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Per Curiam.
Defendant was found guilty by a jury of assault with intent to murder, MCLA 750.83; MSA 28.278. Upon review of the issues raised on appeal we affirm.
Defendant asserts upon appeal that the trial court erred in allowing a prosecution witness to refuse to answer certain questions on cross-examination because of the privilege against self-incrimination. A review of the record, consisting of 41 pages of thorough cross-examination of the witness, indicates that the questions to which answers were refused were such as to implicate the witness in crimes other than the one at issue. A witness when he takes the stand may not be compelled to incriminate himself as to the commission of other crimes. People v. Robinson, 306 Mich 167 (1943); People v. Herbert Smith, 34 Mich App 205 (1971). In the present case no prejudice to the defendant resulted from the exercise of this privilege by the witness. People v. Berry, 36 Mich App 1 (1971).
In this case the trial court also limited the cross-examination of a police officer when questions were asked relating to matters collateral to the issue at hand. This ruling was properly within the discre tion of the trial court and no abuse of such discretion has been shown. People v. Fleish, 321 Mich 443 (1948); People v. Berles, 30 Mich App 716 (1971).
A review of the prosecutor’s unobjected to argument in light of the argument of the defense counsel convinces this Court that the remarks of the prosecutor were not improper in the context in which they were presented. The alleged errors were either proper inferences arising out of the evidence or responses invited by defense counsel’s argument. People v. Joshua, 32 Mich App 581 (1971); People v. Green, 34 Mich App 149 (1971).
Officer Ernest Gilbert testified to the circumstances of defendant’s arrest. He stated that he arrested defendant April 25, 1970, which was three days after the shooting, at a Detroit residence. The officer stated that he was aware that an arrest warrant had been issued for defendant and in the company of other officers he went to the residence. He further testified that one of the officers knocked on the downstair’s door and they were admitted by the people who lived downstairs. The officers then knocked on the second floor door where they were admitted by one Arnold Taylor. The police informed Taylor of the purpose of their visit and Taylor then showed the officers into the bedroom where defendant was asleep in his underclothes. The officer awakened defendant and took a .38-caliber revolver from a leather jacket which was immediately next to the defendant’s bed. Defendant was present while the gun was removed from the jacket. Under the circumstances, the admission of the gun into evidence over defense counsel’s objection was proper. People v. Herrera, 19 Mich App 216 (1969); People v. Surles, 29 Mich App 132 (1970); People v. Nelson, 29 Mich App 251 (1970).
We find no merit in the defendant’s claim that lie was denied effective assistance of counsel at trial because his attorney failed to object prior to trial to the admission of the gun. People v. Loukas, 21 Mich App 118 (1970).
Affirmed. | [
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Memorandum Opinion. Defendant pleaded guilty to attempted larceny in a building and he appeals. A motion to affirm has been filed by the people.
Upon an examination of the briefs and record, 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. | [
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Danhof, P. J.
After a jury trial the defendant was convicted of carnal knowledge of a female under the age of 16. MCLA 750.520; MSA 28.788. His motion for new trial was denied and he now appeals contending that the people did not produce sufficient evidence to support a jury finding that penetration had been proven beyond a reasonable doubt. It is well-settled that one of the elements of the offense of rape is penetration by the male organ. People v Rivers, 147 Mich 643 (1907); People v Courier, 79 Mich 366 (1890). We find the defendant’s contention to be meritorious and we reverse and remand for entry of a judgment convicting the defendant of assault with intent to rape, MCLA 750.85; MSA 28.280, and for sentencing on that conviction.
The victim of the alleged crime was a five-month-old infant who suffered injuries in the vaginal area that required medical treatment. The defendant denies his guilt and there were no eyewitnesses. The defendant made several admissions, which were admitted into evidence, but he has always denied using his penis. The defendant was the only adult male who had access to the child at the time the crime was committed, and if she wás raped he was the only person who could be guilty. The strongest evidence of penetration was the testimony of a physician who stated that the injury was compatible with the type of injury that would occur when a penis was forcibly introduced into the vagina. However, the injury could have been caused by some other object. Viewing the record as a whole, we hold that the evidence was not sufficient to support a reasonable inference that there had been penetration of the child by the defendant.
We are not unmindful of the fact that penetration may be proved by circumstantial evidence, and that the testimony of a physician showing the condition of the parts is an important item of evidence. People v Scouten, 130 Mich 620 (1902). The test for determining the sufficiency of circumstantial evidence was set forth in People v Aikin, 66 Mich 460, 483 (1887) as follows:
“The verdict of guilty in a criminal case resting upon circumstantial evidence is built upon a series of facts connected logically together, and one fact succeeding another in a certain order; one fact resting or depending upon another as a result of the proceeding. The material and essential facts necessary to convict, following one another, and each adding strength and conviction to the other and the whole, and which, as a whole, complete a perfect and irresistible chain, must each and every one be es tablished and proved. And who can say that this chain, so formed is a perfect and complete chain to a moral certainty, or beyond a reasonable doubt, if there be a want of such moral certainty or a reasonable doubt as to the existence of one of these links, without which the chain is broken and incomplete? Each necessary link, each and every material and necessary fact upon which a conviction depends, must be proved beyond a reasonable doubt.”
In this case the final link in the chain is missing. There was ample evidence, both circumstantial and direct, to support a finding that the defendant had committed a crime. However, there was not sufficient evidence of penetration to support a finding that the crime was rape.
Although the defendant’s conviction of rape cannot be sustained, it is not necessary to order a new trial. In cases yrhere the only error is found in a failure of proof on one element of the offense it is sometimes permissible to remand for the entry of a judgment of conviction on a lesser included offense. There are several requirements that must be met before such a disposition can be made. Defendant must have been convicted of the offense with which he was charged, thus excluding the possibility that the jury verdict was the product of a compromise. The new judgment of conviction must be for an offense which is a lesser included offense of the crime originally charged. The element on which there has been a failure of proof must be an element which raises the greater offense above the lesser. The record must contain credible evidence which would support a conviction of the lesser offense. In a case where these requirements were met, a conviction of first-degree murder was reversed and remanded with instructions to enter a judgment of conviction on a charge of second-degree murder. People v Morrin, 31 Mich App 301 (1971). In People v McFarland, 14 Mich App 313 (1968), a conviction of the offense of receiving stolen property-over the value of $100 was set aside and the cause remanded for sentencing on conviction of receiving stolen property of the value of $100 or less. In People v Lee, 14 Mich App 328 (1968), a conviction of breaking and entering with intent to commit larceny was set aside and the cause remanded for sentencing for the crime of breaking and entering.
In the case at bar there is ample evidence to support a verdict of guilty of assault with intent to rape. Since the jury found the defendant guilty of rape it is clear that they found all the elements of the lesser offense.
Reversed and remanded for the entry of a judgment of conviction of the offense of assault with intent to rape and sentencing upon that judgment.
All concurred.
For a case involving double jeopardy considerations which are not present here, see People v McPherson, 21 Mich App 385 (1970). | [
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FITZGERALD, J.
Defendants Security First Associated Agency, Inc., and George Burgess (the agents) appeal as of right from the orders effectively denying them costs and attorney fees as sanctions against plaintiffs and defendants Commercial Union Insurance Companies and Northern Assurance Company of America (the insurance companies). Plaintiffs sued defendants when the insurance companies denied coverage for a fire that destroyed property owned by plaintiff Broadway Coney Island, Inc. In September 1993, plaintiffs and the insurance companies settled the lawsuit for $90,000 and sought to have all claims dismissed with prejudice. The insurance agents sought to block the dismissal on the basis that they should be paid costs and attorney fees as sanctions for having to defend against plaintiffs’ claims. Following hearings, the trial court issued a written opinion and order that granted the insurance companies’ “motion for entry of order of dismissal under MCR 2.504(A).” The insurance agents’ motion for reconsideration, seeking to recover costs and attorney fees against plaintiffs and the insurance companies, was denied.
FACTS
In February 1988, plaintiff Sherry Jackson and her business partner, Darlene Meehling, purchased the Broadway Coney Island restaurant from George and Carmen Panos. Jackson and Meehling paid $25,000 cash for the business and signed a $25,000 promissory note. They also leased the building from the Panoses for five years. Plaintiff Broadway Coney Island, Inc., was formed by Jackson and Meehling in 1987 and was apparently incorporated to run and own the restaurant business. In March 1988, Jackson contacted insurance agents Security First and Burgess to purchase insurance for the restaurant. The policy was issued by the insurance companies to Broadway and provided $100,000 worth of contents coverage at replacement cost, plus $50,000 worth of coverage for business interruption. Jackson bought out Meehling’s share of the business and corporation in December 1988.
In May 1989, a fire destroyed the contents of the restaurant, and plaintiffs claimed losses of $123,792.50, which included $98,235 in property damage. The insurance companies rejected plaintiffs’ claims on several grounds, including arson and lack of insurable interest. The defense of lack of insurable interest was based upon the insurance companies’ belief that Jackson, who was not an insured party, owned the business assets. Plaintiffs sued the insurance companies, seeking coverage for the fire loss. In the same complaint, plaintiffs sued the agents, alleging that the agents’ breach of the duty to inform the insurance companies of Broadway’s ownership of the business assets resulted in the insurance companies raising the defense of lack of insurable interest. From the outset, the agents took the position that the only reason they were named in the lawsuit was because the insurance companies had raised the frivolous defense of lack of insurable interest.
The case was mediated in September 1991, resulting in the following evaluation: (1) no cause of action in favor of defendants George and Carmen Panos, with an award of $21,000 in their favor against plaintiffs; (2) no cause of action in favor of insurance agents Security First and Burgess; and (3) $85,000 in favor of plaintiffs against insurance companies Commercial Union and Northern Assurance.
The agents accepted the mediation evaluation. Plaintiffs accepted the $21,000 award in favor of the Panoses, but rejected the remaining evaluations. The insurance companies and the Panoses rejected the mediation evaluation.
In May 1993, plaintiffs and the insurance companies stipulated the withdrawal of the lack of insurable interest defense and dismissal of plaintiffs’ claims against the insurance agents. The agents objected to the stipulation and order for dismissal on the. ground that it violated MCR 2.504(A), apparently because it was not agreed to by all the parties. Plaintiffs and the insurance companies reached a settlement in this case, which was placed on the record. Counsel for the agents was not present at the hearing, but his opposition to any order of dismissal was noted. Under the settlement, the insurance companies would pay plaintiffs $90,000, plaintiffs would pay the Panoses $27,500, and all claims would be dismissed.
At the hearing on the insurance companies’ motion to dismiss, the agents complained that dismissal would be unfair to them because they had been forced to defend against plaintiffs’ claims for three years because of a frivolous affirmative defense raised by the insurance companies. The agents requested denial of the motion so they would have the opportunity to recoup some of the costs of litigation and sought consideration of their motion for summary disposition. The agents’ motion for summary disposition was scheduled to be heard two days later, on October 27, 1993. The trial court granted the motion for entry of dismissal with prejudice and without costs to any party.
I
Agents Security First Associated Agency and George Burgess argue that they are entitled to costs and attorney fees as mediation sanctions under MCR 2.403(0) because plaintiffs, who rejected mediation, did not improve their position in the ultimate settlement.
Mediation sanctions are governed by MCR 2.403(0), which provides in relevant part:
(1) 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. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation.
(2) For the purpose of this rule, “verdict” includes
* * *
(c) a judgment entered as a result of a ruling on a motion filed after mediation. [Emphasis added.]
Under MCR 2.403(O)(6)(b), actual costs include reasonable attorney fees for services necessitated by the rejection of the mediation evaluation.
The order of dismissal with prejudice falls within the definition of “verdict” under MCR 2.403(O)(2)(c). The order had the same effect as a judgment of no cause of action in favor of the insurance agents and, therefore, is to be treated as one. To find otherwise would be contrary to the purpose behind MCR 2.403, which is to encourage settlement and deter protracted litigation by placing the burden of litigation costs upon the party that required that the case proceed toward trial by rejecting the mediator’s evaluation. Michigan Basic Property Ins Ass’n v Hackert Furniture Distributing Co, Inc, 194 Mich App 230, 234; 486 NW2d 68 (1992). Plaintiffs cannot be allowed to reject mediation, then avoid potential mediation sanctions owed to third parties by means of a settlement arrangement that does not involve those parties.
MCR 2.403(L)(3) provides in relevant part:
In mediations involving multiple parties the following rules apply:
(a) Each party has the option of accepting all of the awards covering the claims by or against that party or of accepting some and rejecting others. However, as to any particular opposing party, the party must either accept or reject the evaluation in its entirety.
MCR 2.403(0) provides in relevant part:
(3) For the purpose of subrule (0)(1), a verdict must be adjusted by adding to it assessable costs and interest on the amount of the verdict from the filing of the complaint to the date of the mediation evaluation. After this adjustment, the verdict is considered more favorable to a defendant if it is more than 10 percent below the evaluation, and is considered more favorable to the plaintiff if it is more than 10 percent above the evaluation. If the evaluation was zero, a verdict finding that a defendant is not liable to the plaintiff shall be deemed more favorable to the defendant.
(4) In cases involving multiple parties, the following rules apply:
(a) Except as provided in subrule (0)(4)(b), in determining whether the verdict is more favorable to a party than the mediation evaluation, the court shall consider only the amount of the evaluation and verdict as to the particular pair of parties, rather than the aggregate evaluation or verdict as to all parties. However, costs may not be imposed on a plaintiff who obtains an aggregate verdict more favorable to the plaintiff than the aggregate evaluation. [Emphasis added.]
For an aggregate verdict to be considered more favorable to the plaintiff under MCR 2.403(O)(4), the aggregate verdict must exceed the aggregate mediation evaluation by more than ten percent as required by MCR 2.403(O)(3). Frank v William A Kibbe & Associates, Inc, 208 Mich App 346, 354; 527 NW2d 82 (1995). Plaintiffs are liable to the insurance agents for mediation sanctions because their aggregate settlement amount is, in fact, less than the aggregate mediation evaluation. The settlement did not provide for any costs and apparently included any interest to be awarded plaintiffs. Plaintiffs received $90,000 in settlement, $27,500 of which went to the Panoses, for an aggregate total of $62,500. The mediation evaluation gave $85,000 to plaintiffs, less $21,000 to the Panoses, for an aggregate mediation evaluation of $64,000. Plaintiffs owe the agents actual costs as sanctions for rejecting mediation. Therefore, we remand this case to the circuit court for a determination of actual costs to be awarded as mediation sanctions under MCR 2.403(O)(l).
n
The agents also assert that the trial court erred in refusing to award them costs and fees to be paid by the insurance companies as a penalty for raising a frivolous defense. Attorney fees may generally be awarded as taxable costs only where specifically authorized by statute or court rule. Attorney General v Piller (After Remand), 204 Mich App 228, 232; 514 NW2d 210 (1994). MCR 2.114(F) provides that “a party pleading a frivolous claim or defense is subject to costs as provided by MCR 2.625(A)(2).” MCR 2.625(A)(2) states that “if the court finds on motion of a party that an action or defense was frivolous, costs shall be awarded as provided by MCL 600.2591; MSA 27A.2591.” MCL 600.2591; MSA 27A.2591 provides in relevant part:
(1) Upon motion of any party, if a court finds that a civil action . . . was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney.
(3) As used in this section:
(a) “Frivolous” means that at least 1 of the following conditions is met:
(i) The party’s primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reason to believe that the facts underlying that party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
The agents have cited no authority indicating that a frivolous defense raised by one defendant may entitle a codefendant to sanctions under MCR 2.114(F). Nonetheless, the record does not support the insurance agents’ argument that the insurance companies’ defense of lack of insurable interest was frivolous. An issue of fact existed regarding whether Broadway was the owner of the business assets before the fire or whether Jackson executed a backdated bill of sale after the fire occurred. The bill of sale purporting to transfer the restaurant assets from Jackson and Meehling to Broadway appears suspicious in that it is signed only by Jackson, who notarized her own signature. Although Meehling and Jackson passed a corporate resolution agreeing to transfer the property, they never executed property documents for the sale. Given the suspicious nature of the fire, and the lack of documentation showing that Broadway owned the business assets, it was reasonable for the insurance companies to assert that Broadway did not have an insurable interest in the property destroyed in the fire. The insurance companies had a good-faith factual basis to raise the defense, which is a recognized defense against a claim for coverage. Secura Ins Co v Pioneer State Mutual Ins Co, 188 Mich App 413, 415; 470 NW2d 415 (1991).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.
E. M. Thomas, J., concurred.
Defendants George Panos and Carmen Panos are not involved in this appeal.
Arson investigators determined that the fire had been set with gasoline. When firemen arrived at the scene, they found the building locked and secured, with the windows intact. | [
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Per Curiam.
Petitioner appeals as of right a February 21, 1995, order of the Michigan Tax Tribunal granting respondent’s motion for summary disposition on the ground that petitioner did not have standing to file the petition and invoke the jurisdiction of the tribunal. We affirm.
Petitioner contractually engaged the State Tax Commission (STC) to appraise and determine the true cash value (TCV) of the Palisades nuclear plant for the purpose of establishing the 1994 assessed valuation of the plant. Respondent Consumers Power Company is the owner of the plant. The STC assessed the plant at the State Equalized Value (sev) of $126,506,000. The local board of review affirmed the stc’s assessment.
On June 27, 1994, petitioner filed a petition with the Tax Tribunal, seeking review of the 1994 assessed value of the plant on the ground that the assessment undervalued the property. Respondent filed a motion for summary disposition pursuant to MCR 2.116(C)(4) (tribunal lacked subject-matter jurisdiction because the assessment was not protested to the local board of review), (C)(5) (petitioner was not a party in interest and lacked standing to file a petition with the tribunal), and (C)(7) (petitioner relinquished right to petition because of its contract with the STC). Respondent supported its motion with two affidavits from company officials who averred that they appeared before the board of review to inform the board that they were satisfied with the 1994 assessment and that the appearance was to preserve the company’s right to bring an appeal in the event that an equalization factor was placed on the property. Respondent attached the contract between petitioner and the STC to have the STC appraise and determine the true cash value of the property on which the assessed valuation for 1994 was to be calculated. Respondent also attached a copy of its March 19, 1994, petition before the board of review that indicated the reason for protest as: “SE value not to exceed 50% of tcv” and the board’s action as: “Board accepts State Tax Comm. S.E.V. $126,506,000.”
On August 30, 1994, petitioner filed its response in opposition to respondent’s motion for summary disposition, arguing that respondent filed a petition before the board of review and “protested” sufficiently for the tribunal to have jurisdiction, that petitioner as a local unit of government is a party in interest, that it is not bound by the assessed value and the board of review determination, and that its contract with the STC did not preclude its appeal to the tribunal.
The Tax Tribunal granted respondent’s motion for summary disposition on the ground that petitioner lacked standing to file the petition. The tribunal reasoned that petitioner was not an aggrieved party because the board of review affirmed without modification the assessing officer’s valuation of the property, thus binding the assessing authority and depriving it of standing to challenge the assessment absent a showing of fraud by the subject property owner that affects the valuation of the property.
Petitioner first contends that the tribunal erred in determining' that petitioner lacked standing to challenge the 1994 assessment of the Palisades nuclear plant. Before reaching the issue of standing, however, it is necessary to first determine whether the Tax Tribunal has jurisdiction in this matter.
At the time petitioner filed its petition before the Tax Tribunal, MCL 205.735; MSA 7.650(35) provided in relevant part:
(1) A proceeding before the tribunal shall be original and independent and shall be considered de novo. For an assessment dispute as to the valuation of the property or where an exemption is claimed, the assessment must be protested before the board of review before the tribunal may acquire jurisdiction of the dispute under subsection (2)
(2) The jurisdiction of the tribunal in an assessment dispute shall be invoked by the filing of a written petition by a party in interest, as petitioner, not later than June 30 of the tax year involved. ...
The plain language of § 35 required that the assessment be protested before the board of review before the tribunal could acquire jurisdiction. See, e.g., Parkview Memorial Ass’n v City of Livonia, 183 Mich App 116, 118-119; 454 NW2d 169 (1990). It is clear in this case that a protest regarding the assessment was not brought by either party. Consequently, the condition precedent to the Tax Tribunal’s exercise of its jurisdiction to review the assessment of the property was not met, and the tribunal does not have jurisdiction over this matter.
Assuming that the tribunal had jurisdiction in this matter, the tribunal properly determined that petitioner did not have standing to invoke the jurisdiction of the Tax Tribunal to review the board of review’s decision. In Richland Twp v State Tax Comm, 210 Mich App 328, 335; 533 NW2d 369 (1995), this Court held:
[T]he party aggrieved by a decision of a board of review— i.e., the local governmental unit or individual taxpayer who protested an assessment to the board of review — is entitled to seek administrative review of the decision by the Tax Tribunal.
A party is aggrieved by a judgment or order when it operates on the party’s rights and property, or bears directly on the party’s interest. Midland Cogeneration Venture Ltd Partnership v Public Service Comm, 199 Mich App 286, 304; 501 NW2d 573 (1993). An appeal can be taken only by parties who are affected by the judgment appealed from. In other words, there must be some substantial rights of the parties that would be prejudiced by the judgment. Grace Petroleum Corp v Public Service Comm, 178 Mich App 309, 312-313; 443 NW2d 790 (1989).
Here, petitioner contracted with the stc to make the assessment and thus is bound by that assessment. The board of review affirmed petitioner’s assessment; thus, petitioner was not an aggrieved party. Consequently, petitioner cannot establish that it had a substantial right prejudiced by that decision. Id. at 312. Accordingly, petitioner is not an aggrieved party and would not have standing to invoke the jurisdiction of the Tax Tribunal to review the board’s decision.
Petitioner also contends that the tribunal erred in failing to provide petitioner an opportunity to amend its pleadings to allege fraud. We disagree. Petitioner had the opportunity to amend its pleadings, see, e.g., MCL 205.735; MSA 7.650(35) and MCL 205.735(2); MSA 7.650(35)(2), but failed to do so.
Affirmed.
Apparently, it was standard practice for the township to contract the assessment of the property to an outside certified level iv assessor because the Covert Township supervisor lacked the necessary certification to assess the property.
MCL 205.735; MSA 7.650(35) was amended by 1994 PA 254, effective July 5, 1994.
Although respondent appeared before the board of review, it did not protest or appeal the 1994 assessment. Rather, respondent appeared only to reserve the right to later appeal to the Tax Tribunal if the assessment was later increased through equalization.
Petitioner’s reliance on Consumers Power Co v Big Prairie Twp, 81 Mich App 120; 265 NW2d 182 (1978), is misplaced. In that case, the issue was whether the tribunal could increase an assessment that was confirmed by the board of review. Unlike in the present case, the jurisdiction of the Tax Tribunal and the standing of the petitioner were not at issue because the property owner first petitioned the board of review for reduction of his assessment. The board of review denied the property owner’s petition, and the property owner appealed to the Tax Tribunal. | [
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McDonald, P.J.
Following a jury trial, defendant was convicted of two counts of first-degree felony murder, MCL 750.316; MSA 28.548, armed robbery, MCL 750.529; MSA 28.797, kidnapping, MCL 750.349; MSA 28.581, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). All the convictions except for one count of first-degree felony murder and for felony-firearm were vacated, and defendant was sentenced to a two-year term of imprisonment for the felony-firearm conviction, which is to be served consecutively to and before the nonparolable life sentence for the murder conviction. Defendant now appeals as of right from both his convictions and sentences. We affirm. ■
On November 26, 1993, defendant and codefendant, Gregory Wines, intending to steal a vehicle in order to leave town, flagged down the victim’s car. The victim was an expectant mother who was the lone occupant of the vehicle. After the victim stopped, defendant got into the passenger side of the vehicle. Wines sat directly behind the victim. Defendant pulled a .22 caliber revolver from his waistband and told the victim to follow his directions. After traveling for a time, defendant told the victim to pull over and stop the vehicle. Defendant ordered the victim out of the car. While Wines remained in the vehicle, defendant walked the victim toward a factory building. In defendant’s first two statements to the police, defendant admitted that when he and the victim came to a wall of the building, he shot the victim twice in the back of the head. However, at trial, defendant testified it was codefendant Wines who shot the victim after defendant made the victim get down on her hands and knees. Defendant claims he agreed to take the blame for the shooting because he was a juvenile and would not be subject to as harsh a penalty as codefendant. Defendant stated he was willing to take the “rap” even though his codefendant was the person that turned him in. Defendant does not dispute that he and Wines planned the robbery in advance and that defendant acquired the gun and ammunition used in the murder.
On appeal, defendant first claims the trial court erred in instructing the jury with regard to the ele merits of felony murder. We find no error. Defendant faded to object to the instructions below, and the instructions given fairly presented the issues to be tried and sufficiently protected defendant’s rights. People v Pollick, 448 Mich 376; 531 NW2d 159 (1995); People v Caulley, 197 Mich App 177; 494 NW2d 853 (1992).
We also find no merit in defendant’s claim certain conduct by the prosecutor denied him his right to a fair trial. Once again, defendant’s failure to object below limits our review of his claim on appeal. Absent an objection or a request for a curative instruction, this Court will not review alleged prosecutorial misconduct unless the misconduct is sufficiently egregious that no curative instruction would counteract the prejudice to defendant or unless manifest injustice would result from failure to review the alleged misconduct. People v Allen, 201 Mich App 98; 505 NW2d 869 (1993); People v Gonzalez, 178 Mich App 526; 444 NW2d 228 (1989). Neither situation is present here. A prosecutor may argue from the facts that a witness, including the defendant, is not worthy of belief, People v Viaene, 119 Mich App 690; 326 NW2d 607 (1982), and is not required to state inferences and conclusions in the blandest possible terms. People v Marji, 180 Mich App 525; 447 NW2d 835 (1989). Although the prosecutor went beyond proper comment regarding the evidence when he called the defendant a “moron,” an “idiot,” and a “coward,” given the overwhelming evidence of defendant’s guilt and the isolated nature of the comments, we do not believe the comments rise to the level of error requiring reversal. People v Bahoda, 448 Mich 261; 531 NW2d 659 (1995). Finally, defendant’s claim that his counsel’s failure to object to the contested prosecutorial comments constituted a deprivation of his right to the effective assistance of counsel must also fail. To show ineffective assistance of counsel, a defendant must show that there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different. People v Stanaway, 446 Mich 643; 521 NW2d 557 (1994). Because the evidence of defendant’s guilt was overwhelming, defendant cannot meet this burden.
Defendant next claims the trial court erred in sentencing him as an adult rather than as a juvenile. We disagree. Review of a trial court’s decision to sentence a minor as a juvenile or as an adult is a bifurcated one. First, the trial court’s factual findings supporting its determination regarding each factor enumerated in MCL 769.1(3); MSA 28.1072(3) are reviewed under the clearly erroneous standard. People v Lyons (On Remand), 203 Mich App 465; 513 NW2d 170 (1994). The trial court’s factual findings are clearly erroneous if, after review of the record, this Court is left with a definite and firm conviction that a mistake has been made. Id. -Second, the ultimate decision whether to sentence the minor as a juvenile or as an adult is reviewed for an abuse of discretion. Id.
A review of the record reveals the trial court carefully considered defendant’s prior criminal record, his age, mental and physical maturity, potential for rehabilitation, the availability of treatment in the adult prison, and the circumstances surrounding the offense. The court’s findings were not clearly erroneous and, given the severity of the offense and the inability to predict whether defendant would still be dangerous at the age of twenty-one, we find no abuse of discretion in the court’s decision to sentence him as an adult. MCL 769.1(3); MSA 28.1072(3); Lyons, supra; People v Black, 203 Mich App 428; 513 NW2d 152 (1994); People v Cheeks, 216 Mich App 470; 549 NW2d 584 (1996). Contrary to defendant’s unsupported assertions on appeal, the trial court’s failure to conduct educational and psychological testing on defendant did not deprive him of an accurate hearing. The court had all the statutorily required evidence before it and rendered its decision in accordance with applicable law and procedures.
Finally, defendant claims his status as a juvenile renders the mandatory sentence of life imprisonment without the possibility of parole cruel or unusual punishment. We disagree. Statutes are presumed to be constitutional, and this Court must construe them as being constitutional absent a clear showing of unconstitutionality. People v Thomas, 201 Mich App 111; 505 NW2d 873 (1993). Our Supreme Court has already ruled a mandatory life sentence without the possibility of parole for an adult is not cruel or unusual punishment. People v Hall, 396 Mich 650; 242 NW2d 377 (1976). In determining whether a punishment is cruel or unusual, one must look to the gravity of the offense and the harshness of the penalty, compare the penalty to those imposed for other crimes in this state as well as the penalty imposed for the instant offense by other states, and consider the goal of rehabilitation. People v Bullock, 440 Mich 15; 485 NW2d 866 (1992); People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972).
Applying these factors to the instant case, defendant concedes murder is a serious offense and that the punishment imposed in this case has been held to be proportionate to the offense. Hall, supra. Other crimes in this state that carry the same sentence include the manufacture, delivery, or possession with intent to deliver or manufacture more than 650 grams of a controlled substance, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i); premeditated murder, MCL 750.316; MSA 28.548; treason, MCL 750.544; MSA 28.812, and placing explosives with intent to destroy and causing injury to a person, MCL 750.207; MSA 28.404. A sample of the other states that permit sentences of life imprisonment without the possibility of parole for minors includes Washington, Massachusetts, Pennsylvania, Illinois, and Delaware. State v Massey, 60 Wash App 131; 803 P2d 340 (1990); Commonwealth v Diatchenko, 387 Mass 718; 443 NE2d 397 (1982); Commonwealth v Sourbeer, 492 Pa 17; 422 A2d 116 (1980); People v Rodriguez, 134 Ill App 3d 582; 480 NE2d 1147 (1985); People v Spence, 367 A2d 983 (Del, 1976). The fourth factor, the need for rehabilitation, is taken into consideration by Michigan courts when they determine whether juvenile defendants should be sentenced as adults rather than as juveniles. MCL 769.1(3)(a)-(f); MSA 28.1072(3)(a)-(f); Lyons, supra at 468-469. We conclude it is not cruel or unusual punishment to sentence a juvenile to life imprisonment without the possibility of parole. The crime of first-degree murder is the most serious offense possible to commit and should be dealt with harshly. See Hall, supra-, People v Hamp, 110 Mich App 92; 312 NW2d 175 (1981). Michigan imposes the same sentence for crimes other than murder, and other states have imposed the same sentence for the crime of murder. Finally, the need to consider rehabilitation is already set forth as a factor to be consid ered in sentencing. We also note Michigan case law and statutes have treated juveniles as adults. In People v Hana, 443 Mich 202; 504 NW2d 166 (1993), our Supreme Court stated there is no constitutional right to be treated as a juvenile. In addition, our Legislature has enacted MCL 712A.4; MSA 27.3178(598.4), which allows a probate court to waive jurisdiction over cases involving children who have obtained the age of fifteen years and are accused of committing crimes that if committed by an adult would be felonies, as well as MCL 600.606; MSA 27A.606, which provides for automatic waiver of individuals between the ages of fifteen and seventeen from the probate court to the circuit court if they are charged with committing first-degree murder. The trial court’s imposition of a life sentence without the possibility of parole on a sixteen-year-old does not constitute cruel or unusual punishment.
Affirmed. | [
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Per Curiam.
Defendant was charged with assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and with being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. Following a jury trial, he was convicted of assault with a dangerous weapon, MCL 750.82; MSA 28.277. The trial court, having determined that defendant was a fourth-felony offender, sentenced defendant to a prison term of four to fifteen years. Defendant appeals as of right. We affirm, but remand for preparation of a Sentencing Information Report (sir).
Defendant first claims that the trial court relied on a constitutionally infirm prior conviction when sentencing him as a fourth-felony offender. Specifically, defendant maintains that the evidence presented at the sentencing hearing failed to indicate that he was represented by counsel or that he validly waived counsel for his 1970 conviction of unlawfully driving away an automobile (udaa), MCL 750.413; MSA 28.645.
Prior convictions obtained in violation of the right to counsel cannot be considered in determining punishment for another offense. People v Moore, 391 Mich 426, 436-438; 216 NW2d 770 (1974); People v Hannan (After Remand), 200 Mich App 123, 128; 504 NW2d 189 (1993). Here, defendant failed to object at sentencing to the court’s reliance on the now-challenged UDAA conviction. However, this Court may nonetheless review defendant’s claim because the conviction’s alleged defect involves the “unique import of a defendant’s constitutional right to counsel.” People v Carpentier, 446 Mich 19, 29-30; 521 NW2d 195 (1994).
In Carpentier, our Supreme Court reaffirmed the “well-established procedure ... for reviewing collateral challenges alleging Gideon violations” first set forth in Moore, supra. When making such a challenge, the defendant bears the initial burden of establishing that a prior conviction was obtained without counsel or a proper waiver of counsel. Carpentier, supra at 31. A defendant may meet this burden by (1) presenting “prima facie proof that a previous conviction was violative of Gideon, such as a docket entry showing the absence of counsel or a transcript evidencing the same,” or (2) presenting evidence that the defendant requested such records from the sentencing court and that the court either (a) failed to reply to the request, or (b) refused to furnish copies of the records, within a reasonable time. Id. Once a defendant meets this initial burden, a hearing will be convened at which the prosecutor will bear the burden of establishing the constitutional validity of the prior conviction. Id.
In the present case, defendant’s 1970 UDAA conviction is noted in his presentence report as follows:
10/4/70, sentenced November of 1970, two years probation. While on probation went awol from the Army several times.
The above notation fails to suggest whether defendant was represented by counsel or whether he validly waived his right to counsel. Mere silence regarding counsel is not the equivalent of the prima facie proof required by Moore and Carpentier, or a presentence information report containing a notation that a prior conviction was obtained without the benefit of counsel. People v Alexander (After Remand), 207 Mich App 227, 230; 523 NW2d 653 (1994). Accordingly, we conclude that defendant is not entitled to an evidentiary hearing because he failed to satisfy his initial burden of showing that the trial court erred in relying on the udaa conviction.
Next, defendant contends that MCL 769.13; MSA 28.1085, as amended by 1994 PA 110, is unconstitutional because it denies several constitutional guarantees, including the right to a trial by jury and the right to be proved guilty beyond a reasonable doubt. Although defendant did not challenge the constitutionality of § 13 at trial, this Court may consider constitutional claims for the first time on appeal. People v Grant, 445 Mich 535, 547; 520 NW2d 123 (1994).
Before its amendment in 1994, MCL 769.13; MSA 28.1085 provided a statutory right to a jury trial for those charged with being an habitual offender:
If, after conviction and either before or after sentence it appears that a person convicted of a felony has previously been convicted of a crime set forth in [MCL 769.10, 769.11, or 769.13; MSA 28.1082, 28.1083, or 28.1085], the prosecuting attorney of the county in which the conviction was had may file a separate or supplemental information in the cause accusing the person of the previous convictions. The court in which the conviction was had shall cause the person to be brought before it and shall inform him of the allegations contained in the information, and of his right to be tried on the allegations, and require the offender to say whether he is the same person as charged in the information or not. If the offender says he is not the same person, or remains silent, the court shall enter a plea of not guilty, and a jury of 12 jurors shall be impaneled from the petit jurors serving at the then or a following term of court to determine the issues raised by the information and plea.
Effective May 1, 1994, the procedure for enhancing an habitual offender’s sentence was dramatically changed. A defendant so charged is no longer entitled to a jury trial. As amended, § 13 provides in pertinent part:
The existence of the defendant’s prior conviction or convictions shall be determined by the court, without a jury, at sentencing, or at a separate hearing scheduled for that purpose before sentencing. The existence of a prior conviction may be established by any evidence that is relevant for that purpose, including, but not limited to, 1 or more of the following:
(a) A copy of the judgment of conviction.
(b) A transcript of a prior trial or a plea-taldng or sentencing proceeding.
(c) Information contained in a presentence report.
(d) A statement of the defendant.
It is well-settled that in a criminal trial the defendant’s conviction must rest on evidence that proves “beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged” and includes the right to a trial by jury. People v Eason, 435 Mich 228, 238; 458 NW2d 17 (1990). However, it has long been held that Michigan’s habitual offender statutes are merely sentence enhancement mechanisms rather than substantive crimes. In re Jerry, 294 Mich 689; 293 NW 909 (1940); People v Anderson, 210 Mich App 295; 532 NW2d 918 (1995). In Eason, our Supreme Court upheld the sentence enhancement provision in the controlled substance act, MCL 333.7413; MSA 14.15(7413), which, like the habitual offender statutes, does not provide for a jury trial:
The [controlled substance act’s sentence enhancement provision] is directed to facts which relate to the criminal, not to the crime, and nothing in the act suggests a proceeding other than that comporting with the fundamental due process requirement that a sentence must be based on accurate information and a defendant have a reasonable opportunity at sentencing to challenge such information. [435 Mich 232-233.]
Relying on the analysis in Eason, this Court upheld the 1992 amendments of Michigan’s drunken driving laws. People v Weatherholt, 214 Mich App 507; 543 NW2d 34 (1995). The amendments provided a procedure by which the prosecutor may seek an enhanced sentence on the basis of one or more prior convictions by presenting, at sentencing, an abstract of conviction, a copy of the defendant’s driving record, or an admission by the defendant. MCL 257.625(12); MSA 9.2325(12). This Court, in determining that a defendant subject to such enhanced sentences is not entitled to a jury trial or proof of the prior convictions beyond a reasonable doubt, noted the clear legislative intent that the amendments are aimed at sentence enhancement, not establishing a separate substantive offense:
[S]ubsections 11 and 12 clearly state that they are applicable where the prosecutor is seeking “an enhanced sentence.” They also provide that a defendant’s prior convictions “shall be established at sentencing.” By adding sections 11 and 12, the Legislature demonstrated that sentence enhancement is the intended thrust of the new statutory provisions. [214 Mich App 511.]
We find that application of the reasoning in Eason and Weatherholt is warranted in the present case. Section 13 expressly states that the section is applicable where a prosecutor “seek[s] to enhance the sentence of a defendant” as an habitual offender. It eliminates the statutory right to a jury trial as well as the right to have guilt proved beyond a reasonable doubt. This language reaffirms the long-held legislative intent that the habitual offender statutes are merely sentence enhancement mechanisms rather than substantive crimes. Hence, defendant is not entitled to a trial by jury or the right to be proved guilty of being an habitual offender beyond a reasonable doubt.
Defendant also maintains that the 1994 amendment of § 13 is violative of his right against self-incrimination. Specifically, defendant posits that, because a prior conviction may be established by information contained in a presentence report or by a statement by the defendant, the amendments require a defendant to provide self-incriminating information in violation of Const 1963, art 1, § 17. We disagree. Contrary to defendant’s suggestion, the amendment of § 13 merely permits, but does not require, a defendant to provide the sentencing court with information regarding his prior criminal convictions.
Defendant next suggests that the 1994 amendment violates the constitutional guarantees of due process because it permits a sentencing court to consider a prior conviction obtained in the absence of counsel or a valid waiver thereof. Again, we disagree. Due process requires that a sentence be based on accurate information and that a defendant have a reasonable opportunity at sentencing to challenge the information. Eason, supra at 233-234. To this end, § 13 provides as follows:
(4) A defendant who has been given notice that the prosecuting attorney will seek to enhance his or her sentence .. . may challenge the accuracy or constitutional validity of 1 or more of the prior convictions listed in the notice by filing a written motion with the court and by serving a copy of the motion upon the prosecuting attorney in accordance with rules of the Supreme court.
(6) The court shall resolve any challenges to the accuracy or constitutional validity of a prior conviction or convictions that have been raised in a motion filed under subsection (4) at sentencing or at a separate hearing scheduled for that purpose before sentencing. The defendant, or his or her attorney, shall be given an opportunity to deny, explain, or refute any evidence or information pertaining to the defendant’s prior conviction or convictions before sentencing is imposed, and shall be permitted to present relevant evidence for that purpose. The defendant shall bear the burden of establishing a prima facie showing that an alleged prior conviction is inaccurate or constitutionally invalid. If the defendant establishes a prima facie showing that information or evidence concerning an alleged prior conviction is inaccurate, the prosecuting attorney shall bear the burden of proving, by a preponderance of the evidence, that the information or evidence is accurate. If the defendant establishes a prima facie showing that an alleged prior conviction is constitutionally invalid, the prosecuting attorney shall bear the burden of proving, by a preponderance of the evidence, that the prior conviction is constitutionally invalid.
Clearly, the challenged amendment sufficiently protects defendants’ due process rights to be sentenced on the basis of accurate information, Eason, supra at 233-234. See also People v Williams, 215 Mich App 234; 544 NW2d 480 (1996).
Defendant’s final constitutional challenge to the 1994 amendment is that it allows prior convictions that are more than ten years old to be used to enhance a defendant’s sentence. However, defendant fails to identify a constitutional guarantee that is violated by the use of such convictions. Nonetheless, this Court has held that there is “no valid reason why convictions over ten years old . . . may not be used by the trial court in determining a próper sentence.” People v Line, 145 Mich App 567, 571-572; 378 NW2d 781 (1985). In Line, the Court noted that the scope of information to be considered by a sentencing court is necessarily broad and that the rules of evidence do not apply. Accordingly, it is not unconstitutional for a trial court to consider convictions that are over ten years old in determining whether a defendant is an habitual offender.
Defendant next maintains that the trial court failed to complete a written sir and that, as a result, the trial court imposed a disproportionate sentence. We disagree. Review of habitual offender sentences is limited to considering whether the sentence violates the principle of proportionality set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), without reference to the guidelines. People v Gatewood, 450 Mich 1021 (1996); People v Gatewood (On Remand), 216 Mich App 559; 550 NW2d 265 (1996). In light of the circumstances surrounding the offense and the offender, we conclude that defendant’s sentence is not disproportionate and that the trial court did not abuse its discretion in sentencing defendant. People v Cervantes, 448 Mich 620; 532 NW2d 831 (1995).
Nonetheless, although the sentencing guidelines do not apply to habitual offenders, the trial court must fill out an sir for the underlying offense. People v Derbeck, 202 Mich App 443, 446; 509 NW2d 534 (1993); Michigan Sentencing Guidelines (2d ed), p 1. “This is done to aid in the development of guidelines for habitual offender sentencings, rather than to aid the sentencing court in determining the habitual offender’s sentence.” People v Strickland, 181 Mich App 344, 346; 448 NW2d 848 (1989). Thus, we remand this matter to the trial court solely for the administrative task of completing a written sir.
Last, defendant contends that he was denied the effective assistance of counsel at sentencing. Specifically, defendant contends that counsel failed to challenge the sentencing court’s use of the 1970 UDAA conviction in determining whether defendant was a fourth-felony offender. However, we have already determined that the sentencing court properly considered the UDAA conviction. Consequently, defendant has failed to show that he was prejudiced by counsel’s failure to challenge the use of the UDAA conviction. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). Defendant also contends that counsel failed to object to the trial court’s failure to prepare an SIR. While we agree that counsel should have brought this omission to the sentencing court’s attention, defendant must establish more than deficient performance; he must also demonstrate that there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different. People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994). Defendant has failed to make such a demonstration. The completion of an SIR in the pres ent case is merely an administrative task that has no effect on defendant’s sentence as an habitual offender.
Defendant’s conviction and sentence are affirmed, and the case is remanded for preparation of an SIR. Jurisdiction is not retained.
Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963). | [
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] |
Per Curiam.
Plaintiff appeals of right an order granting summary disposition under MCR 2.116(C)(8) and (10) in this negligence action under the Roller Skating Safety Act, MCL 445.1721 et seq.; MSA 18.485(1) el seq. Plaintiff fractured a finger, wrist, and elbow after a child nearly collided with him, causing him to hit a tunnel wall while he was in-line skating at defendant’s rink. We affirm.
Plaintiff argues that genuine issues of material fact existed regarding whether the Roller Skating Safety Act applies and whether defendant U.S. Blades, Inc., complied with the act. We disagree. This Court reviews de novo an order granting summary disposition. Butler v Ramco-Gershenson, Inc, 214 Mich App 521, 524; 542 NW2d 912 (1995). A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). MCR 2.116 (C)(10) permits summary disposition when, except as to damages, there is no genuine issue regarding any material fact, and the moving party is entitled to judgment as a matter of law. Id. Giving the benefit of doubt to the nonmovant, this Court must independently determine whether the movant would have been entitled to judgment as a matter of law. Lytle v Malady, 209 Mich App 179, 183-184; 530 NW2d 135 (1995), lv gtd 451 Mich 920 (1996).
Plaintiff argues that the Roller Skating Safety Act does not govern this case because defendant’s facility is not a “roller skating center” as defined by the act. The Roller Skating Safety Act provides in pertinent part:
(c) “Roller skater” means a person wearing roller skates while that person is in a roller skating center for the purpose of roller skating.
(d) “Roller skating center” means a building, facility, or premises which provides an area specifically designed to be used for roller skating by the public. [MCL 445.1722(c),(d); MSA 18.485(2)(c),(d).]
The act calls for roller skaters to avoid other skaters:
While in a roller skating area, each roller skater shall do all of the following:
(c) Maintain a proper lookout to avoid other roller skaters and objects. [MCL 445.1724(c); MSA 18.485(4)(c).]
Further, the act expressly provides for the assumption of risk:
Each person who participates in roller skating accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries that result from collisions with other roller skaters or other spectators, injuries that result from falls, and injuries which involve objects or artificial structures properly within the intended travel of the roller skater which are not otherwise attributable to the operator’s breach of his or her common law duties. [MCL 445.1725; MSA 18.485(5).]
Plaintiff argues that at the time of his injury, he was “roller blading” in a “roller blading facility,” not roller skating in a roller skating facility and that, therefore, the act is inapplicable. The act does not define the terms “roller skating” or “roller blading.” Thus, we must resolve whether in-line skating is “roller skating” and whether in-line skates are “roller skates” for purposes of the act.
The primary goal of statutory interpretation is to give effect to the legislative intent. Mino v McCarthy, 209 Mich App 302, 304; 530 NW2d 779 (1995). If the language of the statute is clear, we employ it and do not engage in judicial construction. Id. However, if reasonable minds could differ regarding the meaning of a statute, judicial construction is appropriate. Dep’t of Social Services v Brewer, 180 Mich App 82, 84; 446 NW2d 593 (1989). When the Legislature does not define a word in a statute, the ordinary meaning of the word applies and the court may consult dictionary definitions to construe the statutory language. In re Estes Estate, 207 Mich App 194, 208; 523 NW2d 863 (1994).
Plaintiff argues that roller skates have two pairs of wheels side by side, while roller blades have four wheels in a line and that each activity involves differ ent starting and stopping mechanisms. Plaintiff contends that he was “roller blading” and not “roller skating.” We disagree. The term “roller blade” is properly considered to be a reference to the Rollerblade brand of in-line skates, not the name of the sport or activity in which plaintiff was engaged. Random House Webster’s College Dictionary (1995), p 1166.
A “roller skate” is defined as “a form of skate with four wheels or rollers, for use on a sidewalk or other surface offering traction.” Id. An “in-line skate” is defined as “a roller skate with typically four hard-rubber wheels in a straight line resembling the blade of an ice skate.” Id., p 694. Thus, in-line skates are roller skates. A place where in-line skating occurs is a roller skating facility.
In the instant case, defendant’s place of business is a “roller skating center” under the act because it is a facility that provides an area specifically designed for roller skating by the public. MCL 445.1722(d); MSA 18.485(2)(d). Moreover, plaintiff was a “roller skater” under the act because he was wearing roller skates while in a roller skating center for the purpose of roller skating. MCL 445.1722(c); MSA 18.485(2)(c).
Plaintiff next argues that the court improperly granted summary disposition because genuine issues of material fact existed regarding whether defendant U. S. Blades complied with the act. We disagree. Plaintiff asserts that the act does not prescribe that all roller skaters assume the risk of all injuries suffered while roller skating at a roller skating center. In Skene v Fileccia, 213 Mich App 1; 539 NW2d 531 (1995), this Court held that the Roller Skating Safety Act is clear and unambiguous. By participating in the sport of roller skating, one accepts the dangers that inhere in the sport. Specifically included are “injuries that result from collisions with other roller skaters.” MCL 445.1725; MSA 18.485(5). In Skene, the plaintiff was injured when another skater collided with her. Id. This Court found that the plaintiff was injured from an obvious and necessary danger of roller skating and could not recover damages. Plaintiff in this case collided with a wall as a result of a near collision with another skater. Under the act, this near collision with the other skater and the collision with the wall were obvious and necessary dangers of roller skating.
Plaintiff also argues that roller skaters accept the risk of injury only for artificial structures properly within their travel. Thus, if a skater’s injuries involve an artificial structure not properly within the travel of the skater, then the injured skater has a cause of action. Plaintiff contends that the wall of the tunnel, with which he collided after interference from another skater, was not properly within his travel.
Plaintiff’s construction of the act would render meaningless § 5, the assumption of the risk clause. Summary disposition was proper under MCR 2.116(C)(10) because no genuine issues of material fact existed. The Roller Skating Safety Act imposes liability for a violation of the act only if the damages result from the violation. MCL 445.1726; MSA 18.485(6). Plaintiff has failed to allege specific facts and present evidence showing that his injuries resulted from defendant’s failure to comply with the act. Therefore, plaintiff did not carry his burden of proof in opposing the motion. No genuine issues of material fact exist and defendant is entitled to summary disposition as a matter of law. MCL 445.1725; MSA 18.485(5). Because summary disposition was proper under MCR 2.116(C)(10), we need not address whether it was proper under MCR 2.116(C)(8).
Affirmed. | [
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Per Curiam.
Defendant appeals as of right from his conviction following a bench trial of assault of a prison employee, MCL 750.197c; MSA 28.394(3). Defendant was also found guilty of being a second-offense habitual offender pursuant to MCL 769.10; MSA 28.1082. He was sentenced to imprisonment for a term of three to six years. On appeal, defendant claims that his actions did not fall under the conduct prohibited by the statute. He also argues that his sentence was disproportionate. We affirm.
On November 2, 1993, the Michigan Department of Corrections held a major misconduct hearing with regard to a prior infraction committed by defendant. The hearing was conducted by hearing officer Martin Palus, who had introduced himself to defendant on a previous occasion. At the end of the hearing, as defendant was being escorted out of the room by two officers, defendant spit on Palus’ shoulder. Although Palus did not see defendant spit on his shoulder, he heard the sound of a person spitting and smelled the spit on his sport coat. The two escorting officers witnessed defendant spitting on Palus.
MCL 750.197c; MSA 28.394(3) is violated when a person lawfully imprisoned in a place of confinement uses violence to assault an employee of the place of confinement. People v Williams, 173 Mich App 312, 318; 433 NW2d 356 (1988). Defendant argues that spitting does not constitute “violence” under the statute and does not constitute an assault. We disagree. In People v Boyd, 102 Mich App 112; 300 NW2d 760 (1980), this Court reviewed whether throwing a liquid alleged to be urine constituted “violence” under the statute. The Boyd Court looked to the Criminal Jury Instructions to help define violence as “any wrongful application of physical force against another person so as to harm or embarrass him.” Id. at 116. Thus, this Court found that the defendant violated the act by throwing liquid that was alleged to be urine. There is no logical distinction that can be drawn between the action of the defendant in Boyd and defendant’s act of spitting on Palus. In this case, it is clear that defendant spit on Palus to “harm or embarrass him,” and, thus, his action constituted violence under the statute. Defendant’s claim to the contrary is without merit.
Defendant next contends that no “assault” occurred under the statute because Palus did not suffer any physical injuries. We disagree. A simple assault is either an attempt to commit a battery or an unlawful act that places another in reasonable apprehension of receiving an immediate battery. People v Robinson, 145 Mich App 562, 564; 378 NW2d 551 (1985). A battery is the consummation of an assault. People v Rivera, 120 Mich App 50, 55; 327 NW2d 386 (1982). For assault and battery, intent is an element of the crime to be proved. 2A Michigan Criminal Law & Procedure, Assaults (2d ed, 1992 rev ed), § 1024, p 668. Thus, the prosecution needed only to prove that defendant intended to spit on Palus; the lack of physical injury was irrelevant. See People v Datema, 448 Mich 585, 592, n 8; 533 NW2d 272 (1995). The intent of the defendant may be established by circumstantial evidence. People v Barclay, 208 Mich App 670, 674; 528 NW2d 842 (1995). In this case, the evidence showed that, as defendant was about to leave the hearing, “[h]e yelled profanities at [Palus,] stood up, and then spit on Mr. Palus.” This evidence was clearly sufficient to support a finding that defendant intentionally spit on Palus. Because spitting upon a person is a battery, which is a consummated assault, spitting falls within the prohibitions of the statute. Accordingly, defendant’s contention that no “assault” was shown under MCL 750.197c; MSA 28.394(3) is without merit.
Finally, defendant contends that his prison sentence of three to six years violated the principle of proportionality. We disagree. Sentencing guidelines do not apply to habitual offenders, because “[t]here was no consideration of habitual offender sentencing in the creation of the existing sentencing guidelines.” People v Cervantes, 448 Mich 620, 625; 532 NW2d 831 (1995). The Legislature intended to afford the trial court discretion to punish more severely those who have committed more serious crimes and who have more extensive prior records of such crimes. Id. at 628-629. In sentencing defendant, the trial court noted that defendant had been involved in numerous instances of misconduct, including ten acts of threatening behavior, ten acts of destruction or misuse of property over $10, and two acts of assault and battery on staff. The trial court also took into consideration the offensive nature of the act of spitting on another and the lack of remorse shown by defendant. These were proper factors to consider in sentencing defendant. People v Houston, 448 Mich 312, 323-324; 532 NW2d 508 (1995); Cervantes, supra at 628. In light of defendant’s excessive misconduct in prison, including threatening and assaultive behavior, we find that the sentence was proportionate to defendant and the crime he committed. Thus, the trial court did not abuse its discretion in imposing a sentence of three to six years for defendant’s violation of MCL 750.197c; MSA 28.394(3).
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Boyles, J.
Plaintiff and defendant are residents of Lansing, Ingham county. In 1934, defendant was granted an uncontested decree of divorce in which defendant was given the custody of their minor child, Grace Marie, then four years of age. Plaintiff was required to pay $5 per week alimony and given the right of visitation and custody at certain times. Neither party has remarried.
In November, 1940, plaintiff filed a petition to modify the decree, alleging that the defendant was no longer a proper person to have the custody of the child, that plaintiff had a proper home for the child with his sister, and asking to be granted the custody. Issue was joined thereon and considerable testimony taken, a recital of which would not benefit Mrs. Riede. Suffice it to say the testimony indicates that the habits of Mrs. Riede and the conditions of her home life are such that the trial court properly concluded there should be a change of environment for the child. We concur in this finding.
The court directed the friend of the court to investigate the homes of the parties. This was done, and the report in the record shows that the home of plaintiff’s sister would be decidedly a more proper home, having in mind the best interests of the child.
The court entered an amended decree, making the child a ward of the court, granting custody to plaintiff, the child to be maintained in the sister’s home at plaintiff’s expense, and giving both parents such right of visitation and custody during vacations as might be approved by the court.
We have reviewed the record and find no reason to disturb the amended decree.
The right of the mother to have the custody of a child under 12 years of age, by virtue of the statute (3 Comp. Laws 1929, § 12852 [Stat. Ann. § 25.311]), is not absolute. The wishes of the parents are a secondary consideration. The welfare of the child is paramount. Weiss v. Weiss, 174 Mich. 431; Smith v. Ritter, 292 Mich. 26. The court may award custody of the child to a third person and require the father to pay for her support. Revised Statutes 1846, chap. 84, § 17a, as added by Act No. 255, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 12739-1, Stat. Ann. 1941 Cum. Supp. § 25.97 [1]).
The fact that plaintiff was $65 in arrears in payment of alimony, due to illness, does not bar the court from changing the decree as to custody of the child.
Affirmed, with costs.
Chandler, C. J., and North, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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Boyles, J.
This is an action for personal injury claimed to have been caused by defendant’s negligent operation of a motor vehicle on the highway. Plaintiff had verdict by jury for $10,000 which was reduced to $5,000 on motion for new trial, plaintiff .consenting to the remittitur. On the remittitur and on denial of motion for new trial, judgment was entered for $5,000 which defendant reviews by general appeal, assigning 13 grounds for reversal.
On April 28, 1939, plaintiff was driving south on trunk line highway US-31 between Muskegon and Grand Haven. It was the middle of the afternoon on a clear day, the pavement was dry, and there was no southbound traffic in sight ahead of her. The road was a paved two-lane highway and at the place of the accident there was a gravel shoulder wide enough upon which to park a car. On the west side (plaintiff’s right), the road sloped down from the shoulder into a ditch about three feet deep. There were several cars going north in the east lane of the pavement and there were four children walking on the gravel shoulder on the west side. Testimony as to the remaining facts is for the most part in direct conflict, except for the fact there was no actual collision between the two cars.
Plaintiff claims that the accident was caused because defendant pulled out of her northbound lane of traffic and traveled north on the wrong side of the road, attempting to pass a car ahead of her; that when defendant came over in plaintiff’s lane, about 250 or 300 feet in front of her, plaintiff applied her brakes and pulled to her right to drive out on the shoulder which was occupied by four children returning home from school; that to avoid running them down plaintiff released her brakes and turned back to the pavement until she cleared the children and a mailbox close to them; that plaintiff then cut back west sharp on the shoulder; that defendant, then on plaintiff’s side, passed without colliding, but that plaintiff was unable to get back on the pavement, the slope pulling her down, and her car hit the bottom of the ditch and rolled over, whereby plaintiff sustained serious personal injuries. Both cars were traveling about 45 miles an hour.
Defendant claims that as she was driving north, she came up behind another vehicle in her lane of traffic, observed traffic conditions to the north, saw an automobile approaching about a quarter of a mile away, passed the vehicle ahead of her and pulled back to her own side behind another car when the approaching car was about 200 feet away; that when she pulled in behind the other car she noticed the approaching car zigzagging; that when it got about 25 feet away it seemed to be coming right at her on her side of the highway; that when the cars passed, plaintiff’s running board and fender were on the black line in the center.
On the issues of fact, the jury found for plaintiff. The grounds relied upon by defendant for reversal may be grouped as follows: (1) refusal to grant defendant’s motion for a directed verdict; (2) prejudicial error in receiving testimony; (3) errors in refusing defendant’s requests and in charging the jury; (4) that the verdict was contrary to the great weight of the evidence; (5) excessive verdict.
(1) Refusal to grant defendant’s motion for a directed verdict:
At the conclusion of plaintiff’s proofs and again before the issues were submitted to the jury, defendant appropriately moved for a directed verdict, which motions were denied. Plaintiff’s testimony and the legitimate inferences to be drawn from established facts must be viewed most favorably to plaintiff. Hale v. Cole, 241 Mich. 624; Thurkow v. City of Detroit, 292 Mich. 617. Under this view, defendant while attempting to pass a car ahead of her drove into plaintiff’s traffic lane, caused plaintiff to apply her brakes and attempt to pull off the pavement ; plaintiff found the shoulder occupied by children; in order to avoid striking them she was compelled to turn back on the pavement where she passed the children and a nearby mailbox; then she turned abruptly back onto the shoulder where the slope pulled her car downward into the ditch where it turned over; that this was done in order to avoid a head-on collision with defendant. Accepting plaintiff’s version which was established to a considerable extent by the testimony of witnesses, defendant would be guilty of negligence and plaintiff free from contributory negligence. There was no error in refusing to direct a verdict.
(2) Error in receiving testimony:
Defendant claims the court erred in receiving testimony of injuries to plaintiff’s eyes, on the ground that plaintiff’s declaration was not broad enough to include this proof. The declaration alleged personal injury as follows:
“That plaintiff was seriously and permanently injured. That plaintiff’s injuries consisted of the following: A fracture in the base of the skull; a severe bruising and laceration over right frontal area, and right lateral aspect of skull and occipital region; a bruising of the upper cervical vertebrae; a fracture of left fifth rib; a hematoma over lateral proximal surface of left thigh and left buttock; and a severe contusion of coccyx. That as a result of said injuries the said plaintiff suffered a great traumatic shock and a destructive lesion in the central nervous system, and generally became sick, sore, lame and disabled and suffered great pain from said injuries and still suffers pain therefrom.”
In some jurisdictions it is held that an injury must be specifically alleged, or must be the natural and necessary result of injury complained of in the pleadings, to justify the admission of evidence of such injury. Such is not the Michigan law. In this State, it is merely required that the injury sought to be proved must be the natural result of the injury complained of in the pleadings. If such injury can be traced to the act complained of, and is such as would naturally follow from the alleged injury, it need not be specifically averred. Groat v. Detroit United Railway, 153 Mich. 165. The declaration charged a fracture of the skull, a severe bruising over the right frontal area, right lateral aspect of skull and occipital region, and that plaintiff suffered a destructive lesion in the central nervous system. Medical testimony showed that plaintiff had an unnatural, large, unreacting left pupil, which could only follow definite injury to the brain substance; that the defect in the left eye was from a brain injury, more specifically a brain lesion than an eye lesion; that the pupillary reaction and discrepancy in vision was a permanent physical defect. There was also testimony of excessive laehrymation. This testimony was brought out in depositions taken some time before trial and on cross-examination by the defendant. According to the medical testimony, these injuries were the natural result of the skull fracture and injury, and the lesion in the central nervous system. The defendant was not taken by surprise and the testimony was admissible..
Defendant claims that it was error to admit the following testimony of Dr. Koehler:
“Q. You may state whether or not at the time you examined her she complained of having suffered pain in that place.
“Mr. Mitts: I object to any complaints, as superficial, hearsay and improper.
“Mr. Proctor: You may answer, yes or no.
“A. She complained of pain and difficulty of sitting ever since the time of her injury.”
. Defendant cites many cases to the effect that when a physician is not called in to aid or give medical treatment, but merely makes an examination for the purpose of testifying, the testimony of the doctor that the patient complained of pain is not admissible. However, that is not the case at bar. Although de fendant claims that the purpose of the examination was to prepare the doctor to testify, the testimony of the doctor was:
“I did not make that examination preparatory to being able to testify in this action which she had against Marcella Boot. I made this examination for Mrs. McDuffie and not for any attorney, and not with any intention of testifying. The reason I do any examination is for the purpose of determining what treatment can be given.”
Taking this testimony as true, as the court must have done when admitting the evidence, the case at bar is not within the rule cited by defendant. Bather, the case falls within the rule that a physician called to treat an injury, when sworn as a witness in a suit to recover damages for the same, may state how the patient described the pain from which she was suffering. Ashton v. Railway Co., 78 Mich. 587 (4 Am. Neg. Cas. 91).
Defendant claims error on the ground that several witnesses were allowed to state conclusions. Control of such testimony is largely a matter of discretion with the court. Undoubtedly it is true that witnesses should not in general be allowed to state conclusions, although this rule is qualified (Zuidema v. Bekkering, 256 Mich. 327), and where a witness gives fully and definitely the facts upon which a conclusion is based, there is no presumption of prejudice. Plaintiff, after testifying fully as to the circumstances, was allowed to state she would have had room to travel along the shoulder if the children had not been there, that there was room to park a car on the shoulder, and that if she had stopped her car in the west lane of traffic there would have been a head-on collision. Another witness was allowed to testify to the same effect after fully stating the circumstances. In each of these instances, the witness gave the facts upon which the alleged conclusion was based, making the statement more one of fact than a conclusion. Another witness who was in plaintiff’s car at the time of the accident testified:
“Her wheels caught into this embankment and it took her down into the ditch. She had no control of the car after she hit that soft grade.”
This sounds more like a statement of fact than a conclusion, and its admission was within the discretion of the court. Vezima v. Shermer, 198 Mich. 757. The other statements complained of might properly be considered statements of fact, and no reversible error was committed in receiving this testimony.
Defendant complains of the latitude allowed on cross-examination in relation to medical testimony. Isolated questions and answers on cross-examination must be considered in connection with the entire examination and are largely within the discretion of the trial court. We find no abuse of discretion in receiving testimony which would require reversal. Miskiewicz v. Smolenski, 249 Mich. 63.
(3) Error in charging the jury:
Defendant alleges error in the failure to give certain requests to charge in the language used by defendant. Defendant claims that the court “took away from the jury the opportunity of finding that even though defendant was negligent, plaintiff could not recover if after having discovered defendant’s negligence, she continued on her course without paying any attention to the situation until it was too late. ’ ’ The court instructed the jury that negligence or contributory negligence might arise through acts of commission or through acts of omission, the latter being the failure to do something which an ordinarily prudent person would have done under like or similar circumstances. The jury were further instructed that if plaintiff, in the exercise of reasonable care, could have brought her automobile to a stop and avoided the collision and failed to do so, or if she continued on when an ordinarily prudent person would not have followed that course, then she would be guilty of contributory negligence which would preclude her recovery. The law of the case in regard to negligence of the defendant, contributory negligence of plaintiff, burden of proof and preponderance of the evidence, acts of omission and commission, proximate cause, combined negligence of both parties, operation of motor vehicles on the public highway, credibility of witnesses, weight and sufficiency of evidence, medical testimony, duties of an ordinarily prudent person in the exercise of reasonable care, and duty when placed in a dangerous position or sudden emergency was fully and carefully explained to the jury by the court. Defendant’s allegations of error in that connection are entirely without merit.
Defendant claims the question of future pain and suffering was not properly submitted to the jury. There was testimony that plaintiff never had headaches before the accident, that they began immediately after and still continue, and medical testimony that due to the head injury they might continue for an indefinite period, that in skull fractures patients get frequent headaches and disturbances of vision for months or years. A plaintiff is required to prove that there is a reasonable certainty of such future pain and suffering. King v. Keller, 228 Mich. 15. No error was committed in submitting the question to the jury.
Defendant alleges error in submitting the question of permanent injuries to the jury. There is definite medical testimony in the record that plaintiff suffered permanent injury. A doctor testified:
“In my opinion, she will have a permanent injury to the eye — the left eye, and subjective evidence of injury to the brain.”
Another doctor testified to the effect that plaintiff’s pupillary réaction and discrepancy in vision was a permanent physical defect. It was proper to submit the question of permanent injury to the jury.
Defendant claims it was error to instruct the jury there was no evidence of defective brakes on plaintiff’s car. We find no such evidence in the record.
There was ample testimony as to the value and extent of physicians ’ services and the jury was properly instructed it might find plaintiff’s damages in that regard at any amount not to exceed a reasonable value of $125. There is no question but that the medical services were necessary and properly submitted to the jury.
(4) Was the verdict contrary to the great weight of the evidence?
We have examined at length the testimony adduced by both plaintiff and defendant. While it has no bearing upon the question of great weight of evidence, an almost equal number of witnesses were sworn by each party, many of them being eyewitnesses and testifying from direct knowledge as to the circumstances of the accident. There was a sharp conflict between witnesses as to their recollection of what happened. The jury reached the conclusion that plaintiff had established every necessary element, including the nature and extent of plaintiff’s damages, by a preponderance of the evidence. The evidence must be viewed by us in the light most favorable to plaintiff on the motion for new trial. We will not disturb the trial court’s de nial of the motion without very clear reasons for so doing. This court is not the trier of the facts. Fabbro v. Soderstrom, 252 Mich. 455; Kosnicki v. Railway Co., 217 Mich. 245. The record would not justify substituting our judgment for that of the jury and we find that the verdict was not against the great weight of the evidence.
(5) Excessive verdict:
On oral argument, the defendant laid considerable stress on the claim that the judgment for $5,000 is excessive, even after a remittitur of $5,000 from the original verdict. There is no similarity between defendant’s contention that the jury attempted to penalize defendant for attempting to introduce testimony that plaintiff had a venereal disease and those cases cited by defendant where the court attempts to cure improper instructions to the jury on questions of law by ordering a remittitur. The question before ns is, whether the verdict and judgment of $5,000 is so excessive as to require that we find the court below abused its discretion in denying a new trial on that ground. Our holding in Meyer v. Weimaster, 278 Mich. 370, 382, applies equally to the case at bar:
“Our holding in Watrous v. Conor, 266 Mich. 397, is applicable. We said:
“ ‘Assuming even that out verdict might be in a different amount, we are loath to disturb verdicts for personal injuries on the ground that the amount is excessive. Cawood v. Earl Paige & Co., 239 Mich. 485. We do not substitute our judgment on this question unless a verdict has been secured by improper methods, prejudice or sympathy. Michaels v. Smith, 240 Mich. 671. No such showing has been made, nor were the verdicts so great as to shock the judicial conscience. Sebring v. Mawby, 251 Mich. 628.’ ”
In the case of Sebring v. Mawby, 251 Mich. 628, 629, this court said with approval:
“It has frequently been said by courts and text-writers that the award of the jury will not be dis turbed unless it is so great as to shock the judicial conscience, or unless it was induced by something outside of the evidence, such as passion or prejudice.”
There was testimony of a fracture of the skull, a brain injury, a disturbance in the central nervous system, painful injuries to other portions of the body, pain and suffering and permanent injury, in addition to medical expenses. The verdict and judgment for $5,000 is well within the range of personal injury damages disclosed by the record.
Judgment affirmed, with costs to appellee.
Chandler, C. J., and North, Starr, Wiest, Btttzel, Bushnell, and Sharpe, JJ., concurred. | [
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] |
Bushnell, J.
This is an appeal from a judgment entered in a negligence case upon the finding of the trial judge, sitting without a jury. The action was brought by Herman Chadwick as next friend of Mary Jane Chadwick, who was nine years of age at the time' she was injured.
About 6:00 p.m. on November 17, 1938, Mary was • struck by the right headlight of a car driven by defendant William Kempf. The accident occurred at the corner of Mackinaw and Andre streets in the residential section of the city of Saginaw, just as she had about reached the curb after crossing Mackinaw street.
Mary is a bright, intelligent child, well developed and mentally alert. She testified, according to the trial judge, “clearly and without equivocation.” She said that, before crossing Mackinaw street, she looked both ways and saw only one car, which was more than a city block away, and thought she had time to cross. She ran across the street and did not look again for this car- or any others.
Defendant testified that he did not see Mary before the accident. Skid marks extending for 106 feet on the pavement, observed by a police officer who arrived at the scene not over three or four minutes after the accident, indicated that defendant’s car had carried or dragged Mary 96 feet, and that the car had been moving at a speed of 35 or 40 miles per hour.
The trial judge found that Mary was not guilty of negligence as a matter of law and that her injuries were caused by the negligence of defendant.
The sole question presented on appeal is whether this nine-year-old child, under the circumstances in this case, was guilty of contributory negligence as a matter of law. Whether Mary was guilty of negligence as a matter of law depends, as was said in Clemens v. City of Sault Ste. Marie, 289 Mich. 254, upon the ‘ ‘ degree of care which may reasonably be expected from one under the same conditions, of the same age, sex, intelligence and judgment.” See, also, Dedo v. Skinner, 296 Mich. 299. Had Mary crossed the street without making any observations whatever, she probably would have been guilty of negligence. However, she observed defendant’s car more than a block away, and then exercised her judgment. She had a right to assume that defendant would operate his car at a lawful rate of speed, i.e., not over 20 miles per hour in a residential district, and, therefore, that she could cross the street with safety. Zylstra v. Graham, 244 Mich. 319, and Oakes v. Van Zomeren, 255 Mich. 372. See, also, Grant v. Richardson, 276 Mich. 151. “The rule is that unless the record in a case of this character is snch that men of reasonable minds would not differ, a question of fact is presented.” Swift v. Kenbeek, 289 Mich. 391. An examination of this record requires agreement with the conclusion of the trial judge, that this child was not guilty of contributory negligence as a matter of law.
The judgment entered upon the amended opinion of the trial judge is affirmed, with costs to appellee.
Chandler, C. J., and North, Starr, and Sharpe, JJ., concurred with Bushnell, J. | [
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Bushnell, J.
This is an appeal from an order granting plaintiff’s motion to strike those portions of defendant’s answer, entitled, “affirmative defense” and “recoupment.” Although not shown in the printed record, the files of this court contain plaintiff’s motion to dismiss this appeal because of defendant’s failure to secure leave and the subsequent denial of that motion.
Plaintiff declared on a promissory note for $3,243.20, dated 1939, claiming that the entire principal was due and payable and that defendant had not paid the note or the interest thereon. Although the declaration states that a copy of the note is attached as an exhibit, it is not included in the record. The note as set up in appellee’s brief does not bear any date except the year mentioned, and concludes with the following statement:
“This note is secured by a chattel mortgage made by the maker in favor of the payee hereof dated . . . 193. . .”
Plaintiff also declared on the common counts claiming an indebtedness of $5,000.
Defendant in its answer admitted the execution of the note, alleged payment of $202.70 thereon, but denied that plaintiff was entitled to a judgment in any amount whatsoever. Plaintiff having also declared upon the common counts, defendant answered these with a general denial. Defendant then added to its answer an “affirmative defense” and a plea of * ‘ recoupment. ’ ’
In the “affirmative defense,” defendant averred that in October of 1939 plaintiff agreed to cancel and rescind a “certain chattel mortgage agreement between them,” and “remove his air-conditioning equipment” from defendant’s premises and install, before the reopening of defendant’s hotel in the summer of 1940, proper equipment which would function to defendant’s satisfaction; that defendant would be under no obligation to make any payment to plaintiff until 30 days after the new installation and approval thereof, all of which plaintiff failed to perform, and, therefore, defendant is entitled to a judgment of no cause of action.
Defendant’s “affirmative defense” does not aver a connection between the claimed agreement to cancel and rescind “a certain chattel mortgage agreement” and the note sued upon. The transaction as therein stated appeared to the trial judge to be wholly foreign to the subject matter of plaintiff’s ac'tion and the “affirmative defense” was stricken as irrelevant and immaterial.
The plea of “recoupment” refers to a conditional sales contract made on June 9,1939, wherein defendant agreed to purchase from plaintiff and Tonn & Blank Company, alleged agents of plaintiff, an air-conditioning system, described in this plea in detail, for which defendant agreed to pay $3,868.20 as follows: $625 as down payment and the balance of $3,243.20 in 16 monthly instalments of $202.70 each. The plea avers cancellation of the conditional sales agreement and the execution of a chattel mortgage covering the air-conditioning equipment; sets up the failure of the equipment to operate satisfactorily, and plaintiff’s undertaking and efforts to remedy the defects.
Defendant asserts in this plea an implied warranty of fitness for a particular purpose, a breach thereof, and claims resulting damages of $10,000. Defendant also, claims damages by way of recoupment in the sum of $827.70 for moneys paid plaintiff with interest thereon.
Defendant’s plea of “recoupment” likewise fails to show any connection between the sale of the air conditioning system with an alleged warranty of fitness, and the note sued upon. Therefore, this plea as worded was also stricken as irrelevant and immaterial. This plea of recoupment is inconsistent with defendant’s denial of plaintiff’s right of action. Defendant cannot be heard to deny plaintiff’s cause of action and at the same time claim a recoupment arising out of the transaction upon which plaintiff’s suit is based. Morehouse v. Baker, 48 Mich. 335. However, plaintiff made no claim that defendant set up inconsistent defenses without pleading the same in the alternative. See Court Rule No. 17, § 6 (1933), and Robertson v. United Fuel & Supply Co., 218 Mich. 271.
The trial judge in a written opinion analyzed the answer and concluded that, in the absence of the instruments mentioned therein, and because of the inconsistent nature of defendant’s claims, it could not be held the “recoupment” arose out of the same contract or transaction against which the recoupment was pleaded, and, therefore, the damages claimed could not be said to have arisen out of a breach of the transaction represented by the note.
If defendant can show that the note sued upon was given in consideration of plaintiff’s sale of the air-conditioning system and that plaintiff warranted its fitness, then a plea of recoupment based upon a breach of that warranty would be proper in a suit brought on the note by plaintiff. Defendant must allege and prove that the sale, note and warranty all pertain to the same transaction. The fact that the note and chattel mortgage were substituted for the original conditional sales agreement does not of itself prevent recoupment as between these parties.
Defendant should be permitted, under 3 Comp. Laws 1929, §14144 (Stat. Ann. §27.838), to amend its answer, and the cause should be remanded for this purpose. In addition to the statute, see Court Rule No. 72 (1933); Craig v. Wright, 271 Mich. 166, 171; and Blake v. American Trust Co., 293 Mich. 618, 622.
The order of the trial judge is vacated and the cause is remanded with leave to amend the answer in accordance with this opinion and within the discretion of the trial judge, upon such terms as he shall deem just. Costs to appellee.
Chandler, C. J., and Starr, Butzel, and Sharpe, JJ., concurred with. Bushnell, J. | [
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] |
Bushnell, J.
Plaintiff, Fred P. Geib, prosecuted to successful conclusion a claim against the city of Grand Rapids, as a result of which defendant, Annie Graham, recovered a large sum of money. See Smith v. City Commission of Grand Rapids, 281 Mich. 235; Wylie v. City Commission of the City of Grand Rapids, 293 Mich. 571; Wylie v. City Commission of the City of Grand Rapids (In re Geib), 297 Mich. 365. H.e now seeks to recover additional compensation from the defendant despite our finding in Re Geib, which was a part of our determination in the last Wylie Case just cited. The circuit judge, being of the opinion that the entire matter had been fully determined in Re Geib, entered an order dismissing plaintiff’s action with prejudice. Mr. Geib seeks reversal on the ground that, since he had demanded a trial by jury, the court erred in dismissing his cause before taking proofs. He argues that he was thereby deprived of his day in court.
We cannot agree with Mr. Geib’s contention. The proceedings last had in this chain of litigation included his claim for attorney fees. Our opening statement in Re Geib, supra, was:
“This proceeding is one for the purpose of fixing the amount of attorney fees and distribution of funds impounded by the trial court.”
We expressly passed upon the questions of both an implied and express contract, saying:
“Our review of this record satisfies us that the facts and circumstances of the instant case wholly negative any implied contract on the part of either Annie Graham or the Thomas Graham estate that payment towards Mr. Geib’s fees or expenses should be made out of the fund decreed to each of these two litigants. An express contract is not claimed.”
Mr. Geib cannot successfully argue that In re Geib, supra, is not res judicata, but relies upon his claimed right to present all of his case before an order of dismissal can properly be entered. He cites our recent decision in Brachman v. Hyman, 298 Mich. 344. That case is distinguishable. There it was alleged that the prior judgment in a mandamus action, which was said to be controlling and res judicata, was procured as a part of a fraudulent conspiracy.
Determination of plaintiff’s claim that he was deprived of his day in court is controlled by the principle enunciated by Mr. Justice Cooley in Spicer v. Bonker, 45 Mich. 630. In that case a verdict was directed for defendant immediately after plaintiff’s counsel had concluded his opening statement. This court said:
“But if he observes due care, the circuit judge commits no error in taking the course that was adopted here. The plaintiff’s opening is in the nature of an offer of proofs, and the circuit judge directs a verdict for the defendant because, assuming the proofs to have been received, they fail to make a^ case. The trial is thereby shortened, and no wrong is done to any one. The circuit judge has an undoubted right, in any case, to advise the jury to return a verdict for the defendant, when the plain tiff gives or offers no evidence to establish any necessary part of his case. Kelly v. Hendrie, 26 Mich. 255.”
Any evidence that Mr. Geib might be able to produce cannot change the nature of his action. We decided the issues here presented in Be Geib, supra, and our determination there is res judicata here.
The order dismissing plaintiff’s cause “with full prejudice” is affirmed. Costs to appellee.
Chandler, C. J., and Boyles, North, Starr, Butzel, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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] |
Bushnell, J.
This action was brought by the administratrix of the estate of Stanley Shpakow, who was killed in a collision with a train of the Grand Trunk Railroad Company at a crossing in the county of St. Clair. Plaintiff’s decedent and Walter Skuratovieh were riding in an automobile which was being driven by Edward Siskow. All three of these men were killed in the collision. The trial judge, sitting without a jury, held that the railroad company was not liable and, in an opinion rendered on a motion for new trial, held that plaintiff’s decedent was a guest in the Siskow automobile and that Siskow’s estate was not liable. See 2 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446).
No error is assigned as to the holding with respect to the railroad company, but it is argued that the trial court erred in holding that Shpakow was a guest passenger. The testimony shows that Skuratovich and Siskow either owned or had an interest in the farm near Capac, Michigan, and that Shpakow was in the habit of frequently visiting the farm on week-ends. One witness testified that Shpakow had been there 60 or 70 times during the two years preceding the accident. On the day in question Shpakow went to the country near Flint, Michigan, with his stepson, Frank Gonsowsky, to pick mushrooms and, not finding any, went to the Siskow farm. While at the farm Siskow proposed that Shpakow accompany him and Skuratovieh to a nearby farm where they were going to look at a horse. Gonsowsky testified that Siskow said:
“Stanley, I want you to go, because Walter don’t ■know much about horses, and I don’t, and you know more about them since you handled them in the old country, so I want your opinion on whether the horse is worth the money that we intend to pay for it.”
