these 3.2 acres there is 4% of the total cost of the drain allotted ?
“A. That is exactly what I want to. express.”
The witness further testified that the total cost of the culvert, including the labor, will be $11,440 or 17.27% of the estimated- cost of the project. It is obvious from his testimony that he considered that he was wholly justified, and within the scope of his authority under the statute, in ■ charging to the 2 plaintiffs the cost of the material in the new culvert. His action in so doing, however, overlooks the fact that the culvert is a part of the drain and that the entire drainage district is benefited thereby. It could not properly be separated from the rest of the project and its cost assessed in the manner indicated.
Counsel for defendants call attention to chapter 7, § 9, of the drain law (CL 1948, § 267.9 [Stat Ann § 11.75]) which contains the following provision:
“In case the necessity for cleaning out any drain arises from the act or neglect of any land owner, said act or neglect shall he taken into consideration by the commissioner in making the apportionment.”
On behalf of defendants it is argued that said section is applicable in the instant case, and the claim is made that the plaintiffs by their railroad embankment retarded the proper flow of water in the HurdMarvin drain. Emphasis is placed on the fact that in 1898 the plaintiffs removed a wooden culvert that was approximately 4x7 feet in size and substituted for it a metal pipe 4 feet in diameter. The drain commissioner, as is evidenced by his testimony, thought that the smaller culvert was inadequate to properly take care of the water. In 1946, or 1947, the water was so- high that it on one occasion overflowed the roadbed. There is no proof of such an occurrence at any other time. As before noted, the culvert in question was apparently adopted as a part of the original Hurd-Marvin drain. There is no claim that any action was ever taken to compel the plaintiffs to install a larger culvert. It may be noted also that while the exact date of the construction of the Hurd-Marvin drain does not appear in the record, it is a fair inference that it followed the installation of the smaller culvert by the Michigan Central Railroad Company in 1898. On the record before us the application of the statute relied on by defendants, even if given the construction contended for by them, may well be questioned. In any event, we do not think that it was the intention of the legislature in the enactment of the provision quoted to modify the mandate that the apportion ment of the cost of a drain, or of the cleaning ont and straightening thereof, must be made on the basis of benefits received.
It is the claim of the plaintiffs that discrimination against them in the assessment of the property in question, the right-of-way of the Grand Rapids-Saginaw division within the drainage district, is indicated by the great disparity between the apportionment of benefits to such land and the assessments by the drain commissioner on other property in the district. Paralleling the right-of-way of plaintiffs is property owned by the Consumers Power Company, formerly the right-of-way of an electric railway and now used for poles supporting wires conducting electricity. Such parcel, containing approximately 6i acres, was assessed $41.46, or $6.38 per acre. Other land in the upper part of the drainage district, referred to as the Hayes Industries’ property, was assessed at $6.39 per acre, and on the main line of the plaintiffs’ railroad assessments were made at the rate of $6.37 and $6.44 per acre, as compared to the assessment on the Grand Rapids-Saginaw division at the rate of $1,546.49 per acre. Apparently farm property was assessed at a lower rate than land used for industrial purposes. In one instance 65 acres was assessed in the aggregate amount of $93.60. Other parcels were assessed at varying rates, in each instance a small percentage of the rate of assessment made against the 3.2 acres of right-of-way on the Grand Rapids-Saginaw division. The great disparity existing is such as to suggest that, the proportion of the cost of the. drain charged to plaintiffs, of which they here complain, was unreasonable, arbitrary, and discriminatory. .
In support of their position plaintiffs rely on the decision of this Court in Michigan Central R. Co. v. Baikie, 249 Mich 138. There the defendant county drain commissioner made his apportionment under the statute of the cost of cleaning out, widening and deepening, a certain drain located phrtly in Arenac county and partly in Bay county. As a part of the project' it was hecessary to replace small culverts with larger-ones: Claiming that the . assessments against their property were made on an improper basis and involved discrimination, the Michigan Central Railroad Company and the Detroit & Mackinac Railway Company brought suits in equity to restrain the levy of the taxes. Decrees were entered in the trial' court dismissing 'the bills of complaint. On appeal this Court reversed by a 5 to 3 decision. The record in the. case discloses that in accordance with the statute then in effect each railroad company was required to make beneath its roadbed an opening for a culvert, and that damages awarded to the plaintiffs because of the necessity of doing such work were fixed at the sum of $3,200 to the Michigan Central Railroad Company and $3,500 to the Detroit & Mackinac Railway Company. In making his assessments the drain commissioner charged against each of the companies the amount of the damages so awarded,, thus including in each assessment, ostensibly made on the basis of benefits received, the cost of installing the culvert. Such action was held to have been unauthorized and improper. The Court also discussed the great disparity between the assessments made against the railroád rights-of-way and those on other lands within the drainage dis-strict, such disparity being comparable to that existing in the case at bar. It was held that the assessments against plaintiffs were “palpably arbitrary and in'effect fraudulent.” They were accordingly set aside and the cases remanded for new assessments.
In reaching the conclusion indicated the majority opinion in the Baike Case cited the decision of the United States Supreme Court in Kansas City South ern R. Company v. Road Improvement District Number 6, 256 US 658 (41 S Ct 604, 65 L ed 1151). That ease involved special assessments for benefits received by property in the defendant district, which was created by act of the legislature, from the construction of 11.2 miles of gravel road. The plaintiff railway companies were assessed on their, right-of-way at the rate of $7,000 per mile of main track located within the district. Farming land was divided in 5 zones and assessed, according to zone, from $4 to $12 per acre. In reversing the Supreme Court of Arkansas, which had upheld the assessment, it was said:
“The statute under consideration prescribes no definite standard for determining benefits from proposed improvements. The assessors made estimates as to 'farm lands and town lots according to area and position and wholly without regard to their value, improvements thereon, or their present or prospective use. On the other hand, disregarding both area and position, they undertook to estimate benefits to the property of plaintiffs in error without disclosing any basis therefor, but apparently according to some vague speculation as to present worth and possible future increased receipts from freight and passengers' which would enhance its value, considered as a component part of the system.
“Obviously, the railroad companies have not been treated like individual owners, and • we' think the discrimination so palpable and arbitrary as to amount to a denial of the .equal protection of the law. Benefits from local improvements must be estimated upon contiguous property according to some standard which will probably produce approximately •correct general results. To say that 9.7 miles of railroad in a purely farming section, treated as an aliquot part of the whole system, will receive benefits amounting .to $67,900 from the construction of 11.2 miles of gravel road seems wholly improbable, if not'impossible. Classification, of course, is permissible, but we can find no adequate reason for what has been attempted in the present case. F. S. Royster Guano Co. v. Virginia, 253 US 412, 415 (40 S Ct 560, 64 L ed 989). It is doubtful whether any very substantial appreciation in value of the railroad property within the district will result from the improvements; and very clearly it cannot be taxed upon some fanciful view of future earnings and distributed values, while all other property is. assessed solely according to area and position. Railroad property may not be burdened for local improvements upon a basis so wholly different from, that used for ascertaining the contribution demanded of individual owners as necessarily to produce manifest inequality. Equal protection of the law must be extended to all.”
The above case was cited and followed in Thomas v. Kansas City Southern R. Co., 261 US 481 (43 S Ct 440, 67 L ed 758), in which it was held that the special assessment against the property of the railroad companies was so disciminatory as to amount to a denial of the equal protection of the laws guarhnteed by the Fourteenth Amendment to the Federal Constitution. Of similar import is Road Improvement District No. 1 v. Missouri Pacific R. Co., 274 US 188 (47 S Ct 563, 71 L ed 992).
There is nothing in the record before us on which to base a conclusion that the revenues of the plaintiffs, or of either of them, will be increased as a result of the cleaning out and deepening of the HurdMarvin drain, or that there will be any reduction in costs of operation on the Grand Rapids-Saginaw division. "We do not find in the testimony of the defendant drain commissioner anything to suggest that he based his apportionment of benefits against the property of plaintiffs on any such finding. Rather, it appears that he made the apportionment in question, in part at least, because of the increased cost of completing the project resulting from the-necessity of putting a new culvert beneath the tracks on plaintiffs’ right-of-way. In doing so he overlooked the mandate of the statute which required him to act on the basis of benefits received. The amount so charged, embracing as it does the cost of the material in the culvert, together with an additional 4% of the cost of the project on the theory of benefits received, cannot be sustained. As before-indicated, the disparity between the assessments on the various properties in the district indicates that, insofar as plaintiffs are concerned, the. apportionment against the right-of-way of the Grand Rapids-Saginaw division was so unreasonable and arbitrary as to constitute a denial to the plaintiffs of .the equal protection of the laws guaranteed by both State and Federal Constitutions.
The order of the trial court is reversed, and the case is remanded with directions to vacate said order and to require the defendant drain commissioner to make a new apportionment of the cost of the project in accordance with the statute, disregarding in making each assessment all factors not. involved in determining the benefits received. Plaintiffs may have costs.
Reid, C. J., and Boyles, North, Dethmers, Bushnell, and Sharpe, JJ., concurred. Butzel, J., did not sit.
PA 1933, No 316, as amended (CL 1948, §261.1 et seq., as amended [Stat Ann and Stat Ann 1949 Cum Supp §.11.1 et seg.]).,
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Danhof, C.J.
Defendant appeals as of right following his jury conviction of unarmed robbery, MCL 750.530; MSA 28.798, and his guilty plea to being a third-felony offender, MCL 769.11; MSA 28.1083. The sole issue on appeal is whether the trial court abused its discretion in ruling that defendant’s prior convictions for first-degree criminal sexual conduct and assault with intent to commit murder could be used for impeachment. While this appeal was pending, our Supreme Court released People v Allen 429 Mich 558; 420 NW2d 499 (1988). Since portions of Allen are to be given limited retroactive effect to pending cases, this case presents one of our first opportunities to apply Allen, 429 Mich 608-609.
The charges against defendant arose out of the unarmed robbery of Gregory Duvall, an employee of Wierenga’s Marathon gas station in Grand Rapids. Duvall and two other employees, Charles Poisson and Matthew Heyden, were working on the evening of March 11, 1986. Defendant previously worked at the gas station but quit several days prior to the robbery. Gregory Duvall was in charge of taking the day’s receipts to the bank for deposit. Duvall put the bank bag inside his coat and zipped his coat closed. Duvall was in his car when defendant approached him and asked for a ride. After going the distance of a few blocks from the station, Duvall pulled over and stopped his car to let defendant out. Defendant said, "I know you have that money.” Defendant hit Duvall in the face, knocking his eyeglasses into the back seat of the car. Defendant unzipped Duvall’s jacket, reached inside and took the bank deposit bag. Defendant got out of the car and walked away. The incident occurred between 9:00 and 9:10 p.m.
A police report was taken about 9:30 p.m. Officer Clemens went to defendant’s last known address at about 10:15 p.m. or 10:30 p.m. Clemens spoke to Patricia Woodford, who identified herself as defen dant’s girlfriend. Woodford said that defendant did not live there and she had not seen him for three days. Although Woodford was listed as a witness on defendant’s notice of alibi, she was called by the people at trial. At trial, Woodford said that she told Clemens she had not seen defendant because she thought Clemens was "trying to be funny.” She said that defendant was at her house on the evening of March 11, 1986. Defendant left between 8:35 p.m. and 8:40 p.m. to go to the store. Woodford said that defendant returned about forty-five minutes later and that Officer Clemens had arrived during the time period that defendant was gone.
James Merriweather was also listed as a witness on defendant’s notice of alibi. Merriweather was called by defendant. Merriweather said that on March 11, 1986, he was with defendant from 8:50 p.m. until after midnight. At about 9:50 p.m., he and defendant and a third person went to a store where defendant bought cigarettes and pop, which he took to Woodford’s apartment. Defendant went inside the apartment for five to ten minutes while Merriweather and the third person waited in the car.
The first issue we will consider is whether defendant’s failure to testify waived the issue whether his prior convictions should have been suppressed. The United States Supreme Court has held that a defendant must testify in order to preserve the issue of improper impeachment by evidence of prior convictions. Luce v United States, 469 US 38, 41-42; 105 S Ct 460; 83 L Ed 2d 443 (1984). This Court has found that a defendant waived the issue of improper impeachment by his failure to testify when the record is inadequate to show whether defendant would have testified had the prior convictions been suppressed or what defendant’s testi mony would have been. People v Finley, 161 Mich App 1; 410 NW2d 282 (1987), lv gtd 429 Mich 894 (1988). However, this Court has held that the issue is preserved for review if the defendant’s attorney (1) establishes on the record that defendant will in fact take the stand and testify if his challenged prior convictions are excluded, and (2) sufficiently outlines the nature of defendant’s testimony so that the trial court and the reviewing court can do the necessary balancing required under MRE 609. People v Casey, 120 Mich App 690, 696; 327 NW2d 337 (1982); People v Ferrari, 131 Mich App 621; 345 NW2d 645 (1983). In Allen, supra, our Supreme Court declined to address the applicability of Luce in Michigan because it could not achieve a majority position on the merits. Therefore, until our Supreme Court rules otherwise, we will continue to follow Casey and Ferrari.
In the present case, defendant moved for suppression of two prior convictions. Defendant’s attorney said that, if the prior convictions were suppressed, then defendant would testify. In addition, defendant’s attorney indicated that defendant’s testimony would be that the witnesses were fabricating a case against him. While this outline of defendant’s testimony was brief, we believe that it was minimally sufficient to preserve the issue for review.
Next, we will consider whether the trial court abused its discretion in ruling that defendant’s two prior convictions for first-degree criminal sexual conduct and assault with intent to commit murder could be used for impeachment. MRE 609 provides:
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if
(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.
In Allen, supra, our Supreme Court amended MRE 609 and explained the effect of the amendment. Under the new rule, some prior convictions must be allowed to be used for impeachment while other prior convictions may never be used for impeachment, 429 Mich 593-594, 596. These "bright-line” rules do not apply to trials begun before March 1, 1988, and thus do not apply to the present case, 429 Mich 609. However, the trial court has discretion to allow theft crimes with no elements of dishonesty or false statement to be used for impeachment, 429 Mich 596. The Allen Court clarified the factors the trial court should consider when exercising its discretion. The court directed that, until the new MRE 609 becomes effective, these discretionary factors would apply to the balancing process that takes place under the current MRE 609(a) with regard to theft and nontheft crimes, 429 Mich 609.
As MRE 609(a)(2) directs, prior convictions may be used for impeachment unless their probative value is outweighed by the prejudicial effect. The Allen Court provided two factors to be considered in determining the probative value of prior convictions. First, the degree to which the crime is indicative of veracity should be considered. Second, the court should consider whether the prior conviction is remote or recent in time, 429 Mich 605-606.
There are also two factors to be considered in determining the prejudicial effect of using a prior conviction for impeachment. First, the more similar the prior crime is to the charged offense, the greater the degree of prejudice. Second, the more important defendant’s testimony is to the decisional process, the greater the degree of prejudice, 429 Mich 606. When applying this last factor to the facts of the cases consolidated in Allen, the Court looked at whether defendant’s testimony was required to put his version of the events into evidence, 429 Mich 610-612.
In the present case, we find no abuse of discretion in the trial court’s ruling that defendant’s prior convictions of first-degree criminal sexual conduct and assault with intent to commit murder could be used for impeachment. The probative value of the prior convictions is low because both are assaultive crimes. Assaultive crimes have low probative value with respect to veracity, 429 Mich 611. In addition, both convictions occurred in 1979, while defendant’s trial occurred in 1986. Thus, the convictions have low probative value because they were not relatively recent.
Although the probative value of the prior convictions is low, the prejudicial effect is also low. First-degree criminal sexual conduct and assault with intent to commit murder are somewhat similar to the charged offense of unarmed robbery in that all three are assaultive crimes. However, the similarity is not great because the emphasis of first-degree criminal sexual conduct is on the sexual conduct, which is not present in unarmed robbery. Assault with intent to commit murder is somewhat more similar to unarmed robbery, but the emphasis in the former offense is on the intent element while the latter offense requires intent to commit robbery.
The importance of defendant’s testimony to the decisional process is low in the present case. Defendant claimed he had an alibi and he presented an alibi witness. Defendant’s testimony was not required to put his alibi into evidence. Defendant’s attorney said that if defendant testified he would say that the three persons who worked in the gas station were fabricating their testimony against defendant. However, defendant was allowed to present this theory through his attorney’s cross-examination of the prosecution witnesses. It was brought out during cross-examination that defendant was promoted to night manager of the gas station even though he worked there for a shorter period of time than Duvall. It was also brought out that defendant had received a pay raise while Duvall did not. Defense counsel used these facts along with inconsistencies in the testimony to argue that the gas station attendants had embezzled the money and then accused defendant of robbery.
Since the prior convictions were only somewhat similar to the charged offense and defendant’s testimony was not required to put his version of the events into evidence, the prejudicial effect of allowing use of prior convictions was low. The levels of probativeness and prejudice were relatively close. Therefore, the trial court’s decision to allow use of the prior convictions was not error warranting reversal, 429 Mich 611-612.
Defendant’s conviction is affirmed.
C. L. Bosman, J., concurred. | [
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Cynar, P.J.
Plaintiff appeals as of right from an April 15, 1986, judgment and order of summary disposition on the basis of governmental immunity entered in favor of defendants-appellees River Val ley School District, Charles Williams, David VanGinhoven, Donald Bussler and Steven Lenar.
The facts, as alleged in plaintiffs pleadings, are as follows: On or about April 29, 1985, at 7:45 a.m., plaintiff was a passenger on a motorcycle driven by defendant Robert L. Bucks, Jr., on the driveway of the River Valley High School. The operator of the motorcycle drove onto the sidewalk adjacent to the driveway so as to avoid the "speed bumps” in the school driveway. At the same time, defendant Douglas J. Hauch was approaching from the opposite direction in his truck, which was also driven on the sidewalk to avoid the speed bumps. A collision resulted and plaintiff suffered serious injuries.
As a result thereof, plaintiff filed a complaint on July 19, 1985. Thereafter, plaintiff filed two amended complaints. The second amended complaint alleged as to defendant River Valley that a dangerous or defective condition had been created or maintained at the high school due to the speed bumps. In addition, plaintiff alleged that the existence of the speed bumps constituted an intentional nuisance or nuisance per se and that River Valley was vicariously liable for the acts of employees Williams, VanGinhoven, Bussler and Lenar.
On February 4, 1986, defendants-appellees filed their motion for summary disposition alleging immunity from liability on the basis of MCL 691.1407; MSA 3.996(107). On April 15, 1986, following the hearing on the motion held on March 25, 1986, the trial court granted defendants-appellees’ motion. Plaintiff filed a motion for reconsideration, which was denied on May 27, 1986. The instant appeal ensued.
Plaintiff raises four issues on appeal. First, he argues that the lower court erred in granting summary disposition in favor of River Valley on the basis that the public buildings exception to governmental immunity, MCL 691.1406; MSA 3.996(106), was inapplicable. We do not agree.
Defendants’ motion was brought pursuant to MCR 2.116(C)(7), (8) and (10). The judgment which granted defendants’ motion does not state the subrule(s) under which it was issued.
A motion for summary disposition pursuant to MCR 2.116(C)(8) tests only the legal sufficiency of the pleadings. The court must accept as true all well-pled factual allegations as well as any conclusions which can reasonably be drawn therefrom. The court may grant the motion only when the claim, on the pleadings alone, is so clearly unenforceable as a matter of law that no factual development could possibly justify the right to recovery. Abel v Eli Lilly & Co, 418 Mich 311, 323; 343 NW2d 164 (1984), reh den 419 Mich 1201 (1984), cert den sub nom E R Squibb & Sons, Inc v Abel, 469 US 833; 105 S Ct 123; 83 L Ed 2d 65 (1984); Stewart v Isbell, 155 Mich App 65, 74; 399 NW2d 440 (1986).
In contrast, a summary disposition motion under MCR 2.116(0(10) based on the lack of a genuine issue of material fact tests whether there is factual support for the claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Giving the benefit of any reasonable doubt to the nonmoving party, the court must determine whether the type of record which might be developed would leave open an issue upon which reasonable minds might differ. Fulton v Pontiac General Hospital, 160 Mich App 728, 735; 408 NW2d 536 (1987). This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, 389 Mich 363, 371-373; 207 NW2d 316 (1973). Where immunity from suit is at issue, the complaint must plead facts in avoidance of immunity. McCann v Michigan, 398 Mich 65, 77; 247 NW2d 521 (1976); Veeneman v Michigan, 143 Mich App 694, 697-698; 373 NW2d 193 (1985), lv gtd 424 Mich 876 (1986).
Plaintiff argues that the factual assertions in his second amended complaint show the existence of a "defective sidewalk/configuration or structure which encouraged motorists to drive on the sidewalk to avoid 'speed bumps’ in the driveway.” Plaintiff claims that these allegations state a claim within the public buildings exception to immunity. In addition, plaintiff claims as error the trial judge’s determination that there was no defective or dangerous condition on the school grounds since this finding is a factual one within the province of a jury.
In Bush v Oscoda Area Schools, 405 Mich 716, 730-732; 275 NW2d 268 (1979), a majority of the Supreme Court agreed on several principles governing the application of the "defect in a public building” exception. A dangerous or defective condition may exist because of improper design, faulty construction, or the absence of safety devices. The question regarding whether a part of a building is dangerous or defective is to be determined in light of the use or purpose that part is intended to serve. The existence of a defect and its relation to the alleged injuries are to be determined by the trier of fact.
This Court has held that, where the claim of liability arises not from a defect or dangerous condition in the building or its premises but from a failure to properly supervise activities conducted in the building or on its premises, the exception is inapplicable. Grames v King, 123 Mich App 573, 577; 332 NW2d 615 (1983), modified on other grounds 422 Mich 887 (1985); Lee v Highland Park School Dist, 118 Mich App 305, 309; 324 NW2d 632 (1982), lv den 422 Mich 902 (1985).
In this case, the trial court considered the pleadings, affidavits and depositions in making its determination regarding the public buildings exception. The trial judge concluded that the speed bumps were not defective because they were fit for their intended use. Instead, it was the misuse by plaintiff of the speed bumps which led to his injuries.
We concur in the trial court’s findings. The speed bumps were placed on the driveway in order to maintain lower speeds. The accident occurred not as a result of some defect in the speed bumps. It resulted when Bucks tried to avoid using the speed bumps for their intended purpose. Thus, summary disposition was proper.
Plaintiff also argues that the speed bumps constituted an intentional nuisance since drivers tended to use the sidewalk to avoid them and this fact was known to the school district. Moreover, pláintiff claims, a factual issue was made out as to whether the school district created or maintained an intentional nuisance.
To establish an intentional nuisance claim against a governmental agency, a plaintiff must show that there is a condition which is a nuisance and that the agency intended to create that condition. Guilbault v Dep’t of Mental Health, 160 Mich App 781, 788; 408 NW2d 558 (1987). In Garcia v City of Jackson, 152 Mich App 254, 259-260; 393 NW2d 599 (1986), Judge R. B. Burns of our Court discussed this concept. Citing Rosario v Lansing, 403 Mich 124, 142; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149, 161-162; 268 NW2d 525 (1978), Judge Burns provided the following definition of a "nuisance”:
"In order to find an intentional nuisance, the trier of fact must decide based upon the evidence presented that the government agency intended to bring about the conditions which are in fact found to be a nuisance. This finding comports with the definition of intentional nuisance set forth in Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 (1952):
" 'A second [type of nuisance] includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.’ ” [152 Mich App 260.]
There are two conflicts in this Court regarding nuisance claims. The first conflict centers on whether an omission may constitute an intentional nuisance or whether an affirmative act is required. The two conflicting cases are Furness v Public Service Comm, 100 Mich App 365, 370; 299 NW2d 35 (1980) (holding that an omission or failure to act does not constitute an intentional nuisance), and Landry v Detroit, 143 Mich App 16, 25; 371 NW2d 466 (1985) (holding that a failure to act constitutes intentional nuisance).
The second conflict deals with what a plaintiff must show to establish the necessary intent for an intentional nuisance in fact. This conflict has been certified to the Supreme Court. In Ford v Detroit, 91 Mich App 333, 336; 283 NW2d 739 (1979), citing Rosario and Gerzeski, this Court held that a plaintiff must show that the defendant who created or continued the nuisance knew or must have known that harm to plaintiff was substantially certain to follow as a result of defendant’s actions.
However, in Veeneman, supra, p 699, this Court held that an intentional nuisance is one created by conduct intended to bring about conditions which are in fact found to be a nuisance. The Garcia Court acknowledged this conflict and chose to follow Veeneman.
However, we choose to follow Ford. In our opinion, the allegations in plaintiffs complaint failed to establish the existence of an intentionally created nuisance. While plaintiff alleged that the school district became aware that motorists drove on the sidewalk prior to this accident and further that the school district knew or had reason to know that it created a dangerous condition, nothing in plaintiffs complaint suggests that defendants either acted for the purpose of causing harm or knew that harm was substantially certain to follow. We conclude that there is no genuine issue of material fact as to this claim, and the trial court correctly granted summary disposition.
We also reject plaintiffs contention that River Valley is liable on a theory of respondeat superior for the tortious acts of its agents and employees. The Supreme Court in Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 625; 363 NW2d 641 (1984), set forth the narrow conditions under which a governmental agency may be vicariously liable for the acts of its employees:
A governmental agency can be held vicariously liable only when its officer, employee, or agent, acting during the course of employment and within the scope of authority, commits a tort while engaged in an activity which is nongovernmental or proprietary, or which falls within a statutory exception. The agency is vicariously liable in these situations because it is in effect furthering its own interests or performing activities for which liability has been statutorily imposed. However, if the activity in which the tortfeasor was engaged at the time the tort was committed constituted the exercise or discharge of a governmental function (i.e., the activity was expressly or impliedly mandated or authorized by constitution, statute, or other law), the agency is immune pursuant to § 7 of the governmental immunity act. See Hirych v State Fair Comm, 376 Mich 384, 391-393; 136 NW2d 910 (1965), and Sherbutte v Marine City, 374 Mich 48, 50; 130 NW2d 920 (1964) (city cannot be held vicariously liable for torts of its police officers committed during the course of an arrest because the officers were engaged in police activity, which is a governmental function entitled to immunity).
The second amended complaint alleged that River Valley employees were acting during the course of their employment and within the scope of their authority in placing and maintaining the speed bumps. Since we found no public building exception or intentional nuisance, plaintiff has not shown a governmental immunity exception.
Finally, plaintiff argues error in the grant of summary disposition as to defendants Williams, Bussler, Lenar and VanGinhoven on the basis of immunity. Plaintiff claims that the addition and maintenance of the speed bumps constituted a ministerial, rather than a discretionary, act. We do not agree.
In Ross, our Supreme Court held that lower level governmental officials, employees and agents are immune only when they are (1) acting during the course of their employment, or reasonably believe they are acting within the scope of their authority, (2) acting in good faith, and (3) performing discretionary, as opposed to ministerial, acts. Ross, supra, pp 633-634.
In our opinion, the addition and maintenance of the speed bumps was a discretionary-decisional act for the purpose of alleviating speeding in the driveway. This indicates that the decision required "personal deliberation, decision, and judgment,” Ross, supra, p 634, all of which are characteristics of discretionary acts. Thus, the individual defendants were immune.
Affirmed.
J. S. Thorburn, J., concurs in result only. | [
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M. E. Clements, J.
Plaintiff, Colleen Pelton, appeals from a judgment of divorce entered June 2, 1986. Following a six-day bench trial, the trial court made findings of fact, granted an absolute judgment of divorce, ordered the distribution of property, and awarded alimony to plaintiff. Defendant, James Pelton, cross-appeals.
The parties were married on April 16, 1955. At the time of the marriage, plaintiff was twenty-three years of age, while defendant was thirty years of age. Three children were born during the marriage, all of whom reached the age of majority prior to the divorce action. At the time of trial, plaintiff was age fifty-three and defendant age sixty-one.
The parties entered into a separation agreement in 1976, which provided for a $160 per week payment to plaintiff with defendant also making the mortgage and utility payments and providing for plaintiff’s hospitalization insurance and automobile.
Plaintiff did not graduate from high school and, since the marriage, did very little work outside of the home. She became depressed and began drinking alcohol excessively after the birth of their youngest child. She admitted to frequenting bars in the afternoon and not returning home on occasion for days at a time.
Defendant worked long hours in his business and promptly paid for plaintiff’s expenses during their separation. He had no dispute with paying alimony as part of the judgment of divorce.
In deciding the case, the trial court awarded assets valued at approximately $317,000 to plaintiff and assets valued at approximately $664,000 to defendant. The court acknowledged that defendant received more than twice as much as plaintiff, but indicated that plaintiff had engaged in a long continued course of conduct that led to the breakdown in the marriage and would not be rewarded for that conduct. The trial court also indicated that the parties were separated for the last ten years of this marriage and that plaintiff’s contribution to the marital estate had thereafter been minimal.
Because defendant’s 1984 W-2 federal tax form indicated an income of approximately $80,000, the trial court awarded alimony in the amount of $2,000 per month or $24,000 per year. In addition, defendant was required to maintain hospitalization coverage for the benefit of plaintiff.
The first issue we consider on appeal is whether the trial court’s valuation of marital assets, and in particular the valuation of defendant’s stock in two corporations, was erroneous. Defendant owned a fifty-percent, interest in two closely held corporations. Each party presented expert testimony as to the value of these business interests. An unaccepted offer to purchase the businesses by the co-owner of these corporations was also considered in arriving at the valuation of $375,000 for defendant’s stock. A trial court’s valuation of an asset is a finding of fact that this Court will reverse only if found to be clearly erroneous. Kowalesky v Kowalesky, 148 Mich App 151; 384 NW2d 112 (1986), lv den 425 Mich 876 (1986). A finding is "clearly erroneous” if, after a review of the entire record, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976).
The valuation of stock in a closely held corporation is often a difficult task. The trial court may, but is not required to, accept either parties’ valuation evidence. Here, the trial court rejected both expert opinions and arrived at a figure which provided a higher valuation than that outlined in a buy-sell agreement and that of defendant’s ex pert, but significantly lower than the valuation of plaintiffs expert. A review of other cases where marital assets were valued between divergent estimates given by expert witnesses indicates that the trial court has great latitude in arriving at a final figure. Mitchell v Mitchell, 333 Mich 441; 53 NW2d 325 (1952); Greenough v Greenough, 354 Mich 508; 93 NW2d 391 (1958); Schaffer v Schaffer, 37 Mich App 711; 195 NW2d 326 (1972). The trial court had the best opportunity to view the demeanor of the witnesses and weigh their credibility. There was no error in its valuation of marital assets.
The next question to consider is whether there was an abuse of discretion in the division of the assets. An equal division of property is not required, and no mathematical formula governs the division. Christofferson v Christofferson, 363 Mich 421; 109 NW2d 848 (1961). Rather than mathematical precision, the goal is to fashion a fair and equitable division of property in light of all of the circumstances. Greaves v Greaves, 148 Mich App 643; 384 NW2d 830 (1986); Bone v Bone, 148 Mich App 834; 385 NW2d 706 (1986). In Vance v Vance, 159 Mich App 381; 406 NW2d 497 (1987), this Court reviewed several factors a trial court must examine when dividing marital property: the duration of the marriage, the parties’ contributions to the marital estate, the parties’ station in life and earning abilities, fault or past conduct, and other equitable circumstances which may exist. Although the property division in this case was not equal, it was equitable, especially in light of the alimony award.
Next, plaintiff claims that the alimony award was an abuse of discretion in that there was no definite period of duration for these payments. In addition to the rather standard provisions for termination of alimony upon either party’s death or remarriage, there is a proviso in the divorce judgment that the alimony award is subject to the "further order of this Court based on change in circumstances of either of the parties.” Plaintiff fears that defendant may manipulate his earnings in an attempt to avoid payments. Defendant cross-appeals from the alimony provision, claiming that the award of $2,000 per month is excessive in light of his age and business prospects.
An award of alimony is within the trial court’s discretion. Hatcher v Hatcher, 129 Mich App 753; 343 NW2d 498 (1983). This Court reviews an alimony order de novo, but will not modify an award unless convinced that, had it been in the position of the trial court, it would have reached a different result. Parrish v Parrish, 138 Mich App 546; 361 NW2d 366 (1984).
The order in this case allows flexibility in determining the possibility of changed circumstances. The trial court is in the best position to consider if, and what, modification in the alimony order may be necessary in the future. While defendant’s control of his income is greater than that of others who may be employed by larger corporations, the burden of proving a change of circumstances is on the party seeking a modification. In addition, there is the possibility that plaintiff may seek an increase should the facts warrant such action hereafter. In McCallister v McCallister, 101 Mich App 543; 300 NW2d 629 (1980), this Court held that an alimony award without any mechanism for modification due to a change of circumstances constituted an abuse of discretion. Under the facts of this case, there was no abuse of discretion.
The last matter to decide is whether the alimony award is excessive and should be reduced. The factors to consider in determining this ques tion are set out in Hatcher, supra. Here, the parties’ ages, income and assets are such that $2,000 per month is not excessive. This will allow each party to maintain their standard of living and is fair and equitable. Alimony should be paid to plaintiff on a regular basis and should not be subject to defendant’s claim of hardship in that bonuses are paid to him when "appropriate and possible.” Defendant’s annual income is sufficient to pay this alimony amount on a monthly basis, and he shall have to set his financial priorities with this in mind. The stay of execution of the alimony order by the trial court is set aside.
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M. J. Kelly, P.J.
Defendants, third-party-plaintiffs, appeal by leave granted from the lower court order granting the third-party defendant’s motion for summary disposition. We affirm.
Plaintiff, Terry Rogan, built a house with materials supplied by Miles Homes Division of Insilco Corporation. When Rogan insured the house with defendant Allstate Insurance Company in 1982, Miles Homes was listed as mortgagee. The house was insured for $95,000 and the contents for $47,500. On May 7, 1982, the house and its contents were destroyed by fire. Allstate denied Rogan’s claim because of alleged misrepresentations in the application for insurance coverage.
Consequently, Rogan filed suit against Allstate and its agent, Curtis K. Morton. Miles Homes intervened as plaintiff in the litigation, claiming it was entitled to the amount it was owed as mortgagee, either directly from Rogan or from Allstate if Allstate was found liable.
Eventually, Allstate discovered that Miles Homes had a builder’s risk policy on the property through the Home Insurance Company for $100,000. Allstate then sought and received permission to bring its third-party claim, adding Home Insurance Company as a third-party defendant. Home Insurance Company moved for accelerated judgment pursuant to GCR 1963, 116.1(3), claiming that its policy with Miles Homes provided only excess coverage, if there was primary insurance coverage; that the policy provided no protection or coverage to any individual, business, corporation or entity other than Miles Homes; that the insurance contract included no provision obligating it to make contribution or indemnification; and that the policy provided that if the insured or an interested party (Rogan) had other applicable insurance that insurance would be primary and the Home Insurance Company coverage of the property would be limited to excess coverage over and above the primary coverage.
On September 12, 1985, the trial court held that the insurance policy issued to Miles Homes by the Home Insurance Company did not expressly provide for indemnification and clearly and unambig uously stated that it was an excess coverage policy. The trial court concluded that Allstate had no cause of action against the third-party defendant and granted Home Insurance Company’s motion for summary disposition pursuant to MCR 2.116(C)(5). Allstate’s motion for rehearing was subsequently denied. This appeal is limited to whether the trial court correctly denied Allstate’s motion for rehearing.
On appeal, Allstate argues that it has standing to bring its third-party claim against Home Insurance Company since there is alleged "competing coverage” by the respective parties. Alternatively, Allstate argues that, if it lacked standing, the trial court erred in dismissing its claim with prejudice.
Home Insurance Company, in its motion, argued that Allstate lacked standing or the capacity to sue. The purpose of standing requirements is to ensure that only those who have a substantial interest will be allowed to come into court and complain. White Lake Improvement Ass’n v Whitehall, 22 Mich App 262, 273; 177 NW2d 473 (1970). The question is whether the party whose standing is challenged is a proper party to request an adjudication of a particular issue, and not whether the issue itself is justiciable. Id. at 273, n 13. Standing in no way depends on the merits of the case. Warth v Seldin, 422 US 490, 500; 95 S Ct 2197; 45 L Ed 2d 343 (1975). In order to have standing, a party must merely show a substantial interest and a personal stake in the outcome of the controversy. Allstate meets these requirements.
However, while it is true that Home Insurance Company, in its motion for accelerated judgment, asserted that Allstate lacked standing or legal capacity to sue, the opinion of the trial court reflected that its order was not based on a lack of standing. Since the new court rules were in effect by the time the motion was heard, the trial court reviewed the motion as one for summary disposition pursuant to MCR 2.116(C)(5), lack of capacity to sue, and stated that all well-pled allegations were accepted as true. Accepting all well-pled allegations as true, the trial court concluded:
Since the insurance policy issued to Miles Homes by Home Insurance does not expressly provide for indemnification and it clearly and unambiguously states that it is an excess coverage policy, third-party plaintiffs, Allstate and Morton have no cause of action against third-party defendant, Home Insurance Company.
Therefore, third-party defendant, Home Insurance Company’s motion for summary disposition is GRANTED.
Based on this holding, we do not see standing as an issue in this appeal. This was a finding on the merits. Consequently, it was not error for the trial court to dismiss Allstate’s claim with prejudice.
Allstate also challenges the trial court’s conclusion that the Home Insurance policy was solely an excess coverage policy and that third-party plaintiffs were the primary insurers for the fire loss. Allstate argues that the proper treatment of a conflict between "other insurance clauses,” such as it claims was present here, is to declare such clauses repugnant, reject them in toto, and prorate each insurer’s liability.
The pertinent part of the Allstate insurance policy with Rogan on the house provides:
10. Other Insurance: Other insurance covering the described dwelling building (except insurance against perils not covered by this policy) is not permitted.
11. Apportionment:
(a) Loss by fire or other perils not provided for in 11(b) below: Allstate shall not be liable for a greater proportion of any loss from any peril or perils included in this policy than (1) the amount of insurance under this policy bears to the whole amount of fire insurance covering the property, or which would have covered the property except for the existence of this insurance, whether collectible or not, and whether or not such other fire insurance covers against the additional peril or perils insured hereunder: nor (2) for a greater proportion of any loss than the amount hereby insured bears to all insurance whether collectible or not, covering in any manner such loss, or which would have covered such loss except for the existence of this insurance.
The pertinent part of the Home Insurance policy with Miles Homes on the property provides:
LIMITS OP LIABILITY
VIII. It is a condition of this policy that at time of loss or damage if there is available to the Named Insured or any other interested party any other insurance which would apply that insurance shall be considered primary coverage and this policy shall be excess over and above the primary coverage.
In Federal Kemper Ins Co, Inc v Health Ins Administration, Inc, 424 Mich 537; 383 NW2d 590 (1986), the Supreme Court found three basic types of "other insurance” provisions in insurance contracts: (1) "pro rata,” (2) "escape” or "no liability,” and (3) "excess.” Disputes arise when two or more insurance policies covering the same risk contain various combinations of these provisions. Federal Kemper, 542. The Court noted that two trends have evolved in resolving these conflicts. The majority rule attempts to reconcile the competing provisions by discerning the parties’ intent through analysis of the clauses. The minority rule deems the provisions "mutually repugnant,” rejects both clauses and prorates the liability. Federal Kemper, 543.
The Federal Kemper Court found that two Court of Appeals cases, which Allstate relies on, have taken the minority approach: Farm Bureau Mutual Ins Co v Horace Mann Ins Co, 131 Mich App 98; 345 NW2d 655 (1983), lv den 419 Mich 880 (1984), and Mary Free Bed Hospital & Rehabilitation Center v Ins Co of North America, 131 Mich App 105; 345 NW2d 658 (1983), lv den 419 Mich 943 (1984). The Supreme Court in Federal Kemper noted that neither of these cases involved no-fault insurance as did the facts in Federal Kemper and, therefore, the Supreme Court expressed no opinion as to the current viability of these decisions.
In its opinion the trial court here followed the majority rule and looked to the provisions of the contracts to determine intent. Allstate, to the contrary, relying on Farm Bureau and Mary Free Bed, contends that the minority rule is the proper application in Michigan.
We find that both Farm Bureau and Mary Free Bed are distinguishable from the case at bar. In both those cases, the named insured was the same person on both policies and insured against the same risk. Had one policy not been in effect, the insured would have collected fully from the other insurer. Here, Allstate and Home Insurance did not insure the same person or the same risk. Allstate insured Rogan for fire loss on his house and contents and Home Insurance insured Miles Homes for its interest in the material supplied to Rogan.
If Rogan did not have the Allstate policy (or any other policy) on his home, Miles Homes would have collected from Home Insurance Company for the amount of its interest in the materials lost and Rogan would have collected nothing. If Miles Homes’ loss had been greater than the amount that Allstate was obligated to pay, Home Insurance would have paid Miles Homes the excess. Home Insurance did not insure Rogan’s house and did not have any legal obligation or connection with Rogan. The Home Insurance policy would not cover the loss of the Rogan house. The Home Insurance policy had an obligation to Miles Homes for its interest in the materials but only if no other insurance existed to protect Miles Homes’ interest. In this case, other insurance did exist which protected Miles Homes. Whether or not Miles Homes had other coverage, it still was the named mortgagee on Rogan’s policy with Allstate. The insurance contract that Allstate issued provided that the mortgagee was to have its interest paid off prior to the mortgagor receiving any monies.
This is not a case of one insured having coverage for the same loss with two insurance companies where each insurance company is attempting to make the other liable for a loss for which both have contracted to pay. The trial court correctly determined that Home Insurance Company had no duty or obligation to indemnify Allstate for Allstate’s obligation to its insured, Rogan. Home Insurance had no duty or obligation to protect Rogan against loss. This case is more than just a matter of conflicting provisions and two policies which protect the same person against the same risk. Federal Kemper, supra at 542. Here, there are two separate insureds protected against two distinct losses. This is a situation where the majority rule should be followed. For that reason we affirm the decision of the trial court that Allstate has no cause of action against Home Insurance Company.
Affirmed. | [
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M. J. Talbot, J.
Following a jury trial, defendant was convicted of assault of an employee of a place of confinement, MCL 750.197c; MSA 28.394(3). A bench trial followed and defendant was convicted of being an habitual offender, third felony conviction, MCL 769.11; MSA 28.1083. Defendant was sentenced to two to four years imprisonment. The trial court immediately vacated that sentence and sentenced defendant to a term of two to eight years on the habitual offender charge. That sentence was to be served consecutively with the life sentence defendant was serving. Defendant appeals as of right. We affirm in part and reverse in part._
While confined in Marquette Prison, defendant was in close proximity to an altercation between several guards and three inmates. Defendant reached through his cell bars and struck and injured a guard with an electric razor case.
During deliberations on the principal charge, the jury requested a copy of the guards’ testimony. The trial court indicated that, in lieu of a printed copy of the testimony, stenographic notes and audio tapes were available. The jury chose to hear the tapes in open court and, after further deliberation, returned a guilty verdict.
Following the jury verdict on the principal charge, defendant requested a new jury for the trial on the supplemental information. The trial court denied that request and defendant requested a bench trial. Defendant stated in open court that he understood his right to a jury trial on the habitual offender charge and waived that right. No written waiver was executed.
Defendant initially argues that because no written waiver was executed, his conviction on the habitual offender charge must be reversed. The prosecutor admits error. We reluctantly agree. The law as it now stands is quite clear. The requirements for a defendant’s valid waiver of his right to a jury trial are provided by statute:
(1) In all criminal cases arising in the courts of this state, the defendant shall have the right to waive a determination of the facts by a jury and may, if he or she elects, be tried before the court without a jury. Except in cases of minor offenses, the waiver and election by a defendant shall be in writing signed by the defendant and filed in the case and made a part of the record. The waiver and election shall be entitled in the court and case, and in substance as follows: "I,_, defendant in the above case, hereby voluntarily waive and relinquish my right to a trial by jury and elect to be tried by a judge of the court in which the case may be pending. I fully understand that under the laws of this state I have a constitutional right to a trial by jury.”
Signature of defendant.
(2) Except in cases of minor offenses, the waiver of trial by jury shall be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. [MCL 763.3; MSA 28.856.]
The Supreme Court has discussed these statutory requirements and instructed lower courts on the proper procedure:
[I]n order to assure compliance with the statute, we will require that the record of a trial show that the trial court has made a finding of fact on the record based upon information conveyed to the judge in open court by the defendant, or in his presence, that the defendant has personally, voluntarily, and understanding^ given up his right to trial by jury; that the defendant has personally signed the waiver of trial by jury form prescribed by the statute; that the waiver of trial by jury form has been filed in the case; and that all of the foregoing occurred after the defendant was arraigned on the information and had an opportunity to consult with counsel.
# * *
The essence of our holding is that the trial judge must, however, find on the record, from evidence sufficient to warrant such finding, that the defendant, in open court, voluntarily and understandingly gave up his right to trial by jury. The statute does not require more and will not permit less. [People v Pasley, 419 Mich 297, 302-303; 353 NW2d 440 (1984).]
Moreover, in People v Leggions, 149 Mich App 612, 619; 386 NW2d 614 (1986), lv den 426 Mich 863 (1986), this Court stated:
Defendant may waive his right to trial by jury, but the waiver must be in writing, signed by the defendant, filed and made a part of the record of the case. MCL 763.3; MSA 28.856. Because this statute is in derogation of the common law, it must be strictly construed. People v Quick, 114 Mich App 532, 535; 319 NW2d 362 (1982), lv den 417 Mich 936 (1983), and cases cited therein. The right to a jury trial cannot be waived by defense counsel. Id., p 536. Since defendant did not waive his right to a jury trial on the habitual offender charge in writing, reversal is required. People v Ash, 128 Mich App 265, 269; 340 NW2d 646 (1983).
This Court notes that defendant moved for the trial court to allow him to proceed in propria persona throughout the trial. Although defendant was "assisted” by counsel, he did, in fact, conduct a substantial portion of his defense at the trial on the underlying charge. Defendant did not, however, conduct any portion of his defense on the habitual offender charge. If he had, we might very well have reached a different result.
We also note that the trial court, prosecutor, and defendant’s "assistant” were fully cognizant of the fact that no written waiver had been executed and made a part of the record. Error could have been avoided by having defendant properly execute a written waiver at that time.
Under stare decisis, this Court is bound by a decision of the majority of justices of our Supreme Court. People v Mitchell, 428 Mich 364; 408 NW2d 798 (1987). Thus, although defendant knowingly, understanding and voluntarily waived his right to a jury trial orally in open court, the lack of a written waiver requires reversal under Pasley.
Although bound to follow precedent, this Court may, however, express its displeasure at the result it must reach. We find it noteworthy that the habitual offender statute is found in that chapter of the Code of Criminal Procedure relating to judgment and sentence. The habitual criminal act was enacted to provide punishment for repeated commissions of felonies. In re Southard, 298 Mich 75; 298 NW 457 (1941). It sought to effect increased punishment for repeated violations of criminal statutes and the gist of its purpose was punishment for the recidivist. In re Jerry, 294 Mich 689; 293 NW 909 (1940). Moving from its original purpose, it is now, however, given the status of a separate proceeding essentially independent of the hearing on the principal charge. People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968). See MCL 769.13; MSA 28.1085.
We note with respect that our appellate courts closely scrutinize the statutory waiver requirements and require strict compliance therewith, because absent a statute, a defendant has no right to waive a jury trial. See, e.g., People v Word, 67 Mich App 663; 242 NW2d 471 (1976); People v Edwards, 51 Mich App 403; 214 NW2d 909 (1974). While we recognize the state’s interest in protecting its citizens, we believe that such interest can be better served through a defendant’s verbal acknowledgment in open court that he fully understands his rights and that he knowingly and voluntarily relinquishes those rights.
The trend has already moved from requiring a defendant to execute the written waiver in open court, see, e.g., People v Rowe, 115 Mich App 334; 320 NW2d 367 (1982); People v Corbin, 109 Mich App 120; 310 NW2d 917 (1981); People v Blackmon, 95 Mich App 462; 291 NW2d 82 (1980), to an acknowledgment in open court that a waiver was signed. See, e.g., Pasley, supra; People v Carl Johnson, 99 Mich App 547; 297 NW2d 713 (1980). The Pasley Court stated that the waiver statute impliedly requires
that the defendant either orally acknowledge in open court that he is voluntarily and understandingly giving up his right to trial by jury, consistent with the previously signed written jury waiver form or, at a minimum, that he personally, voluntarily and understandingly sign, in open court, the written waiver form prescribed by statute. [419 Mich 303. Emphasis supplied.]
The Court went on to hold that
[t]he essence of [the] holding is that the trial judge must, however, find on the record, from evidence sufficient to warrant such finding, that the defendant, in open court, voluntarily and understandingly gave up his right to trial by jury. [M]
It is clear from a careful reading of Pasley that, although the Court requires a written waiver in compliance with the statute, it places greater emphasis on the defendant’s oral acknowledgment in open court of his waiver of a trial by jury. Even without a written waiver, a defendant’s proper verbal waiver should satisfy the substance of the statute and the "sufficient evidence” requirement of Pasley. Otherwise, it becomes truly a matter of form over substance.
This Court looks with approbation on proposed MCR 6.402:
(A) Time of Waiver. The court may not accept a waiver of trial by jury until the defendant has had or waived an arraignment on the information (MCR 6.109) and until the defendant has had an opportunity to consult with a lawyer.
(B) Waiver Requirements. Before accepting a waiver, the court shall advise the defendant in open court of his constitutional right to trial by jury. The court shall also ascertain, by addressing the defendant personally, that the defendant understands this right, that he voluntarily has chosen to relinquish it, and that he prefers to be tried by the court. The court shall assure that a verbatim record is made of the entire proceeding.
An excellent commentary on the proposed rule is provided by Reporter Joseph D. Grano, particularly with regard to subrule b:
This subrule is intended to change and clarify the requirements for a valid waiver of trial by jury. MCL 763.3(1); MSA 28.856(1) requires a written waiver that indicates both that the defendant understands his right to a jury trial and that he has elected to relinquish this right and to be tried by the court. Another section of the statute, however, requires the defendant to make his waiver in open court. MCL 763.3(2); MSA 28.856(2). . . . Sub-rule b adheres to the essence of Pasley by providing a procedure to assure that the defendant has made a voluntary and knowing waiver, but it abolishes the requirement that the waiver be in writing.
Various procedures can be used to assure a valid waiver. The federal rule, like the Michigan statute, requires the waiver to be in writing. FR Crim P 23(a). Other rules do not require a written waiver but require that the defendant make a knowing and intelligent waiver in open court. See Uniform Rules of Criminal Procedure, Rule 511(a). Employing still another approach, the ABA Standards for Criminal Justice (2d ed) require the judge to advise the defendant of the right to trial by jury, but once such advice is given, the defendant’s waiver may be made "either in writing or in open court for the record.” ABA Standards for Criminal Justice (2d ed), Trial by Jury, § 15-1.2(b).
A written waiver may provide strong evidence that the defendant acted knowingly and voluntarily. Nevertheless, a signature on a waiver form is not always conclusive proof that the individual has read and understood the contents of the form. Concern about this perhaps explains why a number of Michigan cases before Pasley interpreted the statutory "open court” language strictly. This concern also is evident in Pasley:
"The essence of our holding is that the trial judge must . . . find on the record, from evidence sufficient to warrant such finding, that the defendant, in open court, voluntarily and understanding^ gave up his right to trial by jury.” [419 Mich at 303.]
Because this concern is valid, subrule (b) goes further than Pasley by requiring the trial court to advise the defendant in open court of his right to jury trial and by requiring the court to address the defendant personally to ascertain that his waiver is voluntarily and knowingly made. These requirements should assure the validity of any waiver; moreover, they are consistent with the requirements imposed ort plea taking. See MCR 6.302(B).
In addition, the procedure of open court waiver should not be burdensome. See ABA Standards for Criminal Justice (2d ed), supra, Commentary at 15.24.
Given the strict requirement of a knowing oral waiver in open court, no reason exists to require a written waiver. [422A Mich 128-129.]
This Court notes that, under proposed MCR 6.302, a written waiver of rights would not be required when a defendant pleads guilty. The Commentary to proposed MCR 6.402 recognizes the anomaly:
Certainly if an oral waiver in open court suffices when a defendant pleads guilty, thereby waiving not only trial by jury but all of his trial rights, it should suffice when the defendant waives only his right to jury trial. [Id., 129.]
Recognizing the need to protect the rights of the defendant, proposed MCR 6.402(B) also requires the court to assure that a verbatim record is kept of the waiver proceedings. This Court heartily concurs with the reasoning of the reporter’s commentary and with the change in the law to be effected by adoption of the proposed rule. We believe expeditious consideration and adoption of proposed MCR 6.402 will protect a defendant’s rights as the waiver requirement of MCL 763.3; MSA 28.856 was meant to do and will prevent the result in this case, which merely exalts form over substance, from recurring.
Defendant next argues that his conviction for assault should be reversed because the trial court abused its discretion when it allowed tape recordings of witnesses’ testimony to be played in response to the jury’s request to review certain testimony. Defendant contends that the trial court abused its discretion in granting the jury’s request to rehear testimony in three respects: (1) by failing to determine the extent of testimony to be reheard; (2) by allowing the jury to select the form it preferred; and (3) by playing the tape recorded testimony. We disagree.
When a jury requests that testimony be read back to it, both the reading and the extent of the reading rest within the sound discretion of the trial judge. People v Howe, 392 Mich 670; 221 NW2d 350 (1974).
Upon the jury’s request for a copy of the guards’ testimony, the trial court pointed out that there were five guards who had testified. The court then asked the jury if they knew which of the guards’ testimony they wanted to hear. The jury responded with the names of three of the guards. The trial court acted properly by asking the jury to try to narrow down its request. People v Terry Williams, 134 Mich App 639; 351 NW2d 878 (1984), lv den 421 Mich 860 (1985).
Moreover, the court explained to the jury that no printed copy of the testimony was available, but that the court reporter could read back her notes, or audio tapes of the testimony could be played. The jury chose to hear the tapes. The trial court did not abdicate its discretion when it offered the jury a choice. Terry Williams, supra.
Finally, in People v White, 144 Mich App 698; 376 NW2d 184 (1985), this Court found no abuse of discretion when the trial court permitted the jury to listen to tape-recorded testimony in lieu of the reading of the testimony from the stenotypic notes of the court reporter. The White holding was a qualified one, however, because the accuracy of the tape recording had been assured. Here, defendant argues that the accuracy of the tapes was not assured beforehand; however, defendant does not claim that the tapes were inaccurate in any way. Moreover, defendant did not object at any time to the use of the tapes. Rather, defendant’s sole objection below went to the subject of the testimony. Defendant had ample opportunity to seek a determination of the accuracy of the tapes before they were played for the jury. Defendant cannot harbor error as an appellate parachute. People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969). Consequently, the trial court did not abuse its discretion when it allowed the tapes to be played. White, supra.
Reversed as to the habitual offender conviction; affirmed as to the assault conviction. | [
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FITZGERALD, P.J.
Defendant, Blue Care Network of Michigan, Inc. (BCN), appeals by leave granted the order granting the motion of plaintiffs, Michigan Association of Chiropractors (MAC), also known as the Chiropractic Association of Michigan, and Nicholas S. Griffiths, D.C., for certification of five classes of plaintiffs. This case was submitted and argued with Mich Ass’n of Chiropractors v Blue Cross Blue Shield of Mich, 300 Mich App 551; _NW2d_ (2013). Defendant here asserts that four of plaintiffs’ five proposed classes were improperly certified because the class definition is fundamentally flawed and that all classes were improperly certified because plaintiffs have not satisfied the commonality and typicality requirements of MCR 3.501(A)(1). For the reasons given hereinafter, we affirm in part, reverse in part, and remand for further proceedings.
I. BACKGROUND
The complaint in this case alleges that MAC is a voluntary trade association representing the interests of approximately 1,600 chiropractic doctors in Michigan. Dr. Griffiths is a licensed chiropractic doctor with offices in Wayne County. BCN is a Michigan health maintenance organization (HMO) licensed under chapter 35 of the Michigan Insurance Code, MCL 500.3501 et seq. It has nearly a half-million enrollees. Over 400 MAC members are members of BCN’s provider network. However, before January 1, 2006, BCN had virtually no chiropractic physicians in its network. After January 1, 2006, it began providing reimbursement for chiropractic services only when they were provided by network chiropractic physicians, but at that time it had only 17 network chiropractic physicians. The essence of the complaint is that BCN openly and illegally discriminates against its network’s chiropractic physicians by failing to reimburse them for services for which it reimburses its other network physicians and that its discriminatory practices effectively limit the number of chiropractic physicians that can be network providers.
II. THE COMPLAINT AND PROPOSED CLASSES
In their complaint, plaintiffs allege that BCN violated the Michigan Insurance Code in a number of ways. Plaintiffs claim that BCN has a practice of not paying chiropractic providers for covered chiropractic services while it pays other nonchiropractic providers for providing the same services and that its discriminatory practices illegally limit patient access to chiropractic services. The complaint states three counts. Count I alleges that the policies and practices of BCN and its member physicians unlawfully limit the access chiropractic physicians have to the provider network and its members by maintaining an insufficient network of chiropractic care providers and by actively directing its members to seek chiropractic services from nonchiropractic physicians through its website and through referrals by its member physicians. Count II alleges two ways BCN discriminates in reimbursing network chiropractic physicians: (1) by reimbursing nonchiropractors providing certain services yet refusing to reimburse chiropractic physicians providing those same services (or imposing frequency limits on those services), and (2) by refusing to reimburse chiropractic physicians for providing other services within the scope of chiropractic medicine, such as physical-therapy services. Count III alleges that BCN’s illegally discriminatory policies and practices constitute a breach of contract because the affiliation agreement its network chiropractors must each sign includes a clause requiring BCN to “perform the legal and regulatory functions required” under state and federal law. Plaintiffs sought a declaratory judgment on all counts and, for count III, “damages caused by such breaches of contract.”
Plaintiffs moved for class certification, proposing five separate classes for certification:
Class 1: The first class consists of those chiropractors who have ever applied for membership in BCN and were denied membership.
Class 2: The second class consists of those chiropractors who at one time were members of BCN but who were disaffiliated from BCN against their will.
Class 3: The third class consists of those chiropractors who have not sought membership with BCN because doing so would be futile given BCN’s open practice of not allowing chiropractors to become members of BCN.
Class 4: The fourth class consists of those chiropractors who are, or have been members of BCN, and who have suffered harm due to BCN’s policy of requiring its insureds to obtain a referral before seeing a chiropractor and BCN’s open policy of discouraging referrals to chiropractors.
Class 5: The final class consists of chiropractors who have been economically harmed as a result of BCN’s policies. These policies include, but are not limited to, refusing to reimburse chiropractors for services within their scope of work, reimbursing other providers for these same services, burdensome deductibles and imposing burdensome copays on insureds who utilize chiropractors driving patients away from chiropractic care.
Plaintiffs’ motion brief includes a table identifying their estimates of the size of each class, based on a survey of MAC members and extrapolated “by multiplying the percentage of those who responded in each proposed class by the total number of chiropractors in the state.” The estimates range from several hundred members to over 1,500 members.
Plaintiffs asserted that common questions of law and fact predominate in the matter, and they identified those questions as:
1) whether BCN unlawfully discriminated against chiropractors by denying access to the network, 2) whether BCN unlawfully discriminated against chiropractors by requiring referrals to chiropractors and promoting a policy of refusing referrals to chiropractors, and 3) whether BCN discriminated against chiropractors by refusing to reimburse chiropractors for the same services it reimbursed other providers for.
In support of the motion, plaintiffs offered the affidavit of Dr. Nicholas S. Griffiths as a representative plaintiff. He averred that he had been a BCN member starting in 2004, but he was “disaffiliated” in early 2006. He stated, “Many of my patients left my practice.” He asserted that BCN at first refused to send him an application, but he persisted despite the apparent futility, and eventually he was sent an application and was accepted back into the network in January 2007. Dr. Griffiths further alleged that he was dependent on getting referrals from primary care physicians and sometimes they refused to refer patients for chiropractic care. In addition, he also asserted that he had problems getting reimbursed by BCN “for services it is required to cover.”
Defendant argued against class certification, asserting that individual facts predominated over common questions. It stated that the limitation on access to its network was not discrimination per se and therefore each denial or disaffiliation required an examination of the individual circumstances. It further asserted that the class definitions were too broad, conflicted, and unworkable. And, defendant argued, if BCN’s plans have been approved by the Office of Financial and Insurance Regulation (now the Department of Insurance and Financial Services), as required by statute, any complaints about coverage should come from that department or from BCN’s insured members, not from chiropractors who have no contract with BCN.
The trial court disagreed. In a written opinion, the court concluded that the initial question to be answered in the suit — whether defendant had engaged in particular policies — did not require the examination of individuals’ circumstances. The court also determined that Dr. Griffiths satisfied the typicality requirement. Defendant filed a delayed application for leave to appeal, which we granted, limited to the issues raised in the application.
III. STANDARD OF REVIEW
Interpretation of MCR 3.501(A) presents a question of law that we review de novo. Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009). The analysis a court must undertake regarding class certification may involve making both factual findings and discretionary decisions. Id. at 495-496. We review the trial court’s factual findings for clear error and the decisions that are within the trial court’s discretion for an abuse of discretion. Id. The burden of establishing that the requirements for a certifiable class are satisfied is on the party seeking to maintain the certification. Tinman v Blue Cross & Blue Shield of Mich, 264 Mich App 546, 562; 692 NW2d 58 (2004); see also Henry, 484 Mich at 509.
IV MCR 3.501(A)(1)
Certification of a class is controlled by court rule. Under MCR 3.501(A)(1), one or more members of a purported class may file suit on behalf of all members only if:
(a) the class is so numerous that joinder of all members is impracticable;
(b) there are question of law or fact common to the members of the class that predominate over questions affecting only individual members;
(c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(d) the representative parties will fairly and adequately assert and protect the interests of the class; and
(e) the maintenance of the action as a class action will be superior to other available methods of adjudication in promoting the convenient administration of justice.
These prerequisites are often referred to as numerosity, commonality, typicality, adequacy, and superiority. Henry, 484 Mich at 488. “[T]he action must meet all the requirements in MCR 3.501(A)(1); a case cannot proceed as a class action when it satisfies only some, or even most, of these factors.” A&M Supply Co v Microsoft Corp, 252 Mich App 580, 597; 654 NW2d 572 (2002).
Although the federal “ ‘rigorous analysis’ ” approach does not apply under our state law, “a certifying court may not simply ‘rubber stamp’ a party’s allegations that the class certification prerequisites are met.” Henry, 484 Mich at 502. The court’s decision to certify may be based on the pleadings alone only if the averments therein satisfy the party’s burden of proving that the requirements of MCR 3.501 are met, “such as in cases where the facts necessary to support this finding are uncontested or admitted by the opposing party.” Henry, 484 Mich at 502-503. The court “may not simply accept as true a party’s bare statement that a prerequisite is met” without making an independent determination that basic facts and law are stated adequately to support that prerequisite. Id. at 505. “If the pleadings are not sufficient, the court must look to additional information beyond the pleadings to determine whether class certification is proper.” Id. at 503. The court should analyze asserted facts, claims, defenses, and relevant law, but “should avoid making determinations on the merits of the underlying claims at the class certification stage of the proceedings.” Id. at 488; see also id. at 504.
Precedential caselaw on the subject of certification is thin in Michigan. Henry, the lead case in Michigan on class certification, involved allegations that the defendant, Dow Chemical Company, had negligently released dioxin into the Tittabawassee River. The plaintiffs sought certification of a class of “persons owning real property within the 100-year flood plain of the Tittabawassee River on February 1, 2002,” estimated by the plaintiffs to consist of approximately 2,000 persons. Id. at 491. The trial court held a two-day hearing in which it reviewed numerous scientific studies, affidavits from experts, and state-agency-provided information from both parties. The Michigan Supreme Court concluded that, although the trial court’s analyses of the prerequisites identified in MCR 3.501(A)(1)(a), (b), and (e) were sufficient, the record was insufficient to determine if the trial court had made a valid, independent determination regarding the typicality and adequacy prerequisites of MCR 3.501(A)(1)(c) and (d). Henry, 484 Mich at 506. Accordingly, the case was remanded for clarification of the trial court’s analysis of those two prerequisites. Id. at 509. Thus, although Henry sets out the details of the proper test under the court rule, it provides little guidance in applying the prerequisites.
V CLASS DEFINITION
Defendant first argues that all classes except Class 1 impermissibly require a subjective assessment or a determination of the merits in order to ascertain class membership. Further, defendant argues, because Class 2 includes chiropractors disaffiliated “against their will” and Class 3 includes those who thought applying for membership was “futile,” the only way to determine who is a class member is to probe each individual’s subjective thoughts. Defendant additionally asserts that the definitions of Classes 4 and 5 are defective because they require an examination of the merits (i.e., whether BCN has discriminatory policies) in order to determine who is in the class.
Defendant relies on Tinman, 264 Mich App 546, arguing that the classes sought here are analogous to the class this Court decertified in that case. The Tin-man class was defined as:
“[A]ll persons who, during the period from June 9,1998, through the present, were, are and will be entitled to receive health care benefits from Blue Cross & Blue Shield of Michigan (BCBSM) for emergency health care services, but were, or will be, denied health care benefits for emergency health care services by BCBSM based on the final diagnosis of their medical condition (excluding any officers or directors of BCBSM, and their family members).” [Id. at 552-553.]
The trial court in Tinman had found that the predominant issue was whether BCBSM’s “ ‘systematic practice’ ” of denial on the basis of the final diagnosis of a medical condition violated statutory law and the certificates it issued and that this was a common question of fact and law meeting the requirements of MCR 3.501(A)(1)(b). Tinman, 264 Mich App at 563. This Court disagreed, concluding:
Rather than being subject to generalized proofs, the evidence of the type of emergency health services and medically necessary services provided, the medical conditions involved and whether they occurred suddenly, the signs and symptoms that manifested those medical conditions, and whether payment was denied for services up to the point of stabilization will all vary from claimant to claimant. Thus, it is evident that to determine defendant’s liability, highly individualized inquiries regarding the circumstances relevant to each claim clearly predominate over the more broadly stated common question in this case. [Id. at 564-565.]
Defendant asserts that what plaintiffs seek here is no different from what was sought in Tinman because establishing each loss attributable to BCN’s affiliation and referral policies depends on individual assessments. However, it can also be argued that the landscape in this case is slightly different from Tinman because of the allegations that defendant has organization-wide policies that violate various statutes in the Insurance Code. Rather than viewing defendant’s conduct as resulting from a series of individual decisions, defendant’s conduct can be seen largely as showing that it adhered to a single policy of discrimination that affected many pro vider and nonprovider chiropractors in the same way. Like the declaratory issues in Mich Ass’n of Chiropractors, this broad, legal question is more suited to class resolution than the issue in Tinman because of the desirability of consistent results for all potential plaintiffs.
However, unlike the class definition in Mich Ass’n of Chiropractors, some of the class definitions in this case require an examination of subjective factors, such as whether a practitioner believed it futile to seek membership in BCN. Under federal law, class membership must be determined by objective criteria. See Garrish v UAW, 149 F Supp 2d 326, 330-331 (ED Mich, 2001), citing 5 Moore’s Federal Practice, § 23.21[1] (3d ed, 1998). We agree that this rule is sound, because otherwise individuals would simply be able to decide for themselves whether they wish to be included in the class, and we hold that plaintiffs seeking class certification must provide objective criteria by which class membership is to be determined.
Applying this rule to plaintiffs’ proposed classes requires us to decertify Class 3 because membership cannot be established without knowing the subjective reason why each chiropractor gave up on the quest to affiliate with BCN. Class 2’s requirement that members are those who have been disaffiliated “against their will” is not problematic as long as plaintiffs can document whether an affiliation was terminated by the chiropractor or by BCN. If they cannot provide such evidence on remand, the trial court should decertify Class 2 as well. As for the other classes, any problems in certification arise from establishing the requirements of the court rule, not from the definitions themselves.
However, we also find that the definition of Class 5 is overly broad. As written, any BCN policy that causes financial harm could be at issue, for example, a refusal to reimburse untimely claims. In the context of plaintiffs’ complaint, it appears that such a broad definition was not intended. We therefore narrow that definition by adding the following italicized text so that the class consists of “chiropractors who have been economically harmed as a result of BCN’s policies that unlawfully discriminate against chiropractors. These policies include, but are not limited to, refusing to reimburse chiropractors for services within their scope of work, reimbursing other providers for these same services, burdensome deductibles and imposing burdensome co-pays on insureds who utilize chiropractors driving patients away from chiropractic care.”
In sum, we hereby adopt the federal “objective criteria” requirement stated in Garrish, 149 F Supp 2d at 330-331. In accord with this, we reverse the trial court’s decision, in part, modify the definition of Class 5 as stated above, order plaintiffs to provide evidentiary support for Class 2 as described above, and decertify Class 3 because it requires reliance on subjective criteria. See Citizens for Pretrial Justice v Goldfarb, 415 Mich 255, 272; 327 NW2d 910 (1982) (court may redefine a class so it meets requirements for certification). The other classes need not be decertified on the basis of their definitions alone.
VI. COMMONALITY AND TYPICALITY
Defendant next argues that plaintiffs failed to satisfy the elements of commonality and typicality. Defendant asserts that each of the classes requires an improper, individualized determination of membership and that for each class, no proofs supporting Dr. Griffiths’s claims (or the claims of another potential representative individual) would help establish that any other class member had suffered the same injury.