There is some testimony to the effect that Shpakow wanted to go home because of a headache and only agreed to accompany Siskow and Skurato vich when Siskow said that the trip would only take a few minutes. The accident occurred after-the three men had seen the horse and were returning to the farm. There were no eyewitnesses to the accident except the employees of the railroad company and they were not called upon to testify.
In Cardinal v. Reinecke, 280 Mich. 15, the court held that the relation of host and guest did not prevail where the injured party was traveling in defendant’s car at the request of the defendant for the purpose of investigating the possibility of opening a beauty parlor for defendant’s daughter in an adjoining town. In Peronto v. Cootware, 281 Mich. 664, the court made a similar holding where plaintiff, the mother of defendant, was riding with defendant in his car not for her own pleasure or on her own business but in order to care for defendant’s brother’s wife who was ill, defendant’s brother having requested such service. The situation disclosed in the instant record is more like that found in Re Harper’s Estate, 294 Mich. 453, where the sociability element was held to be the dominant factor.
On the record before us the question of the existence of the guest relationship was at best one of fact. The trial judge, sitting without a jury, found this fact adversely to plaintiff.
It is suggested, however, that it is not clear whether the trial judge found that the guest relationship existed as a matter of fact or as a matter of law. The opinion does not state upon which ground decision was based. Assuming a question of fact was presented, we are governed by the general rule that, in the absence of a finding of fact by the trial court, we must assume that every finding of fact was made which was necessary to support the judgment, provided there is sufficient evidence in the record to sustain such finding. See 3 Am. Jur. p. 516, Ap peal and Error, § 954, and Warren v. Mosher, 31 Ariz. 33 (250 Pac. 354, 49 A. L. R. 1311). See, also, Court Rule No. 37, § 11 (b) (1933), and 3 Comp. Laws 1929, § 14265 (Stat. Ann. § 27.994).
There is sufficient evidence to support the findings of fact of the trial judge. See Eagan v. Edwards, 294 Mich. 260.
The judgment for defendant is affirmed. Costs to appellee.
Chandler, C. J., and Boyles, North, Starr, Butzel, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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Butzel, J.
Major Lonzo F. Koon died on November 3, 1939, at Richmond, Michigan. For 18 years prior to his death, he had resided for a larger portion of the time in the same home in Detroit, Mich igan, with defendants Velma, Charles and Clayton Doan, and Myrna Doan Brophy, and enjoyed the closest friendship with them. He was almost a member of the Doan family. At the time of his death, he was engaged to be married to Velma Doan. He often visited the home that formerly belonged to defendants’ parents at Richm'ond, made it his home while there, and died there suddenly. The lot in the cemetery at Richmond had become the property of defendants upon the death of their mother, in whose name the title stood. Major Koon had visited this cemetery with defendants and expressed his admiration of it as a burial place. Upon his death, his sister in North Carolina was notified by wire. She, together with another sister, two nieces, and a.nephew attended the funeral. It was held with religious services. There were also military services conducted by soldiers from the United States Army Post at Self ridge Field. Defendant Velma Doan paid the funeral expenses, a part of which was repaid to her later on out of a pension check for the Major. One of the defendants testified that none of them knew that decedent had a divorced wife or children; none of the latter had attended the funeral. On December 26, 1940, plaintiffs, children of decedent, filed a sworn bill of complaint asking that they be permitted to disinter the body, cremate it and ship the ashes to California for burial in a cemetery where other children of deceased were buried. Plaintiffs reside in the west. A witness for defendant largely corroborates the answer filed, signed and sworn to by all defendants. It affirmatively sets forth that, to the knowledge of defendants, none of the plaintiffs either saw or visited their father, nor evidenced any interest in him over a long period of years prior to his death, and that the defendants did not know that deceased had a former wife or children. The testimony shows that they had no word from plaintiffs at least np to the time of the filing of the bill of complaint.' Plaintiffs filed no reply to this answer.
The trial judge refused to permit the disinterment, and in his decree stated that plaintiffs might freely visit the grave. They did not allege that this right had been previously denied them. In view of our decision, we refrain from discussing the informality or insufficiency of the pleadings and proofs, or whether plaintiffs even made out a case as no such claim is made in the statements of questions involved in the respective briefs, though the defendants alluded to it in the body of their brief.
Equity had proper jurisdiction. See Keyes v. Konkel, 119 Mich. 550 (44 L. R. A. 242, 75 Am. St. Rep. 423); Wales v. Wales, 21 Del. Ch. 349 (190 Atl. 109); Yome v. Gorman, 242 N. Y. 395 (152 N. E. 126, 47 A. L. R. 1165).
Other questions involved here have never been passed upon by this court, though there is no dearth of decisions from other States. Without reviewing them, we may state that where decedent has left no instructions as to burial, and the body is yet unburied, the wishes of the widow and children as a rule are paramount. Wales v. Wales, supra. However, after a body has been buried, the courts will not disturb the quiet of the grave unless there are good reasons to permit such disinterment. See Yome v. Gorman, supra, and the cases therein cited, including Pettigrew v. Pettigrew, 207 Pa. 313 (56 Atl. 878, 64 L. R. A. 179). In the Tome Case, the court said:
“The wishes of wife and nest of kin are not always supreme and final, though the body is yet unburied. * * * Still less are they supreme and final when the body has been laid at rest and the aid of equity is invoked to disturb the quiet of the grave. * * * There will then be /due regard to the interests of the public, the wishes of the decedent, and the rights and feelings of those entitled to be heard by reasons of relationship or association.”
In Pettigreio v. Pettigrew, supra, it was said:
“Whether the decedent’s directions are regarded as paramount or not it is agreed in all the cases that they are entitled to respectful consideration whenever the question comes into court.
“In the absence of a surviving husband or widow the wishes of the next of kin are entitled to be considered with varying weight according to the nearness of the kinship and the personal relations between them and the decedent. A more distant relative, or even a friend, not connected by ties of blood, may have a superior right, under exceptional circumstances, to one nearer of kin, as was held in Scott v. Riley, 16 Phila. 106. # * * A reinterment involving a removal to another locality stands upon a somewhat different footing, and has been the cause of most of the litigation on the subject. * * # The presumption is against a change. The imprecation on the tomb at Stratford, ‘Curst be he that moves my bones,’ whether it be Shakespeare’s own or some reverent friend’s, expresses the universal sentiment of humanity not only against profanation, but even disturbance. When a case comes into court, the chancellor will regard this sentiment, and consider all the circumstances in that connection. ’ ’
Whether disinterment should be permitted or not depends upon the circumstances in each individual case. See annotations in 21 A. L. R. 651 and 33 A. L. R. 1432. As a rule, the desire of decedent, as expressed by his words and actions, should be respected. Goldman v. Mollen, 168 Va. 345 (191 S. E. 627); Cordis v. Cordts, 154 Kan. 354 (118 Pac. [2d] 556). Decedent’s real home for the 18 years prior to his death was with defendants. The record does not show that he had any contact with plaintiffs during this time. They did not seem to evince any interest in him or he in them. The very fact that they waited over 13 months after his death before taking any action and without any explanation for their delay is indicative of a lack of interest or association. Decedent was almost a member of defendants’ family for 18 years. He would have been married to one of them had not death intervened. He was properly buried and, in all probability, where he wanted to be.
The circumstances in this case are such that we find no cogent or compelling reason to disturb the lower court’s decree, which is affirmed, with costs to defendants.
Chandler, C. J., and Boyles, North, Starr, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit.
See Court Rules Nos. 67, 68 (1933).—Reporter. | [
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Bushnell, J.
On June 25, 1939, plaintiff, Mrs. Margaret Girard, and her husband, George Girard, residents of Chicago, and their two children, together with a friend, Mrs. Klingen, and her two children, drove to St. Joseph, Michigan, for the purpose of attending a softball game at defendant’s ball park. It was still daylight when they arrived at the park and plaintiff’s husband asked one of the uniformed policemen at the gate to place his car in defendant’s parking lot where he would be able to get out ahead of the crowd, as he wanted to drive back to Chicago. Girard was directed to a place in the northeast corner of the lot, where he parked his automobile facing west with the rear end of the car about three or four feet from a line of posts which separated the east line of the parking lot from a railroad track. These posts were about 10 or 12 feet apart. Girard had been in this parking lot “at least two or three dozen times before,” but had never parked his car in this particular spot.
When the party left the car about 7:00 or 7:30 p.m., no other automobiles were parked to the north and none to the west nearer than 50 feet. Girard left the ball park with his family about 9:45 p.m. to get into his car. As he tried to get the car in motion he experienced difficulty because the ground was soft, and he asked his family and guests to step out and assist him in guiding the car. It was necessary to “jockey” the car around in order to get it going. Mrs. Girard stood at the right-hand side of the car near the rear as her husband got it started. After he had driven the car towards the north about 12 or 15 feet he heard the children scream, “Mother is down.” Girard got out and found his wife lying on the ground with a heavy, rusty wire wrapped around her left ankle. Examination disclosed that this wire had caught underneath the car and was broken so that one piece was running north and the other was running south. The wire running north was fastened to the northernmost post, and the piece running south was loose.
Plaintiff was so severely injured that she was taken to a hospital, where it was discovered that tendons in her foot had been severed. The next day, Mrs. Girard was removed to Chicago where she underwent an operation which required her to remain in the hospital for 25 days. After returning home, she was confined to her bed for almost three weeks. According to the medical testimony the permanent loss of motion in flexion of the foot will be about 25 per cent.
Plaintiff’s husband testified that defendant’s president, Adler, said — “the wire had been put up there to line up some posts; that it had been two or three weeks ago they had used it to line up these posts.”
At the close of plaintiff’s testimony, the court granted defendant’s motion for a directed verdict, giving as the reason “a total lack of evidence that the defendant caused this wire to be inside the parking lot or that they knew that it had gotten inside the parking lot until after the accident itself had happened.”
In arriving at this conclusion, the trial judge cited Beach v. City of St. Joseph, 192 Mich. 296; Evans v. S. S. Kresge Co., 290 Mich. 698, 703; and Oppenheim v. Pitcairn, 293 Mich. 475.
On an appeal from a directed verdict for defendant we must consider plaintiff’s evidence in its most favorable light.
In the instant case there is testimony that the defendant had used the wire two weeks previously to line up the posts. Prom this an inference could properly be drawn that defendant had left the wire where it might cause an injury, and this presented a question of fact for the jury.
We have so recently considered the duty to keep premises safe for invitees in Hulett v. Great Atlantic & Pacific Tea Co., 299 Mich. 59, that we do not fe.el it is necessary to repeat all that was said in that case. Defendant was not an insurer of the safety of plaintiff, hut it was its duty to use reasonable care to provide a reasonably safe place for plaintiff as an invitee on its premises.
The trial court was in error in granting defendant’s motion for directed verdict and should have submitted the case to the jury.
The judgment entered upon a directed verdict is vacated and the cause remanded for a new trial. Costs to appellant.
Chandler, C. J., and Boyles, North, Starr, Wiest, Butzel, and Sharpe, JJ., concurred. | [
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Sharpe, J.
This is a chancery suit for an accounting arising out of the construction of a house for plaintiffs.
On September 1, 1939, plaintiffs entered into a contract with Abram M. Fisher, doing business as Fisher & Weber, wherein it was agreed that Fisher would build a house for plaintiffs for the sum of $6,500, payable $1,000 upon the execution of the contract and the balance of $5,500 when the house was completed, which event was to occur on or before January 1, 1940. The contract contained the following provision:
“If financed under Federal housing act insurance mortgage plan, upon completion of second F.H.A. inspection, owner agrees to forthwith execute mortgage against stated premises and/or necessary instruments which may be required and draw all sums available and pay same to the builder to apply on account of the contract price.”
Plaintiffs made an application for a Federal housing administration insured mortgage in the sum of $5,500 for the purpose of financing the building. This application was submitted to Melvin F. Lanphar & Company which was an approved F.H.A. mortgagee. On November 29, 1939, plaintiffs gave the Lanphar company their promissory note for $5,500 and a mortgage for the same amount on the property to secure the note. On the same day, plaintiffs authorized the Lanphar company to make disbursements:
“For payment of costs, prepaid items and moneys, due our builder for the construction and erection of our residence upon said property; and all sums so advanced are to be charged against said mortgage loan.” ,
Sometime during the month of November, 1939, defendant, Capitol City Wrecking Company, began making delivery of materials for the construction of the house; and on November 10, 1939, defendant company sent to plaintiffs notices of intention to claim a lien.
A short time later, defendant and the Bank of Lansing entered into certain transactions whereby defendant borrowed $2,750 from the Bank of Lansing and gave its notes to the bank covering this amount on November 29, 1939, and December 6, 1939. This money was credited by the Bank of Lansing to a “construction account” of the Service Lumber Company, a separate corporation whose officers and stockholders were the same as the defendant. From this $2,750, which defendant borrowed from the bank, $1,633.89 was paid to Fisher, the contractor who was building the house, the sum of $500 was credited to defendant’s own account for materials which it had furnished to the contractor, and substantially the full balance of the $2,750 was paid to several parties who had furnished labor and materials for the job.
Plaintiffs and the contractor, Fisher, got into a dispute over the manner in which the house was being constructed, and the contractor never completed the house. The Federal housing administration commitment expired and on March 9, 1940, Melvin F. Lanphar & Company indorsed the Ginsberg1 note to the Bank of Lansing and also assigned the mortgage to the bank, which had previously advanced to defendant the sum of $2,750.
On March 15,1940, defendant filed a claim of lien for $2,335.88, which is substantially the amount it claims is due it for materials furnished on the job. On May 24, 1940, the Bank of Lansing assigned to defendant the mortgage.
In June, 1940, plaintiffs filed a bill of complaint in the circuit court of Ingham county to cancel the construction contract with Fisher and alleged that in addition to the cash paid Fisher, they had executed a mortgage for the purpose of obtaining a construction loan in the amount of $2,750 which sum had been paid for the account of plaintiffs to the contractor, subcontractors, materialmen and laborers.
On August 8, 1940, defendant, as assignee of tbe mortgage, began proceedings to foreclose tbe mortgage claiming that the principal and interest then due tbe defendant was $5,212.57. This amount comprised tbe following items: $2,749.90 wbicb defendant bad borrowed and disbursed; $2,331.58 for materials furnished; and $131.09 interest.
In October, 1940, plaintiffs filed tbe bill of complaint in this suit in wbicb it is admitted that there is due defendant from plaintiffs tbe sum of $2,750 under tbe mortgage.
Tbe trial court held that tbe mortgage was given to secure advancements authorized to be made by Lanpbar company under tbe collateral authorization executed by plaintiffs; that tbe authorization was given tbe Lanpbar company, but not to future holders of tbe mortgage; that since tbe Lanpbar company bad made no advancements for tbe benefit of tbe mortgagors (plaintiffs), there was no consideration for tbe mortgage; however, on tbe principle that one seeking equity must do equity, tbe mortgage is security for $2,750 because plaintiffs bad approved tbe disbursement of $2,750 by taking credit therefor in tbe action against Fisher, tbe contractor. As to tbe balance of defendant’s claim, tbe trial court held that defendant would have to resort to tbe lien law. Both parties appealed, but later plaintiffs withdrew their cross appeal.
In tbe case at bar, tbe trial court said:
“Plaintiffs having come into a court of equity are required to do equity. They have approved tbe advancements that were made in reliance upon tbe mortgage and benefited by them and they may not now deny their liability under tbe mortgage for tbe $2,750 advanced by defendant.”
Plaintiffs having withdrawn their cross appeal, the validity of the mortgage to the extent of $2,750 is not now before onr court.
It is urged by defendant that the mortgage is valid to the extent of the amount named therein. It is to be noted that the note and mortgage executed by plaintiffs recite that a loan of $5,500 has been, made by the Lanphar company. If the loan was actually made by the Lanphar company, it would constitute a debt. It is permissible to show that actually no consideration passed, but that the mortgage was to cover future advances.
Plaintiffs rely upon Ladue v. Railroad Co., 13 Mich. 380 (87 Am. Dec. 759), to establish the principle that to create a valid mortgage, there must exist a debt or liability or some binding contract for which the mortgage is security. In that case we established the following principles: that a mortgage, being a mere security for the debt or liability secured by it, the debt or liability secured is the principal and the mortgage but an incident or accessory; that anything which transfers the debt, transfers the mortgage with it; that an assignment of the mortgage without the debt is a mere nullity; and that payment, release, or anything which extinguishes the debt, extinguishes the mortgage. We there said:
‘ ‘ These propositions being established, the necessary result is that the mortgage instrument, without any debt, liability or obligation secured by it, can have no present legal effect as a mortgage or an incumbrance upon the land. It is but a shadow without a substance, an incident without a principle; and it can make no difference in the result whether there has once been a debt or liability which has been satisfied, or whether the debt or liability to be secured has not yet been created. * * # At most, the difference is only between the nonentity which follows annihilation, and that which precedes existence.
“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.
“The mere recording of the instrument would not make it a mortgage or incumbrance in legal effect, if it were not so before, nor give it a greater effect as to third persons than it had between the parties.”
In the case at bar, no money was advanced by the Lanphar company, nor is there any evidence that the Lanphar company promised or agreed to pay the materialmen and secure by the mortgage instrument any money so disbursed.
Plaintiff Albert Ginsberg testified:
“Q. * * * You didn’t expect when you signed this mortgage * * * Lanphar & Company or Bank of Lansing or anybody was going to pay you $5,500!
“A. No.”
Herman Sable, secretary of the Lanphar company, testified:
“"We did not at any time agree to furnish construction money from the proceeds of the loan.”
It would appear that the arrangements between the parties must necessarily have been that if and when the Lanphar company paid any obligation owing to the contractor, repayment to the Lanphar company by the Ginsbergs was to be secured by the mortgage. It would follow that the mortgage instrument could not create a valid, subsisting lien on the property until the mortgagee did pay such an obligation owing to the contractor. Lanphar company never having paid anything by virtue of the mortgage instrument, such instrument ,never created a lien upon the property. Citation of authority is unnecessary to establish the principle that if the Lanphar company had no lien, it could assign none.
It is urged by defendant that the authorization inured to its benefit. But it appears that the Lanphar company did not assign the authorization to the bank; and that defendant delivered all materials before it acquired the mortgage. It does not seem possible that the materials were delivered in reliance upon the authorization in view of these facts. Moreover, defendant’s ledger shows that the account for the materials was with the contractor. These facts are fatal to the theory advanced by defendant.
Defendant also urges that it should recover under the doctrine of unjust enrichment. The facts in this case do not support such a theory. It is an established fact that defendant dealt solely with the contractor; its accounts were with the contractor. It sent statements to the contractor and did not send any statements to the Ginsbergs. The contractor did not represent himself to be the agent of the Ginsbergs, nor did he have any authority to pledge the Ginsbergs’ credit with defendant. In view of these circumstances, it cannot be said that the Gins-bergs were unjustly enriched at the expense of the defendant.
Because of the withdrawal by plaintiffs of their cross appeal, the mortgage to the extent of $2,750 may stand as a valid mortgage against the property. It follows that defendant’s claim under the mortgage in excess of the above amount must be denied.
The decree of the trial court is affirmed, with costs to plaintiff.
Chandler, C. J., and Boyles, North, Starr, Butzel, and Bushnell, JJ., concurred. Wiest, J., did not sit. | [
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] |
Butzel, J.
Defendant was convicted of the crime of sodomy, the victim being a boy of 12 years of age. Defendant theretofore had never been charged with any crime. He had occupied some responsible positions. The conviction was based exclusively on the word of the boy against that of defendant. A jury trial was waived. There was some confusion over the date of the offense. The information charged it took place on January 15, 1940, and it was finally amended to read on or about April 10, 1940, to conform with the testimony. No" objection to the amendment was made at the trial by defendant. The claim of error is not stressed. It is without merit.
The boy testified very fully as to the commission of the crime. Defendant denied it absolutely. They lived in the same apartment building where defendant claimed that he had trouble with the boy because of the latter’s insistence in repeatedly entering plaintiff’s apartment without leave to examine a ship model owned by plaintiff.
After the judge asked the boy some further questions, he asked the defendant’s attorney if he had any objection if he talked to the mother privately. The answer was, “ No. ” After the judge had spoken to the mother, he asked defendant’s attorney whether he had any objection if he referred the matter to the psychopathic and probation departments. The attorney asked him whether it would be without finding and when the judge so assured him, he answered, “No objection.” When the court then asked, “I can read the reports before I make a finding 1” defendant’s attorney replied, “Oh, yes.”
The case was thereupon adjourned and referred to the psychopathic and probation departments. On the adjourned date, at the opening of court, the judge stated that the case had been continued without finding upon the stipulation of defendant’s counsel that the case could be referred to the probation and psychopathic departments, without findings, and that the court could read their findings, also that the case had been adjourned because of other cases pending. He then stated that he found the defendant guilty and that as he had the probation report, he would impose sentence at once. The attorney for the defendant thereupon entered the court room and moved for directed verdict for defendant, on account of the variance in time and because of the lack of credibility of the boy who had changed his testimony twice as to the date on which the crime had been perpetrated, also that in view of the discrepancies in the boy’s various statements, there was reasonable doubt. The attorney also stated that he was not familiar with the report of the psychopathic department, but that it did not concern him. The court thereupon stated that he had considered the matter very carefully and found the defendant guilty beyond a reasonable doubt. He thereupon sentenced defendant to from 1 to 15 years’ imprisonment with the recommendation of 1 year.
It is elementary that a person may not be convicted by testimony taken outside the court room, when defendant is not present to confront the witnesses. Reports of the psychopathic and probation departments were not introduced. A report of the psychopathic department on the question of a respondent’s sanity is inadmissible in view of his right to be confronted with the witnesses against him. People v. Saccoia, 268 Mich. 132. Nothing in the nature of testimony may be taken in the absence of defendant. People v. Raider, 256 Mich. 131.
Where the state of the evidence is such that the uncorroborated testimony of the prosecuting witness and that of defendant are in direct conflict upon the very issue of fact the resolution of which determines guilt or innocence, and the trier of the facts, on his own initiative, requests permission of defendant’s counsel to consult opinion evidence (a psychopathic examination and report), consisting of conclusions of fact drawn by one (the court psychiatrist) who was not an eyewitness of the alleged crime, leaving defendant’s counsel faced with the embarrassing dilemma of either compelling respect for his client’s constitutional rights to be confronted by the witnesses against him from the judge as trier of the law, but simultaneously running the risk of antagonizing and arousing the suspicion of the same judge as trier of the facts, the conclusion is irresistible that the judge did entertain at least a reasonable doubt of defendant’s guilt. In criminal cases, guilt must be proved not merely by a preponderance of the evidence but beyond a reasonable doubt. We limit decision herein to the special and peculiar set of facts appearing in this case, and expressly disavow any intention of establishing a precedent to be followed in other cases, where not all the elements of this case are present. Subject to such limitations, we feel compelled to hold that this defendant was not confronted with the witnesses against him and therefore did not have a fair trial.
The respondent was not represented at the trial by his present attorney. His former attorney, by his suggestion to refer the case to the probation department, was largely responsible for the irregular procedure that followed.
Judgment reversed and new trial ordered.
Chandler, C. J. and Boyles, North, Starr, Wiest, Bushnell, and Sharpe, JJ., concurred.
See Const. 1908, art. 2, § 19.—Repoeteb. | [
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Bird, J.
Plaintiffs entered into a written contract with defendant in June, 1914, which gave them the right to sell defendant’s motor cars in United States and Canada, for a period commencing on July 1, 1914, and ending on June 30, 1915. Plaintiffs entered at once upon the work of selling cars, establishing agencies and obtaining contracts from dealers, and at the same time expended in various forms of advertising the sum of $5,037.06. On September 16, 1914, defendant wrote plaintiffs the following letter, canceling the contract:
“In consideration of the fact that the present 4-cyl-inder model is moving so slowly that we are unable to go ahead on our new models, and it is necessary for us to move cars in order to have income for our business, and inasmuch as we feel you are not financially strong enough to push the sale of the cars as they should be pushed, we have decided to resume the selling of the cars direct.
“We, therefore, formally cancel the contract entered into between us on June 22, 1914.”
In justification of its course in this respect defendant relies on the following provision of the contract:
“Should general sales managers violate any of the covenants of this agreement, or their financial condition becomes such that in the opinion of the company they would be unable to perform the terms of this contract, the company hereby reserves the right, at its election and without making itself liable in any wise to any claim, or action of damages, or waiving or affecting any of its then existing rights against the general sales.managers, to cancel and terminate this agreement on giving the general sales managers written notice by mail of its election, in which case the rights of the general sales managers, under or in any way arising out of this agreement, shall be terminated or canceled.”
Plaintiffs then brought this suit to recover damages for a wrongful and fraudulent cancellation of the contract, and obtained a judgment in the sum of $5,-073.50. Defendant assigns several errors which it claims should reverse the judgment.
Counsel appear to agree that the contract in question comes within the class of contracts where the fancy, taste, sensibility or judgment of the promisor are involved, and that when-the right of decision is once exercised by the promisor it cannot be questioned except on the ground of bad faith or fraud. It seems also to be conceded that the only question open upon this phase of the case is whether defendant actually entertained the opinion that plaintiffs were not strong enough financially to carry out the terms of the contract. These concessions of counsel are in accord with the conclusions reached in the following cases: Wood Mowing Machine Co. v. Smith, 50 Mich. 565; Isbell v. Anderson Carriage Co., 170 Mich. 304; Schmand v. Jandorf, 175 Mich. 88; Hutton v. Sherrard, 183 Mich. 356; Garlock v. Motz Tire & Rubber Co., 192 Mich. 665.
But defendant at this point insists that there was no proof of any fraud or bad faith on its part, and, therefore, the trial court should have directed a verdict in its behalf as requested. Considerable testimony was taken bearing upon this issue. It was shown that in the opinion of Mr. Hupp, who had the management of defendant’s business, that cars were not moving on to the market as' fast- as they should; that plaintiffs were lacking in effort to find buyers, and were not spending sufficient money in advertising to make the sales a success, and that on one occasion, a draft made against a car shipped to Canada remained for several days unhonored by plaintiffs. On the other hand, plaintiffs insist that they spent upwards of $5,000 in advertising; that they established agencies and secured contracts with established agencies and succeeded in making contracts for 1,257 cars, which were approved by the defendant. That at no time did defendant express any dissatisfaction until the letter of cancellation but on several occasions Mr. Hupp expressed his •''satisfaction as to the progress of affairs. It was further shown that the father of the plaintiff Morris assured Mr. Hupp when the contract was made that he would back plaintiffs to the amount of $50,000, and it appeared that he was still willing to do so when the . contract was canceled. Upon the question of fraud and bad faith the facts of this case are not unlike those in the case of Hutton v. Sherrard, supra. We there held the facts presented an issue for the jury and we think a like holding should be made on this testimony.
Defendant’s comment on the measure of damages given to the jury is that— '
“the trial court turned the jury loose in a realm of speculation and that there was no evidence in the record to form a basis for an intelligent determination of the jury as to the measure of damages under the rule laid down by the court.”
As is frequently the case the actual damages suffered by plaintiffs were somewhat difficult of ascertainment, but this fact does not furnish a reason for denying all recovery for prospective profits, if there can be found in the testimony a reasonably certain basis for computing them. The period for which the contract should be in force was limited and definite. The number of cars which the plaintiffs agreed to purchase was definite. The profit of plaintiffs upon each class of car was definite. The amount of business done by them in- the two and one-half months which they had operated under the contract was definite and ascertainable. The number of cars sold by defendant during the balance of the contract year was shown. The number of agencies éstablished was shown. The number of cars contracted for and with whom contracted were shown. It was fuither shown that the general demand for gasoline motor cars in the country in 1914 outran the supply up to July-T. With this and other like data before the jury it was"\ proper to submit to them the question as to what, if anything, plaintiffs had lost by being deprived of the fight to complete their contract. Wakeman v. Manufacturing Co., 101 N. Y. 205. See Mueller v. Mineral Spring Co., 88 Mich. 390; Oliver v. Perkins, 92 Mich. 304; Hitchcock v. Knights of Maccabees, 100 Mich. 40.
-The difficulty of ascertaining with reasonable certainty plaintiffs’ damages under this testimony would be no greater than it frequently is in determining future damages in personal injury cases or how much an employee had been damaged by reason of being wrongfully discharged.
George Morris, father of plaintiff Morris, was permitted to testify over defendant’s objection that he was present when the contract was made and that he assured Mr. Hupp that he would back the plaintiffs to the extent of $50,000 in the project; that he was then able to do so, and that there had been no change in his financial circumstances in the meantime. This was objected to on the ground that the witness was not a party to the contract and was not legally obligated to make good any default of plaintiffs. Keeping in mind that the issue was whether defendant, as a matter of fact, entertained the opinion that plaintiffs were unable to carry out the terms of the contract, we think the testimony was competent as bearing upon the state of mind of defendant with respect to plaintiffs’ financial ability to do what they promised.
Plaintiffs offered in evidence the contracts which they had made with motor car dealers. These contracts in form are, in part, as follows:
“1. In consideration of an order for two Monarch, cars, placed by the dealer with the company at net prices or discounts hereinafter specified, or any additional specifications made and accepted hereunder, the company grants to the dealer the right to sell Monarch cars, as hereinafter provided, in the following territory, viz.: * * *
“2. The above mentioned cars, in models specified shall be delivered as nearly as possible to table, contingent on delays growing out of strikes, fires, accidents, or other causes beyond control, of company and as prior orders of other dealers and the business of the company will permit.
List Price. Models. Number SCHEDULE, of Cars. June July Aug. Sept. Oct. Nov. Dec
$1400.00 Sixes 35 1 3 3 1 1
$1000.00 Fours 50 2 3 3 2 2
$675.00 Light Monarch 100 12 6 6
List Price. Models. Number of Cars. SCHEDULE. Jan. Feb. Mar. Apr. May June
$1400.00 Sixes 35 1 1 6 6 6 6
$1000.00 Fours 50 2 2 9 9 8 8
$675.00 Light Monarch 100 3 20 20 20 10
“ (Specifications and instructions for the shipment of each monthly allotment of cars must be given company by dealer thirty days in advance. If such specifications and instructions are not in the hands of company thirty days prior to the above monthly delivery table, such failure on the part of the dealer acts as a cancellation of this entire agreement at the election of the company.)”
It not clearly appearing that the vendees in these contracts were obligated to take the number of cars indicated in the schedule defendant’s counsel undertook to show, upon cross-examination of the plaintiffs, the construction placed upon the contracts by the parties. Failing in this effort by reason of the objection of counsel, they then requested the court to construe the contracts in that respect. This the court declined to do saying that the contracts were received for the purpose of showing what plaintiffs had done toward a compliance with their own contract. They were clearly admissible for this purpose but once admitted a construction should have been placed upon them as to whether they constituted binding sales. Whether 1,257 cars had been sold on contracts which would amount to binding sales was important, not only upon the main question, but upon the question of damages. It was argued to the jury that plaintiffs had sold 1,257 cars upon contracts which had been approved by the defendant, whereas, it is insisted, the contracts upon their face do not appear, to be binding contracts to take the number of cars specified in the schedule, but simply the right to purchase a certain number of cars at certain stipulated prices. If the contracts were to be used by plaintiffs upon which to base the argument that 1,257 cars had been sold by plaintiffs, a construction of them in this respect should have been given, as requested by defendant. For the failure of the trial court in this regard the case must be reversed, and a new trial ordered, with costs to the defendant.
Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Bird, J.
Ostrander, C. J.
There was some testimony tending to prove that when the contract in question was made plaintiffs’ financial condition and the source from which they might and did expect assistance if any was required were disclosed to defendant’s officers. The contract provision for cancellation is, upon this subject,—
“or their financial condition become such that in the opinion of the company they would be unable to perform the terms of this contract.”
The letter of cancellation gives inore than one reason for cancellation. One is that the four-cylinder model was moving slowly, and another,
“Inasmuch as we feel that you are not financially strong enough to push the sale of the cars as they should be pushed.”
If, as the testimony tends to prove, the plaintiffs were as strong financially when this letter was written as they were when the contract was made, less, perhaps, the sums they had expended in advertising, it would seem, in the absence of contradictory testimony, that there was some ground for a conclusion that the reason given for canceling was not a good faith reason. The fact that a draft drawn against plaintiffs was not promptly met would be a circumstance, of course, to be considered by the jury and to be explained. I cannot say there was not testimony affecting the good faith of the defendant in assigning the reasons for canceling the contract. Assuming that the plaintiffs carried the burden upon this point to the satisfaction of the jury, the question of the damages sustained by plaintiffs is a difficult one. It is .plain, I think, that they cannot recover the sum laid out by them in advertising. It is equally plain that neither the order for cars given by plaintiffs and stated in the contract nor the orders secured by them were, or were considered to be, binding obligations. The form for the orders was supplied by defendant, the orders themselves approved by defendant. But they furnish.no evidence that plaintiffs would have completed sales of so many cars. The number of cars which defendant sold during the contract period would be better evidence of what plaintiffs would have done if the contract had not been canceled. Assuming that the contract was wrongfully canceled, I think defendant cannot urge, at least not without testimony to support the contention, that plaintiffs would not have sold as many cars as defendant did sell in the described territory, the prices being maintained, and there being ■ no considerable change in method of selling. Plainly, plaintiffs cannot urge that without advertising, without expense to themselves, they could have sold as many cars as defendant did sell. And if it appears that the expense of selling equalled the commissions engaged to be paid, there would be no profit to them.
I concur in reversing the judgment, but am of opinion that the recoverable damages, if there were any, must be worked out upon the lines I have indicated.
Moore, Brooke, Stone, and Kuhn, JJ., concurred with Ostrander, C. J. | [
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Brooke, J.
Bill for specific performance. Plaintiff ■is the daughter of defendant. She is the mother of three children, all of whom are married. She lives with her husband. Defendant is 86 years of age, a widower, and has two children living besides plaintiff. He had lived for upwards of 50 years on a farm near Saline. Plaintiff and her husband resided in Ypsilanti. In June, 1911, he purchased a house and lot in Ypsilanti, paying therefor the sum of $3,500, and permitted the plaintiff and her family to go into possession thereof. The parties are in agreement upon the following facts: That defendant was to purchase and pay for the house in question; that plaintiff was to be permitted to occupy it, paying him five per cent, interest on the amount of the investment as well as taxes, insurance, and repairs. It is plaintiff’s contention that her father agreed to execute a deed of said premises to her to be, placed in escrow beyond the reach of either of them, but deliverable to her at his death. This defendant denies. He says he never agreed to deed the property to her, but that in the fall of 1911 he actually did make a deed from himself to her covering the premises and left it with a Mr. Curtis for delivery to her at his death. The deed remained on deposit at the Citizens’ Bank at Saline from September, 1911, until 1914 or 1915, when defendant called for it, secured possession of it and destroyed it. He had been rooming and boarding with his daughter for some time but finally such differences arose between them that he ceased to board with her although he continued to room in the house up to the time of the trial. After the destruction of the deed and in May, 1917, defendant sold the place on land contract to a Mr. Wilber for $4,700 and Mr. Wilber advertised it for sale. Speaking of this contract, defendant testified:
“It was not a bona fide contract, but he has paid enough to bind the bargain.”
At this time plaintiff had been in possession of the premises nearly six years, had expended several hundred dollars thereon for repairs and had paid taxes and insurance thereon in accordance with the agreement. She had likewise paid to her father the interest agreed upon until the trouble arose. The question presented is whether the defendant shall be compelled now to execute a deed to plaintiff to become operative at his death, conditioned upon her carrying out the contract so far as its terms impose duties or obligations upon her.
The learned circuit judge who heard and saw the witnesses entered a decree compelling defendant to execute said deed upon the condition that plaintiff pay to him five per cent, per annum upon the sum of $3,-500; that she keep the dwelling house insured in the name of the defendant in the sum of $2,500, and pay all taxes within 30 days and keep said dwelling house in good repair.
After a careful examination of this record we are disposed to conclude that the learned circuit judge reached a proper result. The statute, 3 Comp. Laws 1915, § 11979, authorizes specific performance in case there has been part performance of an oral agreement. We have no doubt that the agreement as recited by plaintiff and her witnesses was made and that there has been such performance on her part as to warrant the court in ordering specific performance thereof. Friend v. Smith, 191 Mich. 99, and cases cited therein.
The decree of the court below is in all things affirmed, but without costs.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Steere, J.
Plaintiff’s bill is filed to enforce specific performance by defendant of the following option contract for the purchase of 37.95 acres of land, called the “George” homestead, situate on the “Miller road” beyond the westerly city limits of Detroit, in the township of Springwells:
“This contract, made this 22d day of May, A. D. 1915, by and between Mary Schuman, Catherine Haag, Caroline George and John George, children of Martin George, deceased, and Emma George Bull, Ada George Poet, Abbie George Reese and Robert George and Margaret George, his wife, children of Henry George, deceased, and grandchildren of the said Martin George, deceased, as parties of the first part and Frederick E. George as party of the second part, Witnesseth;
“That the said parties of the first part in consideration of the sum of one ($1.00) dollar, to them and each of them in hand paid by the party of the second •part, do hereby agree that they and each of them shall and will at any time within two years from the date hereof, at the written request of the said party of the second part, execute and deliver to him, the said party of the second part, or to any persons as he, the said party of the second part shall direct in writing, a good and sufficient warranty deed of all his, her or their interests in and to the following described land situate in the township' of Springwells, and described as (legal description of the land) for the sum of one thousand ($1,000) dollars, an acre, as their various interests in said land appear, payable as follows: One-half of the amount due each and every one at the time of conveyance and the remaining one-half within three years from date of conveyance.
“And the said parties of the first part do hereby further agree that they shall and will not within the period of two years from date hereof sell, convey, mortgage, or otherwise encumber the said land or any part thereof or do, or permit to be done, any act or deed to diminish or encumber the title to said land.
“It is agreed by and between the parties hereto, that if the said party of the second part at the expiration of the aforesaid limited time shall have declined or omitted to make application for the purchase of said land at the price aforesaid, then this instrument' shall be void and the above sum of one ($1.00) dollar, so paid aforesaid, shall be forfeited by the said party of the second part and the said parties of the first part shall have the right to retain the same as liquidated damages, and the said party of the second part shall relinquish to said parties of the first part all claim to the said land, either in law or equity, and all claim to any moneys paid under this contract and no claim of said party of the second part under this contract shall then be effectual.
“In witness whereof the parties of the first part have hereunto set their hands and seals the day and year first above written.
“Mary Schuman L. S.
“Catherine Haag L. S.
“Caroline George l! S.
“John George L. S.
“Emma S. Bull L. S.
“Robert H. George L. S.
“Margaret George L. S.
“Abbie George Reese L. S.
“Ada George Poet L. S.
“Frederick George L. S.”
“Witness:
“Charles R. Robertson
“Mary Malone.”
This instrument was duly acknowledged by defendant, and others, on May 26, 1915.
Mary Schuman, Catherine Haag and Caroline, John and Frederick George are the living children of Martin George who died in 1881 seized of this property, which was the family homestead, consisting of a square 40-acre farm less a right of way conveyed to the Pere Marquette railway. The remaining five of the ten partiesi to the contract are four nieces and a nephew of the others. Each of them owned an undivided interest in the land, acquired by devise or inheritance, that of each of the two brothers and three sisters, children of Martin, being computed as 164/960 each, and of their nephew and nieces 35/960 each. Martin George’s wife was given a life estate in this property by his will. Plaintiff was the youngest of the George children and remained at the old home. After his mother’s death, which, occurred some 20 years before this contract of 1915 was executed, he continued to reside there engaged in farming and teaming. He paid the other owners some rent for about 17 years, but for the last three years before the option contract was given had not done so. After the mother’s death there was talk from time to time amongst the owners of interests in this property, or certain of them, about selling it, but nothing was done, either from lack of market or of united effort or agreement, until 1915.
Mrs. Schuman, the defendant, who was the oldest child of the Martin George family, had married over 50 years before and gone with her husband to his farm in Taylor township located, as her son describes it, “on the Wabash railroad about 3% miles south of Dearborn village” in Wayne county (which is not over ten miles from Detroit), continuing to live there with him until his death, and then with her son until the hearing in this case, in 1917.
Just what the steps were which led up to signing this instrument is told in a fragmentary way and the parties to it are not altogether in harmony as to what was done and said. Plaintiff’s claim and testimony is that ever since their mother died they were talking from time to time about selling the property but not much could be got for it until 1915, when some of the owners, particularly the sisters who were anxious to sell and get the benefit of their interest in the estate, asked him if there was any sale for it, in answer to which he asked what they wanted for it and they said they did not know; that later he, John and Caroline George met at Mrs. Haag’s and discussed the matter when he offered to buy it at $1,000 per acre if they were all willing to sell; that defendant to whom a letter had been sent was not present nor the nephews and nieces but he told those present if they would get together and make a price he would buy; that learning later from one of the sisters Mrs. Schuman had heard of the meeting and was sorry she could not be there he arranged for another meeting at the' office of Mr. Robertson, an attorney who had done business for members of the family, and defendant attended with her sisters, niece and brother John when all present signed the option which the attorney had prepared at his request, read over and explained to them, the others in interest not present signing later.
It is not disputed that defendant, after meeting with her two sisters and a niece, went with them to the attorney's office and signed the instrument there, as did the others present, after it had been read to them, and she with the others was given a copy of it which she took home with her.
The first offer plaintiff obtained after receiving this option was $1,000 per acre from a Mr. Porath, in July, 1915, later a Mr. Beyers offered him $1,100 and some time that fall he received an offer from a Mr. Curtiss of $1,200 and offered to take $1,350 which Curtiss then refused to give, but in January, 1916, offered to take it at that price, which plaintiff declined. Mr. Fred E. Gregory, an attorney of Detroit who had formerly lived in Dearborn and later was in the employ of Henry Ford buying property for him in that vicinity had, about May 20, 1915, quietly begun buying land in Springwells township in the vicinity of the River Rouge, the secret purpose being to secure a site for the Ford tractor plant. He testified that he kept the knowledge of his action and of the man for whom he wanted it from persons in that neighborhood and everybody else so far as possible, but he met people there who knew he was representing and making purchases for Mr. Ford; that the owners of property wanted were offered fair prices and some of them sold considerably cheaper than they would the next year, saying further:
“This boom in the price of real estate in the west end of town started about June, 1915, after it became thoroughly known about the Ford tractor and from that time on until last year prices soared pretty high. * * * There was as I remember it and as I view since the announcement came out in the papers that we had bought this large tract of land there, that real estate men flocked in pretty thick in that section to buy something. Of course the owners of the property were offered fair prices, and they sold, some of them cheaper, considerable cheaper probably than they would the next year, than those that held their property; that next year would bring it up to 1916. I think those that held their property got higher prices for it in 1916 than they did in 1917. I don’t know anything about prices, particularly this year, I don’t know of any sales made this year out through there.”
As a result of this fortuitous trend of events plaintiff sold the property in question on March 18, 1916, to J. C. Hudson of Detroit for $80,000 on a land contract in which he agreed to secure deeds from the other owners according to the option he held, and perfect the title, sufficient being paid him on the contract for that purpose. Time was given him to perfect title, as probation of the estate of his father, Martin George, was then in progress before the probate court, and a difference between his brother John George and wife in the courts was also recognized in the contract as a cause of delay in perfecting the title ultimately to be conveyed by delivery of a deed and abstract showing a merchantable title.
Having entered into this agreement plaintiff proceeded to avail himself of his option rights and so notified all parties to it. They all executed deeds conveying their interests to him on receipt of the amount due them by the terms of the contract except defendant, who refused, and his brother John George, who was then willing but unable to do so because of his pending domestic entanglements. Plaintiff then gave defendant a written notice and request for a deed under the terms of her contract, followed by tender of the amount due her with deed to him for her signature. Upon her refusal to accept the money and sign the deed this bill was filed.
Defendant’s contention is, as stated in her counsel’s brief:
“First, that plaintiff was guilty of unfairness, and overreaching in procuring her signature to Exhibit 1 (the option contract) and that she signed Exhibit 1 under a misapprehension as to its terms; second, that Exhibit 1 is void because it is not based upon a substantial consideration.”
As to the latter it is urged that the nominal consideration of one dollar was never actually paid and the gratuitous offer to sell was revoked before accepted in writing as the option provided and therefore it never became an enforceable contract. The testimony is conclusive that when the contract was signed and delivered plaintiff tendered defendant and others who had signed payment of a dollar each which they recognized but declined as not wanting it then, defendant saying, as plaintiff testified, “never mind, we don’t need the dollar.” That the agreed amount tendered was not accepted does not make the contract gratuitous for want of consideration. An unconditional tender of the specified amount for the purpose of avoiding loss of any rights or privilege is equivalent to payment as. to all things incidental or consequential to the obligation to pay.
As to the sufficiency or adequacy of the consideration it is to be borne in mind that an option is not an agreement to sell, but a mere offer to sell with a contract not to withdraw that offer within a specified^ time. For this contract there must be some legal consideration to .validate it. Upon this proposition it is said in James on Option Contracts, § 325:
“It is established by the great weight of judicial authority that a nominal sum of money is a sufficient consideration for an option contract, meaning thereby that an option contract supported by a nominal money consideration is not revocable by the optionor during, its time limit.”
But as to the distinct consideration for the contract of sale which follows or results from acceptance of the offer chancery courts, though recognizing the rule of law as applied to the option consideration, hold that in cases where specific performance is sought the value of the property sold, sufficiency of price or adequacy of consideration must be in accordance with the equitable, not the legal, rule on that subject. While all facts and circumstances connected with the transaction are to be weighed together, including the nature of and consideration for the option which leads into the contract of purchase, when passing upon questions of misrepresentation, unfairness, fraud or other characteristics which militate against the relief asked, the sufficiency of consideration to support the option is properly to be determined by the rule of law, and the adequacy of consideration for the contract of sale which it is sought to enforce by equitable principles.
It is urged for defendant that this court has held in effect that a nominal consideration of one dollar is not adequate to validate as a binding contract an option for purchase of land, citing Axe v. Tolbert, 179 Mich. 556. The court was there considering an instrument of mixed phraseology purporting to be an option, but held otherwise, for which no consideration was in fact paid or tendered when obtained, although it contained a recital and acknowledgment of a “valuable consideration” which was nominal in the sense of “existing in name only; not real or substantial” (Black’s Law Dictionary) — not substantial as something of value actually existing, because merely seeming or imaginary. In that case the instrument was not signed by the claimed optionor and was gratuitous because without payment, tender or assumption of obligation to pay. Here plaintiff signed the option contract which obligated him to pay $9 for the right to purchase within a specified time the varied, outstanding interests in a piece of then farming land of which he was part owner and in possession, making tender of payment as specified to defendant and the other parties present at the time they signed it. There was no occasion or intent to say or hold in the Axe Case that a consideration of one dollar actually paid or legally tendered was not adequate to render an. option contract binding as a legal proposition. In Mier v. Hadden, 148 Mich. 488, where the consideration in an option contract giving the right to purchase a farm within a stated time was $1, this court plainly said:
“Options for the purchase of land, where based on a valid consideration, are valid contracts, and may be specifically enforced.”
This option was a written instrument relating to an interest in land requiring acceptance to be in writing. Defendant’s claimed revocation was not in writing, but an oral refusal to deed on payment to her of the purchase price according to the terms of her written agreement, a true copy of which she had received when she signed the original and taken home with her, nearly a year before. Its terms are not ambiguous. She had all that time to examine it and consult others about it. She gave no notice of any revocation or intention to repudiate until under changed conditions and enhanced prices plaintiff had made an advantageous agreement to sell and convey, relying on his option, against which she had during all the time he held it made no suggestion of objection. Her claim of revocation is not tenable.
On the claim that relief should be denied because of unfairness, overreaching, or deception by which defendant was led to sign the agreement under a misapprehension as to its terms defendant testified that she never talked with plaintiff about his buying the farm and there is no testimony in the record that he or any one for him ever made any misrepresentation, deceptive proposal or promise, or false statement to her by which she was deceived into signing the option. The most which can be claimed upon that proposition is that he had present special knowledge of material facts bearing upon the value of the property unknown to her and concealed his knowledge from her. There is no evidence that he had any knowledge the Ford tractor plant or other new industries would be, or were likely to be, located in that vicinity and as a result a sudden real estate boom would develop in that section the following year, when “the real estate men flocked in pretty thick.” He positively denies any knowledge of the situation or prospects beyond that open to all. The land purchased for or to be used in connection with the site of the Ford plant, which was secured as secretly as possible by Gregory, lies along the south side of the Michigan Céntral railroad track, between it and the River Rouge, nearly a mile from the property involved in this suit which was not wanted for that purpose. This land was purchased by Hudson from plaintiff nearly a year after his option was obtained. Gregory, who quietly engineered and financed the purchase, testified that while if was likely to have gone to Henry Ford,
“The real purchaser of the Martin George homestead is Robert Oakman, who is a large stockholder in a corporation known as the Ford Highway. * * * Mr. Robert Oakman claimed he was going to build what is known as the Ford Highway from the contemplated site of the tractor plant extending around to Woodward avenue.”
On the day defendant signed this option she was driven in an automobile from her home to that of her sister Caroline, in Detroit, by her son, a middle-aged man who testified at the hearing of his mother’s mental condition, “As far as her mind goes it is as good as ever.” She went with her sister to the office of Mr. Robertson, who, Caroline testified, had takén care of her law matters for many years and who had prepared the option at plaintiff’s request according to the terms he stated. He testified that when the parties came to his office to sign it he assumed they had agreed on the terms as given him by plaintiff, that he had no interest in the matter except his employment to draw up the papers, had not given plaintiff any advice as to advisability of the investment and knew nothing about Gregory buying any real estate down there or anything of that kind; saying of the transaction:
“I explained to them that I had been asked to prepare this option and I read the option over to them and it was discussed. After reading this over, Caroline George carried on the conversation for the others. I presume it was probably because she knew me better than the others. She said in a few words, ‘What does all that mean, Mr. Robertson?’ I says, ‘It means that if Fred George offers to pay you at the rate of $1,000 an acre for your interest in that land within two years, you are to deed it to him,’ and then we had a talk and I explained to them how I would send this option, together with a copy of it to Mrs. Poet in Colorado. I explained to them the different interest that they severally had in the property. * * * I also explained to them at that time how Fred George was to take care of the expenses in closing up the father’s estate which was satisfactory to them. * * * I had known from Caroline George that they wanted to sell the property. * * * No indication was given to me that Mrs. Schuman did not have the full use of her faculties, I didn’t think in matters of this kind she ought to have the benefit of counsel because I knew they wanted to sell the property, they accepted it after it was explained to them,”
It is very manifest that as the result of industrial developments which came to that locality and the real estate boom of the ensuing year, the entire aspect of that rural district changed physically and in values to the marvel of all. Ordinary farms from which those who owned and ran them could extract little beyond a modest living became fortunes. There, as in other sections of Detroit and its environments, viewed in the light of subsequent events, many of those who parted with their holdings too soon found difficulty in viewing the fact complacently, as this record and others from that county somewhat analogous show. In that frame of mind, as their testimony plainly indicates, Catherine Haag, Caroline George and Emma Bull, who, after holding copies of the option for near a year, had signed deeds and accepted the money due them according to its terms when requested, join with defendant in testifying that they supposed they were signing an agreement giving plaintiff the right to sell the property for them. None of them testifies to any statement, conversation, or agreement by or with plaintiff to that effect, nor do they relate any previous talk between themselves indicating that such was the expressed bargain and they intended to only give him an agency. Mrs. Haag, called by defendant, said all members of the family had spoken about wanting to sell the old homestead a few years before 1915, and some of them talked it over at her house that winter; that she went to the attorney’s office and sat listening to the conversation without asking any questions, could not say whether the paper was read to her before signing, did not know what it purported to be or how she came to sign it; and asked by defendant’s counsel:
“When you went to Mr. Robertson’s office to sign the deed, did you go and sign it because you wanted to sell to Fred at the rate of $1,000 an acre or because you had to sell on account of having signed the option.?” answered, “Well, I don’t know.
“Q. You are unable to tell?
“A. No.”
Caroline George admitted the paper was read over to them and thought it was read no different than as she heard it in court, did not think anything was done to mislead, knew the price of $1,000 per acre was decided upon, knew plaintiff had two years’ permission to sell the place, and in the talk she had with him he never told her the rest would share equally in the profits with him, and said “my idea of an option was that I was to sell the property.” Emma Bull said she heard the paper read and Miss George asked questions about it and the attorney answered them, but she did not remember the exact words of the answer. John George testified that he was not present at the attorney’s office when his sisters signed the option, but was at Mrs. Haag’s home once with Caroline and Fred who in a conversation about selling the property inquired of the rest if they would take $1,000 an acre and give him an option for it, and they said they would. Robert George, the nephew, also was not present when his. aunts signed, was in the real estate business when he testified and had previously been a motorman in Detroit, stated that the option was read to him, that he considered as real estate values then were $1,000 an acre was a fair value for the property and he signed the paper understandingly. His wife signing with him said she knew she was. signing an option aqd had “learned through family gossip, I suppose, what price was going to be fixed on this land.”
It is urged that defendant was old and feeble, not experienced in business matters, living in the country with her son who looked after her business matters for her and who was not informed of this transaction, at the time of its occurrence. She owned other property beside her interest in this homestead, and, according to her own. testimony and his, the extent to which he looked after her business was leasing her farm from her, paying her taxes on it, sometimes going to the bank for her and buying a tract of land, called the Adams property, of which she was part owner, and a party to giving him an option and selling it to him in 1914. She also was a party to an important real estate deal in 1916, in which her son admitted she transacted her own business when she joined the other owners, Caroline George, Mrs. Haag, John George and his wife, in an option to Hudson for the sale of a piece of land, called the Tice property, at $2,000 per acre. When cross-examined as to this transaction she suggested it had nothing to do with the George case, but she understood that transaction quite clearly “because it was my business” and she knew the place was sold at $2,000 per acre. Although making general denials and insisting on lack of knowledge or remembrance of details as to the transaction under consideration, suggestive of the possibility of effect of price upon memory, she stated as to it
“If I got what I wanted I would sign a deed. I told him I would not deed him that property according to that option.”
She had spent her life in the vicinity of Detroit and was familiar with this property upon which she grew to womanhood and which lay between the home in which she lived thereafter and the city. She was not acting alone in this transaction nor under the influence of those who would intentionally ill advise her, against her own interest, for plaintiff’s benefit. The interests of those with whom she was most closely associated were on the same side of the deal as hers. She is presumed to understandingly have signed this option which was read to her before signing and if, as she claims, she did not fully apprehend its import the fact was not made manifest by her at that time nor until prices and conditions had radically changed, although she was in possession of a copy of it all the time with ample opportunity to satisfy herself of its contents by personal examination of it or by consulting others. Her son testified that her mentality was unimpaired, and of the claim that she was “feeble in mind and body” the trial judge before whom the testimony was taken in open court states in his opinion:
“I think the testimony shows that she was 71 years old at the time, but a careful view of her and inspection of her abilities upon the trial indicated to the court, she was a woman of fair understanding. It developed that she transacted certain very large negotiations herself and that while she claims she advised with her son there has been no testimony developed that he ever gave her any advice concerning the sale of her property; that she took that upon herself and managed it. She seems to be clear in her mind at the present time, fully comprehending and understanding her affairs, somewhat enfeebled physically as the testimony shows, which has grown upon her since the transaction of making this option some two years before.”
There were ten owners of undivided interests in this property including plaintiff, and the estate of their common ancestor from whom their varied interests were acquired was yet in probate. Relying upon the option plaintiff after a considerable lapse of time negotiated a sale of his own interest and those for which he held the option together, for a stipulated price, obligating himself to perfect through the option and probate court a merchantable title. That no objection or question of any kind was raised against the option by defendant or the others until after he had assumed those obligations is at least an equitable element in support of his request for relief. We agree with the trial court that the evidence before the court indicates that at the time this option was given $1,000 per acre “would be a fair market price and all that could have been obtained in the open market for this property” in the condition it then was as to title and otherwise. The contract was complete in its terms and is not shown to have been procured by any misrepresentation or fraud. Plaintiff has fully performed or made tender of full performance on his part which he has kept good by tender into court of the full contract price, and we see no reason to disturb the conclusion of the trial court that he is entitled to performance by defendant on her part according to thé terms of her written understanding.
The decree will therefore stand affirmed, with costs to plaintiff.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Steere, J.
On August 10, 1915, Roy Heino, a boy eight years and three months of age, lost his life, presumably by drowning, in a public swimming and bathing pool maintained by defendant in one of its city parks. Alfred Heino, his father, brought this action as administrator to recover damages for his death, claiming it was attributable to negligence on the part of the city in not properly guarding the safety of children permitted free use of the pool.
The case was tried in the superior court of Grand Rapids before a jury and a verdict directed in favor of defendant, the trial court holding that in providing and maintaining the bathing pool for the free use and recreation of its inhabitants the city was acting under legislative authority and discharging a governmental duty in performance of which it was not liable for damages resulting from negligent acts of its servants or employees; and that in any event no actionable negligence was shown as there were no witnesses to the drowning; both the cause and manner of its occurrence being purely speculative.
The pool in question was a sheet of shallow water, from 350 to 360 feet long and about 175 feet across at the widest place, located in a basin on the southwesterly side of the park, where its level was maintained, by a controlled supply of water from two small creeks which could be led into or diverted from it. The contour of that portion of the park afforded natural facilities for its construction by a gradual slope of the ground to a depression in which water from the creeks could be impounded to create a pool of the size and depth desired by building a semicircular wall or dam of concrete 55 feet in length at the westerly or lower end, near which the water was deepest, gradually shallowing toward the shores and back to the east. The superintendent of parks, who stated he built the pool, estimated its greatest depth at between four and five feet which he located about ten feet back, or east, of the spillway of the dam, there being a spring-board at the west end from which he stated that he had seen men dive in there and when they stood up their heads would be ‘out of water. There was some conflicting evidence as to the exact depth in the deepest place. A brother testified that the water would be over deceased’s head where his body was found, and he was shown to have been four feet, six inches tall.
Two small buildings were provided as changing or dressing rooms for bathers, referred to as the “boys’. house” and the “girls’ house,” and different parts of the pool are mentioned' as the “girls’ side” and the “boys’ side.” In the bathing season a swimming pool director, or guard, was on duty during the hours when the pool was open to the public for swimming and bathing. Many children availed themselves of the privilege in warm weather^ and the record of bathers on the day of the accident was 380, of which number there were 95 boys and 30 girls in the forenoon, and 150 boys and 105 girls in the afternoon. None of them were shown to have any knowledge of just when or how the accident occurred.
Plaintiff lived near Crestón Park with his family, and his children were accustomed to go swimming, or bathing, in this pool, which was constructed by the city in 1909 or 1910. They were provided with bathing suits for that purpose, and on the day of the accident five of them went over there together at about ten o’clock in the forenoon to “go swimming,” carrying their bathing suits in a basket. The oldest was a girl named Edna, over 9 years of age, Roy being the next younger and the others respectively 6, -5 and 2 years old. They played around the park until the' guard came, after which they put on their bathing clothes and went into the pool. After changing to their bathing suits at the buildings provided for that purpose they went to the east end together, carrying their other clothing in the basket, which they left under a tree when they went into the water. Roy stayed with the rest in the shallow water for a short time and while there borrowed some “water wings” from a girl who was with them, which he soon returned, and went away saying he was going over to the boys’ side. He is not shown to have been seen alive by the other children or noticed by any one after that time, although there were also other people then in swimming, both boys and girls. When the Heino children were through swimming, or bathing, they found his dry clothing yet in the basket but could not find him. They waited for a time and looked for him unsuccessfully, after which they went home, arriving there shortly before 12 o’clock, and told of their inability to find him. This was reported to plaintiff when he came home to dinner soon after. A search was then instituted in which others joined, and his body was found in the lower part of the pool at about three o’clock that afternoon. He was shown to have been an active, healthy boy in the habit of going into this pool. His age and height were stated but whether he could swim was not disclosed.
The negligence charged was failure to maintain a rope or similar protection for the small children in the shallow end of the pool, that there were places in it where the bottom was muddy and soft, and that the guard was away from the pool, though yet in sight, watching a ball game during a portion of the time the children were there. To what extent such alleged negligence, if shown, may have caused or contributed to the boy’s death would be largely a matter of conjecture, or inference on inference, for no one is shown to have seen him at the time, or to know how it happened, but the important question most seriously argued in the case is the immunity of the city from liability because acting in a governmental capacity in maintaining this free swimming pool in its public park without pecuniary benefit, for the public good.
Section 22, .article 8, of the State Constitution, authorizes any city to acquire, establish, and maintain parks within or without its limits for the public welfare. The revised charter of Grand Rapids, under which that city was operating when this accident occurred (Act No. 593, Local Acts 1905), also confers authority upon the city to provide, improve, and maintain at public expense, parks, boulevards, and other public grounds for the furtherance of urban convenience and civic betterment. Under title 3 of the charter, relating to “the powers and duties of the common council,” it is given power, subject to the limitations of the act, to legislate upon various matters, amongst which it is authorized (section 15)—
“To provide for public parks, public grounds and squares, and improvement of the same, subject, however, to the provisions of title 11 of this act. May enact all needful ordinances and regulations for the protection and control of all parks, boulevards, cemeteries and other public grounds or places belonging to the city, whether within or without the boundaries thereof.”
By section 53 of said title 3, it is again authorized, by a two-thirds vote of the aldermen elect, “to obtain by purchase, or gift, and to hold, improve, and properly maintain real estate within the limits of the city for park, driveway, and boulevard purposes.” And likewise without the city limits, "when deemed a necessary public improvement for the benefit of the city.
Under title 11 of the act (to which reference is made in section 15 of title 3) that subject is again taken up with the mandate that “there shall be created and constituted in and for the city of Grand Rapids a board of park and cemetery commissioners,” etc. The mumber of members, manner of selection, terms of office, etc., are prescribed, and by section 9 of said title 11 it is provided, amongst other things, that such board—
“shall have the control and management, and shall have charge of the care and improvement of all parks and public grounds of said city, whether within or without said city, and of such parks or public grounds as may hereafter be acquired, laid out, purchased or dedicated for public use by said city, * * * All the powers and duties now vested in the common council or in the board of public works of the city of Grand Rapids relating to said parks, public grounds or boulevards, are hereby transferred as provided in this title.”
The park board is required to make an annual report to the common council of its doings and expenditures, with an estimate of the amount of money necessary for park purposes, etc., during the ensuing year, upon which the common council “shall make an appropriation for the care, maintenance, and improvement of the said párks of said city.” The determined fund is thereafter raised by taxation and when collected into the city treasury “credited to the fund to be styled the park fund.”
No suggestion is contained in any of these provisions relative to parks authorizing a business enterprise or municipal activity maintained for pecuniary gain, or contemplating compensation to the city, but on the contrary it is only empowered to provide at public expense met by taxation and furnish to the public gratuitously for the common welfare the recognized ' sanitary and social benefits which public parks afford. So far as its liability as a governmental agency for negligence in the performance of such functions when assumed is concerned, it is immaterial whether the authorized public duty be permissive or mandatory. Tindley v. City of Salem, 137 Mass. 171; Nicholson v. City of Detroit, 129 Mich. 246.
The tort here charged against the municipality is not for a direct trespass but for consequential injury resulting from the negligent conduct of its agent in providing and maintaining an authorized public park and appurtenances for the general pleasure, comfort, and health, free to all who desire to avail themselves of it. This “swimming pool,” an artificial pond of shallow water with gradually sloping margins, was an appropriate and common accessory to the ornamental features of the park, not to be classed as a dangerous or attractive nuisance. To construct and permit its free use at proper times and under proper.restrictions for bathing or swimming was within the beneficent purposes for which the park was authorized and established. The more serious question upon which counsel divide with sustaining authorities from other jurisdictions is whether in providing for and maintaining this park and pond for the purpose shown and under the authority conferred the city was acting in a legislative or governmental capacity for the public welfare, or in its authorized proprietary capacity was providing a local attraction in which private interest, as distinguished from public duty, was paramount.
As directly applied to public parks and liability of a municipality for injury to those patronizing them from negligence in their maintenance, the question has not been passed upon by this court and opposing counsel cite to their contentions conflicting decisions from other jurisdictions where accidents in parks are involved, their lines of authority harking from two opposing rules of municipal liability for tort sometimes called the New York and Massachusetts rules.
The New York courts early held that cities given by statute exclusive control of their streets were under a common-law liability for injuries resulting from negligence in their maintenance, and subsequently applied that rule to city parks (Ehrgott v. City of New York, 96 N. Y. 264). Other States which have adopted that doctrine have followed in its application to cases involving the control and management of parks. Early in the history of this State it was held that, in the absence of statutory provisions, municipalities were not liable for failure to keep highways and bridges in safe repair. Commissioners of Highways of Niles Township v. Martin, 4 Mich. 557; City of Detroit v. Blackeby, 21 Mich. 84. In the latter case the New York rule was discussed and rejected in a carefully considered opinion by Justice Campbell. In Miller v. City of Detroit, 156 Mich. 630, it is said of the New York rule:
“That this is illogical is shown by the^ cases of Hill v. City of Boston, 122 Mass. 334, and City of Detroit v. Blackeby, 21 Mich. 84.”
The local polity of Michigan has often followed and been much influenced by that of the New England States, and the Massachusetts decisions as to municipal liability for torts generally taken as precedent.
The general rule of that State, the principles of which have been adopted in this and numerous other jurisdictions, is thus well stated in the recent case of Bolster v. City of Lawrence, 225 Mass. 387, where many preceding decisions on various phases of the subject will be found:
“The municipality,, in the absence of special statute imposing liability, is not liable for the tortious acts of its officers and servants in connection with the gratuitous performance of strictly public functions, imposed by mandate of the legislature or undertaken voluntarily by its permission, from which is derived no special corporate advantage, no pecuniary profit, and no enforced contribution from individuals particularly benefited by way of compensation for use or assessment for betterments.”
In the Bolster Case it was held that the city of Law rence, which, maintained a public bath house by permissive legislative authority, was. not liable for the death of one properly using the facilities offered, caused by the structure and its approaches falling through the negligence of the municipality or its servants.
In the foot-note to Bisbing v. Asbury Park, 33 L. R. A. (N. S.) 523 (80 N. J. Law, 416), where-several leading cases upon both sides of the question as to liability of municipalities' for injuries through unsafe conditions in parks" or other public grounds than .streets are digested, it is said the weight of authority supports the fundamental proposition “that a municipality maintaining public parks is discharging a public duty, and is not performing a private, corporate function for its own advantage.”
It is further strenuously urged for plaintiff that this State is aligned by previous decisions with those adopting the contrary view, and said:.
“The State of Michigan has never been, as a State, in the park business, and it has not delegated to any township or municipality the right to act for the State in any such capacity, but it has always, and in all of the statutes of this State, regarded the property so taken or used as the property and real estate óf the municipality where it was situated,” etc.
Citing in support of this contention the early cases: City of Detroit v. Corey, 9 Mich. 165; People v. Hurlbut, 24 Mich. 86; Board of Park Com’rs v. Common Council of Detroit, 28 Mich. 228; Cooper v. City of Detroit, 42 Mich. 584; Mayor of Detroit v. Park Commissioners, 44 Mich. 602; Niles Water Works v. City of Niles, 59 Mich. 324.
In the Niles Case the question involved and decided was the right of the city to contract an indebtedness for hydrants and meters without popular vote, in violation of the express provisions of its charter. The Corey Case involved an accident from a sewer excavation in the street left in a dangerous condition and it was held that sewers of the city were its private property and their construction was not a governmental function. The Cooper Case involved an attempt by complainant to enjoin the city from continuing and enlarging a public market upon a strip of land claimed to be a part of a street, which the court held had been' extinguished by legislative authority and the strip held by the city under claim of title for over 30 years, denying the injunction on the ground that “the statute of limitations long since made the city title impregnable.” While the functions of a city are more or less discussed in those cases we discover nothing in them indicating the capacity in which a city provides, improves, and maintains a park at public expense.
The Hurlbut Case involved the validity of an act establishing a board of public works for the city of Detroit, tested by quo warranto proceedings to determine the right of members of its board of water commissioners and sewer commissioners to hold their respective offices after the act went into effect. In the four opinions filed a wide range was taken in the field of municipal government, historically and otherwise, the case taking near 70 pages of the printed report. The court was not then considering the question directly involved here, and while aid to plaintiff’s contention may be extracted from some of the views there expressed, the only material question decided was the validity of the act then before the court.
Board of Park Com’rs v. Common Council of Detroit, supra, was an application for mandamus to compel the city council to provide for and order issuance of bonds to purchase lands for a park contracted for by the commissioners. In discussing the legislation creating the park commission and manner of selecting its members the conclusion was reached that the persons named were appointees of the legislature who could not be regarded as representatives of the city for the purpose proposed, and the court had no power to aid it by legal process, “because, concerning as it does the private corporate interests of the city, it (the board’s action) has been had without the consent of the city expressly or by implication given.” In holding that the commissioners as appointees of the legislature did not then have the power to bind the city for an indebtedness to purchase land for parks, and that cities have the right to use their own discretion in regard to incurring indebtedness for property or improvements of local concern, it is evident, as applied to the question decided, the court regarded a city park as a matter of private corporate interest of the city rather than a public governmental activity. And in Mayor of Detroit v. Park Commissioners, supra, involving a demurrer to an information in the nature of a quo warranto to inquire into respondents’ authority to usurp a franchise under which they took possession of Belle Isle for the purpose of improving it as a public park, the court conceding in comment relator’s contention that the city was acting in its private corporate capacity, held under the authority conferred by statute the right of the city to take possession of and improve lands outside the city limits as a public park was a franchise, saying in conclusion:
“If respondents usurp it they usurp a public franchise, public so far as concerns the city, which is all ■ that is important here.”.
It is manifest that in these cases where parks figure, the question of liability or non-liability of the municipality for imputed negligence in their free maintenance for the public welfare, without compensation for their use or pecuniary benefit to the city, was foreign to the issues involved, and, so far as appears, not advertently discussed or even mentioned. That certain functions of municipal activity may be governmental for some purposes and of private characteristics, in others, is recognized. O’Leary v. Board of Fire and Water Com’rs, 79 Mich. 281; Brink v. City of Grand Rapids, 144 Mich. 472; Davidson v. Hine, 151 Mich. 294; Simpson v. Paddock, 195 Mich. 581.
Counsel’s statement that “Michigan has never been, as a State, in the park business,” nor recognized parks as a matter of State concern, can be accepted as more applicable to the time when those cases relative to the Detroit park board were before the court than later. Michigan through its legislature has recognized the acquisition, improvement, and maintenance of free public parks as a governmental function by itself acquiring, improving, and maintaining at State expense, under the supervision of its appointed board, the Mackinac Island State Park; and, independent of the legislature, the people of the State, by adopting its present Constitution, have authorized any city or village to acquire and maintain parks, even without their corporate limits, grouping them with works which involve public health and safety. The Federal government is also in “the park business” as a governmental function, and whether they be Federal, State, or municipal parks the beneficial public purpose intended and served by such free recreation grounds for the people, and the resultant benefits which justify their free maintenance at public expense as a governmental activity are the same except it be in degree; and in that particular a comparison of the beneficial results to the greatest number of people át large throughout this commonwealth from the free use and enjoyment of Belle Isle City Park and Mackinac Island State Park might indicate the degree is not necessarily in favor of the larger governmental unit.
While, like public schools for education, public parks are primarily provided for the recreation, pleasure and betterment of the people within the limits of the governmental organizations which maintain them, they are not by legal restraint or custom or in fact solely for the benefit of the municipality’s own inhabitants, but when thrown open as public parks the public generally without distinction are permitted to visit them and freely enjoy the attractions and benefits gratuitously offered.
Along the line of facilities which parks afford, playgrounds for healthy exercise, swimming pools, baths, appliances for manual training and other equipment for balanced physical and mental development, with instructors as to proper use and methods, are now recognized and frequently adopted in the curriculum of our public schools as essentials of education and sanitation, both acknowledged subjects of State concern and governmental activity.
It is said imputed negligence is a matter of public policy, subject to legislative regulation and “it is for the legislature to determine how far, if at all, a body whose negligence, if it is so called, is imputed, and in no sense actual, shall be made subject to suit for the misconduct of its employees.” O’Leary v. Board of Fire and Water Com’rs, supra. No right of action conferred by statute is applicable here. The constitutionally authorized function this municipality was exercising was without private gain to the corporation or to individuals, for purposes essentially public and of a beneficial character in furtherance of the common welfare in harmony with the general policy of the State and was in its nature a governmental activity, whether it be put upon the ground of health, education, charity, social betterment by furnishing the people at large free advantages for wholesome recreation and entertainment, or all of them.
As applied to public parks of this nature the funda mental proposition of the Massachusetts rule, which this court has generally approved, is well sustained by the reasoning in the following cases and those they lead to: Tindley v. City of Salem, supra; Donahue v. City of Newburyport, 211 Mass. 561; Bolster v. City of Lawrence, supra; Blair v. Granger, 24 R. I. 17; Bisbing v. Asbury Park, supra; Board of Park Com’rs v. Prinz, 127 Ky. 460; Mayor, etc., of Nashville v. Burns, 131 Tenn. 281; Harper v. City of Topeka, 92 Kan. 11; Russell v. City of Tacoma, 8 Wash. 156. Judgment is affirmed.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Steere, J.
This case was begun and first tried in a justice’s court of Kent county where defendant had verdict and judgment, from which plaintiff took an appeal to the circuit court. The justice’s return shows that plaintiff declared orally upon all the common counts in assumpsit and especially upon a certain promissory note. Defendant filed a written plea with notice of special defense and affidavit denying, execution of the alleged note, the special defenses of which notice was given being as follows:
“1st. Defendant denies that he signed, executed or delivered the alleged promissory note on which the claim herein is based, or that he signed, executed or delivered any promissory note on which the claim herein is based, or that he signed, executed or delivered any promissory note whatever.
“2d. That the paper which defendant actually did sign has been materially altered by the Donald-Richard Company or by plaintiff or by some other persons, and that it is therefore void.
“3d. That defendant was induced to sigh the paper which he did sign through the fraud and misrepresentation of an agent of the Donáld-Richard Company of Iowa City, Iowa. .
“4th. That plaintiff is not a bona fide holder for value of the alleged note, and that he had notice and knowledge of all the circumstances hereinbefore set forth before the said plaintiff took the said alleged note. ;
“5th. That the paper signed by this defendant was a contract and not a negotiable instrument and that plaintiff does not claim to hold the same by assignment; wherefore plaintiff has not shown any right to maintain any action on said contract.”
Upon trial of the case in circuit court defendant introduced no testimony, but at conclusion of plaintiff’s testimony moved for a directed verdict in his favor, which was granted and judgment rendered thereon.
Plaintiff’s assignments of error are directed to the rulings of the court upon questions of law which center to and resulted in the charge directing a verdict for defendant. At conclusion of the brief charge di recting a verdict because “no question of fact will be left to you for your consideration” the court said, in answer to inquiry by plaintiff’s counsel if the stenographer had taken down the motion:
“Oh, yes, he took it in detail and I directed the verdict upon all the grounds he presented.”
The grounds presented ran through the argument of counsel, the material points made and grounds urged for a directed verdict- being that there was no competent proof of execution of the note in question by defendant, that the note claimed to have been executed by him and denied under oath, if signed at all, was a part of a conditional order or agreement and its detachment for separate use as negotiable paper constituted a plain alteration of the agreement, rendering it void as a promissory note. The detached note reads as follows:
“Iowa City, Iowa, March 29, 1916.
“For value received, the undersigned promises to pay at Iowa City, Iowa, to the order of Donald-Richard Company, one hundred and forty-eight dollars as follows: $37 three months after date, $37 five months after date, $37 seven months after date, $37 nine months after date. Nonpayment of any installment for more than thirty days after maturity renders remaining installments due at holder’s option.
(Signed) “Herman Yenema,
“P. O. Grand Rapids, Michigan.”
Endorsed, “May 31, 1916. Donald-Richard Company, M. H. Taylor.”
Defendant was engaged in the grocery business at Grand Rapids, Mich., and on March 29, 1916, a salesman of the Donald-Richard Company of Iowa City, Iowa, procured from him a so-called “order” for some of its goods, consisting of perfumery and toilet articles, to which plaintiff claims was attached the note in question which he also signed, and which he denies.
The lengthy “order,” or “paper,” which defendant admitted signing is of the same character and apparently, so far as described and quoted from, of like form as that used by the Donald-Richard Company in Stevens v. Pearson, 138 Minn. 72 (163 N. W. 769), of which the court there said:
“The whole framework of the document presented to defendant to sign was manifestly designed to enable agents to perpetrate the very fraud which Hussey in fact committed. The contract is long, on a yellow sheet and in fine print. Conspicuous at the start is this 'special agreement’ of the seller: 'We hereby agree to buy back at the purchase price all of the goods in this order remaining on hand at the termination of this agreement, if purchaser so desires,’ * * * Just above the 'perforation’ in fine print is the language ‘the attached note is tendered in settlement of this order and the company is authorized to detach same when this order is approved and shipped.’ The places intended for signatures are such as to confuse.”
We are not favored with the original document in this case, but aside from the physical features of color of paper and size of type, that description is applicable. This “order” is headed: “Donald-Richard Co., incorporated, Chicago, 111., General Office and Laboratory at Iowa City, Iowa, and Winnipeg, Canada. Special agreement.” The subject is introduced by the following attractive provision:
“We hereby agree to buy back at the purchase price all of the goods in this order remaining on hand at the termination of this agreement, if the purchaser so desires, and if net profits are less than 50 per cent, each year for two years, will pay the difference in cash, provided purchaser has kept the goods tastefully displayed for sale in his store, used the advertising system as provided on the reverse side hereof, made payments as agreed and used reasonable diligence in promoting the sale of the goods.”
A variety of provisions follow, such as warranty of the goods as to quality, provision for exchange of goods, notice that its agents are “soliciting salesmen,” whose orders are subject to “approval or disapproval at laboratory,” terms of discount, etc. A sentence provides that “privileges herein granted are conditional on purchaser complying with all the conditions of this order.” Another sentence states that,
“The attached note is tendered in settlement of this order and the company is authorized to detach same when this order is approved and shipped.”
Above this sentence appears
“Owner of store, Herman Venema. Salesman, H. E. Collins. Order signed by Herman Venema.”
A provision appears written across the face of the paper that
“The company will send its bond to Kent State Bank of Grand Rapids, Michigan, in the sum of this order to protect the purchaser in all of the conditions of this sale. Ship with this order $9 worth of free goods to apply on freight charge. Ship with this order one-half gross empty bottles free.”
On June 28, 1916, defendant wrote the Donald-Richard Company:
“Having tried my best to sell some of your goods and failing to do so, I wish to return the goods as your salesman said I could when I bought the goods. I think I must have sold about $1.50 or $2 worth of these goods. Am very much disappointed. Please let me know how to send them or if I can leave them in Grand Rapids, Mich., some place.”
On June 30, 1916, the company replied reminding him the “terms and conditions” under which the goods were shipped to him were “a very fair and just purchasing method,” that “your order provides that you ■are to send in a list of names for advertising to be sent out direct to us. This you have not done,” etc., and concluding:
“We were obliged to discount your note some time ago as we have to raise cash funds. It is not now our property and we are not in a position to comply with your request to take the goods off your hands at this time.”
The order in this record contains no provision relative to sending a list of names for advertising, although it may have been embodied in the “advertising system as provided on the reverse side hereof,” which we are not furnished.
On October 31, 1916, this action was begun. The salesman who procured the order was not produced. The only witness called was defendant, for cross-examination under the statute; shown the order (Exhibit A) he replied “I have seen the order and it is my signature.” Shown the note (Exhibit B) in question, he replied “That is not my signature, * * * I will swear that I never signed a note to my knowledge.” Told to compare that signature with the one on the other paper he said “It looks like it.” Cross-examined further he denied knowing Exhibit A was attached, to Exhibit B when he signed in the three places, and said in part:
. “I signed my name in three places on the order but did not see that there was anything .attached to it * * * I will swear I did not sign a nóte. * * * That is not my signature. * * * I received all the goods mentioned in the order and still have them.”