Under MCR 3.501(A)(1)(b), a prerequisite for a certifiable class action suit is that “there are questions of law or fact common to the members of the class that predominate over questions affecting only individual members[.]” This Court in Tinman explored the issue of common questions:
The common question factor is concerned with whether there is a common issue the resolution of which will advance the litigation.... It requires that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, must predominate over those issues that are subject only to individualized proof.
... It is not every common question that will suffice, however; at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality. A plaintiff seeking class-action certification must be able to demonstrate that all members of the class had a common injury that could be demonstrated with generalized proof, rather than evidence unique to each class member.... [T]he question is ... whether the common issues [that] determine liability predominate. [Tinman, 264 Mich App at 563-564 (citations and quotation marks omitted; alterations by Tinman).]
The claims of class members
must depend upon a common contention.... That common contention, moreover, must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
“What matters to class certification... is not the raising of common ‘questions’ — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” [Wal-Mart Stores, Inc v Dukes, 564 US_,_; 131 S Ct 2541, 2551; 180 L Ed 2d 374, 389-390 (2011), quoting Nagaxeda, Class certification in the age of aggregate proof, 84 NY U L R 97, 132 (2009).]
Each of the counts here presents an opportunity to provide class-wide, declaratory answers to the legal questions plaintiffs raise in their claims. Thus, for the declaratory aspects of the case, the commonality and typicality requirements are met.
The retrospective compensatory relief aspects, however, require an examination of individual circumstances. The reasons for denying or terminating affiliation in each case and for denying reimbursement have no common answer, and like the claim in Tinman, require an individual inquiry for each purported class member. Although the parties discussed a two-part approach to the case, the trial court did not appear to consider bifurcation. We conclude that the trial court should have bifurcated the declaratory claims and certified properly defined classes for that relief only. MCR 3.501(B)(3)(d)(i) states that a court may order that “the action be maintained as a class action limited to particular issues or forms of relief!.]” While this is a discretionary rule, because of the unsuitability of the retrospective compensatory claims for class certification, the trial court abused its discretion by allowing certification of the classes for plaintiffs’ entire complaint.
As for the typicality requirement, once the issues to be tried as a class action are limited to resolving only the legal questions, most of the asserted problems with Dr. Griffiths’s representation disappear. His affidavit asserts that he was affected by the allegedly discriminatory reimbursement and referral policies and practices here in dispute. And he averred that he was “disaffiliated” from BCN at one point and had to persist in order to be sent another application form. However, he was never denied membership in the network and thus is not a member of Class 1 as proposed by plaintiffs. Accordingly, he is not qualified to represent Class 1, and the trial court should not have certified Class 1 as defined in the complaint with Dr. Griffiths as its representative. A&M Supply Co, 252 Mich App at 598.
The trial court relied on the rule derived from federal law, stating: “To meet the typicality requirement, a plaintiff must show that the representative’s claim arises from the same event or practice or course of conduct that gives rise to the claims of the other class members, and that it is based on the same legal theory.” See Allen v City of Chicago, 828 F Supp 543, 553 (ND Ill, 1993). The court then concluded that the “crux of Plaintiffs’ claims” was “a series of discriminatory policies” with a particular policy identified with regard to each class. The court determined that the typicality requirement was met for Class 1 because “Dr. Griffiths was repeatedly denied access to Blue Care Network before ultimately being admitted to membership.” That, however, is not in accord with the language proposed by plaintiffs for Class 1, which limits the class to chiropractors who “applied for membership in BCN and were denied membership.” After examining plaintiffs’ exposition of the facts and its related argument, we conclude that the problem lies not with plaintiffs’ representative but in its class definition. Plaintiffs’ brief emphasizes “BCN’s Exclusion of Chiropractors From its Network,” and they assert that “it denied requests by chiropractors to join the chiropractic network and claimed that its network was sufficient.” While this conduct clearly includes receiving and then denying applications for membership, it also includes any policy or practice of refusing to make applications available to chiropractors. Notably, if allegations of the latter are true, defendant maybe in violation of MCL 500.3531(3), which prohibits it from denying a provider “an opportunity to apply” to become an affiliated provider.
We therefore conclude that plaintiffs intended Class 1 to have a broader scope than is allowed by the specific wording they proposed. The trial court, rather than disregarding the fact that Dr. Griffiths had never had an application for membership denied, should have set forth a more suitable definition of the class, pursuant to MCR 3.501(B)(3)(c). Under the authority granted us by MCR 7.216(A)(1), we modify the definition of Class 1 so that it encompasses “those chiropractors who have ever applied for membership in BCN and were denied membership or whom BCN denied the opportunity to apply.”
VII. CONCLUSION
We conclude that, when examining a proposed class for certification, a court must be able to resolve the question whether class members are included or excluded from the class by reference to objective criteria. In addition, in the present case, plaintiffs did not establish that their claims for retrospective compensatory relief satisfy the class certification requirements set out in MCR 3.501(A)(1). The trial court should have bifurcated the declaratory claims; it abused its discretion by allowing certification of the classes for plaintiffs’ entire complaint.
In accord with the reasons given above, we affirm the trial court’s order granting certification for the following classes and for declaratory relief only:
Class 1: The first class consists of those chiropractors who have ever applied for membership in BCN and were denied membership or whom BCN denied the opportunity to apply.
Class 2: The second class consists of those chiropractors who at one time were members of BCN but who can show by objective proof that they were disaffiliated from BCN against their will.
Class 3: The third class consists of those chiropractors who are, or have been, members of BCN and who have suffered harm because of BCN’s policy of requiring its insureds to obtain a referral before seeing a chiropractor and BCN’s open policy of discouraging referrals to chiropractors.
Class 4: The fourth class consists of those chiropractors who have been economically harmed as a result of BCN’s policies that unlawfully discriminate against chiropractors. These policies include, but are not limited to, refusing to reimburse chiropractors for services within their scope of work, reimbursing other providers for these same services, burdensome deductibles, and imposing burdensome copays on insureds who utilize chiropractors driving patients away from chiropractic care.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
Meter and M. J. Kelly, JJ., concurred with Fitzgerald, P.J.
Michigan Ass’n of Chiropractors v Blue Care Network of Mich, unpublished order of the Court of Appeals, entered February 22, 2012 (Docket No. 304783).
See also 5 Moore’s Federal Practice, §23.21[3][a] (3d ed, 2013), p 23-46 (“For a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria.”).
In full, the subsection states: “A health maintenance organization shall give all health care providers that provide the applicable health maintenance services and are located in the geographic area served by the health maintenance organization an opportunity to apply to the health maintenance organization to become an affiliated provider.” | [
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Per CURIAM.
Fetitioner appeals as of right an order of the Tax Tribunal denying petitioner’s motion for summary disposition and granting summary disposition pursuant to MCR 2.116(I)(2) in favor of respondent, the city of Charlevoix. The tribunal determined that petitioner’s acquisition of real property was a transfer of ownership that uncapped the taxable value of the property under the General Property Tax Act (GPTA), MCL 211.1 et seq. We affirm.
I. FACTS and procedural history
Petitioner is the Sebastian J. Mancuso Family Trust. Edwin W Mancuso and Sebastian D. Mancuso are the successor trustees of the trust. They are also the trustees for the Alice V Mancuso Family Trust (Alice Trust). The trustees conveyed a condominium from the Alice Trust to petitioner by means of a warranty deed. Following this conveyance, respondent reassessed the property and raised the taxable value of the property beginning with tax year 2007.
Petitioner appealed the taxable value of the property to the Tax Tribunal. Both parties moved for summary disposition. Petitioner asserted that the conveyance of the property from the Alice Trust to petitioner was not a transfer of ownership that would operate to remove the cap of the property’s taxable value. Specifically, petitioner asserted that the Alice Trust and petitioner are commonly controlled legal entities and, therefore, a transfer of ownership did not occur because of the exception from the definition of “transfer of ownership” in MCL 211.27a(7)(Z). On March 23, 2012, the tribunal issued an order denying petitioner’s motion and granting respondent’s motion. The tribunal opined in relevant part:
As acknowledged by both parties, State Tax Commission Bulletin 16 of 1995 provides an interpretation of the statutory provisions regarding the “uncapping” of taxable value. With respect to the exception from the “uncapping” of taxable value applicable to transfers of property between commonly controlled legal entities, the [State Tax Commission] Bulletin provides that an entity under common control is as defined in the Michigan Revenue Administrative Bulletin 1989-48 [RAB 1989-48]. In that regard, the [revenue administrative bulletin] specifically provides that for entities transferring property to be considered as “commonly controlled,” these entities must be involved in a trade or business.
The tribunal found persuasive this Court’s decision in C & J Investments of Grayling, LLC v City of Grayling, unpublished opinion per curiam of the Court of Appeals, issued November 13, 2007 (Docket No. 270989). The tribunal noted that no subsequent precedential authority existed contrary to this Court’s conclusion in C & J Investments that
RAB 1989-48 represents an authoritative interpretation of the phrase “commonly controlled” by the agency responsible for administering and enforcing the statute. A court will defer to the interpretation of statutes administered and enforced by the Tax Tribunal. Although tax statutes may not be extended by forced construction or implication ... we conclude that RAB 1989-48 is not inconsistent with the plain meaning of “commonly controlled” in MCL 211.27a(7)(l). [Id. at 3-4 (citations omitted).]
The tribunal concluded that the provisions of MCL 211.27a(7)(i) do not apply if the entities are not involved in business activity.
II. STANDARD OF REVIEW
Our review of the Tax Tribunal’s decision is limited to determining “whether the tribunal erred in applying the law or adopted a wrong principle ... .” Moshier v Whitewater Twp, 277 Mich App 403,407; 745 NW2d 523 (2007). Further, to the extent that we must construe the meaning of a statute, our review is de novo. Signature Villas, LLC v Ann Arbor, 269 Mich App 694, 699; 714 NW2d 392 (2006). Our goal in interpreting a statutory provision is to ascertain the Legislature’s intent. Cain v Waste Mgt, Inc (After Remand), 472 Mich 236, 245; 697 NW2d 130 (2005). This is accomplished by first examining the language used in the statute itself. Id. If the language is plain and unambiguous, then we must apply the statute as written. Signature Villas, 269 Mich App at 699. In those instances, judicial construction is neither necessary nor permitted. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
III. ANALYSIS
Petitioner essentially argues that the transfer of the property from the Alice Trust to petitioner did not involve a “transfer of ownership” within the meaning of MCL 211.27a(6) because the transfer fell within the exception set forth in MCL 211.27a(7)(Z). We disagree.
The Michigan Constitution and Michigan statutory law permit the taxable value of real property to be reassessed upon the sale or transfer of the property at the state equalized value for the calendar year following the assessment. Const 1963, art 9, § 3; MCL 211.27a(3); Signature Villas, 269 Mich App at 696-697. This is known as “uncapping” the taxable value. Id. at 697. Uncapping occurs whenever a transfer of ownership occurs. MCL 211.27a(3). “[T]ransfer of ownership” is “the conveyance of title to or a present interest in property, including the beneficial use of the property, the value of which is substantially equal to the value of the fee interest.” MCL 211.27a(6). The GPTA includes a nonexhaustive list of events that will constitute a transfer of ownership, MCL 211.27a(6), and events that do not constitute such a transfer, MCL 211.27a(7). The uncapping of a parcel’s taxable value typically results in a higher tax assessment, as was the case here.
There appears to be no dispute that the conveyance in this case is covered by the general rule in MCL 211.27a(6)(c), which provides:
“[TJransfer of ownership” means the conveyance of title to or a present interest in property, including the beneficial use of the property, the value of which is substantially equal to the value of the fee interest. Transfer of ownership of property includes, but is not limited to, the following:
(c) A conveyance to a trust after December 31, 1994, except if the settlor or the settlor’s spouse, or both, conveys the property to the trust and the sole present beneficiary or beneficiaries are the settlor or the settlor’s trust, or both.
Accordingly, the conveyance was a transfer of ownership under MCL 211.27a(6)(c) unless one of the exceptions of MCL 211.27a(7) was applicable. Tax-exemption statutes are generally construed narrowly in favor of the taxing authority, and we generally defer to the tax tribunal’s interpretation of a statute that it is charged with administering and enforcing. Moshier, 277 Mich App at 409.
Under MCL 211.27a(7)(Z), transfer of ownership does not include
[a] transfer of real property or other ownership interests among corporations, partnerships, limited liability companies, limited liability partnerships, or other legal entities if the entities involved are commonly controlled. Upon request by the state tax commission, a corporation, partnership, limited liability company, limited liability partnership, or other legal entity shall furnish proof within 45 days that a transfer meets the requirements of this subdivision.
The exception in MCL 211.27a(7)(Z) applies if (1) the transaction is between legal entities and (2) the legal entities involved are commonly controlled. Even assuming that trusts are legal entities within the meaning of the statute, the exception applies only if the legal entities are commonly controlled. MCL 211.27a does not define “commonly controlled.” “A court may consult dictionary definitions when terms are not expressly defined by a statute.” Oakland Co Bd of Co Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n, 456 Mich 590, 604; 575 NW2d 751 (1998). The term “common” is defined adjectivally as “belonging equally to, or shared alike by, two or more or all in question!.] ” Random House Webster’s College Dictionary (1997). “Commonly” is the adverb related to that meaning. “Control” means “to exercise restraint or direction over; dominate, regulate, or command.” Id.
Petitioner argues that the trusts in this case are commonly controlled because they have the same trustees and that the tribunal erred by concluding that the trusts are not commonly controlled because RAB 1989-48 states that entities must be engaged in business activity in order to be commonly controlled. Even assuming, without deciding, that the tribunal erred by imposing a business-activity requirement, petitioner still cannot prevail because the Alice Trust and petitioner are not “commonly controlled” within the meaning of MCL 211.27a(7)(Z). Statutory provisions must be read in the context of the entire statute. Robinson v City of Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010). The goal is to produce a harmonious whole. CG Automation & Fixture, Inc v Autoform, Inc, 291 Mich App 333, 338; 804 NW2d 781 (2011). Simply having the same trustee does not satisfy the statutory requirement because the statute does not look to a change in the property’s managers, it looks for a change in the ownership of the property. A trustee manages trust property held in trust for the benefit of the trust beneficiaries. Although the trustee has extensive control over the trust, he or she is ultimately liable to the beneficiaries. See MCL 700.7816 (listing the general powers of a trustee); MCL 700.7817 (listing specific powers of a trustee); MCL 700.7901 (listing remedies for a breach of trust by a trustee); MCL 700.7902 (noting that a trustee is liable to the trust beneficiaries for a breach of trust). Further, MCL 211.27a(6)(e) specifically provides that a transfer of ownership occurs if the beneficiaries of a trust are changed. There is no similar provision for when the trustees of a trust are changed because, quite simply, the trustees do not own the property.
Looking at MCL 211.27a(6), it is apparent that a transfer of ownership occurs when the property is transferred from one owner to a wholly new owner. Exceptions are made for transfers from a trust settlor when the settlor is the sole present beneficiary because ownership in that situation does not change. See MCL 211.27a(6)(c). Exceptions are also made for transfers of property that substitute the transferor for the transferor’s spouse. See MCL 211.27a(6)(d), (e), and (f). The exceptions in MCL 211.27a(7) are similar in nature; they are triggered when property is transferred from one owner to a wholly new owner. Reading the statute as a whole, it is apparent that petitioner simply does not fall within the definition of “commonly controlled” by virtue of having the same trustees for both the transferring trust and the receiving trust. Thus, we conclude that the Alice Trust and petitioner are not commonly controlled and that the exception in MCL 211.27a(7)(Z) does not apply.
Affirmed.
Owens, P.J., and Fitzgerald and Riordan, JJ., concurred.
Edwin W Mancuso and Sebastian D. Mancuso are jointly referred to as trustees in this opinion. | [
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JANSEN, P.J.
Respondent, Joan R. Lipsitz (Joan), appeals by right the probate court’s order of April 29, 2010, granting partial summary disposition in favor of petitioner, Mark F. Rottenberg (Mark), on the ground that it was beyond genuine factual dispute that Dr. Everett Newton Rottenberg (Dr. Rottenberg) had not gifted to Joan the right to demand repayment of certain loans that he had made during his lifetime. For the reasons set forth in this opinion, we vacate the probate court’s order and remand for further proceedings.
I. BASIC FACTS
Joan, Mark, and Lisa Friedman (Lisa) are siblings. They are the only children of the late Dr. Rottenberg and the late Beatrice Rottenberg (Mrs. Rottenberg).
Joan and her husband, Robert Lipsitz, were officers and stockholders of five different corporations (collectively, “the ranch entities”). Together, the five ranch entities made up the Double JJ Ranch and Golf Resort in Oceana County, Michigan.
Dr. Rottenberg made several loans to the ranch entities by personal check during the 1990s and the early 2000s, apparently totaling significantly more than $2 million. Some of these loans were repaid during Dr. Rottenberg’s lifetime. Other loans were never repaid to Dr. Rottenberg.
Each of the checks written by Dr. Rottenberg was made payable to one of the ranch entities. None of the checks was made payable to Joan or her husband. A few of these checks contained the word “loan” on the memo line. However, the memo line was left blank on the majority of the checks. None of the later checks appears to have been accompanied by a promissory note or any other separate evidence of indebtedness. Neither Joan nor her husband executed personal guarantees promising to repay any of the loans from Dr. Rottenberg.
Dr. Rottenberg died testate on April 23, 2005. Under the terms of Dr. Rottenberg’s will, certain items of tangible, household personalty were devised to Mrs. Rottenberg. However, the residue of Dr. Rottenberg’s estate poured over into the Everett Newton Rottenberg Living Trust (ENR Trust). The trust instrument specified that, upon the death of Dr. Rottenberg, the cotrustees of the ENR Trust would be Mrs. Rottenberg, Mark, and Joan. Upon the death, resignation, or incapacity of Mrs. Rottenberg, Mark and Joan were to remain as cotrustees of the ENR Trust.
Under the terms of the ENR Trust instrument, two distinct subtrusts were established upon the death of Dr. Rottenberg: (1) a Marital Trust and (2) a Residuary Trust. The Marital Trust was further divided into (1) a Marital Trust for Spouse and (2) a Terminable Interest Marital Trust for Spouse. Suffice it to say that Mrs. Rottenberg was, for all practical purposes, a lifetime income beneficiary of the two marital subtrusts.
Mrs. Rottenberg died testate on April 16, 2008. Under the terms of Mrs. Rottenberg’s will, most or all of her estate poured over into her own trust, the Beatrice Rottenberg Living Trust (BR Trust). The trust instrument specified that Mark and Joan were to serve as cotrustees of the BR Trust upon Mrs. Rottenberg’s death.
On July 18, 2008, each of the five ranch entities filed for Chapter 11 bankruptcy protection in the United States Bankruptcy Court for the Western District of Michigan.
II. PROCEDURAL HISTORY
The instant proceedings began on April 14, 2006, when Mark filed a petition in the Oakland County Probate Court to remove Joan as a cotrustee of the BR Trust and surcharge her for various alleged violations of her fiduciary duties. On May 2, 2006, Joan responded by filing a petition to remove Mark as a cotrustee of the BR Trust and surcharge him.
On October 12, 2007, Mark filed a subsequent petition to compel an accounting by Joan, including a full disclosure of all loans made by Dr. and Mrs. Rottenberg to the ranch entities. Mark claimed that, in addition to $400,000 in loans from Mrs. Rottenberg, Dr. Rottenberg had loaned more than $2 million to the ranch entities during his lifetime and many of these loans remained unpaid. Mark alleged that Joan had destroyed or concealed certain evidence, including evidence of the loans, and that she had also removed documents and money from Dr. Rottenberg’s residence upon his death without accounting for it.
Joan asserted that many of the loans made by Dr. Rottenberg, especially his earlier loans, had already been repaid. Consistent with Joan’s assertion, the probate court record contains evidence establishing that the ranch entities repaid at least $1,809,248.22 to Dr. Rottenberg between 2002 and 2004. These repayments were apparently for principal and interest on various earlier loans made by Dr. Rottenberg, including some that were evidenced by a promissory note dated February 22, 2003. Joan asserted that, upon his death, Dr. Rottenberg had gifted to her the right to seek repayment of the remaining loans that he had made to the ranch entities.
Mark then filed an amended petition. Among other things, Mark asserted that Joan and her husband had been commingling corporate funds among the five ranch entities. Mark alleged that Dr. Rottenberg had loaned more than $1.7 million to the ranch entities between January 2, 1992, and March 23, 2000. He alleged that Dr. Rottenberg had loaned an additional $1.19 million to the ranch entities between January 23, 2002, and November 26, 2004, but that Joan had “concealed” the existence of these loans. Mark pointed to Joan’s deposition of July 11, 2007, at which Joan acknowledged that Dr. Rottenberg had expected to be repaid. Mark argued that Joan and her husband were “falsely claiming there were only $400,000 in outstanding loans,” and suggested that the loans from Dr. Rottenberg to the ranch entities were repayable to either Mrs. Rottenberg or the BR Trust.
Joan also filed an amended petition. Among other things, Joan alleged that Mark had wasted or misused BR Trust proceeds without providing an accounting.
On or about May 28, 2008, the probate court removed both Mark and Joan as cotrustees of the BR Trust and appointed John Yun as sole, successor trustee of the BR Trust.
In an affidavit dated August 31, 2009, Joan admitted that her father had loaned substantial amounts to the ranch entities during his lifetime. However, Joan averred that by the time of Mrs. Rottenberg’s death, the total amount remaining due on these loans was much less than the face value of the loans.
On August 12, 2009, Mark filed a petition for a default judgment and sanctions, claiming that Joan had concealed or destroyed evidence of many of the loans from Dr. Rottenberg, that Joan had given false testimony regarding these loans at her depositions, and that Joan was withholding significant sums that were payable to the BR Trust. Mark alleged that Joan had violated her duty of loyalty in several ways during her tenure as a cotrustee and asserted that she had never properly provided an accounting. Mark asserted that there was at least $1.85 million, plus significant interest, due and owing to the BR Trust in the form of outstanding, unpaid loans from Dr. Rottenberg to the ranch entities.
Joan objected to Mark’s petition. She asserted that she had not engaged in misconduct and contended that Mark and his attorney had misrepresented the facts of the case and attempted to mislead the probate court.
Mark replied, asserting that the ranch entities owed at least $1.8 million in principal and $1,301,286 in interest on the various loans from Dr. Rottenberg. Mark alleged that Joan and her husband had “stolen” these loans and manipulated the books of the ranch entities to hide them. Specifically, Mark contended that Joan had altered the corporate books to show that the loans from Dr. Rottenberg were repayable to the Lipsitzes themselves. According to Mark, these loans were actually repayable to the BR Trust.
Joan admitted that the corporate books had been altered to show that the loans from Dr. Rottenberg were repayable to her and her husband. But she contended that this was done in accordance with the express wishes of Dr. Rottenberg, who had gifted to her the right to demand repayment of the outstanding loans upon his death.
On October 7, 2009, Mark filed a second petition for a default judgment, alleging that Joan had lied during her earlier depositions. In addition to repeating his previous allegations, Mark claimed that Joan had failed to disclose certain other information in her possession concerning the loans from Dr. Rottenberg. Mark again argued that Joan and her husband had fraudulently manipulated the financial records of the ranch entities by reclassifying the loans from Dr. Rottenberg as loans that were repayable to the Lipsitzes.
In response, Joan asserted that Dr. Rottenberg “never expected to be repaid for any of the outstanding loans” and that Dr. Rottenberg had intended “that such loans were to become Joan’s at [his] death.” Joan also argued that Mark lacked standing to pursue any claims concerning the ownership of the outstanding loans because those claims belonged exclusively to the fiduciaries of Dr. Rottenberg’s estate or the ENR Trust.
On September 1, 2009, Joan filed a motion for partial summary disposition, seeking a determination that it was beyond factual dispute that she was not personally liable for repaying the outstanding loans made by Dr. Rottenberg to the ranch entities. See MCR 2.116(C) (10). Among other things, Joan sought a judicial determination that the monies loaned to the ranch entities were “debts of the Ranch Entities and not of Joan Lipsitz.” Joan admitted that she had purchased Mrs. Rottenberg’s stock in the ranch entities in 2005 and had also agreed to assume personal liability for the $400,000 that her mother had loaned to the corporate entities. Joan contended that, beyond these notes for $400,000, she had never agreed to assume any of the other debts owed by the ranch entities to Dr. Rotten-berg, the ENR Trust, or the BR Trust.
Mark responded on October 13, 2009. He claimed that because he had alleged in an earlier petition that Joan was personally liable for the loans from Dr. Rottenberg and Joan had failed to specifically respond to these allegations, the allegations were deemed admitted pursuant to MCR 2.111(E)(1). Mark argued that be cause this was a proceeding to surcharge Joan, as a former cotrustee of the BR Trust, and because he was a beneficiary of the BR Trust, he had standing to bring the instant petitions and seek repayment of the loans. Mark cited several instances, including e-mails, statements in court, and deposition testimony, wherein Joan had suggested that she would be willing to repay the loan obligations of the ranch entities out of her distributive share under the BR Trust.
Mark then filed an amended petition for default judgment and sanctions. Mark again argued that Joan and her husband had concealed and destroyed certain evidence of the loans from Dr. Rottenberg. Joan responded, asserting that as of the date of Dr. Rotten-berg’s death, the outstanding value of the loans from Dr. Rottenberg to the ranch entities was $1.85 million, and the outstanding value of the loans from Mrs. Rottenberg to the ranch entities was $400,000. Joan once again pointed out that she had agreed to assume liability for the $400,000 loaned by Mrs. Rottenberg.
On March 2, 2010, Mark filed a motion for partial summary disposition, arguing that it was beyond factual dispute that the right to demand repayment of the loans from Dr. Rottenberg to the ranch entities had not been gifted to Joan. See MCR 2.116(0(10). Mark took issue with Joan’s recent deposition testimony, in which Joan had testified that her father gave her the right to seek repayment of the loans as a gift upon his death. Mark pointed to several of Joan’s previous depositions during which she had admitted that her father expected repayment.
Joan reiterated her position that Dr. Rottenberg had given her the right to seek repayment of any loans to the ranch entities that remained outstanding at his death. Joan argued that there was no genuine issue of material fact and that all outstanding loans from Dr. Rottenberg to the ranch entities had been given to her as a personal gift.
Lauren Underwood, successor trustee of the ENR Trust and personal representative of Dr. Rottenberg’s estate, responded to the motions for partial summary disposition on April 1, 2010. Underwood clarified that the $400,000 in loans from Mrs. Rottenberg had been purchased by Joan and subsequently repaid to the BR Trust. Underwood also clarified that, although it was true that Dr. Rottenberg had loaned substantial amounts to the ranch entities during his lifetime, “it has always been Joan’s position that her father did not intend for those amounts to be repaid, but instead, intended for her to receive the loans as gifts after his death.” Underwood took exception to Mark’s assertion that the loans were repayable to the BR Trust. Underwood noted that the loans in question had been made by Dr. Rottenberg and that they would therefore be repayable to the ENR Trust, not the BR Trust.
Underwood asserted that, even if the probate court did have jurisdiction in the BR Trust proceedings to consider whether the loans had been gifted to Joan, there remained significant questions of fact that would preclude summary disposition. For example, Underwood noted that several of Mark’s own filings were inconsistent with regard to the total amount of indebtedness, valuing the outstanding loans from Dr. Rotten-berg to the ranch entities at $2 million, $2.25 million, $1.85 million, and $2.31 million respectively. Underwood requested that the probate court deny Mark’s motion for partial summary disposition and enter an order declaring that any claims concerning the ownership of the outstanding loans from Dr. Rottenberg properly belonged to her as the fiduciary of the ENR Trust and Dr. Rottenberg’s estate.
John Yun, successor trustee of the BR Trust, concurred with Underwood’s assertion that any claims concerning the outstanding loans from Dr. Rottenberg to the ranch entities should not be litigated in the BR Trust case.
The probate court entered an order denying Mark’s request for a default judgment and for sanctions without prejudice. The court then held a hearing on the motions for partial summary disposition on April 29, 2010. Mark’s attorney argued that “at the time of Everett Rottenberg’s death, there were at least $2.25 million in loans owed to the Rottenbergs by the ranch entities,” and that “the ... loans were not gifted to Joan Lipsitz prior to Everett Rottenberg’s death.” Counsel cited at least two occasions on which Joan had admitted under oath that the loans were repayable to her father. Joan’s attorney remarked that the only issue to be decided by the probate court was whether Dr. Rottenberg had intended to give Joan the right to demand repayment of the loans that remained outstanding at his death. Joan’s attorney suggested that such a gift could have been a present gift or a gift causa mortis. He argued that, at the very least, there were genuine issues of material fact that should he decided by a jury.
Kevin Check, who had previously served as guardian ad litem for Mrs. Rottenberg,* noted that “Joan’s testimony has, in fact, been ... all over the board.” But Check confirmed that Joan had “clearly [and] unequivocally” testified, during at least one of her depositions, “that it was her understanding, based on the conversations and dealings that she had with her father and her mother, that it was . . . E. N. Rottenberg’s intent that when he passed away, that [the ranch] entities would not have to repay his estate.” The probate court questioned aloud whether Joan’s subjective beliefs concerning what her father had intended at the time of his death would be admissible in evidence.
Underwood argued that, assuming the right to seek repayment of the loans was not given to Joan as a gift, the loans were clearly repayable to the ENR Trust or to Dr. Rottenberg’s estate, not to the BR Trust. Consequently, Underwood asserted, any claims concerning the loans should be litigated in the ENR Trust proceedings. Indeed, Underwood noted that she was pursuing these very issues in separate actions that she had filed on behalf of the ENR Trust and Dr. Rottenberg’s estate. Yun again concurred with Underwood’s arguments.
After having heard the arguments of the parties and their counsel, the probate court observed in pertinent part:
... I think what we got here is somebody was deposed, and being deposed, [Joan] tried to answer the questions very honestly. And to date, from what I heard and I read all the briefs, and all the arguments in Court, I see no disputed facts. And the Court will grant the ... partial summary [disposition] motion. And... the Court rules that it’s ... not a gift. But that doesn’t say... who owes the loan, how much the loan is, or whether any of the loan has been repaid.
On April 29, 2010, the probate court entered an order granting Mark’s motion for partial summary disposi tion in part. The order stated merely that “Mark Rottenberg’s motion for partial summary disposition regarding loans by [the Rottenbergs] to [the] Ranch Entities ... is granted in part” and “[t]he court finds they are loans and not gifts.”
III. JURISDICTIONAL CHALLENGE
Mark argues in his brief on appeal that the probate court’s order of April 29, 2010, was not a final order appealable by right under MCR 5.801(B)(2), and that this Court therefore lacks jurisdiction to consider this appeal.
With respect to probate cases, this Court has jurisdiction of an appeal of right from “[a] judgment or order . . . from which appeal of right to the Court of Appeals has been established by law or court rule.” MCR 7.203(A)(2). In a proceeding involving a decedent’s estate or trust, “[o]rders appealable of right to the Court of Appeals are defined as and limited to ... final order[s] affecting the rights or interests of an interested person . . ..” MCR 5.801(B)(2); see also MCL 600.861(a) and MCL 700.1305. Those “final order[s]” of the probate court that are appealable by right to this Court are further “defined . .. and limited” by MCR 5.801(B)(2)(a) through (ee).
Joan asserts that the probate court’s order of April 29,2010, was appealable by right to this Court pursuant to MCR 5.801(B)(2)(o), because it was a final order of the probate court “determining title to or rights or interests in property[.]” “[T]he determination of which probate court orders are ‘final’ and which are not, for purposes of determining the appellate jurisdiction of this Court, has to be made on a case-by-case basis.” In re Miller Estate, 106 Mich App 222, 224; 307 NW2d 450 (1981). “The test of finality of a probate court order is whether it affects with finality the rights of the parties in the subject matter.” Id.
The probate court’s order of April 29,2010, was in no sense a “final order” within the meaning of MCR 5.801(B)(2). The order merely granted Mark’s motion for partial summary disposition in part. The order did not “affectn with finality the rights of the parties in the subject matter,” Miller Estate, 106 Mich App at 224, because it left for another day the questions of who was responsible for repaying the loans, what the loans were worth, whether any of the loans had been repaid, and whether any of the loans had been forgiven. Accordingly, it was not appealable by right in this Court. MCR 5.801(B)(2); see also Miller Estate, 106 Mich App at 224-225. Nevertheless, in the exercise of our discretion, we have decided to treat Joan’s claim of appeal as an application for leave to appeal and grant the application. See MCR 7.205(D)(2); In re Investigative Subpoena, 258 Mich App 507, 508 n 2; 671 NW2d 570 (2003); Guzowski v Detroit Racing Ass ’n, Inc, 130 Mich App 322, 324-326; 343 NW2d 536 (1983).
IV REAL PARTY IN INTEREST
Joan argues that Mark was not the real party in interest for purposes of his claims concerning the ownership of the right to demand repayment of the loans from Dr. Rottenberg to the ranch entities. We agree.
Whether an individual is the real party in interest is a question of law that we review de novo. See Rohde v Ann Arbor Pub Sch, 265 Mich App 702, 705; 698 NW2d 402 (2005).
The probate court is a court of limited jurisdiction. In re Lager Estate, 286 Mich App 158, 162; 779 NW2d 310 (2009). The jurisdiction of the probate court is defined by statute. Const 1963, art 6, § 15; In re Wirsing, 456 Mich 467, 472; 573 NW2d 51 (1998).
355
MCL 700.1302(b) provides, in relevant part, that the probate court has exclusive legal and equitable jurisdiction over “[a] proceeding that concerns the validity, internal affairs, or settlement of a trust; the administration, distribution, modification, reformation, or termination of a trust; or the declaration of rights that involve a trust, trustee, or trust beneficiary... .” In addition, the probate court has concurrent legal and equitable jurisdiction to “[determine a property right or interest” with respect to a decedent’s estate, trust, or protected individual. MCL 700.1303(l)(a). Without question, Mark is a “trust beneficiary” of the BR Trust. MCL 700.7103(Z)(i); see also MCL 700.1103(d)(i). As a beneficiary, and therefore an “interested person,” MCL 700.1105(c), Mark certainly had statutory standing in this case to invoke the probate court’s jurisdiction with respect to the administration of the BR Trust, MCL 700.7201(1); MCL 700.7203(1).
However, although the principle of statutory standing overlaps significantly with the real-party-in-interest rule, they are distinct concepts. See Kent v Northern California Regional Office of American Friends Serv Comm, 497 F2d 1325, 1329 (CA 9, 1974). The principle of statutory standing is jurisdictional; if a party lacks statutory standing, then the court generally lacks jurisdiction to entertain the proceeding or reach the merits. Miller v Allstate Ins Co, 481 Mich 601, 608-612; 751 NW2d 463 (2008). In contrast, the real-party-in-interest rule is essentially a prudential limitation on a litigant’s ability to raise the legal rights of another. See, e.g., Elk Grove Unified Sch Dist v Newdow, 542 US 1, 12; 124 S Ct 2301; 159 L Ed 2d 98 (2004); Zurich Ins Co v Logitrans, Inc, 297 F3d 528, 532 (CA 6, 2002).
“A real party in interest is one who is vested with the right of action on a given claim, although the beneficial interest may be in another.” Hofmann v Auto Club Ins Ass’n, 211 Mich App 55, 95; 535 NW2d 529 (1995). The real-party-in-interest rule “ ‘requires] that the claim be prosecuted by the party who by the substantive law in question owns the claim asserted....’” Rite-Way Refuse Disposal, Inc v VanderPloeg, 161 Mich App 274, 278; 409 NW2d 804 (1987) (citation omitted).
We conclude that Mark was not the proper party to pursue the instant claims concerning the ownership of the right to demand repayment of the loans from Dr. Rottenberg, which belonged exclusively to the trustee of the ENR Trust, Lauren Underwood. In general, “[a]n action must be prosecuted in the name of the real party in interest. . ..” MCR 2.201(B). The essence of Mark’s argument is that the right to demand repayment of the loans made by Dr. Rottenberg to the ranch entities was not gifted to Joan and that, among other things, the value of the outstanding loans should therefore be used to offset any distributive share to which Joan would otherwise be entitled. It is the duty of the trustee to administer the trust for the benefit of the beneficiaries, MCL 700.7801, to control and protect the property of the trust, MCL 700.7810, to enforce any claims of the trust, MCL 700.7812, and to marshal and collect outstanding trust property, MCL 700.7813(1). There can be no doubt that the trustee of the ENR Trust is the party who actually owns the claims asserted by Mark in this matter. See Rite-Way, 161 Mich App at 278; see also Kent, 497 F2d at 1329. Because Mark was not the real party in interest, his claims should have been dismissed. See Leite v Dow Chem Co, 439 Mich 920 (1992).
V LITIGATING IN THE WRONG PROCEEDING
We also conclude that any issues concerning the status or ownership of the loans from Dr. Rottenberg to the ranch entities, and whether the right to demand repayment of these loans was ever gifted to Joan, should have been litigated exclusively in the ENR Trust proceedings.
Whether an issue has been litigated in the correct probate proceeding is a question of law. Questions of law are reviewed de novo on appeal. Cowles v Bank West, 476 Mich 1,13; 719 NW2d 94 (2006); In re Rudell Estate, 286 Mich App 391, 403; 780 NW2d 884 (2009).
It is undisputed that the loans at issue in this matter were made solely by Dr. Rottenberg. Dr. Rottenberg therefore held the exclusive right to demand repayment of these loans during his lifetime. The right to demand repayment of a loan or debt is a chose in action, Black’s Law Dictionary (7th ed), and therefore an item of intangible personal property, Royal Oak Twp v City of Berkley, 309 Mich 572, 580; 16 NW2d 83 (1944). Such a right survives death. MCL 600.2921. Accordingly, under the terms of Dr. Rottenberg’s will, the right to demand repayment of the loans became an asset of the ENR Trust immediately upon Dr. Rottenberg’s death.
We reiterate that Mrs. Rottenberg was, essentially, a lifetime income beneficiary of the two marital subtrusts only. However, even if the right to demand repayment of the loans from Dr. Rottenberg poured over into one of these two marital subtrusts, the most that could possibly have passed into the BR Trust, if anything at all, was the accrued income from the loans that would have been payable to Mrs. Rottenberg during her lifetime. As a preliminary matter, there was simply no evidence to establish that the right to demand repayment of the loans ever became an asset of one of the marital subtrusts rather than the Residuary Trust under the ENR Trust instrument. Nor was there evidence to establish that the right to demand repayment generated any income during Mrs. Rottenberg’s lifetime. Lastly, there is no question that the balance of the right to demand repayment of the loans (i.e., whatever would have been left of this asset after the payment of any income that accrued during Mrs. Rottenberg’s lifetime) remained an asset of the ENR Trust at all times and could not have, under any circumstances, passed into Mrs. Rottenberg’s estate or the BR Trust.
We fully acknowledge that “[a] proceeding involving a trust may relate to any matter involving the trust’s administration, including a request for instructions and a determination regarding the validity, internal affairs, or settlement of a trust. . . .” MCL 700.7201(3). However, any questions concerning the ownership of the right to demand repayment of the loans from Dr. Rottenberg, and specifically whether this right was ever gifted to Joan, “relat[ed]” exclusively to the administration of the ENR Trust. See id. Indeed, any interest that the BR Trust has in the instant claims regarding the right to demand repayment of the loans from Dr. Rottenberg to the ranch entities is entirely derivative of the ENR Trust’s interest in these same claims. We conclude that any questions regarding the right to demand repayment of the loans from Dr. Rottenberg, and whether this right was ever gifted to Joan, should have been litigated exclusively in the ENR Trust proceedings and not in the BR Trust proceedings.
VI. CONCLUSION
The question whether the right to demand repayment of the loans from Dr. Rottenberg to the ranch entities was gifted to Joan should not have been litigated in this case. Any claims pertaining to this question belong to the trustee of the ENR Trust and should have been litigated exclusively in the ENR Trust proceedings. We therefore vacate the probate court’s order of April 29, 2010, and remand for further proceedings consistent with this opinion.
In light of our foregoing conclusions, we decline to reach the merits of Joan’s argument that the right to demand repayment of the loans was gifted to her by her father or, alternatively, that there remained a genuine issue of material fact concerning whether the right to demand repayment of the loans was gifted to her by her father.
Vacated and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, no party having prevailed in full.
Fitzgerald and K. F. Kelly, JJ., concurred with Jansen, P.J.
Joan filed her claim of appeal with this Court on May 11, 2010. Mark argues in his brief on appeal that the probate court’s order of April 29, 2010, was not a final order appealable by right under MCR 5.801(B)(2) and that this Court accordingly lacks jurisdiction to consider this appeal. This issue is addressed in part III of this opinion.
Lisa is not a party on appeal.
These five corporations were (1) Outdoor Resources, Inc., (2) Carpenter Lake Development, Inc., (3) Carpenter Ridge, Inc., (4) Double JJ Resort Ranch, Inc., and (5) American Appaloosas, Inc. Each of the ranch entities filed for bankruptcy on July 18, 2008, and all five corporations had been liquidated and dissolved as of 2010.
On August 11, 2005, Mrs. Rottenberg opened her late husband’s estate by filing an application for informal probate in the Oakland Probate Court. See In re Rottenberg Estate (Oakland Probate Case No. 2005-299590-DA). Initially, Mrs. Rottenberg served as personal representative of Dr. Rottenberg’s estate. In May 2007, John Yun was appointed to serve as successor personal representative of Dr. Rottenberg’s estate. It appears that Yun was replaced by Lauren Underwood as successor personal representative of Dr. Rottenberg’s estate in February 2009.
The probate court removed Mark and Joan as cotrustees of the ENR Trust in February 2009 and appointed Lauren Underwood as sole, successor trustee of the ENR Trust.
The ENR Trust instrument also created a Generation Skipping Trust. The Generation Skipping Trust is not at issue in this appeal.
We acknowledge that Mrs. Rottenberg was entitled to as much principal of the Marital Trust for Spouse as she requested during her lifetime, and as much principal of the Terminable Interest Marital Trust for Spouse as she needed during her lifetime. Mrs. Rottenberg was further entitled to as much income and principal of the Residuary Trust as she needed during her lifetime. However, the probate court record contains no evidence to establish that Mrs. Rottenberg ever requested or needed any of these additional amounts. We further acknowledge that certain provisions of the ENR Trust instrument gave Mrs. Rottenberg the power to appoint the principal and accumulated income of various subtrusts by way of her will or an inter vivos document. However, there is no evidence in the probate court record to indicate that Mrs. Rotten-berg exercised any of these powers of appointment.
However, Joan also testified that her father had never specified a particular date by which the loans were to be repaid.
MCR 2.111(E)(1) provides that “[a]llegations in a pleading that requires a responsive pleading, other than allegations of the amount of damage or the nature of the relief demanded, are admitted if not denied in the responsive pleading.” A petition filed in the probate court constitutes a “pleading” under the Michigan Court Rules. MCR 5.001(B)(2).
It is undisputed that a jury had been demanded and that, at the time of the probate court’s hearing on the motions for partial summary disposition, the court had already scheduled a jury trial on this issue.
Check remained involved in these proceedings, at least to a minimal extent, even after Mrs. Rottenberg’s death. Check is not a party on appeal.
It is trae that a trust proceeding, such as this, is not a “civil action.” See MCR 5.101(A) and (B). But a proceeding is nonetheless one of the “forms of action” permitted in the probate court, MCR 5.101(A), and therefore constitutes an “action” for purposes of the real-party-in-interest rale of MCR 2.201(B), see In re Brown, 229 Mich App 496, 502; 582 NW2d 530 (1998); see also MCR 5.001(A).
In general, income that accrues during the life of a lifetime income beneficiary, but is not marshaled and collected by the trustee until after the death of that beneficiary, passes into the estate of the lifetime income beneficiary rather than to the trust’s remaindermen. See, e.g., Bogert, Trusts & Trustees (2d ed), § 818, pp 412, n 72; 1 Restatement Trusts, 2d, § 235A, p 570; In re Appeal of New Britain Bank & Trust Co, 39 Conn Supp 157,160; 472 A2d 1305 (1983); In re Davidson’s Estate, 287 Pa 354, 357; 135 A 130 (1926).
As noted earlier, there was no evidence that Mrs. Rottenberg exercised any of the powers of appointment conferred upon her by the ENR Trust instrument. Importantly, she did not appoint the right to demand repayment of the loans to the BR Trust.
Of course, there is always a remote possibility that additional discovery in one of the other proceedings or civil actions pending before the probate court will show that the right to demand repayment of the loans did pour over into one of the two marital subtrusts under the ENR Trust instrument, that this right of repayment did generate income during Mrs. Rottenberg’s lifetime that was neither collected nor paid out to her, and that the interest in any accrued income therefore passed into the BR Trust under the terms of Mrs. Rottenberg’s will. But as Underwood aptly observed at oral argument before this Court, the trustee of the BR Trust would be entitled to proceed against the trustee of the ENR Trust should such facts come to light. See MCL 700.7813(1); MCL 700.7817(x); see also MCL 700.7812. Indeed, we note that the trustee of the BR Trust is specifically authorized to “take reasonable steps to locate trust property and to compel a former trustee or other person to deliver trust property____” MCL 700.7813(1) (emphasis added). The trustee of the ENR Trust would certainly constitute a “person” covered by this statute. | [
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PER CURIAM.
In this suit to recover for personal injuries allegedly caused by the failure to properly maintain a public trail, plaintiffs, Beverly and Daniel Duffy (collectively the Duffys), appeal as of right the trial court’s order granting summary disposition in favor of defendant Irons Area Tourist Association. On appeal, we must determine whether the trial court erred when it determined that the Tourist Association was protected from liability under Part 733 of the Natural Resources and Environmental Protection Act, see MCL 324.73301, which is commonly referred to as the recreational land use act. Because we conclude that the trial court erred when it relied on that act in dismissing the Duffys’ claim against the Tourist Association, we vacate and remand.
I. BASIC FACTS
In September 2007, Beverly Duffy drove an all-terrain vehicle on a portion of the Little Manistee Trail located on state land. After she crossed over some partially buried wooden boards on the trail, she lost control of her vehicle and crashed. She suffered serious spinal cord injuries and paralysis. The Duffys eventually sued the Tourist Association and defendant Cycle Conservation Club of Michigan. Specifically, they alleged that the state of Michigan had contracted with the Tourist Association and the Conservation Club to grade and maintain the trail in question and, as a result of their negligent failure to properly maintain the trail, the Tourist Association and the Conservation Club were responsible for Beverly Duffy’s crash and injuries.
In lieu of an answer, the Tourist Association moved for summary disposition under MCR 2.116(C)(8) and (10). It argued that it was entitled to summary disposition because its maintenance of the trail fell under the recreational land use act, which limited liability to situations involving gross negligence. The Tourist Association asserted that it was entitled to have the Duffys’ claim dismissed because the Duffys had not properly alleged that the Tourist Association’s maintenance of the trail was grossly negligent and, in any event, could not prove gross negligence. The trial court agreed and, on February 8, 2012, it issued an opinion stating that it was granting the Tourist Association’s motion.
On February 14, 2012, the trial court entered a stipulated order to dismiss the Duffys’ claim against the Conservation Club. After the Conservation Club’s dismissal, the Duffys appealed and this Court assigned Docket No. 309003 to the appeal. However, the trial court had not yet entered an order dismissing the Duffys’ claim against the Tourist Association; it did not enter such an order until June 6, 2012. The Duffys appealed that order as well and this Court assigned Docket No. 311023 to that appeal. This Court then consolidated the appeals.
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
The Duffys first argue that the trial court erred when it determined that the Tourist Association was entitled to the protection provided under the recreational land use act. Because that act did not apply to the Tourist Association, they maintain, the trial court erred when it dismissed their claim against the Tourist Association on the basis that they failed to plead and establish that the Tourist Association’s acts or omissions amounted to gross negligence. This Court reviews de novo a trial court’s decision on a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). This Court also reviews de novo the proper interpretation of statutes, Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004), and agreements, Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005).
B. THE RECREATIONAL LAND USE ACT
In 1995, the Legislature enacted the recreational land use act. See 1995 PA 58. The recreational land use act modified the common law applicable to torts involving injuries that a person sustained while on “the land of another” for recreational purposes:
Except as otherwise provided in this section, a cause of action shall not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee. [MCL 324.73301(1).]
By repeatedly referring to the owner, tenant, or lessee of the land on which the person is injured, the Legislature plainly intended to limit the scope of the protection provided under MCL 324.73301(1): “a cause of action” by persons who were injured “on the land of another” — without paying to “the owner, tenant, or lessee of the land” a valuable consideration — shall not arise “against the owner, tenant, or lessee of the land” unless that person’s injuries were caused “by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.” Id. (emphases added). The Legislature provided similar protections to owners, tenants, and lessees who permit the general public to use their land “for the purpose of entering or exiting from or using” a Michigan trailway or public trail, or to use their land for certain agricultural purposes. MCL 324.73301(2)-(5). As can be seen from a cursory reading, the Legislature took pains to state that it is the land owners, tenants, or lessees who cannot be liable unless the land owner, tenant, or lessee engaged in gross negligence or wanton and willful misconduct. It is also evident that the Legislature extended this protection to owners, tenants, and lessees because it is those persons or entities whose possession and control over the land renders them liable under the traditional common-law principles applicable to premises liability. See Merritt v Nickelson, 407 Mich 544, 552-554; 287 NW2d 178 (1980) (stating that premises liability “is conditioned upon the presence of both possession and control over the land” and holding that a coowner who does not have such possession and control is not liable); see also Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 265-269; 235 NW2d 732 (1975) (explaining that a lessee generally assumes responsibility for the condition of those parts of the premises over which the lessee has possession and control); Ann Arbor Tenants Union v Ann Arbor YMCA, 229 Mich App 431, 443-444; 581 NW2d 794 (1998) (stating that the defining characteristic of a tenant — as opposed to a guest — is that the tenant obtains exclusive legal possession and control over the premises during the term of a leasehold). Accordingly, we hold that the protections afforded by MCL 324.73301 apply only to the traditional premises possessors identified by the Legislature in that statute: landowners, tenants, and lessees.
Relying on Kruse v Iron Range Snowmobile Club, 890 F Supp 681, 684-685 (WD Mich, 1995), the trial court determined that the recreational land use act should be extended to protect the Tourist Association. In Kruse, the court determined that the recreational land use act applied to an entity that contractually agreed to groom trails even though the entity did not own or lease the land at issue. Id. at 685. The court concluded that it would be appropriate to apply the act to the entity because it had been given the right to exercise “substantial ongoing control upon the land” and because extending the act would further the Legislature’s purpose in enacting the act. Id. (“To deny the Snowmobile Club the Act’s immunity simply because it does not appear to be an owner, tenant or lessee under traditional notions would be to exalt the importance of the defendant’s relationship to the land in a manner disfavored by the Michigan courts.”). But our Supreme Court has disavowed this type of “legislative decision-making” by the courts when interpreting the recreational land use act. Neal, 470 Mich at 667. Instead, our Supreme Court has held that the recreational land use act should be enforced as written and not given a judicial gloss designed to promote what the court believes to be the Legislature’s policy goal in enacting the statute. Id. at 665-667, overruling Wymer v Holmes, 429 Mich 66; 412 NW2d 213 (1987).
The court in Kruse also relied on Wilson v Thomas L McNamara, Inc, 173 Mich App 372, 377; 433 NW2d 851 (1988), for the proposition that the defendant’s relationship to the land does not really matter in determining whether the act applies. Kruse, 890 F Supp at 685. We disagree that Wilson stands for that proposition. Relying on the since overruled decision in Wymer, the Court in Wilson emphasized that it was the character of the land that determined whether the recreational land use act applied and not the nature of the defendant’s relationship to the land; it nevertheless recognized that whether “or not one is the ‘owner, tenant, or lessee’ of the lands relates to the issue of whether one is a proper defendant in the action.” Wilson, 173 Mich App at 377. That is, the Court recognized that a person or entity is not a proper defendant in a premises liability action if the person or entity is not an owner, lessee, or tenant of the land at issue. In any event, even if Wilson could be interpreted to extend the recreational land use act to persons or entities other than owners, lessees, or tenants, we would decline to follow it as unpersuasive and directly contradicted by the language of the statute. See MCR 7.215(J)(1). The Legislature limited the recreational land use act’s protection to land owners, tenants, and lessees, and we must enforce that limitation. See Johnson v Recca, 492 Mich 169,196-197; 821 NW2d 520 (2012) (stating that a court should not try to enhance or improve statutes to fit what the court believes is the better policy choice, but must instead rest its analysis on the actual language and organization of the statute).
Here, the undisputed evidence showed that the Tourist Association entered into a “grant agreement” with the Department of Natural Resources. Under the terms of that agreement, the Tourist Association agreed to make certain improvements to the trail at issue in exchange for grant disbursements from the Department. There is no evidence, however, that the Department transferred an ownership interest in, or exclusive possession and control over, the land at issue to the Tourist Association; therefore, the Tourist Association was not an owner, tenant, or lessee. Merritt, 407 Mich at 552; Quinlivan, 395 Mich at 269; Ann Arbor Tenants Union, 229 Mich App at 443-444. Because the undisputed evidence showed that the Tourist Association was not the owner, tenant, or lessee of the land upon which Beverly Duffy was injured, the trial court erred when it extended the scope of the recreational land use act to protect the Tourist Association and dismissed the Duffys’ claim against it on that basis. MCL 324.73301.
III. CONCLUSION
The Tourist Association was not an owner, tenant, or lessee of the land; as such, the recreational land use act did not apply to the Tourist Association and the trial court erred when it concluded otherwise. Because the Duffys did not have to plead and prove that Beverly Duffy’s injuries arose from the Tourist Association’s gross negligence or willful and wanton misconduct, the trial court erred when it granted the Tourist Association’s motion for summary disposition on the ground that the Duffys failed to plead or present evidence to establish gross negligence. For these reasons, we vacate its opinion and order granting summary disposition in favor of the Tourist Association and remand for further proceedings consistent with this opinion. Given our resolution of this issue, we decline to consider the Duffys’ remaining claims of error.
Vacated and remanded for further proceedings. We do not retain jurisdiction. As the prevailing party, the Duffys may tax their costs. MCR 7.219(A).
M. J. Kelly, P.J., and Cavanagh and Murray, JJ., concurred. | [
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ON REMAND
Before: Doctoroff, P.J., and Fitzgerald and Wilder, JJ.
Wilder, J.
This case is before us on remand from the Supreme Court following its review of our previous opinion in this case. There, we affirmed the circuit court’s order affirming the district court’s order suppressing evidence against defendant and dismissing the case. People v Custer, 242 Mich App 59, 73-74; 618 NW2d 75 (2000) (Custer I). The Supreme Court reversed the judgment of our Court and remanded to us for purposes of deciding, in light of its opinion, whether the search of defendant’s home was proper. People v Custer, 465 Mich 319, 344; 630 NW2d 870 (2001) (Custer II). We conclude that because the photographs seized from defendant were properly examined by the arresting officer, id. at 333-335, probable cause existed to search defendant’s home. We therefore reverse the decision of the circuit court and remand for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL BACKGROUND
In our previous opinion, we summarized the facts of this case as follows:
Officer Robert Greenleaf and a fellow officer from the Bay City Police Department were dispatched to a residence in Bay City to investigate a possible trespass. When they arrived at the location, the officers observed a parked vehicle occupied by two individuals. Officer Greenleaf approached the vehicle in which Billy Holder and defendant were located and, suspecting that Holder, the driver of the vehicle, was intoxicated, asked him to turn off the ignition and step out of the vehicle. After determining that Holder was too intoxicated to drive, Officer Greenleaf advised Holder that he could either have his vehicle towed to an impound lot or back to his residence at his own expense. Holder elected to have the vehicle towed back to his residence in Mt. Pleasant. Officer Greenleaf asked Holder to demonstrate that he had sufficient funds to pay the “ost of towing the vehicle. Holder retrieved a wad of money out of his pants pocket estimated at approximately $500 in mostly $10 and $20 bills, along with a small plastic bag that appeared to Officer Greenleaf to contain marijuana. Officer Greenleaf arrested Holder, searched him for weapons, and placed him in the patrol car. As he entered the patrol car, Holder yelled to defendant, “[djon’t tell them a f-thing.”
After Holder was secured in the police vehicle, Officer Greenleaf asked defendant to get out of the vehicle. Officer Greenleaf did not initially fear for his safety, but after dis covering marijuana on Holder, he concluded, on the basis of his training and experience, that defendant could be armed and dangerous. Thus, in order to ensure his safety, and that of his partner, Officer Greenleaf conducted a patdown search of defendant for weapons and contraband. Officer Greenleaf also indicated that defendant was going to be transported to the police department for questioning and it was departmental policy that anyone being transported in a police vehicle was to be patted down for weapons or possible illegal substances. During the patdown, Officer Greenleaf felt what he believed to be a two-by three-inch card of blotter acid in defendant’s front pants pocket and he removed the item. Instead of a card of blotter acid, however, Officer Greenleaf found three Polaroid pictures and placed them facedown on top of the vehicle without inspecting them. No other items were found on defendant. After completing the patdown, Officer Greenleaf retrieved the pictures from the roof of the vehicle and examined them. The three photographs depicted (1) Holder carrying two one-pound bags of marijuana with additional one-pound bags of marijuana on a coffee table in front of him, (2) a number of one-pound bags of marijuana, and (3) Holder sitting in a chair next to a suitcase that contained numerous one-pound bags of marijuana. The photographs were seized and defendant was transported to the police station for questioning.
Detective Joseph Lanava, who arrived at the scene to assist in the investigation, contacted Detective Jesse Flores in Mt. Pleasant, where defendant resided, and provided him with three addresses in Mt. Pleasant to check in connection with a traffic stop where a controlled substance was discovered. Specifically, Detective Lanava asked Detective Flores to determine if any of the houses contained furnishings similar to those found in the photographs seized from defendant. When Detective Floras arrived at defendant’s address, he peered into the house through the front window using a flashlight. He communicated a description of the room and the items he observed to the officers in Bay City. Detective Flores’ observations were subsequently used to obtain a search warrant for defendant’s house, from which approximately fifteen pounds of marijuana were seized.
Defendant was subsequently charged with delivery and manufacture of five to forty-five kilograms of marijuana,[ ] maintaining premises for the use or sale of controlled substances,[ ] and conspiracy to deliver five to forty-five kilograms of marijuana.[ ] The district court dismissed the charges, finding that the patdown search of defendant was illegal because Officer Greenleaf was admittedly not in fear for his safety at the time of the search and he searched defendant for weapons and drugs. The circuit court affirmed the district court’s ruling, finding that, under the totality of the circumstances, the district court’s findings were not clearly erroneous. The instant appeal ensued. [Custer I, supra at 61-64.]
In addition to these facts, we note that the record establishes that upon arriving at defendant’s home, Detective Flores went to the front entrance and knocked on the door to determine if anyone was home and that in reaching the front entrance, Detective Flores did not cross any obstructions, such as a gate or fence, nor did he observe any signs forbidding people from entering the property in order to knock on the front door. It was only after approaching the front door that Detective Flores noticed that the window immediately to the left of the door had its inside blinds pulled up, allowing him to observe what was in the room.
On appeal, we held that even though the investigatory stop, patdown, and removal of the photographs from defendant’s pocket were proper, id. at 65, 69, 72,
because the plain feel doctrine permitted only the seizure of the items from defendant’s pocket without a warrant and did not extend to the subsequent search of the photographs after Officer Greenleaf immediately determined that the items were not contraband, . . . we conclude[d] as a matter of law that the search was illegal and the photographs were properly suppressed. [Id. at 74.]
We further concluded that, because the photographs were properly suppressed, the circuit court correctly suppressed the evidence found at defendant’s home as “ ‘fruits of the poisonous tree,’ ” id., and held that “there was insufficient evidence to bind defendant over on the charged offenses.” Id. We therefore affirmed the district and circuit courts’ orders dismissing the charges against defendant.
The Supreme Court granted the prosecution’s application for leave to appeal, and subsequently a majority of the Supreme Court justices agreed with our determination that the investigatory stop, patdown, and removal of the photographs from defendant’s pocket were proper. Custer II, supra at 323, 344 (Markman, J.), 345 (Weaver, J.), 350, 352 (Cavanagh, J.), 373 (Young, J.). A separate majority of the Supreme Court justices also found that the photographs should not have been suppressed. In so holding, the lead opinion stated that
[b]ecause the officer had already lawfully seized the photographs when he turned them over to examine their fronts, and because defendant’s reasonable expectation of privacy-in the outer surfaces of those photographs had, at the least, been significantly diminished, there was no constitutional “search” for purposes of the Fourth Amendment.
. . . This is true because once the police lawfully take possession of an object, one’s expectation of privacy with respect to that object has “at least partially dissipated [People v Rivard, 59 Mich App 530, 533-534; 230 NW2d 6 (1975).] For these reasons, we conclude that the exterior of an item that is validly seized during a patdown search may be examined without a search warrant, even if the officer subsequently learns that the item is not the contraband the officer initially thought that it was before the seizure.
. . . Therefore, we conclude that the turning over and examining of the other side of the photographs by the police, under the circumstances of this case, did not deprive defendant of his constitutional rights under the Fourth Amendment of [the] United States Constitution or Const 1963, art 1, § 11. [Custer II, supra at 336-338 (opinion of Markman, J.).]
Justice Weaver concurred, reasoning that if “the initial seizure of the photographs was valid under the plain feel exception, then the subsequent examination of those photographs was also valid.” Custer II, supra at 345, citing Arizona v Hicks, 480 US 321, 326; 107 S Ct 1149; 94 L Ed 2d 347 (1987), and People v Champion, 452 Mich 92, 105-106, 117; 549 NW2d 849 (1996).
On remand we now determine “whether the subsequent search of defendant’s home was proper.” Custer II, supra at 344.
H. STANDARD OF REVIEW
We review for clear error a trial court’s factual findings in a suppression hearing. People v Stevens (After Remand), 460 Mich 626, 631; 597 NW2d 53 (1999); People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). However, the constitutional questions relevant to the suppression hearing are questions of law that are reviewed de novo. People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998); People v Nelson, 443 Mich 626, 631, n 7; 505 NW2d 266 (1993). See also People v Garvin, 235 Mich App 90, 96; 597 NW2d 194 (1999).
IH. ANALYSIS
We are faced with two separate issues with regard to whether defendant’s home was properly searched. First, we must determine whether defendant’s Fourth Amendment rights were violated when Detective Flores looked into defendant’s home through the front window without a search warrant. Second, we must determine whether the photographs, coupled with knowledge that objects in the defendant’s home matched the photographs, provided probable cause to request a search warrant for defendant’s home. We conclude that defendant’s Fourth Amendment rights were not violated by Detective Flores’ looking into defendant’s house and that sufficient probable cause was present to justify a search warrant.
A. DEFENDANT’S FOURTH AMENDMENT CHALLENGE
Defendant first contends that Detective Flores violated defendant’s reasonable expectation of privacy when he looked through the window of defendant’s home without attaining a search warrant and that therefore defendant’s Fourth Amendment rights against unreasonable searches and seizures were violated. We disagree.
In People v Lombardo, 216 Mich App 500, 504-505; 549 NW2d 596 (1996), this Court provided the following two-part test with regard to Fourth Amendment challenges based on a violation of privacy:
In determining whether a person has a legitimate expectation of privacy so as to confer standing to challenge a search and seizure as violative of the Fourth Amendment, a two-part inquiry is employed. First, a defendant must demonstrate that, under the totality of the circumstances, there existed a legitimate personal expectation of privacy in the area or object searched. California v Greenwood, 486 US 35, 39; 108 S Ct 1625; 100 L Ed 2d 30 (1988); People v Armendarez, 188 Mich App 61, 70-71; 468 NW2d 893 (1991). Second, the individual’s expectation must be one that society accepts as reasonable. California, supra; Armendarez, supra.
As previously indicated, the record establishes that Detective Flores went to defendant’s home in order to determine if it was the residence depicted in the pho tographs. In addition, we note that it was only after Detective Flores arrived at the front entrance of the home that he noticed that the window immediately to the left of the door had its inside blinds pulled up, allowing him, with the aid of light from his flashlight and defendant’s neighbor’s house, to observe what was in the room. Because Detective Flores was properly present on defendant’s porch when he observed the objects through defendant’s window, his actions were entirely proper. People v Shankle, 227 Mich App 690, 694; 577 NW2d 471 (1998), citing People v Freeman, 413 Mich 492, 496-497; 320 NW2d 878 (1982) (“Merely entering the private property of another is not an offense unless one has been forbidden to do so or refuses to depart after having been told to do so by a proper person.”). See United States v Dunn, 480 US 294, 305; 107 S Ct 1134; 94 L Ed 2d 326 (1987), and People v Whalen, 390 Mich 672, 678-679; 213 NW2d 116 (1973); see also Katz v United States, 389 US 347, 351; 88 S Ct 507; 19 L Ed 2d 576 (1967), and People v Champion, 452 Mich 92, 101-103; 549 NW2d 849 (1996) (discussing the plain view doctrine generally).
Because the blinds were not drawn, defendant had no actual, subjective expectation of privacy in the contents of the front room. Cf. People v Smith, 420 Mich 1, 26-28; 360 NW2d 841 (1984). As stated in People v McKendrick, 188 Mich App 128, 143-144; 468 NW2d 903 (1991), quoting United States v Taborda, 635 F2d 131, 138 (CA 2, 1980):
“The very fact that a person is in his own home raises a reasonable inference that he intends to have privacy, and that if that inference is borne out by his actions, society is prepared to respect his privacy. But the inference may be rebutted by the person’s own actions. If in his own home he conducts activities or places objects in such a way that the activities or objects are seen by the unenhanced viewing of persons outside the home, located where they may properly be, such observations transgress no Fourth Amendment protection because ‘no intention . . . has been exhibited’ by the householder to prevent the unenhanced viewing of others.” [quoting Katz v United States, 389 US 347, 361; 88 S Ct 507; 19 L Ed 2d 576 (1967).]
The fact that Detective Flores’ view was aided by a flashlight is of little jurisprudential relevance. As stated in Whalen, supra at 679, quoting Marshall v United States, 422 F2d 185, 189 (CA 5, 1970):
“When the circumstances of a particular case are such that the police officer’s observation would not have constituted a search had it occurred in daylight, then the fact that the officer used a flashlight to pierce the nighttime darkness does not transform his observation into a search. Regardless of the time of day or night, the plain view rule must be upheld where the viewer is rightfully positioned .... The plain view rule does not go into hibernation at sunset.”
See also People v Goodman, 58 Mich App 220, 223; 227 NW2d 261 (1975). Under these circumstances, we conclude that Detective Flores’ observations did not invade defendant’s privacy expectations. Lombardo, supra. Thus, defendant’s Fourth Amendment rights were not violated.
B. PROBABLE CAUSE TO SEARCH DEFENDANT’S HOME
As a preliminary matter, we note that “ ‘[p]robable cause sufficient to support issuing a search warrant exists when all the facts and circumstances would lead a reasonable person to believe that the evidence of a crime or the contraband sought is in the place requested to be searched.’ ” People v Ulman, 244 Mich App 500, 509; 625 NW2d 429 (2001), quoting People v Brannon, 194 Mich App 121, 132; 486 NW2d 83 (1992). See also People v Nunez, 242 Mich App 610, 612; 619 NW2d 550 (2000), quoting People v Stumpf, 196 Mich App 218, 227; 492 NW2d 795 (1992) (“ ‘Probable cause exists when a person of reasonable caution would be justified in concluding that evidence of criminal conduct could be found in a stated place to be searched.’ ”).
Here, the properly seized and examined photographs depicted (1) Holder carrying two one-pound bags of marijuana with additional one-pound bags of marijuana on a coffee table in front of him, (2) a number of one-pound bags of marijuana, and (3) Holder sitting in a chair next to a suitcase that contained numerous one-pound bags of marijuana. As a result of these photographs, Detective Flores went to defendant’s residence, where he observed objects similar to those seen in the photographs. On the basis of these observations, there was probable cause to believe that defendant’s residence was the same residence depicted in the validly seized and examined photographs. Ulman, supra; Nunez, supra. In addition, we note that defendant’s cohort, Holder, was carrying both a large amount of cash in small denominations and a small plastic bag of marijuana at the time he was arrested and that, while being placed in the squad car, Holder yelled to defendant “[d]on’t tell them a f-thing.” Further, defendant admitted being in the presence of Holder all evening. Because defendant admitted being with Holder the entire evening and since objects in the photographs matched objects in defendant’s residence, probable cause existed to issue a search warrant for defendant’s home. Ulman, supra; Nunez, supra. As such, the evidence found at defendant’s home was properly seized and should not have been suppressed. Accordingly, we find that there was probable cause to bind defendant over for trial.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
People v Custer, 465 Mich 319; 630 NW2d 870 (2001).
People v Custer, 242 Mich App 59, 73-74; 618 NW2d 75 (2000).
MCL 333.7401(2)(d)(ii).
R1CL 333.7405(d).
MCL 750.157a; MCL 333.7401(2)(d)(ii).
These facts have been added because, although they were not pertinent to our resolution of the previous case, they are essential for proper resolution of defendant’s Fourth Amendment challenge.
People v Custer, 463 Mich 907 (2000).