No other witnesses were sworn. His counsel then produced and offered in evidence the depositions of plaintiff, Fred L. Stevens, and M. H. Taylor, both of Iowa City, Iowa, taken on notice before a justice of the peace of that city. Neither knew anything of what occurred when the order was taken in Grand Rapids or could identify Exhibits A and B back of their receipt by mail in Iowa City.' As their depositions were read objections were made to their identification and the admission of those papers in evidence on their testimony. Mi H. Taylor, who figures prominently in the records of Harrison v. Grier, 198 Mich. 672, cited in Loveland, v. Bump, 198 Mich. 564, testified that he was assistant manager of the Donald-Richard Company and identified Exhibits A (the note) and B (the order) as having been received through the mail from one .of its salesmen, that Exhibit A was attached to Exhibit B when received and he accepted the order; that he detached the note, indorsed it for the company and delivered it to plaintiff, on May 31, 1916, who paid 90 per cent, of the face value for it. Plaintiff testified that he was a practicing attorney, interested in banking and investments, had lived in Iowa City 20 years, and had known the Donald-Richard Company for 5 years or more; that he had taken many thousand dollars of its paper since February, 1913, knew that there was some litigation over .collection of the paper it had taken from its various customers and had given depositions similar to'those he was then giving 20 or 25 times since February, 1916; that he bought ’the note in question which was delivered to him by Taylor on May 31, 1916, prior to which time he knew of no defense or claim defendant might have against the Donald-Richard Company, and he had exercised his option in declaring all remaining installments due, that the note bore evidence of having been detached from some other paper, but Mr. Taylor did not show him the contract between defendant and the company and did not know whether the latter had fulfilled on its part. In Stevens v. Pearson, supra, decided by the supreme court of Minnesota, July 20, 1917, in which plaintiff’s depositions are stated to have been taken October 3, 1916, about a month before this suit was begun, his knowledge of and relations with the Donald-Richard Company are taken note of and discussed. We are well satisfied in this ease, as there held, that “the evidence presents facts abundantly to put plaintiff upon inquiry and charge him with notice of the fraud perpetrated upon defendant.” The procuring of defendant’s signature to a promissory note made a part of an elaborate and ingeniously enticing so-called “order” for merchandise, prepared on a printed form so as to be signed in several places, was presumptively deceptive and fraudulent, and when so shown shifts the burden of proof to the party claiming under it chargeable with notice. The natural inference to be drawn from incorporating a detachable promissory note in such an instrument in a transaction of this nature is a purpose to deceive.
Beyond this, the order, or “special agreement,” was a conditional order. The note though out of harmony was made a part of it. When detached it took an independent character and increased value as negotiable paper, and as a whole changed the contract or conditional agreement of which the party who prepared and used that form of order made it a part. This device for procuring negotiable paper by cunningly inserting it as an obscured part of an order for merchandise, but easily detached, is not new. In the early case of Wait v. Pomeroy, 20 Mich. 425, it was held that the destruction of a memorandum written under and qualifying the obligations of a promissory note invalidated it. In the recent case of Toledo Seale Co. v. Gogo, 186 Mich. 442, where the subject is fully discussed in an opinion by Justice Kuhn, it was held that, where a conditional contract for the sale of a set of computing scales was so drafted that a portion of the instrument signed could readily be detached from the remainder, and, standing alone, would constitute a promissory note, detaching such negotiable part of the instrument operated as an alteration of the contract and avoided the same in the hands of the original payee, which would be equally true if in the hands of a party charged with knowledge.
To sustain the validity of this detached note, dependence is placed upon the provision in the order “that the company is authorized to detach the same when this order is approved and shipped.” This sentence appears in the order just above the perforation for detaching the note and below the signature in the order. Such expedient only emphasizes the sinister purpose of the combination. In Toledo Scale Co. v. Gogo, supra, it appears from the original record that an unsuccessful attempt was made to validate the note for detachment by two provisions, in separate places, one stating “you are authorized to date above-mentioned note at such time as you may elect to insert such date either prior to or after the execution of such note,” and the other, nearer the close of the instrument, that “The signing or delivering of installment note shall not be deemed or considered a payment or waiver of any term, provision or condition of this contract.”
We regard the decision in that case as well in point and controlling here.
The judgment is affirmed.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Kuhn, J.
The plaintiff is seeking to recover, in an action of ejectment, a certain parcel of land on Oak land avenue in the city of Detroit, of which he claims to be the lawful owner and entitled to possession, by virtue of the following conveyances. On May 30,1865, Ralph Phelps, being the owner in fee of 80 acres of land described as the west *4 of quarter section 43 of the 10,000 acre tract, Wayne county, Michigan, sold and conveyed by warranty deed to school district No. 11 in the township of Hamtramck, Wayne county, a portion of said land described as,—
“Commencing at the intersection of the west line of quarter section forty-three (43), in the 10,000 acre tract, and the northerly line of a public highway known as the Holbrook ditch road; thence northwesterly along the said west line of said quarter section, six (6) rods; thence northeasterly on a line parallel with the north line of said public highway or road, five (5) rods; thence southeasterly on a line parallel with said west line aforesaid six (6) rods to said northerly line of said public highway or road; thence southwesterly along said northerly line of said highway or road five (5) rods to the place of beginning, containing thirty (30) square rods; the aforesaid parties of the first part do not sell, warrant or defend the improvements put upon said tract of land since ■■ taken possession of by said second party.”
The school district apparently had taken possession of said land prior to the date of the deed, built a fence around it, and erected a school house on the land, facing the Holbrook ditch road.
The legal title to this property appears to have remained in the school district, and the building appears to have been used continuously as a district school house, until, by virtue of Act No. 324, Local Acts 1891, approved May 13,1891, the portion of the township of Hamtramck in which the school house was located, became a part of the city of Detroit, and, by the provisions of section 9.of said act, the title to the school house lot vested in the board of education of the city of Detroit on July 1, 1892. The building was used as one of the public schools of the city for some years thereafter, but a new school having then been erected on a different site in the neighborhood, the old building was torn down, and on, September 12, 1907, the board of education, of the city of Detroit, by warranty deed conveyed the old school house lot to the Hannan Realty Company by exactly the same description by which it was deeded by Ralph Phelps to the school district. On November 6, 1908, the Hannan Realty Company conveyed, by warranty deed, the north half of the premises to William J. Crake and Mary, his wife, by the following description:
“The north half (%) of the following described property: Commencing at the intersection of the west line of quarter section forty-three (43), in the 10,000 acre tract, and the northerly line of a public highway known as the Holbrook ditch road; thence northwesterly along the said west line of said quarter section, six (6) rods ; thence northeasterly on a line parallel with the north line of said public highway or road, five (5) rods; thence southeasterly on a line parallel with said west line aforesaid six (6) rods to said northerly line of said public highway or road ; thence southwesterly along said northerly line of said highway or road five (5) rods to the place of beginning,”
and on the same day. conveyed the south half of the school house lot by a similar description to one Larraway, who conveyed to Julia Newell. Plaintiff acquired the north half of the .school house lot by warranty deed from Crake and wife containing the same description as above quoted. When he went to look over his property, he found a shortage of about 33 feet in the north and south dimension of his lot. A frame store building had been erected on the portion claimed by Julia Newell under her deed, and to the north of plaintiff’s lot was a double brick house. Plaintiff first brought ejectment against Julia Newell, but the court having directed a verdict in her favor, plaintiff is now proceeding on the theory that the owner of the property to the north has encroached upon his land.
About a year after the conveyance of the school house lot to the school district, Ralph Phelps subdivided the remainder of said west % of quarter section 43, and the plat of his subdivision was recorded April 20, 1866, in Liber 1, page 65, of plats. This plat shows the school house lot, 99 by 82.5 feet, in the southwest corner of lot 4 of said subdivision. The south line of lot 4 and of the school house lot is shown to be the north line of the Holbrook ditch road. On the plat the widtli of this road is not indicated by figures, but the width of an intersecting road is marked 66 feet, and the two roads are represented as being of exactly the same width. The ditch from which the road took its name is shown on the plat as located within the highway limits and on the southerly side of the road.
On April 21, 1866, Ralph Phelps and wife conveyed lots 3 and 4 of his subdivision (and other lots) to Frederick Baisch, and on August 5, 1873, Frederick Baisch and wife conveyed the same lots to Amos Crowton.' On, December 3, 1889, Amos Crowton sold, on land contract, to James Galloway and James D. Butterfield lots 3 and 4 of the said Phelps subdivision, excepting therefrom the school house lot in the southwest corner of said lot 4. During the same month Galloway and Butterfield subdivided said lots 3 and 4, and a plat of their subdivision was recorded December 26, 1889, in Liber 13, page 59, of plats. This plat was made on the theory that the south line of said lots '3 and 4 was the center line of Holbrook avenue as it existed at the date of said plat (the street being then 66 feet wide), and shows the school house lot as only 66 feet in length from the north line of Holbrook avenue. It also shows 33 feet taken off the westerly side of said lot for the opening of Oakland avenue, leaving the width of the lot 49.5 feet.
The respective interests of Galloway and Butter-field under the land contract were eventually acquired by one Daniel J. Smith (Mr. Butterfield’s father-in-law) and, after various proceedings in the probate court in the matter of the estate of Amos Crowton, who had deceased in the meantime, the Crowton interest was finally deeded to said Smith.
The school house.lot, as represented on Galloway & Butterfield’s plat, adjoins on the south lot 24 of said subdivision and occupies the space between lot 24 and Holbrook avenue. Lot 24 is shown as being of equal width with the school house lot and extending northerly therefrom 57.06 feet to an alley. Lot 24 remained vacant and unsold until about August 6, 1906. On this date one Walter Preston took out a building permit for the erection of a double house thereon, and on September 3,1906, Daniel J. Smith and wife conveyed the lot to Preston by warranty deed, under the description of “the northerly 57.06 feet of lot 24,” etc. A quitclaim deed by Smith to Preston on September 26, 1906, describes it as lot 24. Immediately after taking out the building permit, Preston erected the double house now on the premises. Some further conveyances follow, all of which describe the property as the “northerly 57 feet of lot 24,” but eventually the title vested, by foreclosure of a mortgage, in the Springport State Savings Bank of Springport, Jackson county, Michigan. The bank then took a quitclaim deed from Preston and wife describing the property as “lot 24.” The bank conveyed lot 24 to Mathew A. Krausman, Jr., and Ida, his wife, two of the defendants herein. The defendant Frank E. McCormick was the occupant of the premises at the time this suit was started.
It is the claim of defendants that lot 24 does not overlap the old school house lot, but that the missing 33 feet was taken off from the front of the school house lot in widening, or changing the location of, the old Holbrook ditch road. They make the further claim that, even if lot 24 does encroach upon the school house lot, they have acquired title to the portion occupied by them by adverse possession for the statutory period. On the trial in the circuit court, the jury found in favor of the defendants, and a motion for a new trial was denied.
Plaintiff’s showing as to the size and location of the school house lot was as follows: The Phelps .plat, made after the lot was conveyed to the school district and after the school house was built and the lot fenced, showed the Holbrook ditch road 66 feet wide, with the ditch occupying the southerly portion of this width, and showed the lot in question as extending 99 feet northerly from the north line of this, highway. Mr. Jerome, a surveyor and civil engineer, who was connected with the city engineer’s office at the time Holbrook avenue was paved in 1906 and conducted the paving operations, testified that the paved portion of the street extended part way over the old ditch, the south curb being at about the center of the ditch; that they had to fill in the ditch as they went along. Holbrook avenue is 66 feet wide. In order to show the length of the school house lot at the time of the Galloway & Butterfield plat, plaintiff produced several witnesses who testified to measurements and distances tending to support his claim that the lot was 99 feet long at that time, and even later.
The defendants’ evidence to show that the location of the old Holbrook ditch road and the present Holbrook avenue differed, consisted of, first, the plat of Galloway & Butterfield’s, subdivision, which shows the north line of Holbrook avenue as 33 feet north of the original south line of the school house lot and of lots 3 and 4 of the Phelps subdivision; second, the testimony of Mason L. Brown, surveyor and civil engineer, who made the survey and plat-of said subdivision; third, certain testimony as to the location of the fence along the rear of the school house lot.
The principal contention of appellant is- that the court should have directed a verdict in his favor, for the alleged reasons,—
(1) That there was no question for the jury as to the location of the north line of the Holbrook ditch road, but that it was shown beyond controversy that Holbrook avenue and the Holbrook ditch road were one and the same.
(2) That defendants failed to show sufficient evidence of adverse possession to warrant the submission of that question to the jury.
Were the defendants entitled to go to the jury on the question of the location of the old Holbrook ditch road? After a careful study of all the testimony, it is our conclusion that the court did not err in submitting this question to the jury. While the testimony offered by the defendants on this point is somewhat weak and unsatisfactory, we do not think the court would have been justified in disregarding it altogether. Notwithstanding the fact that the testimony of plaintiff’s witnesses as to the location of the pavement of the present Holbrook avenue with reference to the old ditch, when considered in comparison with the showing of the Phelps plat as to the location of the ditch and the width of the road, seems to support the contention that the city street coincided with the old township highway, sufficient doubt and uncertainty has nevertheless been thrown upon the matter by defendants’ evidence to require the submission of the question to the jury. We think that the plat of Galloway & Butterfield’s subdivision, taken in connection with the testimony of Mr. Brown, who made it, fairly raises a question. Mr. Brown testified, in part, as follows:
“I made the survey of what is now known as the ' Galloway & Butterfield subdivision. I made the plat that appears in liber 13, page 59. There is reserved from this plat a lot at the southwesterly corner having a dimension of 66 feet north and south and 82.50 feet east and west, measuring from the center line of Oakland avenue, that was what was known as the school house lot in that neighborhood.
“Q. Where did you drive your stakes for marking the southerly line of the lots which front on the north side of Holbrook avenue?
“A. On the north side of Holbrook avenue as laid out.
“Q. As laid out by whom?
“A. As laid out by that plat.
“Q. Are you acquainted with what used to be known as Holbrook ditch road?
“A. Why, yes, more or less, I thought I was.
“Q. What do you say the Holbrook ditch road and the Holbrook avenue was one and the same?
“A. It was my opinion that they were not.
“Q. On what did you base your opinion?
“A. By the location of the old school house fence and by the fact that the ditch was on the side of the road.
“Q. And according to your understanding and measurements what was the relative location of the north line of the Holbrook ditch road and the north line of Holbrook avenue?
“A. Well, I can only give you an opinion, my opinion on it as indicated by the lines of the traveled roadway, they were not the same.
“Q. To what extent were they not the same?
“A. Approximately 30 feet. * * *
“Q. You have not any other thing to base your statement that the north line of Holbrook ditch road and the north line of Holbrook avenue were other than the same, except purely an opinion?
“A. That as I have already stated owing to the fact that there was a fence on the line.
“Q. When you platted the Galloway & Butterfield subdivision, you, of course, knew that there were 99 feet or six rods in the school house lot?
“A. I presume I did from the abstract.
“Q. You figured the 99 feet beginning from the middle of what is the Holbrook avenue?
“A. No, I figured it beginning from the north side of the Holbrook ditch road.
“Q. That is your line in. the middle of the Holbrook avenue?
“A. That is what I construed it and where it was and where the fence showed it at that time.”
In our opinion, the fair inference to be drawn from Ms statement as to fixing the location of the old highway by the location of the school house fence is that he found that measuring 99 feet from the rear fence of the school house lot brought him to the middle of Holbrook avenue as it then existed, and this is what his plat shows. It is true that he does not say the rear fence, but it is obvious that he could not have referred to' the front fence, for his statement would then amount to this, that the front fence of the school house lot was in the middle of Holbrook avenue.
There was some testimony also that there existed, as late as 1909, the remnants of an old board fence a short distance south of the brick house constructed by Preston on lot 24 and in about the place where defendants claim the rear fence of the school house lot stood. While the effect of this testimony is somewhat uncertain, in view of the fact that all the witnesses on either side who claimed to have been familiar with the old school house property seemed to agree that the school house fence had entirely disappeared before the Preston house was built, and the witnesses who claimed to have seen this remnant of a fence were unable to identify it with the school house fence, having never seen the place before, still in our opinion it had some weight as evidence tending to support the defendants’ theory as to the location of the rear line of the school house lot.
In the consideration of whether, under the evidence in this case, the court erred in submitting the question of adverse possession to the jury, there should be borne in mind a fundamental rule which early received the sanction of this court. It was said in Yelverton v. Steele, 40 Mich. 541:
“The doctrine which sanctions the divestiture of the true owner by hostile' occupancy is to be taken strictly, and the case is not to be made out by inference, but by clear and cogent proof.”
Again, in Paldi v. Paldi, 95 Mich. 410, this court said:
“Adverse possession, to give title, must be an actual, continued, visible, notorious, distinct, and hostile possession, and a finding of adverse possession must set forth in explicit terms a state of facts that will satisfy the legal definition.”
It is the claim of the defendants that the testimony showed that Amos Crowton had the land from 1873 and used it as a farm as far as the north school house fence until 1889, when he sold it to Galloway & Butter-field. Both Butterfield and Smith, who was the.subsequent owner of the Galloway & Butterfield subdivision, said that they never took possession' of any land nor made any use of it, but merely let it lie as vacant lots from 1889 to 1906, 17 years, and unless this occupancy by them for the period of 17 years satisfies the requirements of the rule to establish adverse possession, the possession begun by Crowton was not continuous, and there was no further adverse possession until Smith transferred the title to- Preston, who built on the lot in 1906. From 1906 until the commencement of the suit was less than 11 years, which period would not be sufficient to establish the title by adverse possession. So that unless it can be found that the mere platting and subdividing of the property by Galloway & Butterfield is. sufficient to satisfy the requirements of the rule, the court erred in, submitting this theory of the defendants to the jury. Counsel for the defendants say in their brief:
“Every real estate man with a subdivision sees to it that his ownership, possession and control of the subdivision is the most notorious thing apparent in the vicinity. It is safe to infer that if there was a subdivision, there was open and notorious possession of it. The signs and corner stakes of the boundaries of the lots, streets and alleys of a subdivision are evidence enough of that.”
It may be true that if testimony had been introduced to show that Galloway & Butterfield went onto the property, staked it, placed signs on it, and actually occupied it, such testimony might have been sufficient evidence of open, notorious, and hostile possession to raise a question for the jury, but the infirmity of the defendants’ case is that these facts were not established, and counsel ask that they-should be inferred. As we have before stated, a case of adverse possession cannot be made out by inferences, but must be established by clear and cogent proof. This, in our opinion, the defendants have clearly failed to do, and there being an absence of proof of an actual, continuous, visible, notorious, distinct, and hostile possession for the statutory period, the court was in error in submitting this theory to the jury. It being impossible to determine which of defendants’ theories the jury accepted in rendering its verdict, it will be necessary to reverse the case and order a new trial. .It is so ordered, with costs to the plaintiff.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.
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] |
Doctoroff, C.J.
Plaintiff appeals as of right the trial court’s order granting summary disposition and awarding costs to defendant. Plaintiff argues that the trial court erred in ruling that defendant’s conduct did not constitute gross negligence, that the award of costs was improper because the filing of the complaint was justified, and that the amount of costs awarded was excessive. We affirm the grant of summary disposition, reverse the award of costs, and remand for redetermination of costs.
On October 4, 1988, plaintiff’s eleven-year-old son was injured when a steel soccer goal was pushed over on top of him at school. In November 1988, plaintiff filed an action against the school. In May 1989, plaintiff moved to amend the complaint to add the students who tipped the goal over and the school’s principal, Dale Dunham, as defendants. The trial court allowed the students to be added as defendants, but denied the motion to add Dunham.
Plaintiff filed this action against defendant Dun-ham on January 26, 1990. On February 26, 1990, defendant moved under MCR 2.116(C)(7) and (10) for summary disposition based on individual governmental immunity under MCL 691.1407(2); MSA 3.996(107)(2). The trial court granted defendant’s motion, ruling that no reasonable juror could conclude that defendant "was so reckless as to demonstrate a substantial lack of concern.”
Plaintiff first argues that the trial court erred in ruling that defendant’s conduct did not constitute gross negligence.
A motion for summary disposition may be brought under MCR 2.116(C)(7) on the ground that a claim is barred by governmental immunity. The motion may be supported or opposed by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(5); Paterek v 6600 Limited, 186 Mich App 445, 447; 465 NW2d 342 (1990). In deciding a motion for summary disposition under MCR 2.116(C)(7), the court reviews the plaintiff’s complaint to see whether facts have been pleaded justifying a finding that recovery in a tort cause of action is not barred by governmental immunity. Pawlak v Redox Corp, 182 Mich App 758, 763; 453 NW2d 304 (1990).
MCL 691.1407; MSA 3.996(107) provides in relevant part:_
(2) Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each . . . employee of a governmental agency . . . shall be immune from tort liability for injuries to persons or damages to property caused by the . . . employee . . . while in the course of employment or service ... if all of the following are met:
(a) The . . . employee ... is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The . . . employee’s . . . conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, "gross negligence” means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.
The first two elements are not at issue here. Plaintiff, relying on Tallman v Markstrom, 180 Mich App 141; 446 NW2d 618 (1989), argues that whether defendant’s conduct amounted to gross negligence as defined by the statute is a question for the jury. In Tallman, this Court reversed a grant of summary disposition under MCR 2.116(C) (7) to the defendant, who taught a woodworking class during which Nicholas Tallman suffered injury while operating a table saw. The plaintiff, next friend of Nicholas, claimed the defendant was negligent in permitting Nicholas’ use of a table saw unequipped with guards or safety devices. This Court held:
We believe plaintiff’s second amended complaint alleged sufficient conduct to support a claim of gross negligence in avoidance of governmental immunity. Generally, once a standard of conduct is established, the reasonableness of an actor’s conduct under the standard is a question for the factfinder, not the court. Forche v Gieseler, 174 Mich App 588; 436 NW2d 437 (1989); Clink v Steiner, 162 Mich App 551; 413 NW2d 45 (1987). The trial court therefore erred in finding plaintiff, as a matter of law, failed to plead sufficient facts in avoidance of governmental immunity. [180 Mich App 144.]
We reject the suggestion that Tallman precludes a grant of summary disposition in every case in which a plaintiff alleges that negligent conduct by a defendant government employee resulted in injury. The more appropriate view is that summary disposition is precluded in cases in which reasonable jurors could honestly have reached different conclusions with regard to whether the defendant’s conduct amounted to gross negligence. However, if, on the basis of the evidence presented, reasonable minds could not differ, then the motion for summary disposition should be granted. Cf., Vsetula v Whitmyer, 187 Mich App 675, 682; 468 NW2d 53 (1991) (where reasonable minds could not differ, the trial court may decide the issue of proximate cause as a matter of law).
After reviewing the record, we agree with the trial court that the undisputed facts in this case preclude a finding that defendant’s conduct amounted to gross negligence. Defendant became aware that the goals could be tipped over approximately one to two weeks before plaintiff’s son was injured. He then asked his maintenance supervisor to determine how the goals could be anchored, checked with the maintenance supervisor on his progress, made announcements in school instructing the children to stay off the goals, and disciplined students for climbing the goals. The trial court properly granted defendant’s motion for summary disposition.
Next, plaintiff claims that the award of costs was improper. Plaintiff argues that the complaint was not frivolous.
A trial court’s finding with regard to whether a claim or defense was frivolous will not be disturbed on appeal unless the finding is clearly erroneous. State Farm Fire & Casualty Co v Johnson, 187 Mich App 264, 268; 466 NW2d 287 (1991).
In awarding costs to defendant, the trial court stated that before this action had been filed it had denied plaintiff’s motion to amend the complaint in the action against Kolb Middle School to add Dunham as a defendant because such an amendment would be futile. The trial court then stated that sanctions were warranted because, despite the trial court’s earlier ruling, plaintiff filed this separate action against defendant. Upon review of the record, we conclude that the trial court was correct in finding that plaintiff knew of the lack of merit in his allegations against defendant when plaintiff’s motion to amend the complaint in the action against Kolb Middle School was denied. Filing another action with essentially the same allegations was therefore frivolous.
Plaintiff also argues that the amount awarded was excessive.
MCL 600.2591; MSA 27A.2591, provides in relevant part:
(1) Upon motion of any party, if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney.
(2) The amount of costs and fees awarded under this section shall include all reasonable costs actually incurred by the prevailing party and any costs allowed by law or by court rule, including court costs and reasonable attorney fees.
The trial court awarded defendant $4,454.68 in costs and fees. The bill of costs submitted by defendant includes approximately twenty-three hours attributed to researching and drafting the motion for summary disposition. The motion and brief consist of only ten substantive pages. Considering the issue presented and defendant’s argument, and noting the similarity of the introductory paragraphs of defendant’s argument in this case and in the brief in support of the motion for summary disposition in the Kolb Middle School case, the amount of time expended appears excessive. Also included in the bill of costs were charges for transcripts of depositions that were taken in the action against Kolb Middle School. Defense counsel stated that he charged fifty percent of the costs of those transcripts to this case and the other fifty percent to the Kolb Middle School case. Half of the transcripts listed in defendant’s bill of costs are not cited in the brief in support of defendant’s motion for summary disposition. Furthermore, the statement of facts in the brief in support of defendant’s motion for summary disposition in this case and in the brief in support of defendant’s motion for summary disposition in the Kolb Middle School case are substantially similar. In fact, many paragraphs are identical. Therefore, although some overlap of the charges could be expected, we conclude that the trial court erred in charging plaintiff with the costs and fees incurred by defense counsel in the Kolb Middle School case, inasmuch as those costs and fees are identified in defendant’s bill of costs. Therefore, we reverse the award of costs and remand for redetermination of costs and fees in accordance with MCL 600.2591; MSA 27A.2591.
Defendant’s request for actual and punitive damages pursuant to MCR 7.216(C) is denied.
Affirmed in part, reversed in part, and remanded for redetermination of costs and fees. We do not retain jurisdiction.
The school’s motion for summary disposition was granted by the trial court. Plaintiff has appealed the trial court’s ruling. That appeal is Vermilya v Kolb Middle School, Docket No. 134120. | [
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Fellows, J.
Plaintiff’s decedent, a Russian subject, was killed on May 15, 1915, while in the employ of the defendant. The parties were not operating under the workmen’s compensation act. Defendant was constructing an electric-line from Kalamazoo to Grand Rapids. The line had not been put in operation for the public, but it was sufficiently complete so that cars were* being run over it. It was operated by the “third rail” system, carrying 2,400 voltage. The third rail was from 30 to 32 inches from the track rail. The gang with which decedent was working was engaged in aligning the track. Decedent and others were between the third rail and the track rail with iron bars preparing'to heave the track over on receiving the signal so to do. In some way deceased fell, his foot coming in contact with'the third rail; there is also some testimony that the iron bar which he held in his hand came in contact with both the third rail and the track rail. It is claimed that defendant was negligent in not providing a safe place and safe tools with which, to work; that it should have covered the third rail to protect the employees working near it when it was so heavily charged with electricity, and should have provided insulated tools with which to work. The accident occurred in Allegan county, where the gang was then staying, and plaintiff was appointed administrator by the probate court of that county on the 14th day of January, 1916, on the petition of Antoine Wolff, imperial Russian consul for the consular district within which this State is included. We shall have occasion to detail the facts more fully as we proceed.
Defendant insists that the plaintiff may not maintain this action for the reason that he had not been validly appointed administrator of the estate of decedent. It is pointed out that the proof shows decedent to have been a resident of Kalamazoo and but temporarily in Allegan county when he met his death ; it is also insisted that the Russian consul for this consular district had not sufficient authority to confer jurisdiction by his petition on the probate court for Allegan county to make^the appointment. It must be borne in mind that we are not here dealing with an appointment of a special administrator, or the issuance of ancillary letters of administration; which are ex parte, and both without notice of hearing, nor with a direct proceeding to review the judgment of the probate court. The question here raised is by collateral attack upon a decree of the probate court. Upon such attack the court may not retry the question of residence. Carney v. Carney, 199 Mich. 663. If, however, the probate court acquired no jurisdiction under the petition filed another question is presented. We do not understand it to be claimed that the proceedings of the probate court of Allegan county do not comply with the statute, nor that decedent had any near relatives within this jurisdiction.
Plaintiff insists that by treaty with Russia, the right to administer the estates of Russian subjects dying in this country is given to the Russian consul. By the treaty of 1832, between this country and His Majesty the Emperor of all the Russias (8 U. S. Stat. 444, 448), it was provided by Art. 8:
“The two contracting parties shall have the liberty of having, in their respective ports, consuls, vice-consuls, agents and commissaries of their own appointment, who shall enjoy the same privileges and powers, as those of the most favored nations; * * *”
By this provision the Russian consuls were given the privileges and powers of the consuls of the most favored nations, thus provisions in the treaties between this and other countries granting powers to consuls gave to Russian consuls the powers of consuls of the most favored nations. The treaty concluded between this country and the Argentine Confederation, July 27, 1853 (10 U. S. Stat. 1005), gives broad powers to the consuls of that republic. Such powers as are given by the Argentine treaty inure to the benefit of Russian consuls under the “most favored nations” clause. By Art. 9 of the last named treaty, it is provided :
“If any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the consul-general or consul of the nation to which the deceased belonged, or the representative of such consul-general or consul, in his absence, shall have the right to intervene in the possession, administration, and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs.”
The question of the power and privileges of consuls under the most favored nations clause has not been before the courts with any degree of frequency. In some cases the right of the consul perforce of his office to be appointed administrator of the estates of the subjects of his sovereign has arisen. In McEvoy v. Wyman, 191 Mass. 276, and in Carpigiani v. Hall, 172 Ala. 287, such right was upheld. In the Massachusetts case the question arose • between the consul and the public administrator provided for by the laws of the State. In Re Fattosini’s Estate, 67 N. Y. Supp. 1119, and in Re Lobrasciano’s Estate, 77 N. Y. Supp. 1040, the surrogate’s court for Westchester county, New York, upheld such right, while in Re Logiorato’s Estate, 69 N. Y. Supp. 507, the right of the consul as a right was denied, but the consul was appointed. We shall have occasion to refer to this case later. In Lanfear v. Ritchie, 9 La. Ann. 96, the right was denied. The supreme court of California, in Estate of Ohio, 157 Cal. 552, denied the right of the consul to be appointed administrator. As this case was reviewed in the United States Supreme Court and is the case in which that court construed the clause of the Argentine treaty, above quoted, the case is of prime importance. The State of California has a public administrator. By its statutes he shall act as administrator in the absence of next of kin entitled to inherit. The deceased was a subject of Italy, the consuls of which nation by its treaty with this country, were entitled to the benefit of the most favored nations clause. Both the Italian consul and the public administrator petitioned for appointment as administrator. The court thus clearly stated the issue:
“Our law declares that in the absence of next of kin entitled to inherit, the public administrator shall take charge of and administer the estate for the benefit of the creditors and heirs. The right claimed under the treaty is that, in such a case, the consul of the country of which the deceased was a citizen shall take charge and administer; a right directly in conflict with our law.”
The court sustained the right of the public adminis trator to the appointment; but it is worthy of note that in the concluding portion of the opinion, in discussing the duty and rights of the consul, the court said:
“He has, in áddition a duty pertaining to his office imposed upon him by his own government, that of seeing to the safe keeping and proper disposition of the effects of citizens of his country who may die while traveling, or while temporarily present in the country to which he is accredited, or even while residing therein, and for that purpose, in the absence of any other representative of the deceased having a better right, he may ‘intervene in the possession’ of' the estate, conformably with the laws of the country. The custom of nations would permit this and it may be that, if the public administrator refuses or fails to apply, the consul may petition for and receive letters to himself as the official agent for the persons interested.”
The case went to the Supreme Court of the United States, where it was affirmed. Rocca v. Thompson, 223 U. S. 317. The case deals extensively with the subject and the construction of the word “intervene” found in the treaty with the Argentine Republic. The language of that treaty was construed not to give to the consul the right to administer the estate, and the law of California, with reference to administration by the public administrator, was held to control. We must, therefore, assume that the law is settled that the consul of the Russian Government, perforce of the treaty with this country, was not entitled to administer this estáte.
But our problem in the instant case is but partially solved when we have reached this conclusion. There still remains the question for solution as to whether the consul, perforce of his official position, may initiate probate proceedings by petitioning for administration of the estate of a deceased subject of his sovereign, and where, as here, the next of kin are subjects of the country from which, he is accredited. This involves his powers and privileges under the laws of nations and the doctrine of comity:
“A consular officer is, by the law of nations and by statute, the provisional conservator of the property within his district belonging to* his countrymen deceased therein.” 2 Cyc. p. 271.
“A foreign consul, without specific authority, has the general right to protect the rights and property of persons of his nation within the jurisdiction of his consulate, and he may bring suits for such purpose without any special authority from the parties in interest.” 2 C. J. p. 1307.
“One of the most important duties pertaining to the office of a consul and imposed upon him by his own government is that of seeing to the safekeeping and proper disposition of the effects of citizens of his country who may die while traveling or while temporarily present in the country to which he is accredited or even while residing therein. In the absence of any other representative of the deceased having a better right, a consul is authorized to intervene in the possession of the estate conformably to the laws of the country. There can be no possible doubt concerning the general propriety of such a practice. The duty, and by comity the authority, of a consul to receive and care for the personal estate of a citizen of his own country who may die within his consulate, and to protect the estate from spoliation, is prescribed and recognized by all civilized nations.” 9 R. C. L. p. 158.
Secretary of State Marcy, in a letter to Mr. Aspinwall on August 21, 1855, after requesting consuls of our government to act as administrators of the estates of deceased citizens of this country who die in foreign countries, said:
“Indeed, this is one of the most sacred and responsible trusts imposed by their office, and in this respect they directly represent their government in protecting the rights and interests of the representatives of deceased citizens.” 1 Wharton International Law Dig. p. 782.
Recurring again to In re Logiorato’s Estate, supra, we find that while the court there construed the treaty with the Argentine Republic as later did the United States Supreme Court,- and, therefore, held that, perforce of his official position, the consul was not entitled to the appointment as administrator, an examination of the case discloses that the petition for the administration of the estate was made by the consul and the consul was appointed administrator; the real question in the case was whether the consul, if appointed, should be required to give a bond. The cases quite unanimously agree that where a foreign consul is appointed he should be required to give the usual administrator’s bond, as are other administrators, and we think such is the established practice.
While the supreme court of Louisiana held in Lanfear v. Ritchie, supra, that the consul was not entitled to the appointment as administrator, in the later case of Succession of Rabasse, 47 La. Ann. 1452, the same court had before it the right of the French consul, under the treaty between this country and France, to appear for French heirs in a proceeding in which they were interested. The court sustained such right, and held that the consul had the same right to represent them, by force of the treaty and his office, that he would have had by force of express authority from them; the court saying:
“In our view the stipulation in this treaty puts the delegate in the position of an agent of the French heirs, with the same effect as if he held their mandate to represent them as heirs.”
The Supreme Court of the United States in 1821 fixed the status of foreign consuls in the case of The Bello Corrunes, 6 Wheat. (U. S.) 152. The court there said:
“On the first point made by the attorney general, this court feels no difficulty in deciding, that a vice- consul duly 'recognized by our government, is a competent party to assert or defend the rights of property of the individuals of his nation, in any court having jurisdiction of causes affected by the application of international law. To watch over the rights and interests of their subjects, wherever the_ pursuits of commerce may draw them, or the vicissitudes of human affairs may force them, is the great object for which consuls are deputed by their sovereigns; and in a country where laws govern, and justice is sought for in courts only, it would be a mockery to preclude them from the only avenue through which their course lies to the end of their mission. The long and universal usage of the courts of the United States, has sanctioned the exercise of this right, and it is impossible that any evil or inconvenience can flow from it.”
But the court, having fixed the right of the consul to institute proceedings in court, further said:
“Whether the powers of the vice-consul shall in any instance extend to the right to receive in his national character, the proceeds or property libelled and transferred into the registry of a court, is a question resting on other principles. In the absence of specific powers given him by competent authority, such a right would certainly not be recognized.”
This State recognizes the right of consuls to notice of probate proceedings where there are subjects of foreign countries interested. 3 Comp. Laws 1915, § 13837.
We conclude, therefore, from our examination of this question that this consul of the Russian government, perforce of both his duty to conserve the estate of a deceased subject of his government, and as representative of the next of kin who were also subjects of his government, had the right to institute proceedings for the appointment of an administrator.
Defendant insists that there was no evidence of negligence. This was one of the reasons assigned in the motion and requests for a directed verdict and for judgment non obstante under the Empson act (Act No. 217, Pub. Acts 1915, 3 Comp. Laws 1915, § 14568 et seq.). We cannot agree with this contention. There was testimony pro and con by men experienced in railroading on this subject, most of it directed to the question of covering the third rail so as to prevent contact with it while employees were working in close proximity to it. The third rail was protected on both sides and defendant had provided a plank or board to cover over the top of the rail to prevent injury to employees by contact with it when they were performing certain kinds of labor. It was not so protected on- this occasion. Defendant insists that in aligning the track they moved from place to place so frequently as to render this covering of the track impractical. We do not think the testimony makes out a case where we can say, as matter of law, that defendant’s claim, that under all the testimony its negligence is not proven, is undisputed. It is not made to appear that on these occasions when the track was covered the dangers were so much greater than on the occasion in question, as to prompt a covering of the third rail on one occasion and not on another. One of the witnesses testified:
“When the bosses were coming, the road master or some other high official, they were told to cover up the third rail but when there wasn’t anybody there they didn’t have to cover up.”
While an employee of defendant and who, from his testimony, appears to have been its engineer or in charge of construction, among other things, testified:
“Working around this rail is a hazardous occupation, so dangerous that when we call our men to shovel anywhere around it we make a practice of. guarding the rail with a board on top of it. * * *
“We kept all our men away from the third rail, and the work was done more from the center of the track than the ordinary third rail road would be. On the ordinary third rail road with a low voltage they don’t pay very much, attention to the third rail, itself, but in our case we had to — we did our work very much different, to keep them in the center between the rails. One of the differences in doing the work was, in aligning the track we kept our men in the center of the track more than would be customary with the ordinary railroad. Another difference was, if a man, if a man had to, in an ordinary third rail road, he would simply work around the third rail and step back and forth over it and pay no attention particularly to it,_ but in our case, if a man had any business on the third rail or around it, we covered the rail so he could not come in contact with it.”
We canhot say upon this record that no negligence of the defendant was proven; this third rail carrying a high voltage was exceedingly dangerous; contact with it meant almost certain death. Defendant was put to work in the space between it and the running rail from 30 to 32 inches wide. It had been raining and the ground was slippery.
“The handling of electrical currents of high voltage is a business extremely hazardous, and those engaged in that business are charged with the duty of exercising a very high degree of care for the protection of life.” Huber v. Electric Co., 168 Mich. 531.
The case was submitted to the jury on the theory that if death was instantaneous the death act applied and the measure of damages recoverable under that act was stated to the jury. The case was also submitted to the jury upon the theory that if they did not find the death to be instantaneous then the recovery, if one was had, must be under the survival act, and the measure of damages under that act was stated to the jury.
Defendant insists: That there can be no recovery under the death act, because there is no competent evidence that deceased left dependents toward whose support he contributed; nor may there be a recovery under the survival act, because the evidence shows con clusively that death was instantaneous, and that therefore no recovery may be had under either act. The evidence discloses that decedent left surviving him a mother, aged 63 years, a resident of Russia. There was testimony by a witness who knew and lived near decedent and his mother in the old country, that she worked a small farm and received money from deceased. There is testimony that on three occasions deceased sent his mother money; on one occasion 50 roubles, on another occasion 120 roubles, and on another occasion 150 roubles. It was competent for the plaintiff to show these transactions by witnesses who accompanied deceased when he went to the bank on these different occasions; it was competent to show that he sent Russian roubles to his mother by mail, and it was permissible to show by the witness that he knew the money was being sent to her because he saw her name. The books of the bank might be more convincing, but, under the circumstances, they were not of a higher grade of evidence so as to exclude the offered proof upon the ground that it was not the best evidence obtainable. There was evidence that the bank he went to on some of these occasions was in another State and at the time of the trial was out of existence. But defendant insists that even if the testimony was admissible the case is controlled by Ormsbee v. Railway Co., 197 Mich. 576. The instant case is clearly distinguishable from that case. There the father (decedent), as a matter of parental good will, made some slight gifts, purely voluntary donations, to his adult children, all of whom were comfortably married and living apart from him, and none of whom were legally entitled to support from him. Here the deceased, who was legally obligated to support his mother, sent her cash from his earnings to discharge such obligation. The case on this question is not unlike Kalcic v. Newport Mining Co., 197 Mich. 364. The trial court very carefully limited the recovery, if death was instantaneous, to the amount that would fairly compensate the mother for her pecuniary loss. There was testimony justifying the submission of this question to the jury, and there was no error in the manner of its submission.
There was a sharp’ conflict in the testimony as to whether the direct cause of the death continued to Operate directly upon the injured person until life was extinct. The jury would have been justified in finding from some of the testimony that decedent had expired when he was removed from the third rail and contact with the current ceased, and that such evidences of life as continued were but spasmodic muscular movements. On the other hand, there was testimony that decedent continued to breathe for some seventeen or eighteen minutes after he had been removed from the third rail and the direct cause of death had ceased to operate directly upon him; that on three occasions during this time, and a few minutes apart, he used a Russian expression equivalent to our expression of' pain, “Oh!” the first two of these quite strong and the third in a whisper; and that at the expiration of the time above stated he looked around at his companions, several of whom were Russians, sighed and ceased to breathe. We are impressed that there was sufficient testimony to take this question to the jury. Olivier v. Railway Co., 134 Mich. 367; Ely v. Railway, 162 Mich. 287; Lobenstein v. Iron Works, 192 Mich. 118.
We are satisfied that there was testimony taking the case to the jury and that the verdict was not against the clear weight of the evidence. Wé have examined all the errors assigned and find no reversible error.
The judgment will be affirmed.
Bird, Moore, Steere, Brooke, and Stone, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit. | [
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] |
Brooke, J.
(after stating the facts). No portion of the debt for which suit was brought was contracted between the 8th day of September (the last day upon which the report could properly have been filed), and the 11th day of September, the day upon which it was actually filed. The question is presented whether the period of “such neglect or refusal” starts at the end of the fiscal year or is to be computed from the expiration of the 70 days allowed by the statute within which the directors may properly file their report. It seems clear that the directors are not in default during any of the time allowed by the statute for filing, and that their “neglect or refusal” commences only after the days of grace have expired. The case of Reuter Hub & Spoke Co. v. Hicks, 181 Mich. 250, is relied upon as authority by counsel for appellant. In that case it will be found we were dealing with the language of the earlier statute and it cannot be said to be controlling in the case at bar. American Brass Co. v. Emery, 189 Mich. 593.
The judgment was prpperly directed and is therefore affirmed.
Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred with Brooke, J.
Ostrander, C. J.
I do not see what the law of 1915 has to do with the case, and therefore do not concur in this opinion. | [
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Brennan, J.
Following a hearing, defendant was convicted of probation violation for testing positive for thc, a chemical found in marijuana, and for driving while his license was suspended. Defendant’s probation was revoked and he was sentenced to 5 to 22 Vi years in prison for his underlying convictions of breaking and entering an occupied dwelling with intent to commit a felony, MCL 750.110; MSA 28.305, and of being a second-felony offender, MCL 769.10; MSA 28.1082. He appeals as of right, and we affirm.
Defendant first argues that the court improperly denied him credit for time he spent in a tether program. Because defendant’s participation in the tether program was not due to his being denied or unable to furnish bond for the offense of which he was convicted, he is not entitled to sentence credit under the sentence credit statute, MCL 769.11b; MSA 28.1083(2). People v Wagner, 193 Mich App 679; 485 NW2d 133 (1992); People v Whiteside, 437 Mich 188, 196; 468 NW2d 504 (1991). Moreover, we note that the Double Jeopardy Clauses of the federal and state constitutions, US Const, Am V; Const 1963, art 1, § 15, do not mandate an award of sentence credit for the time defendant spent in the tether program. "Sentence credit under the double jeopardy clauses is only required for confinements amounting to time spent 'in jail’ as that term is commonly used and understood.” Wagner, supra, p 682, citing Whiteside, supra, p 202. The tether program is a restriction, not a confinement, and is not "jail” as that term is commonly used and understood.
Defendant next argues that there was insufficient evidence to establish a probation violation. The record reveals that defendant admitted driving during the time his license was suspended. Moreover, defendant tested positive for thc, even allowing for a margin of error. A prosecution witness testified that the test result was accurate. There was no evidence indicating otherwise. Viewing this evidence in a light most favorable to the prosecution, we find that a rational trier of fact would conclude that the preponderance of the evidence indicated that defendant violated his probation. People v Ison, 132 Mich App 61, 66; 346 NW2d 894 (1984).
Finally, defendant contends that his sentence was disproportionate. The sentencing guidelines do not apply to habitual offenders or to defendants convicted of probation violation. People v Randolph Warner, 190 Mich App 26, 29; 475 NW2d 397 (1991); People v Hoffer, 193 Mich App 624; 484 NW2d 781 (1992). However, we note that the guidelines recommended zero to eighteen months of imprisonment and defendant was sentenced to a prison term of 5 to 22 Vz years. The trial court tried putting defendant into substance abuse programs, confining him to short jail periods totaling nine months, and finally tried to put him in the tether program. Despite the trial court’s efforts, defendant came before the court three times, incurring five probation violations. Accordingly, we find that the sentence is proportionate to the circumstances surrounding the offense and the offender. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
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Per Curiam.
Defendant appeals as of right his conviction by a jury of absconding while on bond, MCL 750.199a; MSA 28.396(1), and his prison sentence of thirty-two to forty-eight months, arguing that the trial court erred in not allowing him to present his defense aimed at jury "nullification,” and that he should be resentenced by a single judge in both this matter and for the underlying offenses. We affirm.
As his first issue, the defendant claims that the trial court erred in precluding him from presenting to the jury his motive for absconding: he believed that he needed to be represented by the attorney he had hired to be trial counsel, rather than the attorney who was only to do pretrial investigation and make pretrial appearances. According to the defendant, this res gestae evidence was relevant because it would prompt the jury to exercise its power of nullification. Jury nullification is the power to dispense mercy by nullifying the law and returning a verdict less than that required by the evidence. People v St Cyr, 129 Mich App 471, 473-474; 341 NW2d 533 (1983).
Although the jury has the power to disregard the trial court’s instructions, it does not have the right to do so. Id., p 474. We need not address the issue whether juries should be told of the power of nullification. Rather, we must decide whether a defendant is entitled to present a defense that does nothing more than present facts that are aimed solely at prompting jury nullification. This is an issue of first impression in Michigan.
A trial court may exclude from the jury testimony concerning a defense that has not been recognized by the Legislature as a defense to the charged crime. In People v Hocquard, 64 Mich App 331; 236 NW2d 72 (1975), this Court affirmed the trial court’s decision to exclude the defendant’s testimony concerning the defenses of duress and necessity, holding that the defense of necessity is a very limited defense to prison escape and that the defendant failed to establish its elements. Likewise, in People v Peach, 174 Mich App 419, 428-429; 437 NW2d 9 (1989), this Court held that the trial court properly refused the defendant’s request to present evidence of her intent to make restitution as a defense to a charge of false pretenses over one hundred dollars. In People v Rau, 174 Mich App 339; 436 NW2d 409 (1989), this Court held that the trial court did not abuse its discretion by precluding the defendant from presenting evidence regarding the defense of duress where the defendant was charged with possession of a dangerous weapon by an inmate, determining that while the defense of duress could be raised against a charge of prison escape, duress could not be allowed as a defense to possession of a dangerous weapon by an inmate because there is no threat to individuals’ safety by an escape and the Legislature has not extended the defense to the charged crime. Id., p 342. Duress was not allowed as a defense in Rau also as a matter of public policy to protect the safety of prison personnel and other inmates. Id.
Similarly, we cannot endorse jury nullification as a defense to absconding while on bail. The Legislature enacted this statute to ensure that criminal defendants do not impede the judicial process by failing to be present at court proceedings. People v Perryman, 432 Mich 235, 241; 439 NW2d 243 (1989), citing People v Litteral, 75 Mich App 38, 43; 254 NW2d 643 (1977). The purpose of this statute would be nullified if an absconding defendant were allowed to present a defense of jury nullification, because defendants could decide to flee from trial and then seek mercy from a jury. Moreover, such a defense is inconsistent with the absconding statute because the statute does not require the specific intent to abscond. People v Rorke, 80 Mich App 476, 478; 264 NW2d 30 (1978); Litteral, p 44, n 2. In the absence of the Legislature’s recognition of jury nullification as a defense to the instant offense, we decline to find error in a trial court’s decision to preclude a defendant from presenting evidence of this defense.
Defendant next argues that he is entitled to resentencing before a single judge for his absconding conviction and the underlying charges of criminal sexual conduct because each sentencing judge considered his absconding. See People v Bryars, 168 Mich App 523, 526-528; 425 NW2d 125 (1988). Unlike Bryars, the defendant in this case has not consolidated his separate appeals for his criminal sexual conduct convictions and his absconding conviction. The only record before us is the one concerning the defendant’s absconding conviction. We cannot grant the requested relief when the defendant failed to present this Court with the record of the criminal sexual conduct proceedings. People v Calloway, 169 Mich App 810, 817; 427 NW2d 194 (1988) , vacated on other grounds, 432 Mich 904 (1989) . We may consider the defendant’s sentence for absconding. However, the defendant’s argument that he was prejudiced when the sentencing judge considered the effect his absconding had on the criminal sexual conduct victims does not overcome the presumption that his sentence, because it was within the guidelines range, was neither excessively severe nor unfairly disparate. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990); People v Broden, 428 Mich 343, 354; 408 NW2d 789 (1987); People v Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991).
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] |
Per Curiam.
Following a two-day bench trial, on May 21, 1990, the Wayne Circuit Court granted a judgment of no cause of action against plaintiffs, Downriver Plaza Group, a Michigan copartnership, and Lewis George, personal representative of the estate of Nicholas Géorge, deceased, in favor of defendant City of Southgate. Plaintiffs now appeal as of right from the judgment of the trial court. We reverse and remand.
i
Plaintiffs filed this class action on behalf of themselves and those individuals who reside in defendant city and were billed on their 1988 and 1989 city tax bills for user charges for the South-gate-Wyandotte Drainage District (swdd). Plaintiffs alleged that the user charges for operation and maintenance were invalid and sought recovery of any monies paid for the user charges on their 1988 and 1989 city tax bills. The swdd services the City of Wyandotte and sixty percent of the population of defendant.
In 1975, defendant, through Wayne County, received a federal grant in the amount of $40,793,-250 for the construction of pollution control devices within the swdd. On April 17, 1975, the Southgate City Council adopted Resolution No. 551-75, in which it agreed "to 'implement a system of User Charges’ ” to assure that all users would pay a proportionate share of the operating and maintenance costs of the system.
From 1980 through 1987, operation and maintenance fees were assessed against defendant but were paid by the Wayne County Drainage Board out of excess construction funds. Because the excess construction funds had been depleted, on or about March 17, 1988, the county drainage board sent defendant notice of the user charges for which it was responsible.
On April 13, 1988, the Southgate City Council conducted a public hearing regarding the establishment of user charges for the swdd. On April 27, 1988, Resolution No. 94-88 was adopted at a public hearing. Under that resolution, defendant resolved to apportion the costs of operating, maintaining, and replacing facilities of the swdd as proposed by the county drainage board and set forth the geographic area responsible for the operation and maintenance costs.
Pursuant to Resolution No. 94-88, defendant included the operation and maintenance costs for the drainage district on the tax bills for the summer and winter of 1988 and on the summer 1989 tax bill.
By resolution adopted at a public hearing on January 3, 1990, the Southgate City Council resolved, among other things, that the individual user formula presented on April 13, 1988, would be readopted and that any objections to the user-charge formula should be filed within twenty-eight days of the annual adoption of the user charge. Under that resolution, defendant also resolved to affirm or reaffirm the costs of operating and maintaining the swdd for fiscal years December 1, 1987, through November 30, 1991, and to assess annual costs in compliance with the user-charge formula.
The trial court limited the discussion in its opinion to two issues. First, it found that defendant had the authority to impose a user fee for the operation and maintenance of the swdd. Second, it concluded that defendant had rectified the defects in its original efforts to assess a user charge, and, in adopting the resolution dated January 3, 1990, defendant had properly implemented the user charges. Specifically, the trial court found that the January 3, 1990, resolution had retroactive effect from December 1, 1987, and, accordingly, entered a judgment of no cause of action in favor of defendant and against plaintiffs.
Plaintiffs now appeal as of right from the trial court’s judgment.
ii
Plaintiffs first argue that the trial court erroneously found that the January 3, 1990, resolution retroactively created user charges for the years 1988 and 1989. Plaintiffs claim that giving that resolution retroactive effect was in violation of their rights of due process. We agree.
In Metro Homes, Inc v City of Warren, 19 Mich App 664; 173 NW2d 230 (1969), the facts indicated that on January 13, 1959, the Warren City Council adopted a resolution that attempted to impose "sewer tap charges” on structures built after the date of the resolution; however, the council exempted existing structures from the charges. In Beauty Built Construction Corp v City of Warren, 375 Mich 229; 134 NW2d 214 (1965), our Supreme Court had decided with regard to the same resolution that, by exempting the previously built structures from the charge, the city denied those who built after the date óf the resolution equal protection of the law. In an attempt to cure the invalid resolution, on April 20, 1965, the Warren City Council had enacted an ordinance that retroactively extended the fee requirement to all structures. Nevertheless, this Court held that the 1965 ordinance could not be givén retroactive effect. Metro Homes, supra at 667. In refusing to give the newer legislation retroactive effect, this Court stated that considerations of due process limit the reach of retroactive legislation that would otherwise impair vested rights. Id. at 670. Further, the right to due process prohibits a municipal corporation from imposing a liability for payment of charges for a past act if an enforceable obligation was not in place when the act occurred. Id. at 671. However, this rule is limited to cases where the reason underlying the immunity from liability compels the continuance of the immunity. Id. at 671-672.
In this case, the trial court’s opinion in response to the parties’ cross motions for summary disposition declared that Resolutions Nos. 94-88 and 551-75 were unenforceable because they failed to set forth a rate for imposing a service charge as required by the city charter. Plaintiffs’ immunity from liability for the user charges was not a mere technicality. We believe that it would be a violation of plaintiffs’ rights of due process to allow the municipality to keep the money gained through violation of the city charter. Moreover, property owners cannot be expected to anticipate the amount of taxes to be assessed at some future date merely because they were put on notice several years previously that a special charge would be assessed.
We hold that the January 3, 1990, resolution should be given prospective effect only. In light of the possibility that some of the property has changed hands, plaintiffs are entitled to a refund of whatever monies were paid in violation of their rights of due process. Our holding reaffirms the principles set out in Metro Homes.
hi
Plaintiffs next argue that Resolution No. 206-89, adopted August 30, 1989, did not validly establish user charges for operation and maintenance costs.
The trial court determined that the January 3, 1990, resolution established a rate for implementing user charges and that the assessments had retrospective effect from December 1, 1987. It made no finding regarding whether the August 30, 1989, resolution validly established a user charge. If the August 30, 1989, resolution creates an enforceable obligation, plaintiffs could be assessed user charges beginning on that date. We remand to the trial court for a finding with regard to whether the August 30, 1989, resolution validly implemented a user charge.
IV
We reverse the trial court’s judgment and remand to the trial court for a determination with regard to the prospective validity of the August 30, 1989, resolution establishing user charges. We direct the city to refund the monies collected in violation of plaintiffs’ rights of due process. We do not retain jurisdiction. | [
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Corrigan, J.
In this negligence action, plaintiff Galena Pavlov appeals as of right from the trial court’s grant of summary disposition based on defendants’ immunity under the former emergency medical services act (emsa), MCL 333.20701 et seq.; MSA 14.15(20701) et seq. We affirm.
Plaintiff and her forty-one-year-old husband Aleksandr were visiting friends on the night of June 19, 1988, when Mr. Pavlov, who had been drinking alcohol and swimming, began experiencing shortness of breath. After someone called 911, an emergency medical services (ems) unit was dispatched to the house. The ems crew found Mr. Pavlov lying down, "complaining of shortness of breath and pain radiating to the left arm.” He was given oxygen. An advanced ems (aems) team (defendants Robert Latrielle and Christopher Newell) arrived and performed an electrocardiogram (ekg). The results were normal. The aems team removed the oxygen mask and Mr. Pavlov appeared to improve. When he asked if he should be seen by a doctor, defendants replied that he should. Mr. Pavlov said that his family would take him and he signed a release form, waiving transportation to a hospital. Defendants left the premises. Plaintiff then briefly left the room. She returned to find Mr. Pavlov lying on the floor in full cardiac arrest, ems personnel were summoned again and attempted resuscitation without success. Mr. Pavlov was later declared dead at a local hospital.
Plaintiff timely filed a three-count complaint against the two aems technicians and their private employer. She alleged negligence, wilful and wanton misconduct, and gross negligence. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). Defendants asserted immunity under the then governing provisions of the emsa because plaintiff had failed to state a claim of either wilful misconduct or gross negligence that would avoid the statutory bar. The trial court granted defendants’ motion as to all three counts.
I. IMMUNITY UNDER THE EMERGENCY MEDICAL SERVICES ACT
At the time plaintiffs claim arose, Michigan expressly excepted emergency medical personnel from negligence claims relating to the performance of their duties. The applicable statute provided:
When performing services consistent with the individual’s training, acts or omissions of an . . . emergency medical technician, emergency medical technician specialist, or advanced emergency medical technician, do not impose liability on those individuals in the treatment of a patient when the service is performed outside a hospital. . . . All persons named in this section . . . are protected from liability unless the act or omission was the result of gross negligence or wilful misconduct. [MCL 333.20737; MSA 14.15(20737); emphasis added.]
Plaintiff argues that § 20737 grants ems technicians immunity only when they are acting in emergencies and that defendants’ actions in failing to transport the decedent to a hospital ended the "emergency” and "preclude[s] them from claiming statutory immunity from liability . . . .” We disagree.
The statutory scheme itself provided a definition of "emergency.” MCL 333.20703(1); MSA 14.15(20703)(1) read:
"Emergency” means a condition or situation in which an individual declares a need for immediate medical attention for any individual, or where that need is declared by emergency medical personnel or a public safety official. Upon arrival at a scene of an emergency, and after direct communication with the medical control authority and approval of the medical control authority, an individual licensed under this part or a health professional licensed under article 15 who possesses training specific to the provision of emergency medical services, may declare that an emergency no longer exists and transportation by an ambulance is not necessary.
The undisputed evidence reflects that an emergency existed when defendants arrived at the home of the plaintiffs host, ems had been summoned by a call to the local emergency system via 911. Thus, "an individual [had] declare[d] a need for immediate medical attention for [an] individual [decedent].” The emergency was never declared at an end "after direct communication with the medical control authority and approval of the medical control authority.” Indeed, no evidence whatever suggests that defendants attempted "direct communication with the medical control authority” as defined by MCL 333.20705(2); MSA 14.15(20705X2).
The statutory grant of immunity under MCL 333.20737; MSA 14.15(20737) applies only to care rendered in emergency situations. Knight v Limbert, 170 Mich App 410, 414; 427 NW2d 637 (1988). Defendants’ first encounter with the decedent was plainly an emergency situation. The emergency was not terminated under the statutory procedure. Therefore, §20737 was applicable and defendants are immune from liability. The trial court correctly granted defendants’ motion for summary disposition of this count.
ii. defendants’ acts did not constitute wilful MISCONDUCT
Plaintiff next claims that defendants’ action in removing the oxygen mask may "rise to the level of’ wilful misconduct and strip defendants of the protection of MCL 333.20737; MSA 14.15(20737). We cannot agree.
It has been long established in Michigan law that mere negligence cannot be cast as "wilfulness” simply for the purposes of bringing a complaint. As the Supreme Court said over a century ago, in rejecting a negligence claim:
The allegation that defendant [acted] willfully . . . implies that the act was done with a set purpose to accomplish the results which followed the act. It involves more than negligence; it implies malice. [Montgomery v Muskegon Booming Co, 88 Mich 633, 644; 50 NW 729 (1891).]
Wilful means intentional. McKimmy v Conductors Protective Assurance Co, 253 Mich 521, 523; 235 NW 242 (1931). Wilfulness "transcends negligence—[it is] different in kind.” Gibbard v Cursan, 225 Mich 311, 320; 196 NW 398 (1923); Finkler v Zimmer, 258 Mich 336, 341; 241 NW 851 (1932). "The term 'wilful’ implies intention, but wilful misconduct lies somewhere between intentional conduct and ordinary negligence.” Serra v De-Maestri, 66 Mich App 171, 175; 238 NW2d 568 (1975) (child’s intentional tort). Or, in the words of another panel of this Court, "willful negligence is quasi-criminal and manifests an intentional disregard to another’s safety.” Papajesk v Chesapeake & O R Co, 14 Mich App 550, 556; 166 NW2d 46 (1968).
Plaintiff here, however, relies on authority construing the phrase "wilful and wanton misconduct.” We think the two differ significantly. "Wanton” conduct is "reckless,” conduct that "amounts to” wilful injury, see, e.g., LaCroix v Grand Trunk W R Co, 379 Mich 417, 424; 152 NW2d 656 (1967), but without intent. As the Supreme Court said in discussing Gibbard, supra, conduct that shows "such indifference to whether harm will result as to be the equivalent of a willingness that it does” fits the "wanton” prong of the "wilful and wanton” standard. Burnett v City of Adrian, 414 Mich 448, 455; 326 NW2d 810 (1982). A standard that permits liability for "wilful and wanton conduct” is less restrictive than one that confines liability to "wilful” conduct alone. The former allows liability when the defendant is so careless as to, in effect, intend harm, but the latter requires that intent actually be present.
We cannot accept plaintiff’s invitation to engraft onto the statute a standard that is not included in its plain language. We do not possess that legislative power and authority. The governing statute employs only the words "wilful misconduct.” Had the Legislature wished to expand the potential liability of emergency medical services providers, it could have used the phrase "wilful and' wanton” as it appears in, for example, the recreational users statute, MCL 300.201; MSA 13.1485. The Legislature is deemed to be aware of the existence of the law in effect at the time of its enactments. Malcolm v East Detroit, 437 Mich 132, 139; 468 NW2d 479 (1991).
. Plaintiff has produced no evidence supporting an allegation that defendants intended to harm the decedent when they treated him on June 19, 1988. Plaintiff’s counsel conceded as much at oral argument in the lower court, and defendants cite statements by several of plaintiff’s witnesses that defendants did not intend the decedent any harm.
Further, plaintiff’s complaint against defendants Latrielle and Newell sounds only in ordinary negligence, despite her references in the complaint to "wilful misconduct.” Defendants were accused of "failing to properly assess [the decedent’s] condition,” "failing to provide emergency medical treatment,” and generally failing to use "ordinary care.” Alternatively, defendants allegedly showed "reckless and heedless disregard” of the decedent’s needs. Defendants are immune from charges of ordinary negligence (see discussion in part i, supra) and we have declined to read "wilful misconduct” as "wilful and wanton misconduct,” thus eliminating the "reckless and heedless disregard” counts. The trial court correctly dismissed this count pursuant to MCR 2.116(C)(8).
hi. dependants’ acts did not constitute gross NEGLIGENCE
Few aspects of negligence law have proven more frustrating to this state’s courts than the construction of the term "gross negligence.” The history of this problem was reviewed extensively in LaCroix v Grand Trunk, supra at 422-428, but a few words here are appropriate.
"Gross negligence” should be seen in its historical context. It was intended as a plaintiff’s doctrine, borrowed from other jurisdictions to avoid the bar of contributory negligence. In Gibbard, supra, for example, the plaintiff’s decedent a schoolgirl, was killed by a truck as she was walking on the side of the road. For unknown reasons, when she heard the truck approach, she jumped into the truck’s path instead of jumping off the road. Under contributory negligence principles, the plaintiff might have been precluded from recovering. By invoking the doctrine of "gross negligence,” the Court could turn liability back onto the defendant:
When will gross negligence of a defendant ex cuse contributory negligence of a plaintiff? In a case where the defendant, who knows, or ought, by the exercise of ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury. . . .
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 proximate cause. [225 Mich 319; citations omitted, emphasis in original.]
The Gibbard definition has remained unaltered, despite the adoption in Michigan of comparative negligence (Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 [1979]) and the dissatisfaction with its misuse noted even in Gibbard, supra at 321. See, e.g., Papajesk, supra at 555. Our Supreme Court specifically declined an opportunity to redefine the phrase in Burnett, supra at 455-456, stating that it preferred to wait for a case with a "fully developed factual record.” Id. at 456.
Gross negligence may be decided as a matter of law if the evidence unquestionably shows its existence. Shepherd v Barber, 20 Mich App 464, 466; 174 NW2d 163 (1969). The record here does not reflect gross negligence as defined in the Gibbard/ Burnett line of authority, i.e., the decedent’s antecedent negligence. This Court continues to apply that requirement; see, e.g., Abraham v Jackson, 189 Mich App 367, 372; 473 NW2d 699 (1991) (emergency medical technicians transporting patient); McNeal v DNR, 140 Mich App 625, 632; 364 NW2d 768 (1977) (maintenance of state park); Grasser v Fleming, 74 Mich App 338, 348; 253 NW2d 757 (1977), overruled on other grounds 430 Mich 262, 279; 422 NW2d 657 (1988) (plaintiff "helplessly intoxicated” when served by defendant).
In light of the state of the substantive law on this issue, we are unable to say that the lower court erred in applying the Gibbard/Burnett definition to this case. Cf. In re Bay Co Prosecutor, 102 Mich App 543, 549; 302 NW2d 225 (1980); Marshall v Pech, 95 Mich App 454; 291 NW2d 78 (1980). Furthermore, we are bound to apply that definition because another panel of this Court retained it in Abraham, supra at 372. Abraham was published in 1991 and so is controlling under Administrative Order No. 1990-6, 436 Mich lxxxiv.
In addition, case law plainly requires that the plaintiff must plead gross negligence correctly if the claim is to be addressed. "In order to properly allege gross negligence, plaintiffs must plead defendants’ subsequent negligence.” Mallory v Detroit, 181 Mich App 121, 125; 449 NW2d 115 (1989), another case construing MCL 333.20737; MSA 14.15(20737). The panel in Malcolm v East Detroit, 180 Mich App 633, 643; 447 NW2d 860 (1989), applied the same rule: "[F]or a gross negligence claim to be actionable it must allege that the defendant’s negligent conduct occurred subsequent to some negligent conduct on the part of the plaintiff.” The Supreme Court reversed the Malcolm decision on other grounds, but did not address the definition of "gross negligence” because the plaintiff failed to raise it on cross appeal. 437 Mich 132, 147-148; 468 NW2d 479 (1991). See also Abraham, supra at 372.
Plaintiff, however, urges us to ignore the definition of gross negligence set out in Malcolm, Mal lory, and Abraham and apply instead the standard found in MCL 691.1407(2)(c); MSA 3.996(107)(2)(c), which provides that " 'gross negligence’ means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Plaintiff asks that we construe the emsa in pari materia with the government tort liability act (gtla). While we recognize that the Supreme Court did construe the two statutes together in its analysis of Malcolm (see 437 Mich 145), the focus of that decision was on the imposition of vicarious liability under those acts. The Court did not simply engraft part of the gtla onto the emsa, as plaintiff would have us do here.
Statutes are in pari materia, when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object. Richardson v Jackson Co, 432 Mich 377, 384; 443 NW2d 105 (1989), citing 2A Sands, Sutherland Statutory Construction (4th ed), § 51.03 (governmental immunity act and marine safety act). An act is not in pari materia with another act, even if it incidentally refers to the same subject, if the scope and aim of the two acts are distinct and unconnected. Palmer v State Land Office Bd, 304 Mich 628, 636; 8 NW2d 664 (1943). See also, e.g., Dome Pipeline Corp v Public Service Comm, 176 Mich App 227, 232; 439 NW2d 700 (1989) (definitions of "gas” in various acts).
Contrary to plaintiff’s assertion, the immunity provisions of the emsa and the gtla are not in pari materia when, as here, the defendants are not governmental employees. That is, although both sections refer to the same subject—immunity from liability—their "scope and aim,” Palmer, supra, are "distinct and unconnected.” They do not "re late to . . . the same class of persons ... or have the same purpose or object,” Richardson, supra, when the potential defendants are not public employees. MCL 691.1407; MCL 3.996(107) broadly grants immunity to all public employees to make it possible for governments to operate relatively free from the fear of liability for unpopular decisions. The stated purpose of the gtla was to "define and limit” liability of governmental units. By contrast, 1981 PA 79, which added §20737 to the Public Health Code, amended 1978 PA 368, which was described as "[a]n act to protect and promote the public health . . . .” The Legislature presumably made the coverage of § 20737 broad enough to encourage the development of ems systems, whether public or private, so as to maximize the availability of such services to the public. We will not disturb that effort by importing into the emsa the definition of gross negligence specifically crafted for the gtla when it is not the actions of governmental employees that are at issue. Such a step is for the Supreme Court or the Legislature.
The trial court correctly dismissed plaintiffs gross negligence count.
Affirmed. Costs to defendant.
Jansen, P.J., concurred.
The former emergency medical services act was repealed and reenacted. 1990 PA 179, codified at MCL 333.20901-20979; MSA 14.15(20901X20979).
This section was added to the Public Health Code by 1981 PA 79, § 1. The entire emergency medical services act was repealed effective July 2, 1990, but reenacted in substantially similar form as 1990 PA 179.
See, e.g., Lucchesi v Kent Co Road Conun, 109 Mich App 254, 259-268; 312 NW2d 86 (1981).
Plaintiff has attempted to remedy this deficiency by pointing to Aleksandr Pavlov’s obesity and cigarette smoking as his "precedent negligence.” As the trial court noted, however, the decedent’s health habits were unknown to defendants at the time they attended to him. In any event, we seriously question whether smoking and overeating are examples of "antecedent negligence” as that term has been used in Michigan law.
1964 PA 170, codified at MCL 691.1401-1415; MSA 3.996(101)-(115).
We have identified thirty-four Michigan statutes that employ the term "gross negligence.” Only MCL 691.1407; MSA 3.996(107) inserts its own definition. See MCL 29.7c; MSA 4.559(7c) (fire fighters); MCL 30.407(5); MSA 4.824(17)(5) (director of emergency management); MCL 30.411(3); MSA 4.824(21)(3) (disaster relief personnel); MCL 30.432(2); MSA Í3.31(72)(2) (hazardous waste spills, volunteers); MCL 41.7lia; MSA 5.160(1) (ambulance drivers, attendants, police, fire fighters); MCL 299.612a(6), (10)(b), (ll)(a), (12)(a); MSA 13.32(12a)(6), (10)(b), (11) (a), (12)(a); MCL 299.613(2)(a); MSA 13.32(13)(2)(a) (hazardous waste, various persons); MCL 300.201(1),(2); MSA 13.1485(1),(2) (recreational land users); MCL 316.605(6); MSA 13.1350(605X6) (lessors of hunting lands); MCL 317.176; MSA 13.1482(6) (recreational trespass); MCL 330.1427b(2); MSA 14.800(427b)(2) (officer taking persons into protective custody); MCL 330.1439; MSA 14.800(439) (person filing treatment petition under Mental Health Code); MCL 333.6508(2); MSA 14.15(6508X2) (treatment of substance abusers); MCL 333.9203(3); MSA 14.15(9203X3) (free immunizations); MCL 333.20965; MSA 14.15(20965) (providers of emergency medical services); MCL 338.981(l)(c); MSA 18.86(H)(1)(c) (mechanical contractors); MCL 339.604(e); MSA 18.425(604)(e) (violations of occupational code); MCL 339.2715(a); MSA 18.425(2715)(a) (optometrists); MCL 380.1178; MSA 15.41178 (administration of medication to students); MCL 484.1604; MSA 22.1467(604) (emergency telephone/telegraph operators); MCL 487.1707(l)(c); MSA 23.1189(707)(l)(c) (officers of financial institutions); MCL 500.2124(2); MSA 24.12124(2) (automobile insurers, issuance of policies); MCL 500.2130(2); MSA 24.12130(2) (automobile insurers, exchange of information); MCL 554.455(4)(e); MSA 27.3178(241.25X4) (e) (custodians of minors’ accounts); MCL 559.154(6); MSA 26.50(154) (6) (officers of condominium associations); MCL 600.5839(1); MSA 27A.5839(1) (architects, engineers, and contractors); MCL 691.1407; MSA 3.996(107) (governmental units, employees, etc.); MCL 691.1501(1),(2); MSA 14.563(1),(2) (physicians and nurses, competitive sports); MCL 691.1503; MSA 14.563(13) (medical personnel, emergency care and immunizations); MCL 691.1504(1); MSA 14.563(14)(1) (CPR, volunteers); MCL 691.1505(1); MSA 14.563(15)(1) (block parents); MCL 691.1507; MSA 14.563(17) (ski patrols); MCL 700.173(5); MSA 27.5173(5) (personal representative of estate); MCL 700.553(2); MSA 27.5553(2) (fiduciaries). | [
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Per Curiam.
Defendant Wayne Boyer appeals as of right from the June 21, 1990, order of the Oakland Circuit Court denying his motion to set aside a default judgment entered on November 30, 1989, in favor of the plaintiff. We reverse.
Plaintiffs complaint alleged that she had entrusted Boyer, a financial advisor doing business as Boyer & Associates, with $84,000 to invest on her behalf. The complaint further alleged that, through Boyer’s negligence and fraudulent actions, plaintiff had suffered damages at least to the extent of her initial investment. Plaintiff requested judgment in an amount equal to "all damages recognized by Michigan law, well in excess of Ten Thousand ($10,000.00) Dollars,” as well as her costs, interest, and attorney fees. Boyer was served with the complaint by personal service on September 14, 1989.
Shortly thereafter, Boyer’s attorney contacted plaintiff’s attorney to acknowledge service and to make an offer of settlement. Although the parties disagree concerning whether the offer of settlement was ever formally rejected and whether there was further contact between the attorneys, it is undisputed that Boyer took no further action to defend against plaintiff’s complaint.
On November 14, 1989, a default was entered against Boyer for his failure to appear, plead, or otherwise defend. Plaintiff admits that notice of the entry of the default was not served on Boyer, nor was any service attempted. On November 30, 1989, the trial court entered a default judgment in the amount of $84,000 in favor of plaintiff and against Boyer. Pursuant to MCR 2.603(B)(4), the Oakland Circuit Court Clerk mailed notice of the entry of the default judgment to Boyer on December 7, 1989. Boyer denies ever receiving notice of the entry of the default or the default judgment.
On February 13, 1990, apparently after receipt of a subpoena directing him to appear at a creditor’s examination, Boyer filed a motion seeking to set aside the default judgment. In support of his motion, Boyer argued that his attorney’s calls to plaintiff’s attorney constituted an appearance, entitling him to notice of plaintiff’s intention to enter a default judgment at least seven days before entry of the judgment, and that plaintiff’s failure to notify him of the entry of default violated the applicable court rule. Boyer asserted that these facts constituted good cause, which, in conjunction with his affidavit of meritorious defense, required that the default judgment be set aside in accordance with MCR 2.603(D).
Plaintiffs answer denied that Boyer’s attorney had ever expressed an intent to represent him. While plaintiff admitted that no notice of the entry of the default had been given and stipulated setting aside the entry of the default, she also argued that Boyer’s motion failed to show either good cause or a meritorious defense sufficient to set aside the default judgment.
The trial court, after a hearing, denied Boyer’s motion to set aside the default by its order of June 21, 1990. On July 12, 1990, Boyer filed a motion for rehearing, reasserting his earlier arguments. Following an adjournment because of the trial court’s unavailability and a hearing held on September 12, 1990, the trial court denied Boyer’s motion for reconsideration by its order entered on October 25, 1990. Boyer then filed a claim of appeal with this Court on November 1, 1990.
We first note that our consideration of the trial court’s denial of Boyer’s motion to set aside the default judgment is appropriate. Although plaintiff asserts that our review is limited to a review of the trial court’s exercise of discretion in denying Boyer’s motion for reconsideration, she does not consider MCR 7.204(A)(1)(b), which allows an appeal within twenty-one days after the entry of an order denying a motion for rehearing or reconsideration filed within the original appeal period. Because Boyer’s motion for reconsideration was filed within the appeal period after the denial of the motion to set aside the default judgment and his appeal from the order denying his motion for reconsideration was timely, appellate review of the original order denying relief from the default judgment is appropriate.
We now turn to the merits of this case. Essentially, Boyer argues that plaintiffs failure to provide notice of the default renders the default invalid, that a default judgment may not be entered if based upon an invalid default, and that because of these defects and his showing of good cause and a meritorious defense, the trial court abused its discretion in denying the motion to set aside the default. We agree with Boyer’s ultimate conclusion and, accordingly, reverse the decision of the trial court.
While the policy of this state generally favors the meritorious determination of issues and, therefore, encourages the setting aside of defaults, the trial court’s decision regarding whether to set aside a default will not be disturbed on appeal absent an abuse of discretion. Marposs Corp v Autocam Corp, 183 Mich App 166, 170-171; 454 NW2d 194 (1990). Pursuant to MCR 2.603(D)(1), a "motion to set aside a default or default judgment, except when grounded on a lack of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.”
Good cause sufficient to warrant the setting aside of a default or default judgment includes (1) a substantial defect or irregularity in the proceedings upon which the default was based, (2) a reasonable excuse for failure to comply with the requirements that created the default, or (3) some other reason showing that manifest injustice would result if the default and the resulting default judgment were allowed to stand. Lindsley v Burke, 189 Mich App 700, 702; 474 NW2d 158 (1991).
The entry of a default is generally a ministerial act. Alycekay Co v Hasko Construction Co, Inc, 180 Mich App 502, 506; 448 NW2d 43 (1989). Nonetheless, pursuant to MCR 2.603(A)(2), the defaulted party is entitled to notice of the entry of the default after the entry. The apparent intention of this notice requirement is to enable the defaulted party to choose whether to move to set aside the default. See, e.g., White v Sadler, 350 Mich 511, 519; 87 NW2d 192 (1957); Deeb v Berri, 118 Mich App 556, 562; 325 NW2d 493 (1982). Although there are no reported cases addressing the consequences of the failure to provide notice of the entry of default, it is well settled that a failure to notify a party entitled to notice of the impending entry of a default judgment constitutes a substantial defect in the proceedings and, accordingly, good cause. Perry v Perry, 176 Mich App 762, 769-771; 440 NW2d 93 (1989); Deeb, supra at 565.
We believe that a failure to notify a party of an entry of a default, in violation of MCR 2.603(A)(2), is also sufficient to show a substantial defect in the proceedings. Without knowledge of the entry of a default, a party situated similarly to the way in which Boyer asserts he found himself in this matter may find himself engaged in an attempt to resolve a dispute while the litigation proceeds without him. Given plaintiffs admission that she failed to notify Boyer of the entry of the default, we believe that good cause warranting the setting aside of the default judgment has been shown.
Given this conclusion, we decline to address Boyer’s contentions that the actions of his attorney in this matter were sufficient to constitute an appearance or that plaintiffs complaint did not state a specific amount demanded, either of which, if shown, would entitle him to notice of the impending entry of a default judgment. MCR 2.603(B) (l)(a).
However, to be entitled to have the default judgment set aside, Boyer also was required to show, by an affidavit of fact, that there exists a meritorious defense to plaintiffs claim. Boyer, in his affidavit, admitted that he had managed several investments on plaintiffs behalf, but maintained that he had informed her of the risks associated with the investments and that he had acted prudently and in plaintiffs best interests, and denied that he had engaged in either negligent or fraudulent conduct. Finally, Boyer denied that his fault had caused plaintiffs losses.
Simply put, we believe that Boyer has set forth sufficiently a meritorious defense to plaintiffs claims. If proven at trial, the asserted defenses would preclude liability on plaintiffs claims. If Boyer informed plaintiff of the risks inherent in the investment and engaged in neither negligent nor fraudulent conduct, plaintiff is not entitled to recover even the amount of her initial investment. See, e.g., Leib v Merrill Lynch, Pierce, Fenner & Smith, Inc, 461 F Supp 951, 952-954 (ED Mich, 1978)(describing the duties owed by a stockbroker to an investor).
Because Boyer showed both good cause and a meritorious defense to plaintiffs claims, we conclude that the trial court abused its discretion in denying the motion to set aside the default judgment. Accordingly, we reverse and remand this matter for further proceedings.
Although the action was commenced against both Wayne Boyer and Boyer & Associates, the parties have not been careful in the drafting of the various motions, orders, and briefs to make clear whether only one or both defendants were being included. We note that the default named only Wayne Boyer, while the default judgment was entered against both defendants. Further, although the claim of appeal was filed on behalf of both defendants, the defense brief on appeal was filed on behalf of Wayne Boyer only and sought relief for him alone. For ease of reference, we will speak of Wayne Boyer individually, cognizant that in many instances that reference also may include Boyer & Associates.
While we note that Boyer’s motion for rehearing was not filed within the fourteen-day period mandated by MCR 2.119(F)(1), we conclude that plaintiff's failure to object to its timeliness before the trial court precludes consideration of any arguments related to that issue on appeal. Failure to raise an argument before the trial court precludes its consideration on appeal. Bloemsma v Auto Club Ins Ass’n (After Remand), 190 Mich App 686, 692; 476 NW2d 487 (1991). | [
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Rehearing denied.