We note that our Supreme Court has previously held that, absent compelling reasons, the Michigan Constitution, Const 1963, art 1, § 11, affords the same level of protection with regard to unreasonable searches and seizures as the Fourth Amendment of the United States Constitution, US Const, Am IV. People v Champion, 452 Mich 92, 97, n 3; 549 NW2d 849 (1996), citing People v Nash, 418 Mich 196; 341 NW2d 439 (1983), and Sitz v Dep’t of State Police, 443 Mich 744; 506 NW2d 209 (1993). Because we do not find compelling reasons sufficient to deviate from tins general rule, we find that defendant’s challenge is controlled by Fourth Amendment jurisprudence, and therefore we need not independently analyze defendant’s claim under the Michigan Constitution. See People v Lombardo, 216 Mich App 500, 504; 549 NW2d 596 (1996), People v Catanzarite, 211 Mich App 573, 580; 536 NW2d 570 (1995), and Custer II, supra at 345, n 1 (Cavanagh, J., dissenting).
The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated .... [US Const, Am IV.]
See also Lombardo, n 8, supra and People v Catanzarite, n 8, supra. | [
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Murphy, J.
At issue in these consolidated products liability appeals is the constitutionality of MCL 600.2946(5), which limits the liability of drug manufacturers and sellers. In Docket Nos. 217269, 217279, 217290, and 217328, defendants American Home Products Corporation, Medeva Pharmaceutials, Inc., SmithKline Beecham Corporation, and Gate Pharmaceuticals appeal by leave granted an order of the Wayne Circuit Court that denied their motion for summary disposition predicated on MCL 600.2946(5). The court ruled that MCL 600.2946(5) was unconstitu tional because it improperly delegated to the United States Food and Drug Administration (fda) the legislative function of determining a cause of action. In Docket No. 227700, plaintiffs Judith and Kenneth Robards appeal by leave granted an order of the Washtenaw Circuit Court granting summary disposition in favor of the manufacturing defendants on the basis of MCL 600.2946(5). That court found MCL 600.2946(5) to provide an affirmative defense to liability and held that the provision was not constitutionally infirm. Our review of the statutory provision at issue leads us to the conclusion that it works an unconstitutional delegation of legislative authority. Accordingly, we affirm the decision of the Wayne Circuit Court, reverse the decision of the Washtenaw Circuit Court, and remand.
Plaintiffs in these separate cases are suing the drug manufacturers and distributors of certain diet drugs. The primary drugs at issue are dexfenfluramine (commonly known as Redux) and fenfluramine and phentermine (in combination, commonly known as fen-phen). Defendants moved for summary disposition citing MCL 600.2946(5), which tort reform statute limits the liability of drug manufacturers and sellers in products liability actions if the drug at issue was approved for safety by the fda and labeled in compliance with fda standards. Plaintiffs did not contest the applicability of MCL 600.2946(5), nor did they argue that they had pleaded their complaints to avoid its application. Rather, plaintiffs contended that the statute was unconstitutional on various grounds.
This Court reviews de novo a trial court's ruling on a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). The constitutionality of a statute is also reviewed de novo as a question of law. Stevenson v Reese, 239 Mich App 513, 516; 609 NW2d 195 (2000). Here, we are presented a close question: Is MCL 600.2946(5) constitutionally infirm under Const 1963, art 4, § 1 as an unlawful delegation of legislative authority?
The general standards applicable to claims that a statute is facially unconstitutional are well established:
Statutes are presumed to be constitutional, and courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent. Caterpillar, Inc v Dep’t of Treasury, 440 Mich 400, 413; 488 NW2d 182 (1992); Mahaffey v Attorney General, 222 Mich App 325, 344; 564 NW2d 104 (1997). The party asserting the constitutional challenge has the burden of proving the law’s invalidity. In re Hamlet (After Remand), 225 Mich App 505, 521-522; 571 NW2d 750 (1997). A party challenging the facial constitutionality of a statute must establish that no circumstances exist under which it would be valid. Council of Organizations & Others For Ed About Parochiaid, Inc v Governor, 455 Mich 557, 568; 566 NW2d 208 (1997). [Stevenson, supra at 517.]
The parties dispute whether MCL 600.2946(5) violates Const 1963, art 4, § 1, which states: “The legislative power of the State of Michigan is vested in a senate and a house of representatives.” Legislative power, in general, refers to the authority to make, alter, amend, and repeal laws. Harsha v Detroit, 261 Mich 586, 590; 246 NW 849 (1933). Although Michigan’s Constitution does not explicitly provide that legislative power cannot be delegated, a nondelegation doctrine has been applied through judicial interpretation. Miller v Dep’t of Treasury, 385 Mich 296, 313; 188 NW2d 795 (1971) (Brennan, J., dissenting).
Challenges premised on the theory of improper delegation are common. Thus, the framework and standards by which courts address this specific constitutional challenge are equally well established:
Challenges of unconstitutional delegation of legislative power are generally framed in terms of the adequacy of the standards fashioned by the Legislature to channel the agency’s or individual’s exercise of the delegated power. See, e.g., Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956). Although for many years this and other courts evaluated delegation challenges in terms of whether a legislative (policymaking) or administrative (factfinding) function was the subject of the delegation, this analysis was replaced by the “standards” test as it became apparent that the essential purpose of the delegation doctrine was to protect the public from misuses of the delegated power. The Court reasoned that if sufficient standards and safeguards directed and checked the exercise of delegated power, the Legislature could safely avail itself of the resources and expertise of agencies and individuals to assist the formulation and execution of legislative policy.
The criteria this Court has utilized in evaluating legislative standards are set forth in Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976): 1) the act must be read as a whole; 2) the act carries a presumption of constitutionality; and 3) the standards must be as reasonably precise as the subject matter requires or permits. The preciseness required of the standards will depend on the complexity of the subject. Argo Oil Corp v Atwood, 274 Mich 47, 53; 264 NW 285 (1935). Additionally, due process requirements must be satisfied for the statute to pass constitutional muster. State Highway Comm v Vanderkloot, 392 Mich 159, 174; 220 NW2d 416 (1974). [Blue Cross & Blue Shield of Michigan v Governor, 422 Mich 1, 51-52; 367 NW2d 1 (1985).]
MCL 600.2946(5), as amended by 1995 PA 249, effective March 28, 1996, provides:
In a product liability action against a manufacturer or seller, a product that is a drug is not defective or unreasonably dangerous, and the manufacturer or seller is not liable, if the drug was approved for safety and efficacy by the United States food and drug administration, and the drug and its labeling were in compliance with the United States food and drug administration’s approval at the time the drug left the control of the manufacturer or seller. However, this subsection does not apply to a drug that is sold in the United States after the effective date of an order of the United States food and drug administration to remove the drug from the market or to withdraw its approval. This subsection does not apply if the defendant at any time before the event that allegedly caused the injury does any of the following:
(a) Intentionally withholds from or misrepresents to the United States food and drug administration information concerning the drug that is required to be submitted under the federal food, drug, and cosmetic act, chapter 675, 52 Stat 1040, 21 USC 301 to 321, 331 to 343-2, 344 to 346a, 347, 348 to 353, 355 to 360, 360b to 376, and 378 to 395, and the drug would not have been approved, or the United States food and drug administration would have withdrawn approval for the drug if the information were accurately submitted.
(b) Makes an illegal payment to an official or employee of the United States food and drug administration for the purpose of securing or maintaining approval of the drug.
It is the plaintiffs’ position that the statute is unconstitutional because it improperly delegates to the fda, without establishing standards for oversight, the authority to determine which drugs may be subject to a products liability lawsuit, and thus the power to define what constitutes a cause of action under Michigan law. Defendants, meanwhile, contend that the Legislature in fact exercised its constitutional power to make Michigan law by determining that fda approval of prescription drugs was an appropriate external standard for defining limits on products liability. The Wayne Circuit Court essentially agreed with plaintiffs’ position. The court issued a lengthy written opinion addressing each constitutional argument raised by plaintiffs. With respect to this particular issue, the court found that the statute unlawfully delegated legislative power by making the FDA decision regarding the safety and fitness of a particular drug binding on Michigan courts. Relying on the Michigan Supreme Court decisions of Coffman v State Bd of Examiners in Optometry, 331 Mich 582; 50 NW2d 322 (1951), and Colony Town Club v Michigan Unemployment Compensation Comm, 301 Mich 107; 3 NW2d 28 (1942), the court found that the legislative function of determining a cause of action was unlawfully delegated.
In Coffman, supra, our Supreme Court considered a statute that addressed requirements for taking an examination in optometry after May 1, 1925. In striking down the part of the statute providing for an applicant to have graduated from an optometry school rated at a particular level by an “international association of boards of examiners in optometry,” because that international association was not a Michigan agency, the Court agreed with a state Attorney General opinion, which stated that the “ ‘legislature is prohibited by the Constitution from delegating legislative powers to non-Michigan governmental agencies ... or to private individuals or associations ....’” Id. at 587-588. The Court, however, upheld that part of the statute that provided the state board of examiners in optometry the authority to adopt rules and regulations, including rules regarding the standards of schooling required of applicants. Id. at 589-591.
Colony Town Club, supra, was one of two cases cited in the state Attorney General opinion in Coffman for the principle that delegation of legislative powers cannot be made to non-Michigan governmental agencies. See Coffman, supra at 587-588. At issue in Colony Town Club was a 1939 amendment of the Michigan Unemployment Compensation Act that defined “employment” as not to include “[a]ny service not included as ‘employment’ under title 9 of the social security act.” Colony Town Club, supra at 113. The appellant argued that this amendment made a decision already rendered by the Commissioner of Internal Revenue, a federal official, final and binding with respect to what constituted employment under the Michigan act. Our Supreme Court rejected the appellant’s claim. Id. at 115. Before doing so, it remarked:
This amendment, if given the construction claimed for it by appellant, is unconstitutional in that it attempts to delegate to a Federal agency the final decision regarding the interpretation and construction to be placed upon a State statute. It would make the decision of the commissioner of internal revenue as to who is entitled to exemption from paying the Michigan tax conclusive and binding upon the Michigan unemployment compensation commission, the appeal board, and the State courts. [Id. at 113.]
Thus is established by case law a distinction between delegations to governmental agencies established under Michigan law and delegations to foreign agencies or private entities. While the former are allowable, the latter run afoul of the constitutional prohibition against delegation of legislative power because the Michigan Legislature retains no oversight function and is unable to guide the exercise of its delegated power by the establishment of standards.
Yet a further distinction is suggested by case law, this between reference to existing and potential future legislation or agency standards. For example, in Dearborn Independent, Inc v Dearborn, 331 Mich 447; 49 NW2d 370 (1951), the Court considered a statute enacted by the Legislature that prescribed qualifications for a newspaper to publish legal notices. One qualification was that the newspaper “shall have been admitted by the United States post-office department for transmission as mail matter of the second class . ...” Id. at 454. The Court found an unlawful delega tion because this requirement would “make the validity of the publication of legal notices depend upon the future as well as present regulations of the United States post-office department.” Id. In the context of future legislation, the issue has been addressed more recently by this Court. In Radecki v Director of Bureau of Worker’s Disability Compensation, 208 Mich App 19, 23; 526 NW2d 611 (1994), it was stated:
Statutes that incorporate existing federal statutes by reference are valid and constitutional. Pleasant Ridge v Governor, 382 Mich 225, 243-248; 169 NW2d 625 (1969); People v Urban, 45 Mich App 255, 262-263; 206 NW2d 511 (1973). However, it is an unlawful delegation of legislative power to adopt by reference future legislation enacted by another sovereign entity. Urban, supra.
Thus, when a Michigan statute adopts by reference a federal law that is subsequently amended, but the Michigan statute remains unchanged, the courts are constitutionally required to construe the statute as continuing to refer to the original federal enactment before amendment.
Radecki thus acknowledges the propriety of so-called reference statutes, but firmly defines the limits of their acceptability: in enacting a hew statute the Michigan Legislature may rely on and incorporate by reference standards established by its sister states and the federal government, but, as applicable to Michigan, those standards may only evolve by action of the Michigan Legislature.
Given these distinctions and parameters, we conclude that MCL 600.2946(5) operates as an unconstitutional delegation of legislative authority. It places the FDA in the position of final arbiter with respect to whether a particular drug may form the basis of a products liability action in Michigan. Regardless of the expertise the fda possesses in the area of drug evaluation, specifically regarding safety and fitness determinations, this is unacceptable. Michigan retains no oversight of this federal agency, it cannot check the exercise of its delegated power with standards of any precision and, because of the nature of science and the fda’s processes of approval and withdrawal of the same, an ever-evolving fist of drugs will be excluded as bases of liability actions.
For these reasons we are affirming the summary disposition order of the Wayne Circuit Court and reversing the opposite order of the Washtenaw Circuit Court. Before we close this opinion, however, we must briefly address defendants’ most detailed and seemingly compelling argument in favor of finding MCL 600.2946(5) constitutional. Defendants contend that pursuant to the doctrine of “independent significance,” courts routinely uphold against similar constitutional challenges the assimilation into statutory law of standards and determinations of public and private organizations. Defendants argue that the controlling factor determining constitutionality is whether the assimilated standards were adopted specifically for the purpose of the legislation at issue; if not, no delegation occurred. Defendants assert that the fda determinations have legal consequences with independent, nationwide significance. They maintain that by adopting these external standards as its own, in the exercise of its lawmaking power, the Legislature has merely established the manner in which these legal consequences are to pertain to Michigan products liability law.
The short and simple response to this almost convincing argument is found in the test previously dis cussed in connection with reference statutes. See Dearborn, supra; Radecki, supra. Assimilation of standards adopted for a purpose separate from the incorporating legislation, and having independent significance, presents no problem if the standards are established and essentially unchanging. Where, however, as here with the fda efficacy determinations, it is known at the outset that the relevant feature will be in constant flux, a fatal problem does present itself under the constitutional nondelegation doctrine as developed and applied in Michigan.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
Collins, P.J., did not participate.
Defendants-appellants in Docket No. 217269 represent that A.H. Robins Company, Inc., merged with American Home Products Corporation and ceased to exist as an entity. Accordingly, American Home Products Corporation now responds to allegations directed at A.H. Robins. Defendants-appellants also represented that American Home Products Corporation and Wyeth-Ayerst Laboratories Company will be collectively referred to as “American Home Products.” This opinion uses the same collective reference.
In granting summary disposition in favor of plaintiffs, the Wayne Circuit Court considered materials outside the pleadings and thus treated defendants’ motion as if based on MCR 2.116(C)(10).
In granting summary disposition in favor of defendants, the Washtenaw Circuit Court considered only the pleadings and treated the motion as presented pursuant to MCR 2.116(C)(8).
The statute contains a few exceptions, none of which are herein relevant.
Both circuit courts reached the conclusions that the statute does not violate the constitutional right of access to the courts and does not violate rights of equal protection or substantive due process. In view of our holding, we need not address the parties’ appellate claims respecting those issues.
The Washtenaw Circuit Court made its ruling on the record at the conclusion of a hearing on the defendants’ motion for summary disposition. The court ruled in favor of defendants after noting that the issue of the constitutionality of the statute was presently before this Court (defendants’ appeal of the Wayne Circuit Court decision), that tort reform provi sions had consistently been held constitutional, and that plaintiffs had failed to cite any specific precedent compelling a finding of unconstitutionality with respect to the instant statute.
To the extent that any of the foreign jurisdiction cases defendants cite in support of this argument do not fail within this acceptable boundary, we say only that in light of Michigan’s development and application of the nondelegation doctrine, we could not consider such cases controlling precedent. We find the single Michigan case cited, meanwhile, to involve a statute and incorporated standard falling within the boundary. In Michigan Baptist Homes & Development Co v Ann Arbor, 55 Mich App 725; 223 NW2d 324 (1974), this Court opined that in establishing a federal official’s determination as the trigger for operation of a Michigan statute, the Legislature had intended and provided for the creation of a “special category of low-income housing for the elderly which is to be granted tax-exempt status.” Id. at 738. While we acknowledge that varying determinations could be made over time by that federal official, it is clear that to the extent those determinations would trigger the operation of the Michigan statute, the variations would all exist within that intended special category. Thus, the high limit of the special category was established at the time the Legislature acted and the Legislature could be confident that such limit would remain unchanged regardless of the federal official’s decision making.
Related to this principle defense argument, defendant American Home Products also strongly contended:
Declaring [MCL 600.2946(5)] unconstitutional would destroy the well-accepted legislative practice of assimilating nationwide standards and findings, jeopardizing the constitutionality of a wide range of similar Michigan statutes.
Defendant American Home Products details a number of these statutes asserted to be at risk, noting that the proffered listing is not exhaustive. To the extent any of these statutes become subject to similar constitutional challenge by an aggrieved party, an eventuality we find unlikely given that none of these statutes operate like the instant provision to entirely foreclose a right of action otherwise available to an individual, we likewise believe that it would be appropriate to subject those statutes to analysis under the framework applicable to reference statutes. See Dearborn, supra; Radecki, supra. It appears that under this framework a majority of the listed statutes involve the acceptable adoption of static standards, and those that do not could at minimum be satisfactorily interpreted under the principle that courts should apply the standard in existence at the tíme of enactment of the Michigan statute. Accordingly, we do not share defendants’ concern that our result in the instant case places a multitude of Michigan statutes in constitutional jeopardy. | [
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Smolensk, P.J.
Defendant appeals as of right from his jury convictions and sentences on three counts of armed robbery, MCL 750.529, one count of felon in possession of a firearm, MCL 750.224f, and four counts of possessing a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant, as a third-offense habitual offender, MCL 769.11, to concurrent terms of life imprisonment for each count of armed robbery, along with a term of five to ten years’ imprisonment for the felon in possession of a firearm charge. In addition, the trial court sentenced defendant to the mandatory terms of two years’ imprisonment for each of the felony-firearm convictions, those sentences to run concurrently with each other but consecutively to the sentences for armed robbery and felon in possession. We affirm.
I. FACTUAL BACKGROUND
This case arises from the robbery of a Speedy Muffler shop in Pontiac on November 25, 1998. At the time of the robbery, three employees were present in the shop: Steven VanAssche, Mark Babala, and Jake Fournier. VanAssche, the store manager, was standing by the cash drawer in the front office. Babala, a mechanic and assistant manager, was seated in the front office, reading a magazine. Fournier, a mechanic, was working on a vehicle in the back room.
VanAssche and Babala testified that defendant entered the front office, brandishing a pistol-gripped, sawed-off shotgun. Defendant announced a “stick-up” and racked the shotgun, causing a five round to fall to the floor. When defendant demanded cash, VanAssche unlocked the cash drawer and told defendant to take whatever he wanted. As defendant began emptying the cash drawer, he ordered VanAssche and Babala into the back room. The two employees complied, and VanAssche informed Fournier that an armed robbery was in progress. Fournier stepped away from his vehicle and observed defendant emptying the cash drawer.
After warning Fournier, VanAssche headed for a back door, seeking an escape route. Defendant entered the back room and ordered Babala and Fournier to their knees, pointing the shotgun at Babala’s head. Noticing VanAssche near the back door, defendant ordered him to return, threatening to kill Babala and Fournier if he failed to comply. Defendant then ordered all three men to empty their pockets. VanAssche testified that he surrendered approximately $250 to defendant. Babala and Fournier both testified that their pockets were empty and that defendant did not take any money or property from their persons.
II. ARMED ROBBERY
Defendant first argues that the prosecutor failed to present sufficient evidence to support defendant’s conviction on three separate counts of armed robbery. Specifically, defendant argues that he took money only from VanAssche, and did not take any money or property from either Babala or Fournier. Therefore, defendant contends that the elements of armed robbery could have been satisfied with respect to VanAssche only. The prosecutor responds that defendant was properly convicted of robbing Babala and Fournier because he took money from the company cash box while they were present.
When reviewing the sufficiency of the evidence in a criminal case, we must view the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994); People v Fetterley, 229 Mich App 511, 515; 583 NW2d 199 (1998). Viewed in that light, we conclude that the evidence was sufficient to support defendant’s convictions of robbing Babala and Fournier while armed.
The armed robbery statute provides, in pertinent part:
Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony .... [MCL 750.529.]
Thus, the elements of armed robbery are “(1) an assault, (2) a felonious taking of property from the victim’s presence or person, (3) while the defendant is armed with a weapon described in the statute.” People v Turner, 213 Mich App 558, 569; 540 NW2d 728 (1995). Further, in an armed robbery case, the. prosecutor need not show that the victim actually owned the property taken. Rather, the prosecutor need only show that the property was taken in the victim’s “presence” and that the victim’s right to possess the property was superior to the defendant’s right to possess it. People v Jones, 71 Mich App 270, 272; 246 NW2d 381 (1976); People v Beebe, 70 Mich App 154, 159; 245 NW2d 547 (1976).
Defendant’s argument on appeal centers on Babala’s and Fournier’s rights to possess the cash contained in the company cash box. Defendant does not argue that he possessed superior rights to the company’s cash, when compared to these two employees. However, defendant argues that VanAssche, as store manager, possessed superior rights to the company’s cash, when compared to Babala and Fournier. Therefore, defendant argues that he robbed only VanAssche, and did not rob either Babala or Fournier.
Defendant relies on People v McMichael, unpublished opinion per curiam of the Court of Appeals, issued October 21, 1993 (Docket No. 139297), to support his argument. In McMichael, the defendant and another man decided to rob the home of Ralph and Angela Schultz. Id., slip op at 1. When the two men forced their way inside, the two adults were home with their children, who were eleven and ten years old respectively. Id. The two robbers, both of whom were armed, ransacked the premises and took some money and jewelry. Id. A jury convicted the defendant of four counts of armed robbery, among other offenses. Id. On appeal, this Court reversed the defendant’s armed robbery convictions relating to the two children:
The intended unit of prosecution under the [armed robbery] statute is the person assaulted and robbed. The victim need not be the actual owner of the stolen property; mere custody or right of control by the victim is sufficient to sup port a charge of larceny or robbery. In this case, there was no evidence that any of the property taken by defendant [or his co-defendant] actually belonged to [the children]. Further, there was no evidence from which it could be inferred that the two Schultz children had any joint rights to the stolen jewelry or money. As noted by the prosecution, had this been a case where the children were home alone when robbed, they could be found to be robbery victims since their ownership rights to the property within the house would be superior to defendant’s. In this case, however, as between the children and their parents, the only reasonable inference from the record is that the parents had superior rights to the property. Because the children were merely present when their parents were robbed and were not themselves deprived of property within their custody or control, there was insufficient evidence to sustain the armed robbery convictions and related felony-firearm convictions related [sic] to them. Accordingly, we vacate those convictions. [Id., slip op at 1-2 (citations omitted).]
In People v Courts, 205 Mich App 326, 329; 517 NW2d 785 (1994), this Court considered the appeal of McMichael’s codefendant, who was also convicted of four counts of armed robbery, arising from the same incident. In that case, the defendant argued on appeal that two of his armed robbery convictions and two of his felony-firearm convictions should be vacated, “because there is no evidence that any property was taken from the Schultzes’ two children.” Id. The prosecutor concurred with the defendant’s argument. Id. Citing McMichael, and without further explanation, this Court vacated two of the defendant’s armed robbery and felony-firearm convictions. Id.
In the present case, defendant contends that the McMichael analysis involving parents and children also applies to situations involving supervisory and subordinate employees. Defendant points to the fact that only VanAssche, the store manager, opened the cash box at gunpoint. Arguing that neither Babala nor Fournier opened the cash box, and arguing that then-rights to control the contents of the cash box were inferior to the rights of VanAssche, defendant contends that the evidence was insufficient to support a conviction of robbing Babala and Fournier while armed.
The prosecutor responds by arguing that McMichael was wrongly decided. In the alternative, the prosecutor contends that this Court should not extend the McMichael analysis beyond the parent-child context. Instead, the prosecutor urges this Court to adopt the reasoning set forth in People v Martin, unpublished opinion per curiam of the Court of Appeals, issued August 22, 1995 (Docket No. 167348). In that case, two armed men entered a Burger King restaurant while a manager and two subordinate employees were present. Id., slip op at 1. One of the men held the two subordinate employees in the break room, guarding them at gunpoint, while the other man forced the manager to open the company safe. Id. A jury convicted the defendant of three counts of armed robbery. Id., slip op at 2. On appeal, the defendant cited McMichael in support of his argument that the subordinate employees, neither of whom knew the combination to the safe, lacked sufficient control over the money taken to be armed robbery victims. Id. This Court disagreed, declining to follow McMichael as an unpublished opinion. Id., slip op at 2-3. Further, the Martin Court distinguished the Courts opinion on the ground that the parent-child relationship differs from that of manager and subordinate employee. Id., slip op at 3. Therefore, the Martin Court upheld the defendant’s three armed robbery convictions. Id., slip op at 4.
We conclude that the Martin opinion was correct and that the McMichael opinion was wrongly decided. We reject defendant’s argument, and the implication in McMichael, that a trial court should determine the number of armed robberies a defendant has committed by examining which of the alleged victims had the most superior right to possess the subject property. Rather, the proper analysis is to determine whether the alleged victims had a right to possession of the subject property superior to that of the defendant. The best discussion of this principle is found in People v Needham, 8 Mich App 679; 155 NW2d 267 (1967). In that case, when the defendant robbed the gasoline station, the person attending the cash register was neither an employee nor the employee’s agent. Id. at 681-682. Nevertheless, this Court held that the victim’s right to possess the stolen cash was sufficient to sustain the defendant’s armed robbery conviction. Id. at 685-686.
The Needham opinion explained that the essence of armed robbery is not that the property belonged to the victim, but rather that it belonged to someone other than the thief. Id. at 683, quoting State v Bowden, 62 NJ Super 339; 162 A2d 911 (1960). To constitute an armed robbery, the property must be taken by force or violence, “ ‘not necessarily from the owner, but from any person in possession thereof whose right of possession is superior to that of the robber.’ ” Needham, supra at 684, quoting Barfield v State, 137 Tex Crim 256; 129 SW2d 310 (1939). Further, “ ‘[t]he robbery statute makes no specific reference to the element of ownership of the money or goods taken by the robber. It is enough that the cash or personalty belongs to someone other than the thief.’ ” Needham, supra at 685-686, quoting State v Ford, 92 NJ Super 356; 223 A2d 502 (1966).
Applying these principles, it is clear that a court must simply consider whether the victim had a greater right to the subject property than the defendant. If we accepted defendant’s argument, and examined which of the alleged victims had the greatest right to the subject property, extraordinary consequences would result. A robber could enter a business, terrorize dozens of employees at gunpoint, and face only a single armed robbery conviction, as long as the robber fortuitously chose the most senior employee to hand over the company funds. Such a result would not conform with our Supreme Court’s statement that the “appropriate ‘unit of prosecution’ for armed robbery is the person assaulted and robbed.” People v Wakeford, 418 Mich 95, 112; 341 NW2d 68 (1983). When a defendant assaults and robs two or more persons during a single incident, he may be charged with and convicted of more than one armed robbery.
Although this Court in Courts, supra, impliedly accepted the reasoning in McMichael, we conclude that Courts is easily distinguishable from the present case. First, Courts involved parents and minor children, a situation presenting different considerations than a case involving supervisory and subordinate employees. Second, it is unclear from either the McMichael opinion or the Courts opinion that the children were actually present during the assault and the robbery. It is entirely conceivable that the children were elsewhere in the home, or even asleep, when the robbery occurred. In that instance, it would be clear that the children were not assaulted and that the property was not taken from their presence. Third, the prosecutor in Courts concurred with the defendant’s argument that two armed robbery convictions should be set aside. Therefore, the issue was not genuinely contested on appeal.
In the present, case, it is clear that defendant assaulted all three employees with a sawed-off shotgun and stole money from the company’s cash drawer, in the “presence” of all three employees. It is reasonable to assume that VanAssche, as store manager, had a superior right to possess the company’s cash, when compared to Babala and Fournier. However, it is also clear that all three employees had a right to possess the company’s cash superior to that of defendant. We conclude that the prosecutor presented sufficient evidence to support defendant’s three armed robbery convictions.
m. ineffective assistance of counsel
Defendant next contends that his trial counsel rendered ineffective assistance because he failed to object to evidence regarding defendant’s prior criminal record. Because defendant failed to move for a Ginther hearing or a new trial on the basis of ineffective assistance of counsel, our review of this claim is limited to mistakes apparent on the record. People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994).
To establish ineffective assistance of counsel, defendant must show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms. People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). Defendant must further demonstrate a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different, and the attendant proceedings were fundamentally unfair or unreliable. People v Poole, 218 Mich App 702, 718; 555 NW2d 485 (1996) (emphasis in original). Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
Defendant argues that his trial counsel should have requested a mistrial in response to a statement made by the court clerk. For purposes of the charge of felon in possession of a firearm, the prosecutor stipulated that the jury would be informed only that defendant had been convicted of a felony, and would not be specifically informed that he had been convicted of armed robbery. However, when reading the charges for the prospective jurors at the start of jury selection, the court clerk stated that defendant had been convicted of armed robbery. Defense counsel did not move for a mistrial.
“A mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial.” People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995) (citation omitted). This Court has previously ruled that a court clerk’s single mention of the defen dant’s specific prior felony to the jury pool, where the trial court instructed the jury that it was to separately determine each of the charges against the defendant, did not result in manifest injustice. People v Green, 228 Mich App 684, 691-692; 580 NW2d 444 (1998). In the present case, the trial court likewise instructed the jury to consider each charge separately. Just as no manifest injustice occurred in Green, the minor irregularity in the present case would not have warranted a new trial. Because “[c]ounsel is not obligated to make futile objections,” People v Meadows, 175 Mich App 355, 362; 437 NW2d 405 (1989), defendant’s trial counsel was not ineffective for failing to move for a mistrial.
Defendant next argues that his trial counsel was ineffective because counsel failed to prevent the jury from hearing testimony concerning defendant’s two earlier convictions of armed robbery and one earlier conviction of breaking and entering a motor vehicle. A defendant pressing an ineffective assistance claim must overcome a strong presumption that counsel’s tactics constituted sound trial strategy. People v Henry, 239 Mich App 140, 146; 607 NW2d 767 (1999). This Court will not substitute its judgment for that of trial counsel regarding matters of trial strategy, even if that strategy backfired. People v Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987). Because we conclude that defense counsel’s failure to object to this testimony was a matter of sound trial strategy, defendant’s claim is without merit.
MRE 609 permits a prosecutor to introduce evidence regarding prior convictions of crimes involving dishonesty or theft, for the purpose of attacking a witness’ credibility. The record in this case does not indicate whether the trial court ruled on the use of such evidence for that purpose. Nevertheless, it is reasonable to suppose that defense counsel anticipated that defendant’s recent armed robbery conviction and his conviction of breaking and entering a motor vehicle would both come to the jury’s attention in this manner. On direct examination, defendant therefore testified about his prior record, in a fairly typical effort to take the “sting” out of his criminal history.
Where a prosecutor would have the option of impeaching the defendant with a prior conviction, the defendant may not mitigate the damage by fronting the conviction and then argue on appeal that admission of the testimony was error. Ohler v United States, 529 US 753; 120 S Ct 1851; 146 L Ed 2d 826 (2000). “The defendant must choose whether to introduce the conviction on direct examination and remove the sting or to take her chances with the prosecutor’s possible elicitation of the conviction on cross-examination.” Id. at 758. Although the issue in the present case is not the admissibility of defendant’s convictions, but rather defense counsel’s competence in the matter, Ohler makes clear that it may be. sound trial strategy for a defendant to front a conviction that is likely to come to the jury’s attention on cross-examination. Id.
Defendant had no need to front his twenty-year-old armed robbery conviction, because convictions over ten years old may not be used for impeachment purposes. MRE 609(c). However, it was defendant who personally volunteered that information, in response to counsel’s general question concerning whether defendant had been in trouble before. Then, on cross-examination, defendant volunteered that he had actually committed the robbery for which he had been convicted. Without encouragement from counsel, defendant seemed determined to use the old conviction as a means of distancing his present self from his criminal past. Because defendant himself offered this information, and nowhere suggests that he did so on the bad advice of counsel, defendant will not be heard to complain on appeal that the admission of this testimony constituted error on the part of his attorney.
Further, the trial court instructed the jury that evidence of defendant’s past convictions was admissible for no purpose other than to help the jury assess defendant’s credibility. The court specifically stated that a “past conviction is not evidence that the defendant committed the alleged crime in this case.” Juries are presumed to follow their instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Assuming that the jury did so in this instance, it did not consider defendant’s earlier convictions as evidence that defendant acted in conformance with his earlier misdeeds.
Finally, defendant argues that his trial counsel rendered ineffective assistance regarding the testimony of defendant’s ex-girlfriend. On cross-examination, defense counsel elicited from the witness that she was angry with defendant. On re-direct examination, the prosecutor elicited from the witness that she ended her relationship with defendant because “[h]e was robbing people.” Defense counsel did not object to that testimony and did not request a special instruction. Rather, defense counsel elicited from the witness on recross-examination that defendant was robbing “dope dealers” and that the witness was angry with defendant because he was not sharing the robbery proceeds with her.
It was obviously sound trial strategy for defense counsel to elicit from this witness that she was angry with defendant. This is true, even at the risk of opening the door to details concerning why the witness ended her relationship with defendant. When the witness stated that defendant was “robbing people,” a curative instruction would have likely highlighted the statement, to defendant’s detriment. Defense counsel thus engaged in sensible damage control when he elicited the fact that defendant was only robbing “dope dealers,” as opposed to law-abiding citizens, and that the witness wanted a larger share of the take. We conclude that defense counsel was not ineffective in his handling of this witness’ testimony.
Moreover, even if we did conclude that defense counsel committed serious prejudicial error in the above respects, reversal would not be required unless a better job of lawyering would likely have produced a different result, or unless counsel's errors rendered the proceedings fundamentally unfair or unreliable. Poole, supra at 718. In this case, defendant did not refute the victims’ account of the crime, beyond claiming mistaken identity. All three victims unequivocally identified defendant as the robber. In light of this overwhelming evidence of defendant’s guilt, any mistakes on the part of defense counsel were unlikely to have influenced the verdict, or to have called the fairness or reliability of defendant’s trial into question.
IV. SENTENCING
Defendant next contends that the trial court abused its discretion in sentencing defendant to life imprisonment for each of his armed robbery convictions. Defendant argues that the trial court retracted the sentences that it initially announced from the bench, imposing longer sentences simply because defendant failed to behave in a deferential manner during sentencing. However, the trial court was authorized to impose three life sentences for defendant’s three armed robbery convictions. MCL 750.529. This is particularly true, given defendant’s status as a third-offense habitual offender. MCL 769.11(1)(b).
This Court reviews a trial court’s sentence imposed on an habitual offender for an abuse of discretion. A trial court does not abuse its discretion in sentencing an habitual offender within the statutory limits established by the Legislature when the offender’s underlying felony, in the context of previous felonies, evinces the defendant’s inability to conform his conduct to the laws of society. [People v Reyn olds, 240 Mich App 250, 252; 611 NW2d 316 (2000) (citation omitted).]
We cannot say that defendant’s life sentences do not satisfy these criteria. Defendant served the maximum sentences for previous convictions of first-degree criminal sexual assault and assault with intent to rob while armed. Not long after his release from prison, and just weeks before the armed robberies involved here, defendant committed another armed robbery, and was convicted and sentenced to a lengthy term of imprisonment for that offense. In light of defendant’s extensive criminal history, his poor prison record, his hasty and repeated resort to armed robbery shortly after his release from prison, and his violent threat to kill at least two of the victims here, we cannot say that the trial court’s sentence constituted an abuse of discretion.
Affirmed.
McDonald, J., did not participate.
Ordinarily, we would not reference an unpublished opinion, which carries no precedential value under the doctrine of stare decisis. MCR 7.215(C)(1). However, another panel of this Court did reference McMichael in a published opinion, impliedly adopting McMichael’s reasoning. People v Courts, 205 Mich App 326, 329; 517 NW2d 785 (1994). Given this situation, we believe it both appropriate and necessary to address the McMichael analysis regarding the requirements for armed robbery convictions.
Interestingly, defendant relies on McMichael for authority, rather than Courts.
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
Defendant does not argue that the trial court had ruled any of his earlier convictions inadmissible for impeachment purposes.
Defendant also premised his sentencing challenge on his argument that he was guilty of committing only one armed robbery, rather than three armed robberies. Defendant argued that the trial court might not have imposed a life sentence for the first armed robbery conviction, if it were not for the other two convictions. Given our conclusion that defendant was properly convicted on all three armed robbery counts, defendant’s argument in this regard is without merit.
Although the prosecutor stresses defendant’s eligibility for parole under the trial court’s sentence, a defendant’s eligibility for parole is not a valid sentencing consideration. People v Wybrecht, 222 Mich App 160, 173; 564 NW2d 903 (1997). We likewise disregard a defendant’s prospects for parole when reviewing the proportionality of a defendant’s sentence. | [
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Hooker, C. J.
The plaintiff had worked as an apprentice in a foundry for a month or more, at making and filling molds; a part of his duty being the carrying of melted iron from the cupola to the molds in a ladle. On the day in question he was returning to the cupola, and met a fellow-servant carrying a ladle full of molten iron; •and, as he approached, a teaspoonful was spilled, and, striking upon the damp floor, a portion of it flew up and put out plaintiff’s eye. This action is brought to recover ■damages, and the negligence alleged against the master is “that it failed to provide a safe place to work, and to warn the plaintiff of the danger of explosion of spilled metal, and of the danger of injury therefrom. The evidence shows that this foundry floor was as safe as any, so far as its general condition is concerned. Counsel say that the •place was not safe because the floor was made too damp, •or used too soon after sprinkling, and evidence was •offered to show that other foundries allowed time for their floors to dry after sprinkling. The court directed a verdict for the defendant, and plaintiff has brought error.
We have often held that there is some latitude open to •employers in the selection of machinery and methods; “that the latest and most approved are not required; and while we have held that novices are entitled to instruction and warning as to the use of dangerous machinery, and •against dangers not apparent, there is a limit to this duty. If the testimony is to be believed, melted iron always bursts or explodes and flies when it is spilled upon a wet floor, •and spilling from ladles is of daily occurrence in a foundry. This foundry was no exception, and plaintiff’s own testimony shows that he had seen it spilled, and spilled it himself, but that until he was hurt he did “not know that ■an explosion of this kind was liable to occur.”
It is manifest that no serious injury would be likely to ■occur from the spilling of a teaspoonful of iron, unless a spark happened to strike an eye, which is a remote contingency. It goes without saying that the master was not ■called upon to tell this boy, who had worked a month at the business, that when approaching another, carrying' hot iron, he should turn his back, or get behind a screen, to avoid having his eye put out if his fellow-servant should happen to spill a teaspoonful of iron on the floor. In my opinion, this was not such an extraordinary risk as calls, for the application of the rule laid down in Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542), and Ribich v. Smelting Co., 123 Mich. 410 (82 N. W. 279, 48 L. R. A. 649, 81 Am. St. Rep. 215). A master is. not called upon to anticipate every possible accident, and may leave an employe to learn the hazards of a business,, as he learns the business itself, from his associates and experience, where the hazards are not extraordinary. Admittedly, this master was not required'to do more than to say, ‘ ‘ If you spill iron on the floor, it will fly up, and may hurt you,” — if, indeed, more could be asked than a warning that it would fly up. The plaintiff was as much bound to-know that it might hit him in the eye as the defendant was, if he knew or had been warned that it would explode and fly if it fell upon the floor. If this plaintiff had been told that melted iron would explode when spilled, there is not the least reason to suppose that he would have quit his work at the foundry business, or refused to pass a fellow workman when carrying it. The two cases cited were-radically different from this, and both cases were so near the line that members of the court dissented. Both rest upon the principle that a novice is entitled to warning against dangers of extraordinary character, arising in each of those cases from emptying molten metal upon ice by the-injured party, which was certain to subject such person to imminent danger of severe injury or death. In the present case the danger from passing one with a ladle of metal was slight, and the consequences, as a rule, would not be extraordinary if a little metal should be spilled. -
The judgment is affirmed.
Moobe and Gbant, J J., concurred with Hookeb, C. J. | [
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Long, J.
The Detroit Driving Club is a corporation, ■and in 1899 owned and possessed the race tra'ck and grounds in Grosse Pointe, near Detroit, together with a •quantity of personal property used in connection with the race track. The real estate was incumbered with a first mortgage of $75,000 and a second mortgage of $60,000. March 30,1899, the complainants obtained two judgments against the Detroit Driving Club in the circuit court for Wayne county; one of these judgments being for $18,366 and costs, and the other for $10,343.73 and costs. March 31, 1899, executions were issued on these judgments. April 4th, one of these executions was levied on the race track and grounds of the club, and also upon the personal property used in connection with the race track. April 33d, the execution on the other judgment was returned unsatisfied. April 34th, the judgment creditors’ bill in this cause was filed. December 7th, Daniel J. Campau was appointed receiver under said judgment creditors’ bill of all the property and assets of the Detroit Driving Club. At the time of the appointment of the receiver, no sale had taken place under the execution levy. April 3, 1900, long after the receiver had been appointed and had qualified, the sheriff sold the race track and grounds under the execution levy to Daniel J. Campau, Francis F. Palms, and George M. Vail for $18,692.47, and the following day he sold the personal property to the same parties for $1,-089, the aggregate amount realized being the amount due upon the judgment, with costs and expenses of sale. The execution was returned satisfied. The execution sale was made without leave of the court, and without any application being made to the court; and one of the purchasers at the execution sale was Daniel J. Campau, the receiver appointed by the court.
April 16, 1899, the People’s Savings Bank recovered judgment in the circuit court for the county of Wayne against the Detroit Driving Club for $14,170 and costs. November 16th, execution was issued on said judgment, and on November 23d it was levied upon the race track and grounds of the club in Grosse Pointe. November 29th, said judgment was assigned by the bank to Fred T. Moran and Worthy L. Churchill, the intervening petitioners in this cause. February 6, 1901, the intervening petitioners filed their petition, setting up the fact that the execution sale was made without leave of the court, and praying that it might be declared illegal and void by a decree of the court. They also prayed that the real and personal property of the club might be decreed to be sold free and clear of all liens and incumbrances, and that the proceeds of the sale be paid into court for distribution among the secured and unsecured creditors of the Detroit Driving Club, according to their respective rights and priorities. They also prayed that the liens and incumbrances, of every name and nature, upon said real and personal property, might be ascertained, and the rights and priorities of the several claimants determined.
On the filing of this petition an order to show cause was granted. On the return day of the order to show cause Daniel J. Campau filed an objection and answer. Subsequently a hearing was had before the circuit court of Wayne county. June 27, 1901, an order was entered dismissing the petition. Omitting the formal part, the order of dismissal is as follows:
“1. The court finds that, notwithstanding the appointment of the receiver in this clause, the complainants herein had a legal right to sell the race track and real estate of the Detroit Driving Club on the execution levy made by them thereon before the appointment of said receiver, without obtaining leave from the court to make such execution sale.
“2. The court finds that it was legally competent for the complainants, notwithstanding the fact that said Daniel J. Campau was receiver, to become the purchasers of said property on such execution sale.
“3. It is ordered and decreed that the said second intervening petition be, and the same is hereby, dismissed.”
The intervening petitioners appeal from the above order.
Several claims are made by counsel for complainants in the creditors’ bill filed why this second intervening petition cannot be maintained.
It is said that, after the receiver was appointed, but before he had taken possession of any of the property, it was all sold under said execution levy. It appears that this property was sold April 3, 1900. Mr. Campau was appointed receiver of all the estate, both real and personal, on December 7, 1899. At the time of his appointment he was in possession of this property as the chief executive officer of the corporation. He qualified as receiver, and on the 29th of December, 1899, three months before the execution sales of March 29 and April 3, 1900, he, as receiver, filed a petition in this cause for leave to borrow money and conduct races; and the petition was granted. In that petition he made the following statement:
‘ ‘ He has heretofore been appointed receiver of all the property of the above-named ..defendant, and he has filed his bond as such receiver, entered upon the duties of his office, and said defendant has assigned to him, as such receiver, all of its property, and he has taken possession of the same.”
It appears also in such petition that the property he had taken possession of consisted of the race track and the personal property. The first intervening petition filed in this cause was answered by Mr. Campau, and sworn to, on the 17th day of March, 1900, about two, weeks before the execution sales, in which Mr. Campau states that “he was appointed as receiver, and that he is now in possession of the property and assets of the club as such receiver. ”
It is claimed by complainants’ counsel that the charges contained in this second petition (now before us) are substantially the same as those made in the first, the only difference being that in the second petition it is alleged that, between the filing and the hearing of the first petition, the property was sold under complainants’ execution. We think this is not according to fact. The first intervening petition- was filed for the removal and discharge of Mr. Campau as receiver, and the appointment of a disinterested person in his place; that he (Mr. Campau) be required to give an accounting of his management of the affairs of the club; that the liability of Mr. Campau for neglecting, failing, and refusing to apply the first earnings of the club and its subsequent earnings to the payment and liquidation of said indebtedness to the People’s Savings Bank, as he was directed to do by the action and resolution of the board of directors, be ascertained and determined, and the amount thereof be established by a decree of the court, and that a personal judgment or decree be entered against Mr. Campau therefor. The second intervening petition was not filed until February 6, 1901. The only object of this petition is to obtain a decree declaring the execution sales illegal and void because they were made when the property was.in the hands of the court by its receiver. Incidental to this relief, the petition prays that 'direction may be given to the receiver to sell the real and personal property of the corporation free and clear of all liens and incumbrances, and distribution made of the proceeds among the secured and unsecured creditors. This second intervening petition is based upon a fact which occurred after the first petition was filed, viz., the execution sales of March 29 and April 3, 1900. Thus it appears that the only object of the second intervening petition is to obtain a decree declaring the sales void. The denial of the first petition is no bar to the filing of the second intervening petition.
It appears from the record that the execution levy held by the petitioners under the assignment from the People’s Savings Bank was subsequent to the one held by the complainants, and it was prior to the appointment of 'the receiver of the judgment creditors’ bill. Under our statutes relative to execution sales, the petitioners had a right to redeem from the prior sale at any time within 15 months from the day the sale was made. -Section 9185, 3 Comp. Laws. If the prior sale was illegal and void, the petitioners could not safely redeem from it. The complainants would get their money, — some $19,000, — but the petitioners would not get title to the property; so that it is apparent that the second intervening petitioners are pursuing the only safe course open to them to preserve their rights.
We think counsel for the intervening petitioners is correct in saying that the execution sale, made after the receiver was appointed, was made in contempt of court, and is illegal and void. This rule was unanimously held by the Supreme Court of the United States in Wiswall v. Sampson, 14 How. 52. In that case the execution sale took place on the 7th day of July, 1845, under a levy made on the 24th of the preceding February. Between the levy and the sale, to wit, on the 27th of June, a receiver had been appointed. Mr. Justice Nelson, delivering the opinion of the court, said:
“At the time, therefore, of this sale, the receiver was in the possession of the premises under the decree of • the court of chancery. In other words, the possession and custody of them were in the court of chancery itself (as the court is deemed the landlord), to abide the final decree to be thereafter rendered in the suit pending. * * *
“When a receiver has been appointed, his possession is that of the court, and any attempt to disturb it, without the leave of -the court first obtained, will be a contempt on the part of the person making it. This was held in Angel v. Smith, 9 Ves. 335, both with respect to receivers and sequesterers. When, therefore, a party is prejudiced by having a receiver put in his way, the course has either been to give him leave to bring an ejectment, or to permit him to be examined pro interesse suo. Brooks v. Greathed, 1 Jac. & W. 176; 3 Daniell, Ch. Pl. & Prac. 1984. And the doctrine that a receiver is not to be disturbed, extends even to cases in which he has been appointed expressly without prejudice to the rights of persons having prior legal or equitable interests; and the individuals having such prior interests must, if they desire to avail themselves of them, apply to the court either for liberty to bring ejectment or to be examined pro interesse suo, and this though their right to the possession is clear. Bryan v. Cormick, 1 Cox, Ch. 422; Anonymous, 6 Ves. 287.
“It has been argued that a sale of the premises on execution and purchase occasioned no interference with the possession of the receiver, and hence no contempt of the authority of the court, and that the sale, therefore, in such a case, should be upheld. But, conceding the proceedings did not disturb the possession of the receiver, the argument does not meet the objection. ' The property is a fund in court, to abide the event of the litigation, and to be applied to the payment of the judgment creditor, who has filed his bill to remove impediments in the way of his execution., If he has succeeded in establishing his right to the application of any portion of the fund, it is the duty of the court to see that such application is made; and, in order to effect this, the court must administer it independently of any rights acquired by third persons pending the litigation; otherwise the whole fund may have passed out of its hands before the final decree, and the litigation become fruitless. * * *
“As we have already said, it is sufficient for the disposition of this case to hold that while the estate is in the custody of the court, as a fund to abide the result of a suit pending, no sale of the property can take place, either on execution or otherwise, without the leave of the court for that purpose; and upon this ground we hold that the sale by the marshal on the two judgments was illegal and void, and passed no title to the purchaser. ”
It has been held that property in the hands of a receiver is still subject to taxation, and it is competent to levy taxes against it; that the levy of taxes upon property in the hands of a receiver creates a lien, but that the taxes cannot be collected by a sale of the property under the tax laws; they can only be collected by the filing of an intervening petition praying for their payment. In re Tyler, 149 U. S. 164 (13 Sup. Ct. 785). The above case was cited and followed by the United States court for the district of South Dakota in Ledoux v. La Bee, (C. C.) 83 Fed. 761, and by the supreme court of Georgia in Dysart v. Brown, 100 Ga. 1 (26 S. E. 767). In Virginia Iron Co. v. Bristol Land Co., (C. C.) 88 Fed. 134, tax sales to the State of real estate in the hands of a receiver were held void.
In the pase of Richards v. People, 81 Ill. 551, a receiver was appointed of the real and personal property and choses in action of a railroad company. Subsequently Richards, with full knowledge of the receivership, brought suit and recovered judgment against the company, and instituted garnishment proceedings against certain persons having funds of the company in their possession. Being charged with contempt, Richards defended on the ground that there was no actual interference with the possession of the receiver. The court said:
“In this view of the case we cannot concur. It is based upon the mistaken theory that property or credits not yet actually reduced to the receiver’s possession, although the title thereto has vested in him by virtue of his appointment, may be seized or attached by creditors of the original debtor with impunity, and that in so doing they are guilty of no interference with the rights of the receiver. But it is to be remembered that the receiver is the officer of the court, and that his possession is the possession of the court itself, and any unauthorized interference therewith, either by taking forcible possession of the property committed to his charge, or by legal proceedings for that purpose, without the sanction of the court appointing him, is a direct and immediate contempt of court, and punishable by attachment. Noe v. Gibson, 7 Paige, 513; De Visser v. Blackstone, 6 Blatchf. 235 (Fed. Cas. No. 3,840); Lane v. Sterne, 3 Giff. 629; Skip v. Harwood, 3 Atk. 564; Hull v. Thomas, 3 Edw. Ch. 236; Russell v. Railway Co., 3 Macn. & G. 104; Langford v. Langford, 5 Law J. Ch. (N. S.) 60; Spinning v. Trust Co., 2 Disn. 368. And, in our view of the case, it can make no difference in the application of the rule whether the property is actually or only constructively in the receiver’s possession. Here the order appointing the receiver directed him to forthwith take possession, and, if necessary, to sue for and recover all the property of the railway company, whether real, personal, or mixed, and whether in possession or action. That order was the receiver’s evidence of title, and authorized him to immediately reduce to possession the credits and choses in action which were garnished by Richards. The garnishee proceedings were a direct interference with the right of the receiver, since they attempted to deprive him of what was his under the order of his appointment. They were, therefore, an immediate obstacle interposed by Richards to the enforcement of the order of the court, and, as such, were plainly a contempt of its authority and powers. ”
To the same effect is the case of Chafee v. Quidnick Co., 13 R. I. 442.
In Hazelrigg v. Bronaugh, 78 Ky. 62, an injunction was sued out to prevent a receiver from collecting certain rents. The court, after referring to the general rule that the possession of a receiver cannot be disturbed without leave of the court, said:
“Nor is the rule confined to property actually in the hands of the receiver. The court will not permit any one, without its sanction and authority be first obtained, to intercept or prevent payment to its receiver of anything which he has been appointed to receive, though it may not be actually in his hands. Kerr, Rec. p. 167.”
That question was before this court in Hudson v. Saginaw Circuit Judge, 114 Mich. 116 (72 N. W. 162, 47 L. R. A. 345, 68 Am. St. Rep. 465). It was there said:
“ It is a general rule that property in custody of the law is not subject to attachment or garnishment. The law does not permit one court to assume control over the representative of another court, or the property confided to his charge. By this it is not meant that personal remedies against the individual may not be sought, but that any proceeding in the nature of an action in rem, whereby it is sought to reach the property which another court has taken possession of, is forbidden. Thus replevin from an officer holding under order of the court of chancery is punishable as a contempt. Even suits against a receiver in his representative capacity are forbidden, though the court appointing the receiver may, on cause- shown, permit them. The probate court has not even this -power respecting its officers, who can only be sued in the manner pointed out by statute; and a garnishee proceeding is not included among the statutory proceedings against executors and administrators in Michigan, though it is in some States. That administrators and executors are exempt from this process is the general rule. In Rood, Grarnish. § 27, it is said:
‘ ‘ ‘ When property or money is in custodia legis, the officer holding it is the mere hand of the court. His possession is the possession of the court. To interfere with his possession is to invade the jurisdiction of the court itself; and an officer so situated is bound by the orders and judgments of the court, whose mere agent he is, and he can make no disposition of it without the consent of his own court, express or implied.’ ”
We are satisfied that these sales, made in violation of law, are a contempt of court, and must be set aside. The real and personal property of the Detroit Driving Club must be decreed to be sold by the circuit court commissioner of Wayne county, free and clear of all incumbrances, and the proceeds of the sale paid into the Wayne circuit court in chancery, for distribution among the secured and unsecured creditors of the club, according to their respective priorities. The case will be remanded to the court below, with directions to carry out the views herein expressed. The intervening petitioners will recover their costs of both courts against the complainants.
The other Justices concurred. | [
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] |
Long, J.
Plaintiff brought this action of assumpsit against the defendant railway company, claiming that it was personally liable for the payment of several special improvement assessments made at different times in the years 1892, 1893, and 1894. The declaration contains five counts, on five alleged separate, independent causes of action, arising out of five different special improvements. Plaintiff subsequently abandoned its claim under the fourth count. On the trial the court below took the case from the jury, and directed a verdict for the plaintiff on the first count for the sum of $1,277.90, — being the amount claimed for the assessment for the pavement of West Bridge street, with interest ‘from the date of the assessment, — but held the assessments for the improvements referred to in the remaining counts illegal and void. Both parties have appealed.
It appears that, at the time when the assessment for the improvement of West Bridge street was made, there was no- provision in the city charter that such assessment should be a personal demand against the owner or occupant of the property assessed; the only method provided for enforcing collection being a sale of the property assessed. The mayor’s warrant did not direct or authorize any proceedings by distress or suit or otherwise for the collection thereof. The assessment was made a lien on the land, and, if not paid voluntarily, the treasurer could do no more than to so certify in his return. This condition of the law was recognized by this court in the case of Lake Shore & Mich. Southern R. Co. v. City of Grand Rapids, 102 Mich. 374 (60 N. W. 767, 29 L. R. A. 195), in which case the city was enjoined from selling this same land for this same assessment. In this case, after reciting the provisions of the charter as to the sale of the land, the court said: “At the time of this assessment, no other means were provided by the charter for the collection of such assessments.” In 1893 section 10 of title 6 was amended by a provision that the mayor’s warrant should contain a clause “commanding and authorizing said treasurer, when he may deem it necessary so to do, to levy and collect the same by distress and sale of any personal property upon such premisés belonging to the premises chargeable to said assessment.” Act No. 418, Local Acts 1893. Of this provision this court remarked in the above case: “Just what this provision means is difficult of ascertainment.”
After the decision by this court of the above-mentioned ease, the city sought and obtained further legislation in relation to special assessments; and at the next session of the legislature, in 1895, the said section 10 was again' amended, so that no lien should attach to the roadbed,, right of way, or other premises of any duly incorporated railroad corporation which are necessarily used in operating its corporate franchises, and the city treasurer was authorized, ‘ ‘ when he may deem it necessary so to do, to levy and collect the same by distress and sale of any personal property belonging to the person, corporation, or company against whom such assessment or tax is made, and found within the corporate limits of the city of Grand Rapids, in like manner as general State, county, and municipal taxes are collected out of personal property within the corporate limits of said city.” Act No. 444, Local Acts 1895. . The city also procured the passage of the following act, which was approved on the same day as the amendment to section 10 as above indicated; such act being entitled:
“ An act to provide for the collection of certain assessments on premises belonging to the Chicago and. West Michigan Railway Company, the Detroit, Lansing and Northern Railroad Company, the Lake Shore and Michigan Southern Railway Company, the Grand Rapids and Indiana Railroad Company, the Michigan Central Railroad Company, and the Detroit, Grand Haven and Milwaukee Railway Company, for public improvements in the city of Grand Rapids.
“Section 1. The People of the State of Michigan enact, that the freight-houses, road-beds, rights of way, and other premises of the Chicago and West Michigan Railway Company, the Detroit, Lansing and Northern Railroad Company, the Lake Shore and Michigan Southern Railway Company, the Grand Rapids and Indiana Railroad Company, the Michigan Central Railroad Company, and the Detroit, Grand Haven and Milwaukee Railway Company, within the corporate limits of the said city of Grand Rapids, which are necessarily used in operating their respective franchises, are liable for all valid unpaid special assessments for public improvements heretofore made within said city of Grand Rapids, and legally assessed against the same, but that no lien shall attach thereto on account of such assessments, and that the payment of such assessments shall not be enforced and collected out of the same.
‘ ‘ Sec. 2. All such assessments which are valid, and all installments thereof, together with all interest and charges thereon, and all costs and charges for enforcing and collecting the same, are hereby declared legal demands against said respective railroad or railway corporations against whose premises said assessments were made, in favor of said city of Grand Rapids, and may be enforced by said city against said railroad or railway corporations in an action of assumpsit or other proper legal action, and collected out of any property of said respective railroad or railway corporations which is liable to levy and sale upon execution;
“Seo. 3. If, after the passage and taking effect of this act, any such assessment, or any installment thereof, is or shall thereafter become due and payable, and the same is not paid and discharged by the railroad or railway corporation against which the same is a legal demand, the said city of Grand Rapids is hereby authorized and empowered immediately to enforce and collect the same, together with all interest and chai’ges thereon, and all costs and charges for collecting the same, in any. manner provided for in this act.” . Act No. 443, Local Acts 1895.
- The plaintiff brings this action, claiming the right to recover under the above act of May 27, 1895, and on the trial in the court below was permitted, by the direction of the court, to recover under said act. The defendant claims that, if plaintiff can recover at all, it must be under that act; but it is contended that the act is unconstitutional, as being repugnant to the Constitution of the United States and of this State, because:
1. It attempts to create a personal liability to pay assessments previously made, where such liability did not exist when the assessments were made.
'2. It attempts to create a personal liability to pay special assessments for local public improvements.
3. It attempts to create a personal liability to pay an assessment without an opportunity to he heard thereon.
4. The act affects only certain specified railroad companies, and does not apply to all persons in like manner assessed.
5. It has more than one object, and its object is not expressed in its title.
It is further contended by counsel for defendant that, even if the act be valid, it does nbt apply to the assessment in this case, because such assessment is not shown to have been a valid assessment upon premises belonging to defendant; that the assessment itself was illegal and void, because not made in proportion to the benefits to the land; that the proofs of the assessment and of the lease to the defendant were inadmissible in evidence under the issue joined in the case; and that the plaintiff has no cause of action under the facts in the case.
If any action can be maintained, it must be under the statute above quoted. Assessments upon land cannot be made personal claims, in the absence of statutory provision. In the case of Lake Shore & Mich. Southern R. Co. v. City of Grand Rapids, 102 Mich. 374 (60 N. W. 767, 29 L. R. A. 195), this rule was recognized. It appeared in that case that the city charter, as it at that time existed, made no provision to enforce the collection of the tax except by a sale of the land. Under it the railroad was not made personally liable for the tax. In Mogg v. Hall, 83 Mich. 576 (47 N. W. 553), it was expressly held that a drain tax could not be collected as a personal tax against the owner; the only provision in the statute being that, if not collected, the land should be returned. The only question for consideration in the present case, therefore, is whether the act of May 27, 1895, which purports to give a right of action (Act No. 443), is valid. The act attempts to create a personal liability to pay assessments previously made, where no liability existed when the assessments were made. It declares that certain assessments theretofore made, and which prior to its passage had been mere charges upon the land, shall be legal demands against certain specified corporations; or, in the words of the act:
“All such assessments which are valid, and all installments thereof, together with all interest and charges thereon, and all costs and charges for enforcing and collecting the same, are hereby declared legal demands against said respective railroad or railway corporations ¡against whose premises said assessments were made, in favor of said city of Grand Rapids, and may be enforced by said city against said railroad or railway corporations in an action of assumpsit or other proper legal action, and collected out of any property of said respective railroad or railway corporations which is liable to levy and .sale upon execution.”
In Hart v. Henderson, 17 Mich. 218, it was said by Chief Justice Cooley:
“Nothing is a tax simply because of being called so; but any proceedings by which a man’s property is to be taken from him on a claim which has no other basis than the naked declaration of the legislature that it shall constitute a demand against him is unconstitutional- and void, ■as not being ‘according to the law of the land,’ but, on the ■other hand, wholly unwarranted by legal principles.”
The only basis for the action in the present case is the •declaration of the legislature that these assessments shall constitute a legal demand against said corporations. In the case of Mogg v. Hall, supra, it appeared that certain land of the plaintiff had been assessed in 1884 for the construction of a drain under the drain law then in force (Act No. 269, Pub. Acts 1881). That act, like the charter of Grand Rapids pi’ior to 1895, did not make such assessment •a personal charge on the owner, but declared it to constitute a lien on the land, and provided for a sale of the land in case of nonpayment. It was said by the court in that case:
i “Under this law the property of the then owner of the land could not have been seized and sold to satisfy the tax. If not paid, the only thing the collector could do was to return the lands. The tax was one levied upon the land, ■and not against the owner. This is further shown by the fact that, in the law of 1885, these taxes were expressly made a personal claim against the owner, and provision made for their collection as against him, the same as other taxes are collected. Act No. 227, Pub. Acts 1885. This is an indication that the legislature constiued the act of 1881 as deficient in this respect. It was also provided in the act of 1885 that all drain taxes ‘properly returned to the county treasurer,’ and remaining unpaid, ‘may be ordered charged back by the board of supervisors, and reassessed upon such lands, in the same manner that unpaid or rejected taxes may be charged back by the auditor general, and reassessed, under the general provisions of law.’ * * * When this tax was originally assessed, in 1884, under the law of 1881, as before said, it could not have been made a personal claim against the owner of the land. Ik was never levied against him, but against the land. The law of 1885 undertakes to make these taxes a persona] claim against the owner of the land. * * * This act could not have the retrospective action contemplated by the act. Taxes levied after the act went into effect may properly be made a personal claim, but the rejected taxes of 1884, reassessed under the act of 1885, cannot, in our opinion, be made a personal claim against the owner of the land.”
We think the above case is controlling of the present, and that no other of defendant’s contentions need be-considered.
The order of the court below holding the act valid, and entering judgment for the plaintiff, must be reversed. No' new trial will be ordered. It follows that the appeal of tbe city in reference to the other taxes cannot be sustained, and as to those the judgment must be affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred with Long, J. | [
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] |
Montgomery, J.
The plaintiff recovered the value of work and materials furnished in plumbing the house of defendant. Defendant brings error.
The work was performed under a written contract. Defendant contended that the worki had not been performed in accordance with the terms of the contract, and denies any obligation to pay for the same, on any terms. The jury found, in answer to special questions, that plaintiff did not complete the plumbing according to contract; but as the plaintiff’s claim was for $156, and a jury awarded a verdict for $150.46, the deficiencies were manifestly not relatively very great.
The circuit judge charged the jury that, if the contract had not been complied with, the plaintiff might still recover under the quantum meruit count. Defendant’s counsel complain of this instruction, and contend that the defendant was not bound to accept the plaintiff’s work unless it conformed to the contract; citing Martus v. Houck, 39 Mich. 431 (33 Am. Rep. 409), Sheldon v. Leahy, 111 Mich. 29 (69 N. W. 76), and other cases. These cases are clearly distinguishable. If it be true that defendant was not bound to accept plaintiff’s work, the answer is that he did accept it. A portion of the contract was for bathtub, washbowl, etc. Instead of refusing to accept them, defendant, in his repairs and improvements, made use of them. The rule in Allen v. McKibbin, 5 Mich. 449, applies.
Judgment affirmed.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
This proceeding seeks by the writ of certiorari to set aside a judgment rendered in justice’s court, upon which a transcript has been taken to the circuit court. It is the claim of defendant that his attorney promised to appeal the case to the circuit court, and failed to do so, and that, as a transcript has been taken, it is too late to move in the circuit court for leave to take a special appeal. It is also claimed the judgment is void because the wife of defendant was allowed to testify, contrary to the provisions of section 10213, 3 Comp. Laws.
There are a great many questions raised which we do not deem it necessary to discuss. The allegation of the affidavit as to the testimony of Mrs. Parkinson is as follows :
“That thereafter, and upon the 17th day of August, after issue joined, the cause was duly tried between said parties, and'the plaintiff swore as a witness to support his claim said Mary E. Parkinson, who was, and now is, the lawful wife of your affiant; and such testimony was admitted over the objection of your affiant’s attorney that it was inadmissible as a violation of the statute, being section 10213 of the Compiled Laws of 1897.”
The only allegation in the affidavit in relation to a meritorious defense is as follows:
“Affiant avers that the judgment is a large one for a man of his limited means to be obliged to pay unjustly, and that the claim is unjust and illegal, and that he is advised by counsel that he has a good, sufficient, and meritorious defense to the right of action upon which the judgment is based, and that the admissibility of the testimony of his wife, the said Mary E. Parkinson, is one which affects the merits of the said case, and that he is without remedy unless a writ of certiorari issue to review said judgment.”
It will be noticed that it is nowhere stated in the affidavit what testimony was given by Mrs. Parkinson, nor -does it appear by the record. It may have been testimony that is permitted by the. statute. The affidavit of merits does not show that Mr. Parkinson fully and fairly stated the facts constituting his defense to his counsel. The affidavit shows affirmatively that defendant declined to put in any defense, and rested wholly upon the fact that his wife had erroneously been permitted to testify.
It has been held many times in this court that certiorari is a discretionary writ, and not one of right, and ought not to issue unless it is made to appear that an injustice has been done. In re Lantis, 9 Mich. 324 (80 Am. Dec. 85); Farrell v. Taylor, 12 Mich. 113; Specht v. City of Detroit, 20 Mich. 168; Smith v. Reed, 24 Mich. 240; People v. Wayne County Drain Com'r, 40 Mich. 745; Gager v. Supervisors of Chippewa Co., 47 Mich. 167 (10 N. W. 186); City of Ishpeming v. Maroney, 49 Mich. 226 (13 N. W. 527); Tucker v. Parker, 50 Mich. 5 (14 N. W. 676); White v. Boyce, 88 Mich. 349 (50 N. W. 302); City of Detroit v. Murphy, 95 Mich. 531 (55 N. W. 441); Baudistel v. City of Jackson, 110 Mich. 357 (68 N. W. 292). In this case it has not been made to appear that justice required the issuance of this writ.
The writ of certiorari is dismissed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
The plaintiff, in 1898 and 1899, was conducting a store at Walkerville, Mich. William Weicksall was a contractor, under contract to cut, haul, and deliver certain logs to defendant. Soon after commencing operations, in September, 1898, Weicksall began to trade at plaintiff’s store at Walberville. From the 23d of November until the close of operations in the spring, the plaintiff furnished merchandise to Weicksall, which was not paid for, amounting to $138.64. This action is brought upon the theory that the credit for these goods was extended solely to the defendant, and upon that theory the plaintiff prevailed below, upon a special finding of facts and law, and the case is brought here for review; the chief contention being that the evidence did not support the finding of facts.
The question is whether the testimony shows that the promise made by defendant was an original promise or a collateral one. Mr. Smith, who was a clerk in the employ of plaintiff, testified as follows as to the original agreement :
“Mr. Weicksall was an entire stranger to me, and he came there and ordered goods, and I told him I could not do it, and he said he was logging for Vogel; and then Mr. Vogel came up, and I asked him about this man (Weicksall), and he said Weicksall was working for him, and he should have to have goods, of course, to carry on his camp, and he would just as soon that he would get them of us as anybody else, and he would see that the account was paid; and every time Mr. Vogel came to Walkerville I would ask him about the account, and he said that the account was all right, and he would pay it, every time I would see him; and I think I can prove that I did say that. I think that was about all the conversation there was.
“ Q. You did, then, let Mr. Weicksall have goods after that?
“A. Yes, sir.
“ Q- You did let Mr. Weicksall have goods out of your store ?
“A. Yes, sir.
“ Q. To whom did you sell the goods, Mr. Smith ?
“A. I should not have sold them to Weicksall without the guaranty.
“ Q- To whom did you sell these goods, — to Mr. Weicksall or to Mr. Vogel ?
“A. Mr. Weicksall got the goods on his (Vogel’s) order.”
On cross-examination witness testified:
“Q. You stated, Mr. Smith, that you would not have sold these goods to Mr. Weicksall without the guaranty of Mr. Vogel?
“A. I did.
“Q. You did sell them to Mr. Weicksall upon that guaranty ?
“A. Yes, sir.
“Q. To whom was the charge made, if any, on the books ?
“A. It was in Mr. Weicksall’s name.”
Redirect examination:
“Q. Why did you make the charge on the books to Mr. Weicksall?
“A. Because it was Weicksall who got the goods under Vogel’s order.