Reported post, 401. | [
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Sharpe, J.
(dissenting). On October 27, 1924, Constance G. Needham as vendor contracted to sell a lot in the city of Detroit to Harry P. Swogger and Myrtle B. Swogger, his wife, for the sum of $8,500, of which $1,000 was then paid, and the balance payable in monthly payments of $65, with interest at 6 per cent, if not in default, in which case the rate should be 7 per cent. On November 22d following, the vendor assigned her interest in this contract to Joseph A. Schrage and. Elsie Schrage, his wife, the defendants herein. In part payment of the purchase price of a house and lot purchased from the plaintiffs, defendants assigned this contract to them on April 22, 1925, and at plaintiffs’ insistence the following agreement was attached thereto and signed by both plaintiffs and defendants:
“Detroit, Mich.,
“April 22, 1925.
“It is hereby agreed between Joseph A. Schrage and Elsie H. Schrage, his wife, and Harrison G. Palmer and Carrie E. Palmer, his wife,- that the attached land contract which has been assigned to Harrison G. Palmer and Carrie E. Palmer by Joseph Schrage and Elsie Schrage is guaranteed as to payments on same by the purchaser in the following manner. If the purchaser on this contract shall become in default Joseph Schrage and Elsie Schrage agree to make said payments on the condition that they be allowed full power of attorney to start foreclosure proceedings should this contraqt become in default.”
At no time thereafter did the vendees make the monthly payments in full, as required by the terms of this contract. On September 30, 1930, the attorney for the plaintiffs wrote each of the defendants that the payments were in default in the sum of $650, and that, in addition thereto, the plaintiffs had been required to pay $519.34 in taxes and assessments on the lot, and that additional taxes were then due, and made demand for the payment thereof pursuant to the terms of the written guaranty. Payment was not made, and plaintiffs brought this action on November 3,1930, to recover the amount then claimed to be due on the contract, $1,085.71.
The case was tried before the court without a jury. It appeared that, at the time demand for payment was made, there was more than $5,000 unpaid upon the contract and for taxes paid by the plaintiffs. There was proof that, while the lot was worth the amount due on the contract at the time of its assignment to plaintiffs, its fair value at the time'the notice was given and demand made was from $3,000 to $3,500. It also appears that before the trial in the circuit court Mr. and Mrs. Swogger “went through bankruptcy. ’ ’
The .questions presented are whether, under the written^ guaranty, any duty was imposed upon the plaintiffs to give notice to the defendants of the default of the vendees -in meeting their monthly pay ments, and, if so, the effect of their neglect to give snch notice. It appears that none was given prior to the letters of September 30,1930. Decision rests upon the nature of the obligation created by the agreement, whether that of surety or guarantor. There has been much confusion in the use of these terms by this and other courts. The distinction, based, as we thinlc, upon principle as well as authority, would seem to be that one who signs an obligation at the request of the payor, either with or without consideration moving to himself therefor, becomes a surety, while one who enters into a contract with a payee, guaranteeing the payment to him of an obligation of a payor, thereby becomes a guarantor. In the case of a surety, the contract is delivered to the payee with his undertaking indorsed thereon or made an integral part thereof. In the case of a guarantor, the contract is entered into between him and the payee. The payor is not a party to it. It is usually, and was here, founded upon a separate consideration from that supporting the promise of the payor. While this distinction has not always been observed by the authorities, and the terms have often been used interchangeably, it was clearly pointed out by Mr. Justice Steere in Re Kelley’s Estate, 173 Mich. 492, 498 (Ann. Cas. 1914D, 848), as follows:
“While a surety and guarantor are not the same in all respects, they are similar in the particular that each promises to answer for the debt or default of anothér, the surety assuming liability as a regular party to the primary undertaking, while the guarantor does not, but his liability depends upon an independent, collateral agreement by which he undertakes to-pay the obligation if the primary payor fails to do so.”
On the duty to give notice of default, he also said (page 502):
“It is true that prompt notice of default in payment is not necessary to charge a guarantor, as in case of an indorser; but it is advisable to give such notice inasmuch as it frequently becomes important to prove notice to meet the presumption of laches arising from long delay. 1 Edwards on Bills, p. 241. Delay may, and often does, amount to laches and bar recovery regardless of the statute of limitations. While the guarantor of payment, not a party to the original note, cannot complain of laches, or want of notice, unless it has worked to his prejudice, on the other hand want of due diligence by the payee, which operates to the injury of the guarantor and occasions him loss which he could otherwise have avoided, operates as a release.
“While this rule is enforced on less provocation in cases of a guaranty of collection than a guaranty of payment, it is equally applicable to the latter. It has been held that the guarantor is released if the payee fails to make demand, give notice of default, or to take any proceedings to collect for a period of five years. Shepard v. Phears, 35 Tex. 763.”
In Young v. Merle & Heaney Manfg. Co., 184 Ind. 403 (110 N. E. 669), the court quoted with approval the following from the decision in Furst & Bradley Manfg. Co. v. Black, 111 Ind. 308, 313 (12 N. E. 504):
“Where the form of the contract is that of an original and absolute undertaking to pay the debt of another, the liability of the promisor is that of a surety; but where the agreement is that another shall pay in the first instance, and the promisor becomes liable only for the default of the other, the contract is one of strict guaranty. ”
The court found that the contract in question was one of guaranty, and then said:
“It is well settled that the guarantor was entitled to timely notice of the default of the principal, to the end that she might have taken steps to indemnify herself from the loss which resulted from the want of such notice. ’ ’
The following from Brandt on Suretyship & Guaranty (3d Ed.), § 2, has frequently been quoted or referred to with approval:
“Difference between surety and guarantor. — The words surety and guarantor are often used indiscriminately as synonymous terms; but while a surety and a guarantor have this in common, that they are both bound for another person, yet there are points of difference between them which should be carefully noted. A surety is usually bound with his principal by the same instrument, executed at the same time and on the same consideration. He is an original promisor and debtor from the beginning, and is held ordinarily to know every default of his principal. Usually the surety will not be discharged, either by the mere indulgence of the creditor to the principal, or by want of notice of the default of the principal, no matter how much he may be injured thereby. On the other hand, the contract of the guarantor is his own separate undertaking, in which the principal does not join. It is usually entered into before or after that of the principal, and is often founded on a separate consideration, from that supporting the contract of the principal. The original contract of the principal is not the guarantor’s contract, and the guarantor is not bound to take notice of its nonperformance. The guarantor is often discharged by the mere indulgence of the creditor to the principal, and is usually not liable unless notified of the default of the principal.”
Quite similar language will be found in Black’s Law Dictionary (2d Ed., p. 550), under the heading ‘ ‘ Guaranty. ’ ’
While decision as to the effect of neglect to give such notice might well rest upon the holding in Re Kelley’s Estate, supra, it is amply supported by authority. In Taussig v. Reid, 145 Ill. 488 (30 N. E. 1032, 32 N. E. 918, 36 Am. St. Rep. 504), the court said:
“We think that the decided weight of authority establishes the rule, that in case of a collateral continuing guaranty, like the one in question, reasonable notice of the default of payment on.the part of the principal debtor should be given to the guarantor. And the guarantor will be discharged from payment, so far as he has sustained loss or damage, resulting from a failure of the creditor to give him such notice.”
In Cahuzac & Co. v. Samini, 29 Ala. 288, an action on a contract of guaranty of payments for confectioner’s supplies, it was said:
“ Creditors are required to give to the guarantor reasonable notice of the default of the debtor.”
See, also, Globe Bank v. Small, 25 Me. 366; Montgomery v. Kellogg & Sandusky, 43 Miss. 486 (5 Am. Rep. 508); Lemmert v. Guthrie Brothers, 69 Neb. 499 (95 N. W. 1046, 62 L. R. A. 954, 111 Am. St. Rep. 561); Reynolds v. Edney, 53 N. C. 406; Kannon v. Neely, 29 Tenn. 288; Cobb v. Vaughan & Co., 141 Va. 100 (126 S. E. 77, 43 A. L. R. 177).
Counsel for plaintiffs strenuously insist that the holding in Re Kelley’s Estate, supra, was dictum, and should not be followed; that the rule laid down in Roberts v. Hawkins, 70 Mich. 566, states the law as it should be applied in this case. In our opinion, the language used in the Roberts Case, in defining “guarantor” and “surety,” was unfortunate, and not in line with the rule which should be adopted therefor. The holding that the written guaranty of payment, which was indorsed on the note before delivery to the payee, was enforceable notwithstanding a. lack of notice of default, is not in conflict with the conclusion here reached, which applies only to a guaranty by separate instrument, not made for the benefit of the payee, but made for the benefit of the guarantor and for a consideration moving to him for the obligation assumed.
It follows from what has been said that the defendants were guarantors for the payments due upon the land contract; that, within a reasonable time after default in payment by the vendees, the plaintiffs should have given them notice thereof; that their neglect to do so has entailed loss upon the part of the defendants of more than the amount of the claim against them here made by plaintiffs, and that by reason thereof the trial court committed no error in entering a judgment for defendants, which should be affirmed, with costs to appellees.
Clark, C. J., and Wiest, J., concurred with Sharpe, J.
North, J. While I am largely in accord with the general principles considered in the opinion of Mr. Justice Sharpe, I am unable to agree with his application of such principles to the facts in this case.
Defendants and appellees held the vendors ’ interest in a land contract dated October 27, 1924. On April 22, 1925, they assigned their interest to plaintiffs, and incident thereto signed the guaranty of payment quoted in my Brother’s opinion. At that time the vendees were in default on the contract, which by its terms extended over a period of eight years. The vendees continued to be more or less in arrears until September 30,1930, at which time plaintiffs gave defendants written notice of a demand of payment under the guaranty. The vendees were then in default by reason of nonpayment of substantially nine $65 monthly payments ($576) which had accrued from January, 1930, to September, 1930. They were also in default for nonpayment of taxes and assessments, one item of which was paid by plaintiffs in 1928, two items in 1929, and the remaining items in 1930. Under the terms of the contract the taxes and assessments so paid by plaintiffs became “a further lien upon the land payable by the purchaser to the seller forthwith.” In plaintiffs’ suit against defendants as guarantors to recover the unpaid contract instalments, taxes, and assessments, they urge as a defense release from their guaranty by reason of plaintiffs’ failure to give defendants notice more promptly of the principal debtors’ default. The defense was sustained by the circuit judge, who tried the case without a jury.
This defense is based upon testimony of substantial depreciation in value of the contract property during the years 1928 and 1929; and that in consequence thereof defendants have sustained a damage which they claim entitles them to full release from the terms of their guaranty. This guaranty is absolute in its terms, with the exception that it is subject to “the condition that they (defendants) be allowed full power of attorney to start foreclosure proceedings should this contract become in default.” This guaranty of payment was the inducement used by the defendants to consummate the sale of their vendors’ interest in the guaranteed contract to plaintiffs. It is a contract between the parties couched in plain, simple language. Defendants should not he lightly released therefrom. At most, they would he entitled only to he released from their obligation to the extent that they establish damage resulting to them from plaintiffs’ failure to give a more prompt notice of the vendees ’ default. This is an affirmative defense, and the burden of establishing their damage, if any, is upon defendants. Farmers & Mechanics Bank v. Kercheval, 2 Mich. 504. It seems to me they have failed to offer proof from which it can he determined to what extent, if at all, they were damaged by depreciation in the value of this property subsequent to the occurrence of the defaults of which they claim they should have had notice.
It may he conceded, as stated in Mr. Justice Sharpe’s opinion, that defendants were guarantors, that within a reasonable time after default defendants were entitled to notice thereof, and if such notice was not given, and defendants in consequence thereof -were damaged, they would be released pro tanto from their guaranty. But the degree of promptness required at the hands of plaintiffs in giving notice of default should he determined in the light of the fact that the contract guaranteed by defendants was one which extended over a period of years and was payable in fixed monthly instalments. Also that, as noted above, the guarantors knew the vendees were in default when they transferred the contract, that during the life of the contract the vendees might become insolvent, and as a matter of common knowledge that the value of the property covered by the contract would fluctuate. The hazard was obvious, because, on the date defendants signed the guaranty, the unpaid balance on the contract price ($7,417.08) was substantially equal to the full market value of the property. With these elements of uncertainty involved in the transaction, the defendants used their guaranty as a means of selling their contract to plaintiffs, and unless they show ample reason for being released as guarantors, they should be required to meet their obligation.
“A failure to give notice of the principal’s default or negligence in giving such notice, in a case where the guarantor is entitled to notice, does not of itself discharge him from liability and bar a recovery upon the guaranty; but there must be not only a want of notice within a reasonable time, but also some actual loss or damage thereby caused to the guarantor, and if such loss or damage does not go to the whole amount of the claim, but is only in part, the guarantor is discharged only pro tanto.” 28 C. J. p. 986; citing many cases, including Roberts v. Hawkins, supra; Farmers & Mechanics Bank v. Kercheval, supra.
See, also, note to Pearsell Manfg. Co. v. Jeffreys, 183 Mo. 386 (81 S. W. 901), in 105 Am. St. Rep. 496.
“Where the creditor does hot bind himself 'to any delay, mere laches in the enforcement of the obligation or indulgence given to the debtor, does not- release- the guarantor. That the indulgence given to the principal debtor may work to the disadvantage of the guarantor does not generally affect the question.” 12 R. C. L. p. 1085.
“Mere passiveness on the part of the holder will not release the guarantor, even if the maker of the note was solvent at its maturity, and thereafter became insolvent.” Roberts v. Hawkins, supra, 573, citing many eases.
See, also, recent case of Granger v. Graef, 203 Iowa, 382 (212 N. W. 730).
I fail to find in this record any showing that defendants were prejudiced by not having been more promptly notified of the vendees ’ default in not making the January, 1930, payment or those that subsequently accrued. All previous defaults in contract instalments had been cured by payments, and do not affect the case now before the court. The record conclusively shows that the maximum depreciation in the valuation of this property had occurred before any of the contract payments now in default became due. Therefore defendants sustained no damage by reason of the fact that plaintiffs did not give them an earlier notice, even if we assume that the notice given was not within a reasonable time after the default. The fact that the vendees became bankrupts subsequent to the giving of the notice and subsequent to the starting of this suit is of no consequence. There is no showing in the record that the vendees were collectible at any time subsequent to the defaults for which plaintiffs seek recovery, and therefore there is no proof of such a change of condition as worked an injury or damage to these guarantor defendants. For the reasons above noted, the case at bar is readily distinguishable from In re Kelley’s Estate, 173 Mich. 492 (Ann. Cas. 1914 D, 848).
. I think the same conclusion must be reached as to the items of taxes for which plaintiffs seek recovery. The record shows that the market depreciation in the value ■ of the real estate covered by the contract occurred in July or August of 1928; and defendants’ expert witnesses testified that by 1929 there was no market for real estate of this class. Only one of the tax items ($50.38) for which plaintiffs seek to be reimbursed was paid by them in 1928, June 3d. Two items were paid in 1929 and the balance in 1930. Under the circumstances it cannot be said that defendants have established the fact even as to these items that they were damaged by reason of plaintiffs not having given an earlier notice of the vendees’ default. This is true, for the reason that the record does not show that defendants would have had any better opportunity to save themselves from loss at any time after the first of these defaults than they had at the time notice was given to them.
There is no merit to other grounds of defense urged by these guarantors. The judgment entered in the circuit court is set aside, and the case remanded, with direction to enter judgment in favor of plaintiffs for the amount of the defaults for which these guarantors are liable, $1,801.85. Costs to appellants.
McDonald, Potter, Fead, and Butzel, JJ., concurred with North, J. | [
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] |
Butzbb, J.
Burroughs Adding Machine Company, plaintiff, was insured by General Accident Fire & Life Assurance Corporation, defendant, against general and contingent liability of plaintiff for accidents arising out of the operation of automobiles, whether owned by insured or not. The liability assumed is shown by an indorsement on the policy, which states:
“The undermentioned policy shall cover the liability of the assured as in the policy defined as respects the use of any automobile or motorcycle which is owned, hired, rented, operated or used, by any agency manager, salesman or any person in the employ of any agency manager, or any inspector or other person (directly or indirectly) in the employ of the assured. ”
The present action is based on defendant’s agreement in clause 2, which is as follows:
“To defend in the name and on behalf of the assured any suits, even if groundless, brought against the assured to recover damages on account of such happenings as are provided for by the terms and conditions of this policy.”
Clause “E” of the policy, which is pertinent to the present suit, provides :
“The assured upon the occurrence of every accident, and irrespective of whether any personal injury or property damage is apparent at the time of the accident, shall give immediate written notice thereof, with the fullest information obtainable at the time, to the corporation’s head office at Philadelphia, Pennsylvania, or to its duly authorized agent. If a claim is made on account of such accident, the assured shall give like notice thereof. If, thereafter, any suit is brought against the assured to enforce such a claim, the assured shall immediately forward to the corporation every summons or other process served on them. The corporation reserves the right to settle any claim or suit. Whenever requested by the corporation the assured shall aid in effecting settlements, securing information and evidence, the attendance of witnesses, and in prosecuting appeals, and shall at all times render to the corporation all co-operation and assistance within his power.”
Plaintiff entered into an “agency” contract with Charles Schneider, of Schenectady, New York. Although Mr. Schneider is described in the preamble of the contract as “agency manager,” the contract in no sense makes him such. It gives him the exclusive sales agency in the territory consisting of seven counties in New York State, fixes his commissions, and defines a’nd limits his power and duties. In the contract Schneider agrees inter alia:
“8. To refrain from signing the company’s name on any commercial paper, contract or other instrument, and from contracting any debt or entering into any obligation, either express or implied, binding the company to the payment of money or otherwise.
“17. To pay all expenses other than items that are chargeable to the company under its ‘decisions in force.’
“18. To employ the number of salesmen necessary to secure from the territory at least the amount of business as from time to time may be determined by the company for such territory; such salesmeii to be and remain the employees, agents and representatives of the manager, and not of the company. ’ ’
Schneider employed one Hopkins as salesman on a commission basis. Plaintiff was neither Hopkins ’ employer nor party to the agreement. The salesman could solicit when or where he or his employer pleased. Plaintiff made no attempt to exercise any control or direction over Schneider’s employees. They had no contractual relationship with plaintiff.
On April 9, 1923, Rose Howitt, a girl of 13, received injuries which resulted in death by being-struck by an automobile owned and driven by Hopkins while he was on his way to a neighboring town in New York State to demonstrate or sell an adding-machine. Hopkins told Schneider of the accident the day it occurred, but the latter did not, according to his statement, inform plaintiff. Hopkins used his own car as he saw fit, maintained and ran it at his own expense, and carried his own liability insurance. A statement by Hopkins indicated that he was not at fault; that the coroner exonerated him from all blame; and that the parents of the deceased informed him that no claim would ever be made. Notwithstanding this fact, suit was brought about two years after the accident by the administrator of the girl’s estate in the supreme court for Montgomery county, New York, against Hopkins and plaintiff. The latter promptly informed the defendant insurance company of the institution of suit. Five weeks after receiving notice, defendant raised the question of not having been informed of the accident within a reasonable time after its occurrence, and some months later it disclaimed all liability. It was, however, agreed that the defense of the case should be looked after by counsel satisfactory to both parties; that plaintiff should pay the attorneys’ fees and expenses in the first instance, and that the liability of the respective parties be determined later. The administrator of the girl’s estate recovered a judgment against both Hopkins and plaintiff herein. On appeal to the appellate division, the case was reversed. See Howitt v. Hopkins, 219 App. Div. 653 (220 N. Y. Supp. 462). On appeal by plaintiff to the New York conrt of appeals, the decision of the appellate division of the supreme court was upheld and plaintiff herein absolved from liability. See 246 N. Y. 604 (159 N. E. 669), wherein the court of appeals stated:
“The appellate division held that the relation of master and servant did not exist between the salesman and defendant-respondent. Judgment affirmed. ’ ’
Plaintiff brought the instant suit to recover the sums expended for attorneys’ fees and expenses in defending the New York litigation. The case was tried without a jury, or oral testimony. Exhibits, however, were introduced, consisting of the insurance policy, the agency contract between plaintiff and Schneider, copy of the opinion in 219 App. Div. 653 (220 N. Y. Supp. 462), signed statements of Hopkins and Schneider, correspondence, etc. It was stipulated on the record that whatever Hopkins and Schneider stated about their positions was not to be binding on the parties; that as to Hopkins the opinion of the New York court would be controlling and Schneider’s status would be controlled by his contract with plaintiff. The trial judge held that Schneider was not an agent of the company, and that the giving of notice to him was not notice to the plaintiff, and that, therefore, plaintiff was entitled to recover the amount claimed.
Defendant claims that the failure of plaintiff to give notice of the accident in accordance with condition “E” of the policy is fatal to plaintiff’s right to recover, and, even if plaintiff did not learn of the accident until just prior to the commencement of the suit in New York, it became plaintiff’s duty, in order to recover under the policy, to have made proper provision to obtain such notice from its agency managers, and, in turn, to notify defendant promptly of all accidents for which the latter might be held. The giving of a prompt notice to defendant would have been a condition precedent to recovery had the accident occurred through the fault of any of plaintiff’s employees. Oakland Motor Co. v. American Fidelity Co., 190 Mich. 74; St. Louis Architectural Iron Co. v. New Amsterdam Casualty Co. (C. C. A.), 40 Fed. (2d) 344. We do not believe, however, that these cases are applicable to groundless suits brought on account of accidents in which none of plaintiff’s employees participated, and of which plaintiff was not informed until claim was asserted and suit begun, when it did promptly notify defendant. The agreement to give notice to insurer must be reasonably construed. Employers’ Liability Assurance Corp. v. Roehm, 99 Ohio St. 343 (124 N. E. 223, 7 A. L. R. 182); Woodmen Accident Ass’n v. Pratt, 62 Neb. 673 (87 N. W. 546, 55 L. R. A. 291, 89 Am. St. Rep. 777). While it is true that under the agreement between Schneider and plaintiff the former is called “agency manager,” the effect of the contract is to make him an independent contractor selling on commission in an exclusive territory and subject only to such limitations and control that may be necessary to protect manufacturers with national distribution. Under the circumstances, we find that the trial judge was correct in entering judgment for an amount not in dispute, in favor of plaintiff, and the judgment is affirmed, with costs to plaintiff.
Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. Clark, C. J., and McDonald, J., did not sit. | [
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] |
Sharpe, J.
Petitions for the recall of the plaintiff from the office of alderman of the fourth ward of the city of Iron Mountain were circulated, signed by the requisite number of voters, and filed with the defendant city clerk, as provided for in section 51 of the charter of said city. The reason assigned for the recall here relied upon was thus stated:
“Second. That Alderman Edward O. Lindquist voted for himself for the office of mayor fro tem. of the city council at the meeting of the council, May 4, 1931, and thereby violated section 10 of the city charter, which says: ‘No alderman shall vote on any question in which he shall have a direct personal interest.’”
A call for a special election pursuant thereto was issued, whereupon the plaintiff filed his petition herein for mandamus to “vacate and countermand” such call and to restrain the defendant board of election commissioners from preparing the ballots therefor. An order to show cause was issued, and, after return thereto and hearing had, the trial court denied the same. An appeal to this court was allowed.
On consideration of the record and briefs presented, it seemed to us that the question to be decided was whether the plaintiff was legally elected mayor pro tem. by the city council. We thereupon requested counsel to file briefs expressive of their views on this question. With the aid of those furnished we have given the matter further consideration, and are impressed that the right of plaintiff to hold this office should be tested by a quo warranto proceeding, and may not be made the basis of a petition for recall.
If the plaintiff had the right to vote for himself in the election of a mayor pro tem. by the council, he is entitled to perform the duties of that office; if not, then no mayor pro tem. was elected by the council, and the plaintiff has no legal right to fill the office.
This court has many times held that the only way to try titles to office finally and conclusively is by quo warranto. Curran v. Norris, 58 Mich. 512; Frey v. Michie, 68 Mich. 323; Gildemeister v. Lindsay, 212 Mich. 299.
The provisions for such a proceeding are clearly outlined in the statute. 3 Comp. Laws 1929, § 15271 et seq. The office in question is one provided for in the charter of the city under the power conferred on it by the Constitution and laws of the State.
The impropriety of permitting plaintiff’s right to hold this office to be tested by a recall would seem apparent. The statute relating thereto (1 Comp. Laws 1929, § 3383) provides that the petition therefor “shall state clearly the reason or reasons for said demand.” In Newberg v. Donnelly, 235 Mich. 531, 534, it was held that the statement of the reasons “must be such as will furnish information to the electors on which they may form a judgment when called upon to vote.” See, also, People, ex rel. Elliot, v. O’Hara, 246 Mich. 312.
Plaintiff’s right to vote for himself for the office in question under the charter provision involves a construction of the language used therein upon which attorneys and courts may well differ, and, in our opinion, the ordinary voter could not intelligently express a judgment thereon. The writ will issue as prayed for in the petition.
As this question was not raised on the hearing in the trial court, and as the matter is one of public interest, no costs will be allowed.
Clark, C. J., and McDonald, Potter, North, Dead, Wiest, and Butzel, JJ., concurred. | [
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] |
Wiest, J.
This is an action to recover damages for an alleged conversion of an automobile. Decision turns upon whether the following so-called trust receipt, accompanied by an accepted time draft, was a conditional sale in the nature of a chattel mortgage, and, for want of registration, no protection against a subsequent good-faith purchaser or mortgagee.
“TRUST RECEIPT.
“Detroit, Michigan, March 8, 1929.
“Received from C. I. T. Corporation, the owner thereof (hereinafter termed C. I. T.) Hudson motor vehicle; model 7-pass, sedan; serial No. 41900; Motor No. 579231, complete with all standard catalogue attachments and equipments purchased under credit opened by C. I. T. for our account, in consideration whereof we agree, at our expense, to hold said motor vehicle in trust for C. I. T. as their property and agree to return the same on demand in good order and unused but with liberty to us to exhibit and to sell the same for their account for cash for not less than $1,401.30, the intention being to preserve unimpaired Ó. I. T. ’s title thereto until the full payment of our acceptance of equal date and any other indebtedness due from us, and we further agree in the case of such sale to keep the proceeds separate from our funds and immediately hand such proceeds to C. I. T. without expense or cost to C. I. T. to apply thereon. The acceptance of time draft in the above amounts shall not be effective to terminate this trust. C. I. T. may at any time cancel this trust and repossess itself of said motor vehicle or the proceeds thereof. In the event of our insolvency, suspension or failure to pay the acceptance of even date or our breach of this trust all acceptances due from us to C. I. T. shall immediately become due and payable.
“We further agree to keep a separate account of all motor vehicles delivered to us under this or any like receipt and of the proceeds thereof when sold, to report any sale to C. I. T. immediately after the sáme is made, and to furnish to them on demand a true and complete report for the preceding month. We will also permit them or their duly accredited representatives, to examine'our books and the cars in our possession at all reasonable times during business hours.
“C. I. T. shall, during the entire time said car is held thereunder, keep said car insured against loss by fire and theft and cause a surety bond for the accounting for the car or proceeds thereof to be issued, and in the event of our failure to redeliver the said car on demand we shall, until redelivery thereof, pay as damages for detention for each month or portion thereof after demand one per cent of said sale price.
“We further agree to pay all costs, charges, expenses and disbursements, including a reasonable attorney’s fee (15 per cent, of sale price of car is permitted by law) should C. I. T. find it necessary to protect its property in said car by legal proceedings involving the employment of an attorney-at-law, and agree that C. I. T. may sell said motor vehicle and apply the proceeds to advances made for our account and we agree to pay the balance if any and that the waiver of any default shall not operate as a waiver of subsequent defaults, but all rights hereunder shall continue notwithstanding any one or more waivers. We acknowledge receipt of a true copy of this agreement which shall be construed according to the laws of the State of New York.
“Signed The Ideal Garage,
“Trustee-Bailee.
“By Otto E. Holbrook.
“Witness: J. B. Bice.
“TIME DBAFT.
“1,401.30 Detroit, Michigan, March 8, 1929.
“On or before June 8, 1929, pay to the” order of C. I. T. Corporation, one thousand four hundred one and 30/100 dollars,, together with an attorney fee of 15 per cent., if permitted by law, should the holder place this draft in the hands of an attorney for collection.
“Value received (without recourse on us) and charge to
“Aaron De Roy Motor Car Co.
“By Harry E. Johnson,
“Assistant Treasurer.
“To Ideal Garage,
“Address River Rouge, Mich.
(Across face of draft)
“Accepted March 8, 1929
“Payable at Office
“C. I. T. Corporation
“310 So. Michigan Ave.
‘ ‘ Chicago, 111.
“The Ideal Garage
“By Otto E. Holbrook.”
The IdeV Garage was a copartnership and sold automobiles at retail. Defendant is a finance corporation, and so is plaintiff. The Ideal Garage wanted a Hudson car for “floor plan” purposes. The car had to be obtained from a distributor of the manufacturer. Aaron DeRoy Motor Car Company was distributor for the Hudson Motor Car Company at Detroit, Michigan. Defendant finance corporation had an arrangement with the Hudson Motor Car Company for financing applications by retail dealers for cars. The Ideal Garage applied to .the distributor for a Hudson car. This brought into action defendant’s financing arrangement and occasioned the time draft drawn by the distributor on the Ideal Garage, payable to defendant, its acceptance by the dealer, execution of the trust receipt, delivery thereof to the distributor, bill of sale by the distributor to defendant, and delivery of the trust receipt and accepted time draft to defendant, payment of $1,374.28 by defendant to the distribu tor and payment of 10 per cent, of the invoice price of the car by the Ideal Garage to the distributor.
The day the trust was executed the Ideal Garage, by O. E. Holbrook, one of the partners, executed a conditional sale contract of the car to O. E. Holbrook, and the same day the Ideal Garage, by O. E. Holbrook, assigned the conditional sales contract to plaintiff finance corporation, and it was filed in the nature of a chattel mortgage on April 3, 1929.
In considering the nature of the trust receipt we may consider along with it the accepted time draft and the bill of sale to defendant, for all relate to a single transaction and as a whole within the contemplation of • the dealer, the distributor, and the finance corporation. The purpose and the effect of the trust receipt was to secure payment of the accepted time draft, with retention of title to the car in defendant until payment was made or obtained, in whole or in part, under measures stipulated therein, inclusive of personal liability.
Trust receipts, financing importations, have long been employed and accorded judicial sanction, but adoption of the scheme with reference to automobiles is quite modern and without serious difficulty unless rights of bona ficle purchasers from the trust receiptor intervene and the so-called trust is secret.
Under our holdings a trust receipt, accompanied by the obligation of the receiptor to pay an agreed price for an automobile, possession of which is changed, and which permits suit upon the obligation accompanying the trust, receipt or the retaking and resale of the car, with application of proceeds in reduction of obligation to pay and right to hold the receiptor for the balance, is security in the nature of a chattel mortgage, and if not filed as such, under our recording laws (3 Comp. Laws 1929, § 13424), is void as against subsequent purchasers or mortgagees in good faith. Burroughs Adding Machine Co. v. Wieselberg, 230 Mich. 15; Nelson v. Viergiver, 230 Mich. 38.
We consider the acts of the distributor, the dealer, and the defendant in construing the trust receipt, and we decline to split the transaction and hold that it was less than security in the nature of a chattel mortgage because the dealer accepted the time draft, and executed the trust receipt to defendant and such papers, along with the bill of sale of the automobile, were turned over to defendant.
We have examined, but need not review, cases from other jurisdictions, for we have established our own rule with reference to instruments in the nature of a chattel mortgage.
The judgment is affirmed, with costs to plaintiff.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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McDonald, J.
The plaintiff filed this bill to cancel a death benefit certificate issued to Carrie L. Schempf, mother of the defendant, who is the sole beneficiary, and to restrain an action at law thereon. The defendant answered and filed a cross-bill in which he asked for a decree requiring payment to him of the amount named in the policy. On the hearing, the relief prayed for in the cross-bill was granted, and the plaintiff’s bill was dismissed. From the decree entered the plaintiff has appealed.
The bill charges fraud by the insured in her application for the policy. It alleges that she made false answers to certain material questions as to her health; that she falsely represented she had not suffered any serious illness in the five years preceding the date of her application; that she' had no illness within a year preceding that time; that she did not then have and never had cancer; that she had no disease of the uterus or its appendages; and that she had fully recovered from any disease she ever had.
The defendant admits that if the insured answered the questions as claimed by the plaintiff, they were false; but he asserts she did not answer them; that the answers were filled in by the plaintiff’s agent after the insured signed the application. On the hearing, the trial court found the facts to be as stated by the defendant, and made a decree accordingly.
The principal question involved is whether the answers to the. questions in the application in régard to the health of the insured were actually made by her or filled in by the plaintiff’s agent after the application was signed.
In his brief the defendant says:
“If they were so made by her as claimed by the company, then the policy should be canceled, except that the same contained an incontestability clause.”
Mrs. Bilsborrow was the agent wbo took the application. She testified that, in response to a telephone call, she went to the home of Mrs. Schempf to take her application for insurance; that she asked Mrs. Schempf every one of the questions contained in the application; that they were answered and the answers written by her just as Mrs. Schempf gave them; that when the application was completed Mrs. Schempf looked it over and signed it; that they then went to the office of Dr. Stewart for examination, where she again examined the application and assented to it as correct.
The testimony on the other side of this issue came from the defendant, Charles L. Schempf. He testified that he was present when the application was made and signed by his mother.
“Q. At the time your mother signed that, were there any questions and any answers written in there in regard to any past sickness and her condition of health at that time?
“A. No sir.
“Q. Was there any question asked by Mrs. Bilsborrow about your mother’s previous condition of health or any sickness that she might have had or whether or not she had ever been operated upon or whether or not she had ever been in the hospital?
“A. There was not. Mrs. Bilsborrow was there possibly I should say maybe about eight minutes or ten minutes, possibly. My mother and I were coming down town; we were in a hurry to get down town to go to the bank before three o’clock.
“Q. Now what, if any, questions did Mrs. Bilsborrow ask your mother?
“A. The only questions I heard her ask her was about her own folks, her father and mother and her sisters and brothers.
“Q. Were you there in the room all the time that Mrs, Bilsborrow was there?
“A. I was standing at least two feet away from them all dressed waiting to go down town. The paper my mother signed on the library table in the living room. I was standing over at the fireplace at the time it was signed.
“Q. You saw her sign it?
“A. I certainly did.
“Q. Did you see Mrs. Bilsborrow when she filled in part of it?
“A. Yes, I seen her when she filled in part of this. She filled in part of it and she told my mother to sign; if she was in a hurry, she could fill in the rest of it. * * * Mrs. Bilsborrow was the only one there. She took this out of her grip, and told mother to sign it. That is all there was to it. ’ ’
We are not impressed as the trial court was with the truthfulness of the defendant’s testimony. His story is improbable. It is quite unlikely that after the lapse of five years he could so clearly remember that certain questions were not asked of his mother when her application was taken. And it is quite significant that these matters of which he has such a distinct remembrance are vitally important to his interests in this case. He clearly remembers that these questions were not asked of his mother and the answers now in the application were not in when she signed it. It is undisputed that his mother made an appointment with the agent to come to her house in the afternoon of December 14, 1926. She wanted insurance. She set the time when the agent should come and take her application. The agent came, and when the application was more than half completed, the defendant would have us believe that his mother signed it and went away, leaving the agent to fill in answers containing information which she could get from no other source than from the applicant. It is more probable, as the agent claims, that the applica tion was completed in Mrs. Schempf’s presence and signed by her after all the questions had been answered; that they then went to the medical examiner ’s office where the applicant again looked over the application and pronounced it correct. This is confirmed by the medical examiner, who says in his report that the applicant had read the questions and answers and assented to them as correct. The evidence does not justify the finding of the trial court that the answers in question were not actually given as claimed by the plaintiff.
We also think there is no merit to the claim that the policy was incontestable after the expiration of two years from the date of issuance.
The statute, 3 Comp. Laws 1929, § 12427, requires an incontestable clause in insurance contracts, but this provision of the statute does not apply to fraternal mutual benefit associations such as the plaintiff. They are exempt under 3 Comp. Laws 1929, § 12479.
The incontestable clause in this policy is there by agreement of the parties, and not by requirement of the statute. It reads:
“Incontestability — This certificate shall be incontestable after two years from date of membership, except for the nonpayment of premiums or obvious fraud in the application for insurance, or for violation of the constitution and by-laws.”
The evidence of fraud in the application excepts this policy from the incontestability clause.
The decree of the trial court is reversed. A decree will be entered here in accordance with this opinion. The plaintiff will have costs.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Clark, C. J.
Inland American Yacht Club, a voluntary association, in 1908, was near the end of its active existence and had nearly $4,000 on hand. Many of its members were also members of defendant Country Club of Detroit} a corporation. The Yacht Club gave the sum to the Country Club to be used for yachting purposes, and it was so accepted. The item was carried on the books of the Country Club as a separate account and so continued without change until 1918, when it was charged into surplus or general account. Because of the investments of funds of the Country Club, it was still possible, in 1929, to trace the fund in question and to identify an investment as from the fund. Some color was afforded to the claim that the fund had not been used for yachting purposes, so plaintiff Truman H. New-berry, a former member of the Yacht Club, began this suit in his own name, and, as a few surviving members of such club also favored action, the suit is brought in the name of the Yacht Club.
The theory of recovery in this action of law is breach of condition. Defendant proved to the satisfaction of the trial court that, prior to 1918, when the account was charged off, it had expended for 'yachting purposes, being repair and maintenance of dock, boats, attendants, etc., more than the amount of the gift.
Defendant prevailed in a trial without a jury. Plaintiffs have appealed.
As we approve the finding on the merits by the trial judge, we pass the questions of plaintiffs ’ right to bring suit and of statute of limitations.
Defendant may not have expended the very dollars of the gift for yachting purposes, but it expended many dollars for such purposes, the total of which was and is far in excess of the amount of the gift, and it "was proper to reimburse the general or surplus fund by charging into it the-special gift fund. In re Howard’s Estate, 163 Mich. 556; 2 Perry on Trusts (4th Ed.), § 485.
"We have considered fully the points made by appellants, and think further discussion unnecessary. The decision of the trial judge is right in fact and in law.
Affirmed.
McDonald, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
North, J.
Plaintiff’s application for compensation was heard before a deputy commissioner on March 19, 1931, and denied by the deputy’s order May 19th following. Plaintiff appealed to the full board, and in an opinion dated October 30, 1931, the decision of. the deputy was reversed, and plaintiff awarded compensation. After the hearing before the full board, but before decision, defendant filed a motion by which it sought “to be allowed to submit testimony as defense to plaintiff’s claim and in rebuttal of plaintiff’s testimony.” The commissioners denied defendant’s motion and disposed of the case on the testimony taken before the deputy. Defendant has appealed, claiming that denial of its motion to take additional testimony was erroneous .and resulted in defendant not having its day in court.
Defendant claims when plaintiff had completed his proofs before the deputy and made an announcement he would rest, the reporter taking the testimony erroneously entered in the minutes a statement that defendant also announced it would rest: that taking proofs by defendant was deferred for the convenience of parties concerned in the next case the deputy commissioner was to hear; but it was understood defendant would be permitted to submit its proofs at an adjourned hearing. There were two or three communications with the deputy commissioner which defendant claims had to do with fixing the date of such adjourned hearing. Instead of having a further hearing, the deputy commissioner, upon consideration of the record, came to the conclusion that plaintiff had not established a right to compensation and decided the case adversely to him. It was from this decision appeal was taken; and defendant stresses the claim that, in view of the circumstances, it has never had its day in court. Plaintiff, however, denies there is any error in the record wherein it is recorded that at the close of plaintiff’s proofs the defendant also announced it would rest its case.
Defendant did not attend the hearing before the full board held October 14, 1931, but seems to have been given permission to subsequently file a motion to take further testimony. Such a motion was filed October 17,1931. The board considered this motion and found that it did not comply with the rules of the department. This finding refers to departmental rule No. 16 in which it is expressly provided the application “shall show that the testimony sought to be taken is material, not cumulative of testimony already taken,” and shall include the names and addresses of the witnesses whose testimony is desired to be taken. Clearly defendant’s motion or application to take further testimony did not comply with this rule. As to the claim of a misunderstanding which resulted in defendant’s failure to present testimony before the deputy commissioner, the opinion of the board recites:
“As to how there can be any misunderstanding on the part of the deputy commissioner in view of the plain statement upon the record is certainly not apparent. Defendant rested his case by the statement, ‘We will rest in this case, your honor.’ We do not believe that such language is capable of being misunderstood. ’ ’
We might add that defendant’s motion was decidedly dilatory. Plaintiff’s claim of review before the full board was filed May 25, 1931, but defendant made no application to take additional testimony until after the hearing on review, October 14, 1931. Defendant was not deprived of its day in court, instead it was dilatory in presenting its motion, did not do so in accordance with the practice prescribed by the rule, and this after having failed to attend the hearing on review. The order of the commission denying defendant’s motion to take additional testimony and the award made herein are affirmed. Costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
Plaintiff filed her bill of complaint in the Wayne county circuit court in chancery to rescind a land contract on the ground of fraud and for ancillary relief. Prom a decree for plaintiff, defendants appeal.
The defendants Thomas & Lane are copartners, and were engaged in subdividing and selling real estate in Windsor, Ontario, prior to the time the Ambassador bridge opened, seeking to take advantage of the inflation of prices incident to the building and opening of the international bridge across Detroit river. It is claimed plaintiff had no experience in real estate, and defendants Thomas & Lane were experienced subdividers and promoters of real estate sales. Defendants Thomas & Lane, through Ambassador Development Corporation, of which Orson A. Towle purported to be the secretary and treasurer, selling agent, sold plaintiff the lot in question for $12,725. Plaintiff claims defendants’ selling agent represented to her she would only be required to pay the down payment upon the contract of purchase; that defendants would resell the property before further payments were required, at a profit to her, or would return to her the money paid for the down payment upon the property and retake the property and release her from liability.; that these statements were false, were made to lie relied upon by her, were relied upon by her, and she was deceived, misled, and defrauded thereby. It is claimed the defendants knew, at the time the sale was made to plaintiff, she did not have sufficient means to enable her to make the payments provided in the contract, and she relied upon their statements such payments would not have to be made, and such false statements were made to deceive and defraud her and to procure her money which she paid upon the contract; that on account of the fraudulent character of the representations being made to her by defendants to sell the Canadian property in question, defendants did not dare to directly make such sales, and so put forward a fraudulent corporation, known as the Ambassador Development Corporation, which purported to be an Illinois corporation, but which, if ever incorporated, was never admitted to do business in the State of Michigan, had no Michigan license, and was engaged in business in Michigan in violation of law. Defendants Thomas & Lane paid the office rent of the Ambassador Development Corporation, and accepted the benefits accruing from the action of this alleged corporation. Defendants deny all fraudulent conduct and intent in connection with the sale of the property in ques tion to plaintiff, and insist the transaction of sale to her was open and aboveboard, honestly conducted, and, conceding all plaintiff claims, the representations alleged in the bill of complaint and proven are promissory in character and cannot be made the basis of actionable fraud, and consequently the decree of the trial court should be reversed. It may be conceded the general rule is that statements promissory in character may not be made the basis of actionable fraud, but like other general rules this one has been made the subject of many exceptions.
Where a jeweler made false statements of value to one whom he knew to be ignorant to defraud him, value was regarded as a question of fact.
“If value can be regarded in any case as a material fact, then it may be made the subject of a warranty.” Picard v. McCormick, 11 Mich. 68, 75.
“Any purchaser must expect that the vendor will seek to enhance his wares, and must disregard the vendor’s statements as to value. This is undoubtedly the general rule, but it is subject to exceptions. Where the defendant knows that the plaintiff is wholly ignorant of the value of the property, and knows that he is relying upon the defendant’s representation, and such representation does not take the form of a mere expression of opinion, and is in the nature of a statement of fact, the rule of caveat emptor does not necessarily apply.” Maxted v. Fowler, 94 Mich. 106, 109.
Where it was claimed representations as to the value of a machine were but expressions of an opinion and not actionable, it was said:
■ “This is undoubtedly the general rule, but in the present case it appears that the defendants knew nothing of its value, and signed the order relying wholly upon the statements of the agent. It was the statement of a fact which the agent knew to he false.” Peck v. Jenison, 99 Mich. 326.
“The contention made is that the statement of value was a mere matter of opinion, and cannot be made the basis of an action for fraud. This is a statement of the general rule, but the rule established by the weight of authority is that false statements of value intentionally made to one who is in ignorance of the quality and value, under circumstances indicating a purpose that such statements are to be relied upon, and where the party to whom they are made has no opportunity to examine the property, may be treated as an affirmation of fact and fraudulent.” Pinch v. Hotaling, 142 Mich. 521, 525.
In Steele v. Banninga, 225 Mich. 547, at p. 556 it is said:
“The dividing line between a false representation and a mere opinion is not well marked, and cannot be marked in the abstract, as it must necessarily depend upon the facts in a case. If defendant, for the purpose of deceiving the plaintiffs as to the title, gave them an opinion he knew to be untrue, and they relied thereon, then he cannot escape liability for, in such event, it was not an opinion distinguishable from a false representation. * * * If the representations made by defendant were the moving and procuring reason for plaintiffs’ purchase, defendant cannot be heard to say that, if they had not believed him but had used diligence to verify what he had said, they would have, discovered reasons for not purchasing. ’ ’
“The doctrine announced in the cases relied on by the defendant and cited above has no application to representations though promissory in character but which are ■ made in bad faith and as a part of a scheme to defraud, or where the fraud is partly by false promises and partly by false representations of facts.” Becker v. Illinois Life Ins. Co., 227 Mich. 388.
“Where a promise is made in bad faith with no present intent to perform it, and it dovetails into and forms a part of the scheme to defraud, it may be considered by the court.” Matteson v. Weaver, 229 Mich. 495.
“Where a false representation of value is intentionally made to a person ignorant of value, with the purpose that such statement is to be relied upon, the representation is in the nature of a statement of fact and will support an action of fraud. ’ ’ Gugel v. Neitzel, 248 Mich. 312, 317.
There is proof defendants put forward the Ambassador Development Corporation as their agent; paid its office rent, acted through it, procured, through it, the sale of the land in question to plaintiff ; that the Ambassador Development Corporation was doing business illegally in Michigan; that defendants knew the fictitious value placed upon the property in question; that the representations by defendants’ agent were false and fraudulent in fact. Plaintiff testifies she was deceived thereby to her injury.
There was testimony to show bad faith on the part of defendants, that this sale was a part of a scheme to defraud, and the fact the fraud complained of was brought about partly by false representations and partly by false promises is not sufficient to defeat plaintiff’s right to recover.
Decree affirmed, with costs.
' Clark, C. J., and Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. McDonald, J., did not sit. | [
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E. E. Borradaile, J.
Providence Hospital filed suit in Wayne Circuit Court on November 2, 1983, against Health and Welfare Plans, Inc., which is not a party to this appeal, alleging that Health and Welfare Plans, Inc., was contractually bound to pay health benefits to plaintiffs assignors and has a duty to pay plaintiff as an assignee. On May 31, 1984, plaintiffs first amended complaint was filed which alleged that the defendant in this case, National Labor Union Health and Welfare Fund, had breached its contractual obligation to pay for services rendered by plaintiff.
Plaintiff provided health care to certain individuals who were beneficiaries under a multi-employer/employee welfare benefit plan administered by the defendant. The fund is an employee welfare benefit plan within the meaning of the Employee Retirement Income Security Act, 29 USC 1002(1). Plaintiff alleged that prior to rendering the services it confirmed with the defendant or its agents that the beneficiaries were covered under the plan and that the services to be provided were covered services. Upon receiving confirmation, plaintiff rendered the services to the beneficiaries and then sought payment from defendant.
Subsequent to plaintiffs rendition of covered services, and after considering all potential available alternatives, on December 23, 1983, the trustees of the fund unilaterally adopted a "plan of arrangement” whereby the trustees determined that, with respect to benefits for services previously provided, the fund would delay making payment until the trustees determined that the fund had sufficient assets. This action was taken in response to a financial crisis experienced by the fund, and was allegedly taken pursuant to the National Labor Union and Welfare Fund Agreement and Declaration of Trust.
The "plan of arrangement” was submitted to providers under the plan, but plaintiff rejected the arrangement and filed the complaint giving rise to this litigation. At oral argument, this Court was informed that the amounts billed had been paid in full but plaintiff sought interest which had been accruing since the trial judge, on February 24, 1986, entered a summary disposition order under MCR 2.116(C)(10) against defendant National Labor Union Health and Welfare Fund only. The amount prayed for in the first amended complaint was $81,467.85.
On May 23, 1986, a stipulation and order of dismissal was entered, on the counts against codefendant Health and Welfare Plans, Inc. On March 17, 1986, defendant filed a motion for amendment of judgment alleging that plaintiffs cause of action was preempted by erisa and that a review of the trustees’ decision to modify the method of payment of benefits presented a material issue of fact which was not a proper subject for summary disposition. Finding that the motion, which was nothing more than a motion for rehearing on plaintiffs motion for summary disposition, was untimely, the trial court denied defendant’s motion and an order was entered on April 10, 1986. On June 13, 1986, defendant filed a claim of appeal from the April 10, 1986, order. We reverse.
Defendant first raised the preemption question in the motion for amendment of judgment, and because the trial court denied the motion for untimeliness it did not address the preemption issue. Generally, this Court will not review issues that were not raised and decided by the trial court. MCR 7.203; Bajis v City of Dearborn, 151 Mich App 533; 391 NW2d 401 (1986), lv den 426 Mich 874 (1986). However, there are exceptions to this general rule. This Court will review issues not raised below if a miscarriage of justice will result from a failure to pass on them, American Way Service Corp v Comm’r of Ins, 113 Mich App 423; 317 NW2d 870 (1982), or if the question is one of law and all the facts necessary for its resolution have been presented, Kahn-Reiss, Inc v Detroit & Northern Savings & Loan Ass’n, 59 Mich App 1; 228 NW2d 816 (1975), or where necessary for a proper determination of the case, Loper v Cascade Twp, 135 Mich App 106; 352 NW2d 357 (1984).
Although the complaint does not mention erisa, 29 USC 1001 et seq., or specifically allege a violation thereof, the parties do not dispute that the fund, as defined in the trust agreement, is an employee welfare benefit plan as defined in 29 USC 1002(1), and is therefore regulated by erisa.
Defendant, both in brief and in argument, claims that the federal act entirely preempts state law. Defendant asserts that there is no basis for a common-law action as defined under Michigan law that can stand in view of the Congressional intent, and that the proper review of this case by the trial judge should have been as to whether the trustees violated their duties as defined in erisa.
The preemption provision of erisa is found in 29 USC 1144, which provides:
Except as provided in subsection (b) of this section, the provisions of this subchapter and sub-chapter hi of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in [29 USC 1003(a)] and not exempt under [29 USC 1003(b)]. This section shall take effect on January 1, 1975.
For purposes of this section:
(1) the term "State law” includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State.....
The state law at issue need not specifically concern subjects covered by erisa to be preempted. Alessi v Raybestos-Manhattan, Inc, 451 US 504; 101 S Ct 1895; 68 L Ed 2d 402 (1981). Instead, even a state’s general common law will be preempted by erisa if, in its present application, the common law "relates to” an employee benefit plan. Dependahl v Falstaff Brewing Corp, 653 F2d 1208 (CA 8, 1981), cert den 454 US 968; 102 S Ct 512; 70 L Ed 2d 384 (1981).
In its appellate brief, plaintiff states that it has never asserted that its claim does not arise under erisa and that its claim is based upon the civil enforcement provision of erisa, specifically, 29 USC 1132(a)(1)(B), which permits plan participants to bring a cause of action for benefits due under the terms of a plan. We find that the plaintiff is correct in arguing that its claim may be based upon the civil enforcement provision of erisa, but we also find that the plaintiff has relied upon common law within the State of Michigan to enforce its claim against defendant, which is not permitted. Claims under subsection (a)(1)(B) of 29 USC 1132 may be brought either in state courts of competent jurisdiction or district courts of the United States, the act giving concurrent jurisdiction. 29 USC 1132(e)(1). In Authier v Ginsberg, 757 F2d 796 (CA 6, 1985), cert den — US —; 106 S Ct 208; 88 L Ed 2d 177 (1985), the United States Court of Appeals for the Sixth Circuit, in ruling on a decision of Judge Cook in the United States District Court for the Eastern District of Michigan, found that the fiduciary suing in that case asserted a cause of action under Michigan law and because the fiduciary’s alleged compliance with erisa had a connection with or reference to an employee benefit plan, it was fully preempted by federal law. In two recent companion cases decided by the United States Supreme Court, Metropolitan Life Ins Co v Taylor, 481 US —; 107 S Ct 1542; 95 L Ed 2d 55 (1987), and Pilot Life Ins Co v Dedeaux, 481 US —; 107 S Ct 1549; 95 L Ed 2d 39 (1987), it was held that erisa preempts state common law tort and contract actions where there was an assertion of improper processing of a claim for benefits under an insured employee benefit plan.
In the Metropolitan case, supra, the plaintiff had filed suit in state court. Defendants in the state suit removed the suit to federal court alleging federal question jurisdiction under erisa and pendent jurisdiction over the remaining state claims. The district court found the case properly removable and granted the defendants summary judgment on the merits. 588 F Supp 562 (ED Mich, 1984) . The Court of Appeals reversed on the ground that the district court lacked removal jurisdiction. 763 F2d 216 (CA 6, 1985). The Court of Appeals found that the complaint stated only state-law causes of action subject to the federal defense of erisa preemption and that the "well-pleaded complaint” rule precluded removal on the basis of a federal defense. 763 F2d 216, 219 (CA 6, 1985) . The United States Supreme Court subsequently reversed. Justice O’Connor, speaking for a unanimous Court, stated:
Federal pre-emption is ordinarily a federal defense to the plaintiffs suit. As a defense, it does not appear on the face of a well-pleaded complaint, and, therefore, does not authorize removal to federal court. Gully v First National Bank, [229 US 109; 57 S Ct 96; 81 L Ed 70 (1936)]. One corollary of the well-pleaded complaint rule developed in the case law, however, is that Congress may so completely pre-empt a particular area, that any civil complaint raising this select group of claims is necessarily federal in character. For 20 years, this Court has singled out claims pre-empted by § 301 of the Labor Management Relations Act (lmra), 29 USC § 185, for such special treatment. [95 L Ed 2d 63.]
Justice O’Connor noted that the language of § 502(a)(1)(B), of erisa 29 USC 1132(a)(1)(B), closely parallels the preemptive language of § 301 of the Labor Management Relations Act, 29 USC 185. Following what she labeled "extraordinary preemptive power,” Justice O’Connor found that the suit, though it purports to raise only state-law claims, is necessarily federal in character by virtue of the clearly manifested intent of Congress and therefore was removable to the federal court by the defendants.
The Pilot Life case, supra, dealt with the issue whether a Mississippi insurance provision was one that "regulates insurance” and thus would not be subject to erisa even though it was clearly an employee benefit plan. In Pilot Life, supra, 95 L Ed 2d 48, Justice O’Connor noted that "the express pre-emption provisions of erisa are deliberately expansive, and designed to 'establish pension plan regulation as exclusively a federal concern.’ Alessi v Raybestos-Manhattan, Inc, 451 US 504, 523; 101 S Ct 1895; 68 L Ed 2d 402 (1981).” She found, in looking at Congressional intent, that Congress did not intend to authorize other remedies, pointing out that in § 502(a) of the erisa statute Congress provided for six carefully integrated civil enforcement provisions. Justice O’Con-nor further stated:
The deliberate care with which erisa’s civil enforcement remedies were drafted and the balancing of policies embodied in its choice of remedies argue strongly for the conclusion that erisa’s civil enforcement remedies were intended to be exclusive. This conclusion is fully confirmed by the legislative history of the civil enforcement provision. The legislative history demonstrates that the pre-emptive force of § 502(a) was modeled after § 301 of the Labor-Management Relations Act of 1947 (lmra), 29 USC § 185.” [Pilot Life, supra, 95 L Ed 2d 52.]
While Michigan courts do not rely upon a legislator’s present recollection of what was intended at the time of passage of a bill as evidence of legislative intent, see City of Williamston v Wheatfield Twp, 142 Mich App 714; 370 NW2d 325 (1985), the United States Supreme Court relies very heavily upon statements made during debate as carried in the Congressional Record. Justice O’Connor noted that during the arguments on adoption of erisa, Senator Javits stated:
"It is also intended that a body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans.” [Pilot Life, supra, 95 L Ed 2d 53.]
Justice O’Connor concluded that the expectation that a federal common law of rights and obligations under ERiSA-regulated plans would develop would make little sense if the remedies available to erisa participants and beneficiaries could be supplemented or supplanted by varying state laws.
As noted above, plaintiff claims that defendant did not properly raise the issue of preemption and should be deemed to have waived the claim. Judge Philip Pratt of the United States District Court for the Eastern District of Michigan in Ogden v Michigan Bell Telephone Co, 595 F Supp 961 (ED Mich, 1984), dealt with a similar issue under FR Civ P 12(b)(6). In that case plaintiffs were arguing that the motion filed by defendants was an untimely motion for reconsideration and that the court had already passed upon the propriety of the count involved in the case in an earlier opinion. The trial court found both of these contentions merit- less. Rule 12(b) is similar to MCR 2.116(C). MCR 2.116(D)(3) provides that "[t]he grounds listed in subrule (C)(4), (8), (9), and (10) may be raised at any time.” We believe that defendant has properly raised the issue under MCR 2.116(C)(4) which provides that the court lacked jurisdiction over the subject matter. We find that under the proper interpretation of erisa the court, on the pleadings filed by plaintiff, lacked jurisdiction over the subject matter and accordingly the defendant has raised the question in a timely fashion by raising it on what amounted to a motion for reconsideration.
The decision of the trial court is reversed and this matter is remanded to the trial court for a determination under the provisions of erisa. Any court costs, attorney fees, and interest assessed under the previous finding must be reviewed based upon this opinion.
Reversed and remanded. | [
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M. J. Kelly, P.J.
In this interpleader action, several creditors of a financially struggling farming operation known as Bay Park Place, Inc., claim the right to certain funds deposited with the Tuscola Circuit Court by Michigan Sugar Company and by Pillsbury Company. On the basis of a stipulated statement of facts, the circuit court determined as a matter of law that NewCentury Bank-Thumb held a perfected security interest in the assets of Bay Park and that NewCentury had conceded on oral argument that its claim was junior to NBD-Sandusky Bank’s claim. Thus, the court ruled that NewCentury and NBD-Sandusky were entitled to all but $1,471.88, and thus had priority over the judicial liens asserted by appellants, Federal Land Bank of St. Paul and Production Credit Association of North Central Michigan. An order was entered June 10, 1986, awarding Federal Land Bank and Production Credit jointly $1,471.88, nbd $10,576.99 plus interest, and New-Century the remainder of the funds held in escrow. Both Federal Land and Production Credit appeal as of right. We reverse.
By order entered September 19, 1983, which was allowed even though Bay Park Place had filed a petition for reorganization under Chapter 11 of the Bankruptcy Code, see 11 USC 362, the circuit court entered a judgment of deficiency after fore closure in favor of Federal Land and against Bay Park Place in the amount of $104,797. Following the dismissal of the bankruptcy petition in 1984, Federal Land served Michigan Sugar with writs of garnishment on November 5, 1984, and on December 13, 1984. A third writ was served upon Pillsbury on January 14, 1985. At some undetermined point, Federal Land learned of the existence of a judgment entered against Bay Park Place on behalf of Production Credit in a separate action, which judgment remained unsatisfied. Federal Land and Production Credit combined efforts to enforce their judgments and Production Credit also served a writ of garnishment on Michigan Sugar on November 5, 1984.
The funds held by Michigan Sugar represented sums due Bay Park Place or sums to become due in the future under a contract for the sale of sugar beets to Michigan Sugar. The funds held by Pillsbury and claimed by Federal Land represented proceeds owed Bay Park Place for corn, beans and fertilizer. Upon being served the writs of garnishment, Michigan Sugar and Pillsbury informed Federal Land and Production Credit that other parties also claimed an interest in the proceeds, thus prompting Federal Land to file a motion for inter-pleader. The other creditors were served notice of the interpleader proceeding and the garnishee defendants were discharged after depositing into the court the monies owed Bay Park Place. As of the date of the final order entered June 10, 1986, Michigan Sugar had deposited $88,115.12 with the court in sugar beet proceeds and Pillsbury had deposited $5,625.14 in corn and bean proceeds, plus $1,471.88 in fertilizer proceeds.
Federal Land and Production Credit have stipulated that their judicial liens are equal in priority. The dispute in this case is whether their judicial liens have priority over the claims asserted by NewCentury and nbd.
NewCentury claims a right to the bulk of the sugar beet proceeds as well as the corn and bean proceeds on the basis of several promissory notes, assignments and security agreements entered into with Bay Park Place. In January of 1979, NewCentury had extended credit to Bay Park Place in return for an assignment of Bay Park Place’s interest in a 2,000-acre farm located in Sanilac County. Bay Park Place was purchasing the farm on land contract. In March of 1979, Bay Park Place gave further security for the loan by granting NewCentury a security interest in "all crops growing or planted within one (1) year” of the date of the security agreement. On July 27, 1982, Bay Park Place assigned a lien or security interest on "all personal property of any nature” in its possession. On August 2, 1982, NewCentury filed a financing statement covering "crops growing or to be grown” by Bay Park Place. The financing statement, however, was silent as to the one-year duration of the security interest described in the security agreement. As of February 9, 1985, Bay Park Place owed NewCentury a total of $517,531.36.
Nbd’s claim to the funds in escrow arises out of a loan agreement entered into with Bay Park Place on July 11, 1984, whereby nbd paid Bay Park Place the sum of $10,000 and accepted the Michigan Sugar beet contract as collateral. As of July 9, 1985, Bay Park Place owed $11,292.86 on the nbd loan.
The circuit court concluded on the basis of these stipulated facts that NewCentury had perfected its security interest against the sugar beet, corn and bean proceeds. The court reached this conclusion through a combined reading of the March 1, 1979, July 27, 1982, and August 2, 1982, documents. It was further held that nbd had failed to perfect its security interest in the sugar beet proceeds and thus did not have priority over the judicial liens of Federal Land or Production Credit. Nbd was nevertheless granted its full claim on the basis of a concession made by NewCentury during oral argument. Since the trial court was presented with stipulated facts, we review the decision solely for errors of law.
In order to create an effective security interest under Article 9 of the Uniform Commercial Code, MCL 440.9101 et seq.; MSA 19.9101 et seq., there must be a written security agreement containing a description of the collateral, signed by the debtor. MCL 440.9203(l)(a); MSA 19.9203(l)(a). When the security interest covers crops growing or to be grown, the description of the collateral must include a description of the land upon which the crops are growing or are to be grown. Id. In addition to the requirement of a description of the collateral, some value or consideration must have been provided the debtor and the debtor must have rights in the collateral before the security interest attaches. MCL 440.9203(l)(c); MSA 19.9203(l)(c).
In both the March 1, 1979, and July 27, 1982, security agreements with Bay Park Place, New-Century expressly limited its security interest to "all crops growing or planted within one (1) year” from the date of the security agreement. There is no dispute that monies deposited into the court by Michigan Sugar and Pillsbury represented proceeds from crops planted after July of 1983. In finding that NewCentury’s security interest included crops planted after the first year had expired, the circuit court relied upon the August 2, 1982, financing statement which generally de scribed "crops growing or to be grown” and failed to include any one-year limitation.
The purpose of a financing statement is to place third parties on notice of the existence of a security agreement. Although a financing statement may be used to assist in the interpretation of the security agreement, the financing statement does not create a security interest and cannot extend a security interest beyond what has been unambiguously described in a security agreement. In the Matter of Martin Grinding & Machine Works, Inc, 793 F2d 592, 594-595 (CA 7, 1986); In the Matter of California Pump & Manufacturing Co, Inc, 588 F2d 717 (CA 9, 1978). Accordingly, the trial court erred in extending the scope of NewCentury’s security interest beyond that which was unambiguously described in the security agreement.
On appeal, NewCentury presents an alternative basis for finding the creation of a security interest of unlimited duration in Bay Park Place’s future crops. We are unpersuaded. First, the definitions of personal property as contained on page one and in paragraph seven of a series of essentially identical documents entitled "Assignment of Purchaser’s Interest in Land Contract as Security in Mortgage” and dated January 2, 1979, January 25, 1979, and July 28, 1982, are sufficiently ambiguous to create some question as to whether the assignment of interest was intended to cover crops. Given the separate security agreements regarding crops which we have already described, it is likely that the parties did not intend for the assignments to cover the same property. Ambiguous security agreements such as these are to be construed against the parties who draft the agreements, in this case, NewCentury. Brauer v Hobbs, 151 Mich App 769, 774; 391 NW2d 482 (1986).
As noted by the circuit court, nbd’s claim is unperfected and is thus defeated by the judicial liens of Federal Land Bank and Production Credit. Since nbd failed to argue below that it was relieved of its obligation to file a financing statement under MCL 440.9104(f); MSA 19.9104(f), we decline to consider the argument on appeal. Nor are we inclined to affirm nbd’s award under MCL 440.9302(l)(e); MSA 19.9302(l)(e), since nbd is a "person who regularly takes assignments of any debtor’s accounts” and is therefore obligated to file a financing statement. See MCL 440.9302; MSA 19.9302, Official UCC Comment No. 5.
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] |
Per Curiam.
Plaintiff appeals as of right from a grant of defendant’s motion for summary disposition and from a denial of plaintiffs motion for summary disposition.
On February 22, 1984, plaintiff was injured in an accident on a public road in Midland County. At the time, he was operating a four-wheel go-cart powered by a one-cyclinder, 2Vi horsepower engine. Plaintiff, a minor at the time, was insured under two insurance policies issued by defendant to plaintiffs mother, Joanne Coffey. The policies included provisions for personal injury protection (pip) benefits.
On January 7, 1986, defendant denied benefits to plaintiff, stating that, since plaintiffs vehicle was not a motor vehicle under the no-fault act, plaintiff was not entitled to pip benefits. Plaintiff commenced this suit on January 9, 1986.
In response to plaintiffs request for admissions, dated February 27, 1986, defendant admitted the following:
That on or about February 22, 1984, John Coffey sustained physical injuries while operating by power other than muscular power a vehicle with more than two wheels upon Olson Road, a public highway in Midland County, Michigan, which vehicle was not a motorcycle, nor moped, nor a farm tractor nor other implement of husbandry.
On March 31, 1986, plaintiff moved for summary disposition pursuant to MCR 2.116(C)(10), alleging that no genuine issue of material fact existed and that plaintiff was entitled to judgment as a matter of law. On April 15, 1986, defendant moved for summary disposition on the same ground. Defendant alleged in its motion that plaintiff’s injuries arose from an incident not involving a motor vehicle as defined by the Michigan no-fault act.
Both motions for summary disposition were heard on April 25, 1986. The trial judge granted defendant’s motion for summary disposition, holding that plaintiffs vehicle was not a motor vehicle under the Michigan no-fault act, MCL 500.3101(2)(c); MSA 24.13101(2)(c), and the defendant was therefore entitled to summary disposition. The summary disposition orders entered on July 8, 1986, granted defendant’s motion for summary disposition and denied plaintiff’s motion for summary disposition.
Plaintiff argues that the trial judge erred in granting summary disposition to defendant. We agree.
The trial judge granted summary disposition to defendants pursuant to MCR 2.116(C)(10) on the grounds that defendant was entitled to judgment as a matter of law since plaintiff’s go-cart was not a motor vehicle under the Michigan no-fault act. We find, however, that plaintiff’s go-cart did comply with the statutory definition of motor vehicle.
The no-fault act states:
"Motor vehicle” means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels. Motor vehicle does not include a motorcycle or a moped, as defined in section 32b of Act No. 300 of the Public Acts of 1949, being section 257.32b of the Michigan Compiled Laws. Motor vehicle does not include a farm tractor or other implement of husbandry which is not subject to the registration requirements of the Michigan vehicle code pursuant to section 216 of the Michigan vehicle code, Act No. 300 of the Public Acts of 1949, being section 257.216 of the Michigan Compiled Laws. [Emphasis added. MCL 500.3101(2)(c); MSA 24.13101(2)(c).]
The trial judge noted in his opinion that the insurance policies issued by defendant incorporate the statutory definition of "motor vehicle” into the policy.
Plaintiffs go-cart did comply with the statutory definition of "motor vehicle.” The trial court’s opinion states that the plaintiff was operating a "4-wheel go-cart vehicle powered by a one-cyclinder, 2 Vz horsepower engine.” Therefore, the requirements that the vehicle be "operated by power other than muscular power” and that it have more than two wheels were met. Additionally, the third requirement was also met; the vehicle was "operated or designed for operation on a public highway.” The trial judge in his opinion states the uncontested fact that "[plaintiff] was injured in an accident on Olson Road, a public road in Midland County.” The police report indicated that plaintiff was driving east in the westbound lane of the road. Therefore, the vehicle was being operated on a public highway. All of the statutory requirements were met to support a finding that the go-cart was a motor vehicle under the no-fault act.
The definition of "motor vehicle” has been the subject of several pertinent cases. In Pioneer State Mutual Ins Co v Allstate Ins Co, 417 Mich 590; 339 NW2d 470 (1983), the Supreme Court found, inter alia, that a farm tractor, when driven on a public highway, would qualify as a motor vehicle under § 3101(2)(c). The Court stated:
In this case the farm tractor was clearly a vehicle being operated upon a public highway by power other than muscular power at the time of the accident. Additionally, a farm tractor has more than two wheels and is not a motorcycle or a moped. [Id., p 596.]
In Citizens Ins Co of America v Detloff, 89 Mich App 429; 280 NW2d 555 (1979), lv den 407 Mich 864 (1979), this Court noted that the parties did not contest that the forklift involved was a motor vehicle under the statute because it had four wheels, was powered by an internal combustion engine and was being operated on a public highway. Other cases have distinguished Detloff on this last factor.
In Apperson v Citizens Mutual Ins Co, 130 Mich App 799; 344 NW2d 812 (1983), this Court analyzed whether street stock cars used in car races fell within the motor vehicle provision of the no-fault act. After finding that the stock cars had not been operated on a public highway and were not designed for operation upon a public highway, the Court distinguished Detloff.
In Citizens Ins Co of America v Detloff, 89 Mich App 429; 280 NW2d 555 (1977), lv den 407 Mich 864 (1979), the vehicle was being operated upon a public highway at the time of the injury and therefore fell within the express terms of the statutory deñnition of motor vehicle. [Emphasis added. Id., p 802.]
The holding in Detloff was similarly distinguished in Ebernickel v State Farm Mutual Automobile Ins Co, 141 Mich App 729; 367 NW2d 444 (1985), lv den 422 Mich 971 (1985), where the Court found that a "hi-lo” did not qualify as a motor vehicle:
[This] case is distinguishable [from Detloff\. In Detloff the forklift was operated on a public highway. Plaintiff here did not allege the forklift was operated on a public highway. Plaintiff’s claim can only succeed if the hi-lo in question is found to be a motor vehicle since it was not alleged to have been operated on a public highway. [Emphasis added. Id., p 731.
In the instant case, it was conceded that the vehicle in question was operated on a public highway. Therefore, all of the requirements were met, and the trial judge did not have to analyze whether the go-cart was "designed for operation upon a public highway.”
The trial judge also observed in his opinion that the go-cart was not a registered vehicle. However, the Michigan Supreme Court has held that the registration status of a vehicle is not relevant to whether or not it is a motor vehicle and thus covered by the statute. Lee v DAIIE, 412 Mich 505; 315 NW2d 413 (1982). In Lee, the Court determined that the plaintiff was entitled to personal protection insurance even though the vehicle involved was not required to be registered. The Lee Court stated:
We are not left to speculate about whether the Legislature intended the expression "motor vehicle” to mean a covered or registered or insured motor vehicle when it used those words as an expression of art throughout the statute. The meaning of that expression is explicitly set down in the definitional section of the act, § 3101(2)
Conspicuously absent is any language limiting "motor vehicle” to one required to be registered in the state or for which no-fault security must be maintained. [Footnote omitted. Id., p 513.]
The trial court’s grant of summary disposition to defendant is reversed. Plaintiff not only seeks a reversal of the trial judge’s grant of summary disposition to defendant but also requests that this Court reverse the trial judge’s order which denied summary disposition to plaintiff. The trial judge determined that plaintiff was not entitled to summary disposition as a matter of law because he did not consider the go-cart to be a motor vehicle. It is not clear whether plaintiff is entitled to summary disposition even if the go-cart is considered a motor vehicle. Defendant argues that, if the go-cart is deemed a motor vehicle, plaintiff is prohibited from receiving personal protection benefits because of the exclusion in the no-fault act which does not permit a person who owns a motor vehicle involved in an accident to collect if the vehicle is not insured as required by subsections (3) and (4) of § 3101. The trial court did not reach this issue and it has not been adequately briefed for us to decide. Therefore, the trial court’s grant of summary disposition to defendant is reversed and this case is remanded for further proceedings.
Reversed and remanded.
The holding in Pioneer interpreted the motor vehicle provision prior to the 1984 legislative amendment which excluded from the definition of motor vehicle "a farm tractor or other implement of husbandry which is not subject to the registration requirements of the Michigan vehicle code. . . .” However, this amendment specifically excepted only farm tractors or other implements of husbandry from the act; no other exceptions were made. | [
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M. Warshawsky, J.
Plaintiff, the personal representative of the estate of Rodney Vining, deceased, filed the instant action alleging that defendant was negligent when its police officers gave chase to a vehicle driven by plaintiff’s decedent, fired shots at the vehicle and caused the vehicle to collide with a telephone pole. Plaintiff also alleged that defendant was negligent when the police fled the scene without rendering assistance. Plaintiff’s complaint was subsequently amended to allege wilful and wanton misconduct.
Following a jury trial, defendant was found to be negligent and to have acted in a wilful and wanton manner. Defendant was found not to have committed an assault. The jury fixed the amount of damages at $270,000 and plaintiff’s decedent was found to have been forty percent negligent. Thereafter, the trial court entered a judgment in favor of plaintiff in the amount of $162,000 plus costs, interest and attorney fees. Plaintiff appeals as of right.
The only issue properly before this Court is whether the doctrine of comparative negligence is applicable where a defendant’s conduct is found to be wilful and wanton. Defendant argues that there was no showing of negligence and thus plaintiff should not be allowed to recover; however, this issue is not properly before us as defendant has not cross-appealed from the decision. Peisner v The Detroit Free Press, Inc, 421 Mich 125, 129, n 5; 364 NW2d 600 (1984), reh den 421 Mich 1202 (1985); Michigan Ass’n of Administrative Law Judges v Personnel Director of the State of Michigan, 156 Mich App 388, 395; 402 NW2d 19 (1986).
Plaintiff argues that the trial court erred in reducing the damage award by forty percent due to the comparative negligence of plaintiff’s decedent. Plaintiff asserts that where a defendant’s conduct is wilful and wanton the doctrine of comparative negligence should not apply. Plaintiff theorizes that, because the doctrine of contributory negligence was inapplicable as a defense to a claim of wilful and wanton misconduct and because the doctrine of comparative negligence has simply replaced the doctrine of contributory negligence, when wilful and wanton misconduct is established the doctrine of comparative negligence should likewise be inapplicable.
In Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), reh den 406 Mich 1119 (1979), our Supreme Court replaced the doctrine of contributory negligence, as a total bar to recovery, with the doctrine of comparative negligence. A pure form of comparative negligence was adopted. Id., p 662. Under the pure form of comparative negligence a plaintiff’s recovery of damages is reduced to the extent that his or her negligence contributed to the injury. The Court, in choosing to adopt the pure form of comparative negligence, stated that it "most nearly accomplishes the goal of a fair system of apportionment of damages.” Id., p 660.
Whether the doctrine of comparative negligence applies when a defendant’s conduct has been found to be wilful and wanton is a matter of first impression in this state. Plaintiff cites Randall v Harrold, 121 Mich App 212; 328 NW2d 622 (1982), for the proposition that comparative negligence is not a defense where a defendant is guilty of wilful and wanton misconduct; however, we conclude that plaintiff’s reliance on Randall is misplaced. This Court in Randall merely held that the adoption of comparative negligence did not displace the threshold requirement for liability under the recreational users statute, MCL 300.201; MSA 13.1485, that no cause of action for injuries shall arise under the statute unless the injuries were caused by the gross negligence or wilful or wanton misconduct of the owner, tenant or lessee.
We find guidance for our determination of the issue presented here in a decision of our Supreme Court dealing with the applicability of the doctrine of comparative negligence in another situation where the doctrine of contributory negligence was previously inapplicable. In Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982), our Supreme Court considered whether the doctrine of comparative negligence should be applied where a worker was injured and the injury was proximately caused by the lack of, or inadequacy of, safety devices in the workplace. Under Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), the defense of contributory negligence was unavailable when a construction worker alleged negligence in the failure to provide adequate safety devices on the job. In Funk, our Supreme Court held that the total bar from recovery under the doctrine of contributory negligence was inconsistent with the public policy of promoting safety in the workplace. A similar result was reached in Tulkku v Mackworth Rees Division of Avis Industries, Inc, 406 Mich 615; 281 NW2d 291 (1979), where a manufacturer had failed to provide adequate safety devices but claimed plaintiff was barred from recovery due to contributory negligence. The Tulkku Court reiterated that to allow defendant to invoke the protection of the doctrine of contributory negligence would be tantamount to subverting the very safety concerns extolled as being of paramount importance in Funk, supra, and might allow a manufacturer to escape his duty of care. The Hardy Court examined the differences between the doctrines of comparative and contributory negligence, recognizing that the doctrine of comparative negligence never allows a contractor to entirely avoid liability and thus escape the duty of care. Hardy, supra, p 40. The Court stated:
Since the defense of comparative negligence serves not to undermine but to enhance safety in the workplace, we are of the view that comparative negligence is available as a defense in those cases where Funk and Tulkku formerly prohibited the application of the contributory negligence defense. [Id., p 38.]
In light of Hardy, we find plaintiff’s contention that comparative negligence should automatically be inapplicable in those instances where contributory negligence was inapplicable to be without merit. Therefore, we turn to the merits of the issue presented here, whether the doctrine of comparative negligence should be applied in common-law tort actions sounding in negligence when there is a finding of wilful and wanton misconduct on the part of the defendant.
Guidance for our determination can be found in other jurisdictions which have adopted the pure form of comparative negligence. The Supreme Court of California discussed the issue whether comparative negligence should be applied where a defendant was found to have acted in a wilful and wanton manner in Li v Yellow Cab Co of California, 13 Cal 3d 804; 119 Cal Rptr 858; 532 P2d 1226 (1975). The Li court stated:
Finally there is the problem of the treatment of willful misconduct under a system of comparative negligence. In jurisdictions following the "all-or-nothing” rule, contributory negligence is no defense to an action based upon a claim of willful misconduct (see Restatement Torts, 2d, § 503; Prosser, Torts, supra, § 65, p 426), and this is the present rule in California. (Williams v Carr (1968) 68 Cal 2d 579, 583; 68 Cal Rptr 305; 440 P2d 505.) As Dean Prosser has observed, "[this] is in reality a rule of comparative fault which is being applied, and the court is refusing to set up the lesser fault against the greater.” (Prosser, Torts, supra, § 65, p 426.) The thought is that the difference between willful and wanton misconduct and ordinary negligence is one of kind rather than degree in that the former involves conduct of an entirely different order, and under this conception it might well be urged that comparative negligence concepts should have no application when one of the parties has been guilty of willful and wanton misconduct. It has been persuasively argued, however, that the loss of deterrent effect that would occur upon application of comparative fault concepts to willful and wanton misconduct as well as ordinary negligence would be slight, and that a comprehensive system of comparative negligence should allow for the apportionment of damages in all cases involving misconduct which falls short of being intentional. [Li, supra, 13 Cal 3d 825-826.]
In Sorensen v Allred, 112 Cal App 3d 717, 725; 169 Cal Rptr 441 (1980), the California Court of Appeals stated:
In summary, we conclude that no defensible reason exists for categorizing willful and wanton misconduct as a different kind of negligence not suitable for comparison with any other kind of negligence. The adoption of comparative negligence in Li rendered such a separate category unnecessary since contributory negligence on the part of a plaintiff was no longer a total bar to recovery for a tortious injury. We apply an old axiom, "when the need for a rule ceases the rule ceases.”
The Eighth Circuit Court of Appeals, in applying an Arkansas comparative negligence statute, has held that wilful and wanton misconduct is a degree of negligence and thus comparative negligence applies. Billingsley v Westrac Co, 365 F2d 619 (CA 8, 1966).