“Q. Was it done for convenience, in any way?
“A. Yes; it was. Weicksall’s men did all the trading. Vogel never came and bought goods for this man, — Vogel himself.
“Q. That is, he never came and got the goods ?
“A. No, sir.
“Q. Mr. Weicksall’s men were the ones who came and got the goods from the store ?
“A. Yes, sir.
“Q. And it was for that reason that you kept the account in Weicksall’s name ?
“A. It was.”
A. E. Felter, a witness also called for the plaintiff, testified that he was in the employ of the plaintiff, and further as follows:
“I was called back to the desk by Mr. Smith to listen to the conversation between him and Mr. Vogel. He asked Mr. Vogel if he would guarantee the account, and if it would be all right to let Weicksall have goods on his account, and Mr. Vogel said it was.
“ Q. Did Mr. Vogel give any reason in your hearing why it was all right to let him have the goods ? .
“A. Mr. Vogel said at that time Mr. Weicksall was getting along very nicely in his lumbering job, and he would get out all right and make some money out of it, and the account was all right, and let him have all the goods he needed.
“ Q. What did he say about paying?
“A. He said that he would guarantee the account.
“ The Court: He said that he would guarantee it ?
“A. Yes, sir.
“The Court: Are you sure that expression was used?
‘ ‘A. He would guarantee the account. ”
This is all the direct testimony bearing upon the question of the contract that was made by defendant upon which the goods were delivered to Weicksall. It appears that the goods were charged upon the books of the company to Weicksall, but the court correctly held that this is not conclusive that credit was given to Weicksall, on the authority of Larson v. Jensen, 53 Mich. 427 (19 N. W. 130).
But a more serious difficulty confronts the plaintiff in-this case. No reasonable construction can be put upon the. language employed by the parties which leads to any other conclusion than that this engagement of defendant was an agreement to answer for the debt of a third person, and to become a guarantor of the payment of his obligations, rather than an original promisor. The case, in its facts, is very similar to Studley v. Barth, 54 Mich. 6 (19 N. W. 568), and, we think, is ruled by that case.
The judgment must be reversed, and a new trial ordered.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Long, J.
This bill is filed to set aside a certain levy made by the sheriff, and a sale thereunder of certain premises claimed to be owned by the complainant. On the hearing below, complainant’s bill was dismissed. Complainant has appealed.
It appears that on the 26th day of March, 1900, defendant Mason, in a suit brought in justice’s court, obtained a judgment of $110 damages and $3.80 costs of suit against James E. Gardner, complainant’s husband; that, on the 10th day of April, Mason took a transcript, filed the same with the clerk of Muskegon county, and had the same docketed as a judgment in the circuit court. On the same day he caused an execution to be issued on such judgment, and gave the same into the custody of the sheriff of the county, defendant Neumeister, who, on the 11th of April, levied the execution upon the premises in question.
It appears that these premises have been for some time in the possession and occupancy of James E. Gardner and his wife. They resided upon them, and Gardner was in fact the owner of them, living there with his wife and family, until June 15, 1899, when he conveyed the property to his wife by deed of warranty. It is admitted that this deed was not recorded in the office of the register of deeds of that county until May 16, 1900, — a little more than one month after the sheriff’s levy now sought to be set aside. After this deed had been executed, Gardner and his wife still continued to reside upon the premises, and apparently there was no change in the manner in which they occupied them, and there was nothing to indicate that there had been a change of title from the husband to the wife.
It is not contended but that this deed was given in good faith by Gardner to his wife, but the claim is made by the defendant that, his levy having been duly made and recorded prior to the time of recording the deed, it had precedence of the deed, as he had no notice or knowledge of it at the time the levy was made under the execution and duly recorded. It is claimed by complainant and her husband that defendant Mason was informed, before this judgment was obtained in justice's court, that Mrs. Gardner owned the premises. This was denied by defendant Mason. The court below took the view, under the testimony, that defendant Mason had no notice or knowledge of this deed at the time this execution was levied.
It is provided by section 9224, 3 Comp. Laws, that:
“ No levy by execution on real estate, made after this act shall take effect, shall be valid against bona fide conveyances made subsequent to such levy, until a notice thereof, containing the names of the parties to the execution, a description of the premises levied upon, and the date of such levy, shall be filed by the officer making the same in the office of the register of deeds of the county where the premises are situated; and such levy shall be a lien thereon from the time when such notice shall be so deposited; and 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.”
It is shown that the defendants complied with all the provisions of this statute; and we think the court very properly held the levy good, and dismissed complainant’s bill.
Counsel for complainant cite the case of Wooden v. Wooden, 72 Mich. 347 (40 N. W. 460), and claim that this case supports their contention; that, the complainant being a bona fide purchaser before the date of the levy and recording of the execution, the complainant is entitled to have the levy set aside. That case, however, was based upon the statute of 1875 (Act No. 5, Pub. Acts 1875), which did not provide for making these levies prior claims over unrecorded conveyances. This act was amended in 1889 (Act No. 227, Pub. Acts 1889, being section 9224, 3 Comp. Laws), adding to it this provision:
“And 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.”
The decree of the court below must be affirmed, with costs.
The other Justices concurred. | [
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Moore, J.
This suit was brought upon three notes,— one due January 1, 1897, for $100, one due January 1, 1898, for $100, and one due January 1, 1899, for $100. The defense was that the notes were given for a bean thresher, which was sold with a warranty, which was not' met. From a judgment rendered in favor of the defendant, the case is brought here by writ of error.
The material parts of the order given for the machine read as follows:
“Cheboygan, July 31, 1896.
“This is to certify that I have this day agreed to purchase of Westinghouse & Co., of Schenectady, N. Y., through their agent, Charles Bates, of Lansing, Mich., the following named machinery, viz.: One bean thresher,
with straight stacker, and secondhand, but in good condition, which machinery is to be shipped,” etc. “I agree to take the said machinery from the place above mentioned, subject to the conditions of the warranty printed below, and to pay the freight charges thereon. * * *
“I agree to become responsible for the safe-keeping of said machinery until accepted under the warranty printed below, or returned, and within a reasonable time to make a trial of it; and if it performs in accordance with the warranty printed below, after a trial of not to exceed four days, the said machinery shall be deemed accepted by me. In event of this machinery failing to give satisfaction during said trial, I agree that I will immediately notify in writing the said agent, and also Westinghouse & Co., at Schenectady, N. Y., and give him and them an opportunity to make it satisfactory, and when this is done the said machinery shall be deemed accepted by me. If said machinery fail to perform in accordance with the warranty printed below, and if not accepted in accordance with the foregoing, I will deliver said machinery in good order and condition to the said agent at Cheboygan, free from all charges for freight, storage, handling, etc., and without claims for damages of any kind; and the money and notes which shall have been given for said machinery shall then be returned, and this contract rescinded. * * *
“The warranty made upon the machinery specified in the foregoing by the said Westinghouse & Co. is that it shall operate to the satisfaction of the purchaser, and that any defects in the manufacture of it shall be made good by their supplying the defective parts without charge. Where the machine is a combined clover and grain thresher, this warranty extends to it only as a grain machine.”
The defendant is an illiterate man, who signed the order by making his mark. No copy of the order was left with him, and he says it was not read to him; that he believed Mr. Bates stated to him its contents. After the machine was received, defendant caused the following letter to be sent:
“Charles Bates, Esq.,
“Lansing, Mich.
“ Dear Sir: The machine has arrived, and appears to be used a great deal more than represented to me; but I will say nothing about that if you send me a centerpiece for stacker, 8 feet long, and rattles to match, as the stacker is too short when there is from 200 to 500 bushels of peas to thresh in a place. 1 have not tried the machine yet.”
The request of Mr. Gainor was complied with. When the threshing season arrived, Mr. Gainor, who had had 30 years’ experience as a thresher, set the machine at work threshing beans. He testified that he threshed beans with it two days, and was able to thresh less than 200 bushels in -that time; that the beans flew out of the side of the machine, and some of them came out of the tail end of it; that the machine separated them all over the barn; that he tried it threshing peas, and could thresh but 50 bushels in a half day; that the pulleys were too narrow; that the belts would break if tightened sufficiently to run the separator, and the cylinder clogged up; that the machine did not give satisfaction, and he dropped the use of the machine, and used the Nichols & Shepard separator, which did good work with the same beans and peas. He then caused the following letter to be sent:
“Oct. 7, 1896.
“Charles Bates, State Agent,
■ , “Lansing, Box 253.
‘ ‘ Dear Sir: I would like to know what you want me to do with the bean thresher that you sent me. It is no good. It will not thresh peas, and it took me one day to thresh 197 bushels of good beans. If you doubt my word, write to Claude Swain, Cheboygan, Mich. He is the man that I threshed the beans for. Please let me know what to do with the machine, as I will not try it again, and as I had the best man I could get to try to make it work, and they say it cannot be made to do good work.”
In reply to that letter, Mr. Gainor received the following letter:
“Charles Bates, State Agent,
“Box 253, Lansing, Mich.
“October 12, 1896.
[Written on the letterhead of Westinghouse & Co.] “William: Gainor,
“Manning, Michigan.
“ Dear Sir: I am in receipt of your favor of October 7th, and must say that I am surprised, for our customers are having no trouble to thresh 100 bushels of beans an hour with our bean thresher. Now, if you cannot make the machine work, it is because you or your men do not understand it; and, if you will let me know when you are to try the machine again, I will have a man to operate the machine to the entire satisfaction of any one, and in accordance with our guaranty. Now, in your letter you refused to try our machine again. Now, I hope you will not take this position, as it is unfair. I inclose you a copy of the order which you signed, and you will notice its conditions, and the part you are to fill in the contract. You agreed in the contract to give us notice if you could not operate the machine yourself, and then, later, after you received the machine, you wrote me a letter saying that, if I would send you four feet more of carrier belt, you would accept the machine and call it satisfactory; and, on receipt of your letter, I sent you the parts requested, and supposed that was the end of it. Now, we can make the machine work all right, if you will give us an opportunity. However, we are not compelled to do so, as you accepted the machine by letter long ago; but we are perfectly willing to be fair with you, and show you that the machine is all right, if you will give us an opportunity. Furthermore, we expect the notes we hold against you to be paid promptly at maturity. I trust you will be considerate and fair in this matter.
“ I am, yours very truly,
‘ ‘ Chables Bates. ”
Mr. Gainor says the copy of the order mentioned in the letter was not received by him. A reply was sent to this letter by Frost & Sprague, attorneys for defendant. Other correspondence followed, which it is not important to set out here. Mr. Gainor, after the use already mentioned, housed the machine, and never used it afterwards. The company never sent anybody to attempt to make the machine work properly. Suit was brought upon the notes, all of which were indorsed on the back: “Pay to the
order of the Westinghouse Company, without recourse on us. Westinghouse & Co.” There was no date to the indorsements.
The court was requested to direct a verdict for plaintiff because: First, defendant failed to give written notice, as required by said contract, to Westinghouse & Co., at Schenectady, N. Y.; second, he did not signify to either Mr. Bates, or any one else, his readiness to render friendly assistance in the making of a further test of the machine, but clearly indicated that he was through with, and would have nothing more to'do with, it; third, he failed to return said machine to Cheboygan, as required by said contract. The plaintiff also requested the court to instruct the jury to return a verdict for the plaintiff for the last two notes, and interest thereon, because, under the undisputed evidence in the case, it appeared that the plaintiff was a bona fide purchaser of said notes before they were due. The judge declined to do this. He withdrew the first note from the consideration of the jury, but left it to them to say whether the plaintiff was a bona fide holder for value of the other two notes. Among other things, he said:
“ The burden of proof is upon Mr, Gainor, the defendant. The notes are found in the possession of the West inghouse Company in the ordinary course of business, ánd, so far as any evidence is shown here, for a valuable consideration ; and it then devolves upon Mr. Gainor to show, by a preponderance of the testimony, — testimony that convinces you; that makes you believe honestly and sincerely, — that the Westinghouse Company, who are suing these notes, at the time or before they purchased them, had notice that Mr. Gainor was not indebted to the company, — that the machine had not worked according to the contract.”
The only proof of the indorsements made upon the notes is the testimony of Mr. Bates. He did not see them indorsed. His testimony disclosed that the Westinghouse Company manufactured the machines, and that Westinghouse & Co. sold their output; that he was the sales agent for Michigan of the one company, and the collection agent for Michigan of the other company. In response to counsel for plaintiff, he testified:
“ Q. Your method of business, as I understand it, and you have stated it, since you have been doing business for these respective concerns, has been to sell the machines for Westinghouse & Co. ?
“A. Yes, sir.
“ Q. And when notes have been taken, they have Come back to you transferred to the Westinghouse Company, and you have attended to the collections ?
“A. Yes, sir.
“ Q. And this is one of a series of notes that you have received in that way of transacting business?
. “A. Yes, sir.
“ Q. Acting as an agent for both parties ?
“I. Yes, sir.
“ Q. I understood you to state that you knew the person who signed this name Westinghouse & Co. on the back of each of these notes ?
“A. Yes, sir.
“ Q. What was his name ?
“A. George W. Jones.
“ Q. Do you know what position he holds in the firm of Westinghouse & Co. ?
“A. He is the manager of Westinghouse & Co.”
He testified he did not know whether plaintiff had notice of what these notes were given for, or not, at or before the time it became the owner of the notes. No other witness was called on the part of plaintiff.
The first assignment of error relates to the admission of testimony. We do not discuss it, but we do not think it well taken.
It is insisted defendant cannot avail himself of the defense he pleads, because he did not give written notice to Westinghouse & Co., at Schenectady, N. Y., as required by the contract. We do not deem it necessary to determine whether or not, under the warranty that the machine “shall operate to the satisfaction of the purchaser,” if he decided that it did not do its work to his satisfaction, that ends the matter. See Walter A. Wood Machine Co. v. Smith, 50 Mich. 565 (15 N. W. 906, 45 Am. Rep. 57); Platt v. Broderick, 70 Mich. 577 (38 N. W. 579). The record shows, as a matter of fact, that notice was at once sent to the State agent, who, instead of saying notice should also be sent to the house, at Schenectady, N. Y., as it was his duty to do if he thought that notice important,'knowing defendant had no copy of the contract, nor did he, or the company for whom he was State agent, send a man to make the machine work properly after the receipt of the notice, but, instead of so doing, he misstated the contents of a previous letter, and, though expressing ability to make the machine work all right if given an opportunity, closes his letter by saying:
“However, we are not compelled to do so, as you accepted the machine by letter long ago; but we are perfectly willing to be fair with you, and show you that the machine is all right, if you will give us an opportunity. Eurthermore, we expect the notes we hold against you to be paid promptly at maturity. I trust you will be considerate and fair in this matter.”
In this connection it is well to recall what was said in Mr. Gainor’s letter of October 7th. He does not say he will not permit the company to make the machine work, but he inquires:
“Please let me know what to do with the machine, as I will not try it again, and as I had the best man I could get to try to make it work, and they say it cannot be made to do good work.”
There is nothing in this language to relieve the company from its duty to furnish a good machine. The cases cited by counsel are very different from this case. ■ Here we have a notice given to a State agent, and he, instead of insisting upon an insufficient notice, asserts there has already been an acceptance of the machine. We think this a waiver of any further notice, if notice was needed.
It is said the defense cannot be made because the machine was not returned to Cheboygan. Mr. Bates did not reside at Cheboygan, but at Lansing. He had no office there. When inquiry is made of him as to what defendant shall do with the bean thresher, instead of answering that question, he insists that defendant has already accepted the machine. In Osborn v. Rawson, 47 Mich. 206 (10 N. W. 201), Chief Justice Marston, speaking for the court, used the following language:
“It is the warranty of the plaintiffs that the machine would do first-class work, and that if it did not, after they or their agents had an opportunity to remedy the difficulty, then it was to be returned, and a perfect machine delivered in its place. The language, ‘to be returned,’ would seem to imply that the defendant should return it; but where was it to be returned to, and to whom ? To Rawson & Thatcher, at Hornellsville, New York, or to Mr. Day, their agent, and, if to him, at what place ? The evidence shows that Day resided in Lapeer. Should it be returned there, or in the field ? The contract is silent as to the manner and place of delivery, and we cannot say that the defendant was under any obligation to deliver this reaper to the plaintiffs or their agent at the place of residence of either. It was their duty to remedy the difficulty, and, failing so to do, deliver a perfect machine in its place.”
Cheboygan is quite a large town. Where would defendant leave the machine ? In the street ? At the railroad station? We do not think he was required to deliver it there until he had been informed in reply to his inquiry where he should leave it.
It is said the court erred in withdrawing the first note from the consideration of the jury. Defendant claims the proofs show clearly the notes were not transferred until after the first one matured. Whether that is so or not, it is evident from the verdict of the jury that they found the plaintiff was not a bona fide holder of the notes, without notice. There was testimony upon which to base this verdict, and we ought not to disturb it.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
The plaintiff is a resident of the city of New York. The defendant is a Michigan insurance cor poration, which issued a policy of insurance upon a planing and saw mill owned by plaintiff, situated in the State of Georgia. This property was partially destroyed by fire early in April, 1899. On the 20th day of the same month it was totally destroyed. The circuit judge directed a verdict in favor of plaintiff. The case is brought here on case made.
Upon the trial it was conceded by counsel that the fire and loss occurred as alleged in the declaration, and the loss amounted to $955. The policy sued upon is a Michigan standard policy, containing, among other provisions, the following:
“If fire occur, the insured shall give immediate notice of any loss thereby, in writing, to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon, and, within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief ,of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property,” etc.
The defense is that the proofs of loss did not comply with this provision.
The record discloses that the plaintiff is the cashier of a bank in New York. While on his way to business, in April, 1899, he was taken seriously ill, caused by overwork. The board of directors granted him leave of absence for six months. . His physician forbade his doing any business, because of his physical and mental condition, and he did none — not even signing personal checks — until the latter part of September of that year. The doctor testified that he was physically and mentally unable to attend to business after he was taken ill, or for many months thereafter; that he was threatened with softening of the brain, and was dangerously ill; that he could not receive and answer letters, nor could he sign and swear to an affidavit.
The policy was procured through Mr. Young, an insurance broker living in Brooklyn, N. Y., who, immediately after the first fire, notified the defendant, by mail, of the fire. Mr. Howley, an insurance adjuster, notified the defendant, by mail, of the second fire. A little later Mr. Howley. went to Georgia, and, in company with two men representing the tariff association- companies, proceeded to investigate the loss, its extent, and to adjust it. Upon his return to New York, he prepared formal proofs of loss, which were signed and sworn to May 26th by F. B. Anderson, who was assistant cashier of the bank under Mr. Burns, who signed the proofs of-loss, “Edward Burns, per F. B. Anderson, Attorney.” The formal heading of the proofs of loss reads as follows:
“ State of New York, )
County of New York. )*ss'
“ Be it known that on this 26th day of May, A. D. 1899, before me, Walter A. Bennett, a notary public, duly commissioned and sworn, and residing in the city of New York, in the county and State aforesaid, personally appeared F. B. Anderson, attorney for Edward Burns, who, being duly sworn, deposes and says.”
These proofs of loss were inclosed in a registered letter and mailed to defendant May 26th, together with a letter from Mr. Howley saying:
“The assured, Mr. Edward Burns, one of our leading financiers, and cashier of the American Exchange National Bank of this city, is, and has been for several weeks, critically ill; and his physicians will not permit him to attend to any matter of business, however important. It has therefore become necessary to have the proofs executed by his attorney in fact, Mr. Anderson, who is temporarily discharging Mr. Burns’ duties at the bank.”
This letter was on the following day received by defendant. It made no reply until July 19th, when it wrote to Mr. Burns. The important parts of the letter are as follows:
“ The alleged proofs are not executed by you, but by one F. B. Anderson, attorney; and, while they have attached to them printed forms for adjuster’s certificates, the same have not been filled in by the adjuster, who, we understand, prepared them for you. This company cannot, on the evidence before it, recognize the right and power of an insured party to delegate the important duty of proving a claim under oath to a third party, — more particularly when there is nothing to show that said third party has had such power granted him; and I am instructed to request that you present your claim in the manner prescribed by the conditions of the policy.”
July 21st Mr. Howley wrote defendant:
“ Dear Sir: Replying to yours of the 19th inst., Mr. Burns’ condition is such that he cannot, without great danger, be interviewed in regard to any matter of business. Mr. Anderson is fully authorized to make up the formal proofs. Should, as it is hoped, Mr. Burns recover from his present serious illness, the necessary power of attorney will be prepared and sent you.”
October 11, 1899, he wrote the defendant:
“Referring to my reports of the 21st July last, I have the pleasure to report Mr. Burns’ return to health, and to his office, where he appeared today for the first time in six months. Mr. Bums has executed, and I beg to hand you herewith, certificate confirming Mr. Anderson’s authority to execute proof for him, which, I am sure, will be found satisfactory.”
Inclosed with this was a paper, sworn to by Mr. Burns, in which he confirmed Mr. Anderson’s authority to make the proofs of loss, and also swore that the statements contained in said proofs are a just, true, and faithful statement of his loss and claim, as far as he has been able to ascertain the same. It is claimed by defendant it never received this letter and inclosure. Some other correspondence followed. March 30, 1900, Mr. Howley visited defendant, at its office, for the purpose of securing a settlement, if possible, of the claim. He did not succeed in doing so, and this suit was brought.
• The circuit judge was of the opinion that the insurance company, by delaying nearly two months in making objections to the proofs of loss after they were received, had waived its right to object to them. A reference to the letter of July 19th will show that but two objections were made to the proofs of loss: First, that the printed form for the adjuster’s certificate had not been filled in; and, second, that the alleged proofs were not executed by Mr. Burns. There was a provision in the policy giving the defendant the right to require “á-certificate of the magistrate or notary public (not interested in the claim, as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances, and believes the insured has honestly sustained loss to the amount that such magistrate' or notary public shall certify.” This was not required by the company. Nothing in the policy gave the company the right to require the adjuster to make a certificate. In view of the fact that the company knew of the condition of Mr. Burns, and his inability to do what it asked to be done, it was not very creditable for it .to wait until three months (lacking one day) after the fire before making the second objection. If the company had any doubt of the loss, or of the extent of it, it ought to have so suggested, and required additional proof.
In 2 Wood, Fire Ins. § 438, p. 931, it is said:
“Proofs of loss should be made as required by the policy, both as to substance and time, or a legal excuse shown therefor. They should be made either by the assured himself, his agent, or the party in interest. If the assured himself does not make the proofs, a valid reason therefor should be shown; and it is sufficient to show that he is a nonresident, dead, or was absent or insane at the time when the loss occurred, and did not return in season to make the proofs; or that he did not possess the necessary information in reference to the matters required to be stated to make the proofs; or that the person making the proofs is the party in interest, to whom the loss, with the assent of the insurers, is made payable, or. is the real party in interest, and that the assured refused to execute them; or that they were made as directed by the insurers’ agent; or that the objection as to their being made by the wrong person'has been waived.”
See, also, Insurance Cos. v. Boykin, 12 Wall. 433; Milwaukee Mechanics’ Ins. Co. v. Brown, 3 Kan. App. 225 (44 Pac. 35); Watertown Fire-Ins. Co. v. Grover & Baker Sewing-Mach. Co., 41 Mich. 131 (1 N. W. 961, 32 Am. Rep. 146); 13 Am. & Eng. Enc. Law (2d Ed.), 332.
In McGraw v. Insurance Co., 54 Mich. 145 (19 N. W. 927), it is said:
“Under the policy in question, proofs of loss required by its terms are a condition precedent to a right of recovery ; and, in general, they are to be signed and sworn to by the assured in person. But the clause in question is subject to exceptions, — as where the owner is a nonresident, dead, or was insane or absent at the time when the loss occurred, and did not return in season to make the proofs, or did not possess the necessary information in reference to the matters required to be stated to make proofs, or that the objection as to their being made by the wrong person has been waived. See 2 Wood, Ins. § 413. But where the assured can himself make the necessary proofs, he should do so, or give a sufficient excuse for his failure; and ordinarily (though this is not essential) the reasons why the proofs were not made by the assured should be stated in the proofs of loss.”
See, also, O’Conner v. Insurance Co., 31 Wis. 160; German Fire-Ins. Co. v. Grunert, 112 Ill. 68; Findeisen v. Insurance Co., 57 Vt. 520.
The terms of the insurance policy should be given a reasonable construction. They require the proofs of loss to be ma’de within 60 days after the fire. During all this period of time Mr. Burns was unable, because of his very serious illness, to do any business whatever, and that fact is at once communicated to defendant. Within the 60 days, three adjusters make a careful examination at the place of the loss, of the loss, and its extent. One of these adjusters reported all the details of the loss to Mr. Anderson, who swore to the formal proofs of loss. Mr. Burns testified upon the trial in relation to this action of Mr. Howley and Mr. Anderson:
“The proofs of loss were prepared by Mr. John Howley, and were sworn to by Mr. F. B. Anderson, who wSs my deputy in that matter. Both acted as my agents.”
In the proofs of loss Mr. Anderson described himself as the attorney for Mr. Burns. Accompanying the proofs of loss was a statement showing a valid reason why the proofs of loss were not made by Mr. Burns. As soon as he was able to do so, Mr. Burns ratified all that had been done upon his behalf.
The case is within the letter as well as the spirit of the law to which we have called attention. We do not deem it necessary to discuss the other questions. There was no conflict in the evidence as to the inability of Mr. Burns to do business between the time of the loss and the month of September, nor is there any conflict in the testimony that defendant was fully advised of this inability at the time the proof of loss was made. See Cobbs v. Fire Ass’n, 68 Mich. 465 (36 N. W. 222); Towle v. Insurance Co., 91 Mich. 219, 226 (51 N. W. 987); Marthinson v. Insurance Co., 64 Mich. 372 (31 N. W. 291); 2 Wood, Fire Ins. § 438, p. 953.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Targonski, J.
Plaintiff Herman Radke was laid off as a laborer for Nelson Mill Company on April 30,1968. His job foreman had informed him around noon of the impending layoff, since there was no work remaining for him to do. Plaintiff was laid off about one-half hour before his usual quitting time. On the next day, May 1, 1968, the carpenter’s union went on strike, remaining on strike until "Wednesday, August 7, 1968. One week after the carpenters’ dispute was settled, plaintiff was rehired by his employer Nelson Mill Company. Plaintiff was not a member of any striking union, received no unemployment compensation, and has not benefited in any way by the carpenters’ strike and settlement.
Plaintiff filed an application for unemployment benefits with defendant-appellant Michigan Employment Security Commission (MESC) which returned a determination dated May 15, 1968, denying the benefits on the ground that plaintiff’s unemployment was caused by a labor dispute in active progress. An August 19, 1968 redetermination was returned with the same result. Plaintiff appealed, seeking a referee’s decision, but at the scheduled hearing neither the employer nor its representative appeared. The referee heard testimony nevertheless, and issued a May 7, 1969 decision reversing the MESC’s redetermination and awarding unemployment benefits to plaintiff.
Nelson Mill Company sent a letter appealing the referee’s decision to the Michigan Employment Security Commission Appeal Board hut, again, the employer or a suitable representative failed to appear at the scheduled hearing. Plaintiff and his attorney appeared at the hearing and further filed” an unopposed brief for the consideration of the appeal board. Nonetheless, the appeal board remanded the matter to the referee in order to hear testimony as to the employer’s reasons for laying off plaintiff.
On February 5, 1970, plaintiff appealed to the Genesee Circuit Court seeking reversal of the appeal board’s remand order. Defendant-appellant MESC moved to dismiss the appeal on the ground that the Appeal Board’s remand order was not a “final order” and thus not appealable. MCLA 421.38; MSA 17.540. The circuit court judgment of October 8, 1970, found the appeal board’s remand order to be a reviewable “final order”, reversed said order, and affirmed the referee’s decision awarding plaintiff the benefits he sought. MESC appeals therefrom.
As in the circuit court, defendant-appellant alleges that the circuit court lacked jurisdiction to entertain plaintiff’s appeal from a remand order of the MES.C Appeal Board. Defendant-appellant contends that under MCLA 421.38; MSA 17.540, an appeal may be entertained by the circuit court only from a “final order or decision of said appeal board,” and that the remand order was not a “final order or decision” but an order of an interlocutory nature and, thus, not appealable.
Upon inspection, we find that the Genesee County Circuit Court could not properly entertain an appeal pursuant to MCLA 421.38; MSA 17.540. But, even if the Appeal Board’s remand order is not a final order appealable under statute, if appropriate, we may view an appeal to circuit court as an application for an order of superintending control.
In Parshay v. Warden of Marquette Prison, 30 Mich App 556 (1971), it appears that this Court may consider a complaint mislabeled as an “appeal” to see whether it meets the requirements established pursuant to some other court rule. Thus, if the scope of superintending control fairly includes plaintiff’s case, the circuit court’s jurisdiction may be affirmed even if the appeal board’s remand order is not a final order.
Superintending control is an extraordinary power, unencumbered by usual procedural limitations. Const 1963, art 6, § 13, grants to the circuit courts, “supervisory and general control over inferior courts and tribunals within their respective jurisdiction in accordance with the rules of the supreme court”. This constitutional power of superintending control is confined by the following statute:
“The circuit courts have a general superintending control over all inferior courts and tribunals, subject to the rules of the supreme court.” MCLA 600.615; MSA 27A.615.
Further, court rule regulates the procedures by which such power is to be exercised:
“An order of superintending control may be used in any fashion necessary to implement the superintending or supervisory control power of the court over inferior tribunals.” GrCR 1963, 711.1.
In addition, because the MESC Appeal Board is subject to judicial review, MCLA 421.38; MSA 17-.540, it must be considered an “inferior tribunal” and therefore subject to the superintending control of the courts. In 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 43, there is a discussion of GrCR 1963, 711 by the authors with reference to special statutes providing for appeal to circuit court as being nonexclusive regarding the right of superintending control over those same tribunals. The commentary follows:
, “In addition to these general provisions, consideration must be given to numerous special statutes affecting judicial review of administrative tribunals, since the power of supervision is not limited to control of lower courts, but extends to all inferior tribunals. Special statutes which make particular administrative action subject to judicial review are important as establishing that the agencies, for that purpose, are acting as “inferior tribunals.” As such, they become subject to the superintending control of the courts, and may be supervised by an order of superintending control in appropriate circumstances, when another plain, speedy and adequate remedy is unavailable. Sub rules 711.1, 711.2.”
As previously mentioned, the power of superintending control is an extraordinary power. As stated by Carl S. Hawkins in the Practice Commentary subsequent to MCLA 600.615, p 315, “it [superintending control] encompasses the power to investi gate an act or omission of the inferior court or tribunal, and to issue whatever remedial order may be necessary to achieve justice in the particular case or to implement policies of sound judicial administration”.
However, the order of superintending control does not supercede the use of normal appellate procedure, when an appeal would be available and adequate for that purpose. It is stated by court rule:
“The order of superintending control should not be issued if another plain, speedy and adequate remedy is available to the party seeking the order.” GCR 1963, 711.2.
Unfortunately, though an appeal is the normal and statutorily recognized procedure for circuit court review, it would not be a “speedy and adequate remedy” in the situation presented here. On an appeal under GCR 1963, 706.2, MCLA 421.38; MSA 17.540, dictates that “the circuit court * # # shall have the power to review questions of fact and law on the record made before the referee and the appeal board involved in any such final order or decision of said appeal board, and to make such further orders in respect thereto as justice may require.” (Emphasis added.) Adhering to defendant-appellant’s contention, we find that there is no “such final order or decision” of the appeal board. Therefore, due to the exigencies which call for its exercise, if applicable, superintending control is the only “speedy and adequate remedy” available to effectuate justice here.
However, does the instant case present an appropriate situation for the utilization of superintending control? In light of GCR 1963, 711.1, we look to the Committee Comment:
“ ‘The question therefore arises: What is the proper instrument by which we exercise this power? The only answer is that it must he framed when the case properly arises, and, for want, of a better name, may be denominated a supervisory writ. It must be suitable, not only to examine into questions of jurisdiction, but it must also extend to the review of errors of law and abuses of discretion within the limits of jurisdiction. * * * The supervisory writ, being broader in its scope, would afford relief by restraining the inferior court to the bounds of jurisdiction, or compelling a performance of duty, as well as by a correction of errors and abuses of discretion requiring prompt action. * * * ‘Brantly, C. J., in State ex rel. Whiteside v. District Court, 24 Mont 539, 565; 63 P 395, 401 (1900).” 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 41-42.
Turning to the facts, we can appreciate the necessity that required that plaintiff be exposed to a “speedy and adequate remedy”. After plaintiff unsuccessfully filed an application' for unemployment benefits and later an application for redetermination on the initial denial of unemployment benefits, a hearing before a referee was scheduled on January 8, 1969, in Detroit. Neither plaintiff’s employer nor a representative appeared to present their side of the controversy. Plaintiff, his attorney, and a witness appeared on his behalf and gave testimony. On May 7, 1969, an opinion by the referee, based upon the employer’s failure to appear at the scheduled hearing, together with the great weight of credible, competent, material, and substantial evidence on the whole record, reversed the redetermination.
Then, on November 4, 1969, on request by the employer, an appeal hearing came before the MESC Appeal Board, again in Detroit. And again, the employer did not appear, either by itself or through a representative, nor was a brief filed. Plaintiff appeared though, with his attorney, and filed a brief. Nonetheless, the appeal board, pursuant to MCLA 421.35; MSA 17.537, chose to remand the case back to the referee for the taking of additional evidence.
In viewing whether this was an abuse of discretion, we must envision the complete picture presented before us. The Employment Security Act of this state requires that an employee act expeditiously within specific days in the perfecting of his claim for unemployment compensation benefits. This requirement plaintiff has obviously performed with diligence. In fact, plaintiff, who resides in Clio and who worked for his employer in the Flint area, in order to appear before both the referee and the appeal board, had the additional burden and expense of hiring an attorney, filing briefs, and traveling to Detroit twice. While on the other hand, the employer, Nelson Mill Company, which is located in the Detroit area, more specifically Southfield, has demonstrated a complete disregard in appearing for either hearing or filing a brief. And in the appeal board hearing, the employer was the appellant.
The intent and spirit of the Legislature in enacting the Employment Security Act is well articulated.
“The legislature acting in the exercise of the police power of the state declares that the public policy of the state is as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Involuntary unemployment is a subject of general interest and concern which requires action by the legislature to prevent its spread and to lighten its burden which so often falls with crushing force upon the unemployed worker and his family, to the detriment of the welfare of the people of this state. So cial security requires protection against this hazard of our economic life. Employers should he encouraged to provide stable employment. The systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment by the setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own, thus maintaining purchasing power and limiting the serious social consequences of relief assistance, is for the public good, and the general welfare of the people of this state.” MCLA 421.2; MSA 17.502.
The policy of the act is to protect the unemployed person. In line with said policy, the procedures of the MESC must provide an efficient determination of a claimant’s status. This Court has previously taken note of the unusual pressures placed upon an unemployed individual:
“One spectre looms throughout this entire transaction : economic straits. The employment security act was intended to protect just such a person as claimant from the subtly coercive effects of economic pressure, and to prevent just such a consequence as we have here.” Larson v. Employment Security Commission, 2 Mich App 540, 546 (1966).
In the instant action, the “subtly coercive effects of economic pressure” are resulting from the procedures themselves. If plaintiff’s only recourse in this situation would be an appeal pursuant to MCLA 421.38; MSA 17.540, then the employee is placed at the mercy of the employer. Because then, an employee can be coerced into appearing and reappearing, over and over again, and be required to offer evidence and be represented by counsel in order to vindicate his rights to unemployment compensation benefits, when the employer is required to do nothing. This frustrates any intent by legislation to assist and aid a worker at his moment of unemployment.
A similar situation was presented to the Louisiana Court of Appeal in Sustan Garments, Inc. v. Administrator of the Division of Employment Security, Department of Labor, 211 So 2d 714, 715 (La, 1968). The Louisiana Court of Appeal ruled on the failure of an employer to appear at a hearing before an appeal referee. The court affirmed the referee’s dismissal of an appeal in accordance with Rule 7 of the Louisiana Board of Review, which provides that an appeal may be dismissed when the appellant fails to appear at the time designated for a hearing, or fails to present mitigating circumstances which precluded appearance, or fails to request rescheduling within 48 hours of the scheduled hearing time.
Here, since the referee ruled in favor of plaintiff, the appellant before the appeal board was the employer. MCLA 421.34; MSA 17.536 provides regarding appeals to the MESC Appeal Board:
“If the appellant fails to appear or prosecute the appeal, the appeal board may dismiss the proceedings or take such other action as it may deem advisable.”
We are not presented with a “final order or decision” of the appeal board for us to determine whether it is supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; Vickers v. Employment Security Commission, 30 Mich App 530 (1971). Rather, we are challenged to review, as the circuit court has, the exercise of discretion of the MESC Appeal Board. We hold that upon this factual situation, thére was a clear abuse of discretion by the MESC Appeal Board and, consequently, claimant was entitled to circuit court review under the power of superintending control. For us to rule otherwise would he an endorsement that the MESO Appeal Board has the right to place multiple stumbling blocks in front of a claimant in order to recover benefits hut excuse the most extravagant and indefensible neglect in the entire proceedings by an employer.
Affirmed.
All concurred. | [
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Mooke, J.
Harriet M. Williams filed her bill in this cause in aid of execution, making Daniel Putnam, Elizabeth Putnam, his wife, and Ernest Putnam, his son, de fendants. Since the commencement of this suit Mrs. Williams has died. On the 20th day of May, 1898, she obtained a decree against Daniel Putnam for a deficiency in a mortgage foreclosure suit for $915.80. An execution was levied on an 80-acre parcel formerly owned by Mr. Putnam, now owned by Elizabeth Putnam, and a 40-acre parcel formerly owned by. Daniel Putnam, now owned by Ernest Putnam. The circuit judge dismissed the bill. The case is brought here by appeal.
Daniel Putnam, in 1875, resided with his family on afarm of 120 acres, being the lands in question. In October of that year he purchased and paid with his own money for another 40-acre parcel, called the “Bigelow Forty,” the conveyance being taken in the name of his wife. In 1882 he bought 40 acres of land of Mrs. Williams for $2,300. He paid $500 down, and gave a mortgage back for $1,800. Himself and family moved upon the Williams 40, upon which there was an orchard and good buildings. At one time the debt against the Williams 40 had been reduced to $1,700, but at the time of the foreclosure it was upwards of $2,400. In October, 1895, he deeded to his wife 80 acres of the old homestead, making her, with the 40 acres of land he gave her in 1875, the owner of 120 acres of land. In Februai’y, 1897, he deeded to Ernest 40 acres of land, leaving title in himself to only the Williams 40, from which he had removed a good deal of timber, some of which went into the construction of a house on the old homestead. He also permitted the farm to run down so that it was not worth as much as the debt against it. Some time prior to May, 1898, a new house had been built on the west 40 acres of the old farm, and in May, 1898, Mr. Putnam and his family left the Williams farm, and moved into the new house. Afterwards the mortgage was foreclosed upon the Williams 40, and it is to enforce the collection of the deficiency on that sale this suit is brought.
Mr. Putnam admits in his answer he has no property liable to levy and sale on execution. Mrs. Putnam and her son both claim to be bona fide purchasers of the land conveyed to them. Mrs. Putnam says that, in the spring of 1876, her husband promised to pay her $100 a year rent, less the taxes, for thé use of the 40 acres he gave to her the year before; that, not having paid this rent, in the spring of 1877 he agreed to pay the interest upon the rent at 6 per cent, until it was paid, and under that arrangement he used the 40 acres without making any payments to her until 1895, when the rent, with interest thereon, amounted to $2,800, and to satisfy that debt he conveyed to her the 80 acres of land. In his sworn answer Ernest Putnam claimed that, in the purchase of the 40 acres deeded to him, he assumed a. mortgage of $230 that was on the land, gave his note for $170, and “that at said time the said Daniel Putnam was indebted to this defendant in the sum of $300 for moneys theretofore loaned him by this defendant, this defendant having earned and received said money from his own labor and services in the neighborhood of Wheatfield, which indebtedness was thereupon canceled, and said sum credited upon the purchase price of said lands.” Upon the trial he testified that the $300 was made up as follows: Money loaned to his father in 1894, $100; pressing 20 tons of hay, $30; labor performed in 1893, $27; labor performed in 1895, $61, — which, with the interest figured on those items, he claims amounted to $300 at the time the deed was made. The note he gave was, at the time of the trial, in the possession of his mother.
There is, of course, no longer any question in this State of the right of the husband, who is in good faith a debtor to his wife, to perfer her to other creditors (Leppig v. Bretzel, 48 Mich. 321 [12 N. W. 199]); but, where a conveyance is made by an insolvent husband to his wife, the transaction, because of the relationship of the parties, should be closely scrutinized. This is not a case where the wife had money of her own which she had permitted her husband to use upon his promise to pay her. Her claim is based upon the use of property bought with his money and given to her, the proceeds of which were mingled with the other proceeds of the farm, and from which her wants were supplied. No charge was entered upon, any book, made against her husband, of this claim for rent. No writing was given by him to her. Nearly all of the debt, if it ever existed, was outlawed. He was apparently a prosperous farmer, and it was because he was supposed to be solvent, and upon his promise to pay, that Mrs. Williams allowed the interest to accumulate.
In Ball v. Phenicie, 94 Mich. 355 (53 N. W. 1114), Justice Montgomery, speaking for the court, said:
“The theory of the defense was that David L. Phenicie became indebted to his wife for moneys advanced and loaned by her from time to time, and, as is usual in such cases, the aggregate amount claimed to be due is the various sums originally advanced by the wife to the husband, together with interest, without any deduction whatever on any account. Such a course of dealing is so against common experience as to call for a very careful scrutiny of the testimony by the court. It is not the common course for a lady possessed of considerable means to continue in possession of an estate for a long term of years without applying or appropriating one dollar of it to any purpose whatever; and, while it is the duty of the court to protect the property rights of married women, even as against the creditors of the husband, it is no injustice to the parties in a case like the present to apply, in construing the testimony, such fair presumptions as the common experience of mankind suggests.”
See, also, Case Manfg. Co. v. Perkins, 106 Mich. 349 (64 N. W. 201).
If the claim of the two defendants is to be believed, we find a husband donating to his wife a piece of land, chiefly valuable for the pasture, upon which he pays taxes and makes the improvements, the proceeds of which he uses, in common with the proceeds of the rest of the farm, for the support of the son and wife; also immediately making an arrangement to pay what is shown by the weight of testimony to be a very, high rent. The rent is allowed to accumulate, though there is no reason shown why the husband might not have paid it, until, with interest, it equals in amount the value of the 80 acres upon which are' the buildings. At the same time this rent is allowed to accumulate the husband and father did not pay the son for services rendered by him upon the farm, and we find the son taking over the title to 40 acres of the farm. As the result of the transaction the title to 160 acres of land, bought and paid for by the husband, is no longer in him, but is still in the family, while only $100 in money has changed hands, while nothing is left for the creditors of the husband. Without attempting to recite the testimony and to further analyze it, we must content ourselves with saying we are fully impressed with the conviction that the conveyances, instead of being made to satisfy existing bona fide debts, were made for the express purpose of defeating creditors. The relief prayed for in the bill of complaint should have been granted.
The decree is reversed, and one will be entered here in accordance with this opinion, with costs of both courts.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
• Moore, J.
The plaintiff, by direction of the judge, recovered a verdict of $186. He claims he was entitled to recover $685.06, and has brought the case here by writ of error. The questions involved are so clearly stated by the trial judge in his charge to the jury we insert it here:
“ The plaintiff in this case, Patrice Gregory, sues the defendant, the village of Lake Linden, to recover certain sums of money which he claims to be due him from it under the terms of a contract entered into some time in the year 1892 between the defendant village and Joseph Gregory.
“Some question has been made during the progress of the case as to whether a contract was entered into that was binding upon the parties, covering the subject-matter; and I charge you that, under the undisputed evidence in this case, the defendant, by its acts, has recognized this contract as being in existence, and that it is bound by its terms. It seems to me that there can be no question about that. Dealings have been had from month to month, for a period of eight years, complying, so far as the testimony in this case shows, entirely with the terms of the contract; so that the question of whether the contract, at the time it was signed by the president and clerk of the village and by Mr. Joseph Gregory, was one which was properly entered into, does not affect the merits of the plaintiff in this case.
“I charge you that the right of the plaintiff to recover from the defendant in this case depends upon the construction of the written contract introduced in evidence on the trial; and it is the duty of the court to construe the written instrument, and state what the legal effect of it is or may be. Where parties make a bargain, and finally reduce the terms of that bargain to writing, the writing contains, as a matter of law, whatever the bargain finally is, and testimony to change its terms and make it something else, no matter what negotiations have passed between the parties to the contract before, will not be received or considered in construing the contract.
“This contract, among other things, provides as follows:
“ ‘That the said second party [the defendant village] agrees to buy from said first party [the plaintiff, Gregory], and said first party [the plaintiff, Gregory] agrees to sell and deliver to said second party [the defendant village], at the eastern boundary line of said village, at or near the plant of the Peninsula Electric Light & Power Company, during the 10 years ensuing the 1st day of November, 1892, as much water from said spring as such village may need or desire, -for any and all purposes, at the price and rate of $200 per month for any quantity not exceeding 1,500,000 gallons; all water over such quantity used in any month to be paid for at the rate of 15 cents per 1,000 gallons.’
“The theory of the plaintiff in this case is that the terms of the contract which I have just read to you are plain, and require Gregory to furnish to the village all the water the village may require, .and require the village to take from Gregory all the water that it uses for any purposes, limited only by the capacity of the Gregory spring; and that the village is bound to pay for all the water that it uses, no matter from what source it may obtain the supply. Now, the court has no right to read anything into a written instrument that is not there; but the defendant, on its part, claims that the construction given to this part of the contract by the plaintiff is not one which is plainly conferred by the words used, even when the words are considered in their ordinary, common, everyday sense, but that the proper reading of this part of .the contract is that the village shall'take from the Gregory spring all such water as it may desire for any of its purposes, and that the village then obligates itself to pay for the water; if it takes any quantity less than 1,500,000 gallons, it has to pay the fixed sum of $200 per month; if it takes any more than that, it has to pay for the excess at the rate of 15 cents per 1,000 gallons. Now,'if the portion of the contract which I have read in your presence were all that is contained in the written instrument, the task of the court might perhaps be somewhat lessened from what it is; but all the contract must be taken, in considering the legal effect which must be given to it. The contract is as follows :
“ ‘This agreement, made and entered into this 20th day of October, A. D. 1892, by and between Joseph Gregory, of Houghton county, Michigan, of the one part, and the village of Lake Linden, of said county, of the other part.
“ ‘ Whereas, said second party, by its proper corporate officers and agents, has considered the question and determined that the health, general welfare, and necessities of the inhabitants of said village require that a suitable supply of pure water be obtained for their use; and
“ ‘ Whereas, said first party is the owner of a stream of such water, situated on the north half of section 3, in township 55 north, of range 83 west, in said Houghton county, which water he is willing to sell and dispose of; and
“ ‘ Whereas, said spring, owing to its elevation, location, and quality of its water, is the only available source of water for said village:
‘“Now, therefore, said parties agree as follows: .[Then comes the part that I have already read to you]. Payments are to be made monthly, in cash, for all water used in and during the preceding month. Should any sums remain past due and unpaid for a period of 10 days, said first party may shut off the supply of water, and this contract shall thereupon and thenceforth, at the option of said first party, be null and void.
“ ‘ It is expressly understood and agreed that said first party shall not be obliged, under this contract, to furnish or deliver a greater supply of water than said spring will yield, and in case said spring fail to supply as much water as said village may need, not exceeding 1,500,000 gallons, said village need then only pay for the water actually furnished at the rate of 20 cents per 1,000 gallons.’
‘! In considering any written agreement made between parties, tbe circumstances under wbicb tbe 'contract was made may always be considered, when at al necessary to throw any light whatever upon what the parties have expressed in their writing, so long as they do not vary the terms and change the written contract. Now, it appears from the testimony that has been given in this case that, at the time of the entering into this contract between the village of Lake Linden and Mr. Joseph Gregory, the village of Lake Linden had a system of waterworks of' some capacity, to some extent. The testimony shows that it had a reservoir, and pipe laid through the village, which was connected with the reservoir. The testimony also shows that from the time this contract was entered into, during all the eight years in which this contract has been in force, that line and that reservoir has been used by the village for village purpqses. That it has used the water for fire purposes, for sprinkling the streets, for furnishing the Bosch Brewing Company, for furnishing certain dwelling houses, and for furnishing livery stables, and that that use has been constant during all those eight years, are circumstances which seem to me have a great deal of bearing upon the intention of tbe parties when they entered into this contract, and the construction that ought to be given to it. There is no claim in the case here that this system belonging to Lake Linden was unknown to Mr. Gregory, or to the plaintiff in this case, or that the use of that system after this contract was entered into was unknown to either of them. The section of this contract which I last read, where it provides that the said first party, Mr. Gregory, shall not be obliged to furnish any more than the capacity of his spring, and contemplated the possibility that the spring might not furnish the 1,500,000 gallons, is another circumstance, which is embodied in this written contract, which, it seems to me, throws a good deal of light upon the understanding that the parties had at the time the contract was entered into. It is not a contract by which the party of the first part agrees to furnish all the water that the village uses, and the village agrees to take water from no other source. If it were such a contract, then there would be nothing for us to do in this case.. But it seems to me that, under the words of this contract (which seem to have been selected with great care), the proper construction to put upon it is the one which is mainly contended for on the part of the defendant, considering the circumstances under which the contract has been made, and the interpretation which must have been put upon it by the first party and his successor, the plaintiff in this suit, all those eight years.
“ The agreement to sell and deliver, and the agreement to buy on the part of the village, and the price to be paid, are all to be taken in one sentence; and the one who drew the contract, as I have said, seems to have selected his language with care, and a desire to express just what the parties meant at the time they entered into the contract. Now, there is an agreement on the part of the first party to sell and deliver, and on the part of the village to buy, as much water from said spring as such village may need or desire, for any or all purposes, at the price and rate of $200 a month for any quantity not exceeding 1,500,000 gallons. Now, having used the terms ‘as much water from the spring,’ not ‘all the water from the spring,’ and not' ‘all the water that the village shall use,’ but ‘as much as they may need or desire,’ the expression is this: ‘All water over such quantity used in any month,’ not ‘all water needed for the purposes of the village,’ not ‘ all water desired for the purposes of the village,’ but ‘all water used during any month,’ is to be paid for at a certain rate per 1,000 gallons. Now, if the true construction of the contract is as plaintiff claims in this case, the reason for expressing the conditions which have been put into the writing in the two different ways is one that I cannot- understand at all.
“It seems to me, then, that, considering the fact that the village already had waterworks, which were in operation and existence, — notoriously so, — that it has continued to use those waterworks from that time, without interruption, during the eight years, without objection, so far as anything appears in this case, on the part of Joseph Gregory or his assignee, the present plaintiff, the fact that he was not obliged to furnish anything beyond the capacity of the spring, the fact that the village was obliged to pay him, no matter whether it used the water or not, the sum of $200 a month, without any exception, for each and every month during the 10 years, and then the expression that, for the amount of water used in any month above that amount, it was to pay a particular sum,— taking all these things into consideration, it seems to me that the fair, reasonable construction of that contract is that the village is obliged to pay $200 a month to Mr. Gregory during the time of this contract, unless his spring absolutely fails to furnish any water whatever; that it is not obliged, under the terms of this contract, to take any water from him and actually use it. If it does use it, it must pay for it.
“There is no question but what, during all of the months shown by the book that was introduced in evidence, the defendant paid an amount varying from $200 during the various years to over $600 in the one month. That is in the testimony of the plaintiff himself. There is no regularity about the matter at all; and so, so far as the claim on the part of the plaintiff for the two months of October and November in 1900, there being no claim at all that the village used any water in excess of $200 during those months, I think he has failed to make a case. As to the amount held back by the village in the year 1897 ($150), there has been no testimony introduced on the part of the village which satisfies me, or any of you, that it had any right to hold that money back, and therefore I direct you to render a verdict in favor of the plaintiff for the sum of $150,. together with interest from the first of May, ’97. I therefore direct .you, gentlemen, to render a verdict in favor of the plaintiff for $186.”
It is conceded by counsel for both parties that all thé questions raised depend for their solution upon the con struction which shall be given to the contract. We agree with counsel for plaintiff that parol evidence is not admissible to vary or contradict the plain, unambiguous terms of a written contract. Kulenkamp v. Groff, 71 Mich. 675 (40 N. W. 57, 1 L. R. A. 594, 15 Am. St. Rep. 283); Nichols, Shepard & Co. v. Crandall, 77 Mich. 401 (43 N. W. 875, 6 L. R. A. 412); Hoag v. Graves, 81 Mich. 628 (46 N. W. 109); Brown v. Schiappacasse, 115 Mich. 47 (72 N. W. 1096). But it is equally true that, where the language used is of doubtful meaning, — is susceptible of different interpretations, — oral evidence is admissible for the purpose of explaining or interpreting the contract. It is said by one author:
“For the purpose of applying the instrument to the facts, and determining what passes by it, and who take an interest under it, every material fact that will enable the court to identify the person or thing mentioned in the instrument, and to place the court, whose province it is to declare the meaning of the words of the instrument, as near as may be in the situation of the parties to it, is admissible in evidence.” See note g and cases cited, 2 Pars. Cont. (5th Ed.) p. 560.
“It is a fundamental rule that, in the construction of contracts, the courts may look, not only to the language employed, but to the subject-matter and the surrounding-circumstances, and may avail themselves of the same light which the parties possessed when the contract was made. ” Merriam v. U. S., 107 U. S. 437 (2 Sup. Ct. 536).
We think the language used in the contract is such that, for the purpose of putting the correct interpretation upon it, it is competent to show the interpretation put upon it by the parties, the circumstances under which it was made, and the acts of the parties then and since that time. At the time the contract was made, the village had a partial supply of water, which it was then using, and has continued to use. It has been used for fire purposes, and to supply a brewery and livery stables. If it had been contemplated it should cease to use this supply, and get its entire supply from Mr. Gregory, it would have been easy to so provide in the contract. It did not so provide, and the village did not cease to use the water, but continued to use it all the years until Mr. Gregory’s death, without its right to do so, being questioned. The village might consider the water it was using quite good enough for fire purposes and for use in livery stables, and not contemplate giving up its use for that purpose, while for other purposes it desired spring water. After reciting that Mr. Gregory was the owner of the spring, the agreement is to take “as much water from said spring as such village may need or desire,” etc. We are of the opinion the judge rightly construed the contract.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Per Curiam.
This ease deals with an insurance company’s waiver of arbitration and a resulting denial of due process to it on a claim of liability under its auto liability policy’s uninsured motorist provision.
The facts giving rise to the initial action and the present appeal are detailed in the earlier case of Kelley v. Citizens Mutual Insurance Company (1969), 19 Mich App 177. To briefly summarize: plaintiff was involved in an accident with an uninsured motorist. Plaintiff filed a claim with the defendant and, when it denied his claim, he requested arbitration as provided in the policy under the uninsured motorist clause. Denial was based on non-ownership and coverage exclusion. Plaintiff then sued the uninsured motorist and obtained a judgment. The 19 Mich App 177 case was to recover from the defendant the amount of the judgment. Plaintiff prevailed in this Court, and the Michigan Supreme Court denied defendant leave to appeal. Plaintiff then filed an amended complaint seeking money damages and moved for summary judgment. Defendant’s answer argued it was entitled to arbitration. Summary judgment was granted to plaintiff. Defendant again appeals.
The earlier Kelley case determined proper ownership of the car plaintiff was driving and plaintiff’s coverage. The questions raised in this proceeding are whether defendant’s original refusal to arbitrate waived the right to arbitrate and if so whether the taking of a judgment against the uninsured motorist resulted in a denial of due process and an impairment of contract?
In the first Kelley case, 19 Mich App 177, 181, 182, this Court, in response to defendant’s argument that plaintiff excluded himself from coverage by pursuing his cause of action against the uninsured motorist to judgment, held:
“In the present case the defendant admitted in its answers that it had refused to arbitrate according to the policy and at all times maintained it was not liable under the policy. Defendant waived the arbitration requirement and the exclusion clause in the policy by such action.” (Emphasis supplied.)
Defendant, in its application for leave to appeal to the Michigan Supreme Court, failed to convince that Court that this Court’s decision was clearly erroneous. If the defendant felt that this Court went too far in its prior decision, it could have petitioned this Court for a rehearing prior to applying to the Michigan Supreme Court for leave to appeal. GCR 1963, 819.4. This it did not do. As the trial judge observed when the case returned to him on plaintiff’s motion for summary judgment, “There is nothing left to discuss”. Summary judgment for plaintiff was proper.
The due process and impairment of contract issues have not been raised prior to this appeal. We will not consider issues raised for the first time on appeal. City of Grand Rapids v. Harper (1970), 25 Mich App 447, 449; Frigid Food Products, Inc. v. City of Detroit (1971), 31 Mich App 402.
Affirmed. | [
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] |
Long, J.
This suit was commenced in justice’s court upon a claim for $7.50. Plaintiff recovered. Defendant appealed to the circuit court, where the case was tried before a jury, and plaintiff again recovered.
It appears that the plaintiff is an upholsterer, doing business in Muskegon. Defendant called upon him at his shop, and asked him to go to his house with a needle and some twine, and sew on some buttons which had become loose on a large sofa. Arriving there, the plaintiff advised defendant, after having examined the sofa, that he could not repair it at the house, because the buttons had pulled through the leather; that the only way he could fix it was to take it to the shop, and re-enforce the entire cover by taking it off and placing patches underneath to hold the buttons. The plaintiff’s claim is that he took the sofa to the shop, fixed it as agreed, returned it to defendant, and ■ thereafter sent him by mail a bill for the work, which defendant refused to pay, claiming that plaintiff was to do a good job, and satisfactory to himself. Defendant’s claim was that, about two or three weeks after the sofa was returned, one or two buttons did not hold the leather down; that he thereupon called in another upholsterer, who sewed the buttons down, and charged él therefor. The court left these issues to the jury, stating that the plaintiff claimed he had fulfilled the contract made with defendant; and also stating the claim of defendant that plaintiff had not fulfilled his contract, as it was not a good job, such as plaintiff agreed to do, and was not satisfactory to defendant; and stating that, if the jury found “from the evidence that it. was not a good job, such as the plaintiff agreed to make, and was not satisfactory because of that fact, the plaintiff was not entitled to recover, and the verdict should be for the defendant.”
It is claimed on the part of defendant’s counsel that the court erred in his chai-ge as follows: “ Now, it is not for you, gentlemen, nor is it for the court, to say what t this contract was.” This language appears to have been used in the charge; but it is quite apparent that the court did not intend to say to the jury that the contract was not for them to determine, as we find further on in the charge the.court said:
“Now, gentlemen, you will take the case, and examine it, viewing the entire evidence, and find what the contract was, and say as to whether the plaintiff has fulfilled that contract. If he has, he is entitled to recover what his services are fairly worth; and if he has not fulfilled the contract, and the condition of the contract was that he was not to receive compensation unless he did fulfill it and perform a good job, satisfactory to the other party, if he has not done that, your verdict will be that there is no cause of action.”
We think the jury could not have been misled by this charge.
Some other questions are raised in reference to the rul ings of the court upon the admission and rejection of cer- ■ tain evidence. We have examined the record, and are satisfied that there was no error in these rulings.
Judgment must be affirmed.
The other Justices concurred. | [
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T. M. Burns, J.
Plaintiff, a nonresident of the State of Michigan, commenced this action m propria persona against defendants, residents of the state. It appears that plaintiff is the son of defendant Levina Fern Miller and the late Luell W. Miller, and that defendants Green are relatives of the plaintiff. Plaintiff filed with the trial court a handwritten complaint averring as follows:
“By oath and by law; women are not equal to men and cannot take away a man’s inheritance.
“By oath and by law; no one can commit a crime in order to pass a law, and cannot pass a law in order for someone else to commit a crime.
“By oath and by law; no one is eligible or qualified to hold any office if they cannot read and understand what they read.
“By oath and by law; no one is a citizen who does not believe and follow the higher authorities.”
Plaintiff sought damages in the sum of $1,000,000.
On April 20, 1970, a motion for summary judgment was filed by defendants Oreen and Miller on the ground that the complaint failed to state a cause of action against the defendants. On May 20-21, 1970, orders were filed pursuant to the motion of defendants directing plaintiff to file an amended complaint within 30 days, in the absence of which dismissals would be entered as to all defendants. On June 1,1970, plaintiff filed in propria persona a partial amendment to his complaint. This document, also handwritten, averred the following:
“In paragraph one of will and testament no just debts were paid to Clare W. Miller, approximately $1,400.00, $1,000.00 since 1926 plus interest.
“Property of Clare W. Miller is now claimed by Levina Fern Miller and being used by Priscilla and Marvin G-reen, namely 40 cows and calves and 2 brood sows and pigs, at the time I went to war in 1941, some of my stock has been sold.
“A letter from Harold J. Ashdown dated Nov. 30, 1967 states that the will had been discussed with the Probate Judge.
“Therefore Clare W. Miller is being paid with his own money.
“The $500.00 mentioned in the will. This will and testament being a conspiracy to steal, hold and sell the property of Clare W. Miller the plaintiff, (a life time savings).
“Plaintiff contributed to the buying of real and personal property in money and labor.”
An answer to the amended complaint was filed on June 12, 1970, by original defendant Alvan Uhle. His motion, filed on the same date, for dismissal of the amended complaint on the ground that no facts were set forth to substantiate the allegations therein was granted by order filed July 9, 1970. The cause was thereby dismissed as to defendant Uhle. On June 15, 1970, defendants Green and Miller filed a motion for summary judgment on plaintiff’s amended complaint on the ground that the same failed to set forth a cause of action. On July 13, 1970, said defendants filed a “Motion for Dismissal or Motion for Summary Judgment Under the Statute of Limitations” averring that, in the event plaintiff’s complaint, as amended, stated a cause of action, the same was barred by the statute of limitations. Said motion was denied by order filed July 14,1970. On August 21, 1970, an appearance by counsel for plaintiff was entered, and a proposed second amended complaint filed, although counsel did not request the court’s permission to amend. The amended complaint filed by plaintiff, through counsel, averred in part in Count I thereof:
“2. That Plaintiff, while a resident of Branch County, Michigan, and more particularly while living with his father, Luell W. Miller, during the year 1931, purchased two cows and placed them on the farm of his father, Luell W. Miller.
“3. That Plaintiff kept these two cows on the farm of his father in Branch County, Michigan, and when Plaintiff left Branch County, Michigan, in approximately 1941, he owned forty (40) cows and calves and two brood sows which were on the farm of his father.
“4. That these cows have at all times mentioned herein been the property of plaintiff, the arrangement between Plaintiff and his father, Luell W. Miller, being that the elder Miller would care for Plain tiff’s cows in return for the two sows, the bull calves, and the milk from the cows.
* * #
“7. That Luell W. Miller died on September 25, 1967, and his wife, Defendant Levina Fern Miller, converted Plaintiff’s cows by taking possession of them and delivering possession to Defendants Marvin Green and Priscilla Green, or alternatively, in permitting Defendants Marvin and Priscilla Green to take possession of Plaintiff’s cows.
“8. That the cows belonging to Plaintiff are now in the possession of Defendants Marvin Green and Priscilla Green in Branch County, Michigan.
“Wherefore, plaintiff prays that the court decree and adjudge declaring that Plaintiff is the owner of the cows being held by Defendants Marvin and Priscilla Green, which they received from Luell W. Miller and Levina Fern Miller.”
Count II of the proposed amended complaint realleged the averments of Count I and sought by way of equitable relief the following:
“1. That Defendants account to Plaintiff for the present number of cows being held by them and for the proceeds from any cows which have been sold by them.
“2. Judgment for the amount found due on such accounting.
“3. For such other and further relief as may appear just and equitable under the circumstances.”
The proposed amended complaint was the subject of a motion to strike filed by defendants on August 24, 1970. The motion was grounded upon plaintiff’s failure to request the court’s permission to file and upon the fact that plaintiff’s first amended complaint and defendants’ motion for summary judgment thereon filed June 15, 1970, had not yet been determined. A hearing on the summary judgment motion was held on August 25, 1970. The court granted the defendants’ motion to strike plaintiff’s proposed second amended complaint and also granted defendants’ motion for summary judgment. Orders to that effect were filed on September 17, 1970. The order granting summary judgment for defendants upon plaintiff’s first amended complaint stated in part :
“It appears to this court that Paragraph 3 of plaintiff’s complaint in effect charged defendants with conversion of certain livestock claimed by plaintiff in 1941. It further appears that based upon said complaint, plaintiff’s action, if any, accrued more than six years past and the plaintiff’s claim is barred by the statute of limitations.”
On September 30, 1970, plaintiff, by his attorney, filed a motion for rehearing on defendants’ motion for summary judgment. On the same date, plaintiff also filed a motion for leave to file his second amended complaint and/or make additional pleadings to the first amended complaint pursuant to GCR 1963,118.1 which states in part:
“A party may amend his pleading once as a matter of course * * * . Otherwise, a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave shall be freely given when justice so requires.”
At the hearing on plaintiff’s motions, the court stated:
“The thrust of the argument is that the court was in error in holding that the statute of limitations applied. I see no explanation for the delay in filing the motion for leave to file a second amended complaint, when the first motion was granted. The plaintiff was given 30 days to file an amended com plaint. It does not appear or is there any explanation why he did not obtain counsel then.
“The defendants are entitled to some rights also, and on the entire posture of this case I see no reason to reconsider and redetermine the questions that were passed upon at the time this matter was before the court previously. The motions are denied.”
Orders pursuant to the foregoing were entered on October 27, 1970. Plaintiff now brings this appeal.
Plaintiff first contends that the trial court erred in granting a summary judgment for defendants against plaintiff’s partial amended complaint. Plaintiff submits that the trial court’s apparent reliance upon the six-year statute of limitations for personal actions in granting defendants’ motion for summary judgment was error. That statute, being MOLA § 600.5813 (Stat Ann 1962 Rev § 27A.5813), provides:
“All other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes.”
Plaintiff contends that the important date for purposes of determining the propriety of the court’s grant of defendants’ motion for summary judgment is the date upon which the claim accrued and that the claim accrued at the time the wrong was committed.
We agree. A conversion is committed when dominion is wrongfully asserted over another’s personal property. Thoma v. Tracy Motor Sales, Inc. (1960), 360 Mich 434, 438. Therefore, the statute on a claim for conversion would not start to run until the date when dominion is asserted.
Plaintiff’s amended complaint provided in part:
“Property of Clare W. Miller is now claimed by Levina Fern Miller and being used by Priscilla and Marvin Green, namely 40 cows and calves and 2 brood sows and pigs, at the time I went to war in 1941, some of my stock has been sold.” (Emphasis supplied.)
From the foregoing, and viewing the same in a light most favorable to the plaintiff, as courts must do on a motion for summary judgment, it would appear reasonable to infer that the wrong is claimed to have been committed on a date more recent than one which would have allowed the invoking of the statute of limitations.
The trial court apparently used the date 1941 as affording a basis for determining that any claim plaintiff may have had is now barred by the statute of limitations. However, our reading of plaintiff’s amended complaint reveals that no date for the conversion is alleged and that the date of the alleged wrong is a material issue of fact raised by the pleading. Therefore, since there is a material issue of fact raised in the pleading, summary judgment should not have been granted.
“It is, of course, axiomatic that a summary judgment or decree will not be upheld where there are material issues of fact raised on the pleadings. Kaminski v. Standard Industrial Finance Co. (1949), 325 Mich 364. Any inferences to be drawn from the underlying facts pleaded or contained in the counter affidavit must be viewed in the light most favorable to the party opposing the motion.” Beardsley v. R. J. Manning Company (1966), 2 Mich App 172, 175.
From our examination of the pleadings, it does appear that they do not set forth the nature of the relief sought or specify when the alleged wrongful act was committed. However, it is our opinion that the complaint, as amended, does reveal that plaintiff may be entitled to some relief. Therefore, the entry of the summary judgment was improper.
We now turn to the question of whether the trial . court abused its discretion in denying plaintiff’s motion to file a second amended complaint or to file additional pleadings to his partial amended complaint.
The determination of a motion for leave to amend pleadings is within the discretion of the trial court. GrCR 1963, 118.1. However, such discretion is not unlimited. In Doan v. Chesapeake & Ohio Railway Co. (1969), 18 Mich App 271, 280-281, this Court stated:
“This Court holds that subrule 118.1 imposes a limitation on the discretion of the trial court in denying leave to amend necessitating a finding that justice would not be served by the amendment, Burg v. B & B Enterprises, Inc. (1966), 2 Mich App 496; see also LaBar v. Cooper (1965), 376 Mich 401; Dahlstrom v. City of Whitehall (1968), 14 Mich App 349.”
Our review of the record, including the affidavit in support of plaintiff’s motion to amend, leads us to the conclusion that justice would he served by the amendment. Now that he has retained an attorney who can clearly delineate the issues, we see no reason why the amendment could not have been allowed and the case tried on the merits.
Reversed and remanded for proceedings consistent with this opinion.
All concurred.
See Beardsley v B. J. Manning Company (1966), 2 Mich App 172, 176. | [
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31,
-42,
3,
-78,
37,
52,
16,
50,
85,
-15,
0,
6,
-70,
-50,
-15,
-6,
-10,
20,
42,
-15,
19,
-21,
84,
-3,
-55,
19,
37,
11,
-20,
36,
3,
-8,
19,
-14,
12,
23,
27,
32
] |
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