However, in other jurisdictions where the doctrine of comparative negligence has been adopted through legislative enactment, courts have been reluctant to apply the doctrine of comparative negligence to acts of wilful and wanton misconduct. In these cases the courts rely on the wording of the various comparative negligence statutes, recognizing that the statutes limit application of the doctrine of comparative negligence to acts of negligence, including gross negligence, and fail to include the distinct concept of wilful and wanton misconduct. These courts reason that had the legislatures intended that wilful and wanton miscon duct be included, the legislatures could have easily done so. Their failure to do so warranted a finding that the doctrine of comparative negligence is inapplicable to acts of wilful and wanton misconduct. See Derenberger v Lutey, 674 P2d 485 (Mont, 1983); Davies v Butler, 95 Nev 763; 602 P2d 605 (1979); Danculovich v Brown, 593 P2d 187 (Wy, 1979); Ryan v Foster & Marshall, Inc, 556 F2d 460 (CA 9, 1977); Draney v Bachman, 138 NJ Super 503; 351 A2d 409 (1976); Bielski v Schulze, 16 Wis 2d 1; 114 NW2d 105 (1962).
In contrast to the jurisdictions where the doctrine of comparative negligence was adopted by statute, in Michigan the decision to adopt comparative negligence was made by the judiciary. Placek, supra. Judicial adoption of the doctrine of comparative negligence also occurred in California. Li, supra. This distinction is elevated to one of great importance when questions of the applicability of the doctrine of comparative negligence are raised. In those jurisdictions where judicial adoption has taken place, the courts are not constrained by the limits placed upon the doctrine by statute or the rules of statutory construction.
We conclude, as did the Supreme Court of California, that comparative negligence should be applied in all common-law tort actions sounding in negligence where the defendant’s misconduct falls short of being intentional. However, where the defendant intentionally commits a tort, comparative negligence is inapplicable. Melendres v Soales, 105 Mich App 73, 81; 306 NW2d 399 (1981), lv den 413 Mich 916 (1982). The blurring of the distinction between negligent and intentional conduct through the creation of the doctrines of gross negligence and wilful and wanton misconduct has been done to mitigate the harsh effects of the rule of contributory negligence. Burnett v City of Ad rian, 414 Mich 448, 461; 326 NW2d 810 (1982) (Moody, J., concurring). With the advent of the doctrine of comparative negligence it is no longer necessary in common-law negligence actions to delineate whether the unintentional conduct of a defendant is negligent, grossly negligent, or wilful or wanton. Compensation for damages, where conduct is unintentional, should be apportioned according to fault.
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] |
Beasley, J.
Defendant, Ronnie Richardson, pled guilty to armed robbery, contrary to MCL 750.529; MSA 28.797. Defendant was sentenced to serve not less than nine nor more than twenty years in prison. He now appeals as of right, raising two issues.
Defendant claims that the trial court abused its discretion in sentencing him in three ways: first, that the sentence contravened the individualized sentencing policy of the state; second, that defendant was sentenced on the basis of inaccurate guidelines; and third, that his sentence was of a severity that should shock the judicial conscience. These claims are without merit.
The claim that the sentence was not individualized and the claim that the sentence was based upon an inaccurate scoring of the guidelines fall within the same category: that is, an attack upon the scoring and application of the guidelines. On appeal, we first look to the standard of appellate review to be applied with respect to the guidelines. In People v Clark, we pointed out that the standard for review was carefully set forth in the recommendations of the committee and expressly provided for "a very limited review” of sentences in the Court of Appeals. The Sentence Review Committee specifically dealt with this subject, saying:
Thought must also be given to the question of how to respond when the parties request the Court of Appeals to review the scoring decisions which the trial court must make to arrive at the guideline sentence. The committee believes that it is absolutely crucial that the Court of Appeals never get bogged down in a close review of these many scoring decisions. The committee therefore believes very strongly that the underlying factual findings which the sentencing judge may have to make must be upheld if there is any evidence to support them.[ ]
Thus, it is altogether clear that we should not substitute our judgment for that of the trial judge in determining the appropriateness of reasons given for deviation from the guidelines. As we continue along the path of appellate review of sentences, it is important that we not depart from the commendable objectives that gave rise to appellate review of sentences and stray into a bureaucratic morass that reduces the flesh and blood aspect of a prison sentence into a kind of paper shuffling.
In the within case, the trial judge made clear the way that he computed the guideline factors and his reasons for the procedure that he followed. Review of that procedure does not lead to any shocking of the judicial conscience, and, after all, the essential test of whether the judicial conscience is shocked remains. Furthermore, in this case, defendant did not file in the trial court a motion subsequent to sentencing to test his claim that the guidelines were improperly calculated. Failure to file such a motion in the trial court precludes review on appeal of this type of issue.
In sentencing defendant, the trial court explained its reason for exceeding the guidelines, pointing out, among other things, that at the time of this offense defendant was on probation for unarmed robbery. We are satisfied that the explanation was adequate, and our judicial conscience is not shocked by the sentence that was imposed.
Defendant also claims on appeal that he was denied effective assistance of counsel, apparently for the reason that his attorney allegedly did not sufficiently object to the offense variable level arrived at by the trial court. We do not agree. Defendant’s failures to convince on appeal are not caused by defects in defendant’s representation in the trial court. We find this claim to be without merit.
Affirmed.
147 Mich App 237; 382 NW2d 759 (1985), lv den 425 Mich 858 (1986).
Sentence Review Committee Report and Recommendation, p 30 (July, 1982).
Clark, supra, p 242; Sentence Review Committee Report and Recommendation, pp 29-30 (July, 1982).
People v Walker, 428 Mich 261; 407 NW2d 367 (1987).
People v Coles, 417 Mich 523; 339 NW2d 440 (1983). | [
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G. S. Allen, J.
Defendant appeals from his October 24, 1985, plea of no contest to embezzlement of over $100 by an agent, MCL 750.174; MSA 28.371. We affirm, finding no error on the three issues raised on appeal.
Defendant was allegedly involved in a series of embezzlements from 1976 to 1980 while he was chief financial officer of the Interstate Equipment Company. The amount involved apparently was at least $100,000 and may have been as much as $250,000. An arrest warrant for embezzlement of over $100 by an agent was issued on May 14, 1982. Defendant was released on a $25,000 personal recognizance bond three days later, and an attorney was appointed for him. A different attorney was appointed on July 15, 1982, although that attorney’s partner began representing defendant sometime in 1983.
Defendant was bound over to circuit court on September 16, 1982, and waived arraignment on October 20, 1982. Trial was set for January 13, 1983, but was adjourned by stipulation since defendant’s attorney was to be out of the country. A second adjournment was stipulated to on April 27, 1983, when defendant’s counsel was engaged in another trial. Seven more delays followed until finally January 23, 1985, was set as a date certain for trial. On that date, defendant pled no contest to a reduced charge of attempted embezzlement of over $100, which plea was to be accepted if defendant made restitution of $100,000 within sixty days. However, on April 16, 1985, defendant withdrew his plea, the original information was reinstated, and July 23, 1985, was set as the date certain for trial.
However, on July 19, 1985, trial was adjourned because several witnesses were out of town, and was again adjourned on September 5, 1985, because of the hospitalization of defense counsel. On October 24, 1985 — forty-one months and ten days after the issuance of the warrant — defendant pled nolo contendere to the original charge. Throughout this extended period defendant was out on personal recognizance bond.
On January 3, 1986, defendant was sentenced to three years’ probation, the first nine months to be spent in the Macomb County Jail, and was ordered to pay $100,000 in restitution during the period of probation. The minimum recommended by the sentencing guidelines for the offense was zero to six months. The court departed from this recommendation because the amount embezzled was greatly in excess of $100,000.
On February 19, 1986, Attorney Thomas Fillion was appointed counsel for defendant for the purpose of appeal to the Court of Appeals. On March 3, 1986, defense counsel’s motion to continue the $25,000 personal recognizance bond was denied and in lieu thereof a $5,000 cash or surety bond was ordered. Defendant was unable to furnish bond and appeal on the issue of the bond was taken to this Court which, on April 8, 1986, entered an order denying relief.
On April 16, 1986, defense counsel moved in the trial court to release defendant on his own recognizance pending disposition of his appeal in this Court. In support of the motion, counsel asserted that as of April 24, 1986, defendant would have served six months of the nine-month jail sentence imposed and that defendant was denied effective assistance of counsel for failure to assert lack of speedy trial. When the motion was denied by the trial court on April 28, 1986, appeal was taken on the issue to this Court which, on May 2, 1986, entered an order remanding the matter to the trial court "for the purpose of holding an evidentiary hearing on the assertion that the defendant was denied the effective assistance of counsel. People v Ginther, 390 Mich 436 [212 NW2d 922] (1973); People v Johnson, 413 Mich 487 [320 NW2d 876] (1982).”
The evidentiary hearing was held June 30, 1986. At the hearing, defendant’s trial attorney, Daniel Eyan, testified at length. He stated that he represented defendant from 1983 to the final plea-taking on October 24, 1985, and sentencing on January 3, 1986. He explained that defendant’s first, appointed trial attorney, Wesley Watson, turned the case over to him in the spring of 1983 when Watson left Michigan to practice law in the State of Washington. The bulk of Ryan’s testimony was that he did not raise the issue of lack of speedy trial because delay was caused by defendant’s adjournments to arrange payment in the amount of $100,000. He testified that if restitution was made, the case would be dismissed. He further stated that the charge against defendant involved approximately $250,000 and that the civil case against defendant resulted in a consent judgment in the amount of $100,000 and that before Watson left he had worked out a plea agreement to have the case dismissed if $100,000 in restitution was made by defendant. No other witnesses were called to testify and the hearing was concluded with all parties construing the order of remand as requiring no findings of fact by the trial court.
i
SPEEDY TRIAL
Defendant first argues that he was denied his constitutional right to a speedy trial. Citing People v Parshay, 104 Mich App 411; 304 NW2d 593 (1981), the prosecution responds that a plea of nolo contendere waives a speedy trial claim. This Court has split on the question whether a speedy trial claim is waived by a plea. Compare Parshay and People v Williams, 145 Mich App 614; 378 NW2d 769 (1985), which held that the claim is waived, with People v Davis, 123 Mich App 553; 332 NW2d 606 (1983), People v Farmer, 127 Mich App 472; 339 NW2d 218 (1983), and People v Wolak, 153 Mich App 60; 395 NW2d 240 (1986), which held that the claim is not waived. This split was re cently resolved by our Supreme Court in People v New, 427 Mich 482; 398 NW2d 358 (1986). That case involved the question whether a defendant, after pleading guilty or nolo contendere, may raise as error on appeal the denial of a motion to supress evidence or the denial of a motion to quash, because of insufficient evidence at the preliminary examination. In both instances the trial court and the Court of Appeals had held that by their pleas each defendant had waived the right to appeal the issue. The Supreme Court affirmed stating at page 491:
Today, we hold that a defendant, after pleading guilty, may raise on appeal only those defenses and rights which would prelude the state from obtaining a valid conviction against the defendant. Such rights and defenses "reach beyond the factual determination of defendant’s guilt and implicate the very authority of the state to bring a defendant to trial . . . .” [People v White, 411 Mich 366, 398; 308 NW2d 128 (1981)] (Moody, J., concurring in part and dissenting in part.) In such cases, the state has no legitimate interest in securing a conviction. On the other hand, where the defense or right asserted by defendant relates solely to the capacity of the state to prove defendant’s factual guilt, it is subsumed by defendant’s guilty plea.
Although New did not involve a speedy trial claim and made no reference to this Court’s split of opinion on that issue, we believe that the New rationale if applied to a speedy trial claim leads to the conclusion that a plea of nolo contendere does not waive the issue of lack of a speedy trial. Speedy trial issues do not relate to the state’s capacity to prove a defendant’s factual guilt but instead go more to the state’s right to ultimately bring a defendant to trial. Accordingly, we address the speedy trial issue on its merits.
Under the standard of review laid down by the United States Supreme Court in Barker v Wingo, 407 US 514, 530; 92 S Ct 2182; 33 L Ed 2d 101 (1972), and subsequently adopted by Michigan in People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), and People v Matlock, 153 Mich App 171, 175; 395 NW2d 274 (1986), the balancing of four factors is required in order to determine whether a defendant has been denied his constitutional right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his rights; and (4) prejudice to the defendant.
The circuit court file discloses the following relevant chronology:
May 14, 1982 Warrant authorized.
May 17, 1982 Defendant released on $25,000 personal recognizance bond.
May 18, 1982 Cynthia Boyer appointed defense counsel.
July 15, 1982 Wesley Watson appointed defense counsel.
September 16, 1982 Preliminary examination held and defendant bound over to circuit court.
October 20, 1982 Defendant waived arraignment in circuit court and bond continued.
January 10, 1983 Trial set for 1-13-83 adjourned over term by defendant since defense attorney will be out of the country (#1 adjournment).
April 27, 1983 Trial set for 5-5-83 adjourned over term due to defense counsel being involved in trial in St. Clair County (#2 adjournment).
July 1, 1983 Trial adjourned over term by defendant to try to raise restitution (#3 adjournment).
November 2, 1983 Trial adjourned by defendant to try to raise restitution (#4 adjournment).
December 14, 1983 Adjourned over term. No objection. Restitution (#5 adjournment).
April 4, 1984 Trial adjourned to next criminal call for trial due to unavailability of court — in trial (#6 adjournment).
June 6, 1984 Trial adjourned over term by defendant due to his defense attorney’s mother having a stroke (#7 adjournment).
September 21, 1984 Trial adjourned, defense attorney’s motion to withdraw is denied (#8 adjournment).
November 21,1984 Adjourn trial to 1-23-85 date certain for jury trial (#9 adjournment).
January 23, 1985 Plea to attempted embezzlement over $100 entered.
April 16, 1985 Defendant withdraws plea.
June 25, 1985 Trial court sets date certain of 7-23-85.
July 19, 1985 7-23-85 trial date adjourned. Several witnesses out of town. No objection by defense (#10 adjournment).
September 5, 1985 Trial adjourned over term. Defense attorney in hospital (#11 adjournment).
October 24, 1985 Defendant pleads no contest to the principal charge.
January 3, 1986 Defendant sentenced.
We next apply the above chronology to the four-factor standard of review in Grimmett and Mat-lock, supra, to determine whether defendant was denied a speedy trial.
Length of Delay: The total delay between issuance of the warrant on May 14, 1982, and defendant’s initial plea on January 23, 1985, was thirty-two months and nine days. Total delay between issuance of the warrant and defendant’s second plea on October 24, 1985, was forty-one months and ten days. A delay in excess of eighteen months triggers examination of the other three factors to determine whether the delay was prejudicial to the defendant, People v Missouri, 100 Mich App 310, 320; 299 NW2d 346 (1980), and shifts the burden of proving lack of prejudice to the prosecution, People v Ross, 145 Mich App 483, 491; 378 NW2d 517 (1985).
Reason for Delay: Until the first trial date was set for January 10, 1983, no delay in proceedings had occurred. Prior to that time the case had moved along with dispatch and defendant was on bail. However, between January 10, 1983, and defendant’s first plea, nine requests for adjournment were made. The first four adjournments were made by defendant and are clearly attributable to defendant. On December 14, 1983, a fifth request for adjournment was made. The disposition form of the circuit court for this adjournment, unlike the form used in the four preceding motions, does not clearly assign which party made the request. The form simply states "Adjourned over term. No objection. Restitution.”
Defendant argues that adjournment No. 5 is attributable to the prosecution since the disposition form does not specifically indicate that defense counsel agreed to or consented to the delay as was clearly the case in the first four adjournments. We disagree. The form specifically states "No objection.” Further, any ambiguity on this question is resolved in the transcript of the hearing on remand in the trial court. There defen dant’s attorney, Dan Ryan, testified he was acting as counsel for defendant when the motions for adjournment were made and that they were made at his client’s request so that he could obtain money for restitution:
This matter was delayed all of those years for the benefit of Mr. Sickles to come up with the money. The money was always just around the corner.
Mr. Sickles would advise me in effect the checks were in the mail, finances had to be arranged and based on that this matter kept going — getting adjourned. We worked with the adjournment to secure the necessary time for Mr. Sickles. Every-time — I shouldn’t say everytime — many times that we came to trial Mr. Sickels [sic] would advise me that the financing — his ability to secure the $100,-000 which would result in dismissal of the charges was right around the corner, sometime within hours. We would adjourn in order for him to afford the time to get the money with the understanding if he ever made restitution of the $100,000, which was a consent judgment he had entered into with Mr. Lynch, that the matter would be dismissed.
The delay in the trial was the result of Mr. Sickles not the prosecutor so if I am in error so be it.
Delay of trial caused by adjournments No. 7 and No. 8 is clearly attributable to defendant. Delay resulting from adjournments No. 6 and No. 9 is chargeable to the prosecution. Thus, in the period of twenty-four months and thirteen days between January 10, 1983, and January 23, 1985, when defendant entered his first plea, seven adjournments encompassing twenty months and ten days are attributable to defendant and two adjournments comprising four months and three days are chargeable to the prosecution.
Similarly, when we look to the reasons for the nine-month-and-one-day delay between defendant’s first and second plea, we find that virtually the entirety of the delay was due to defendant’s own action in withdrawing his plea on April 16, 1985. The amended information was struck, the original information was reinstated and on June 25, 1985, the court ordered July 27, 1985, as a date certain for trial. On July 19, 1985, adjournment No. 11 was granted due to the absence from town of several witnesses. While arguably the prosecution might have moved more quickly than June 25 in setting a date certain for trial, it is not chargeable for delay of trial because witnesses were unavailable. Barker, supra, 530-531. Also, while delays inherent in the court system, such as docket congestion, the filing of and responding to motions, and the amendment of pleadings, are technically attributable to the prosecution, they are ascribed a neutral tint and are given only minimal weight in determining whether the right to a speedy trial has been violated. People v Goode, 106 Mich App 129, 132-133; 308 NW2d 448 (1981). Thereafter, adjournment No. 11 was granted because of defense counsel’s hospitalization.
Defendant’s Assertion of Rights: The record reflects that the defendant never asserted his rights to a speedy trial at the trial court level. Failure to assert this right is not an automatic waiver of the right, but does weigh heavily against a finding that the right has been violated. People v Harris, 110 Mich App 636; 313 NW2d 354 (1981); People v Collins, 388 Mich 680, 693-694; 202 NW2d 769 (1972); Williams, supra. In fact, the testimony of defendant’s own attorney at the hearing on remand indicates that defendant preferred not to assert the right, but instead requested adjournment so that restitution funds could be found.
Prejudice to the Defendant: The fourth balancing factor under the Wingo-Matlock test is the degree of prejudice to defendant flowing from the delay in trial. A defendant may suffer two types of prejudice: prejudice to defendant’s person due to incarceration itself and prejudice to defendant’s defense such as the unavailability of witnesses or the impairment of being unable to adequately prepare one’s defense. People v Chism, 390 Mich 104, 114; 211 NW2d 193 (1973). Impairment of defense is the most serious. Grimmett, supra; People v Carner, 117 Mich App 560, 578; 324 NW2d 78 (1982).
Since defendant was out on bond on his own recognizance throughout the entire circuit court proceedings, we find little or no prejudice to defendant’s person. Except for a general allegation that the pending charges made it impossible for him to obtain employment and generally disrupted his normal lifestyle, defendant’s brief makes no claim of prejudice to his ability to defend against the charges against him. Furthermore, as is evidenced by the testimony on remand, it was defendant himself who sought and obtained repeated delays of trial. Indeed, the instant situation is similar to People v Rosengren, 159 Mich App 492; 407 NW2d 391 (1987), where a delay of more than forty-three months from arrest to trial was held not prejudicial to defendant even though in the fourteen-month period preceding trial defendant moved to dismiss for want of a speedy trial. There, as in the instant case, the record indicated that for much of the time period involved defendant did not want a speedy trial and the balance of the delay period was due to neutral factors.
If the failure to assert the right to a speedy trial is weighed heavily against a subsequent claim of denial thereof, so too must the conduct of an accused inconsistent with and evidencing the insincerity of the claim which he has made. Defendant cannot have it both ways. [159 Mich App 508.]
Four-Factor Balance: Upon balance, the people have carried the burden of rebutting the presumption of prejudice to defendant imposed when delay between arrest and final plea or trial exceeds eighteen months. Under factor one, proceedings progressed with normal dispatch until January 19, 1983 — a period almost eight months after issuance of summons. Such delay as occurred was entirely attributable to neutral causes which are given only nominal weight against the prosecution. Under factor two, of the 24½-month delay between January 10, 1983, and defendant’s first plea, twenty months is attributable to defendant and two adjournments of four months are attributable to the prosecution but for reasons which are ascribed only nominal weight. Virtually all of the nine-month period between pleas is attributable to defendant’s withdrawal of his first plea, or his counsel’s hospitalization, or neutral reasons such as the absence of witnesses. Under factor three, defendant never requested a speedy trial and in the period ensuing after a trial date was first set, repeatedly requested delay in trial. Finally, under factor one, defendant remained on a personal recognizance bond and he raises no claim regarding the most serious form of prejudice, viz., impairment of defense.
We reject any claim that the prosecution has failed to rebut the presumption of prejudice. On the contrary, the prosecution’s brief discusses each of the four factors at length. Any conclusion that the presumed prejudice to defendant is "unrebut ted” is totally at variance with the prosecution’s brief and with the testimony adduced at the hearing on remand. Clearly, when the presumed prejudice is balanced with the four factors, the balance overwhelmingly weighs in the prosecution’s favor.
ii
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied effective assistance of counsel under both Const 1963, art I, § 17 and the Sixth and Fourteenth Amendments to the United States Constitution. Claims of ineffective assistance of counsel under the Michigan Constitution are judged under the bifurcated test set forth in People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976). Violations under the United States Constitutioii are judged under guidelines set forth in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). See People v White, 142 Mich App 581, 587-588; 370 NW2d 405 (1985); People v Vicuna, 141 Mich App 486, 497-498; 367 NW2d 887 (1985). We find no violation under either test.
It is first claimed that effective assistance of counsel was denied because of counsel’s failure to file a motion to dismiss for lack of a speedy trial. However, since in Issue i we have found no violation of defendant’s right to a speedy trial, perforce we find no violation for failure to move for dismissal.
It is next claimed that effective assistance of counsel was denied because of counsel’s failure to negotiate a plea more favorable than the offense originally charged. However, a more favorable plea was negotiated on January 23, 1985, when defendant pled no contest to a reduced charge of attempted embezzlement by an agent of money over $100 in value. If defendant had made restitution in sixty days the charge would have been dismissed. Just why defendant subsequently withdrew his plea was not made clear in the testimony at the hearing on remand. Presumably it was because defendant could not make the $100,000 restitution within the time assigned. In the absence of something in the record to disclose that counsel was to blame for withdrawal of the plea, fault cannot be attributed to counsel. Having withdrawn his first plea, defendant was faced with the alternative of going to trial on the original charge or pleading thereto. Defendant chose to plead. Given these circumstances, we are unable to fault trial counsel.
The third ground of defendant’s ineffective assistance of counsel claim is counsel’s failure to object to the sentence imposed. Given the magnitude of the larceny involved, counsel performed admirably in keeping the sentence to three years’ probation with only nine months in the county jail. Under the statute, defendant could have been sentenced to from six years to ten years in prison.
hi
ERRORS BY TRIAL COURT UPON SENTENCING
Finally, defendant asserts a tripartite claim of error by the trial court in imposing sentence: (A) failure to inquire into defendant’s ability to make restitution of $100,000 as required by MCL 771.3(5)(a); MSA 28.1133(5)(a); (B) ordering restitution in excess of the amount established by facts adduced at the plea hearing; and (C) improper consideration of defendant’s disavowance of his earlier plea.
A
MCL 771.3(5)(a); MSA 28.1133(5)(a), as amended by 1980 PA 514, provides:
If the court imposes restitution or costs as part of a sentence of probation, the following shall apply:
(a) The court shall not require a probationer to pay restitution or costs unless the probationer is or will be able to pay them during the term of probation. In determining the amount and method of payment of restitution and costs, the court shall take into account the financial resources of the probationer and the nature of the burden that payment of restitution or costs will impose, with due regard to his or her other obligations.
The sentencing transcript discloses no findings by the trial court concerning defendant’s ability to pay $100,000 in restitution. Citing People v Gleason, 139 Mich App 445, 448; 363 NW2d 3 (1984), People v Blaney, 139 Mich App 694, 695; 363 NW2d 13 (1984), and People v Goodchild, 145 Mich App 266, 267; 377 NW2d 318 (1985), defendant claims error requiring reversal. We disagree on two grounds.
While the trial court made no express findings on the record that defendant had the ability to pay $100,000 in restitution, the record before the court at the time of sentencing contained facts indicative of defendant’s ability to make such payment. This is unlike the situations in Gleason, Blaney, and Goodchild. Page 4 of the initial presentence report contains the following:
economic situation:
The defendant states that his only signiñcant asset currently is the resort property in the Upper Peninsula with an estimated worth of $800,000, of which he owes approximately $300,000. William states that he is in the final processing of mortgaging the property to pay his debts. He [sic] long range plans are to move to the Upper Peninsula and operate the resort.
He indicated that all of his other properties and values have been "depleted.” [Emphasis supplied.]
A second presentence report updated for use at defendant’s second plea contained the following:
At the time of our last interview with Mr. Sickles on 11-6-85, he informed me that the mortgage commitment of his northern property should be closed within the next 30 days. We have not heard if this has, in fact, occurred.
Mr. Sickles has secured employment since the original Presentence Report was completed on 4-9-85. He is currently employed for the Johnson International Corporation of 16478 Common road [sic] in Roseville, Michigan. The defendant is a sales representative for a corporation that manufactures parts for the aerospace industries. The offender has not had any further involvements with the law and there are no significant changes in the Presentence Report. [Emphasis supplied.]
Thus, it is clear that the court had before it at the time of sentencing facts upon which the court could reasonably conclude defendant could reasonably make restitution within the three-year probationary period.
A second ground for finding no error for lack of findings concerning defendant’s ability to pay is this Court’s opinion in People v Music, 157 Mich App 375, 379-380; 403 NW2d 143 (1987), which disagreed with prior panels in Gleason, Blaney and Goodchild:
Unlike the above panels of this Court, we do not believe the amended statute contains an express requirement that the sentencing court hold a hearing or make findings on the record before imposing costs as a condition of probation. The terms of MCL 771.3; MSA 28.1133 constitute the law, which courts are obligated to follow. Implicitly, then, the requirements of the statute will be contained in probation orders. Reading the instant order and the requirements of the statute together leads to the conclusion that these are appropriate costs, determined by the court in accordance with the statute. This does not preclude a defendant from objecting at sentencing to a probation condition imposing costs or restitution because of inability to pay or other proper grounds. In the face of a defendant’s alleged inability to pay, we believe a. court should be required to make a determination on the record, holding a hearing if necessary. We also note that a defendant not in wilful default may always petition the sentencing court for a review of the payment provision. MCL 771.3(5)(b); MSA 28.1133(5)(b). Moreover, a defendant cannot be held to have violated probation if unable to comply with the order to pay costs or restitution because of financial condition. MCL 771.3(7); MSA 28.1133(7). [Emphasis supplied.]
Under Music, the proper remedy is not for relief at the appellate level but, instead, for defendant to petition the sentencing court for a review of defendant’s ability to pay in accordance with the restitution provision.
B
Citing excerpts from the plea-taking transcript, defendant argues that, at most, $46,700 was established as the amount embezzled, and since restitution may not exceed the factual basis established, People v Alvarado, 142 Mich App 151, 162-163; 369 NW2d 462 (1984), the restitution provision of the probation order must be vacated. We agree with the statement of law but disagree as to the facts. The sentencing transcript contains a statement by the trial judge that following the plea-taking on October 14, 1985, an updated presentence report had been prepared, was made available to the court and to counsel, and was discussed by the court and counsel in chambers. As noted earlier the updated presentence report contained a statement that $100,000 was the amount of restitution. Further, the sentencing transcript includes a statement by trial counsel that a consent judgment for $100,000 had been entered into between defendant and his employer. Consequently, we disagree that not more than $46,700 was established as the amount appropriated.
Further, any doubt about $100,000 being established as the sum embezzled is resolved by the testimony of defendant’s attorney, Dan Ryan, upon rehearing. The transcript upon remand contains the following exchange:
Q. As to or in regard to restitution in this case, you are aware that restitution can only be imposed to the extent of the loss that the complaining witness has incurred, aren’t you?
A. I believe that’s the rule. I am also aware that there was a consent judgment entered into with Mr. Sickles and Mr. Lynch in the amount of $100,000. There was a civil lawsuit, whatever reasons there may have been [Mr. Sickles] admitted that he owed Mr. Lynch $100,000, so the whole concept of restitution in the criminal case was the same $100,000; my attitude being Mr. Sickles, if you pay him what you owe him in the civil case the criminal charges will be dismissed; that’s where the $100,000 restitution came from.
Q. Okay.
A. We didn’t pull $100,000 out of the air, that was the basis of the consent judgment and I be lieve Mr. Barrish was the civil counsel in that case.
C
The third claim of sentencing error raised by defendant on appeal is that the sentence was in retaliation for defendant’s earlier withdrawal of his plea. The apparent basis for this claim is that the disposition form for the first plea was signed by the trial judge and contained a box marked "Sentence: probationary jail term 3 years, first 6 months of probation in Macomb County Jail.” The box was marked with an x, which was crossed out. The disposition form for the second plea, signed by the same trial judge, contained the same sentence, except this time nine months rather than six months were to be spent in the county jail. According to defendant the increased sentence was in retaliation for withdrawal of the earlier plea and is controlled by People v Rivers, 147 Mich App 56, 61-62; 382 NW2d 731 (1985). In Rivers we held that an increased sentence, imposed following trial after defendant’s refusal to accept an earlier plea offer, was grounds for remand for resentencing by a different judge.
Unless there is something in the record which indicates the higher sentence was imposed as a penalty for the accused’s assertion of his right to trial by jury, the sentence imposed will be sustained. Anno: Propriety of sentencing justice’s consideration of defendant’s failure or refusal to accept plea bargain, 100 ALR3d 834. Nothing in the record indicates who placed the x in the initial sentencing form, why it was placed there, or who crossed it out. In the absence of something in the record, we will not presume retaliation.
At sentencing the trial judge explained that he rejected the six-month guideline recommendation as grossly inadequate because of the substantial sum involved. At the evidentiary hearing in June, 1986, he stated he still felt nine months was too lenient a sentence and the only reason he ordered nine months was to afford a chance for restitution. Where the court offers a different reason for the sentence imposed than the reason asserted by the defendant, a reviewing court will not assume the sentence was imposed in retaliation for rejection of an initially offered plea. Rivers, supra, p 61; People v Snow, 386 Mich 586; 194 NW2d 314 (1972).
Affirmed.
The Court: All right. You propose to call a witness to the stand? My only function is to preside over a record which is to be transcribed and forwarded to the Court of Appeals: Is that your understanding?
Mr. Pillion: That’s my understanding also.
The Court: Make your record. | [
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] |
Cynar, P.J.
Plaintiffs appeal as of right from a January 9, 1984, judgment and order denying their motion for a new trial or judgment notwithstanding the verdict (jnov). In addition, plaintiffs appeal from a June 3, 1986, order and judgment which granted defendants’ motion for summary disposition on the basis that the instant suit was barred by governmental immunity. We affirm.
The events giving rise to the instant cause of action occurred in the late evening hours of September 29, 1979, and the early morning hours of September 30, 1979. Plaintiff Audrey Murphy was a passenger on a motorcycle driven by plaintiff Melvin Whitten. They drove from a restaurant parking lot to the Muskegon County Wastewater System, a comprehensive sewage treatment facility, which was located on Hall Road. The wastewater system had installed some twenty-five gates and entrances around the facility’s twenty-five-mile perimeter. Approximately twelve to thirteen of these entrances were placed on vacated roads. Hall Road was one of these vacated roads. Apparently, the gates had been constantly vandalized.
At the time Murphy and Whitten were driving at the Hall Road location of the wastewater system, a wire cable was connected to two posts, stretching across Hall Road. As they proceeded on Hall Road, they struck the cable and suffered injuries.
As a result of the accident, Murphy and Whitten and his wife, Glenda Whitten, filed separate complaints which were consolidated by a stipulation and order dated June 22, 1983. Subsequently, on November 21, 1983, defendants moved for accelerated judgment, alleging immunity from suit. Defendants’ motion was denied on December 7, 1983, and the case proceeded to trial.
Using a special verdict form, on December 15, 1983, the jury found defendants negligent and that defendants’ negligence constituted a proximate cause of plaintiffs’ injuries. The jury also found that defendants’ conduct did not create an intentional nuisance. The jury found $100,000 in damages for Melvin Whitten, $50,000 for Glenda Whit-ten and $50,000 for Murphy. The jury concluded that Melvin Whitten was ninety-six percent negligent while Murphy was found ninety-nine percent negligent. In accordance with this jury finding, the trial court reduced the damage award.
Thereafter, on December 27, 1983, plaintiffs filed a motion for jnov or a new trial, which was denied. On January 9, 1984, judgment was entered on the jury verdict.
On January 17, 1984, plaintiffs appealed from the January 9, 1984, order and judgment. Defendants thereafter cross-appealed from the denial of their motion for accelerated judgment on the basis of governmental immunity. Following the filing of the appeals, the trial court entered a stipulation and order regarding settlement of the record and which also, with the parties’ argreement, reopened the case to redecide defendants’ summary disposi tion motion on immunity in light of Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). Defendants’ motion was granted on June 3, 1986, and defendants’ cross-appeal was dismissed pursuant to a stipulation of the parties.
Plaintiffs raise six issues on appeal, none of which merit reversal of the lower court’s rulings. First, plaintiffs argue that the jury’s allocation of plaintiffs Murphy and Melvin Whitten’s negligence was so grossly disproportionate as to contravene the concept of comparative negligence. We do not agree.
The doctrine of comparative negligence was adopted by our Supreme Court in Placek v Sterling Heights, 405 Mich 638, 650; 275 NW2d 511 (1979), reh den 406 Mich 1119 (1979). Comparative negligence replaced the doctrine of contributory negligence because the latter doctrine barred plaintiffs from recovery even if they were minimally negligent. In the interest of fairness, the Supreme Court, in Placek, supra, declared that the better approach would be to apply a "pure” comparative negligence approach rather than the hybrid fifty percent rule which prevents recovery if a plaintiff’s negligence exceeds fifty percent of the total fault. Id., p 660. "Only pure comparative negligence truly distributes responsibility according to fault of the respective parties.” Schwartz, Comparative Negligence (Indianapolis: Allen Smith Co, 1974), § 21.3, p 347, cited in Placek, supra, p 660.
Quoting from Kirby v Larson, 400 Mich 585, 644; 256 NW2d 400 (1977), the Supreme Court in Placek, supra, p 661, stated as follows regarding the nature of the "pure” comparative negligence doctrine:
The doctrine of pure comparative negligence does not allow one at fault to recover for one’s own fault, because damages are reduced in proportion to the contribution of that person’s negligence, whatever that proportion is. The wrongdoer does not recover to the extent of his fault, but only to the extent of the fault of others. To assume that in most cases the plaintiff is more negligent than the defendant is an argument not based on equity or justice or the facts. What pure comparative negligence does is hold a person fully responsible for his or her acts and to the full extent to which they cause injury. That is justice.
The above language suggests that the jury has discretion to determine the percentage of comparative fault on the part of plaintiffs. We reject plaintiffs’ contention that pure comparative negligence in this case would effectively bar their recovery even though the jury found defendants negligent.' The comparative negligence doctrine was implemented as a means of avoiding the inequities and unfairness of the contributory negligence doctrine, which, if applicable to this case, would have completely barred plaintiffs from any recovery. As further support for our conclusion, we note that in Placek, supra, p 662, the Court indicated that a special verdict form shall be used in negligence cases where the negligence of the plaintiff is at issue. We construe this finding as an indication that the jury would be empowered to allocate the percentage of comparative fault in these types of cases. Therefore, we find no error in the allocation of the amount of negligence to plaintiffs Murphy and Melvin Whitten.
Next, plaintiffs argue that the grossly disproportionate allocation of comparative negligence was against the great weight of the evidence. In Slanga v Detroit, 152 Mich App 220, 224; 393 NW2d 487 (1986), this Court stated that when a trial court is deciding a motion for a jnov, the court must view the evidence in a light most favorable to the nonmoving party, giving the nonmoving party the benefit of every reasonable inference that could be drawn from the evidence. If the evidence is such that reasonable persons could differ, the question is one for the jury and jnov is improper. A jnov may be granted only where there is insufficient evidence, as a matter of law, to make an issue for the jury. Willoughby v Lehrbass, 150 Mich App 319, 344; 388 NW2d 688 (1986).
Regarding the grant of a new trial motion, in May v Parke, Davis & Co, 142 Mich App 404, 410-411; 370 NW2d 371 (1985), lv den 424 Mich 878 (1986), this Court stated:
It is within the trial court’s sound discretion to grant or deny a motion for new trial. The standard of review is whether the jury’s verdict was against the overwhelming weight of evidence. A reviewing court affords deference to the trial judge’s decision since the trial judge, having heard the witnesses, is uniquely qualified to judge the jury’s assessment of their credibility. This Court will not substitute its judgment for that of the jury unless a review of the record reveals a miscarriage of justice. [Citations omitted.]
See also Bosak v Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985). A trial court does not have an "unlimited power to grant a new trial merely because it does not agree with the verdict. The court may not substitute its judgment for that of the finders of fact.” Bell v Merritt, 118 Mich App 414, 422; 325 NW2d 443 (1982), lv den 417 Mich 954 (1983).
After reviewing the record, we conclude that there was considerable evidence to determine whether plaintiffs Murphy and Melvin Whitten were negligent. There was ample testimony indicating that they may have been intoxicated and that their intoxication proximately caused their injuries or prohibited them from exercising the care of a reasonably prudent person under the circumstances.
Further, as defendants contend, there was sufficient evidence to permit a jury determination on whether there was a "No Trespassing” sign on the cable and whether plaintiffs Murphy and Melvin Whitten were negligent in not seeing the sign in time to stop. The finding by the jury on these issues was not against the great weight of the evidence and the trial court’s ruling which denied plaintiffs’ motion for jnov or new trial did not constitute an abuse of discretion.
Plaintiffs’ third claim of error is the issuance by the trial court of several standard jury instructions on trespassers.
MCR 2.516(D)(2)(a)-(c), formerly GCR 1963, 516.6(2), states that pertinent portions of the Michigan Standard Jury Instructions must be given if they are applicable, accurately state the applicable law, and are requested by a party. See also Guider v Smith, 157 Mich App 92, 98; 403 NW2d 505 (1987). Whether a particular requested instruction is applicable and accurately states the law based on the individual characteristics of a given case is left to the sound discretion of the trial court. Johnson v Corbet, 423 Mich 304, 327; 377 NW2d 713 (1985). Further, the Court in Johnson stated that a reviewing court should not reverse for a violation of MCR 2.516 unless it concludes that noncompliance with the rule resulted in such unfair prejudice that the failure to vacate the jury award would be inconsistent with substantial justice. 423 Mich 327.
We find no error in the issuance of the instructions on trespassers. The instructions were requested by defendants and involved SJI2d 19.01, 19.02, 19.07, and a special related instruction. These instructions were applicable to the case. The evidence indicated that plaintiff Melvin Whitten drove his motorcycle down a roadway where there was a visible "Road Closed” sign, a "Dead-end Road” sign, and a large yellow "No Trespassing” sign. If believed, the jury could infer that the driving of the motorcycle down this roadway constituted a trespass. A trespass is every unauthorized intrusion or invasion upon the private premises or lands of another. Giddings v Rogalewski, 192 Mich 319, 326; 158 NW 951 (1916); Antkiewicz v Motorists Mutual Ins Co, 91 Mich App 389, 396; 283 NW2d 749 (1979), vacated in part on other grounds 407 Mich 936 (1979). Finally, the instructions accurately stated the applicable law. Hence, we find no error.
Even if we agree with plaintiffs that the instructions were inapplicable, plaintiffs were not unfairly prejudiced. The instructions, when read as a whole, constituted a fair and proper charge to the jury.
Plaintiffs’ fourth contention deals with the issuance of SJI2d 13.02 and 12.01 regarding plaintiffs Murphy and Melvin Whitten’s intoxication. They argue that there was simply no evidence to support such an instruction. We must disagree.
As we discussed in an earlier portion of this opinion, there was ample testimony indicating that they may have been intoxicated. They admitted drinking at least two or three beers earlier in the evening. The officers investigating the accident believed that Murphy was intoxicated since she stumbled, her speech was slurred and her walking was impaired. Based on this evidence, it was not error for the trial court to issue an intoxication instruction. Moreover, even if we assume error, it was harmless.
Plaintiffs also claim error by the trial judge when he limited their cross-examination of John LaBash regarding his termination as a deputy sheriff subsequent to his investigation of the accident. During plaintiffs’ cross-examination of La-Bash, plaintiffs sought to question him regarding his dismissal as a deputy sheriff for allegedly abusing a drunk prisoner.
Plaintiffs argue that this line of inquiry was permissible under MRE 608(b) which provides in pertinent part:
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The extent to which a witness may be cross-examined on questions affecting his or her credibility rests in the sound discretion of the trial court. People v Bouchee, 400 Mich 253, 266-267; 253 NW2d 626 (1977). In Bouchee, our Supreme Court held that character evidence offered to impeach or support a witness’ credibility, other than evidence of a prior conviction for a crime, must be limited to the particular character trait of truthfulness or untruthfulness.
We find no abuse of discretion in the trial judge’s refusal to allow cross-examination of La-Bash concerning his termination as a deputy sheriff. That line of inquiry was not probative of LaBash’s truthfulness regarding his investigation of the accident in question.
Finally, plaintiffs argue error by the trial court in holding that defendants were immune from suit on the basis of Ross, supra. Plaintiffs contend that the various enterprises carried out at the wastewater facility are conducted primarily for the purpose of producing a pecuniary profit. Defendants argue that the primary purpose of the wastewater facility is sewage treatment. Since the system is supported through fees and taxes, defendants are immune from tort liability.
MCL 691.1407(1); MSA 3.996(107)(1) provides:
(1) Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.
In Ross, supra, p 620, the Supreme Court defined a "governmental function” as:
[A]n activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature (as defined in § 13 [MCL 691.1413; MSA 3.996(113)]) or falls within one of the other statutory exceptions to the governmental immunity act. Whenever a governmental agency en gages in an activity which is not expressly or impliedly mandated or authorized by constitution, statute, or other law (i.e., an ultra vires activity), it is not engaging in the exercise or discharge of a governmental function. The agency is therefore liable for any injuries or damages incurred as a result of its tortious conduct.
In this case, the operation of the wastewater system by defendants constituted a governmental function since this activity was expressly authorized by 1957 PA 185, MCL 123.731 et seq.; MSA 5.570(1) et seq. Therefore, the remaining question is whether any of these activities associated with the facility fall under the immunity exception found in MCL 691.1413; MSA 3.996(113), which essentially denies immunity to governmental entities if the activity engaged in is primarily for generation of a pecuniary profit, meaning the governmental entity is engaged in a "proprietary function.”
A "proprietary function” is defined as "any activity which is conducted primarily for the purpose of producing a pecuniary profit for the governmental agency, excluding, however, any activity normally supported by taxes or fees.” MCL 691.1413; MSA 3.996(113). Recently, in Hyde v University of Michigan Regents, 426 Mich 223; 393 NW2d 847 (1986), our Supreme Court elaborated on the statutory definition. The Court stated that the generation of profit by the agency is relevant for determining whether the agency is engaged in a proprietary function. If an agency pursues an activity despite consistent losses, this may be evidence that the primary purpose is not to make a pecuniary profit, but it is not conclusive evidence. Alternatively, the fact that the activity generates a consistent profit may evidence an intent to produce a profit. However, this too would be insufficient since § 13 requires the generation of a profit as the primary motive. Id., pp 258-259.
In addition, a second relevant consideration is where the profit is deposited and the manner in which it is spent. If the profit is used to finance an agency’s unrelated functions, the agency may be said to be engaging in a proprietary function. But, if the funds are used to run the activity, this could be an indication that the primary purpose of the activity is nonproprietary. Id.
We find that the operation of the wastewater facility does not constitute a proprietary function. The generated revenues are not a result of activities conducted primarily to produce a profit. The revenues are used to run the operation of the facility and reduce the rates charged for use of the system. Moreover, the system is supported by taxes and fees and the farming operation by defendants is a primary part of the sewage disposal system.
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] |
Per Curiam.
Plaintiffs, five parishioners of St. Isidore’s Roman Catholic Church in Grand Rapids, filed a complaint in Kent Circuit Court containing four counts. In count one they seek to restrain their bishop, the Most Reverend Joseph M. Breitenbeck, from employing their parish priest, Rever end Stephen E. Vesbit, to further serve as pastor of St. Isidore’s.
In counts two, three, and four, they seek to recover damages from Reverend Vesbit for intentional infliction of emotional distress.
Circuit Judge George V. Boucher granted defendants’ motion for summary disposition as to count one on the basis that the relief requested is not available under Michigan common law. He further granted the motion of Reverend Vesbit for summary disposition as to counts two, three and four, giving reasons therefor that the tort of intentional infliction of emotional distress has never been recognized by the Supreme Court of Michigan.
Plaintiffs appeal from such decision and we affirm, but on different grounds.
The action arose from a dispute over renovation and modernization of the church and parish buildings. The petitioners, and allegedly numerous other parishioners, are Polish. The former pastor had obtained their commitment for financial support and they had contributed substantial sums of money for repair and maintenance of the church and parish buildings. When Reverend Vesbit was installed as pastor he redirected the use of the funds to modernization of the church, which included changes in structure and removal of Polish religious artifacts.
This angered the parishioners and they withdrew their financial support, leaving the church in financial straits. It is alleged that Reverend Vesbit, after numerous confrontations, took intentional retaliatory action against some of the most vociferous of his critics, which included the plaintiffs.
The forms of such retaliation are alleged in counts two, three and four of the complaint.
Count two alleges that plaintiff Ignacz Permoda was a baptized member of the Roman Catholic Church for eighty-five years and had taken communion for that time. For the last thirty-five years he has been a member of St. Isidore’s. After parishioners withdrew their support, when communion was being conducted on a Sunday morning, Reverend Vesbit refused, in the presence of the congregation, to give communion to Mr. Permoda.
Count three alleges that, in retaliation for their reduction in contributions, Reverend Vesbit expelled plaintiffs Robert and Lucy Maciejewski from the parish register and they have been attending religious services at other parishes.
Count four alleges that, in retaliation for reduction of his contributions, Reverend Vesbit told plaintiff George Merdzinsky that he would no longer allow him to assist the priest at masses as he, Merdzinsky, had been expelled from the parish. Reverend Vesbit also is alleged to have verbally castigated and abused Dorothy Merdzinsky in the presence of the congregation.
All plaintiffs complain of mental distress as a result of these actions.
Turning first to the suit to enjoin Bishop Breitenbeck, we note that plaintiffs elected not to brief this issue on appeal and it is therefore considered abandoned. Royal Indemnity Co v H S Watson Co, 93 Mich App 491, 494; 287 NW2d 278 (1979); Dorlin v Providence Hospital, 118 Mich App 831, 835; 325 NW2d 600 (1982); MCR 7.212(C)(4).
Even had plaintiffs pursued their allegations in count one the trial court would have to be sustained in its summary disposition of that count.
It is well settled that courts, both federal and state, are severely circumscribed by the First and Fourteenth Amendments to the United States Constitution and art 1, § 4 of the Michigan Constitution of 1963 in resolution of disputes between a church and its members. Such jurisdiction is limited to property rights which can be resolved by application of civil law. Whenever the court must stray into questions of religious doctrine or ecclesiastical polity the court loses jurisdiction. Berry v Bruce, 317 Mich 490; 27 NW2d 67 (1947), First Protestant Reformed Church v DeWolf, 344 Mich 624; 75 NW2d 19 (1956), Berkaw v Mayflower Congregational Church, 378 Mich 239; 144 NW2d 444 (1966), cert den 385 US 1035; 87 S Ct 775; 17 L Ed 2d 682 (1967), Bennison v Sharp, 121 Mich App 705; 329 NW2d 466 (1982), and Beulah Missionary Baptist Church v Spann, 132 Mich App 118, 125; 346 NW2d 911 (1984) (concurring opinion of H. R. Gage, J.).
Religious doctrine refers to ritual, liturgy of worship and tenets of the faith. Jones v Wolf, 443 US 595; 99 S Ct 3020; 61 L Ed 2d 775 (1979); Bennison, supra.
Polity refers to organization and form of government of the church. Black’s Law Dictionary (4th ed), p 1319.
The issue in this case is the court’s right to enjoin the Bishop of Grand Rapids from assigning a certain priest to a parish.
The Roman Catholic Church is an hierarchical organization and the Bishop’s power to make assignments of ministers to a parish is certainly a matter of ecclesiastical polity in which the courts may not interfere, even though the issue may be couched in language that would make it appear to be a property issue. Holt v Trone, 341 Mich 169; 67 NW2d 125 (1954).
The second issue is whether the trial court erred in granting defendants’ motion for summary disposition of plaintiffs’ claims of intentional infliction of emotional distress.
The trial judge tersely granted the motion say ing, "This is quite a modern tort not yet recognized by the highest court in this state. Roberts v Auto-Owners Ins Co, 422 Mich 594 (1985). Hopefully, it never will be. The awesome flood of litigation has already risen to the gunnels. If the courts were to offer to extract money from everyone who intentionally makes someone else mad, we would surely go under.”
We agree that the Supreme Court in Roberts v Auto-Owners Ins Co, 422 Mich 594; 374 NW2d 905 (1985) , found it unnecessary to determine whether a separate tort of intentional infliction of emotional distress is formally adopted into Michigan jurisprudence to decide that case, however, a case can be made that the Court did not overrule Stewart v Rudner, 349 Mich 459; 84 NW2d 816 (1957), or Daley, v LaCroix, 384 Mich 4; 179 NW2d 390 (1976). Also, the Supreme Court rather carefully limited Roberts to causes of action arising in the context of dilatory conduct of insurance companies in handling insurance claims. Further, a number of Court of Appeals cases have recognized such independent causes of action. Wendt v Auto-Owners Ins Co, 156 Mich App 19; 401 NW2d 375 (1986) , Crossley v Allstate Ins Co, 155 Mich App 694; 400 NW2d 625 (1986), Sawabini v Desenberg, 143 Mich App 373; 372 NW2d 559 (1985), Barnes v Double Seal Glass Co, Inc, 129 Mich App 66; 341 NW2d 812 (1983), and Chrum v Charles Heating & Cooling, Inc, 121 Mich App 17; 327 NW2d 568 (1982).
These cases are binding on the trial courts unless specifically overruled by the Supreme Court. In re Hague, 412 Mich 532, 552; 315 NW2d 524 (1982), reh den 413 Mich 1106 (1982).
Until the Supreme Court speaks more firmly than it has done so far, it is the belief of this panel that trial courts must in proper cases follow the decisions of the Court of Appeals. If so, the trial court’s reason in this case for granting summary disposition cannot be sustained. However, though we may disagree with the reason given for the granting of summary disposition, we conclude that such action was proper for the same reason that the court dismissed count one. It is beyond the jurisdiction of civil courts to determine rights to communion, qualification of members and privileges of membership which are necessary to decide the issues in this case. The trial court is not equipped or empowered to make such inquiries and was obliged therefore to grant summary disposition.
The reasoning and case law supporting our opinion in affirming count one apply equally to affirming counts two, three and four.
Affirmed. | [
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Per Curiam.
Plaintiff, T. Gene Henrikson, appeals as of right from the trial judge’s determination that nine-year-old Danny Henrikson and eleven-year-old JoAnna (Joie) Henrikson should be in the custody of their former stepfather rather than their natural father. We reverse.
Plaintiff Henrikson is the natural father of the children and was previously married to their natural mother, Nancy Henrikson. The couple divorced in 1979 and Nancy Henrikson was given custody of Danny, Joie, and the couple’s other child, Jay, age sixteen. Thereafter, Nancy Henrikson married defendant, James L. Gable. Gable was married to Nancy Henrikson-Gable at the time she died suddenly in March, 1982. Following her death, plaintiff and defendant agreed that custody of the children would remain with defendant Gable. In Au gust, 1983, after visiting his father in New York, Jay expressed a desire to live there with him. Gable consented, and in September, 1983, a stipulation and order to that effect was entered. Plaintiff filed the instant action seeking custody of Danny and Joie in December, 1985. On April 10, 1986, after a four-day custody trial, the trial judge, in a long and thorough opinion delivered from the bench, concluded that it was in the best interests of Danny and Joie that they remained in their established custodial environment with Gable.
On appeal, plaintiff first argues that the trial judge erred in failing to specifically rule whether the children had an established custodial environment with defendant. We do not find error. While the trial judge did not specifically state that the children had an established custodial environment with defendant, it is obvious from the trial judge’s ruling that he believed an established custodial environment existed. In applying MCL 722.23; MSA 25.312(3), he found that factor (d) "the length of time the children have lived in a stable, satisfactory environment and [the] desirability of maintaining continuity ... is weighed very strongly on behalf of the Gables.” He also cited directly to Deel v Deel, 113 Mich App 556; 317 NW2d 685 (1982), where a panel of this Court held that the existence of an established custodial environment by a third party was an important factor to consider in determining whether the natural parent presumption had been rebutted. The trial judge, after noting how Gable had worked continuously to address Danny’s learning disability, stated that the "portion that I’ve cited from Deel” favors Gable. From this record, we have no difficulty in concluding that the trial judge’s ruling was tantamount to a finding that an established custodial environment existed. Moreover, on a de novo re view of the trial record, we find that the children had an established custodial environment with defendant. Meyer v Meyer, 153 Mich App 419, 423; 395 NW2d 65 (1986).
Next, plaintiff argues that the trial judge gave too much weight to the fact that James Gable had provided an established custodial environment and not enough weight to the fact that plaintiff was the children’s natural father. In reviewing the trial judge’s order, we are mindful that a trial court’s resolution of a child custody dispute shall be affirmed unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue. MCL 722.28; MSA 25.312(8).
There are two competing presumptions in this case. MCL 722.25; MSA 25.312(5) sets forth the natural parent presumption:
When the dispute is between the parents, between agencies or between third persons the best interests of the child shall control. When the dispute is between the parent or parents and an agency or a third person, it is presumed that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.
Seemingly in conflict is MCL 722.27(c); MSA 25.312(7)(c) which states in pertinent part:
The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.
This Court has struggled with the interaction between these two presumptions on many occasions, most recently in Glover v McRipley, 159 Mich App 130; 406 NW2d 246 (1987). But see also Deel v Deel, supra; Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978); Siwik v Siwik, 89 Mich App 603; 280 NW2d 610 (1979); Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975). Having examined these cases, we agree with the Deel panel’s recognition that the two presumptions are not to be considered equally.
[T]he language used in the statutes suggest that the presumptions are not, in fact, of equal weight. While the established custodial environment is to be favored unless there is clear and convincing evidence that a change is in the best interests of the child, it is presumed that the best interests of the child are served by granting custody to the natural parent. [Deel, supra, p 561.]
We also agree with the following language cited favorably in both Deel and Bahr, supra:
[The presumption that the best interests of the child would be served by granting custody to the natural parent] remains a presumption of the strongest order and it must be seriously considered and heavily weighted in favor of the parent. Nevertheless, if the "clear and convincing evidence” establishes that the best interest of the child is served by awarding custody to the third party, the presumption is rebutted. [Deel, supra, pp 561-562.]
In the present case, the trial judge, while recognizing that defendant bore the burden of showing by clear and convincing evidence that custody in his favor was in the best interests of the children,. also held that the existence of an established custodial environment with defendant justified maintaining custody with him. We believe that the trial judge approached the issue of law correctly but that he erred in applying the "clear and convincing evidence” standard. We do not believe that the defendant established by clear and convincing evidence that the best interests of the children required placing custody with him.
While it is true that in any child custody dispute the overriding concern is for the best interests of the child, it is also presumed that the best interests of a child are served by placing custody with the natural parent, unless otherwise shown by clear and convincing evidence. MCL 722.25; MSA 25.312(5). We agree that a showing that a parent is unfit is not required to overcome this presumption. Stevens v Stevens, supra, and Bahr v Bahr, supra. Nonetheless, we construe the "clear and convincing evidence” standard to be a substantive standard rather than just an evidentiary standard. Carson v Carson, 156 Mich App 291, 300-302; 401 NW2d 632 (1986). Consequently, in order to overcome the natural parent presumption, the trial judge was required to find that, when all of the factors in MCL 722.23; MSA 25.312(3) were collectively considered, defendant clearly and convincingly established that the best interests of the children required maintaining custody with defendant. It is not sufficient that defendant may have established by clear and convincing evidence that a marginal, though distinct, benefit would be gained if the children were maintained with him. Carson v Carson, supra.
After applying the factors in § 23, the trial judge found that the parties were equal except that (d), "the length of time the child had lived in a satisfactory environment and the desirability of maintaining continuity,” strongly favored Gable, while (g), "the mental and physical health of the parties involved,” and (j), "the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent,” favored Henrikson. He then concluded, "The difference between (d), where the Gables were substantially strong, was still enough to outweigh (j)-”
We believe that the trial judge’s conclusion evidences a clear legal error on a major issue. MCL 722.28; MSA 25.312(8). It was not enough that the factors in favor of Gable outweighed those in favor of Henrikson. In order to give full effect to the natural parent presumption, the trial judge was required to find by clear and convincing evidence that the best interests of the children required maintaining custody with defendant. Defendant failed to meet this burden.
The order placing custody of the children with defendant is reversed. The children shall be placed in the custody of plaintiff.
Reversed. | [
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Per Curiam.
Defendant appeals as of right from a jury trial conviction of two counts of armed robbery, MCL 750.529; MSA 28.797, and two counts of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to concurrent terms of from eight to twenty-four years imprisonment for the armed robbery charges and concurrent terms of two years imprisonment for the felony-firearm charges, the sentences to be served consecutively. Though the armed robbery and felony-firearm charges arose out of two separate incidents, the charges were consolidated for trial on defendant’s motion. Defendant admitted that he committed the offenses but presented defenses of insanity, duress, and cocaine intoxication.
Among other objections raised on appeal, the two primary issues involve defendant’s claim that he was denied a fair trial because the trial judge fined defense counsel three times in the presence of the jury and the prosecutor made improper remarks during closing argument. We affirm the convictions.
i
The four-day trial in this case involved a great deal of challenging of the trial court’s control by the prosecutor, defense counsel and the psychiatrist called in rebuttal by the prosecutor, Dr. George Czertko. The citing of defense counsel for contempt which is complained of by the defendant occurred during the actual trial. The trial judge had declared a mistrial on the day before the actual trial started when defendant’s psychiatrist, Joel Dreyer, was disqualified because he did not know the legal definition of mental illness.
Dr. Dreyer showed up late for trial on the second day of his examination, appearing at 12:30 in the afternoon. A bench warrant had been issued and Dr. Dreyer was taken into custody during the noon recess. The trial judge advised the witness to get a lawyer because there would be a show cause hearing against him due to his late appearance in court that morning. The matter was subsequently resolved and the bench warrant set aside when the witness promised to appear in court the following day if so ordered. Dr. Dreyer resumed testifying at 2:00 p.m. After completion of his testimony the prosecution called Dr. Czertko to testify in rebuttal.
During the afternoon session and at a point when the judge had become very disturbed with the refusal of Dr. Czertko to answer and the comments made by defense counsel, the jury was excused. Both lawyers and the witness were advised that they were to deal with the issues, and the judge said, "If I have to caution anybody else during the course of this trial about any of those particular things, it’s going to hit you in your pocketbook.” After the jury returned, the trial judge, on three occasions as to the defense counsel and on three occasions as to the psychiatrist, fined them $250 and told the jury to disregard comments made. On each of the occasions, the judge did not say that she found defense counsel and Dr. Czertko in contempt of court, but merely assessed $250 without further comment.
Perhaps the best statement regarding a trial judge’s actions in circumstances similar to those involved here is in Bursten v United States, 395 F2d 976, 983 (CA 5, 1968), where the appellate court said in a wilful income tax evasion case that it is preferable that admonition of counsel be made outside of the hearing of the jury, but, for such conduct to constitute grounds for reversal, it must appear that in some way the judge’s conduct operated to deprive defendant of his right to a fair and impartial trial, such as to deprive him of effective assistance of counsel or adversely influence or prejudice the jury.
It is the statutory duty of a trial judge to control the proceedings and he has the power to punish insolent behavior committed during the sitting of the court. MCL 768.29; MSA 28.1052; MCL 600.1701; MSA 27A.1701; In re Burns, 19 Mich App 525; 173 NW2d 1 (1969). When any contempt is committed in the immediate presence and view of the court, the court may punish it summarily by fine or imprisonment or both. MCL 600.1711; MSA 27A. 1711. Acts considered in the statute to be punishable as contempt include contemptuous or insolent behavior directly tending to interrupt the proceeding or impair the respect due to the court’s authority and disobedience of any lawful order of a judge. In the instant case, a review of the comments which brought about the fining of both defense counsel and the prosecution witness would indicate that after the judge’s warnings they continued to pursue improper conversation and showed a wilful disregard of the court’s authority. People v Matish, 384 Mich 568; 184 NW2d 915 (1971). We find that the trial judge did not abuse her discretion in fining both defense counsel and the psychiatrist. Defendant was not deprived of a
In People v Cole, 349 Mich 175, 200; 84 NW2d 711 (1957), the Court said:
A fair and impartial trial by jury demands, however, the display of impartiality on the part of the trial judge. This Court has never hesitated to order a new trial in the interest of justice when it thought the wide discretion of the trial judge had been abused so as to prejudice the rights of a litigant. People v Neal, 290 Mich 123 [287 NW 403 (1939)]; In re Parkside Housing Project, 290 Mich 582 [287 NW 571 (1939)]; McDuff v Detroit Evening Journal Co, 84 Mich 1 [47 NW 671; 22 Am St Rep 673 (1890)].
In all of these aspects of the administration of justice we would do well to keep in mind Judge Learned Hand’s admonition:
"Justice does not depend on legal dialectics so much as upon the atmosphere of the courtroom, and that in the end depends primarily upon the judge.” Brown v Walter, 62 F2d 798, 800 (CA 2, 1933).
In most cases it would appear wise to excuse the jury before an attorney is cited for contempt or for that matter before a witness is cited for contempt. See In re Contempt of Peisner, 78 Mich App 642, 643; 261 NW2d 30 (1977), where this Court stated: "Immediate punishment properly was imposed by the trial judge outside of the jury’s presence.” However, where counsel and witnesses persistently continue to ignore the admonition of the court, as in this case, the court is justified under the circumstances in imposing a fine and telling the jury to disregard the improper questions or comments.
We find that defendant’s reliance on United States v Kelley, 314 F2d 461 (CA 6, 1963), and Young v United States, 120 US App DC 312; 346 F2d 793 (1965), is misplaced. In both of these cases there was much greater interjection by the judge into the proceedings than was present in this case.
ii
Defendant, relying upon People v Tyson, 423 Mich 357; 377 NW2d 738 (1985), argues that his conviction should be reversed because of the comments made by the prosecutor during closing argument attacking the credibility of the defendant’s psychiatrist, Dr. Dreyer. The two comments which are equated by defendant with those found in Tyson, supra, came during rebuttal argument in which the prosecutor stated:
Now, I don’t think you have to be a doctor or some kind of expert to realize that that’s a pretty shallow way to approach something this serious, to just not even care, not even see what happens, just take the person that is telling you, the person that is paying you, take their word for everything. . . . Dr. Dreyer, who doesn’t need to review anything because he’s the expert, comes in and sits there and tells you everything, how it is because he’s so great. Is he? Or is that just what he’s paid to do, a hired gun to come in here and tell you people something.
The test of whether prosecutorial misconduct requires reversal is whether the defendant was denied a fair and impartial trial. People v Bairefoot, 117 Mich App 225, 228; 323 NW2d 302 (1982). However, in this case defendant failed to object at trial to all but one of the remarks with which he takes issue on appeal. Thus, appellate review of the alleged prejudicial prosecutorial remarks is precluded unless the prejudicial effect could not have been cured by a cautionary instruction and failure to consider the issue would result in a miscarriage of justice. People v Jansson, 116 Mich App 674; 323 NW2d 508 (1982). The remarks of a prosecutor must be read as a whole. People v Porterfield, 128 Mich App 35; 339 NW2d 683 (1983), lv den 419 Mich 854 (1984); People v Cowell, 44 Mich App 623; 205 NW2d 600 (1973).
In this case, unlike Tyson, supra, there was testimony presented regarding the payment of the expert witness and, thus, there was a basis in evidence for the prosecutor’s closing argument. In Tyson, supra, the question of defendant’s expert witness being paid for his testimony was raised in closing argument without evidentiary support, and was clearly injected in an attempt to impeach defendant’s claim of insanity. In the instant case, in addition to defense counsel’s failure to object and the presence of evidence of Dr. Dreyer’s being paid, the prosecutor never directly argued that Dr. Dreyer lacked integrity as did the prosecutor in Tyson.
We do not find error that would justify reversal.
in
Defendant on appeal raises other questions which do not require much comment.
The trial judge as noted above declared a mistrial the first day of trial because Dr. Dreyer apparently did not know the legal definition of insanity. During Dr. Dreyer’s testimony, the trial judge commented that he "now knows the definition.” We cannot find that the trial judge’s comments indicated partiality that would justify a new trial under the circumstances of this case.
The defendant also challenges the testimony of Dr. Czertko, a psychiatrist employed by the Detroit Recorder’s Court psychiatric unit, as to previous convictions of the defendant for criminal acts. A defendant who raises an insanity defense, as in this case, is required by statute to undergo a forensic center examination. MCL 768.20a(2); MSA 28.1043(1)(2). However, a defendant’s statements to an examiner are not admissible on issues other than his mental illness or insanity. MCL 768.20a(5); MSA 28.1043(1)(5).
In People v Woody, 380 Mich 332, 338; 157 NW2d 201 (1968), our Supreme Court explained:
When the defense-called psychiatrist testified that in his opinion the defendant was legally insane, it became the burden of the people to prove his sanity, like every element of an offense, beyond a reasonable doubt. Testimony of prior arrests, convictions, assaultive and antisocial conduct, ordinarily completely inadmissible as bearing on the general guilt or innocence of the accused of the offense charged, became material and admissible as bearing on the issue of his sanity. The people were entitled to all rights of cross-examination of the defense witness and to introduce rebuttal testimony by witnesses of their own.
Dr. Czertko’s references were not improper because they ultimately had a bearing on the issue of defendant’s sanity. During examination by the prosecutor, the witness made an offhand passing comment regarding other robberies committed by the defendant. The prosecutor clearly interrupted the witness to prevent further testimony. This Court is satisfied that there was no manifest injustice justifying reversal of the case on this point.
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Weaver, J.
Defendant Parviz K. Amid, M.D., an independent staff physician for defendant Sinai Hospital of Detroit, appeals by leave granted from the Wayne Circuit Court’s denial of his motion to compel arbitration. We reverse.
This medical malpractice suit arose out of events in connection with the removal of a melanoma from Dorothy Marciniak (hereafter plaintiff). On September 30, 1980, Dr. Amid performed an excision in order to remove the melanoma; in November of 1980, Dr. Amid concluded that the melanoma’s spread also required removal of plaintiff’s lymph nodes. When plaintiff was admitted to Sinai Hospital on December 3, 1980, she signed a hospi tal-patient artibration form. The agreement stated in pertinent part:
I understand that this hospital and I by signing this document agree to arbitrate any claims or disputes (except for disputes over charges for services rendered) which may arise in the future out of or in connection with the health care rendered to me during this hospital stay and/or emergency room visit by this hospital, its employees and those of its independent staff doctors and consultants who have agreed to arbitrate.
... I freely choose arbitration. . . .
I understand that this agreement to arbitrate is binding on me . . ., as well as on this hospital, its employees and those of its independent staff doctors, and consultants who have agreed to arbitrate.
Dr. Amid was an independent staff doctor who, unknown to plaintiff, had previously agreed to arbitration. On December 4, 1980, Dr. Amid performed surgery on plaintiff.
On April 1, 1983, plaintiff and her husband filed a complaint against Sinai Hospital, two of the hospital’s staff doctors and Dr. Amid, alleging that the surgery was unnecessary and resulted in her pain, suffering and subsequent corrective surgery. The trial court granted the motion of Sinai Hospital, pursuant to GCR 1963, 769, now MCR 3.602, to compel arbitration as to the hospital and its two staff doctors, but denied a similar motion filed by Dr. Amid. We granted Dr. Amid’s application for leave to appeal.
On appeal, Dr. Amid argues that plaintiff was bound by her agreement to arbitrate not only claims against the hospital and its staff, but also claims against independent staff physicians such as himself who had previously agreed to arbitrate.
We agree. The Michigan Malpractice Arbitration Act (mmaa), MCL 600.5040 et seq.; MSA 27A.5040 et seq., applies to
the arbitration of a dispute, controversy, or issue arising out of or resulting from injury to, or the death of, a person caused by an error, omission, or negligence in the performance of professional services by a health care provider, hospital, or their agent. . . . [MCL 600.5040(1); MSA 27A.5040(1).]
The term "health care provider” includes an independent staff physician. See MCL 600.5040(2)(b); MSA 27A.5040(2)(b). The mmaa describes both an agreement with a hospital and an agreement with a health care provider who is not an employee of the hospital. MCL 600.5042(1); MSA 27A.5042(1); MCL 600.5041(1); MSA 27A.5041(1). The mmaa further provides:
Notwithstanding the continuing existence of a health care provider-patient arbitration agreement all surgical and medical procedures performed by a participating health care provider in a hospital shall be covered by the terms and conditions applicable to the agreement between the patient and the hospital. Post-discharge treatment in the health care provider’s office subsequent to discharge from such institution will be governed by the terms of any existing health care provider-patient arbitration agreement. [MCL 600.5042(5); MSA 27A.5042(5).]
A trial court’s finding that an issue is or is not arbitrable will be reversed on appeal only if it is clearly erroneous. See MCR 2.613(C); Ferndale Ed Ass’n v Ferndale School Dist #2, 67 Mich App 645, 649; 242 NW2d 481 (1976). However, because the mmaa evidences Michigan’s strong public policy favoring arbitration, arbitration clauses should be liberally construed to resolve all doubts in favor of arbitration. DAIIE v Reck, 90 Mich App 286, 289-290; 282 NW2d 292 (1979), lv den 407 Mich 870 (1979). The burden of establishing the existence of an arbitration agreement that conforms to the strict requirements of the mmaa rests with the party seeking to enforce the agreement; once prima facie evidence of such an agreement has been presented, the statutory presumption of its validity accrues and the burden of going forward with evidence to rebut the presumption then shifts to the party seeking to avoid the agreement. McKinstry v Valley Obstetrics-Gynecology Clinic, PC, 428 Mich 167, 173; 405 NW2d 88 (1987).
Here, Dr. Amid established the existence of an arbitration agreement conforming to the requirements of the mmaa, thereby creating a presumption of its validity. Unless plaintiff can rebut this presumption, therefore, the trial court’s finding of nonarbitrability was clearly erroneous.
Hospital arbitration agreements like the one here at issue have been held to simultaneously apply to independent staff doctors who sign arbitration agreements with the hospital. Kukowski v Piskin, 99 Mich App 1, 4; 297 NW2d 612 (1980), aff'd by an equally divided court 415 Mich 31; 327 NW2d 832 (1982), reh den 417 Mich 1103 (1983). This is because § 5042(5) of the mmaa unatnbiguously extends the agreement between hospital and patient to participating health care providers for procedures they perform in the hospital. 415 Mich 39 (opinion of Coleman, J.). Accord, Brown v Considine, 108 Mich App 504, 510; 310 NW2d 441 (1981); Belobradich v Sarnsethsiri, 131 Mich App 241, 243-244; 346 NW2d 83 (1983); Harte v Sinai Hosp of Detroit, 144 Mich App 659, 664-665; 375 NW2d 782 (1985).
In this case, plaintiff voluntarily signed the agreement. The agreement stated her free choice of arbitration and her understanding that any future claims arising from her hospital care would extend to the hospital, its employees, and "those of its independent staff doctors and consultants who have agreed to arbitrate.” Dr. Amid was an independent staff doctor who had signed an agreement with the hospital to arbitrate. Whether plaintiff did or did not know of Dr. Amid’s agreement with the hospital is of no consequence. What matters is that plaintiff freely chose to sign the hospital arbitration agreement and that the agreement unambiguously extended to independent staff doctors. Kukowski, supra, 99 Mich App 4._
Plaintiff further argues that the trial court reached the right result in denying Dr. Amid’s motion to compel arbitration, because her malpractice claim arose before her entry into the hospital.
This argument is without merit. Plaintiff, in the same suit, has attempted to recover from the hospital and two staff doctors for damages identical to those asserted against Dr. Amid. As such, the damages which plaintiff seeks from Dr. Amid involve the same damages as, and are inextricable from, her arbitrable claims. See Harte, supra. at 665. The abitration requirement, as to the hospital and the two staff doctors, does not magically transform one suit for the same damages into two suits for different damages. The recovery which plaintiff seeks arises in connection with her surgery which was performed on December 4, 1980, at Sinai Hospital. She filed her complaint on April 19, 1985, alleging medical malpractice in connection with the operation performed on December 4, 1980, at Sinai Hospital. Therefore her complaint is one arising "in the future out of or in connection with the health care rendered . . . during [her] hospital stay . . . .”
In conclusion, the trial court’s denial of Dr. Amid’s motion to compel arbitration was clearly erroneous. Plaintiff did not rebut the presumption, established by Dr. Amid, of a valid arbitration agreement conforming to the strict requirements of the mmaa. By voluntarily signing the hospital arbitration agreement, plaintiff unambiguously consented to arbitrate any claims arising from her surgery performed at Sinai Hospital on December 4, 1980, against Dr. Amid, an independent staff doctor. The agreement was binding, and may not be circumvented by an assertion that her malpractice claim arose before her entry into the hospital.
Reversed.
The arbitration agreement signed by Dr. Amid on August 8, 1977, was entitled "Independent Health Care Provider and Hospital Agreement to Arbitrate in a Hospital, Clinic, Sanitarium, or HMO Setting” and provided in pertinent part:
Sinai Hospital of Detroit, the Hospital and Parviz Amid, M.D., the Provider, a member of the Independent Hospital Staff, agree to arbitrate health care disputes which may arise out of or in connection with health care rendered during the course of inpatient, outpatient and/or emergency room care with patients who elect arbitration. . . .
The Hospital and the Provider understand that this agreement to arbitrate with patients who elect to arbitrate is binding on them and all their agents, representatives, heirs and assigns, and that the patient’s agreement to arbitrate is binding on him/her and all his/her agents, representatives, heirs and assigns.
We note that the Supreme Court was evenly divided on the issue when affirming the Kukowski appellate decision. Justice Coleman, joined by Justice Ryan and Chief Justice Fitzgerald, authored the opinion to affirm. Justice Kavanagh, joined by Justices Williams and Levin, authored the opinion to reverse.
We are not persuaded by the reasoning of the opinion to reverse, since it discounts the clear and unambiguous mandate of the statute to cover all participating hospital health care providers, who have previously agreed to arbitrate, through the agreement between patient and hospital. We believe that the language "Notwithstanding the continuing existence of a health care provider-patient arbitration agreement” does not contemplate the necessity for a prior, separate arbitration agreement between patient and health care provider (independent staff doctor), but simply means that if such an agreement does not exist, then the hospital-patient agreement applies; if it does exist, the hospital-patient agreement prevails.
We recognize that two panels of this Court have concluded differently. Troy v Leep, 101 Mich App 425; 300 NW2d 598 (1980); Miller v Swanson, 95 Mich App 36; 289 NW2d 875 (1980). In this case, however, we find no ambiguity in the arbitration agreement which plaintiff signed. Plaintiff chose an adequate remedy in arbitration and should not be allowed to breach her agreement in an attempt to recover a higher damage award in the courts. | [
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Sawyer, P.J.
Defendant pled guilty to the offense of prison escape. MCL 750.193; MSA 28.390. Defendant was subsequently sentenced on the conviction to a term of from one year and three months to five years in prison, to be served consecutively to the sentence or sentences then being served. Defendant now appeals and we affirm.
On August 31, 1985, defendant escaped from the Michigan Reformatory at Ionia. On or about September 3, 1985, the Michigan Department of Corrections issued an "administrative warrant” for defendant’s arrest. On approximately September 18, 1985, defendant was picked up and lodged in the Wayne County Jail. On January 31, 1986, defendant was returned to the reformatory at Ionia. Thereafter, on April 1, 1986, the Ionia County Prosecutor’s office issued a complaint against defendant for prison escape. Following defendant’s waiver of preliminary examination and an arraignment in circuit court, a trial date was set for August 14, 1986. However, on August 12, defendant entered his plea of guilty.
On appeal, defendant raises one issue, namely whether the 180-day rule articulated in MCL 780.131; MSA 28.969(1) was violated. Defendant raised this issue in the trial court by way of a pretrial motion, which was denied. The question specifically before us is whether the time for calculating the 180 days begins with the issuance of the prosecutor’s complaint on April 1, or with the Department of Corrections’ issuance of the administrative warrant on September 3. If we begin the running of the statutory period from the date the Ionia County Prosecutor issued the complaint, then trial was scheduled to begin within 180 days. However, if the earlier date is used, more than 180 days would have passed prior to the beginning of trial and it would be necessary to determine whether an exception to the statute applies and the statute was tolled for a sufficient time period, or was otherwise complied with.
The Supreme Court established the framework for determining whether the 180-day rule was violated in People v Hill, 402 Mich 272, 280-281; 262 NW2d 641 (1978):
We hold that the statutory period begins with the coincidence of either conditions 1 or 2 and condition 3:
1) The issuance of a warrant, indictment or complaint against a person incarcerated in a state prison or under detention in any local facility awaiting incarceration in any state prison;
2) The incarceration of a defendant in a state prison or the detention of such defendant in a local facility to await such incarceration when there is an untried warrant, indictment, information or complaint pending against such defendant; and
3) The prosecutor knows or should know that the defendant is so incarcerated when the warrant, indictment, information or complaint is issued or the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one sentenced to their custody.
The question thus becomes whether the Department of Corrections’ administrative warrant issued following defendant’s escape comes within the statutory reference contained in MCL 780.131; MSA 28.969(1) to "any untried warrant, indictment, information or complaint.” For the reasons that follow, we conclude that it does not.
We begin by noting that in the case of People v Hall, 147 Mich App 289; 383 NW2d 181 (1985), this Court considered a situation where the defendant escaped from a Department of Corrections camp and approximately two months later committed an assault which resulted in his arrest later that day. The defendant argued to this Court that the statutory 180-day period should begin to run on the day he was arrested, rather than the day the assault warrant and complaint were issued. This Court disagreed, concluding that the statute provides for defendants to be brought to trial within 180 days of the formal lodging of charges rather than the arrest.
We also find support in a footnote to the Supreme Court’s opinion in People v Woodruff, 414 Mich 130, 136, n 5; 323 NW2d 923 (1982), wherein the Court noted that the 180-day rule was not enacted to prevent dilatory tactics with respect to untried charges, nor does it secure a state prisoner his right to a speedy trial. Rather, as the Supreme Court noted in the text of the opinion, the purpose of the act was to dispose of untried warrants, indictments, informations or complaints.
With this in mind, we can turn more directly to the question of whether the Department of Corrections’ use of an "administrative warrant” should trigger the running of the 180 days under the statute. First, we have been unable to find any authority, either by statute or by regulation, for the issuance of the so-called "administrative warrant.” Indeed, by statute, the Legislature has provided that a lawfully arrested person who escapes may be immediately pursued and retaken at any time without a warrant. MCL 764.23; MSA 28.882. Similarly, the Legislature has directed prison wardens to "take all proper measures” to apprehend an escaped convict. MCL 800.61; MSA 28.1430. Thus, the term "administrative warrant” appears to be nomenclature adopted by the Department of Corrections for use with its forms and procedures rather than a term created by the Legislature. That is, there is no statutory reason why the Department of Corrections’ form need be entitled "administrative warrant” rather than a perhaps somewhat more descriptive term such as "notice of escape” or "pickup request” or the like. Indeed, had the department used more descriptive nomenclature, the confusion which surrounds this issue may have been somewhat alleviated.
Having determined that the nomenclature employed by the department is of no moment to this issue, we must now look to the substance of the administrative warrant and determine whether it was such an instrument as was within the contemplation of the Legislature in enacting the 180-day rule. We conclude that it was not. The terms referred to by the Legislature in the statute, complaints, warrants, informations or indictments, are all charging instruments which commence a phase of criminal proceedings against a person in the courts of this state. However, the administrative warrant does not institute such proceedings. Rather, it serves to notify various criminal justice officials that a particular person is within the jurisdiction of the Department of Corrections and has escaped from the department’s custody.
The administrative warrant does not seek to bring a defendant before a court of justice to answer for a substantive offense such as prison escape. Rather, the administrative warrant merely seeks to return defendant to the custody of the Department of Corrections. Indeed, the issuance of the administrative warrant and an eventual successful apprehension of a defendant and his return to custody would not necessarily result in his being brought before the courts to answer for his prison escape. Rather, it would require a separate action by the local prosecutor, or perhaps the attorney general, to bring charges.
In sum, we do not believe that the Department of Corrections’ administrative warrant comes within the statute merely because the department chose to use the term "administrative warrant.” Rather, in looking to the substance of the administrative warrant, we conclude that it is not the same as what the Legislature considered to constitute a "warrant” for purposes of the 180-day rule. That is, defendant may not rely upon the Department of Corrections’ nomenclature, but must make use of the Legislature’s phraseology. And, in the language of the Legislature, the term "warrant” as used in the 180-day rule does not include the department’s "administrative warrants.”
For the above reasons, we conclude that the 180-day time period did not begin to run from the issuance of the administrative warrant or defendant’s arrest following that "warrant.” Rather, the 180-day period began running with the issuance of the first charging document, namely the complaint on April 1. Furthermore, since trial was scheduled to begin within 180 days of the issuance of the complaint, the 180-day rule was not violated.
Affirmed._
Presumably, the 180 days would be tolled for the time defendant was a fugitive; that is, until his apprehension on September 18. However, that does not affect the analysis at this point.
Obviously, a defendant must be returned to the department’s custody, or at least held in a local lockup, before criminal proceedings on the escape can be effectively initiated. | [
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Per Curiam.
Plaintiff, Carroll Flynn, appeals by leave granted from a decision issued by the Worker’s Compensation Appeal Board reversing a decision of a hearing referee. The referee had ordered defendant, General Motors Corporation, to pay cumulative penalties totalling approximately $40,000. We affirm the wcab.
In September, 1974, plaintiff, an electrician at defendant’s Fisher Body Coldwater Road Plant, filed an application for worker’s compensation benefits based on an ankle injury he sustained during the course of his employment in September, 1972. In January, 1976, defendant was ordered by a hearing referee to pay compensation for plaintiff’s total disability during three specified periods of time ending in August, 1975. The decision further provided that defendant pay additional compensation for partial disability under certain circumstances until further order of the bureau. Defendant did not appeal this decision.
In September, 1975, plaintiff returned to work and remained employed in his job as an electrician until December, 1980, when he went on sick leave. Upon plaintiffs return to work, defendant filed notices of stopping compensation with the bureau. Except for a very brief period in December, 1976, he received no additional compensation for his ankle injury. His sick leave was prompted by severe diabetes and arteriosclerosis in the lower extremities. In May, 1981, one of defendant’s physicians determined that plaintiff was totally and permanently disabled, and plaintiff was granted a disability retirement. Neither party claims that plaintiffs diabetes or arteriosclerosis is in any way related to plaintiffs employment or the prior ankle injury.
In May, 1982, plaintiff filed seventy-eight petitions with the bureau for late payment penalties. Plaintiff filed late payment penalty petitions for each week thereafter, apparently based on defendant’s failure to pay any compensation for partial disability following plaintiff’s retirement in December, 1980. Shortly thereafter, defendant filed a motion with the referee to dismiss or consolidate the seventy-eight petitions and a motion "for further order of the Bureau.” In January, 1983, the referee issued a decision granting defendant’s motion to consolidate and dismissing the motion for further order of the bureau; moreover, the referee ordered defendant to pay $40,500 in penalties. The wcab reversed the referee in August 29, 1985, and we granted plaintiff’s request for leave to appeal.
Our review of a decision by the wcab is limited. Findings of fact made by the wcab are conclusive and may not be set aside if supported by record evidence, absent a showing of fraud. Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861); Howard v General Motors Corp, 132 Mich App 639; 348 NW2d 286 (1984). However, the wcab’s decision may be reversed if it operated within the wrong legal framework or where its decision is based upon erroneous legal reasoning. Devault v General Motors Corp, 149 Mich App 765; 386 NW2d 671 (1986).
Plaintiff first argues that the wcab erred in stating that the award fashioned in 1976 by a hearing referee did not order payments "until further order of the Bureau.” Apparently, plaintiff believes the wcab’s statement constitutes factual error because the 1976 decision provides for partial disability "until further order of the Bureau.” Plaintiff cites no case law as other authority in support of his position, relying exclusively on the plain language of the 1976 decision.
A review of the language used in that decision makes clear that the wcab’s statement is supported by the evidence. The decision did not unqualifiedly provide plaintiff with partial disability benefits until further order of the bureau; rather, it specifically required, in language typewritten on the preprinted decision form, that "defendant pay in accordance with the Act for wage loss due to injury or due to the unavailability of favored work.” Plaintiff focuses solely upon the language in the 1976 decision which ordered defendant to pay benefits until further order of the bureau to the exclusion of the conditional language concerning wage loss due to injury and the unavailability of favored work. This view distorts the situation and is based on a piecemeal reading of the 1976 decision which depends on a phrase taken out of context.
Second, plaintiff argues that the wcab committed error in stating that "[subsequently, plaintiff injured himself at home.” Plaintiff directs our attention to the fact that his supervening, totally disabling illnesses of diabetes and arteriosclerosis did not necessarily occur at his home. Whether plaintiff’s illnesses occurred at home or elsewhere, however, is of no import in plaintiff’s case. It is not disputed that plaintiff’s subsequent illnesses are wholly unrelated to his employment or his work-related ankle injury. Read in context, the wcab’s reference to plaintiff having sustained his illnesses at home merely indicates that those illnesses are not work related. Whether in fact they were sustained at home thus is factually and legally irrelevant.
Plaintiff next argues that the wcab erred in stating that the events in plaintiff’s case, "considered in their chronological order constitute a dispute and defendant need not pay a penalty.” The penalty provision of the Workers’ Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq., provides:
If weekly compensation benefits or accrued weekly benefits are not paid within 30 days after becoming due and payable, in cases where there is not an ongoing dispute, $50.00 per day shall be added and paid to the worker for each day over 30 days in which the benefits are not paid. Not more than $1,500.00 in total may be added pursuant to this subsection. [Emphasis added. MCL 418.801(2); MSA 17.237(801)(2).]
The existence of a "dispute” is a finding of fact which will not be overturned by this Court if it is supported by some competent evidence. Nezdropa v Wayne Co, 152 Mich App 451, 474; 394 NW2d 440 (1986).
The wcab concluded that the existence of a dispute precluded the imposition of penalty payments in this case. Penalty payments are unavailable if there is an ongoing dispute. Perry v Sturdevant Manufacturing Co, 124 Mich App 11; 333 NW2d 366 (1983); Woods v Sears, Roebuck & Co, 135 Mich App 500, 507; 353 NW2d 894 (1984), lv den 421 Mich 852 (1985). In DeKind v Gale Manufacturing Co, 125 Mich App 598, 608; 337 NW2d 252 (1983), lv den 418 Mich 852 (1983), this Court stated:
If the employer chooses to demand a hearing, there is an ongoing dispute. In Charpentier [v Canteen Corp, 105 Mich App 700; 307 NW2d 704 (1981), lv den 412 Mich 887 (1981)], the Court held that an award is to be considered disputed while review or appeal is pending and during the time periods provided for filing a claim for review or for seeking an appeal.
In the present case, as noted above, the hearing referee did not unqualifiedly order partial disability benefits until further order of the bureau. Rather, such benefits were to be paid "in accordance with the Act for wage loss due to injury or due to the unavailability of favored work.” Thus, the terms of the order did not necessarily require the payment of benefits without any further interpretation of either the facts or the law.
It seems that the first notice received by defendant regarding any claim for additional compensation was the receipt of plaintiffs seventy-eight petitions for penalties. Defendant thereafter sought review of the underlying claim and subsequently appealed the referee’s award of penalties to the wcab. Since the employer chose to demand a hearing, there was an ongoing dispute, thus precluding the imposition of penalties under the statutory penalty provision. MCL 418.801(2); MSA 17.237(801)(2). Under these circumstances, we do not conclude that the wcab’s finding of a dispute is unsupported by competent evidence.
Plaintiff further argues on this issue that the wcab erred in assuming that Powell v Casco Nelmor Corp, 406 Mich 332; 279 NW2d 769 (1979), constituted new law. Plaintiff reasons that Powell adds nothing new to the rule enunciated in Lynch v Briggs Manufacturing Co, 329 Mich 168, 172; 45 NW2d 20 (1950), that "supervening events, stopping [a claimant’s] favored work and not attributable to him, will not defeat his compensation as a skilled employee.” However, the significance of Powell was not its reliance on Lynch. Powell’s significance lies in the Supreme Court’s ruling that a subsequent wage-earning capacity cannot be established as a matter of law by the performance of favored work. Powell, supra, p 349. The wcab’s apparent recognition of the significance of Powell concerning the prohibition against establishing a wage-earning capacity based on favored work is not erroneous. Furthermore, Powell did not require compensation benefits to be automatically revived upon the happening of an intervening nonindustrial event which disables a favored-work employee, as plaintiff suggests. Rather, Powell found that such an event did not preclude the payment of compensation for a prior injury. 406 Mich 339. Thus, at the time of plaintiffs nonindustrial disablement, he still had the burden of establishing his entitlement to benefits, even if he was in fact performing "favored” work — a determination never specifically made below.
Next, plaintiff argues that the wcab erred in failing to dismiss defendant’s appeal due to defen dant’s failure to comply with the statutory provision requiring payment of. seventy percent of weekly benefits pending review. At the time of defendant’s motion, the statute stated, in pertinent part:
A claim for review filed pursuant to sections 859 or 861 shall not operate as a stay of payment to the claimant of 70% of the weekly benefit required by the terms of the hearing referee’s award. Payment shall commence as of the date of the hearing referee’s award and shall continue until final determination of the appeal or for a shorter period if specified in the award. Benefits accruing prior to the referee’s award shall be withheld until final determination of the appeal. [MCL 418.862; MSA 17.237(862).]
In support of his position, plaintiff cites one case, McAvoy v H B Sherman Co, 401 Mich 419; 258 NW2d 414 (1977), reh den 402 Mich 953 (1977). In McAvoy, the Supreme Court stated that the seventy percent rule, which requires payment of seventy percent of awarded workers’ compensation benefits during an appeal taken by the employer or insurance carrier, operates as a condition precedent for the perfection of an appeal, and failure to comply with the rule necessitates dismissal.
In this case, plaintiff’s motion to dismiss based on defendant’s noncompliance with the seventy percent rule was not specifically addressed by the wcab, but instead was implicitly rejected. In the absence of any specific determination by the board on a matter in controversy, this Court may look to the record to determine whether the award is supported by evidence. Palchak v Murray Corp of America, 318 Mich 482, 494-495; 28 NW2d 295 (1947).
Plaintiff has failed to demonstrate error requir ing reversal. Defendant was not appealing from the initial 1976 award; rather, it was appealing from a subsequent hearing referee’s decision to impose penalties. The seventy percent rule refers to the payment of weekly benefits ordered by a hearing referee. Since penalties, not benefits, were awarded, the seventy percent rule was inapposite. In addition, the statute itself provides that benefits accruing prior to the referee’s award shall be withheld until final determination of the appeal. In this case, defendant had been assessed penalties in an order dated January 31, 1983, for a closed period of time ending on July 10, 1982. Thus, the penalties, even if considered benefits, accrued prior to the referee’s award and, pursuant to the seventy percent rule, would not have to have been paid until final determination of the appeal concerning the penalties.
Plaintiff also argues that defendant’s motion for further order of the bureau, which plaintiff characterizes as a petition to stop compensation, should have been dismissed on the basis that defendant failed to file proof of payment of compensation to within fifteen days of the filing of its petition. Although not specifically cited, plaintiff apparently relies upon 1979 AC, R 408.40, which requires, among other things, a petition to stop compensation benefits to be accompanied by proof of payment of compensation to within fifteen days from the date of filing the petition. The hearing referee, in his January 31, 1983, decision, dismissed defendant’s motion for further order of the bureau to terminate compensation benefits for failure to comply with 1979 AC, R 408.40, and the wcab did not address the issue.
Plaintiff has not shown error requiring reversal on this issue because the petition to stop compensation benefits itself was superfluous. Neither the hearing referee nor the wcab in considering the penalty question ordered the payment of weekly compensation benefits. Moreover, as concluded above, defendant was not under an open or unqualified continuing obligation under the 1976 referee decision to pay weekly compensation benefits. Plaintiff does not dispute that defendant filed unchallenged notices of stopping compensation with the bureau upon plaintiff’s return to work in 1975. Thus, at the time defendant filed for further order of the bureau, no compensation benefits were being paid to plaintiff, and there were, as a result, no compensation payments either to stop or to be paid within fifteen days.
Last, plaintiff argues that defendant’s deliberate and blatant refusal to meet its obligations under the wdca justifies an award of cumulative penalties. The referee, pursuant to the $1,500 statutory penalty provision, awarded penalties of $1,500 for all petitions filed by plaintiff covering the dates from July 12, 1980, through January 9, 1982, and of $1,500 for each of twenty-six petitions filed weekly by plaintiff between January 16, 1982, and July 10, 1982. MCL 418.801(2); MSA 17.237(801)(2). In DeKind v Gale Mfg Co, supra, p 606, this Court held that the $1,500 penalty provision of the wdca applies to each period in which compensation benefits are not paid and for which an injured worker has filed a petition for a hearing on the nonpayment. Apparently, petitions were filed by plaintiff in this case for each penalty assessed by the referee.
The wcab never addressed this issue because it concluded that a "dispute” existed and therefore penalties were unavailable to plaintiff under the statutory penalty provision. Since we have found that competent evidence supports the wcab’s conclusion that a dispute existed, we also conclude that penalties are unavailable to plaintiff under the penalty provision. The issue whether plaintiff is entitled to cumulative penalties, therefore, is moot.
The decision of the wcab is affirmed. | [
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] |
Per Curiam.
In this consolidation of two cases, we are asked to determine the effect of Martin v Dep’t of Corrections, 424 Mich 553; 384 NW2d 392 (1986). Plaintiff, an inmate at the State Prison of Southern Michigan at Jackson, filed the first action (Docket No. 99139), asking for a declaratory judgment that Martin applied retroactively to invalidate all of his past major misconduct adjudications that had become final. In the second action (Docket No. 99447), plaintiff made a timely petition for review of a major misconduct violation for unauthorized occupation of a cell or room. The circuit court held that Martin should be given limited retroactivity. Therefore, Martin did not apply to plaintiffs misconduct adjudications that had become final and summary disposition was granted to defendant in Docket No. 99139. However, Martin applied to the pending appeal in Docket No. 99447 and summary disposition was granted to plaintiff. Plaintiff appeals as of right in Docket No. 99139, arguing that Martin should have full retroactive effect. Defendant appeals as of right in Docket No. 99447, arguing that Martin does not apply to the facts of the present case and Martin should be given only prospective application. We affirm the orders of the circuit court.
Martin resolved a conflict in this Court regarding whether prisoners were members of the general public. The issue had to be decided in order to determine whether the Department of Corrections’ disciplinary directives had to be promulgated as rules pursuant to the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. If the disciplinary directives did not affect the public, then they did not meet the definition of a rule and did not have to be formally promulgated as rules. MCL 24.207; MSA 3.560(107). If prisoners were members of the public, then the disciplinary directives were invalid because they had not been formally promulgated as rules. The Martin Court held that prisoners were members of the public and the disciplinary directives were invalid.
Defendant argues in Docket No. 99447 that Martin does not apply because plaintiff’s misconduct violation could come under 1979 AC, R 791.5501 and 1980 AACS, R 791.5513, which are both promulgated rules. However, prisoner disciplinary proceedings must meet minimum due process requirements, including advance written notice of the charged violation. Tocco v Marquette Prison Warden, 123 Mich App 395, 399; 333 NW2d 295 (1983); Dickerson v Warden, Marquette Prison, 99 Mich App 630, 636; 298 NW2d 841 (1980). Since plaintiff was charged and his case was adjudicated based on policy directive PD-DWA 60.01, we do not think that it would be in accord with due process to consider whether plaintiff could have been charged under 1979 AC, R 791.5501 and 1980 AACS, R 791.5513. While the factual allegations of the charge remain the same, the administrative rules do not expressly prohibit the conduct with which plaintiff was charged. Therefore, application of the administrative rules would raise issues that the parties did not have an opportunity to address below. See Martin, supra, pp 557-558, n 3.
Next, we will consider plaintiff’s argument that Martin should have full retroactive effect and defendant’s argument that Martin should have prospective effect only. Prospective application is preferred over full or limited retroactive application when overruling an established precedent or when deciding an issue of first impression whose resolution was not clearly foreshadowed. People v Phillips, 416 Mich 63, 68; 330 NW2d 366 (1982), citing Chevron Oil Co v Huson, 404 US 97, 106; 92 S Ct 349; 30 L Ed 2d 296 (1971). If retroactive effect is warranted, then full retroactive effect is preferred unless limited retroactivity is justified. Tebo v Havlik, 418 Mich 350, 360; 343 NW2d 181 (1984), reh den 419 Mich 1201 (1984). In addition, the following considerations are pertinent to the determination of whether a new rule of law should be given full retroactivity, limited retroactivity, or prospectivity only: (1) the purpose of the new rule; (2) the general reliance upon the old rule; and (3) the effect of full retroactive application of the new rule on the administration of justice. Faigenbaum v Oakland Medical Center, 143 Mich App 303, 312-313; 373 NW2d 161 (1985); Rozier v Dep’t of Public Health, 161 Mich App 591, 599; 411 NW2d 786 (1987).
The Martin holding does not constitute a new rule that should only be applied prospectively. Martin was not an overruling of clear precedent because the conflict in this Court did not establish a clear precedent. Nor was Martin an issue of first impression that was not clearly foreshadowed. We do not think there has to be clear precedent before a holding can be considered clearly foreshadowed. The conflict in this Court was sufficient to put persons on notice that our Supreme Court could resolve the issue either way and was sufficient to clearly foreshadow the Martin holding. Therefore, these factors do not weigh in favor of applying Martin prospectively only.
We also think that full retroactivity of Martin is not warranted. The purpose of the Martin rule is to settle the conflict in this Court and to invalidate the Department of Corrections’ disciplinary directives that are not properly promulgated as rules. The application of the Martin holding is not necessarily meant to guard against the possibility that innocent persons will receive major misconduct violations. Kather, the Martin ruling merely requires that the directives governing misconduct violations be promulgated as rules. Therefore, there is no compelling reason to give Martin full retroactive effect.
We also believe that the reliance factor does not warrant full retroactivity. Neither Kirkeby, n 1, supra, nor Martin were of precedential value because our Supreme Court granted leave to appeal in both. Phillips, supra, p 74. Therefore, the Department of Corrections’ past practice of issuing misconduct violations based on disciplinary directives was not grounded on judicial precedent.
Moreover, full retroactive application of Martin would have a detrimental effect on the administration of justice. Full retroactive application of Martin would invalidate the misconduct violations of thousands of prisoners. The misconduct violations would affect the calculation of good time credits. Thus, those prisoners still in the system would benefit from early release while those prisoners who have left the system would have served terms longer than required.
We think that, considering all of the factors, the trial court adopted the best approach by giving Martin limited retroactive effect. Thus, Martin would apply only to cases pending at the time of its release in which the issue of whether a prisoner was a member of the public was raised. Since plaintiff’s case in Docket No. 99447 was pending and he raised this issue, he was entitled to summary disposition in that case only.
The orders of the trial court that grant summary disposition to defendant in Docket No. 99139 and grant summary disposition to plaintiff in Docket No. 99447 are affirmed.
This Court held in Martin v Dep’t of Corrections, 140 Mich App 323; 364 NW2d 322 (1985), that prisoners were members of the general public. Another panel of this Court reached the opposite conclusion in Kirkeby v Dep’t of Corrections, 141 Mich App 148; 366 NW2d 28 (1985). | [
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C. W. Simon, Jr., J.
Defendants, Deputy C. W. Truscott and the St. Clair County Sheriff’s Department, appeal by leave granted from a January 13, 1986, order denying their motion for summary disposition as to plaintiff’s intentional nuisance claim. We reverse.
Plaintiff, Lucy Guinan, commenced this action as the personal representative of the estate of her daughter, Kristy Kramer, who died as a result of an automobile accident on March 9, 1982. The three-count complaint, filed December 2, 1983, alleged that Kristy Kramer was in an automobile operated by Ronald Koths while he was visibly intoxicated. At about 9:50 a.m., the automobile was stopped by Deputy Truscott, who allegedly issued a citation to Koths for failure to have proof of registration, then released Koths. About one hour later, Koths drove the automobile across the center line of the highway and collided with another vehicle, causing Kristy Kramer’s death.
In Count i of the complaint, plaintiff alleged negligence on the part of Deputy Truscott in not arresting Koths. In Count n, plaintiff alleged negligence on the part of the St. Clair County Sheriffs Department in training Deputy Truscott. In Count hi, plaintiff alleged a failure on the part of both defendants to take affirmative steps to remedy a nuisance created by Koths’ operation of a motor vehicle while intoxicated.
On July 25, 1984, defendants moved for summary judgment, now summary disposition, on all counts under GCR 1963, 117.2(1), now MCR 2.116(C)(8), based on the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq. In support of the motion, defendants also asserted that they owed no duty to plaintiff to arrest Koths, that duty being owed to the public generally and not to any particular individual.
On January 13, 1986, the trial court entered an order granting summary disposition in favor of defendants as to Counts i and ii, but denying summary disposition as to Count in. Summary disposition was denied on Count m on the basis of the court’s ruling that a nuisance is a judicially created exception to governmental immunity from tort liability and that plaintiff properly had pled an intentional nuisance claim.
On appeal, defendants raise two grounds for their claim that the trial court erred in not granting summary disposition as to Count iii, and one additional reason for reversal which was not presented to the trial court.
A motion for summary disposition based on the failure to state a claim tests the legal basis of the complaint, not whether it can be factually supported. Jones v Employer’s Ins of Wausau, 157 Mich App 345, 349; 403 NW2d 130 (1987), lv den 428 Mich 899 (1987). The court must accept as true all well-pled facts and determine whether the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a recovery. Beauchamp v Dow Chemical Co, 427 Mich 1, 5-6; 398 NW2d 882 (1986).
Defendants first argue that plaintiff failed to state a claim for intentional nuisance because they are entitled to governmental immunity under Ross v Consumers Power Co (On Reh), 420 Mich 567; 363 NW2d 641 (1984). Because a plaintiff need not plead facts in avoidance of immunity in his or her complaint to maintain an action against a governmental employee, as distinguished from a governmental entity, we shall consider this issue only as it pertains to the defendant St. Clair Sheriff’s Department. Hoffman v Genesee Co, 157 Mich App 1; 403 NW2d 485 (1987), lv den 428 Mich 902 (1987).
Under MCL 691.1407; MSA 3.996(107), governmental agencies are immune from tort liability when engaged in governmental functions. "Governmental function” was broadly defined in Ross, supra, p 620, as "an activity which is expressly mandated or authorized by constitution, statute or other law.” Although defendant argues that Ross abolished the common law nuisance exception to governmental immunity, we note that the Ross Court expressly declined to determine whether this exception remains viable. Id., pp 610-611, n 27. The decisions of this Court following Ross, however, have repeatedly held that governmental immunity does not bar a claim for intentional nuisance. Chapin v Coloma Twp, 163 Mich App 614; 415 NW2d 221 (1987), Li v Wong, 162 Mich App 767, 773; 413 NW2d 493 (1987), Guilbault v Dep’t of Mental Health, 160 Mich App 781; 408 NW2d 558 (1987), and see Velmer v Baraga Area Schools, 157 Mich App 489; 403 NW2d 171 (1987), lv gtd on other grounds 428 Mich 910 (1987). While we question the continued viability of these decisions in light of our Supreme Court’s recent holding in Smith v Dep’t of Public Health, 428 Mich 540, 544; 410 NW2d 749 (1987), that there is no "intentional tort” exception to governmental immunity, we need not decide this issue for purposes of this case, since it is clear that the second ground relied on by defendants in claiming error demonstrates that plaintiff failed to state a claim for intentional nuisance.
Defendants argue that plaintiff failed to plead sufficient facts to support a cause of action for intentional nuisance. We agree. "Too often, 'nuisance’ terminology is used to mask what are, in fact, simple negligence claims for the purpose of avoiding some effects of calling it what it is, a negligence claim.” Schroeder v Canton Twp, 145 Mich App 439, 441; 377 NW2d 822 (1985)._
Count iii of plaintiff’s complaint is based on the nuisance category known as a nuisance in fact. Martin v Michigan, 129 Mich App 100, 108; 341 NW2d 239 (1983), lv den 422 Mich 891 (1985). A nuisance in fact is actionable by reason of circumstances and surroundings, and an act may be found to be a nuisance in fact if its natural tendency is to create danger and inflict injury to persons or property. Id. The nuisance in fact is intentional if the creator intends to bring about the conditions which are in fact found to be a nuisance. Rosario v Lansing, 403 Mich 124, 142; 268 NW2d 230 (1978) (Moody, J., concurring); Denny v Garavaglia, 333 Mich 317; 52 NW2d 521 (1952).
Here, plaintiff alleged that the operation of a motor vehicle by Koths while visibly intoxicated constituted a nuisance. Plaintiff also alleged that Deputy Truscott could be linked to this nuisance by his failure to take remedial action to prevent Koths from driving the vehicle while intoxicated and further attempted to link the sheriff’s department to this nuisance by imputing Deputy Truscott’s notice of Koths’ intoxication to it.
A conflict presently exists in this Court on the question whether the omission to act can be the basis of an intentional nuisance action. See Chapin, supra, p 619, and the cases cited therein. However, notwithstanding whether the "act” of omission may be actionable, this does not obviate the need to establish intent on the part of defendants. The allegations contained in Count hi of plaintiff’s complaint, even when accepted as true, fail to plead sufficient facts of an intent on the part of either defendant or, in other words, that defendants knew or must have known that injury was substantially certain to result if Koths was permitted to drive the vehicle. Although Count m does contain the word "purposely,” when viewed in context, it fails to plead the type of deliberate conduct that gives rise to an intentional nuisance claim. Instead, Count hi sounds directly in negligence, referring to Deputy Truscott’s duty to monitor traffic violations and enforce criminal laws, to his alleged breach of duty by failing to take remedial action, and to the "negligence” of the defen dants in causing Kristy Kramer’s death. Even when construed liberally, plaintiffs complaint merely alleges the negligent performance of a decisional act. Since plaintiff has not pled sufficient facts of an intentional nuisance, we conclude that the trial court erred in denying defendants’ motion for summary disposition as to Count in.
We further note that this is not a case that justifies allowing plaintiff an opportunity to amend her complaint. See MCR 2.116(I)(5). Plaintiff does not dispute that the discovery in this case stemming from the complaint revealed that Deputy Truscott may have taken some remedial action by giving Koths a sobriety test, then having another passenger in the vehicle drive. Instead, plaintiff argues that "[t]he steps allegedly taken by the Deputy to correct the problem must be viewed in the light that Mr. Koths switched back to driving shortly after the Deputy was out of sight,” and that it is not possible to rule as a matter of law that Deputy Truscott’s actions were reasonable or did not, in fact, effectively create the condition. While these matters are perhaps relevant to the judgment and discretion exercised by a law enforcement officer as to when, where and how to act to accomplish his or her duties, Ross, supra, p 661, they hardly form a basis of a claim for intentional nuisance.
Reversed.
This definition was subsequently added to the governmental immunity act. MCL 691.1401©; MSA 3.996(101)©.
While a majority agreed in a memorandum opinion that there is no "intentional tort” exception, the Smith Court produced three authored opinions, each concurred in by one other justice. As observed by Justice Brickley, the focus of a governmental agency’s immunity should be on the general activity involved, as opposed to the specific conduct, at the time the alleged tort occurred. Smith, supra, pp 607-609. Where, as here, the activity involves whether Deputy Truscott should or should not have arrested Koths during the traffic stop, a recognized governmental function, it is difficult to envision governmental immunity not being available to the sheriff’s department. See Ross, supra, pp 659-661; Sherbutte v Marine City, 374 Mich 48; 130 NW2d 920 (1964).
There appears to be a conflict in the decisions of this Court on whether this intent element should be further defined as requiring that the creator of the nuisance know or must know that harm is substantially certain to follow. See Chapin, supra, p 619, n 1; Velmer, supra, p 500; Garcia v City of Jackson, 152 Mich App 254, 260, n 1; 393 NW2d 599 (1986). This conflict, however, seems to have little significance in view of the reliance of the decisions on Justice Moody’s rationale in Rosario, supra, and Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978). In Rosario, supra, p 143, n 2, Justice Moody stated:
In discussing conduct that may result in nuisance liability, William Prosser made the following differentiations between intentional nuisances and negligent nuisances:
"Occasionally [intentional nuisances] proceed from a malicious desire to do harm for its own sake; but more often they are intentional merely in the sense that the defendant has created or continued the condition causing the nuisance with full knowledge that the harm to the plaintiff’s interests is substantially certain to follow.”
We, therefore, conclude that the "knowledge” standard is applicable in a proper case.
Paragraphs 2 and 3 of Count hi state:
2. That the operation of a motor vehicle by said Ron Burton Koth, while said Ron Burton Koth [sic] was under the influence of intoxicating liquor and/or drugs constituted a nuisance of which Defendant, C. W. Truscott, and Defendant, St. Clair County Sheriffs Department, through its deputy, C. W. Truscott, had ample and adequate notice, and despite a duty to remedy same, and despite having available means to do so, Defendants or each of them did fail in said duties and purposely took to [sic, no] affirmative steps to remedy same.
3. That as a direct result of the breach of said duty, and negligence of the Defendants C. W. Truscott and St. Clair County Sheriffs Department, Plaintiff decedent did suffer injuries which caused her death. | [
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G. R. McDonald, J.
Defendants appeal by leave granted from an August 14, 1986, order of the Bay Circuit Court remanding this case to the 74th District Court for a new trial.
Plaintiff filed a breach of contract suit in the district court for improper repair of his automobile. After the close of proofs, but before the jury was instructed, the original six-person jury was reduced to five when a juror became ill and was excused with the consent of the parties. Subsequently, after the jury was instructed, but prior to deliberations, a second juror became ill and was excused by the court. At that time, plaintiff indicated that he was willing to proceed with four jurors provided the verdict was unanimous. Defendants objected to proceeding with only four jurors and moved for a mistrial. The court denied defendants’ motion and proceeded with the case before a panel of four jurors. The jury returned a unanimous verdict in favor of defendants._
Plaintiff appealed to the circuit court claiming the trial court erred in submitting the case to a four-person jury. The circuit court found the use of a four-person jury improper in the absence of a stipulation by the parties, and remanded to the district court for a new trial. We granted defendants leave to appeal by order dated March 3, 1987.
Defendants raise two issues on appeal. Defendants first claim the circuit court erred in finding improper a jury consisting of four members absent both parties’ stipulation to proceeding with this number. We disagree.
MCL 600.1352; MSA 27A.1352 provides:
In civil cases commenced in a court governed by this chapter, when a trial by jury is requested in accordance with rules of the supreme court, the trial shall be by a jury of 6. Except in cases involving the possible commitment of a person to a mental, correctional or training institution, a verdict in any civil case including condemnation and grade separation cases shall be received when 5 jurors agree. In civil cases involving the possible commitment to a mental, correctional or training institution, the court shall receive only a unanimous verdict. [Emphasis added.]
This statute mandates trial by a jury of six when a jury trial is requested, and further states that a verdict shall be received when five jurors agree. Thus, absent an exception to the statute, all civil juries made up of fewer than six members are improper. However, there does exist an exception to the six-person jury requirement. MCR 2.512(A) authorizes a jury of less than six person if the parties so stipulate.
(A) Majority Verdict; Stipulations Regarding Number of Jurors and Verdict. The parties may stipulate in writing or on the record that
(1) the jury will consist of any number less than 6,
(2) a verdict or a finding of a stated majority of the jurors will be taken as the verdict or finding of the jury, or
(3) if more than six jurors were impaneled, all of the jurors may deliberate.
Except as provided in MCR 5.512, in the absence of such stipulation, a verdict in a civil action tried by 6 jurors will be received when 5 jurors agree.
In the instant case both parties did not stipulate to a four-person jury. In fact, defendants objected to the composition of the jury and moved for a mistrial. Therefore, the circuit court properly found that the district court erred in proceeding to verdict with the four-person jury.
Defendants next claim the circuit court erred in remanding the case to the district court for a new trial. Defendants contend that any error in proceeding with less than the stipulated five jurors was waived by plaintiffs failure to object at trial. Although this appears to be a question of first impression in Michigan, we agree with defendants and find that plaintiff has waived any objection to the composition of the jury by failing to object before the verdict was returned.
Although § 1352 of the Revised Judicature Act mandates a six-person jury, in the absence of a stipulation pursuant to MCR 2.512(A), we believe § 1354 of the same act precludes plaintiff from challenging the validity of the jury verdict. Section 1354 provides in part:
Failure to comply with the provisions of this chapter shall not be grounds for a continuance nor shall it affect the validity of a jury verdict unless the party requesting the continuance or claiming invalidity has made timely objection and unless the party demonstrates actual prejudice to his cause and unless the noncompliance is substantial. An objection made at the day of the scheduled trial shall not be considered timely unless the objection, with the exercise of reasonable diligence, could not have been made at an earlier time. [MCL 600.1354; MSA 27A.1354. Emphasis added.]
Thus in the instant case, because plaintiff not only failed to object, but indicated consent to proceeding with four jurors, we find any objection to the composition of the jury waived. Undoubtedly, had the jury verdict resulted in plaintiff’s favor, he would not be here complaining to this Court. We find applicable the words of our Supreme Court as announced in LeBeau v Telephone & Telegraph Construction Co, 109 Mich 302; 67 NW 339 (1896), and quoted with approval in Sampear v Boschma, 369 Mich 261, 265; 119 NW2d 607 (1963):
"It seems to be pretty well settled that, after one has knowledge of an irregularity, he cannot remain silent, and take his chances of a favorable verdict, and afterwards, if the verdict goes against him, base error upon it .... If the action of the trial court was irregular, the irregularity was waived by making no objection until after the verdict was rendered.” [Citation omitted.]
Here it is clear that plaintiff had knowledge of his right to a six-person jury as he had previously stipulated to a reduction from six to five jurors.
Moreover, waiver in the absence of timely objec tion to the number of jury members has been found in several other jurisdictions.
Thus, to conclude, we hold that a civil jury must consist of at least six jurors, absent a stipulation to a lesser number by both parties. A trial court is without authority to proceed with less than six jurors absent such stipulation. However, a party’s failure to timely object to a civil jury of less than six jurors waives his right to object to the validity of the verdict on appeal.
Reversed and remanded to the circuit court for consideration of the other issues raised on appeal to that court._
See Anno: Proper procedure upon illness or other disability of civil case juror, 99 ALR2d 684; Anderson v Industrial Mollasses Corp, 11 Ill App 2d 210; 136 NE2d 536 (1956); Brame v Garwood, 339 So 2d 978 (Miss, 1976); Weenig v Wood, 169 Ind App 413; 349 NE2d 235 (1976). | [
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MacKenzie, P.J.
Plaintiffs appeal as of right from an order granting summary disposition in favor of defendant Michigan Bell Telephone Company (hereinafter defendant). We affirm.
This is a wrongful death action. During the night of November 28, 1982, Charles Hampton and Darrin Ortega broke into the home of plaintiffs’ decedent, William J. Heitsch. Decedent was ninety years old, in reasonably good health, and lived alone. Approximately an hour before the break-in, Hampton and Ortega broke a window in decedent’s bedroom, according to plaintiffs, to see if anyone would respond. During the break-in, the two men beat decedent about the head and torso with a nightstick. After the attack, decedent dragged himself to the kitchen, where he bled to death. Hampton and Ortega were later convicted of murder and manslaughter, respectively.
Five days prior to the break-in, defendant disconnected decedent’s telephone line from service without notice or explanation. Subsequent investigation revealed that the disconnection occurred when defendant received an order to remove service to the same number, but in a different area code. When decedent’s telephone line was disconnected a "default” recording was automatically placed on the line, informing callers: "The number you have reached is being checked for trouble. Please try your call again later.” While decedent and his family were aware that his telephone service was out prior to November 28, plaintiffs alleged that the "default” recording led them to believe that defendant was taking steps to restore service. Thus, they did not contact defendant about the lack of service until after decedent’s death.
The only telephone in decedent’s house was a wall-mount unit located in the kitchen, where he died. Plaintiffs alleged that defendant was negligent in wrongfully disconnecting and failing to reconnect decedent’s telephone line from service and that this negligence was a proximate cause of decedent’s death since the lack of telephone service left him without means to summon assistance before or after the assault.
Following discovery, defendant moved for summary disposition pursuant to MCR 2.116(0(10). For purposes of the motion, defendant admitted its negligence in disconnecting decedent’s telephone line from service. Defendant contended, however, that the disconnected telephone line was not a proximate cause of decedent’s death. The trial court agreed, ruling: "Hampton and Ortega’s criminal conduct was the superseding cause of the harm to decedent and therefore Michigan Bell’s alleged negligent act of disconnecting decedent’s telephone is not the proximate cause of decedent’s death.”
The sole issue before the trial court was whether defendant’s conduct was a proximate cause of decedent’s death, or whether his death was brought about by an intervening force — the assault by Hampton and Ortega — for which defendant is not responsible. An intervening cause is one which comes into active operation in producing harm to another after the negligence of the defendant. See Prosser & Keeton, Torts (5th ed), § 44, p 301; 2 Restatement Torts, 2d, § 441. If this intervention is a superseding cause, the defendant is relieved from liability, irrespective of whether his antecedent negligence was or was not a substantial factor in bringing about the injury. See 2 Restatement Torts, 2d, § 440, Comment b, p 465.
2 Restatement Torts, 2d, §448, pp 480-481 provides:
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that á third person might avail himself of the opportunity to commit such a tort or crime.
* * *
Comment:
a. The rule stated in this Section applies when the actor’s conduct creates a situation which is utilized by a third person to inflict intentional harm upon another or provides a temptation to do so to which the third person yields, but the actor has no reason to expect that the third person would so act. Under the rule stated in this Section, the actor is not responsible for the harm thus inflicted merely because the situation which his negligence has created has afforded an opportunity or temptation for its infliction.
The existence or nonexistence of an intervening or superseding cause is largely a matter of policy. As stated in Prosser & Keeton, supra, § 44, pp 311-313:
[O]nce the defendant’s negligence is established, because injury of some kind was to be anticipated, intervening causes which could not reasonably be foreseen, and which are no normal part of the risk created, may bring about results of an entirely different kind.
It is here at least that the line is drawn to terminate the defendant’s responsibility. The courts have exhibited a more or less instinctive feeling that it would be unfair to hold the defendant liable. The virtually unanimous agreement that the liability must be limited to cover only those intervening causes which lie within the scope of the foreseeable risk, or have at least some reasonable connection with it, is based upon a recognition of the fact that the independent causes which may intervene to change the situation created by the defendant are infinite, and that as a practical matter responsibility simply cannot be carried to such lengths.
Accordingly, it has been held that the defendant is not liable for the results of . . . those intentional or criminal acts against which no reasonable standard of care would require the defendant to be on guard: unforeseeable personal attacks upon the plaintiff, destructive meddling with property, and the forgery of a check.
Almost invariably these cases present no issue of causation, since there is no doubt whatever that the defendant has created the situation acted upon by another force to bring about the result; and to deal with them in terms of "cause” or "proximate cause” is only to avoid the real issue. The question is one of negligence and the extent of the obligation: whether the defendant’s responsibility extends to such interventions, which are foreign to the risk the defendant has created. It is best stated as a problem of the scope of the legal obligation to protect the plaintiff against such an intervening cause.
Mindful of these observations, we believe that in the final analysis the real issue in this case is not proximate causation, but whether any duty of reasonable care which defendant may have owed decedent included protecting him from the criminal acts of third parties. We decline to extend defendant’s duty that far in light of the degree of control in a utility’s relationship with its customers. See Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988) (because a merchant cannot control incidence of crime, there is no duty to protect customers from criminal acts of third parties by posting armed security guards). Compare Johnston v Harris, 387 Mich 569; 198 NW2d 409 (1972) (in a landlord-tenant relationship, it is foreseeable that tenant would be injured by third party in poorly lighted, unlocked vestibule), and see Williams, supra, p 502, n 17. As a matter of policy, we are persuaded that, absent extraordinary circumstances, a public utility such as defendant cannot be held to expect that one of its customers would be the victim of criminal conduct of others. We therefore conclude that, as a matter of law, defendant had no obligation to protect the decedent against the burglary of his home or his assault. Defendant did not know that decedent was elderly, that he lived alone, or that he lived in a high crime area. Indeed, the fact that decedent apparently did not feel compelled to inquire into his continued lack of phone service suggests that he did not consider himself to be particularly vulnerable without such service. As stated in Hoyle v Southern Bell Telephone & Telegraph Co, 474 F Supp 1350, 1355 (WD NC, 1979),
All subscribers depend on their telephone to summons help, but the Defendant can not be held liable for non repair in every instance. There could be some instances which might imply a presumption of knowledge of an emergency such as if the hospital’s telephones were out of order, but that is not the situation in this case.
And as noted by Prosser & Keeton, supra, § 33, p 201:
There is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging than those which are merely negligent; and this is all the more true where, as is usually the case, such acts are criminal. Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law. Under such ordinary circumstances, it is not reasonably to be expected that anyone will hurl a television from an apartment building window, rob and beat up a boy in a public restroom, forge a check, push another man into an excavation, abduct a woman from a parking lot and rape her, hold up a patron in the parking lot of a bank, or shoot a patron in the parking lot of a restaurant. Although such things do occur, as must be known to anyone who reads the daily papers, they are still so unlikely in any particular instance that the burden of taking continual precautions against them almost always exceeds the apparent risk. [Citations omitted.]
To be sure, decedent’s death was senseless and tragic. Nevertheless, absent some knowledge of a subscriber’s extraordinary need for uninterrupted service, we cannot make defendant an insurer of the well-being of each of its customers, as plaintiffs would have us do. Accordingly, we affirm the decision of the trial court.
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] |
R. M. Maher, J.
This case is before us on remand from the Supreme Court for plenary consideration, pursuant to MCL 600.861(c)(i); MSA 27A.861(c)(i) and MCR 7.203(A)(2), as though on leave granted. In re Martin, 429 Mich 852 (1987). Respondents challenge a jury’s determination that their daughter, Ashley Lynn Martin (born September 6, 1984), came within the jurisdiction of the Wayne County Probate Court by reason of abuse. They also challenge the court’s continued placement of the child in foster care. We affirm in part and reverse in part.
For purposes of this appeal, it is unnecessary to set forth in great detail the extensive evidence, both testimonial and documentary, which was presented at the numerous lower court proceedings. However, some depth of discussion is required in order to understand fully the issues presented herein.
The state’s involvement with this case began on December 18, 1984, when Ashley was only thirteen weeks old. On that date, respondents took the child to an emergency pediatric clinic because she was acting listless and had a high temperature. After the doctor performed blood tests and took several x-rays, it was discovered that Ashley had pneumonia, numerous broken ribs (possibly as many as eighteen) in various stages of healing, fractures of both femurs, a bruise on the lower back, and a bruise on the left leg. Suspecting abuse, the doctor transferred Ashley to a hospital and contacted the Wayne County Department of Social Services (dss), which immediately filed an emergency petition with the Wayne County Probate Court for a temporary detaining order. The order was issued.
Shortly thereafter, the dss filed another petition with the court, this one requesting that Ashley be made a temporary ward of the court. MCL 712A.2(b); MSA 27.3178(598.2)(b). Respondents requested a jury trial on the petition.
Trial was originally scheduled for August 16, 1985, but was adjourned until January 13, 1986, by mutual agreement of the parties. Respondents wanted the extra time to have Ashley examined at the Shriner’s Hospital in Chicago to determine if there was a medical explanation for her injuries, such as osteogenesis imperfecta (oi, also known colloquially as brittle bone disease).
Petitioner’s witnesses at trial included four physicians, each of whom examined Ashley and opined (although with varying degrees of certainty) that her injuries were the result of abuse. They ruled out oí as a possible cause because Ashley did not have many of the abnormalities associated with that disease (e.g., narrow bones, thin skin, fractures at weight-bearing points, excessive wormian bones in the skull). Other witnesses testified that since being placed in foster care Ashley has had no new fractures and is a normal, healthy baby.
Respondents presented evidence that Ashley may have had some medical disorder that made her susceptible to bone fractures. Particularly, Dr. Colin Paterson, a professor at the University of Dundee in Scotland and an expert in biochemical medicine and bone disorders, testified that he was confident there was a mistaken diagnosis of abuse. He felt Ashley had some bone disorder, possibly copper deficiency, but he could not pinpoint the exact cause because the proper tests were not performed early enough. A clinical psychologist and a psychotherapist, both of whom tested and evaluated respondents at length, testified that respondents did not exhibit those characteristics typical of child abusers. Respondents testified that Ashley would cry whenever she was picked up, held, or had her diaper changed. They called the pediatrician about this numerous times (which the pediatrician confirmed at trial) but were repeatedly assured that Ashley was just fussy. Ashley cried so violently that on one occasion she ruptured a blood vessel in her eye. On another occasion the underside of her tongue bled. Respondents contacted the pediatrician after each of these episodes but were again told that Ashley was just fussy. On hindsight, respondents believe Ashley was crying out of pain because of broken bones inflicted during normal handling of the child. They continued to maintain their innocence of any wrongdoing.
At the conclusion of proofs, the jury found that petitioner had proven by a preponderance of the evidence that Ashley had been abused and that she should be made a temporary ward of the court. Subsequently, respondents moved for, but were denied, judgment notwithstanding the verdict or a new trial.
A dispositional hearing was held on February 24 and 25, 1986, to determine whether Ashley should continue in foster care or be returned to respondents’ home under dss supervision. Petitioner asserted that a potential for reabuse existed unless and until respondents admitted responsibility for Ashley’s injuries. Respondents continued to profess their innocence of any wrongdoing. After hearing the evidence presented by both sides, the court ruled that Ashley should remain in foster care. Respondents appealed that ruling to this Court.
Statutory rehearings were held in August of 1986 and March of 1987. At the conclusion of each, the court ordered that Ashley shall continue in foster care, although regular visitation was permitted. Respondents were directed to undergo counseling and attend parenting classes.
At the March, 1987, hearing, respondents argued a motion for new trial based on newly discovered evidence. The new evidence was an affidavit from Dr. Paterson, whose credentials were mentioned previously, and a report from Dr. A. M. Parfitt, Director of the Bone and Mineral Research Laboratory at Henry Ford Hospital. Dr. Paterson concluded, after reviewing all the medical tests, with "virtual certainty” that Ashley’s injuries resulted from a copper deficiency. Dr. Parfitt also diagnosed the cause as copper deficiency or some other metabolic disorder having similar effects.
The court denied the new trial motion, stating that it did not believe the report and affidavit constituted newly discovered evidence. It also refused to allow respondents to present the testimony of Dr. Parfitt, who accompanied them to the hearing, although respondents were permitted to place on the record the substance of Dr. Parfitt’s findings. The court continued the prior orders imposed in the case and scheduled a rehearing in six months. Respondents appealed the denial of its motion to the Wayne Circuit Court.
In June of 1987, the Wayne Circuit Court heard the appeal and ordered the probate court to conduct a proper statutory rehearing within twenty-one days. For some unexplained reason, the rehearing did not occur until October 6, 1987 — and then only at the prompting of a show cause order to the probate court.
At the rehearing, two additional reports were submitted into evidence. The first was from Dr. Elizabeth Seagull, a professor of pediatric psychology at Michigan State University, who, after defining the issues in dispute and reviewing the evidence, recommended that Ashley be slowly integrated back into respondents’ home and that she maintain contact with her foster family. (The entirety of Dr. Seagull’s report is set forth infra.)
Also, at the rehearing, the court received a report from Dr. Coy Denton Sims, a Ph.D. in pediatric-child-school and family therapy, which indicated that continued placement of Ashley in foster care could cause irreparable psychological and emotional damage to the child. Dr. Sims also noted that respondents have attended three separate parenting seminars (receiving certificates of honor from two) and have undergone nearly three years of evaluations and psychotherapy. He felt there would be no risk in returning Ashley to respondents’ care.
At the conclusion of the rehearing, the court stated that it would not reconsider the issue of what caused Ashley’s injuries because that was resolved at the adjudicative hearing. It also stated that the rigid positions of both parties kept the case at a stalemate. The court, in an attempt to resolve the case, ordered Ashley’s attorney to locate a neutral therapist to immediately implement an observational treatment situation between respondents and Ashley. A status report was due by January 13, 1988. Ashley was to remain in foster care during the interim.
At the January 13, 1988, rehearing, Ashley’s attorney stated that she was still attempting to locate a neutral therapist who would be agreeable to all parties. The court allowed her additional time to find such a person. Also at the rehearing, the court heard testimony from David Allasio, a foster care worker newly assigned to the case. Allasio stated that he recommended allowing respondents to assume greater responsibility for the parenting and supervision of Ashley, although he did not recommend returning the child to the home outright at this time. He also testified that Ashley has recently become more anxious and aggressive, and has begun having frequent nightmares. Finally, Allasio stated that he has not insisted that respondents admit to having abused Ashley. At the conclusion of the hearing, the court ordered that Ashley remain in foster care and scheduled another rehearing for July 11, 1988.
During the past couple of months, respondents have apparently enjoyed greater visitation with Ashley. No longer are visits restricted to a foster care setting, but have included trips to shopping malls and Belle Isle. The visits have gone well and respondents have received favorable comments. Also during the interim, a therapist from the University of Michigan was selected to observe respondents’ interaction with Ashley. Although that observation has not yet taken place, it is scheduled for the very near future.
This is where the case stands today: more than three years after Ashley was removed from respondents’ custody and placed in foster care, the case is only slightly closer to resolution than when the state first became involved. It is a sad commentary that Ashley continues to languish in a system which, although pure of motive and purpose, only increases the possibility that the child will suffer irreparable psychological and emotional damage. Indeed, the damage has seemingly begun to manifest itself. Lest such harm become irreparable, it is time for effective action, which we will expound upon forthwith. First, we must address the specific issues raised on appeal.
We first find that the petition filed with the probate court requesting it to assume jurisdiction over Ashley was not defective on its face. The petition alleged:
Parents, neglect, refuse or are unable to provide a home environment which is fit for said child by reason of the following conditions:
a) On or about December 15, 1984 Ashley was admitted to St. John’s Hospital for treatment of a fever and diarrhea. The child was observed at the hospital to have multiple contusions on his [sic] back and left leg. X-rays revealed that the child had approximately eighteen (18) rib fractures in various stages of healing.
b) The parents were unable or unwilling, to provide an explanation for the child’s injuries which is consistent with medical history. The mother denied any recent trauma to the child. Parents claimed that the ribs were fractured at time of child’s birth and injuries were further complicated with rough handling by the father, [sic] contrary to MCLA 712A.2(b).
Those allegations were sufficient to place respondents on notice of the basis for the requested court intervention. See In re Harmon, 140 Mich App 479, 481; 364 NW2d 354 (1985). Cf. In re Kurzawa, 95 Mich App 346, 353-356; 290 NW2d 431 (1980). The petition alleged that respondents neglected or refused to provide Ashley with a fit home environment which resulted in the child’s receiving nu merous injuries. It could not be any more fact-specific as to the cause of the injuries for the simple reason that that information was unknown at the time. Although the injuries were also consistent with a medical disorder, there is no requirement that the petition disprove every possible innocent explanation for the injuries. See MCL 712A.11; MSA 27.3178(598.11) and MCR 5.904(A)(1). The petition sufficiently alleged acts constituting abuse or neglect within the meaning of MCL 712A.2(b); MSA 27.3178(598.2)(b).
We also find that the alleged instructional errors asserted by respondents were not improper. After the court had completed its jury charge, all the parties — respondents included — indicated satisfaction with the instructions. Therefore, respondents have waived the right to claim error on appeal. MCR 2.516(C); Moskalik v Dunn, 392 Mich 583, 592; 221 NW2d 313 (1974); Temborius v Slatkin, 157 Mich App 587, 602; 403 NW2d 821 (1986). In any event, we find that the instructions, when read as a whole, adequately apprised the jury of the controlling law. Respondents suffered no manifest injustice thereby. Green v Evans, 156 Mich App 145, 158; 401 NW2d 250 (1985).
We next hold that the standard of proof required at adjudicative hearings, i.e., by a preponderance of the evidence, does not violate respondents’ rights to due process of the law. The particular standard of proof required by due process is dependent on three factors: (1) the private interest affected by the proceedings; (2) the risk of error created by the state’s chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. Santosky v Kramer, 455 US 745, 754; 102 S Ct 1388; 71 L Ed 2d 599 (1982) (citing Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 [1976]).
In In re Riffe, 147 Mich App 658, 669-670; 382 NW2d 842 (1985), lv den 424 Mich 904 (1986), this Court recognized that the "preponderance of the evidence” standard applies to adjudicative hearings while the "clear and convincing” standard applies to termination proceedings. However, Riffe did not address the constitutional issue presented herein. Other jurisdictions which have addressed the question have held that the "preponderance” standard satisfies the constitutional guarantees in cases where the court is merely assuming jurisdiction over the child and not terminating the parent’s rights in that child. See, e.g., In re Orzo, 84 Misc 2d 482, 490-493; 374 NYS2d 554 (1975); In re S, 66 Misc 2d 683, 687-689; 322 NYS2d 170 (1971). We agree with the analysis and conclusions of those New York cases. We would simply note that in proceedings to determine jurisdiction over a child — as opposed to proceedings to terminate parental rights — the private interest at stake is not as great while the state’s interest in using the challenged procedure is heightened. Moreover, since the parents are allowed to fully present their case to a jury of their peers, the risk of error is minimal. Santosky, supra.
We decline to adopt a higher standard of proof, as respondents urge, in cases where the child remains in foster care for a lengthy period of time. Such a rule would be unworkable in practice. At what point should the standard be raised? A per se rule (e.g., two years) would, of course, ignore the needs of a particular case. A flexible rule (e.g., time to be determined by the trial court) would, in effect, require the parties and the court to relitigate the jurisdictional petition. Since this procedure is not authorized by court rule or statute, we would be overstepping our appellate function to adopt such a rule. Any relief in this regard should come from our Supreme Court or the Legislature.
We also point out that increasing the standard of proof would not, as respondents believe, work to their benefit. In Santosky, the United States Supreme Court held that parental rights may be terminated upon a showing of clear and convincing evidence. That holding was expressed by this Court in In re LaFlure, 48 Mich App 377, 385; 210 NW2d 482 (1973), lv den 390 Mich 814 (1973). If, after a lengthy period of court jurisdiction, a parent requests a rehearing under the higher standard, undoubtedly the state would respond by filing a termination petition since the required proof would be the same. We do not mean to imply bad faith on the part of the state. Rather, the state may believe the child should not be returned to the parent and may feel pressured into taking action to prevent return. The state (and, incidently, the child) should not be penalized by delaying a request for termination because of the hope that someday the child can be returned, although the parent is not yet ready. The position advocated by respondents would not, on closer examination, grant them the relief requested or work to the benefit of parents in general.
The final issue raised by respondents concerns the continued placement of Ashley in foster care. Actually, respondents raise several questions in this issue, the first of which is whether, in retrospect, it can be determined that the jury verdict was against the great weight of the evidence. Although substantial evidence has been submitted subsequent to the adjudicative hearing that Ashley’s injuries were the result of a medical disorder, it must be remembered that several doctors testifying on behalf of petitioner opined that the injuries were caused by abuse, not a medical disorder. Respondents have not presented evidence which clearly refutes the findings of those witnesses. Hence, there exists the possibility that the injuries were inflicted by human element. Even with the benefit of hindsight, we cannot say that the jury’s verdict was clearly erroneous and that the court should not retain jurisdiction over Ashley.
The second question raised by respondents, although somewhat confusing in its expression, is whether the probate court abused its discretion in ordering Ashley to remain in foster care instead of being returned to respondents’ home. After careful consideration of the proofs, we find that it did. We should preface that finding, though, by explaining that our decision is made only reluctantly, and with great caution, because, as an appellate court, we are ill-suited for deciding the disposition of children within the probate court’s jurisdiction. However, we would be shirking our appellate responsibilities, pursuant to MCL 600.861(c)(i); MSA 27A.861(c)(i), if we were to merely rubber-stamp a probate court’s decision, especially where — as here —the proofs concerning the well-being of the child are so compelling in favor of immediate return to the parents._
Although our decision is based on a careful review of the entire record, we will point out that evidence which is most persuasive. Perhaps the most influential is the report of Dr. Seagull, the pediatric psychologist, which was submitted at the statutory rehearing held in October of 1987. Because of the enlightening nature of that report we will quote it at length:
1. A major issue in this case is whether Ashley’s medical condition at the time of the original report to Children’s Protective Services was due to child abuse or to copper deficiency. The full report from Dr. Paterson and confirmatory evidence from Dr. Parfitt were not available to the jury which heard the case in January of 1986. These reports are sufficiently convincing as to throw doubt on the original diagnosis of child abuse, which was made on the basis of the finding of multiple fractures in different stages of healing.
2. A second major issue in the case has been the continuing demand by professionals that the Martins accept responsibility for Ashley’s fractures. There has been an assumption that the Martins’ failure to confess guilt means that Ashley cannot be safe in their home, even for a trial period, such as overnight or on weekend visitations.
These two issues have interacted to keep any progress from occurring in reuniting this family. If, in fact, the Martins were not responsible for the. injuries to their daughter, Ashley, but the injuries, rather, were the result of copper deficiency, the demand that the parents accept responsibility of the injuries makes no sense. Furthermore, although acceptance of responsibility by the perpetrator is often a treatment goal in child protection cases, particularly cases of incest, it is not unknown for children to be returned to their natural families even when a specific perpetrator has not been identified. Gradual return of children in cases where there is no criminal prosecution is the general practice, not the exception, with close medical monitoring to insure that reinjury does not occur.
3. It is obvious that Ashley must be returned to the custody of her natural parents forthwith. If we can rely upon the expert opinions of Drs. Paterson and Parfitt, as we must, it appears that this child was never abused. That honest mistakes were made in the well-meaning attempt to protect Ashley does not alleviate the tragedy of the situation.
4. In this particular case, the inordinate and unusual length of time which Ashley has remained in continuous foster care without extended visits in her parents’ home makes reunion more problematic. Ashley is undoubtedly confused as to what her relationship is to each set of parents (natural and foster). Mr. and Mrs. Martin have been deprived of the opportunity to form a normal relationship with their daughter during her first three years of development. They will not feel as confident or knowledgable, initially, as parents of a three-year-old who have spent three years with their child. At times they will feel awkward and confused. All three of them will require psychotherapeutic help which is family-oriented and provided by a competent professional whom they can view as an ally and source of support, not another person to "watch” them.
5. Medical monitoring of Ashley should be done by a different person, preferably a competent pediatrician.
6. Because Ashley is attached to her foster parents, the relationship with them should be gradually lessened, rather than severed suddenly and completely. When Ashley is returned to her parents, they should allow her to speak fondly of her "other” family, to speak to them on the telephone and to have visits with them, assuming that relationships between the two families can be conducted in a cordial way. The foster family can serve as a surrogate extended family, like cousins, especially initially.
A continuing relationship with Ashley’s foster family will undoubtedly be a painful reminder to the Martins of all they have been through. Knowing that it is in Ashley’s best, interest, however, they will surely be willing to bear some further pain for her sake. Likewise, it will be difficult for attached foster parents to give Ashley up, especially as they have believed her to have been abused by her parents. Like the Martins, however, they, too, can show their true caring for this child by not abusing the privilege of some limited continuing contact with her. Knowing it is in Ashley’s best interest, they will encourage her attachment to her own parents.
7. The timing of the contacts between Ashley and her foster family in terms of frequency, duration, and gradual cessation should be monitored by the Martin family’s therapist, based upon observation of Ashley’s responses. As she grows more comfortable with her own parents, seeing her foster parents and siblings may become a confusing or upsetting experience, instead of being like a pleasant visit with old friends or distant cousins. When this happens, or if she simply loses interest in seeing them, contacts should be discontinued.
In addition, the court received a report from Dr. Sims which made the following pertinent findings:
Cynthia and Michael Martin have attended three parenting seminars and obtained certificates with honor from two of them. They have gone through nearly three years of evaluations and psychotherapy to gain insight into their own personal behavior, change their attitude and actions, learn how to deal with stressful situations and to deal with their anger.
. . . They could not have done more to regain the right to have their child Ashley.
. . . [T]he Martins demonstrate a comitiment [sic] to their child and an involvement with her which is a strong indication of mental health and stability. Despite the awful pain of the separation, they continue to desparatly [sic] want their child returned.
In summary, Dr. Sims stated: "[I]t is my professional opinion that there is no risk in returning Ashley Martin to her natural parents, Cynthia and Michael Martin.”
Following are more examples of the evidence presented which favors return of Ashley to respondents’ care. Eric Ryberg, a clinical social worker and psychotherapist, wrote in a July 2, 1985, letter to the court:
I would conclude from my clinical contact thus far that the Martins are "normal” parents and do not fit the pattern of the abusive parent. . . .
I see no psychiatric reason why the Martins should not regain custody of their child.
That finding was reiterated by Ryberg at the adjudicative hearing as well as the dispositional hearing in February of 1986. Patrick Ryan, a clinical psychologist, testified at the adjudicative hearing that "there’s an extremely low probability that they [respondents] abused anybody or a child.” He also stated that there is no psychological reason to believe Ashley would be abused by her parents.
Since the adjudicative hearing, petitioner has presented no evidence, except for the fact of Ashley’s injuries, that respondents were, or could be, abusive to the child. While the injuries themselves might be a strong indicia of abuse where no legitimate explanation exists for their infliction, such is not the case here. Very persuasive evidence from Dr. Paterson and Dr. Parfitt show that the cause was copper deficiency or some similar metabolic disorder. Although, as we have previously stated, enough contrary testimony exists for affirming the probate court’s jurisdiction over Ashley, that evidence certainly defeats petitioner’s past insistence that respondents admit responsibility for the abuse before it would consider returning the child. Such rigidity has no place in our child welfare system. As stated in the report by Dr. Sims: "A life sentence (or three years) for Ashley appears beyond the purpose of the Department of Social Services or the intent of the court.”
For the foregoing reasons, we find that the probate court abused its discretion in continuing Ashley’s placement in foster care and in not returning her to respondents’ custody. However, because of the length of time the child has been away from her parents, we recognize — as did Dr. Seagull — that she will have to be slowly integrated back into respondents’ home. Toward that purpose then, we remand the case back to the probate court with directions to conduct a hearing, with all parties participating, within thirty days or less of the issuance of this opinion to determine how best to implement this procedure. The court is to render a decision within ten days thereafter detailing the procedure by which Ashley is to be returned to respondents’ care. If any of the parties are aggrieved with the court’s plan, we will permit the parties to file briefs only, outlining their respective positions, within twenty-one days.
On remand, a plan for integration is the sole issue to be decided. And, it is the sole issue for which we retain jurisdiction in the case. If neither party files a brief within the allotted twenty-one day period, our jurisdiction will automatically expire without further order.
Because of our disposition of this case, it is neither necessary nor appropriate that we exercise superintending control or issue a writ of habeas corpus to obtain the requested relief. MCR 3.302(B) and (D)(2); MCR 3.303; In re People v Burton, 429 Mich 133; 413 NW2d 413 (1987); Harmsen v Fizzell, 351 Mich 86, 93; 87 NW2d 161 (1957).
The order of the probate court assuming jurisdiction over Ashley is affirmed; the order continuing her placement in foster care is reversed and the matter is remanded for further proceedings in accordance with this opinion.
When this case was first appealed to this Court, it was erroneously dismissed as premature. That dismissal was then appealed to our Supreme Court, where both parties and the Court agreed that MCL 600.861(c)(i); MSA 27A.861(c)(i), as amended by 1982 PA 318, vested respondents with an appeal of right in cases such as this. Therefore, the case was remanded back to us for plenary consideration, as though on leave granted.
In In re Adrianson, 105 Mich App 300, 311; 306 NW2d 487 (1981), this Court held:
We conclude that this Court has jurisdiction to examine the 1977 petition to determine only whether it alleged sufficient facts that would allow jurisdiction to attach in the probate court. This limited inquiry, which is not being made in a direct appeal, must not consider the evidence that was introduced at the hearing on the petition and which formed the basis of the probate court’s disposition of the matter
Subsequent to that decision, MCL 600.861; MSA 27A.861 was amended to allow an appeal of right as to "[a]n order of disposition placing a child under the supervision of the court or removing the child from his or her home.” Thus, we now have the power to review dispositional orders like the one herein. Concomitantly, we must have the power to review the evidence which formed the basis of such orders. | [
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Per Curiam.
Defendant appeals as of right from his jury trial conviction of embezzlement. MCL 750.174; MSA 28.371. We affirm.
On appeal defendant claims he was improperly bound over on the charge of embezzlement either because the prosecution failed to prove proper venue or because there were insufficient facts presented at the preliminary examination to support a charge of embezzlement.
The preliminary examination testimony indicates that Gretchen Englehart owned a business known as Oak Concepts, which employed defendant as a full-time commissioned salesman. The business encompassed the purchase of furniture from manufacturers for resale to retailers. The idea for the business had come from defendant.
Shortly after the business started, defendant told Englehart that he knew a man, Don Lyons, who would make entertainment centers for Oak Concepts. Englehart refused to advance money for the entertainment centers without first meeting Lyons and seeing a completed unit. Defendant in fact did not know a person by the name of Don Lyons.
Approximately one week later defendant arranged for Englehart to meet with Ron Bateman regarding the building of entertainment centers. Bateman, who owned The Woodworks, located in Grand Rapids, had previously worked for defendant in defendant’s cabinetmaking shop. Prior to the meeting, defendant told Bateman that he "was in with a couple new partners” and that they might have some work for him.
Englehart, her husband, John, and defendant met with Bateman. A few days later Englehart entered into an agreement with Bateman for the construction of fifty entertainment centers for a cost of $8,750. Englehart gave Bateman a check for this amount. A few days later defendant approached Bateman and told him that there might be a change in plans. The next day he told Bate-man that another manufacturer was going to build the entertainment centers for less money and that defendant would need the money back for a down payment to the other manufacturer. Bateman, believing defendant to be Englehart’s partner, obtained a cashiers check for $5,000 and gave it to defendant. A few hours later defendant returned and requested another $1,250 back. Bateman gave defendant a business check for this amount. Bate-man retained $2,500 per an agreement with defendant to stain the units defendant was allegedly purchasing from another manufacturer. However, those units were never delivered to Bateman.
Defendant used the money received from Bate-man to pay off personal debts and up until the time of the preliminary examination had not acquired the entertainment centers for Englehart.
MCL 750.174; MSA 28.371 provides in part:
Any person who as the agent, servant or employee of another, or as the trustee, bailee or custodian of the property of another ... or private corporation . . . shall fraudulently dispose of or convert to his own use, or take or secrete with intent to convert to his own use without' the consent of his principal any money or other personal property of his principal which shall have come to his possession or shall be under his charge or control by virtue of his being such agent, servant, employee, trustee, bailee or custodian, . . . shall be guilty of. . . embezzlement.
Defendant claims that he was improperly bound over on charges of embezzlement as he was not in legal possession of the money at the time he converted the same to his own use as required by People v Bergman, 246 Mich 68; 224 NW 375 (1929). Thus, defendant contends that, although he may have committed a larceny by false pretense, his conduct did not constitute embezzlement. We disagree.
In People v Burns, 242 Mich 345; 218 NW 704 (1928), defendant was convicted of embezzlement. On appeal he contended that because the law did not require him to handle any monies he could not be guilty of embezzlement. The Supreme Court disagreed saying:
It is said by counsel for the defendant that the law never contemplated that probation officers should receive checks and deliver them to mothers pensioners. Conceding the correctness of counsel’s contention, the fact remains that he did receive checks and did so as probation officer. Whether he was legally authorized to handle and disburse this money is not controlling. He consented to handle it as probation officer, and, if he has embezzled it, he is in no position to say that he had no legal right to its possession. [Burns, supra, p 348.]
In the instant case defendant came into possession of the money by virtue of his employment with Oak Concepts. As in Burns, whether he was legally authorized to handle the money is not controlling. He did handle it and thereafter embezzled it. It is said:
[W]here one obtains possession of money or property by virtue of his apparent status as agent, servant, bailee or other fiduciary position, and wrongfully converts it to his own use, he will be estopped from asserting, as a defense to a charge of embezzlement, the fact that he did not legally occupy the requisite status, and thus was guilty of larceny and not embezzlement. [Emphasis unchanged. 26 Am Jur 2d, Embezzlement, § 3, p 552.]
In this case defendant came into possession of the money by his apparent status as a partner with Englehart. Although he may not have legally been authorized to take possession of the money, he did so and, as an agent for Oak Concepts, was required to return the money to the company. Instead he used it for his own personal needs. Defendant is estopped from claiming he was not legally in possession of the money, and therefore the magistrate did not abuse his discretion in binding defendant over on the charge of embezzlement.
Defendant also claims that venue was improper as the check was obtained and converted in Kent County and the case was tried in Ottawa County.
However, MCL 762.10; MSA 28.853 is a special venue statute for the offense of embezzlement. The statute states:
In all prosecutions for the crime of embezzlement said offense may be prosecuted either in the jurisdiction in which the property is received by the person charged or the jurisdiction in which it was the duty of such person to deliver, re-deliver or return said property. [Emphasis added.]
There is no dispute that defendant received the money in Kent County. However, the statute provides two proper places of venue. The second statutory place of venue is the jurisdiction where the money should have been returned, which is Ottawa County. We find no error.
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Shepherd, J.
Plaintiff appeals from a June 6, 1986, order granting defendants summary disposition on an insurance contract claim. We reverse and remand.
Plaintiffs complaint is based upon a group life insurance policy issued on the life of her husband in November, 1977, through defendant credit union. Premium dues were paid through automatic withdrawal from plaintiffs credit union account on a quarterly basis. On two previous occasions, plaintiff had apparently not had sufficient funds on deposit to cover the premium. Plaintiff claimed that she received notice from the defendant insurance company (League) and deposited sufficient funds. On none of these occasions was the policy cancelled; a double payment was made on the next quarterly due date. In fact, a representative for League testified by deposition that its notice indicates to the insured to have sufficient funds on the next quarterly date so that a double payment can be made.
Plaintiff claims, by affidavit, that she did not receive a notice after her December 1, 1980, payment was due and unpaid. She assumed payment had been made. League claims the policy was cancelled as a result of the nonpayment on March 1, 1981, pursuant to its policy which states that the policy terminates ninety-two days after the due date of any premium if payment had not been remitted to League by the credit union. League claims, in an unsigned affidavit, that plaintiff did receive notice, but apparently cannot produce a copy of the notice itself. Plaintiff’s husband died on May 18, 1981, and League denied the claim.
Relying on an apparent misstatement by counsel for League at the March 21, 1986, summary disposition oral argument, plaintiff argued that cancellation occurred only after two consecutive premiums are missed. Plaintiff argued that a material issue of fact existed on the interpretation of the contract as to whether decedent died within the ninety-two day "grace period” since he died within ninety-two days of the March 1, 1981, nonpayment.
Although the trial court initially agreed with this argument, it later, by June 6, 1986, written order, found in favor of defendants, concluding that no material issue of fact existed on the contract interpretation. Further, the trial court rejected plaintiff’s argument that League was es-topped from denying coverage because of its failure to notify plaintiff of her past due status. The trial court found no support for the theory in Michigan law, and rejected the theory for failure to state a claim upon which relief could be granted.
The essence of plaintiffs complaint is that defendants failed to inform her that a premium payment was past due, failed to inform her that the policy was cancelled, and that, based upon prior conduct of informing plaintiff of past due premiums, defendant League was estopped from cancelling the policy. On appeal, League cites a number of cases for the proposition that an insurance company is under no preexisting duty to provide an insured with notice of past due premiums or cancellation. See Szymanski v John Hancock Mutual Life Ins Co, 304 Mich 483, 490; 8 NW2d 146 (1943); Jones v Equitable Life Assurance Society of the United States, 155 Mich App 472; 400 NW2d 648 (1986); Sims v Buena Vista School Dist, 138 Mich App 426; 360 NW2d 211 (1984), lv den 422 Mich 940 (1985). Insofar as it goes, this is the case law.
The issue here, however, is whether defendant had a duty to inform plaintiff of a past due delinquency because of its prior custom and practice. Contrary to League’s assertions, Michigan has recognized such a duty. In Cochran v National Casualty Co, 261 Mich 273; 246 NW 87 (1933), plaintiff purchased a health and accident policy. An insurance company agent called on plaintiff each month to make the monthly payments. The agent did not call for a period of three months and the insurance company denied coverage on a subsequent claim. The Supreme Court upheld a jury verdict in favor of plaintiff, holding that plaintiff could not be held in default where the agent abandoned the payment plan without notice to the plaintiff. Cf., Zerilli v Metropolitan Life Ins Co, 277 Mich 192; 269 NW 140 (1936). See also Seavy v Erickson, 244 Minn 232; 69 NW2d 889 (1955); Neider v Continen tal Assurance Co, 213 La 621; 35 So 2d 237 (1948). This imposed duty to notify the insured if the insured has relied on a practice or custom of the insurer seems to be the majority rule. 43 Am Jur 2d, Insurance, § 849, pp 893-894.
The trial court decided the estoppel issue by granting defendant’s motion brought under MCR 2.116(C)(8), failure to state a claim. Such a motion tests the legal sufficiency of the pleadings with all well-pleaded facts accepted as true. Summary disposition is warranted only if a claim is so clearly unenforceable as a matter of law that no factual development could justify a right to recovery. Stewart v Isbell, 155 Mich App 65; 399 NW2d 440 (1986).
Given the posture of the case on review, we find the reasoning of the above cited cases compelling. On the two previous occasions when plaintiffs account was short she was notified of a past due balance and instructed to add to her account. According to the complaint, plaintiff had received such notices in the past but did not receive such a notice on this occasion. Based on these allegations, which we must assume to be true for purposes of subrule (C)(8) we believe she has stated a cause of action. Cochran, supra. We note that plaintiff has submitted a signed affidavit indicating she did not receive such a notice; League has submitted an unsigned affidavit indicating that such a notice was sent to plaintiff. This obviously is an issue of fact for the factfinder.
Finally, League argues that plaintiffs claim should be dismissed because she failed to procure copies of two transcripts and supply them to this Court. While the court rules provide us with the power to sanction plaintiff, see MCR 7.210, 7.211, and 7.216, review of the record reveals that the two transcripts are not pertinent to the issue on appeal. We therefore decline to dismiss the case.
As against Ferndale Co-op, plaintiff propounds allegations of breach of fiduciary duty and negligence. The allegations are conclusory and the complaint lacks factual allegations to support these theories with one exception. There is no allegation that Ferndale Co-op took on the responsibility of notifying plaintiff of a shortfall in her account or that the Co-op acted in a way different from its past practice. The Co-op seems to have served merely as a conduit for the payment of premiums. Nonetheless plaintiff has alleged that the Co-op breached its duty by "failing to pay premiums once funds were deposited into Plaintiff’s account.” That allegation, taken as true for review purposes, would constitute a breach of its duty. We note that on appeal plaintiff has submitted extensive appendices, including statements of her account which belie this allegation. However, since we are ruling on a motion granted under subrule (C)(8), we are constrained to accept the allegation as true. We reverse the dismissal of defendant Co-op. Nothing we have said here prejudices plaintiff’s right to amend her complaint to more specifically set forth factual allegations against the Co-op. MCR 2.118(A)(2).
Reversed and remanded. | [
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] |
Per Curiam.
In this medical malpractice action, plaintiff, Ralph McManus, appeals from orders granting defendant’s motions for new trial and for leave to amend pleadings. We affirm.
Plaintiff was employed as an accountant by St. Joseph Hospital Corporation (hereinafter defendant) in Flint, Michigan. On December 21, 1977, plaintiff, in propria persona, commenced this action, alleging in his complaint that defendant, through its residents and interns, negligently treated and prescribed unsupervised doses of tranquilizers and antidepressant drugs which allegedly led him to drug dependency and mental problems, caused him to lose past and future wages and his wife’s companionship (she divorced him), and caused him mental anguish and humiliation.
In its answer, filed January 24, 1978, defendant denied any negligent acts. Defendant also raised the statute of limitations as an affirmative defense and reserved the right to file additional affirmative defenses.
On February 7, 1978, plaintiff, having since retained legal counsel, filed his first amended complaint, alleging inter alia that these resident physicians and other staff members were agents and employees of defendant. Claims of breach of contract and breach of warranty were also alleged against defendant. The manufacturer of the medication, Hoffman-LaRoche, Inc., was added as a codefendant.
In its answer to the first amended complaint, defendant again denied any negligent acts. However, there was no specific reference to, or incorporation of, any prior pleadings, and no affirmative defenses were raised by defendant.
Plaintiff’s second amended complaint was filed on April 18, 1978. In this complaint, plaintiff reiterated and clarified that the negligent acts had been concealed from him by defendant and a psychiatrist associated with the hospital. The concealment claim had been alleged in both the original and first amended complaints. Defendant’s answer denied any negligence or concealment.
Defendant filed an "additional affirmative defense” on August 3, 1978, claiming that plaintiffs lawsuit was barred by the exclusive remedy provision under § 131 of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131). On December 18, 1979, the trial court granted summary judgment in favor of defendant on this ground.
In an appeal on leave granted, this Court, in an unpublished per curiam opinion, reversed the summary judgment, holding that plaintiffs malpractice claim against the hospital was not barred by the exclusive remedy provision of the workers’ compensation act. McManus v St Joseph Hospital Corp, unpublished opinion per curiam of the Court of Appeals, decided May 9, 1983, (Docket No. 57154).
On remand, the case was tried before a jury. After plaintiff’s proofs, and upon a motion by plaintiff, the trial court suppressed any evidence relating to the statute of limitations defense on the ground that defendant had waived that defense. The jury returned a $750,000 verdict in favor of plaintiff.
On July 16, 1984, defendant moved for a new trial on the basis that the verdict was against the great weight of the evidence and the jury award was excessive. Approximately one year later, on June 17, 1985, defendant moved to amend its pleadings so as to reallege the statute of limitations defense. These motions were granted on August 21, 1985, and September 9, 1985, respectively.
Plaintiff sought leave to appeal to this Court, which was denied on February 28, 1986. On plain tiffs application for leave to appeal to the Supreme Court, in lieu of granting leave, the Court remanded the case to this Court for consideration as on leave granted. 425 Mich 879 (1986).
Thereafter, on August 4, 1986, defendant filed a cross-appeal. On September 10, 1986, this Court granted defendant’s motion to stay proceedings and denied plaintiffs motion on December 30, 1986, to dismiss the cross-appeal. The Supreme Court denied plaintiffs application for leave to appeal this Court’s denial of plaintiff’s motion to dismiss the cross-appeal. 428 Mich 883 (1987).
Plaintiff alleges that the trial court erred in granting defendant a new trial and leave to amend its pleadings so as to reassert the statute of limitations defense. Plaintiff claims that this defense was waived because it was not pled subsequent to the filing of defendant’s first answer. The only method available to cure the waiver would have been an amendment of the pleadings. Because defendant failed to move to amend the pleadings prior to or during trial, defendant waived this defense. The fact that the defense was pleaded in the answer to the original complaint did not preserve the defense for posttrial relief.
Defendant argues that the trial court did not abuse its discretion by granting a new trial on the issue whether the statute of limitations bars plaintiff’s claim. Defendant asserts that the defense was not waived since it was raised in defendant’s answer to plaintiffs original complaint. The failure to reassert the defense in defendant’s answer to the first amended complaint should not be construed as a waiver of that defense.
Although plaintiff argues error by the trial court in granting defendant a new trial, we phrase the issue on appeal as follows: Whether the trial court abused its discretion by granting defendant leave to amend its pleadings to reallege the statute of limitations defense.
GCR 1963, 118.1, now MCR 2.118(A)(2), allows a party to amend a pleading only by leave of the court. Leave shall be freely given when justice so requires. "The allowance of an amendment is not an act of grace, but a right of a litigant seeking to amend '[i]n the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive . . ., repeated failure to cure deficiencies . . ., undue prejudice . . ., futility of amendment, etc.’ ” Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 659; 213 NW2d 134 (1973). The grant or denial of a motion to amend is within the discretion of the trial court, and, absent abuse of that discretion, the exercise of that discretion will not be reversed. Burse v Wayne Co Medical Examiner, 151 Mich App 761, 767; 391 NW2d 479 (1986). It is well-established that an affirmative defense, such as the statute of limitations, which is not asserted in a responsive pleading is waived. Cramer v Metropolitan Savings Ass’n (Amended Opinion), 136 Mich App 387, 402; 357 NW2d 51 (1984). In this case, there is no issue of defendant’s waiver of this defense because it was raised in defendant’s answer to plaintiffs original complaint. However, this defense was not reasserted in defendant’s subsequent answers to plaintiffs amended complaints.
A trial court is empowered to allow a posttrial amendment of the pleadings to conform to the proofs, absent a showing of surprise or prejudice. Gorelick v Dep’t of State Highways, 127 Mich App 324, 338; 339 NW2d 635 (1983). In the within case, we find no abuse of discretion by the trial judge in allowing defendant to amend its pleadings in order to reassert this defense. Our review of the trial proceedings indicates that plaintiff was aware of this defense and presented proof in his case in chief regarding this defense in response to defense counsel’s assertion, in the early stages of the trial, that his client had not waived it. The trial court suppressed any evidence relating to this defense after the close of plaintiffs proofs. Thus, we cannot conclude that plaintiff would be prejudiced by allowing defendant to amend its pleadings and have a new trial, because plaintiff was on notice of this defense and presented evidence as part of his case to refute the defense.
Because we are affirming on this issue, we decline to reach defendant’s issues raised in its cross-appeal.
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] |
Wahls, P.J.
Plaintiff, Herbert Graham, next friend of Becky Graham, appeals from a March, 1987, order of the Mackinac Circuit Court denying his motion to have Northern Michigan Hospitals, Inc., produce the medical records of Becky Graham at a fee less than the amount of $1 per page plus a $10 processing fee. We agree with plaintiff that the evidence generated below does not support the conclusion that nmh’s fee structure for the duplication of patients’ medical records represents the reasonable expenses incurred by nmh in complying with such requests. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
In December, 1986, plaintiff requested nmh to send copies of Becky Graham’s medical records and, a few days later, was informed by letter that for that service: "Copy charges are $10.00 for processing and $1.00 for each page copied.” This formula required plaintiff to pay $447 for a copy of the medical records. Plaintiff, believing that this charge made the medical records "outrageously expensive,” asked the Mackinac Circuit Court to order nmh to produce the records for a reasonable reimbursement representing expenses actually incurred. The circuit court, relying heavily on an affidavit of nmh’s vice-president of financial services, concluded that "the costs are reasonable and proper,” and therefore denied plaintiff’s motion.
Nmh is not a party to this action. MCR 2.310(C)(1) permits a nonparty to be served with a request to produce documents, and subpart (C)(5) provides: "The court may order the party seeking discovery to pay the reasonable expenses incurred in complying with the request by the person from whom discovery is sought.” Thus, as nmh itself has stated: "The question is 'What are Northern Michigan Hospital’s actual costs to reproduce Plaintiff’s [sic] records and supply them to Plaintiff’s counsel?’ ” At the January 9, 1987, hearing on this matter, nmh’s counsel acknowledged that, under the terms of the court rule, nmh was not permitted to make a profit from plaintiff’s request, but merely to recoup actual costs and expenses incurred.
Nmh maintains that the trial court’s conclusion, that the fee for the duplication of medical records represents "reasonable expenses incurred,” is confirmed by the affidavit of Jerry L. Worden, nmh’s vice-president of financial services. In his affidavit, Mr. Worden states, among other things: "The Hospital has spent considerable time and effort in determining a fee which provides actual reimbursement for out-of-pocket costs to the Hospital, and I believe this fee is reasonable.” Mr. Worden asserted in his affidavit that in order to process the high volume of requests received by nmh from patients or their attorneys, it was necessary to hire two people to do nothing but make copies of patients’ medical records. The "total payroll cost inclusive of benefits in 1986” for the services of these two employees was "equal to $47,114.00,” Mr. Worden stated. Moreover, he stated that, in addition to these costs, three photocopy machines are maintained by nmh, which had "pro rata deprecation . . ., annual maintenance costs, paper, postage and actual overhead expenses combined in 1986 . . . equal to $12,470.00.” Of the total labor and maintenance costs, amounting to $59,584 in 1986, Mr. Worden declared that nmh recovered only $22,000 under its former fee structure, which provided for a copy charge of fifty cents per page of an individual’s medical record.
Although these figures initially seem to support nmh’s position, upon closer examination we find that certain gaps in their presentation preclude us from confidently concluding that the trial court did not abuse its discretion in denying plaintiffs motion. First, we note that nmh’s written policy regarding the disclosure of medical information exempts various individuals and institutions from payment for the copying of medical records. For example, insurance companies representing nmh, insurance companies requesting information in order to pay a patient’s hospital bill, nonstaff physicians who present a written authorization, and patients whose copied records are taken to another facility or physician for follow-up care are not charged for the duplication of medical records. Mr. Worden’s affidavit does not mention how much money nmh does not recoup from these individuals and institutions exempted from payment, and whether those unrecouped expenses are in fact paid by nmh itself or are ultimately covered by paying requestors. If the paying requestors, such as plaintiff, are paying any portion of the costs attributable to the nonpaying requestors, then the former are subsidizing the latter to an extent exceeding that amount permitted under the court rules, i.e., that amount representing the reasonable expenses incurred by nmh in complying with a paying requestor’s discovery request.
In addition, Mr. Worden’s affidavit, beyond failing to itemize the amount of money spent by nmh for labor costs attributable to the duplication of medical records solely for paying requestors, does not itemize the amount of money spent by nmh for copy machine costs attributable to the duplication of medical records solely for paying requestors. Since the applicable court rule authorizes a non-party, such as nmh in this case, to charge only an amount representing the reasonable expenses incurred in complying with a discovery request from a party, we believe that the nonparty has an obligation to furnish appropriate evidence in support of its charges to the requesting party. This, nmh failed to do. At a minimum, in the present case, nmh should reveal how many copies are made per year in response to requests occasioned solely by paying requestors, as well as the total number of copies made per year by nmh for paying, nonpaying, and any other requestors. Once these amounts are revealed, they may be compared to the total, itemized labor and machine maintenance costs incurred by nmh. Those latter costs may be divided in proportion to the number of copies made for paying requestors and the number of copies made for nonpaying and other requestors. A reasonable per-page amount is then easily calculated by dividing the number of copies made for paying requestors into the pro rata amount of expenses incurred attributable to all paying requestors.
Remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
D. A. Burress, J., concurred. | [
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WHITBECK, EJ.
This appeal concerns the complicated interplay between First Amendment protections of the freedom of speech and the Michigan Court Rules concerning discovery. Plaintiff, Thomas M. Cooley Law School (Cooley), filed a complaint in the Ingham Circuit Court against defendant John Doe 1 (Doe 1) and others, alleging, in part, defamation arising from statements that Doe 1 made, under a pseudonym, on a website that criticized Cooley. Doe 1 moved in the tried court to (1) quash a subpoena that Cooley obtained in California seeking his identity, and (2) issue a protective order. Doe 1 now appeals by leave granted an order of the trial court denying his motion to quash the California subpoena. He argues that the First Amendment’s protections for anonymous free speech shield his identity. We reverse and remand.
I. FACTS
A. BACKGROUND FACTS
Doe 1 created an Internet website at Weebly.com, owned by California-based Weebly, Inc. (Weebly), using the pseudonym “RockstarOS.” Doe 1 titled the website “THOMAS M. COOLEY LAW SCHOOL SCAM.”
Describing himself as a former student of Cooley, Doe 1 stated that “Cooley is without a doubt one of the three worst law schools in the United States . . . and [is] considered THE BIGGEST JOKE of all law schools amongst other law students.” In the body of the post, Doe 1 listed “multiple reasons for this,” including: (1) Cooley’s “open door” policy, (2) Cooley’s attrition rate and administrative policies, (3) “the ‘Cooley Rankings’ ” (4) that Cooley “IS A DIPLOMA MILL,” and (5) that Cooley’s graduates are unemployed. Doe 1 claimed that he would “elaborate and address each of these [claims] in order, backed by statistics and facts, painting a real picture of what Cooley is really like[.]”
Doe 1 arranged the body of his blog in an outline format, comprised of headings followed by external website links and Doe l’s commentary. Doe l’s commentary frequently included capital letters, multiple instances of incorrect punctuation, expletives, advice, misspellings, and references to pop culture. Doe 1 permitted visitors to post their own comments on the website, and frequently responded to the commentators. After April 1, 2011, however, he began to “filter” comments, noting that he would delete “any stupid or irrelevant comments or personal attacks[.]”
B. PROCEDURAL HISTORY BELOW
Cooley filed the complaint in the Ingham Circuit Court on July 14, 2011, against several John Doe defendants. Cooley’s complaint against Doe 1 alleged that he made defamatory accusations that Cooley and its representatives “are ‘criminals’ and have committed ‘fraud,’ ” that Cooley deceived and provided false information to attain business, and that Cooley “uses its clout to ‘prey’ on current and prospective students, stealing their tuition money to ‘become more rich.’ ” On July 25, 2011, Cooley petitioned the Superior Court of California, County of San Francisco, to issue a subpoena to Weebly. On August 3, 2011, the California court issued a subpoena to Weebly, ordering it to produce documents that included Doe l’s user account information. On August 5, 2011, Doe 1 filed a motion in the Ingham Circuit Court, requesting that it quash any outstanding subpoenas to Weebly or, alternatively, issue a protective order limiting or restricting Cooley’s use or disclosure of his identifying information.
On August 9, 2011, Weebly’s chief of customer satisfaction promised Doe l’s attorney that he would not disclose Doe l’s identifying information until August 22, to allow him to obtain a ruling on his motion to quash. But on August 17, 2011, another Weebly employee released Doe l’s identifying information to Cooley. On August 18, 2011, Cooley requested that Doe 1 withdraw his motion to quash on the basis that the motion was now moot; Doe 1 declined.
On August 29, 2011, Cooley filed an amended complaint that identified Doe 1 by his legal name. Doe 1 supplemented his motion to quash and moved in the trial court to strike the identifying information, arguing that Cooley violated Michigan discovery rules by using information that Doe 1 claimed was protected.
C. THE TRIAL COURT’S DECISION
In September 2011, the trial court heard arguments on Doe l’s motion to quash. Doe l’s counsel agreed that the motion to quash was moot because Weebly had disclosed the information, but clarified that he was “seeking this motion as an alternative, a protective order.” The trial court provisionally ruled that Weebly might have inadvertently disclosed the information for the purposes of MCR 2.302(B)(7). It struck Cooley’s amended complaint and ordered Cooley not to initiate further discovery or disclose the information pending its final decision on the motion. On October 3, 2011, the trial court ruled that the motion to quash was not moot, reasoning that its ruling on Doe l’s motion to strike placed the parties back in the positions they occupied before Weebly disclosed the information.
On October 24, 2011, the trial court heard continued arguments on Doe l’s motion to quash. After extensive reasoning, the trial court determined that there was no Michigan law on point and examined decisions from other jurisdictions, including Dendrite Int’l, Inc v Doe, No 3 and Doe No 1 v Cahill, The trial court determined that, in order to adequately protect Doe l’s interests in remaining anonymous, it must balance those interests against Cooley’s interests in holding Doe 1 accountable for alleged defamation.
The trial court adopted and applied the Dendrite analysis. Under that analysis, it ruled that Doe 1 had been notified and that Cooley had sufficiently alleged slander per se. It ruled that statements that are slanderous per se are not entitled to First Amendment protection, and thus Cooley would not have to prove actual malice. The trial court’s order denied Doe l’s motion to quash, declined to grant him a protective order for “the reasons stated on the record,” and allowed Cooley to use the information that it discovered from Weebly. However, the trial court stayed its ruling pending Doe l’s appeal to this Court.
On November 29, 2011, Doe 1 filed an application for leave to appeal the trial court’s order, which this Court granted in an unpublished order, entered May 25, 2012 (Docket No. 307426). On July 11, 2012, Cooley moved to dismiss this appeal as moot. This Court denied Cooley’s motion to dismiss in an unpublished order, entered July 20, 2012 (Docket No. 307426).
II. MOOTNESS
A. STANDARD OF REVIEW
This Court reviews de novo questions of law.
B. LEGAL STANDARDS
Michigan courts exist to decide actual cases and controversies, and thus will not decide moot issues. A matter is moot if this Court’s ruling “cannot for any reason have a practical legal effect on the existing controversy.” Even if moot, this Court may consider a legal issue that “is one of public significance that is likely to recur, yet evade judicial review.”
C. APPLYING THE STANDARDS
Cooley argues that the issues presented in this appeal are moot because Weebly disclosed Doe l’s identity to Cooley. Therefore, because Cooley cannot “unlearn” his name, Doe l’s anonymity is destroyed. We conclude that the issues presented in this appeal are not moot because Cooley’s knowledge does not prevent this Court from granting relief that will have a practical legal effect on the controversy.
Doe 1 filed his motion to quash the subpoena and issue a protective order before Cooley learned his identity. Although Cooley filed an amended complaint with Doe l’s true name on it, the trial court acted within 10 days to sequester all documents in the lower-court record that contain Doe l’s name. The trial court also ruled that Doe l’s identifying information was inadvertently disclosed for the purposes of MCR 2.302(B)(7). Cooley argues that members of the public may have accessed the trial court documents in that period, but there is no indication that this actually occurred.
Finally, Cooley contended at oral arguments that, because Doe 1 applied for membership in the State Bar of California, his anonymity was destroyed because the State Bar of California is aware of his involvement in this suit. But it was also stated at oral arguments that applications to the State Bar of California are confidential. Thus, Doe’s application alone would not reveal his identity to the public. There are simply no indications that Doe l’s anonymity was destroyed or that this Court is unable to fashion the relief Doe 1 seeks.
Further, whether and in what fashion the identity of an anonymous Internet speaker can be discovered or protected under Michigan law is a publically significant issue concerning the First Amendment. In this age of Internet blogging, this issue is likely to reoccur. And if the disclosure of a John Doe’s name to a handful of attorneys and court officers is sufficient to render this issue moot, the issue would also be likely to evade judicial review. We conclude that we may, and should, reach the merits of the issues on appeal.
III. THE FIRST AMENDMENT AND ANONYMOUS SPEECH
A. FREEDOM OF SPEECH
The First Amendment of the United States Constitution provides that “Congress shall make no law. . . abridging the freedom of speech ... .” The Michigan Constitution provides that “[e]very person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech____” The United States and Michigan Constitutions provide the same protections of the freedom of speech, and this Court does not interpret the Michigan Constitution’s protections of speech more broadly than the federal constitution’s protections. Thus, this Court may consider federal authority when interpreting the extent of Michigan’s protections of free speech.*
The United States Supreme Court has held that the federal constitution protects speech over the Internet to the same extent as speech over other media. The United States Supreme Court has also determined that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.”
B. DEFAMATORY SPEECH
But a defendant’s right to speak freely is not absolute. The First Amendment does not protect “certain categories of speech, including defamation[.]” Generally, “ ‘[a] communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ ”
C. STANDARDS PROTECTING ANONYMOUS SPEECH IN OTHER JURISDICTIONS: DENDRITE, CAHILL, AND OTHER STANDARDS
To very different extents, courts in other jurisdictions have attempted to balance a defendant’s right to speak anonymously against a plaintiffs interest in discovering the information necessary to prosecute its defamation claims.
In Dendrite, a New Jersey intermediate appellate court determined that, in order to adequately protect a defendant’s interests in anonymous commercial speech, it must adopt a four-part approach to limit discovery. The New Jersey court determined that the plaintiff must: (1) show that the defendant is a person or entity who could be sued, (2) make a good-faith effort to serve process on the defendant, (3) establish that the plaintiff s suit could withstand a motion to dismiss, and (4) establish that there is a reasonable likelihood that discovery would lead to identifying information about the defendant that would make service of process possible. It determined that the purpose of this approach was to prevent plaintiffs from attempting to harass, intimidate, or silence anonymous critics on the public forums of the Internet.
Examining the New Jersey court’s decision in Dendrite, in Cahill, the Delaware Supreme Court also described and adopted this standard to protect political speech. The Delaware court concluded that, under Dendrite, it was necessary for a plaintiff alleging defamation to show four things before it could identify an anonymous political speaker on the Internet: (1) that the plaintiff tried to notify the defendant of the action in order to allow the defendant to defend, (2) that the plaintiff alleged the exact defamatory statements made by the anonymous poster, (3) that the plaintiff could survive a motion for summary judgment on the prima facie claim, and (4) that the balance of equities between the defendant’s First Amendment rights and the strength of the prima facie case indicates that the defendant’s identity should be disclosed. The Delaware court concluded that elements two and four were unnecessary because they are subsumed in that state’s summary judgment standards; that is, a plaintiff would have to prove each of these elements, but a “four-part” standard was unnecessary because elements two and four were necessarily a part of element three.
The United States Court of Appeals for the Ninth Circuit, the only federal circuit court to consider this issue, held only that the adoption and application of the Dendrite or Cahill standards to deny a party’s writ for mandamus is not clearly erroneous. It recognized that “a few courts have declined to adopt a new or different standard,” or have applied heightened standards only to the identification of nonparties. It determined that “the details of fashioning the appropriate scope and procedures for disclosure of the identity of the anonymous speakers” is a matter for the district courts to determine.
Finally, an Illinois court has decided that it was not necessary to adopt additional standards in light of the procedural protections in place under Illinois court rules. In Maxon v Ottawa Publishing Co, the Illinois Appellate Court determined whether the plaintiff could discover the identity of blog posters. It decided that it was not necessary to adopt the Dendrite or the Cahill standards because Illinois court rules required the complainant to plead defamation with particularity, and the complaint was subject to a motion that tested its legal sufficiency on the basis of the facts as pleaded. The Maxon court reasoned that the Dendrite “hypothetical motion for summary judgment” was unnecessary because the Illinois processes were similar to the standards applied by Dendrite and Cahill and adequately protect the defendant’s interests.
re OVERVIEW OF MICHIGAN PROCEDURAL RULES
In Michigan, discovery is available as soon as a party commences an action. In a civil action, a party commences the action by filing a complaint with a court. A summons is issued that is to be served on the defendant. Generally, a summons expires 91 days after the date the complaint is filed. Upon the expiration of the summons, the case is deemed dismissed with regard to a defendant who has not been served, unless the defendant has submitted to the court’s jurisdiction. A party may “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]” Michigan follows a policy of open and broad discovery.
A. SUBPOENAS
A party may acquire information from another party by subpoenaing them to provide a deposition, other documents, or tangible things. A party may petition a court in another state to issue a subpoena or equivalent process if necessary to acquire discovery for an action in Michigan. On a motion by a party, the “court in which the action is pending” may quash or modify the subpoena, or enter a protective order.
B. PROTECTIVE ORDERS
Despite Michigan’s broad discovery policy, a trial court should protect parties from excessive, abusive, or irrelevant discovery requests. Thus, a party may bring a motion in a trial court for a protective order:
On motion by a party or by the person from whom discovery is sought, and on reasonable notice and for good cause shown, the court in which the action is pending may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following orders:
(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the court[.][ ]
A trial court may also seal court records on a motion of a party if it finds good cause to do so and there are no less restrictive means to protect the party’s interests.
C. MOTIONS FOR SUMMARY DISPOSITION
Under MCR 2.116(C)(8), a party may move for summary disposition when the opposing party has failed to state a claim on which relief can be granted. This tests the legal basis of the complaint on the pleadings alone. The trial court must accept the factual allegations in the complaint as true, and construe them in the light most favorable to the nonmoving party. The trial court will grant the motion if the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify the opposing party’s right to recovery.
The availability and application of summary disposition is important in this case because summary disposition is an essential tool to protect First Amendment rights. To eventually succeed on a claim for defamation, a plaintiff must show:
(1) a false and defamatory statément concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication.[ ]
A plaintiff must also comply with constitutional requirements that depend on “ ‘the public- or private-figure status of the plaintiff, the media or nonmedia status of the defendant, and the public or private character of the speech.’ ”
A plaintiff claiming defamation must plead a defamation claim with specificity by identifying the exact language that the plaintiff alleges to be defamatory. For a claim of libel, a plaintiff must plead “ £the very words of the libel. . . ” Because a plaintiff must include the words of the libel in the complaint, several questions of law can be resolved on the pleadings alone, including: (1) whether a statement is capable of being defamatory, (2) the nature of the speaker and the level of constitutional protections afforded the statement, and (3) whether actual malice exists, if the level of fault the plaintiff must show is actual malice.
V MICHIGAN DISCOVERY RULES ADEQUATELY PROTECT FIRST AMENDMENT INTERESTS IN ANONYMOUS SPEECH
A. STANDARD OF REVIEW
This Court reviews de novo issues of constitutional law. Generally, this Court reviews for an abuse of discretion a trial court’s decision on a motion for discovery. A trial court abuses its discretion when it chooses an outcome falling outside the range of reasonable and principled outcomes, or when it makes an error of law.
Because this case raises First Amendment issues, we are also “obligated to independently review the entire record to ensure that the lower court’s judgment ‘does not constitute a forbidden intrusion of the field of free expression.’ ”
B. APPLICATION OF MICHIGAN DISCOVERY RULES TO THIS CASE
In a lengthy ruling from the bench, the trial court ruled that Michigan law does not address the situation in this case. It therefore adopted the Dendrite standards. Applying those standards, it determined not to quash the subpoena.
We disagree with the trial court’s conclusion that Michigan law does not adequately address this situation. We conclude that Michigan’s procedures for a protective order, when combined with Michigan’s procedures for summary disposition, adequately protect a defendant’s First Amendment interests in anonymity.
Under a properly filed motion for a protective order, a trial court may order, among other things, “that the discovery not be had” or that it “may be had only on specified terms and conditions[.]” In the context of our court rules, “[g]ood cause simply means a satisfactory, sound or valid reason[.]” A trial court has broad discretion to determine what constitutes “good cause.” A variety of sound or valid reasons may support a trial court’s decision to limit discovery, including that discovery implicates a party’s First Amendment interests.
Trial courts may use protective orders to protect witnesses’ First Amendment interests. For instance, in Bloomfield Charter Twp v Oakland Co Clerk, the township sought to depose persons who had signed petitions, and the trial court granted a protective order that prevented the township from deposing the signatories. This Court held that the trial court did not abuse its discretion when it issued the protective order. We reasoned that the signatories had a “powerful interest in participating in political speech protected by the First Amendment without fear of subsequently facing adversarial questions under oath,” and that the township’s reasons for requesting discovery were baseless.
We recognize that the Michigan Supreme Court subsequently overruled Bloomfield Charter Twp, though on different grounds, and thus it is not binding precedent. But the case illustrates that Michigan courts have recognized that a person’s right to freedom of speech may be good cause for a trial court to issue a protective order.
Protective orders are very flexible. A trial court may tailor the scope of its protective order to protect a defendant’s First Amendment interests until summary disposition is granted. For instance, a trial court may order (1) that a plaintiff not discover a defendant’s identity, or (2) that as a condition of discovering a defendant’s identity, a plaintiff not disclose that identity until after the legal sufficiency of the complaint itself is tested.
Comparing the foreign law that the trial court adopted to existing Michigan law, we disagree with the trial court’s determination that Michigan law cannot adequately protect a defendant’s interests in anonymous speech. Under Cahill, which the Ninth Circuit recognized as providing the “strictest test,” the plaintiff must (1) allege the exact defamatory statements, (2) show that the plaintiff made reasonable efforts to give the defendant notice of the action, (3) show that the plaintiffs case could survive a motion for summary disposition on the prima facie case, and (4) show that the balance of equities between the defendant’s interests and its interests weighed in its favor.
But under Michigan law, the plaintiff must allege the exact defamatory statements. The plaintiff will have to survive an actual motion for summary disposition on its claims under MCR 2.116(C)(8). And the trial court may consider the weight of the defendant’s First Amendment rights against the plaintiffs discovery request when determining whether to issue a protective order. Thus, the Dendrite and Cahill standards largely overlap with Michigan’s combined safeguards of a protective order under MCR 2.302 and the summary disposition standards and procedures under MCR 2.116(C)(8).
To the extent that Doe 1 urges us to adopt Dendrite because it more adequately protects other interests or is better public policy, we decline to do so. Doe 1 argues that any less stringent standards may chill Internet criticisms because of a defendant’s fear of being required to defend against a lawsuit for long enough to have the trial court dismiss it. Doe 1 also argues that the plaintiff in a defamation case may sue the defendant solely to subpoena the defendant’s Internet provider for identifying information in order to acquire leverage for extra-judicial retaliation. We have already concluded that Michigan rules of civil procedure adequately protect Doe l’s constitutional interests. We decline to reach beyond what is constitutionally necessary in order to judicially create anti-cyber-SLAPP legislation. Such decisions of public policy are the province of our Legislature. And the writing, or rewriting, of our discovery and summary disposition rules is the province of the Michigan Supreme Court.
C. THE TRIAL COURT DID NOT PROPERLY APPLY MICHIGAN LAW
We conclude that the trial court abused its discretion, which requires reversal. A trial court by definition abuses its discretion when it inappropriately interprets and applies the law. First, the trial court erroneously concluded that Michigan law does not adequately protect Doe l’s interests, and then it erroneously adopted and applied foreign law. Second, the trial court’s findings and conclusions in support of its position were erroneous. Third, the trial court did not state any reason supporting its decision to deny Doe l’s alternative request for a protective order.
After adopting the Dendrite and Cahill standards as Michigan law, the trial court appears to have considered only two alternatives: (1) that the subpoena should be quashed and Cooley’s case dismissed, or (2) that the subpoena should not be quashed and the case should proceed with Doe l’s name on the complaint. But Michigan law does not address only these polar oppo sites. Doe 1 also asked for a protective order under MCR 2.302(C). The trial court’s order indicates that it denied Doe l’s requests for a protective order “for the reasons stated on the record.” But the trial court did not state any reasons on the record to deny the protective order. The trial court appears not to have considered whether or to what extent to protect Doe l’s identity after it determined not to quash the subpoena. On remand, the trial court should consider whether good cause exists to support Doe l’s request for a protective order.
Next, the trial court ruled that defamatory statements per se were not entitled to First Amendment protections. The trial court was incorrect. Not all accusations of criminal activity are automatically defamatory. To put it simply, defamation per se raises the presumption that a person’s reputation has been damaged. In that instance, a plaintiffs failure to prove damages for certain charges of misconduct would not require dismissal of the suit. Whether a plaintiff has alleged fault — which may require the plaintiff to show actual malice or negligence, depending on the status of the speaker and the topic of the speech — concerns an element separate from whether the plaintiff has alleged defamation per se. Thus, the trial court erroneously concluded that Cooley would not have to prove fault or other elements because the statements were defamatory per se.
More importantly, this erroneous determination was central to the considerations the trial court may balance when determining whether to issue a protective order. As noted above, a trial court may consider that a party seeking a protective order has alleged that the interests he or she is asking the trial court to protect are constitutionally shielded. But the trial court need not, and should not, confuse the issues by making a premature ruling — as though on a motion for summary disposition — while considering whether to issue a protective order before the defendant has filed a motion for summary disposition. The trial court should only consider whether good cause exists to issue a protective order, and to what extent to grant relief under MCR 2.302(C).
Doe 1 urges this Court to rule that Cooley has not pleaded legally sufficient claims for defamation and tortious interference with a business relationship. We conclude that Doe l’s motion for a protective order did not present the appropriate time or place to do this. These rulings are best made in the context of a motion for summary disposition, when the trial court is testing the legal sufficiency of the complaint. The trial court’s only concerns during a motion under MCR 2.302(C) should be whether the plaintiff has stated good cause for a protective order and to what extent to issue a protective order if it determines that one is warranted.
D. THE EXTREME CASE
We recognize that this opinion does not address the extreme case, a case that Doe 1 would like us to consider. The extreme case is one in which a plaintiff in a defamation case sues the defendant solely to subpoena the defendant’s Internet provider for identifying information in order to retaliate against the defendant in some fashion outside a court action.
A simple hypothetical illustrates this situation. Assume that plaintiff XYZ company sues defendant Rich ard Moe who writes an anonymous blog on the Internet that is often critical of XYZ. Assume further that XYZ does not have any real expectation of damages, but suspects that Moe is employed or paid by a competitor and is suing simply to learn Moe’s name in order to silence him through legal (we hasten to add) but extrajudicial means.
Under the Michigan rules, as we outlined above, XYZ could sue Moe and then immediately pursue discovery against the Internet provider (the counterpart to Weebly in this action), during the 91-day service-of-summons period provided in the court rules, to obtain Moe’s real name. But XYZ does not — and indeed could not, because it does not at that point know Moe’s name — serve Moe with process. Thus, Moe would be totally unaware of the suit against him and could not protect his name in court. He will only know of the suit and XYZ’s actions when he is “outed” through discovery, and his employer may discharge him if XYZ retaliates with an aggressive ad campaign based on Moe’s real identity and affiliation with the competitor.
It is this extreme case that both Dendrite and Cahill, through their notice provisions, address by providing some protection to persons in Moe’s situation. But, we emphasize, this is not the case before us. Here, Doe 1 knew relatively early on that Cooley had filed suit against him and was attempting to ascertain his real name through its subpoena to Weebly. And Doe 1 has been successful, at least to date, in preventing a public disclosure of his name. We therefore decline, under the well-recognized concept of judicial restraint, to go beyond the facts that are before us in this case. We do not issue advisory opinions, nor does the Supreme Court, except in very limited circumstances not present here. We believe that our legal system in Michigan is capable of responding, either retroactively through litigation or prospectively through Supreme Court rule-making, if and when the extreme case arises.
E. COOLEY’S ALTERNATIVE GROUND FOR AFFIRMANCE
Cooley argues as alternative grounds for affirmance that a Michigan court cannot quash a subpoena issued by a California court. Cooley argues that the trial court must look to the law of the state in which the subpoena is pending to determine whether it can quash the subpoena. Under California law, Cooley therefore argues, Doe 1 should have filed his motion to quash and motion for a protective order in “the county in which discovery is to be conducted .. . .” The trial court did not consider this argument, and the parties did not extensively brief this issue.
However, Cooley’s argument appears to confuse MCR 2.305(D), under which Michigan allows a party to a Michigan action to petition a foreign court to issue a subpoena to require a person to give a deposition, with MCR 2.302(C). Doe 1 petitioned in the trial court for a protective order under MCR 2.302(C), which provides that “the court in which the action is pending may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expensed]”
Thus, even if the trial court did not have the power to quash the California subpoena, the trial court had the power to issue a protective order under Michigan court rules, because the action is pending in the Ingham Circuit Court. Therefore, even if we determined that the trial court did not have the power to quash the California subpoena issued under MCR 2.305(D), it would still be necessary for this Court to reverse and remand for the trial court to determine whether justice requires it to issue a protective order. Finally, a decision of the trial court would aid our analysis on this issue. We decline to affirm on the ground that the trial court could not quash a California subpoena.
VI. CONCLUSION
We conclude that the trial court abused its discretion when it denied Doe l’s motion for a protective order after it adopted and applied foreign law. Michigan law adequately protects Doe l’s free speech interests in this case. On remand, the trial court should determine whether it has the power to quash a California subpoena. If not, or if it declines to do so, the trial court should apply Michigan law to determine whether Doe 1 is entitled to an order protecting his identity.
Reversed and remanded. We do not retain jurisdiction.
Meter, J., concurred with Whitbeck, EJ.
Though this pseudonym is gender neutral and “John Doe 1” may refer to an unknown man or woman, the parties referred to Doe 1 by the masculine gender in their briefs and oral arguments. We will also use the masculine gender.
Dendrite Int’l, Inc v Doe, No 3, 342 NJ Super 134; 775 A2d 756 (2001).
Doe No 1 v Cahill, 884 A2d 451 (Del, 2005).
People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998).
Federated Publications, Inc v City of Lansing, 467 Mich 98, 112; 649 NW2d 383 (2002).
Gen Motors Corp v Dep’t of Treasury, 290 Mich App 355, 386; 803 NW2d 698 (2010); Federated Publications, Inc, 467 Mich at 112.
Federated Publications, Inc, 467 Mich at 112.
US Const, Am I.
Const 1963, art 1, § 5.
Woodland v Mich Citizens Lobby, 423 Mich 188, 208; 378 NW2d 337 (1985); In re Contempt of Dudzinski, 257 Mich App 96,100; 667 NW2d 68 (2003).
In re Contempt of Dudzinski, 257 Mich App at 100.
Reno v American Civil Liberties Union, 521 US 844, 870; 117 S Ct 2329; 138 L Ed 2d 874 (1997).
McIntyre v Ohio Elections Comm, 514 US 334, 342; 115 S Ct 1511; 131 L Ed 2d 426 (1995).
Chaplinsky v New Hampshire, 315 US 568, 571; 62 S Ct 766; 86 L Ed 1031 (1942).
Ashcroft v Free Speech Coalition, 535 US 234, 245-246; 122 S Ct 1389; 152 L Ed 2d 403 (2002); Burns v Detroit (On Remand), 253 Mich App 608, 621; 660 NW2d 85 (2002).
Rouch v Enquirer & News of Battle Creek (After Remand), 440 Mich 238, 251; 487 NW2d 205 (1992), quoting 3 Restatement Torts, 2d, § 559, p 156.
Dendrite Int’l, Inc, 342 NJ Super at 156-157.
Id. at 151-152.
Id. at 156.
Cahill, 884 A2d at 460.
Id.
Id. at 461.
In re Anonymous Online Speakers, 661 F3d 1168, 1177 (CA 9, 2011).
Id. at 1175-1176.
Id. at 1177.
Maxon v Ottawa Publishing Co, 402 111 App 3d 704, 706; 929 NE2d 666 (2010).
Id. at 712.
Id. at 714-715.
MCR 2.302(A)(1).
MCR 2.101(B).
MCR 2.102(A).
MCR 2.102(D).
MCR 2.102(E)(1).
MCR 2.302(B)(1); see King v Reed, 278 Mieh App 504, 517; 751 NW2d 525 (2008).
Augustine v Místate Ins Co, 292 Mieh App 408, 419; 807 NW2d 77 (2011).
MCR 2.305(A)(1) and (2).
MCR 2.305(D).
MCR 2.302(C).
Cabrera v Ekema, 265 Mich App 402, 407; 695 NW2d 78 (2005).
MCR 2.302(C).
MCR 8.1190(I)(1).
MCR 2.116(G)(5); Maiden v Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999).
Maiden, 461 Mich at 119.
Id.
Tomkiewicz v Detroit News, Inc, 246 Mich App 662, 666; 635 NW2d 36 (2001); Ireland v Edwards, 230 Mich App 607, 619; 584 NW2d 632 (1998).
Tomkiewicz, 246 Mich App at 666-667; Mitan v Campbell, 474 Mich 21, 24; 706 NW2d 420 (2005).
Rouch, 440 Mich at 251-252, quoting Locricchio v Evening News Ass’n, 438 Mich 84, 118; 476 NW2d 112 (1991).
Royal Palace Homes, Inc v Channel 7 of Detroit, Inc, 197 Mich App 48, 52, 57; 495 NW2d 392 (1992).
Id. at 53, quoting De Guvera v Sure Fit Prod, 14 Mich App 201, 206; 165 NW2d 418 (1968).
See Ireland, 230 Mich App at 619.
See New Franklin Enterprises v Sabo, 192 Mich App 219, 221-222; 480 NW2d 326 (1991); see also Hodgins v Times Herald Co, 169 Mich App 245, 256-257; 425 NW2d 522 (1988).
Ireland, 230 Mich App at 622.
In re Contempt of Dudzinski, 257 Mich App at 99.
Augustine, 292 Mich App at 419.
People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003); Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
People v Giovannini, 271 Mich App 409, 417; 722 NW2d 237 (2006); In re Waters Drainage Dist, 296 Mich App 214, 220; 818 NW2d 478 (2012).
Maldonado, 476 Mich at 388-389, quoting Gentile v State Bar of Nevada, 501 US 1030, 1038; 111 S Ct 2720; 115 L Ed 2d 888 (1991) (additional quotation marks and citations omitted).
MCR 2.302(C)(1) and (2).
People v Buie, 491 Mich 294, 319; 817 NW2d 33 (2012) (quotation marks and citation omitted).
See id. at 319-320.
Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1, 35; 654 NW2d 610 (2002), overruled on other grounds by Stand Up For Democracy v Secretary of State, 492 Mich 588 (2012).
Bloomfield Charter Twp, 253 Mich App at 38.
Id.
Kidder v Ptacin, 284 Mich App 166, 170; 771 NW2d 806 (2009).
In re Anonymous Online Speakers, 661 F3d at 1177.
Cahill, 884 A2d at 460-461.
SLAPP is an acronym for “strategic lawsuit against public participation.” Black’s Law Dictionary (7th ed).
Johnson v Recca, 492 Mich 169, 196-197; 821 NW2d 520 (2012).
Giovannini, 271 Mich App at 417; In re Waters Drainage Dist, 296 Mich App at 220.
See Kevorkian v American Med Ass’n, 237 Mich App 1, 12-13; 602 NW2d 233 (1999).
Burden v Elias Bros Big Boy Restaurants, 240 Mich App 723, 727-728; 613 NW2d 378 (2000).
See Bloomfield Charter Twp, 253 Mich App at 38.
See Occam’s razor, a principle of parsimony, which may be paraphrased as providing that simpler explanations are, other things being equal, generally better than more complex ones.
Const 1963, art 3, § 8; see Citizens for Common Sense in Gov’t v Attorney General, 243 Mich App 43, 55; 620 NW2d 546 (2000).
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] |
PER CURIAM.
In this action brought under the Michigan Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., defendant, Lutheran Social Services of Michigan, appeals as of right a judgment entered in plaintiffs favor. Plaintiff cross-appeals regarding the trial court’s dismissal of her “about to report” claim under the WPA and the partial denial of her motion for attorney fees. We reverse and remand for proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
Plaintiff was employed as a home-healthcare provider for defendant. During the course of her employment, she encountered Client A, who smoked marijuana in his home and in plaintiffs presence when she was there on assignment by her employer. Plaintiff was informed of Client A’s drug use before entering his home, and she discussed it with her supervisor and other coworkers. During one discussion with a coworker about Client A’s drug use, plaintiff decided to call 911 and asked to be connected to the Bay Area Narcotics Enforcement Team (BAYANET). When speaking with a BAYANET official, plaintiff inquired about the potential consequences of someone knowing about the drug use of another and not reporting it. At the conclusion of the conversation, when asked by the BAYANET official if she would like to take any further action, plaintiff declined to do so.
As a condition of her employment, plaintiff had signed a client confidentially agreement, consenting to keep information about her clients confidential. Plaintiff was eventually called into a meeting with her supervisor, at which the supervisor informed her that a complaint had been lodged against plaintiff for making a phone call about Client A. Plaintiff admitted to her supervisor that she called BAYANET. Plaintiff also recalled that her supervisor mentioned another phone call she supposedly made to an insurance company about Client A, although plaintiff denied making that call.
After she was terminated, plaintiff initiated this litigation, claiming that she was terminated in violation of the WPA. While defendant moved for summary disposition on plaintiffs “report” and “about to report” claims, the trial court only granted the motion with respect to the latter claim. After a jury trial, a judgment was awarded in plaintiffs favor in the amount of $77,897.50. The trial court also awarded attorney fees and costs to plaintiff consistently with case evaluation sanctions in the amount of $69,385.55. Defendant now appeals, and plaintiff cross-appeals.
II. SUMMARY DISPOSITION
A. STANDARD OP REVIEW
A grant or denial of a motion for summary disposition is reviewed de novo. MEEMIC Ins Co v DTE Energy Co, 292 Mich App 278, 280; 807 NW2d 407 (2011). Statutory interpretation also presents a question of law that we review de novo. Hoffman v Boonsiri, 290 Mich App 34, 39; 801 NW2d 385 (2010).
B. “REPORT” UNDER THE WPA
“The WPA provides a remedy for an employee who suffers retaliation for reporting or planning to report a suspected violation of a law, regulation, or rule to a public body.” Anzaldua v Neogen Corp, 292 Mich App 626, 630; 808 NW2d 804 (2011). The purpose of the WPA is to protect the public by facilitating employee reporting of illegal activity. Id. at 631. It is the plaintiffs burden to establish a prima facie case under the WPA, which requires a showing that “(1) the plaintiff was engaged in a protected activity as defined by the WPA, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge.” Manzo v Petrella, 261 Mich App 705, 712; 683 NW2d 699 (2004). “The determination whether evidence establishes a prima facie case under the WPA is a question of law that this Court reviews de novo.” Roulston v Tendercare (Mich), Inc, 239 Mich App 270, 278; 608 NW2d 525 (2000).
In regard to the first element of a prima facie case, a plaintiff engages in a protected activity when he or she (1) reports to a public body a violation of the law, a regulation, or a rule, (2) is about to report such a violation to a public body, or (3) is being asked by a public body to participate in an investigation. Manzo, 261 Mich App at 712-713; see also Ernsting v Ave Maria College, 274 Mich App 506, 510-511; 736 NW2d 574 (2007) . On appeal, defendant argues that the trial court erred by denying its motion for summary disposition because plaintiff failed to actually make a report. As a matter of statutory interpretation, the definition of “report” is a question of law we review de novo. See Hoffman, 290 Mich App at 39. While the WPA does not define the term “report,” courts may consult dictionary definitions when giving undefined statutory terms their plain and ordinary meaning. Koontz v Ameritech Servs, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Accordingly, Random House Webster’s College Dictionary (2005) defines “report” as “a detailed account of an event, situation, etc., [usually] based on observation or inquiry.”
According to plaintiffs deposition testimony, she asked the BAYANET officer the following question: “If you’re in a situation where there’s illegal drugs and you happen - and this person happens to get in trouble, what is your consequence?” Essentially, plaintiff called the BAYANET officer to inquire about her potential liability if Client A’s behavior was discovered, not to report any illegal behavior. Plaintiff did not provide any particulars or otherwise convey information that could have assisted the BAYANET officer in actually investigating any wrongdoing. There is no evidence that plaintiff identified herself, Client A, or Client A’s location, nor did she provide any sort of detailed account of the situation. She did not even appear to specify the type of “illegal drugs” at issue. Thus, rather than providing a “detailed account of an event, situation, etc.;” plaintiff was merely seeking to obtain information and advice. Her lack of behavior that would constitute reporting is underscored by her negative response when the BAYANET officer asked if she wanted to take any further action.
Plaintiff analogizes the instant case to Whitaker v US Sec Assoc, Inc, 774 F Supp 2d 860 (ED Mich, 2011). In Whitaker, the plaintiff was a security officer at the Detroit Metropolitan Wayne County Airport, and he brought an action under the WPA against the defendant, claiming that the defendant had retaliated against him for internal complaints and an e-mail he sent to the Transportation Security Administration (TSA). Id. at 861-865. The e-mail identified gate-related security issues at the airport and indicated that the plaintiff had “some questions on the regulations.” Id. at 863.
The federal district court held that the plaintiff had established a prima facie case under the WPA because the e-mail was a “report.” Id. at 868, 871. The court explained that the e-mail specifically identified two problems and communicated the plaintiffs intent to learn more about the regulations applicable to the two security concerns. Id. at 868-869. The court noted that the TSA and the defendant’s own management construed this email as “raising concrete security concerns that warranted further investigation . ...” Id. at 868. Ultimately, the court rejected the defendant’s contention that the plaintiffs e-mail “merely posed questions and sought information . ...” Id. at 869.
Whitaker is not similar to the instant case. The plaintiff in Whitaker specifically identified the regulatory violations and provided the TSA with sufficient information to further investigate the regulatory violations. Here, in contrast, plaintiff only referred to “illegal drugs” and did not provide the BAYANET officer with any information to further investigate the illegal activity. Thus, plaintiffs reliance on Whitaker is misplaced.
Moreover, categorizing plaintiffs behavior as a report under the WPA would not further the purpose of the statute, namely, to protect the public by encouraging reporting of illegal activity. Plaintiffs phone call did not provide law enforcement with the means to investigate Client A’s marijuana use or to protect the public from that behavior. Plaintiffs only concern was to obtain information about her hypothetical liability, not to provide law enforcement officials with any concrete facts from which they could actually investigate or enforce the law. Thus, plaintiff failed to establish that she made a report under the WPA and because she failed to establish a prima facie case, defendant was entitled to summary disposition.
C. “ABOUT TO REPORT” UNDER THE WPA
On cross-appeal, plaintiff argues that the trial court improperly dismissed her “about to report” claim and granted summary disposition to defendant. As noted, the WPA extends to employees who are about to report a suspected violation. Manzo, 261 Mich App at 712-713. Thus, “[a] plain meaning reading of the act shows that an employee ‘about to’ report receives the same level of protection as one who has reported to a public body.” Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604, 611; 566 NW2d 571 (1997). An “employee seeking protection under the ‘about to report’ language of the act [must] prove his intent by clear and convincing evidence.” Chandler v Dowell Schlumberger Inc, 456 Mich 395, 400; 572 NW2d 210 (1998); see also MCL 15.363(4). The employer also is entitled “to objective notice of a report or a threat to report by the whistle-blower.” Roulston, 239 Mich App at 279 (quotation marks and citations omitted).
In the instant case, plaintiff discussed Client A’s marijuana use with her supervisor and coworkers and called BAYANET to inquire about any potential liability. Plaintiff argues that these facts establish a prima facie case that she was about to report a violation. In particular, plaintiff relies on her phone call to BAYANET to support her argument that she was about to report Client A’s behavior. However, as discussed earlier, that phone call was not a report. Moreover, simply because plaintiff called BAYANET to inquire about her potential liability does not demonstrate that she intended to take any further action and actually report the behavior to a public body. In fact, when the BAYANET officer asked if she would like to take any further action, plaintiff declined the offer. Plaintiffs discussions with coworkers and supervisors about Client A’s behavior also fail to demonstrate that she intended to report the behavior. Her conversations demonstrate only that while plaintiff knew about the behavior and had a sufficiently long time to report the behavior, she declined to do so.
There also is no evidence that plaintiff informed anyone that she was about to take further action and report the behavior to a public body. In sharp contrast is Shallal, 455 Mich at 613-614, 621, in which the plaintiff told the president of the company that she would report him for misusing funds and abusing alcohol if he did not “straighten up.” The plaintiff in Shallal also discussed with various individuals the possibility of reporting the president’s behavior. Id. at 613-614, 620 n 9. Our Supreme Court held that the plaintiffs explicit threat to report the president combined with her other actions satisfied the “about to report” language of the statute. Id. at 615, 621. Yet in the instant case, there is no evidence that plaintiff communicated such an explicit threat to report the behavior. There also is no evidence that plaintiff informed others that she intended to actually report the behavior to a public body.
Consequently, there is no evidence that defendant received objective notice that plaintiff was about to report Client A’s behavior to a public body. Plaintiff never informed or threatened defendant that she would place a second call to BAYANET or another law enforcement agency. There is nothing in the record to suggest that plaintiff explicitly or implicitly informed defendant that a report of Client A’s illegal activity was pending. Therefore, the trial court did not err by granting summary disposition to defendant on plaintiffs “about to report” claim because there is no clear and convincing evidence of her intent to report the behavior.
III. CONCLUSION
Because plaintiff failed to establish a prima facie case for her “report” and “about to report” claims under the WPA, defendant was entitled to summary disposition. We decline to address plaintiffs arguments concerning attorney fees because she is no longer a prevailing party and is not entitled to fees. We reverse the trial court’s judgment in favor of plaintiff and the award of fees and costs to plaintiff. We remand this case for proceedings consistent with this opinion and do not retain jurisdiction.
Owens, P.J., and Fitzgerald and Riordan, JJ., concurred.
Similarly, in People v Holley, 480 Mich 222, 228; 747 NW2d 856 (2008) , our Supreme Court relied on Random House Webster’s College Dictionary (2001) in defining “report” identically in the context of reporting a crime.
Analogous is Garrie v James L Gray, Inc, 912 F2d 808 (CA 5, 1990), a case from the United States Court of Appeals for the Fifth Circuit. Garrie involved a plaintiff who was employed as a skipper on a ship owned by the defendant. Id. at 809. The plaintiff called the Coast Guard and identified himself, but not his employer, and inquired about whether “the regulation regarding maximum working hours was still in effect,” although he declined to file a formal complaint. Id. (quotation marks omitted). In rejecting the plaintiffs argument that his behavior constituted a report, the court concluded that the plaintiff had
merely made an inquiry of the Coast Guard as to whether a particular statute was still in effect. He sought information, but did not provide it. He did not file a complaint, nor did he reveal the name of his employer or the vessel upon which he was employed — information without which the Coast Guard could not investigate or prosecute a violation.
Id. at 812. Likewise in the instant case, plaintiff sought information without providing anything to BAYANET that it could investigate or use to prosecute any potential violation.
While plaintiff cites her trial testimony to support her argument that she did make a report, when reviewing a trial court’s decision on a motion for summary disposition this Court considers only “what was properly presented to the trial court before its decision on the motion.” BC Tile & Marble Co, Inc v Multi Bldg Co, Inc, 288 Mich App 576, 583; 794 NW2d 76 (2010) (quotation marks and citation omitted). Furthermore, despite plaintiffs opinion at trial that she did make a report, the lack of any specific detail provided to the BAYANET officer about Client A clearly demonstrates that plaintiff was merely making an inquiry, not a report. | [
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ON REHEARING
Before: K. F. Kelly, P.J., and Hood and Zahra, JJ.
Per Curiam.
This action seeking an order for superintending control comes to us on rehearing. We affirm this Court’s prior order denying plaintiff Family Independence Agency relief.
I. PROCEDURAL HISTORY
In August 1998, fourteen-year-old MJK was charged with second-degree criminal sexual conduct (esc n), accosting a child for immoral purposes, and indecent exposure. In January 1999, MJK pleaded guilty to the esc n charge, and the other two charges were dismissed. In its order of disposition, the court made MJK a temporary ward of the court.
On February 19, 1999, following a dispositional hearing, the family court referee issued a supplemental order of disposition recommending, in pertinent part, as follows:
The juvenile’s placement shall be changed to wj maxey - SUMMIT.
That [MJK] be continued as a temporary ward of this Court.
That [MJK] be committed to the State of Michigan Family Independence Agency under Public Act for future care and planning.
That [MJK] be immediately placed at Maxey Boys Training School to receive treatment as a sex offender.
That the Director of Boys Training School is ordered to accept [MJK] upon presentation of said minor and this Court Order.
* * *
That [MJK] shall be transferred from the caseload of . . . Juvenile Probation Officer, to the caseload of . . . delinquency worker at the Family Independence Agency.[ ]
On March 8, 1999, the fia appealed the family court’s dispositional order to this Court, arguing that the order violated MCL 712A.18(l)(e), as amended by 1998 PA 478, because it usurped the fia’s authority to determine the appropriate placement for the juvenile, particularly in light of the newly added language of the statute. This Court issued an order dismissing the appeal pursuant to MCR 7.216(A)(10) because the fta was not a party to the proceedings involving the juvenile. This Court’s order, however, stated that dismissal was without prejudice to the eta’s filing a complaint for superintending control. In re MJK, unpublished order of the Court of Appeals, entered April 26, 1999 (Docket No. 218041).
On May 12, 1999, the FTA filed a complaint for superintending control in this Court. Again, the fta maintained that the supplemental and amended orders violated subsection 18(l)(e) because they usurped the fta’s authority to determine the placement of the juvenile. On February 8, 2000, this Court peremptorily dismissed the eta’s complaint for superintending control. A panel of this Court concluded that the amended language of subsection 18(l)(e) deprived the fta of statutory authority to directly place juvenile offenders who are wards of the court, even though the court had also committed the juve nile to the care of the fia. On April 27, 2000, this Court granted plaintiffs motion for rehearing and directed the parties to proceed in the same manner as in an appeal of right. FIA v St Clair Family Court Judge, unpublished order of the Court of Appeals, entered April 27, 2000 (Docket No. 219442).
H. ANALYSIS
On this appeal, the issue presented is whether, under MCL 712A.18(l)(e), the family court has authority to determine the specific placement of a juvenile when it commits the juvenile to the FLA, but continues the juvenile as a court ward. This is an original action in this Court, presenting issues of statutoiy interpretation.
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). If the plain and ordinary meaning of a statute is clear, judicial construction is neither necessary nor permitted. Cherry Growers, Inc v Agricultural Marketing & Bargaining Bd, 240 Mich App 153, 166; 610 NW2d 613 (2000). We may not speculate regarding the probable intent of the Legislature beyond the words expressed in the statute. In re Schnell, 214 Mich App 304, 310; 543 NW2d 11 (1995). When reasonable minds may differ with respect to the meaning of a statute, the courts must look to the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the purpose of the statute. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994).
With those well-settled principles of statutory interpretation in mind, we agree with the prior panel of this Court that an order for superintending control is not warranted under these circumstances given the plain language of MCL 712A.18(l)(e). Section 18 provides, in pertinent part:
(1) If the court finds that a juvenile concerning whom a petition is filed is not within this chapter, the court shall enter an order dismissing the petition. Except as otherwise provided in subsection (10), if the court finds that a juvenile is within this chapter, the court may enter any of the following orders of disposition that are appropriate for the welfare of the juvenile and society in view of the facts proven and ascertained:
* * * .
(e) Except as otherwise provided in this subdivision, commit the juvenile to a public institution, county facility, institution operated as an agency of the court or county, or agency authorized by law to receive juveniles of similar age, sex, and characteristics. If the juvenile is not a ward of the court, the court shall commit the juvenile to the family independence agency or, if the county is a county juvenile agency, to that county juvenile agency for placement in or commitment to such an institution or facility as the family independence agency or county juvenile agency determines is most appropriate, subject to any initial level of placement the court designates. . . .
The FIA argues that because subdivision e allows the fia authority to place juveniles committed to the agency, the court’s conduct in the present case unduly usurped that authority. We disagree with the fia’s interpretation of § 18. Significantly, subdivision e begins with the plain statement: “Except as otherwise provided in this subdivision,” then goes on to provide that a court may enter an order committing a juvenile to the specific institutions or facilities it sees fit. Thus, the juvenile courts have been given general authority with respect to committing juveniles to the designated facilities and institutions. The only limitation on that authority is provided in the second part of subdivision e, stating “If the juvenile is not a ward of the court. ...” In such a case, the Legislature has required that the court commit the juvenile to the fia or, in limited instances, to the appropriate county juvenile agency.
In this case, the trial court’s dispositional order provides that MJK was to be continued as a court ward. Thus, under the plain language of subsection 18(l)(e), the limitation on the court’s general authority to place MJK in a specific institution or facility does not apply. Accordingly, the court had authority to “commit [MJK] to a public institution, county facility, institution operated as an agency of the court or county, or agency authorized by law to receive juveniles of similar age, sex, and characteristics.” We recognize that subdivision e does not specifically delineate a procedure to be followed in situations such as the present, where the court has continued the juvenile as a court ward and committed the juvenile to the fia. However, without a more specific directive from our Legislature, we cannot conclude that placement of the juvenile in this case is not within the sole discretion of the court as provided in the first sentence of subdivision e. To conclude otherwise would require us to look outside the plain, unambiguous language of the subsection 18(l)(e), which we are prohibited from doing in light of the doctrine of separation of powers and well-settled principles of statutory interpretation.
For the reasons discussed, this Court again orders the dismissal of the fia’s complaint for an order of superintending control.
Complaint dismissed.
On February 25, 1999, St. Clair Circuit Judge Robert R. Spillard entered an amended order, indicating that the applicable public act number was inadvertently omitted from the previous order. The court listed the public act number (Public Act 150), and ordered that the remainder of the February 19, 1999, order remain in full force and effect.
MCL 712A18, as amended, provides, in pertinent part:
(1) If the court finds that a juvenile concerning whom a petition is filed is not within this chapter, the court shall enter an order dismissing the petition. Except as otherwise provided in subsection (10), if the court finds that a juvenile is within this chapter, the court may enter any of the following orders of disposition that are appropriate for the welfare of the juvenile and society in view of the facts proven and ascertained:
* ** *
(e) Except as otherwise provided in this subdivision, commit the juvenile to a public institution, county facility, institution operated as an agency of the court or county, or agency authorized by law to receive juveniles of similar age, sex, and characteristics. If the juvenile is not a ward of the court, the court shall commit the juvenile to the family independence agency or, if the county is a county juvenile agency, to that county juvenile agency for placement in or commitment to such an institution or facility as the family independence agency or county juvenile agency determines is most appropriate, subject to any initial level of placement the court designates .... [Amended language italicized.]
This Court’s order provides, in pertinent part, as follows:
Pursuant to the plain language of MCL 712A.18(l)(e); MSA 27.3178(598.18)(1)(e), as amended by 1998 PA 478, the authority to direct placement of a juvenile offender is generally dependent in the first instance on whether the juvenile is a ward of the court. Pursuant to § 18(1) and the first sentence of subsection 18(l)(e), “the court” may “commit the juvenile to a public institution, county facility, institution operated as an agency of the court or county, or agency authorized by law to receive juveniles of similar age, sex, and characteristics.” However, [i]f the juvenile is not a ward of the court, the court shall commit the juvenile to the family independence agency ... for placement in or commitment to such an institution or facility as the family independence agency . .. determines is most appropriate, subject to any initial level of placement the court designates” (emphasis added). In the present matter, the family court’s February 19, 1999, supplemental dispositional order expressly stated “That [MJK] be continued as a temporary ward of this Court." Accordingly, while the Family Independence Agency may have statutory authority to direct placement of certain juvenile offenders who are not wards of the court, it has no such authority over juveniles who are wards of the court, such as juvenile [MJK]. [FIA v St Clair Family Court Judge, unpublished order of the Court of Appeals, entered February 8, 2000 (Docket No. 219442) (emphasis in original).]
Subsection 18(l)(d) provides a court specific authority to commit a juvenile to the fia. That subdivision states, in part, that a court may issue an order to “place the juvenile in or commit the juvenile to a private institution or agency approved or licensed by the department of consumer and industry services for the care of juveniles of similar age, sex, and characteristics.” MCL 712A.18(1)(d).
Given that the text of subsection 18(l)(e) appears not to contemplate the present situation, we urge the Legislature to consider whether it intends for the court or the FIA to have ultimate authority in placing a juvenile when the court continues wardship and commits the juvenile to the fia. We note that the fia contends the present situation is prevalent and the absence of a specific directive in these circumstances has led to significant practical problems. According to the fia, court-ordered placements have the problematic effect of “leapfrogging” other juveniles currently on waiting lists to enter certain placement programs. | [
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] |
R. J. Danhof, J.
Plaintiff Tony J. Daniel appeals by leave granted from the December 9, 1999, opinion and order of the Worker’s Compensation Appellate Commission (wcac) reversing the magistrate’s award of worker’s compensation benefits. We reverse the wcac’s order.
I FACTS and proceedings
Plaintiff began Ms employment as a probation officer with defendant Department of Corrections in November 1984. As part of Ms employment, plaintiff supervised convicted felons to ensure compliance with probation orders. Several times a month plaintiff was reqMred to attend probation violation hearings held in the circrnt court, where he woMd interact with . the defense attorneys representing the probationers.
According to the record, one of the incidents giving rise to the instant proceedings occurred on August 30, 1994, when plaintiff attended the Kent Circrnt Court for a parole violation hearing. On that day, plaintiff made an inappropriate remark to the female public defender representing the probationer. According to the attorney, plaintiff asked her, “[d]o you want to f..k?” When the attorney rebuffed plaintiff’s advances, he told her he was married and if they had an affair it woMd have to be discreet. Later that day, plaintiff sent the attorney a note in court, telling her that she woMd have to lose ten pounds before an affair coMd begin.
On February 10, 1995, plaintiff appeared in court for another parole violation hearing with the same female attorney. According to the attorney, plaintiff made reference to Ms earlier sexual advance in August 1994, and renewed Ms request for an affair. Specifically, plaintiff told the attorney, “All I told you was that you had to lose ten pounds.” Plaintiff also told the attorney, “you want me, you know you want me.”
The attorney subsequently complained about plaintiffs unprofessional conduct to his immediate supervisor, Jayne Price, in February 1995. Three other female attorneys followed suit, also alleging sexual harassment by plaintiff. After notifying plaintiff of the allegations, Price conducted an investigation by interviewing the attorneys and other witnesses. Plaintiff categorically denied each and every allegation of sexual harassment. After conducting her investigation, Price recommended to her area manager, Lois Patten, that a disciplinary conference be held regarding five separate counts of sexual harassment. These counts encompassed the August 30, 1994, incident, the February 10, 1995, incident, as well as allegations that plaintiff sexually harassed two other female attorneys on separate occasions in 1994.
A disciplinary conference was held on June 20, 1995. Present at the conference were plaintiff, a representative from his union, Price, and probation manager Jim Newell, who presided over the conference. On the advice of his union representative, plaintiff did not testify at the disciplinary conference, but continued to deny sexually harassing the attorneys. Following the conference, Newell made the following observations in a memorandum to Patten dated June 21, 1995:
After thoroughly reviewing the investigator’s report, complainants’ statements, and employee Daniel’s response to questions presented [to] him by the investigator, it is my conclusion that there is a strong basis on which to conclude that the [Michigan Department of Corrections] Work Rules were violated in the manner described in all five counts.
For reasons unclear from the record, plaintiff was subsequently disciplined for only two of the counts of sexual harassment with which he was originally charged. On July 24, 1995, plaintiff was notified in a memorandum by regional administrator Noreen Sawatzki that he was suspended for ten days “due to [plaintiff’s] violation of The Department of Corrections Work Rules number 9 and number 12 on August 30, 1994, and February 10, 1995.”
Plaintiff returned to work in August 1995 following his ten-day suspension without pay. In January 1996, plaintiff began treatment with psychologist Daniel DeWitt, Ph.D., and was diagnosed as suffering from depression. Plaintiff thereafter took a leave of absence from work beginning February 2, 1996. During trial, plaintiff testified that he could not work because he felt that his life was “out of control.” Plaintiff attributed his depression to Price’s not being supportive of him following the suspension and to the “strained” atmosphere he experienced with the attorneys that had accused him of sexual harassment.
In June 1996, plaintiff filed a claim for worker’s compensation benefits, alleging that he incurred a mental disability arising from the disciplinary proceedings. After four days of trial, the worker’s compensation magistrate made the following observations:
It is clear to me that [p]laintiff’s problems started with his discipline for the improprieties of which he was accused. It is difficult to have much sympathy for this claimant, since he brought these troubles on himself by his own misconduct. But compensation, like the rain, falls on the just and the unjust alike.
The magistrate also found that plaintiff’s allegations that he was harassed by the female attorneys following his ten-day suspension were not credible. Finding that “[p]laintiff’s discipline, and post-discipline employment events up to February 2, 1996, contributed in a significant manner to [plaintiff’s] development of a disabling condition of depression, anxiety, and uncontrolled anger,” the magistrate awarded benefits to plaintiff.
On appeal to the wcac, defendant argued as an affirmative defense that plaintiff was precluded from recovering benefits because he was injured by reason of his intentional and wilful misconduct. See MCL 418.305. The wcac, in a 2 to 1 decision, agreed, holding that although plaintiff’s mental disability arose out of and in the course of his employment, MCL 418.301(1), he should not receive compensation because his misconduct prompted the disciplinary proceedings that caused his injury. Plaintiff chai lenges the wcac’s determination that § 305 operates to bar his claim for worker’s compensation benefits.
n. STANDARD OF REVIEW
This Court’s review of a decision by the wcac is limited. Maxwell v Procter & Gamble, 188 Mich App 260, 265; 468 NW2d 921 (1991). In the absence of fraud, we must consider the wcac’s findings of fact conclusive if there is any competent evidence in the record to support them. MCL 418.861a(14); Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 701; 614 NW2d 607 (2000). However, questions of law in a worker’s compensation case are reviewed de novo and the wcac’s decision may be reversed if it was based on erroneous legal reasoning or the wrong legal framework. DiBenedetto v West Shore Hosp, 461 Mich 394, 401-402; 605 NW2d 300 (2000); MCL 418.861; MCL 418.861a(14). Questions of statutory construction are reviewed de novo. Adams v Linderman, 244 Mich App 178, 184; 624 NW2d 776 (2000).
EL ANALYSIS
The Worker’s Disability Compensation Act (wdca), MCL 418.101 el seq., provides compensation for persons suffering injuries arising out of and in the course of employment. MCL 418.301. Unquestionably, the act is to be “liberally construed to grant rather than deny benefits.” DiBenedetto, supra at 402 (citations and internal quotation marks omitted). However, MCL 418.305 provides: “If the employee is injured by reason of his intentional and wilful misconduct, he shall not receive compensation under the provisions of this act.”
Defendant in this case concedes that plaintiffs injury arose out of and in the course of his employment. However, the WCAC erred in its interpretation of MCL 418.305. There is no question that plaintiff acted voluntarily and that he was disciplined because of his acts. However, the connection between the acts and the injury was too attenuated for the injury to have occurred “by reason of” his acts, and his behavior did not comprise “intentional and wilful misconduct” as contemplated by MCL 418.305 and defined by the courts.
The wcac found that plaintiff’s injuries resulted from the discipline imposed by his employer. It then went on to determine that, because plaintiff’s own alleged act triggered the discipline, MCL 418.305 precluded awarding him benefits. The wcac interpreted “by reason of” to extend to the ultimate source of the injury. Basically, this interpretation means that although plaintiff’s act, by itself, did not result in injury (as it might have if his alleged target had retaliated physically), the discipline imposed should have been foreseen and was an obvious and expected outcome of the act, and it either merged with the act or formed an unbroken link between the act and the injuiy. The WCAC made only conclusory statements without factual support that the discipline was foreseeable and inevitable, and it did not discuss whether foreseeability should be determined by the application of either an objective or a subjective standard. The WCAC repeatedly asserted that plaintiff knew he would be disciplined. However, plaintiff has insisted since 1995 that he did nothing wrong, that he made no offensive comments. His victims allege that he made offensive comments multiple times, but until 1995, plaintiff had suffered no adverse consequences from his behavior. The wcac has the power to engage in qualitative and quantitative analysis of the whole record and make independent findings of fact, but in this case nothing in the record supports its finding either subjectively or objectively. Mudel, supra at 702-703.
Whether plaintiff obviously would be disciplined is simply not the point. If plaintiff had not been an employee, his act would not have resulted in injury. He was injured solely because of his status as an employee; clearly plaintiff was not injured at the time of his act. The wcac found that plaintiff’s injury was the “direct result of his intentional and wilful misconduct” and that plaintiff’s injury “naturally flow[ed] from that wrongful conduct.” But the same could be said about any of the cases where workers’ “horseplay” or escalating aggression led to injuries, such as Crilly v Ballou, 353 Mich 303; 91 NW2d 493 (1958), and Andrews v General Motors Corp, 98 Mich App 556; 296 NW2d 309 (1980). In both cases, compensation was granted because the question of “who started it?” was inapposite to the intention of the wdca. Crilly, supra at 322-324; Andrews, supra at 559-561. We thus find in this case that plaintiff’s injury did not occur by reason of his conduct.
Furthermore, we do not find plaintiff’s acts rise to the level of “intentional and wilful misconduct” contemplated by MCL 418.305. A phrase that has acquired a unique meaning at common law is interpreted to have the same meaning when used in a statute dealing with the same subject. Pulver v Dundee Cement Co, 445 Mich 68, 75; 515 NW2d 728 (1994). The Legislature is presumed to act with knowledge of appellate court statutory interpretations. Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505-506; 475 NW2d 704 (1991); Glancy v Roseville, 216 Mich App 390, 394; 549 NW2d 78 (1996), aff’d 457 Mich 580; 577 NW2d 897 (1998). Thus, silence by the Legislature for many years following judicial construction of a statute suggests consent to that construction. Craig v Larson, 432 Mich 346, 353; 439 NW2d 899 (1989); Glancy, supra at 394-395. The language of the current MCL 418.305 has remained virtually unchanged since its original enactment in 1912. See 1912 (1st Ex Sess) PA 10, part II, § 2. It is logical to conclude that the Legislature intended to adopt the judiciary’s interpretation of the requirement. Pulver, supra at 75.
In this context, “intentional and wilful misconduct” is not defined by the statute, but the phrase has been interpreted in this state to encompass acts of “gross and reprehensible nature,” “the type of case where a claimant arms himself with a gun, knife or block of wood and pursues a fellow employee, or an employer, with the apparent ability to inflict harm,” “moral turpitude, which is defined as an act of baseness, vileness, or depravity,” and “the intentional doing of something with knowledge that it is dangerous and with a wanton disregard of consequences.” Crilly, supra at 327; Andrews, supra at 560-561 (citations and internal quotation marks omitted); Fortin v Beaver Coal Co, 217 Mich 508, 510; 187 NW 352 (1922). Plaintiff’s alleged behavior, although voluntary, crude, and unprofessional, did not rise to this level. The wcac found plaintiff in violation of the Michigan Civil Service Rules, but mere violation of a work rule is not enough, especially if the rule was not strictly enforced. Allen v Nat’l Twist Drill & Tool Co, 324 Mich 660, 664; 37 NW2d 664 (1949); Michalski v Central Window Cleaning Co, 292 Mich 465, 466-467; 290 NW 870 (1940); see also Shepard v Brunswick Corp, 36 Mich App 307, 311; 193 NW2d 370 (1971). Plaintiff’s history of conduct in this case indicates that the rule was not strictly enforced and there are no facts in the record indicating otherwise.
Finally, we note that Calovecchi v Michigan, 461 Mich 616; 611 NW2d 300 (2000), does not control the instant appeal because it did not interpret MCL 418.305. However, the decision in that case does have relevance to the present case. In Calovecchi, the plaintiff, a state trooper, was the subject of an internal investigation arising from allegations that he assaulted his wife and drew a gun on his stepson. Calovecchi, supra at 618. The plaintiff subsequently alleged that he suffered a mental disability after defendant took away his badge and placed him on administrative leave. Id. at 620. The allegations against the plaintiff were then dismissed for unstated reasons. That fact distinguishes Calovecchi from the present case, because here, as the wcac succinctly noted, “plaintiff actually did it.” That distinction is significant, not because the two cases are different, but because they are similar. Under the wcac’s reasoning, a juxtaposition of these two cases would mean that when a plaintiff has suffered a mental injury because of an employer’s disciplinary proceedings, if the charges are dismissed the worker may collect compensation. If they are not, the worker is denied compensation because of wilful misconduct. Because the employer determines whether the plaintiff was guilty of the charges, the wcac’s decision encourages a finding of guilt, especially regarding an unsympathetic or “difficult” employee. An employer may even discipline less tactfully, knowing that an injured employee can be denied compensation because the injury can ultimately be traced to the employee’s own act. The focus thus shifts from the cause of the injury to the guilt of the employee, the appropriateness of the discipline, and the employee’s reaction to it. This improperly forces the consideration of fault and other issues the wdca was designed to avert.
The wcac erred in its conclusion because “by reason of” does not extend to the origin of the chain of causation but only to the direct cause of the injury. The wcac also erred in applying MCL 418.305 because plaintiff’s acts, as they appear in the record, do not amount to “intentional and wilful misconduct” as contemplated by the statute. Thus, even if the wcac had found evidence that the rule plaintiff violated was strictly enforced, and that plaintiff’s conduct rose to “intentional and wilful misconduct” as defined by the courts, the statutory requirement of causation is still not met. Any other interpretation in this case contravenes the purpose and spirit of the wdca.
Reversed.
Neff, P.J., concurred.
Plaintiff was alleged to have told one female attorney that he was attracted to Caucasian women and that he was turned on by a woman’s thighs. Plaintiff also asked the attorney if she would date a black man. Plaintiff was also alleged to have asked another attorney, who was pregnant at the time, if she was having a boy or girl. When she indicated that she thought she was having a girl, plaintiff allegedly told her “too bad, a boy means you had deep penetration.”
According to the record, Michigan Department of Corrections Work Rule 9 prohibits “[s]peech, action, gesture or movement that causes physical or mental intimidation, humiliation, or harassment.” Michigan Department of Corrections Work Rule 12 prohibits “conduct of an employee which may adversely affect the reputation of the Department. . . .”
According to the record, DeWitt authorized plaintiff to return to work in March 1996, but not to his same job because contact with his accusers would exacerbate his symptoms. Defendant refused to comply with that request. | [
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Butzel, J.
In Sullivan v. Sullivan, 170 Mich. 557 (1912), this court modified a decree of the circuit court for the county of Monroe in chancery, granted on July 8, 1910. The decree as modified awarded the sum of $500 to the plaintiff for permanent alimony and in lieu of all dower rights and interest in defendant’s real estate, and impressed a first lien upon the homestead farm therein described for payment of such amount. It likewise ordered defendant to pay the sum of $20 per month for the support of two minor children of the parties, such amounts to be a lien upon the land thereinbefore described. The reason given in the opinion for the small amount awarded plaintiff was that the record supported the finding of the trial judge that plaintiff had more property of her own than was possessed by defendant, and that defendant owed a large sum of money so that his net equity was very small. On June 9, 1941, approximately 29 years after the rendition of the decree of this court, plaintiff Leonora began the instant equity suit against defendant Daniel F. Sullivan. The sole piece of property herein involved is the same farm which was the homestead of the parties. Plaintiff in the new bill of complaint now claims that this farm was owned by the entireties. The present bill of complaint was dismissed because the enforcement of the lien was barred by the statute of limitations. As the bill was dismissed on motion without taking testimony, we must assume that there is some merit to the contention by plaintiff that the propertywas held by the entireties.
Plaintiff annexed to the bill of complaint as exhibit 1 the divorce decree of the trial court but not that of this court. It will be noted that in its description of the real estate involved herein, the decree states that the property was conveyed to defendant and not to plaintiff and defendant on June 18,1887. In the records and briefs filed in this court in the case decided in 170 Mich. 557, it appears very definitely that the property in question was owned by defendant alone. If this impression be mistaken, however, because of other conveyances, opportunity for correction and safeguarding plaintiff’s rights is herein provided for.
Assuming, however, that there may be proof that the parties became owners of the farm by entireties, they would have become tenants in common on granting of the divorce unless the ownership- thereof was otherwise determined by the decree. 3 Comp. Laws 1929, §12767 (Stat. Ann. §25.132). Then again, if they did become tenants in common, as stated in Walton v. Walton, 287 Mich. 557, neither party would be obligated to pay rent to the other unless the rent was collected from a third party in which event they would each be entitled to one half of the net rent. Also, see Vobless v. Weisenthal, 293 Mich. 565. If the rent was received from a third party, it would-be recoverable by plaintiff from defendant by action at law in accordance with 3 Comp. Laws 1929, §13496 (Stat. Ann. § 26.1108). Inasmuch, therefore, as the bill in equity herein filed insofar as it prays for an accounting of rents and profits is but a substitute for a legal proceeding, the statute of limitations would preclude recovery for her share of the proceeds for rent from third parties for more than the last six years. People, ex rel. Attorney General, v. Railroad Co., 145 Mich. 140.
The present bill of complaint also seeks payment of the $500 and interest which the decree awarded in lieu of dower and permanent alimony under the following statute (3 Comp. Laws 1929, § 12747 [Stat.
Ann. '§ 25.105]), the language of which it closely follows :
“In all cases where alimony or allowance for the support and education of minor children shall be decreed to the wife, the amount thereof shall constitute a lien upon such of the real and personal estate of the husband as the court by its decree shall direct, and in default of payment of the amount so decreed the court may decree the sale of the property against which such lien is decreed in the same manner and upon like notice as in suits for the foreclosure of mortgage liens; or the court may award execution for the collection of the same, or the court may sequester the real and personal estate of the husband and may appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate to be applied to the payment thereof.”
Plaintiff seeks foreclosure of the lien upon the farm of defendant. The $500 award was at least in part in lieu of dower. The familiar rule, reiterated in McFarlane v. McFarlcme, 298 Mich. 595, that an award wholly or partly in lieu of dower and satisfaction of the wife’s claim in her husband’s property is only a money decree whereon the sole direct recovery is by action at law, is no obstacle to the present bill, which seeks indirect and ancillary relief under the statute above quoted in asking for foreclosure of a lien, execution] sequestration, appointment of a receiver, and application of rents, profits and income. But these forms of remedy are barred by lapse of time.
1. The prayer for foreclosure. The clause in the above statute authorizing sale of the lien-bound land “in the same manner * * * as in suits for the foreclosure of mortgage liens” was added to that statute for the first time by Act No. 197, Pub. Acts 1897,18 years after the enactment of the first statute of limitations barring suits to foreclose mortgages after 15 years from the due date thereof, or the last payment thereon. Act No. 204, Pub. Acts 1879, was reenacted in all material particulars in Act No. 314, chap. 9, § 12, Pub. Acts 1915 (3 Comp. Laws 1929, § 13975 [Stat. Ann. § 27.604]). It may be fairly presumed, therefore, that in enacting the former statute, .the legislature intended the limitation of time prescribed by the latter to apply to the newly-created proceedings. As to the presumption that such was the legislative intent in enacting Act No. 197, Pub. Acts 1897, see Ulman v. Ulman, 148 Mich, 353, 355.
2. The prayer for execution. This is the only in personam remedy given by the statute or prayed for by the bill. The proper statute of limitations applicable to this head of relief is the 10-year statute (3 Comp. Laws 1929, § 13976, subd. 1 [Stat. Ann. § 27.605]). So much is clearly established by Dewey v. Dewey, 151 Mich. 586 (see headnote 1).
3. The prayers for sequestration, appointment of a receiver and application of rents, profits and income. Unless it be held that these heads of relief fall under “actions founded upon judgments or decrees” and therefore fall under the same 10-year statute of limitations as was held applicable to executions in Dewey v. Dewey, supra, there is no statute specifically directed to these two remedies. But none is needed. They are equitable in nature, and, as such, subject to the plea of laches independently of any statute of limitations. A clearer case of laches would be hard to find, for here the unexcused delay lasted almost 30 years.
On a continuing decree providing for the accrual of successive instalments the statute of limitations bars recovery either in personam or in rem, as by lien foreclosure, of all payments that became due prior to the time when the statute began to run. Field v. Loveridge, 114 Mich. 220; Dewey v. Dewey, supra. Also, as recognizing the equitable defense of laches in other types of matrimonial causes, see Zoellner v. Zoellner, 46 Mich. 511, and Smith v. Smith, 246 Mich. 80.
Plaintiff, however, claims that she never lost her dower interest in the property. The decree does not require her to release her dower until the $500 has been paid, and she has never done so. The divorce was granted because of the misconduct of the husband and under 3 Comp. Laws 1929, § 12746 (Stat. Ann. §'25.104), the right of dower became fixed by the divorce the same as if the husband had died. This right, however, even though never released, became barred by the statute of limitations (3 Comp. Laws 1929, § 13964, subd. 3 [Stat. Ann. § 27.593]). Moross v. Moross, 132 Mich. 203.
The decree of the trial court dismissing the bill is affirmed, but without prejudice to the right of plaintiff, if she has proof that the property was held by the entireties, to file an amended bill for accounting only, or for partition and accounting. Should she not file such an amended bill within 60 days from date of the filing of the opinion in this court, or should she not prevail on hearing of such cause, then defendant shall be entitled to the costs of this court.
Chandler,, C. J., and Boyles, North, Starr, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit.
See 3 Comp. Laws 1929, § 13976, as last amended by Aet No. 193, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 13976, Stat. Ann. 1941 Cum. Supp. § 27.605).—Reporter. | [
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Steere, J.
On November 20, 1913, John N. Curtis, husband of plaintiff, sustained an accidental injury while in defendant’s employ by which he was incapacitated for the work in which he was engaged until December 10, 1913, when he returned and continued in defendant’s service until some time in January, 1914, quitting, as defendant claimed, because most of its employees were laid off at that time owing to weather conditions and there was no further work for him to do. How steadily he worked after returning is a matter in dispute. When he returned to work on December 10, 1913, an agreement was entered into between him and defendant in regard to compensation for his injuries under provision of the employers’ liability act, measured by one-half his average weekly wages during the period he was absent and incapacitated for work by reason of the accident. The agreement, signed by the respective parties, stated the nature of the accident and his injuries as follows:
“A ditch caved in and bruised said John Curtis about the lower limbs and strained one knee.”
This settlement was approved by the industrial accident board and the stipulated compensation paid. A year later, on December 6, 1914, Curtis made application to the industrial accident board to reopen the case, claiming he was misled into signing the settlement agreement and receipt for payment as specified, requesting a hearing and further allowance of compen sation. The board entertained this petition and proceeded to take testimony under it, including that of Curtis himself, who died on February 11, 1915, while the matter was yet pending. Notice of his death was filed in the case and mailed to defendant, after which an administrator of his estate was appointed, on April 19, 1915. On September 23, 1915, -the industrial accident board made an award granting to decedent’s estate, or its legal representative, compensation at the rate of one-half his weekly wages from the time of the last payment until the date of his death, or for 54 weeks in addition to that previously paid under the approved agreement. Defendant thereupon removed the case to this court for review by certiorari and the award was affirmed on December 22, 1916 (Curtis v. Slater Construction Co., 194 Mich. 259).
On February 2, 1917, plaintiff filed with the industrial accident board and served on defendant a claim for compensation because of the accidental death of said John N. Curtis while in defendant’s employ, made as dependent widow of deceased according to the form adopted by the accident board for that purpose.
Defendant denied liability, filing and serving its grounds of contest and an arbitration hearing was thereafter had before Fred A. Zierleyn, a deputy commissioner of the board authorized to act in the matter as chairman, at which hearing representation of the committee of arbitration was waived by stipulation of the parties. The proofs and allegations of the parties having been heard and submitted by consent to said deputy commissioner acting as a committee of arbitration, a decision was thereafter rendered in favor of defendant, and claim for review before the full board was then filed by plaintiff. Upon such review, without taking further testimony, the board by a majority opinion reversed the arbitration decision and made an award to plaintiff of one-half deceased’s weekly wages for 300 weeks, less that already paid, or awarded, to his' estate. A dissenting opinion was filed by the chairman of the industrial accident board, based chiefly on the ground that plaintiff had not made claim for compensation within six months of the death of her husband, at which time her right of claim first arose distinct from that made by him in his lifetime. This view seems to find support and precedent in a former ruling of the board reported in its Michigan Workmen’s Compensation Cases (of 1916),, page 430, where it is held that in case of death of the injured employee after approval of an agreement with him in regard to compensation, no right of claim existed to his widow or other dependents until his death, out of which it arose as a “new right of action, * * * in no way affected by any agreement or action of the deceased,” and
“In disputed cases where it is contended that the death was not the result of the injury, or where other defenses are interposed, the widow or the dependents are entitled to make application for arbitration, as the case is an original one not affected by the agreement in regard to compensation made by the deceased before his death.”
It is undisputed that the case of John Curtis against defendant came under jurisdiction of the industrial accident board in the first instance only by virtue of the agreement with him in regard to a settlement, which it approved, and but for jurisdiction thus acquired the board could not have entertained his belated application made nearly a year later for additional compensation.
Defendant’s various contentions center upon the two propositions that there is no evidence in the record to support the board’s finding that deceased’s death resulted from an accidental injury; and no claim for compensation was made by plaintiff within six months after his death as required by section 15, part 2, of the act (2 Comp. Laws 1915, § 5445).
Curtis was about 64 years of age at the time of his decease. The medical certificate of his death, dated February 13, 1915, gave the cause of death as follows: “Bright’s disease, contributory (secondary) partial paralysis of lower extremities.” His physician, who signed this certificate, had been called to attend him about a year after his accident and testified that he found him afflicted with a partial paralysis of his lower limbs which subsequently resulted in his death; that from the history of the case as he learned it, together with deceased’s condition as he diagnosed it, he was of the opinion that the partial paralysis he found resulted from the accident of over a year before, upon which deceased’s and, later, plaintiff’s claims were based. This opinion was controverted by a physician who visited deceased shortly after the accident and by other expert testimony. Much of the testimony in both cases was devoted to this issue of fact and runs along similar lines, being there directed to the cause of deceased’s then condition, in relation to which he testified, and here to the cause of his death. The point is stressed for plaintiff that in the case of John Curtis against defendant, both the industrial accident board and this court found that he was “totally disabled as a result of accident,” and “rightly paid compensation up to the time of his death,” which apparently is assumed as the starting point for inquiry into plaintiff’s rights. This court did not pass upon, and could not decide, any issues of fact, as to which the finding of the board is made conclusive by statute when supported by any competent testimony. It was there found that the testimony of Curtis and his physician gave support to the finding of the board and the award was affirmed, since, as said in Redfield v. Insurance Co., 183 Mich. 633, “unless there was no proof to support the finding of fact, this court has no power to interfere.”
The question of whether there is any proof to support the finding that deceased’s death resulted from the accident, which is elaborately argued in the briefs of counsel seems, however, on this record secondary to the more direct and serious question of an intervening statute of limitations. Under section 7, part 2, of the act (2 Comp. Laws 1915, § 5437), by authority of which this claim is made, no dependent of an injured employee can be deemed during the employee’s life a party in interest to any proceeding by him for enforcement of any claim for compensation, nor as respects compromise thereof by the injured employee. From this it would seem to follow, in harmony with the previous ruling of the board above referred to, that, not being a party in interest to the proceeding by her husband during his lifetime, plaintiff’s subsequent claim, or “new cause of action” arising from his death, was not beneficially or detrimentally affected through anything done by him in his proceeding, except a possible reduction of her claim by reason of payments actually made to him. Aside from this, whether her husband’s death immediately followed the accident or he lived to institute proceedings for compensation in his own behalf, her claim based on a new, original right arising from his death was the same. She admits and it is undisputed that the first and only direct claim made upon defendant by her after her husband’s death for compensation in compliance with the act was in 1917, about 22 months after her husband’s death in February, 1915.
By section 15, part 2, of the act (2 Comp. Laws 1915, § 5445), no proceedings for compensation can be maintained unless the claim therefor is made within six months after the accident “or, in case, of death of the employee, or in the event of his physical or mental in capacity, within six months after death or the removal of such physical or mental incapacity.” The limitation of time for making claim for compensation in case of death, whether contemporaneous with the accident or later, is plainly expressed without qualification or exception. This court has had occasion in several recent cases to consider the provisions of this section in various aspects, • emphasizing its mandatory character as a statute of limitations. Podkastelnea v. Railroad Co., 198 Mich. 321; Cooke v. Furnace Co., 200 Mich. 192; Kalucki v. Foundry Co., 200 Mich. 604; Dane v. Traction Co., 200 Mich. 612; Schild v. Railroad Co., 200 Mich. 615; Peterson v. Fisher Body Co., 201 Mich. 529. Notice of the injury and claim for compensation are separately mentioned in the act and both are required, the first to be given the employer within three months and the second made within six months.
The following notice of death was filed with the board by deceased’s attorney, and a copy mailed to defendants at the same time, as he testified, but receipt of which is denied:
“Before the Honorable the Industrial Accident Board.
“John N. Curtis v. Slater Construction Co.
“Take notice that your petitioner John N. Curtis died last night from his injuries.
“DeHull N. Travis,
“Attorney for Petitioner.”
Although defendant denied receipt of any such paper the board in its majority opinion found as a fact it was mailed to the defendant, and expressed the belief, or assumed “that the respondent received it in the ordinary course of mail,” construing it as follows:
“We think that notice constituted a claim on the part of the dependent wife to the effect that she intended to claim compensation on account of the death of her husband, if indeed any claim was necessary at all under the circumstances of this case.”
We find no legal ground for so construing this brief notice. The significant circumstances were the death of an injured employee during the pendency of his claim for compensation, giving rise, as the board once held, to a new and original cause of action or claim in favor of his widow. The notice makes no reference to her or any claim in her behalf, or any new cause of action. It is entitled in and relates to the cause of action or claim for compensation by John N. Curtin, named as petitioner, then pending before the board, and is signed by his counsel as “Attorney for Petitioner.” It was a valid suggestion of death in that case and was followed by continuance of that proceeding in the name of his administrator to recover compensation claimed due him at the time of his death; but conceding it might serve as a notice of accidental death in compliance with the' statute, preliminary to a claim by her for compensation arising by reason of her husband’s death, it was but a notice of that event with no reference to her or suggestion of a new claim by her against defendant independent of the one then pending.
In support of the ruling that a claim by plaintiff within six months after the death was not required, the case of Moffat v. Crow’s Nest Pass Coal Co., 7 B. W. C. C. 1040, is cited wherein it was held, under the workmen’s compensation act of British Columbia, that where the injured workman had instituted proceedings for compensation and died about two weeks later his dependents could continue the proceeding without fresh claim or notice. The British Columbia act, though containing a provision similar to the Michigan act as to claim and notice, provides further that want of notice, or any defect or inaccuracy in that connection shall not be a bar to the maintenance of such proceeding if it appears that the employer was not prejudiced in his defense thereby, thus giving latitude to the arbitrator for exercise of discretion in that par ticular and evidently with the death occurring so soon after the accident it so appeared; neither does the act of that province provide that the widow or other dependents shall not be parties in interest in proceedings instituted by him. That act varies from other restricting features found in the Michigan act, in connection with which under former decisions of this court the statutory limitation under consideration has been held mandatory.
Under the plain requirement of our statute it was incumbent on plaintiff to make claim for compensation within six months from February 11, 1915. She having failed to do so, the award of the industrial accident board appealed from was without jurisdiction and cannot be sustained.
The order is therefore reversed and the award set aside, with costs to appellant.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Bird, J.
Defendant being the owner of No. 50 Melbourne avenue, in the city of Detroit, leased the same on September 30,1915, to plaintiff for one year at $60 a month. In the lease the following option to purchase the premises was inserted:
“The second party is given the option to at any time purchase, during the term of this lease, the herein described premises for the sum of eight thousand ($8,000) dollars.”
On September 25, 1916, nearly a year afterward, plaintiff had some talk with defendant at her apartment concerning the purchase of the premises, in which he offered to pay her $100 a month on the purchase price. She declined this suggestion as well as his later suggestion that she accept in payment certain bonds which he owned. He went away and on the same day wrote her the following letter, but did not mail it until September 27th:
“Under the terms of the lease under date of September 30, 1915, between yourself and myself for the premises known as No. 50 Melbourne avenue, Detroit, Michigan, I am given the option to purchase said premises on or before September 30, 1916. Exercising my option, this is to advise you that I am ready to purchase the property, according to the terms of said lease. Kindly have the necessary papers ready for delivery at your earliest convenience and advise me.”
To this letter defendant made no reply. On September 30th plaintiff wrote her another letter, which reads:
“I am herewith enclosing check ($100) to apply on the purchase price of the house and lot known as 50 Melbourne avenue, Detroit, Michigan, along the lines talked early in the week.”
On' October 2d the defendant, through her attorney, returned the check to plaintiff, at the same time advising him that the defendant did not care to sell the property. Defendant soon thereafter commenced proceedings to eject plaintiff, whereupon he filed the bill in this cause praying for a specific performance of his contract.
When the proofs were all before the chancellor he was not persuaded that plaintiff was entitled to a specific performance of the contract and accordingly denied him relief.
Among the grounds, assigned by him for his conclusion was the following:
‘T find equity would demand .a tender of the money, by plaintiff, and demand of a deed, before bringing this action, or at least an assurance that the money was deposited or arranged for, before defendant would have to proceed.”
Whether it was necessary for plaintiff to purchase or tender the purchase price within the life of the option in order to entitle him to the relief of specific performance is the important question in the case. There is much law on the question and one upon which' an apparent disagreement exists among the courts. A close analysis of the great variety of circumstances under which the cases have arisen might and doubtless would dispel much of the apparent discrepancy. This much is certain, however, if time was of the essence of the contract and the tender of the purchase price within the life of the option was a condition precedent to entitle plaintiff to maintain a suit for specific performance, the chancellor’s conclusion is the correct one. In Breen v. Mayne, 141 Iowa, 399, 403, in considering a rule to be applied to such cases, suggests the following:
“The only fixed rule regarding the manner of the exercise of an option under a contract granting it, is to discover from the language of the instrument, construed in the light of competent parol testimony, the intent of the parties with reference thereto. It may •be that under the terms of a given option the only proper and binding method of election or acceptance is by the payment or a ténder of the purchase price. On the other hand, there are many cases where the option may be exercised in parol or by any other method indicating an election to take the land — the payment of the purchase price and the making of the deed being subsequent matters in performance of a binding contract. In the one case, there is an election to sell, upon payment of the purchase price, which is a condition precedent to the foundation of the contract ; and in the other there is an election to take the land upon the terms proposed, payment of the purchase price being a condition subsequent, or rather the performance of an' executory contract theretofore entered into.”
In Stembridge v. Stembridge, 87 Ky. 91, a case much like the present one on the facts, where a wife agreed with the husband to convey to him a certain interest in a tract of land covered by a mortgage, if the latter would pay a certain amount on the mortgage' ' debt when due, the court said:
“In cases of executory sales of land, that is, where the purchaser by terms of the contract receives a present interest in the land, courts of equity will not ordinarily regard time as of the essence of the contract ; they will not divest the party of his title on the mere ground that he has not kept his contract to the day; but where, as in this case, the contract invests the one party with no title whatever, imposes no obligation upon him, leaves it optional with him to do a certain thing at a specified time, in such a case, time, in the broadest sense of the rule, is of the essence of the contract, and the failure of such party to comply ‘with its terms deprives him of the right to demand the enforcement of the contract.”
The ease of Kerr v. Purdy, 51 N. Y. 629, an option was included in a lease as here, the option being in substance: That George W. Purdy leased to George A. Kerr certain premises for a term of five years, the lease containing a clause giving the lessee the privilege of purchasing at any time within the first three years by paying all arrears of rent and $10,000. It appeared upon the trial that plaintiff was in arrears for rent, and did not make a tender, but did make arrangements to procure the money and before the expiration of the three years notified defendants that he intended to purchase their respective shares and requested deeds of the same. Specific performance of this contract was denied, it being held:
“That the right to purchase was dependent upon the action of Kerr within the three years; that the lapse of that time without a compliance with the condition terminated the privilege.”
The eases in which options have been included in leases have generally held that where, by terms of the option, the purchase price or part thereof was to be paid within a certain time, a tender or payment thereof is a condition precedent to the right to maintain a suit for specific performance. Some of the cases are Heine v. Treadwell, 72 Cal. 217; Herman v. Winter, 20 S. D. 196; Steele v. Bond, 32 Minn. 14; Codding v. Wamsley, 4 Thomp. & C. 49; Lord Ranelagh v. Melton, 2 Drew. & S. 278; Weston v. Collins, 34 L. J. Ch. (N. S.) 353. See, also, Lockman v. Anderson, 116 Iowa, 236; Rude v. Levy, 43 Colo. 482; Weaver v. Burr, 31 W. Va. 736, and valuable note, 24 L. R. A. (N. S.) 91.
By the terms of the option plaintiff was given the privilege of purchasing the premises for a stated sum within a stated time. The language of the option contemplates a cash payment within the life of the lease. The mere announcement by plaintiff within the time that he was ready to purchase the property is not enough. He was not given the privilege of purchasing the property if he signified his acceptance of the offer before the expiration of the lease but was given the privilege of purchasing it. He must be something more than ready to purchase, he must actually purchase it before the lease expires, by paying or tendering the consideration. For his failure to do so he must be denied relief. We think the case is ruled by those which hold that time is of the essence of the option and that payment or tender of payment is a condition precedent to maintaining suit for specific performance.
The decree is affirmed, with costs to the defendant.
Ostrander, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Bird, J.
While plaintiff was engaged in his work as a “coal passer” on the car ferry “Milwaukee” he was struck in the eye by a piece of flying coal, resulting in an injury thereto, which later made it necessary to remove it. He filed his claim with the industrial accident board, and an award was made by the committee of arbitration, and afterwards approved and confirmed by the board.
From the stipulation of facts it appears:
(1) That defendant is a Wisconsin corporation, and filed its written acceptance of the Michigan compensation act on September 12, 1912.
(2) That defendant owns and operates the car ferries “Milwaukee” and “Grand Haven” between the ports of Milwaukee and Grand Haven, and is exclusively engaged in interstate commerce on the Great Lakes.
(3) That the accident occurred to plaintiff on the 8th day of January, 1917, while engaged in the course of his employment, just as the “Milwaukee” was leaving the port of Grand Haven, and at that time she was loaded with interstate freight.
The defendant takes the position that the award made by the industrial accident board is of no force because it had no jurisdiction in the premises for the reasons:
(1) That plaintiff was engaged in interstate commerce at the time he received his injury, and therefore his sole remedy is under the Federal employers’ liability act.
(2) That the accident having occurred while plaintiff was employed on the Great Lakes, his remedy, if he has one, must be pursued in the admiralty court.
When this case was first presented to this court we were of the opinion that the first objection was well taken and that the industrial accident board was without jurisdiction because the stipulated facts brought the case within the Federal employers’ liability act and in consequence was ruled by Carey v. Railway Co., 200 Mich. 12. Upon further consideration we are per suaded that the agreed facts bring it within the exclusive jurisdiction of the admiralty court and is ruled by Southern Pacific Co. v. Jensen, 244 U. S. 205.
This case holds, in effect, that under article 8, section 2, of the Federal Constitution, extending the judicial power of the United States to all cases of admiralty and maritime jurisdiction, and article 1, section 8, conferring on congress power to make all laws which may be necessary and proper for executing the powers vested in the general government or in any of its departments or officers, congress has paramount power to fix and determine the maritime law which shall prevail throughout the country. That congress, in the exercise of this power, has vested the district courts of the United States with exclusive jurisdiction of all civil causes of admiralty and maritime jurisdiction. Section 9, Judicature Act 1789 (1 U. S. Stat. 76, 77). Plaintiff’s contract of service with defendant is clearly a maritime contract and, therefore, we conclude must be litigated in the district court under the holding of this case. A like conclusion was reached by the Wisconsin court in the case of Neff v. Industrial Commission, 166 Wis. 126 (164 N. W. 845).
Congress, in conferring jurisdiction on the district courts saved “to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.” Since the case of Southern Pacific Co. v. Jensen was decided, congress has amended this saving clause, adding thereto the following: “and to claimants -the rights and remedies under the workmen’s compensation law of any State.”
It is argued by counsel for plaintiff that this amendment saves the award made by the Michigan compensation board. Had this case been commenced after ■ttiis amendment took effect we should be inclined to agree with him. There is nothing, however, in the law which indicates that it is intended to have a retro active effect. The case at bar was commenced and determined by the commission before the passage of this amendment. If we are to hold that the award may now be sustained we will be obliged to hold in effect that an award which had no validity when made, is given life by this amendment, subsequently passed. We think this is not permissible under the rules of construction. 36 Cyc. 1215; Bedier v. Fuller, 116 Mich. 126; Hall v. Perry, 72 Mich. 202; Wheatland v. Levering, 10 Gray (Mass.), 16.
The award must be set aside.
Ostrander, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Moore, J.
This case was brought to recover damages for personal injuries received by plaintiff on June 15, 1913, resulting from the explosion of a dynamite cap. On the trial a verdict was returned by the jury for the plaintiff. Judgment was entered by the judge for the defendant notwithstanding the verdict. The case is brought to- this court on writ of error to review that judgment.
The defendant operated an underground iron mine in Ironwood, a city of about 15,000 population. Its property was situated between the platted part of the city known as Jessieville, which adjoins it on the south, and the Newport and Reno locations on the north. The defendant occupied a portion of the surface of its premises with stock piles, - shaft houses and other buildings, the remainder being uninclosed and unoccupied. Jessieville with a population of about 1,500 was separated from the principal part of the city by defendant’s property. For a long time people on foot in going to and from Jessieville to Ayer street in Ironwood used a path continuing northwesterly from the north end of Stevens street over the premises of the defendant. For upwards of 15 years prior to the injury to plaintiff, this path, well defined and worn down in places to a depth of more than three inches, was constantly and continually used by the general public as a foot way. In addition to others who used it, from- 35 to 40 children, ranging in ages from 5 to 14 years, during the school year used the path four times a day in going to and returning from school. It was also used by children attending the Jessieville church. A small building belonging to the defendant was located near the path which passed it on the north side, the building being about two to four feet from the path. There was no inclosure about the building and nothing to warn people away, and within ten feet of it there was' a dump or rubbish pile. At the northwest corner of the building was a door, the sill of which was two and one-half or three feet above the ground and from this sill a runway, constructed of planks extending down at an angle of about .45 degrees to the ground, across this runway cleats were nailed, the north end of the opening underneath the runway was open to the view of persons using the path.
For upwards of two weeks prior to the date of the injury to plaintiff the defendant had been loading ore from a stockpile into cars. In connection with this work dynamite caps were used; these explosives were stored in an open box under the runway in view of persons using the path. The sticks of dynamite packed in sawdust were in a wooden box about eighteen inches long, a foot wide and ten inches high from which about one-half the top had been removed. The caps were in a small red tin box which was on top in the wooden box. The box was under the runway, its distance from the path being estimated by plaintiff’s witnesses as between four and eight feet. There were no notices or warnings of any kind. The defendant had actual knowledge that large numbers of children and adults had used the path for years and made no objection in any way.
On the day of the injury plaintiff, a boy eight years and five months of age, was passing along this path with his brother, two ye'ars older, when his attention was attracted by this box which had been pulled partly out from under the runway. The top was off the box, he saw the red tin box containing the dynamite caps inside. He removed the red tin box from- the powder box and opened it; taking two of the dynamite caps he gave one to his brother. He did not know that they were dangerous and took them believing he could make whistles out of them. After getting the cap he went to his home a distance of two or -thrée blocks and having failed in other’ ways to remove the fulminate from the inside, attempted to burn it out with a match, with the result that it exploded, badly mutilating his left hand and seriously- injuring his right hand, face and right eye.
Upon the trial defendant submitted the following:
“Question: Was there, on and prior to June 15, 1913, a clearly defined path across the lot on which the Blackwell -barn was then located, ’ running in a northwesterly and southeasterly direction and passing within less than fifteen feet of said barn?”
The jury returned a verdict in favor of the plaintiff for $5,500 and answered the special question in the affirmative.
The court ordered that judgment be entered in favor of the defendant, notwithstanding the verdict, basing his decision on two grounds:
First Because there was no evidence of negligence on the part of the defendant.
Second. Because the injury was in part the result of a wrongful act on the part of the plaintiff.
The facts were not very complicated and were passed upon under a fair charge of the court, and were found in favor of the plaintiff.
The question is, Under which of the two lines of cases do the facts bring this case? Counsel for the appellee insist the trial judge was right in entering judgment in favor of the defendant, notwithstanding the verdict, for both of the reasons stated by him. They cite, in support of this contention, Ryan v. Towar, 128 Mich. 463; Peninsular Trust Co. v. City of Grand Rapids, 131 Mich. 571; Habina v. Electric Co., 150 Mich. 41; Reid v. Harmon, 161 Mich. 51; Morrison v. Carpenter, 179 Mich. 207, and other cases. Counsel for appellant insist the above cases are distinguishable from the case before us, and that it is controlled by a line of decisions of this court commencing with Powers v. Harlow, 53 Mich. 507. It may be well to recall some of the language used by Chief Justice Cooley in that opinion.
On the date of the accident, plaintiff, who was eight years and four months old, went with his brother, two years older, to take their father his dinner. After delivering the dinner they loitered about, when plaintiff saw the box partly uncovered, and from it took one of the exploders, which he placed on a stone and struck with another stone, it exploded injuring his left hand. A verdict was directed in favor of the defendant. In reversing the decision of the lower court, Chief Justice Cooley, speaking for the court, said in part:
“In this case a shed in which a dangerous explosive was stored was left only partly enclosed, and its structure and location were such as naturally to invite the entrance of children either for play or shelter from sun and rain. Children were rightfully near it; there was nothing in its appearance to warn them off; it was not fastened against their entrance, and there was nothing about it to indicate that they would do injury or be injured by going there. The box containing the explosives seems to have had more the appearance of a box discarded as of no value and with worthless refuse in it than of a box which if was of the very highest importance should be guarded with sedulous care. It was never firmly fastened, and the only warn ing upon it was a word written upon a top board which was not always kept on. A man of ordinary prudence if told that so dangerous an article was so carelessly stored might well have deemed the statement incredible. We cannot under these circumstances say that the plaintiffs father was chargeable with fault in not suspecting the danger and warning his children away from it, or that the child himself was blameworthy in acting upon the childish instincts and propensities which combined with the negligence of defendant’s servant to bring the danger upon him.”
A further reading of the opinion will show it to be on all fours with the case before us.
In O’Leary v. Telephone Co., 146 Mich. 243, Justice Blair speaking for the court said:
“The case of Powers v. Harlow is an authority in this State, and is supported by the great weight of authority in this country and in England.”
Powers v. Harlow is referred to in all of the opinions in Iamurri v. Saginaw City Gas. Co., 148 Mich. 27. In none of them is it suggested that Powers v. Harlow is not still the law in this State. In Peklenk v. Isle Royale Copper Co., 170 Mich. 299, Justice Brooke, speaking for the court, said in part:
“We are of opinion that such a license as was possessed by the father imposed upon the defendant the duty to warn him, and those members of his family coming upon the premises, with him at its invitation, of such existing dangers as were known to it, or which should have been discovered by it in the exercise of reasonable care. See Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154), and cases there cited.”
In Morrison v. Carpenter, 179 Mich. 207, Justice Stone, speaking for the court, said in part:
“If a licensee had been using a well defined path openly and continuously, we think he takes only such risks as have existed during the time of using the same; but this does not extend to additional risks on said path made afterwards by the licensor, and without knowledge of the licensee. In other words if the licensee has been using a defined path, for a length of time with the knowledge and permission of the licensor, then, if the licensor interferes with said path by making it more dangerous, he should give notice to the licensee, or guard the dangerous place so made.”
We think the case is within the line of cases represented by Powers v. Harlow, and that the judge erred in directing a verdict for defendant.
The judgment is reversed,- and the case remanded with directions to the trial judge to enter judgment upon the verdict for the plaintiff, and for such further proceedings as may be proper. Plaintiff will recover his costs.
Bird, Steere, Fellows, and Kuhn, JJ., concurred with Moore, J. | [
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Brooke, J.
Defendants were prosecuted under the provisions of Act No. 381, Pub. Acts 1913, section 4 (2 Comp. Laws 1915, § 7121) of which provides as follows:
"In any township, municipality or county in this State where the manufacture or sale of any of the liquors mentioned in section 1 is prohibited, it shall be unlawful for any person to keep, store, or possess any such liquor in any room, building, or structure, other than the private residence of such person, and which is not used as a place of public resort: Provided, That none of the provisions of this section shall apply to druggists authorized to sell such liquors, nor to persons possessing such liquors for medicinal, mechanical, chemical, scientific or sacramental purposes, nor apply to such liquors in the process of transportation or in the possession of a common carrier.”
The following facts appear in the record undisputed: Defendant Hanold is the proprietor of a soft drink establishment in which defendant Harris 'is employed as a helper. On the 14th day of March, 1916, defendant Harris went to Dr. McBurney and secured from him a prescription for one pint of whisky for medicinal purposes. This prescription was filled about six o’clock of the same day and Harris had it in his pocket on his person in defendant Hanold’s temperance saloon about seven or eight o’clock that evening when the deputy sheriff came to the place with a search warrant for intoxicating liquors. None were found in the place but a search of the person of defendant Harris disclosed his possession of the pint bottle of whisky secured by him at the drug store on the McBumey prescription. The two defendants were impleaded together and a verdict of guilty was rendered against defendant and appellant, Harris, only, under a charge of the court which is as follows:
“The claim of Harris is that he had obtained the whisky on a prescription of a physician that same afternoon, and that he intended to take some of the liquor, hot, when he went to bed that night. That is his testimony on the subject. Now, gentlemen, a physician, if he deems it necessary for the health of a patient, has a right under the law to prescribe whisky for the patient; and when whisky is prescribed for the patient the druggist has a right to sell it to the patient on the prescription of the physician and the patient has a right to take it away with him and consume it. That is a reasonable provision of the law. But, gentlemen, that provision of the law is intended to aid in restoring health and not intended to be used as a method of evading the law.
“This liquor which was obtained by Harris on the prescription, lawfully, was obtained as he says, along about four o’clock in the afternoon. That it was obtained by a messenger sent by him to a drug store for it, and that it reached his hands about six o’clock in the afternoon of that day. His room, his place of habitation, was in the rear of that building. He had no business with the liquor on his person in the saloon at that time. A man is entitled to have liquor for medical purposes, but he cannot, carry it around with him. He cannot take it to work with him. He cannot have it in any place except his private residence unless the doctor prescribes that it be taken at certain intervals, and.to take it at those intervals would make it necessary for the man to carry it with him. For example: if a doctor should prescribe whisky for, for example, a carpenter working on a building, with directions to take of the whisky every half hour, or hour, or three hours, the man would have the right to take the whisky with him to his work, and take it, every half an hour, or every hour, or three hours or five hours, as the doctor prescribed.
“But in this case, gentlemen, it does not appear that there was any such prescription. It does not appear that the doctor told him to take of this liquor every so often. In other words, it does not appear, as a medical proposition, that it was necessary for Harris to have the bottle of whisky in his pocket. It appears from his own testimony that he intended to take from the bottle when he went to bed, and he says his usual time of retiring was ten o’clock at night. He should have taken the whisky to his bedroom, his place of habitation, and left it there. It was unlawful for him to have it in his possession in the saloon at that time. And, gentlemen of the jury, if you believe his own testimony, you will bring a verdict of guilty as to defendant Harris.”
We are of opinion that this charge was clearly erroneous and that defendant Harris having proved beyond dispute, that he had secured the whisky from a druggist upon a lawful prescription, he had the right to carry the same upon his person for a reasonable time and until, in the natural course of events, and conveniently, he would reach his private residence (in this case his room in the hotel) which the record in this case does not show to have been exceeded.
The verdict is set aside and the defendant Harris discharged.
Ostrander, C. J., and Bird, Moore, Steere, Stone, and Kuhn, JJ., concurred. Fellows, J., did not sit. | [
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Bird, J.
Primarily this suit was begun in the Wayne circuit court to partition the Biddle estate, but none of the issues of partition are involved in this controversy. The Detroit Trust Company, trustee of the estate and holder of the legal title to the property to be partitioned, received an offer in April, 1916, for a farm owned by the estate, situate in Ecorse township, known as the “Woodbridge farm.” On April 27,1916, by permission of the court, the trustee made a contract with the Samuel A. Merchant Realty Company to sell to it the “Woodbridge farm” consisting of about 208 acres for the consideration of $1,500 an acre. The contract provided that $15,000 should be paid down on the execution of the contract, the balance of one-half of the purchase price to be paid in 80 days or as soon thereafter as a merchantable title could be delivered, at which time the premises were to be deeded to the Samuel A. Merchant Realty Company, upon receipt of a mortgage on the premises for the other half of the purchase price. Certain paragraphs of the contract of which special mention will be made are:
“ (a) The said vendee, as part of the purchase price, also agrees to pay all taxes, etc., * * * and further that at the time said mortgage is given, vendee will pay the entire commission at the rate of 5 per cent, of the entire purchase price, such payment being made to Stormfeltz-Lovely Company and Norman Meginnity, as their interests appear.”
“ (d) It is mutualy agreed between said parties that said vendee shall have possession of said premises not more than 3Ó days after the completion of the said one-half cash payment; and if the said vendee shall fail to perform this contract, or any part of the same, the said vendor shall immediately after such failure, have a right to declare the same void, and to retain whatever may have been paid hereon, and all improvements that may have been made on said premises, as liquidated damages for nonperformance of this contract, and as a consideration for the time during which said property is withheld from the market because of this contract; time being of its essence.”
In compliance with the terms of the contract the first payment of $15,000 was paid to the trust company, but no further payment was ever made by the Samuel A. Merchant Realty Company, and after some toleration as to payment, the contract was forfeited on July 12, 1916, by order of the court. This left $15,000 in the hands of the trust company,, which furnishes the bone of contention in this controversy. On October 2d the S. A. Merchant Realty Company was adjudged a bankrupt and Clare L. Christie appointed trustee. Claims are made to the fund by the following named parties, all of whom, save the trust company, have been permitted to intervene in the proceedings: The Detroit Trust Company, as trustee of the estate; Howard R. Newcomb, Ben Hughes, Louis Chevrolet, Clare L. Christie, trustee in bankruptcy for the S. A. Merchant Realty Company, and the Stormfeltz-Lovely Company and Norman Meginnity, real estate brokers. The chancellor heard the respective claims of these parties and denied relief to all of them save the trust company. He held the provision of the contract authorizing the retention of the $15,000 as liquidated damages to be a penalty and refused to enforce it, but did apportion some part of it to the trust company in payment of its actual damages. From this order of the chancellor all of the parties appeal.
Claim of Detroit Trust Company: The chancellor construed the provision of the contract giving the trust company the right to retain the $15,000 as liquidated damages as a penalty and refused to enforce it. In reaching this conclusion the chancellor was aided by a written concession of the trust company filed in court to the effect that the farm, since making the contract, had increased in value more than $15,000. He was also cognizant of the fact that he had been petitioned, since the forfeiture of the present contract, to consent to another contract in which it was agreed to sell the farm for $1,750 an acre. He was also aided by proof of the actual damages suffered by the trust company. With this and other general information as to value before him he was of the opinion that the amount stipulated as liquidated damages was so far out of the range of actual damages that it ought not to be enforced as an entirety. In this conclusion we are inclined to agree with him. We approve of his order allowing the trustee the following items of actual damages, $212.50 paid for a survey of the premises, $25 for an abstract, and $750 as attorney fees; but we are unable to agree with him in allowing the item of interest on the purchase price during the short period the premises were withheld from the market. There was no proof of actual damages by reason of the farm being withheld from the market. The premises were during all the time in the possession of the trustee and there was no proof of any loss or diminution of income therefrom nor of expense incident to giving the vendee possession. The item of interest will, therefore, be eliminated.
Claim of Clare L. Christie, Trustee in Bankruptcy: Whether the fund in court should be turned over to the trustee in bankruptcy depends upon two questions: (a) Whether any of the other interveners are entitled to a lien thereon, and (6) Whether the State court has jurisdiction to administer the fund. The latter question we think is decided in favor of the jurisdiction of the State court by the recent holding of Union Banking Co. v. Manufacturing Co., 189 Mich. 698, citing cases.
Claim of Stormfeltz-Lovely Company and Norman Meginnity: These claimants are real estate brokers who negotiated the deal between the trust company and the Samuel A. Merchant Realty Company. The contract executed by the parties provided that the vendee should pay the entire commission of 5 per cent, to these claimants as part of the purchase price when the mortgage was given. It is the contention of these claimants that when the contract between the vendor and vendee was signed a lien at once attached to the vendee’s interest in the land in their favor; that by reason of the default of the vendee its interest in the premises was converted into the fund of $15,000, which is now in court to be disposed of, and in consequence thereof claimant’s lien followed the interest of the vendee and attached to the fund. This position is based upon the equitable doctrine of vendor’s lien, which it is asserted exists in this State. In support of this contention the case of Dunton v. Outhouse, 64 Mich. 419, is cited. It was there said by Mr. Justice Champlin that:
“The vendor’s lien upon the sale of real estate has always been recognized in this State; the earliest reported case being that of Carroll v. VanRensselaer, Harr. Ch. 225. The doctrine, generally stated, is that the vendor of land who has taken no security, although he has made an absolute deed and acknowledged the receipt of the purchase price, yet retains an equitable lien for the purchase money, unless there be an express or implied waiver and discharge of it, which will be enforced in equity against the vendee, volunteers, and all others claiming under him with notice; that is, against all persons except bona fide purchasers without notice.
“The equity arises independent of contract, and it is therefore immaterial that the seller had no intention to reserve such a lien. 2 Sugd. Vend. & P. p. 675.”
It is also held that:
“The lien exists in favor of a third person to whom the vendee, at the vendor’s request, has agreed to pay a portion of the purchase money.” 2 Jones on Liens (3d Ed.), § 1094.
And that this doctrine is applicable to executory contracts as well as to absolute deeds. Ortmann v. Plummer, 52 Mich. 76; Harris v. Brown, 172 Mich. 164. Granting this .contention to be sound, the claim must fail for two reasons, one being that the time has never arrived and cannot arrive when the lien can be enforced, because the brokers’ commissions were not due until the first payment was made, and the mortgage given. While this agreement as to the time of payment would not prevent the lien attaching, it would prevent its enforcement. The other reason is that equities of those who furnished the money are far superior to those of the broker. For these reasons the lien of the brokers cannot and should not be enforced.
Claim of Howard E. Newcomb: It is claimed on behalf of Mr. Newcomb, and not denied, that he advanced $12,500 of the $15,000 payment made by the Samuel A. Merchant Realty Company to the trust company. That Mr. McCollum, an officer of the Samuel A. Merchant Company, solicited the money and represented to Mr. Newcomb that the first payment had been raised by subscription but that it was not available at the moment and that $15,000 must be had at once to comply with the contract. It is further claimed that Mr. Newcomb relied upon the truth of these representations and that they turned out to be false. The position of counsel is, that Mr. Newcomb parted with his money through the fraudulent representations of Mr. McCollum and that it should now be returned to him, it having been freed from the demands of the trust company. It appears from the testimony of Mr. Newcomb that he was a large stockholder in the Samuel A. Merchant Realty Company, that he visited the offices of the company three or four times a week, that he kept in close touch with its affairs, and that he had talked over the acquisition of the Woodbridge farm with Mr. McCollum. He testified that he relied on the statements of Mr. McCollum concerning the subscriptions to the first payment, and that he later learned they were false.
A careful examination of Mr. Newcomb’s testimony convinces us that while he was interested in the company, and consequently its success, and undoubtedly was actuated to some extent by the promised security and the prospective profits to be derived from the purchase, he relied upon and was moved to advance the money by the statement of Mr. McCollum that the money was subscribed to make the first payment. The fact that he was influenced to some extent by other considerations would not bar his right to recover the advancement if the statement of McCollum was the inducing cause, and he would not have parted with his money except for such representation. 19 Cyc. p. 407 and cases cited. We are, therefore, of the opinion that the facts bring the case within the rule that
“where money or property has been taken from its owner by fraud and deceit, it is impressed with a constructive trust, and when- clearly traced, may, and should be, by a court of equity, returned directly to its owner.” 3 Pomeroy on Equity Jurisprudence, § 1053; 2 Beach on Trusts & Trustees, § 707; Morris v. Vyse, 154 Mich. 253; Dime Savings Bank v. Fletcher, 158 Mich. 162; Patek v. Patek, 166 Mich. 446.
Claim of Ben Hughes and Louis Chevrolet: These claimants furnished $1,000 each toward the $15,000 fund, at the solicitation of' Mr. McCollum. Both claim that statements were made to them by McCollum similar to those made to Mr. Newcomb. Their testimony, however, shows that they as well as Mr. Newcomb were influenced in some measure by other considerations in parting with their money, but both testified that they relied upon the representation of Mr. Mc-Collum that the first payment had been subscribed.
■ It is conceded that Newcomb, Chevrolet, and Hughes furnished $14,500 toward this fund. It clearly ap pears that this fund was paid to the Detroit Trust Company as the initial payment on the contract. It further appears that the fund is now relieved from any legal demands of the trust company. In view of this showing we think the residue of the fund should go back to these parties in ratable proportions. Had they not furnished this fund in the first instance there would now be nothing to contend for, but aside from this consideration their equities appear to be much superior to those of the general creditors of the Samuel A. Merchant Realty Company.
Claim of the Biddle Heirs: Without, intervening in the proceedings the Biddle heirs were represented by counsel in this court who filed a brief contending that the Biddle heirs were entitled to the fund. The point is made that counsel, who represents them, is not properly in court under the rules. The view we take of the case we think it is unnecessary to comment on this further than to say that the rights of the Biddle heirs have been taken care of under the contentions of the Detroit Trust Company.
After deducting the items allowed to the trust company the balance of the fund will be divided between Newcomb, Chevrolet, and Hughes in the same proportion that they contributed to it.
No costs will be allowed.
Ostrander, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Griffin, J.
Plaintiff appeals as of right from a May 14, 1990, judgment of divorce entered by the Wayne Circuit Court. We affirm.
Plaintiff first argues on appeal that the trial court abused its discretion in awarding defendant $1,500 in attorney fees. We disagree. Defendant requested $3,500 in fees and was awarded $1,500. Given the substantial disparity in the parties’ incomes, we find no abuse of discretion. Vollmer v Vollmer, 187 Mich App 688, 690; 468 NW2d 236 (1990).
Plaintiff next contends that the trial court made numerous errors that skewed what otherwise would have been a precise fifty-fifty split of the marital estate. Having reviewed the record, we find no merit with regard to any of plaintiff’s claims. Plaintiff’s primary contention, that the trial court somehow twice ordered him to pay defendant one-half of the forty-four shares of Ford Motor Company stock, simply has no basis in fact. The record unequivocally reflects that plaintiff held an additional forty-four shares of stock that were not accounted for initially. Similarly, plaintiff’s claim that the trial court failed to consider the value of a television set he bought for defendant is also without merit. In its findings, the trial court allowed plaintiff to keep the amount of his savings that accrued following the parties’ separation on the basis that plaintiff bought certain items and made various "reasonable expenditures” during this time. Our review also indicates that the court dealt with the value of the parties’ automobiles in an equitable fashion. Finally, given the disparate economic positions of the parties, we find nothing inequitable about requiring plaintiff to maintain defendant’s health insurance on a temporary basis. Plaintiff has in no way convinced us that we would have reached a different result had we occupied the position of the trial court. Burkey v Burkey (On Rehearing), 189 Mich App 72, 78; 471 NW2d 631 (1991).
Finally, plaintiff argues that the trial court abused its discretion in awarding defendant temporary alimony. We disagree. The trial court awarded defendant $200 a week for one year. In so doing, the court noted that the parties had endured many years of marriage during which they lived at the standard provided by their combined incomes. Thus, the court found the alimony necessary to equalize the parties’ financial positions and to allow defendant to "get on her feet financially.” These considerations were proper, and we find no error. Id.; Thames v Thames, 191 Mich App 299, 307-308; 477 NW2d 496 (1991).
Affirmed.
Jansen, P.J., concurred. | [
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Ostrander, C. J.
Setting up in the declaration an instrument, a promissory writing, dated February 20, 1907, plaintiff alleges
“that upon the execution and delivery of said guaranty or writing obligatory, and upon the strength thereof and relying thereon, and upon the special instance and request of the said defendant, it did, on, to wit, the 20th day of February, 1907, and on various dates * * * make loans, advances of money, and did extend credit to the said * *
The cause was tried by the court and findings of fact and law were made and filed. Exceptions followed and error is .assigned upon the action of the trial court.
Upon a former trial, a judgment for defendant was reviewed and reversed and a new trial ordered. 185 Mich. 281. Upon the record now before us, as upon the former record, it appeared — there is no dispute about it — that upon January 17, 1907, defendant wrote a letter to F. J. Houston Company, Albuquerque, N. M., in which., after reference to various matters, is the following:.
“In addition to this, if you can arrange it with the bank with which you are doing business to give you a line of credit of $1,200 or $1,500 and if they are willing to accept my guarantee in shape of bond or the usual form of guarantee so that I will not have to be bothered with the signing of the notes each time, I am willing to let you use the credit of my name to that extent.” * * *
This letter being presented to plaintiff bank, the bank prepared and handed to Mr. Houston to be sent on to defendant a form of guaranty and it went forward in a letter dated January 31, 1907. On or about February 4, 1907, defendant received the communication, made some changes in the form of the undertaking, had it rewritten, dated it February 4, 1907, signed it and sent it to the F. J. Houston Company with a letter. Mr. Houston, on February 11, 1907, presented the undertaking at the bank, which drew another guaranty to be signed by defendant, which was sent to defendant, and it was dated and signed by him at Grand Rapids, February 20,1907, and returned to Houston and reached the plaintiff. This is the writing set out in the declaration of plaintiff, which, after receiving it, returned to defendant his previously executed guaranty.
F. J. Houston Company had an account with plaintiff, opened in September, 1906. At the beginning of business February 11, 1907, F. J. Houston Company had overdrawn at the bank $1,085.69. On that day the bank discounted the note of said Houston Company, dated February 1, 1907, for $1,575, the amount of which was credited to the account of said Houston Company. It was discounted, so the cashier of plaintiff testified, upon the theory that the bank then extended to the Houston Company a credit of $1,575 “on the strength of the guaranty that we would get from Mr. Wernicke, which we afterwards did get from him.”
The note of February 11, 1907, above referred to, was renewed August 1, 1907. This renewal note was paid February 17, 1908, by cash $575 and a new note for $1,000, dated February 1, 1908. Including this, the indebtedness of the Houston Company to the bank February 17,1908, was $1,700. The fact that the parties did not at first agree upon the form of guaranty to be executed by defendant — that defendant amended' the form of the undertaking first proposed and signed it, that the plaintiff made another which defendant signed — was not proved upon the first trial. Otherwise, there is little, if any, difference in the testimony produced at the two trials.
The court found as matter of fact (a part of the 6th finding):
“On February 11,1907, the bank in form discounted a note for the F. J. Houston Company of $1,575.00. In making said loan or discounting said note, the bank did not rely on the statements contained in Mr. Wernicke’s letter of January 17, 1907, and Mr. Wernicke had refused to execute the guaranty drafted by the bank, and the bank had refused'to accept the guaranty executed by Mr. Wernicke dated February 4, 1907. The note was dated February 1, 1907; $75 of the amount was for six months’ interest, in advance, and $1,500 was credited to the F. J. Houston Company on open account, with the bank. At that time this account was overdrawn $1,085.69. The $1,500 paid this overdraft and left a balance of $415.31. Defendant knew nothing of this overdraft until after the failure of the company in September, 1909. Mr. Wernicke had no notice of the loan made by the bank to the F. J. Houston Company on the 11th day of February, 1907. He had no knowledge of any loan made to the F. J. Houston Company until some time after the execution by him of the instrument dated February 20, 1907, hereinafter mentioned.”
Conclusions of law are:
“1. The letter of January 17, 1907, written by Mr. Wernicke, was not a guaranty, and was not so regarded by the bank, and must be left out of consideration in fixing the liability of defendant. As Mr. Wernicke refused to sign the first form of guaranty drafted by the bank, and the bank declined to accept the guaranty which he did sign on February 4, 1907, the minds of the parties did not meet in regard to it. It is not claimed that the bank loaned any money relying on it. This suit is brought on the instrument dated February 20, 1907, and no liability can be based on the guaranty of February 4, 1907.
“2. The instrument dated February 20,1907, signed by the defendant, upon which this suit is brought, did not extend to any existing indebtedness of the F. J. Houston Company. It applied only to such credit as the bank might extend to the F. J. Houston Company after the execution and delivery of the instrument and relying upon that instrument. As no credit was extended by the bank to F. J. Houston Company relying upon said instrument, dated February 20, 1907, there is no liability against the defendant on the same.”
Appellant says that the finding that in making the loan, or discounting the note, of February 1, February 11, 1907, the plaintiff did not rely on the statements made in defendant’s letter of January 17, 1907, is not supported by any evidence, and is at variance with all the evidence in the case upon that subject. The direct testimony upon the subject has been referred to. It appears further that although the Houston Company was seeking credit at the bank, further credit was refused until the first undertaking made by defendant was presented. This tends to prove that the bank was in fact relying upon the promise made by defendant to the Houston Company. Treated as a finding of fact, the conclusion stated by the court does not appear to be supported by evidence.
In the opinion of this court (185 Mich. 281, 287, 288) it is said:
“It is urged that, inasmuch as the $1,575 note was discounted by plaintiff on the 11th day of February, nine days before the guaranty was executed, there was no consideration passing to the debtor which would support the guaranty. While there was an adjustment of the financial matters of plaintiff and the Houston Company before the guaranty was signed, it is obvious that they were adjusted and additional credit extended to the company on the strength of defendant’s letter, in which he promised to execute a guaranty to the amount of $1,500. It is doubtless true, as argued by counsel, that the letter itself did not amount to a guaranty; it was simply a promise to execute a guaranty. And it is quite likely that the bank took some chances in adjusting their matters in the way they did before they were advised that the guaranty had been executed; but that was a contingency which never happened. The guaranty was subsequently executed as promised, and the mere fact that it would have been difficult to enforce payment if the guaranty had not been executed affords no reason why the additional credit extended to the company in reliance upon defendant’s letter should not serve< as a consideration to support his guaranty. If any further consideration were needed, it can be found in the .fact that plaintiff was threatening the Houston Company with legal proceedings if it did not make payment of its overdraft.
“But it is argued that the plaintiff concealed the fact from defendant that the company was indebted to the bank, and therefore it was such a concealment of a material part of the transaction as would make it inequitable to enforce the contract. Unless the concealment amounted to a fraud, the surety would not thereby be released. If the defendant had inquired as to the fact, and the truth had been evaded, or otherwise concealed, it would then have amounted to a fraud; but, if no inquiry were made, the failure of plaintiff to disclose to the guarantor the indebtedness of the Houston Company to the bank would not amount to a fraud. 1 Brandt on Suretyship (3d Ed.), § 473; Hamilton v. Watson, 12 Clark & Finnellys (Eng.), 108.
“The defendant did not undertake by his contract to guarantee the payment of any existing note or overdraft owing by Houston & Co. to the bank. What he proposed to do in his letter, and what he afterwards did do, was. to guarantee a cash credit at the bank for Houston & Co. After he did so he was liable to the extent of his guaranty, whatever the form of the evidence of indebtedness might be. After the money was loaned to Houston & Co. in reliance upon the defendant’s letter and guaranty, it was at it's disposal, and if that company saw fit to use some or all of the $1,500 in paying existing indebtedness to the bank, of what importance is it, and how was the defendant prejudiced by such application? The defendant knew before he signed the guaranty that the Houston Company was experiencing some rough weather, and needed assistance, and he figured out himself in his letter that the company would need a credit of $1,200 or $1,500, and he consented to become surety in that amount to assist the company in making payment of its pressing demands, and it appears to me to be of ho moment that the bank happened to be the owner of one of those demands. Our conclusion is that the defendant is liable on his contract. Hamilton v. Watson, supra.”
It has been stated that the record now before us is not materially different from the record then before us. It is true that the conclusions reached by this court were not agreed to by all of the Justices. The law of the case was, however, settled. The rule announced in the opinion of the court should have been applied by the trial court upon the new trial. It was not applied and the finding of fact referred to, unsupported by evidence, does not furnish a reason for declining to apply it.
The judgment must be reversed, with costs to appellant, and a new trial granted.
Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Brooke, J.
The plaintiff is a manufacturer employing about 200 men. On July 10, 1916, such employees as were members of Kalamazoo Local Number 843, International Association of Machinists (about 95 in number), left plaintiff’s employment and immediately organized themselves into' a picketing force. This force covered all approaches to plaintiff’s shop. ' Its purpose was to prevent all who were willing or desirous of working for the plaintiff from so doing. No violence was resorted to. The course followed proved so effective that plaintiff, on July 17th, filed his bill of complaint praying for an injunction. A temporary injunction was issued upon the filing of the bill and the picketing was thereafter discontinued. As a result all the strikers with a single exception returned to work for the plaintiff or secured employment in other shops. The case was heard in open court commencing February 15, 1917. At the conclusion of the hearing a decree was entered enjoining defendants among other things from “peacefully or otherwise picketing plaintiff’s plant.” The learned trial judge in his opinion said:
“Defendants produced no witnesses. There is no disputed questions of fact involved, and the usual features of a labor union in strike are presented except possibly violence and threats of violence.
“The allegations in the bill as to the combination and confederacy of the defendants and the picketing of the premises and plant, and the purpose of such combination and picketing are clearly established, except, as already noted, there is no evidence of violence or threats thereof.
“The only question presented for determination is, Is the plaintiff entitled to a perpetual injunction restraining the picketing of his premises by the defendants without violence or threats thereof?”
It is asserted by counsel for appellants that the principal question involved is that of enjoining the defendants from “peacefully or otherwise picketing plaintiff’s plant,” and it is said in argument:
“As a matter of fact picketing in and of itself is no more than one of the means of ascertaining those upon whom persuasion may be exercised advantageously to the object of the strikers. That was the object in this case, but if it is held to be unlawful for the strikers to adopt this obvious means of ascertaining upon whom persuasion may be effective it is a mere idle statement to say the right of persuasion exists. Picketing per se is no more harmful to an employer than a parade through the streets of a city where the plant is located or than a mass meeting to which employees were invited would be.
“All these things are resorted to for the purpose of securing converts to the cause of the strikers. If the paraders become violent and assault those who refuse to agree with them it becomes unlawful. The same should be true of picketing. It seems to us ridiculous to say that simply because an employee is approached within the neighborhood of a struck plant rather than at some place distant from the plant that he is subject to intimidation in one case and not in the other. There is no doubt that under the guise of picketing strikes may annoy and interfere with new men and by threats and menaces, as well as by physical assault, intimidate them, but it is the duress and not the persuasion that should be prohibited, and whether or not there has been duress or intimidation should be determined from the evidence and not from the fact merely that the persuasion was resorted to in one particular locality, or, in other words, that there was picketing.”
The question thus raised and discussed is not an open one in this State. See Beck v. Protective Union, 118 Mich. 497, and authorities there cited, as well as the later case, In re Langell, 178 Mich. 805.
Without approving of the language of the decree in haee verba, which we find unnecessary, the same is affirmed upon the point raised by the appeal, with costs.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Ostrander, C. J.
(after stating the facts). Passing the question of the right of the trustees of the M. J. Clark Memorial Home to contest the granting of relief to the appealing defendants, I consider whether it is true, as is claimed, that this court is without jurisdiction to hear and determine the appeals because they were made too late. We have held that parties — at least when not prevented from appealing by the action or non-action of officers of the court — must perfect appeals within the time limited in the statute, see Perkins v. Perkins, 173 Mich. 690, and cases cited in the opinion, and that, failing to do this, the right to appeal is lost and cannot be restored by the court. These appellants moved, seasonably, for an extension of time for perfecting the appeals, and, within the statute period, the time was extended. It is clear there was jurisdiction to do this. Whether the showing which was made was sufficient is another question, not open upon this record, since the order extending the time has not been vacated and no motion to vacate it has been made. And if the question was open, then, considering the objections and the showing which is made, I am of opinion that the Justice who granted the extension of time did so upon a proper showing. It is true that only the solicitors, for plaintiffs and the solicitors for appealing defendants, signed the stipulation which was the basis for the order, but the failure to secure signatures of solicitors for other defendants is explained. Mr. Walsh, who appeared as solicitor for certain defendants, is not objecting. Repeated extensions of time were secured from the circuit court upon stipulations signed by Mr. Ward and Swarthout & Master and Butterfield & Keeney. That these defendants proposed to appeal was apparently known to every one interested, and no claim is made that the case on appeal was not properly settled. This court and the Justices thereof must rely in such a matter upon the showing made and' must assume, when a stipulation is presented, that it is signed by proper counsel. If it turns out after the appeal is perfected, and after the time to perfect it has expired, that technically, some solicitor who did not do so ought to have signed, the stipulation presented with the application for an extension, the order extending the time will not for such a reason be vacated by the action of the court in a case where it does not appear that- the court was imposed upon or that some complaining interest has been harmed beyond the harm which a review of the proceedings may entail. It may be assumed, upon this record, that all solicitors of all parties would have joined in the stipulation if they had been requested to do so. It must be held that the appeals were seasonably taken.
It is said that appellants have no right to appeal. Considering only the right to appeal from the decree, and not what may be gained thereby, I am of opinion that the right exists as to all appellants, if for no other reason than the one that the decree is not supported by the bill of complaint and the relief granted is greater than and different from that prayed for in the bill. There was no reason why appellants should contest the matters, set up in the bill of complaint or contest the granting of the relief prayed for therein. There was on their part no objection to the substitution of a new trustee for the old one. See Covell v. Cole, 16 Mich. 223; McMahon v. Rooney, 93 Mich. 390; Miller v. Casey, 176 Mich. 221; Reynolds v. Stockton, 140 U. S. 254; Masterson v. Howard, 18 Wall. (U. S.) 99; Northern Trust Co. v. Albert Lea College, 68 Minn. 112; Monarch Brewing Co. v. Wolford, 179 Ill. 252.
But, it is said, each of the appealing defendants, since the suit was begun, has executed and delivered to the trustees of the M. J. Clark Memorial Home a quitclaim deed of the Clark property and has thereby divested himself of all interest in the property. Although the execution and delivery of the quitclaim deeds are admitted, their force and effect are disputed. The bill was not amended by setting out the deeds, and no relief was prayed for based upon them. Kelly v. Kelly, 54 Mich. 30. Appellants say the fact is that the quitclaim deeds were executed upon their part to establish, so far as was possible, the validity of a trust attacked by some of the defendants — to release any claim the appellants might have in the property by reason of the invalidity of the claimed trust established by the original deed. „It now appears that the trustees of the M. J. Clark Memorial Home are not of one mind about seeking any advantage from the quitclaim deeds. Moreover, if the court considered the effect of these deeds to be the putting an end to the so-called trust instead of validating it, the decree makes no mention of them. It does, however, construe the original deed in such manner as to put an end to the condition in the deed. It must be borne in mind, too, that the deed made by Melvin J. Clark, Jr., an infant, who appeals, is at least voidable. It follows, I think, that the admitted fact that the deeds were executed and delivered does not of itself conclude the right of one who made a deed to appeal from the decree.
As to the appeal from the denial of a rehearing, three appellants, namely, Irving M. Clark, Leland J.» Clark, and Gertrude C. Partridge, are nonresidents, brought in by publication. As to them, the statute gives the right to be admitted upon petition to defend. See McDonald v. McDonald, 45 Mich. 44; Coffin v. Ontonagon Circuit Judge, 140 Mich. 420.
It must be held that some of the appellants have the right to appeal from the order denying the rehearing, and the motion to dismiss the appeals must be denied.
The court, as to defendants against whom the bill was taken as confessed, was in error in granting relief not within the scope of the bill. Measured by the bill, .the relief should have been limited to the substitution of trustees as prayed for, with the provision that the new trustee succeed to and take over all property pertaining to the M. J. Clark Memorial Home, including all endowment and other funds, and manage and control the same, and that it assume and perform all duties, obligations and contracts in that behalf assumed by, devolving upon, or made by, the former trustee. The statute under which the proposed new trustee was created itself supplies further directions.
If it is assumed that the answer and cross-bill of certain defendants raised for decision the question of the scope and effect of the original deed of the Clarks to plaintiffs — if it is assumed that the validity of the deed is attacked and that all parties to the suit were bound to take notice of the issue sought by the answer and cross-bill to be raised, the decree is still erroneous. In this behalf, counsel for appellees, the trustees of the M. J. Clark Memorial Home, say that if compelled to go to a hearing upon the merits they desire that further testimony be taken and they suggest that it be taken orally in this court. By “a hearing upon the merits” is meant, evidently, one in which the appellants seek to show that notwithstanding the execution of the quitclaim deeds the decree is erroneous.
Some one representing plaintiffs procured the execution and delivery to the proposed new trustee of quitclaim deeds of the Clark property, .made by eleven of fifteen of the residuary legatees of Mr. Clark. There has been no determination of heirship. It is proposed to be proven in “a hearing upon the merits” that in September, 1918, the plaintiffs executed a quitclaim deed to the same grantee of the same property. It is insisted that in this way an interest in said real estate was created in the grantee in said deeds supporting the conclusion that the estate — the property — is alienable, in whole or in part. This I understand to mean that the condition in the deed has been released, or conveyed. Upon the other hand, appellants contend that the purpose in giving the quitclaim deeds was not to release the provision for reverter and that the quitclaim deeds do not, in law, release or assign the condition in the original deed. If the purpose or intention of the grantors in executing the quitclaim deeds in any manner controls the determination of this question, further testimony might be required. So, also, if the claimed benefit of the quitclaim deeds cannot be given or clearly denied upon the record as made, there should be a further hearing with a right to amend the bill. If the intention of the grantors is immaterial, there is no occasion for taking further proofs.
It will be observed that in the decree it is said that the condition in the deed—
“is a conditional clause relating to a grant directly in line with the general purposes contemplated by complainants’ organization, and does not take away from the grantees in said deed, or their successors, the power of alienation; and that the trust sought to be created by the grantors in said deed is a charitable trust; and that such trust is fully expressed and clearly defined upon the face of the instrument creating it.”
Following this is the judgment that the defendants —plaintiffs in the cross-bill — be denied relief.
For any purpose here material, there is m> reason for saying that the deed executed by the Clarks created a trust. The conference has, and had, a trust fund, the charitable purpose of which is clear. The committee of the conference was trustee and the beneficiaries were the superannuated ministers and widows and children of deceased ministers. The people who contributed to this fund did not each of them create a trust, nor were they each of them, in any proper sense of the term, settlors of a trust. Their gifts augmented a specific trust fund. So the Clarks, knowing of this charitable trust, solicited by an agent of. the trustee, and desiring “to aid said parties of the second part in their work,” contributed to a trust already settled, with beneficiaries already designated, property to be used in a certain way, the gift being, 'as the trial court says, “a grant directly in line with the general purpose contemplated by complainants’ organization.” This does not deny that the property was thereafter and now is held in trust by the plaintiffs or by the substituted trustee. They conveyed, however, a conditional or qualified fee, absolute until the condition is broken, and if broken the heirs of the grantor take by right of reverter. There is a possibility of reverter which denotes no estate,—
“ ‘but as the name implies only the possibility to have the estate at a future time. Of such possibilities there are several kinds of which two are usually denominated by the term now under consideration: (1) The possibility that a common law fee may return to the grantor by breach of a condition subject to which it was granted; and (2) the possibility that a common law fee other than a fee simple may revert to the grantor by the natural termination of the fee.’ The possibility of reversion expectant on such an estate is left in the person who limits it and ‘in the meantime the whole estate is in the grantee or owner subject only to this possibility of reverter in the grantor. The grantee has an estate which may continue forever though there is a contingency which when it happens will determine the estate. This contingency cannot with propriety be called a condition. It is a part of the limitation and the estate may be termed a fee.’ ” Pond v. Douglass, 106 Me. 85, 89.
See, also, North v. Graham, 235 Ill. 178; First Universalist Society v. Boland, 155 Mass. 171; Estes v. Muskegon County, etc., Park Ass’n, 181 Mich. 71; Delhi School Dist. v. Everett, 52 Mich. 314. Examine Blanchard v. Railroad Co., 31 Mich. 43; Thayer v. McGee, 20 Mich. 195. According to what seems the better reasoning, a possibility of reverter is not devisable, but passes to those who are heirs of the grantor at the time of the breach. It is not an estate, interest, or right in land, but a possibility of obtaining an estate in the future, and is therefore not devisable. It passes by right of representation and not by descent to the heirs at the time of the breach. Methodist Protestant Church v. Young, 130 N. C. 8; Upington v. Corrigan, 151 N. Y. 143. To the contrary is North v. Graham, supra, holding, upon the Illinois statute, that the heirs at the time of the grantor’s death take the right of reverter. See the note to North v. Graham, 18 L. R. A. (N. S.) 624. It is inadvisable to determine the precise point now. There has been no breach of the condition by the grantee in the Clark deed. To devolve the title and management upon a new trustee will not breach the condition. It does not appear that there has been a release of it, or that the condition is not in force; and if it is in force, the decree adjudging the substituted grantee, or the conference, to have the right of alienation is erroneous. There is no testimony tending to prove that the conference, or the plaintiffs, desire to avoid any responsibility or to refuse or repudiate the grant as it was made. Nor is it proper that the court shall now advise them of the consequences if hereafter they shall deem it inadvisable to hold the property according to the terms, of the grant.
The quitclaim deeds are in existence. The title to the land and the record thereof ought not to be clouded by them or doubt thrown upon the relation of the conference and the trustee to the property. Their force and effect are not considered except as herein expressly indicated.
The decree below is reversed, and one will be entered in this court in accordance with the prayer of the bill.
Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Per Curiam.
Plaintiff appeals as of right from the property division incorporated in the trial court’s judgment of divorce. We reverse.
The parties were married on July 10, 1965, and have two adult children. They separated in June 1986. Plaintiff filed for divorce on March 25, 1987. Trial was held in September 1989 and January 1990.
Plaintiff claims that the trial court erred in finding that stock options plaintiff received through his employment were valued at $102,445. Plaintiff does not contest that the stock options are marital property, but maintains that the trial court failed to consider several factors affecting the valuation of the options, including tax consequences. Plaintiff also argues that the trial court failed to make findings of fact indicating how it arrived at the value of the options. Defendant, on the other hand, argues that the evidence in the record supports the trial court’s valuation of the stock options. She maintains that taxes are too speculative for the court to deduct an amount for them from the value of the options. Defendant also argues that the trial court made adequate findings of fact regarding the value of the options.
In Thames v Thames, 191 Mich App 299, 301-302; 477 NW2d 496 (1991), this Court stated:
This Court is required to accept the factual findings of a trial court in a divorce case unless those findings are clearly erroneous. Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990). A finding is clearly erroneous if the reviewing court, on all the evidence, is left with a definite and firm conviction that a mistake has been committed. Id. Under this standard, the reviewing court cannot reverse if the trial court’s view of the evidence is plausible. Id. Deference is given to the special opportunity of the trial court to judge the credibility of witnesses. MCR 2.613(C).
The trial court found that plaintiff owned options to purchase 3,660 shares of stock in his. employer’s company. The trial court specifically determined that these options were worth $102,445, which was the amount defendant testified to and alleged in her trial brief. We conclude that the trial court complied with the requirement of MCR 2.517(A)(1) to find the facts specially. Birkenshaw v Detroit, 110 Mich App 500, 509; 313 NW2d 334 (1981); Kirkendall v Heckinger, 105 Mich App 621, 628; 307 NW2d 699 (1981).
Although the trial court complied with MCR 2.517(A)(1), we believe the trial court’s view of the evidence with regard to the valuation of the op tions is not plausible. The trial court’s $102,445 valuation figure is based upon the testimony of defendant and her trial brief that lists this amount. However, defendant failed to fully explain how this number was calculated. Meanwhile, plaintiff presented expert testimony regarding a method to calculate the value of the options that resulted in a valuation of $50,861. During the January trial proceedings, plaintiff relied on his expert’s formula and testified that the options were then worth $66,000. Consequently, we remand the case to the trial court for revaluation of plaintiff’s stock options in light of this opinion. See Postema v Postema, 189 Mich App 89, 102; 471 NW2d 912 (1991).
We next consider the method of valuation of stock options in divorce proceedings, which is an issue of first impression in this Court. Other jurisdictions have examined the issue regarding how to calculate the value of stock options, a formidable task given the numerous possible contingencies and restrictions involving stock options. In this case, problems inherent in calculating the value of the options are alleviated by the fact that plaintiff asked the trial court, when valuating the options, to assume that all the options would be exercised. The judgment of divorce must contain an order to exercise the matured options in order to avoid an inequitable property distribution caused by fluctuating market prices.
In Burkey v Burkey (On Rehearing), 189 Mich App 72; 471 NW2d 631 (1991), this Court calculated the present value of an employee stock ownership plan (esop) by determining the number of shares in the employee’s account and multiplying that figure by the value of those shares. Id., p 76. An esop is a plan whereby the employee or employer, or both, place specified amounts of money into the plan, with a trustee crediting the contributions, and the benefit paid out upon retirement is directly related to the value of the account. Id., pp 75-76.
Stock options, on the other hand, are a type of employee benefit where the employer offers to the employee the opportunity to purchase stock in the employer’s company at any given time for a certain price. Options are characterized as matured on the date the options may be exercised by the employee. Upon purchase, the stock is owned by the employee and is usually tradable on the open market. The options, however, might be subject to various conditions. For example, in this case, plaintiff’s options were neither transferable nor assignable. The right to exercise the options expires on certain dates. The options were contingent upon plaintiff’s continued employment with his employer, and any options that are not matured at the time plaintiff ends his employment are forfeited.
Although stock options are fundamentally different from esop’s, the value of options in this case is determinable in a similar manner. The present value of stock options is calculated by subtracting the option cost from the market price of the stock. The actual date on which to determine the market price for valuation purposes is within the discretion of the trial court. Id., pp 76-77. If the market price of the stock is lower than the option cost, then the options are worthless and need not be allocated between the parties. In this case, the options had different costs depending on when they were offered by plaintiff’s employer._
We agree with plaintiff that the trial court erred in valuating the options without taking into consideration the tax consequences. See Lesko v Lesko, 184 Mich App 395, 403; 457 NW2d 695 (1990); Wiand v Wiand, 178 Mich App 137, 151; 443 NW2d 464 (1989). Plaintiff’s expert testified that even though the options are not subject to immediate taxation, they will be taxed when they are exercised because they are a form of employment compensation. Indeed, the record indicates that options exercised by plaintiff in 1988 were taxed. Thus, the trial court clearly erred when it valued the options without considering the tax consequences. Thames, supra. We direct the trial court to adjust the valuation of the options accordingly. Lesko, supra.
The trial court also clearly erred in finding the same present value for all plaintiff’s options on 3,660 shares of stock. At the time of trial, plaintiff owned options on 3,660 shares of stock, but the options with regard to two hundred shares were not yet matured. It was inappropriate to place the same present value on the options for the two hundred shares that were not yet matured as on the options that had matured, because of the conditions applicable to the options as listed above. For example, the options on the two hundred shares could be rendered worthless by plaintiff’s ending his employment, or if the market price of the stock is less than the option cost when the options mature, As a result, the trial court must divide these options in a manner that protects defendant’s equitable share in them.
Finally, plaintiff contends that the trial court clearly erred in valuing the New Jersey home in which he lives. He argues that the property has negative equity because of a downturn in the real estate market.
The trial court valued the property at $40,250, which is the amount defendant claimed was the down payment on the house. Plaintiif purchased the home for $222,500 in 1988. The record indicates that plaintiff made a $22,250 down payment, and the mortgage balance at the time of trial was $199,000. The record also shows that plaintiff exercised some stock options in order to make the down payment, but did not notify defendant about this expenditure of marital assets.
Despite plaintiffs argument, the trial court held that the property had some value. The trial court held that plaintiffs poor business decision to purchase the home should not result in harm to defendant. The court also stated that plaintiffs decision to not notify defendant about his exercise of stock options to pay for the home played a part in its valuation of the home. Under these circumstances, we cannot say that the trial court’s valuation of the New Jersey home was clearly erroneous.
Reversed and remanded to the trial court for further proceedings consistent with this opinion.
A situation might arise where the market price of the stock is lower than the option cost at the time of the divorce proceedings, and then is higher than the option cost after the divorce judgment. We need not address at this time any possible remedy in that hypothetical situation.
The proofs show that the $40,250 figure determined by the trial court as the down payment represents the pretax gain plaintiif received when he exercised stock options. Plaintiff then liquidated this stock and used the after-tax dollars for the down payment. | [
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Cavanagh, J.
In this premises liability case, plaintiffs appeal from the trial court’s order denying their motion for a new trial or for judgment notwithstanding the verdict. They claim that the trial court erred in refusing to direct a verdict that plaintiff Thomas Constantineau was a business invitee, in charging the jury, and in failing to find that the verdict was against the great weight of the evidence. We affirm.
It was plaintiffs’ theory of the case that Thomas Constantineau, while at defendant’s place of business, slipped on a dangerously steep and narrow staircase and suffered severe injuries to both his shoulders. Plaintiffs claimed that defendant breached its duty to warn Thomas Constantineau, a business invitee, of known dangers and to inspect the premises to discover possible unknown dangers.
It was defendant’s theory of the case that Thomas Constantineau was a trespasser because he exceeded the scope of defendant’s invitation when he went into an area of the building without an escort or permission. Defendant claimed that it had no duty either to make the premises safe or to warn Thomas Constantineau, a trespasser, of conditions existing on the premises.
According to the record, plaintiff Thomas Constantineau (hereinafter plaintiff), an employee of Crawford Door Sales, went to defendant’s place of business on February 13, 1985, to investigate whether an overhead door separating sections of the work area could be motorized. Plaintiff testified at trial that it was during his on-site inspection that he noticed numerous electrical conduits around the door frame where the motor drive would have to be installed. Plaintiff went on to state that he decided to trace the electrical lines to find out which lines were energized and that at all times he was accompanied by the owner of the business, Remo Antoniolli.
Plaintiff further testified that, while tracing the electrical lines, he climbed up into a second-story loft that was being used primarily for storage. It was from this vantage point that he also got the chance to visually inspect work that had been done the day before by a Crawford crew and to look at pizza equipment that was of personal interest to him. On his way down from the loft, plaintiff allegedly slipped on a staircase and fell, severely injuring both his shoulders. According to plaintiff, the owner of the building was with him when he fell and apologized for the fall just before he escorted him out of the building.
In defending against this lawsuit, defendant admitted ownership of the building and that the staircase was defective. However, defendant contested plaintiffs account of the incident through the testimony of Remo Antoniolli. According to Antoniolli, he did have a brief conversation with a salesman from Crawford Door Sales, but it took place at the base of the door that was being ' inspected. After being told that the door could not be motorized, Antoniolli assumed that the salesman had left the premises. He testified that he never gave the salesman permission to wander around the premises and knew of no reason why the salesman would have gone up into the loft. Antoniolli clearly stated that he did not invite the salesman up there, foresee that he would go there, or accompany him into the loft.
The jury came back with a verdict of no negligence and plaintiffs moved for a new trial or for judgment notwithstanding the verdict. The trial court denied their motion and this appeal followed.
In their first argument, plaintiffs claim that their motion for a new trial or for judgment’ notwithstanding the verdict should have been granted because the verdict was contrary to law and against the great weight of the evidence. More specifically, plaintiffs argue that there is no Michigan authority for the legal proposition that a visitor’s status while on a defendant’s property can change from an invitee to a trespasser and that there was not one single shred of evidence to show that the invitation in this case was in any way limited in terms of geography or time. We disagree.
A new trial may be granted if a verdict is against the great weight of the evidence or contrary to law, or if an error of law has occurred in the proceedings. MCR 2.611(A)(1)(e) and (g). The decision whether to grant a new trial is one addressed to the trial court’s discretion, and the trial court’s decision will not be reversed absent an abuse of that discretion. Beasley v Washington, 169 Mich App 650, 655; 427 NW2d 177 (1988). Judgment notwithstanding the verdict should be granted only when there is insufficient evidence presented to create an issue for the jury. Wilson v General Motors Corp, 183 Mich App 21, 36; 454 NW2d 405 (1990). If the evidence is suych that reasonable minds could differ, the question is for the jury, and judgment notwithstanding the verdict is improper. Hodgins Kennels, Inc v Durbin, 170 Mich App 474, 479; 429 NW2d 189 (1988).
In Bennett v Butterfield, 112 Mich 96; 70 NW 410 (1897), the plaintiff was injured while he was a customer in the defendant’s store. The plaintiff claimed that he was invited into a place of danger without warning and without proper guards at the entrance to protect him. The evidence, however, established that the plaintiff attempted to enter an elevator without invitation or permission. Consequently, the Supreme Court held that the plaintiff alone was "responsible for the accident and the injury, and [could] not recover.” Id. at 98. Similarly, in Hutchinson v Cleveland-Cliffs Iron Co, 141 Mich 346; 104 NW 698 (1905), no duty was owed to an injured worker who had not been invited to enter that portion of the mill where the injury occurred. Also see 2 Restatement Torts, 2d, § 332, pp 181-183.
In this case, plaintiffs’ argument that Thomas Constantineau was at all times an invitee while on defendant’s property and that there was no Michigan law supporting the proposition that a visitor’s status may change lacks merit. Both Bennett and Hutchinson suggest that a visitor to a business establishment who ventures into an area without permission or invitation accepts the responsibility for any resulting injuries.
With respect to the argument concerning the great weight of the evidence, plaintiffs offered the factfinder evidence that Thomas Constantineau was a business invitee and that his movement inside defendant’s building was with permission and while accompanied by the owner. In contrast, defendant introduced evidence showing that Thomas Constantineau became a trespasser when he ventured into parts of the building without permission or invitation. In light of this state of the record, there does not appear to be overwhelming evidence in support of either theory, and the disputed evidence that was presented posed a credibility contest for the factfinder to resolve.
Plaintiffs also argue that they were entitled to a new trial or judgment notwithstanding the verdict because of instructional errors that occurred in this case. Again we disagree.
When requested by a party, a standard jury instruction must be given if it is applicable and accurately states the law. Petrove v Grand Trunk W R Co, 174 Mich App 705, 710-711; 436 NW2d 733 (1989). However, the determination whether an instruction is accurate and applicable in light of the circumstances presented by the particular case rests in the sound discretion of the trial court. Murphy v Muskegon Co, 162 Mich App 609, 617; 413 NW2d 73 (1987).
Given our decision that the status of a business invitee can change if the scope of the invitation is exceeded, the plaintiffs objections to the instructions that deal with the status of a trespasser cannot be sustained. Secondly, from a review of the record, it appears to us that the trial court did not abuse its discretion in refusing to instruct the jury regarding the irrelevancy of liability insurance and the nondelegable duty owed to the plaintiff. Although accurate, both of these instructions were inapplicable because of the circumstances presented by this case. Defendant neither tried to avoid responsibility for plaintiffs injuries by suggesting that its duty to maintain a safe workplace had somehow been delegated to another entity nor tried to suggest to the jury that its liability insurance should be kept in mind during deliberations.
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ON REHEARING
Before: Fitzgerald, P.J., and Hood and Cavanagh, JJ.
Per Curiam.
Defendant-appellant Alger J. Smock, personal representative of the estate of Ida P. Smock, deceased, appeals as of right from a declaratory judgment in favor of plaintiffs in their action to determine the ownership of certain mineral interests. We affirm.
i
The parties are largely in agreement with regard to the complicated facts of this case. For purposes of this appeal, however, a brief recitation of the facts will suffice.
The mineral rights at issue were severed from the surface estate in 1935. The owner of the mineral rights recorded a lease in 1957. The owner died testate in 1961, and his will did not contain a description of the location of the mineral rights. The probate court entered an order assigning the residue of the owner’s estate. The order was recorded with the register of deeds in 1962. This document contains a provision distributing mineral rights to various parties, but does not specify the location of the surface estate.
On appeal, the issue is whether the dormant minerals act, MCL 554.291 et seq.; MSA 26.1163(1) et seq., prevented plaintiffs’ interest in the mineral rights from passing because the order assigning the residue did not contain a precise description of the surface estate.
ii
The dormant minerals act provides in pertinent part:
Sec. 1. Any interest in oil or gas in any land owned by any person other than the owner of the surface, which has not been sold, leased, mortgaged or transferred by instrument recorded in the register of deeds office for the county where such interest is located for a period of 20 years shall ... be deemed abandoned, unless the owner thereof shall, within 3 years after the effective date of this act or within 20 years after the last sale, lease, mortgage or transfer of record of such interest . . . whichever is later, record a claim of interest as hereinafter provided. Any interest in oil or gas deemed abandoned as herein provided shall vest as of the date of such abandonment in the owner or owners of the surface in keeping with the character of the surface ownership.
Sec. 2. Any interest in oil or gas referred to in this act may be preserved by the recording within the period specified in this act a written notice in the register of deeds office for the county where such interest is located, which notice shall be verified by oath, describe the land and the nature of the interest claimed, give the name and address of the person or persons claiming the interest, and state that such person or persons desire to preserve the interest and do not intend to abandon same. . . . [MCL 554.291, 554.292; MSA 26.1163(1), 26.1163(2).]
Smock argues that the property description requirement contained in § 2 also applies to § 1, and the absence of a property description renders the order by which the residue was conveyed defective. We disagree.
The primary goal of judicial interpretation of statutes is to give effect to the intent of the Legislature. Joy Management Co v Detroit, 176 Mich App 722, 730; 440 NW2d 654 (1989). Statutory language should be construed reasonably, keeping in mind the purpose of the act. Dep’t of Social Services v Brewer, 180 Mich App 82, 84; 446 NW2d 593 (1989). If the plain and ordinary meaning of the language is clear, judicial construction is neither necessary nor permitted. Nat'l Exposition Co v Detroit, 169 Mich App 25, 29; 425 NW2d 497 (1988).
The purpose of the dormant minerals act is not to abolish severed mineral interests, but to promote the development of mineral interests by reducing the difficulty in locating the owners of severed mineral interests where there has been no recent recording of those interests. Van Slooten v Larsen, 410 Mich 21; 299 NW2d 704 (1980); Oberlin v Wolverine Gas & Oil Co, 181 Mich App 506, 514; 450 NW2d 68 (1991). 1963 PA 42 is defined as "an act to provide for the termination of dormant oil and gas interests in land owned by persons other than the owners of the surface and for the vesting of title to same in the surface owners in the absence of the filing of a notice of claim of interest within a specified period of time.” Section 1 of the act merely describes the circumstances under which a mineral interest may be deemed abandoned if not preserved within twenty years of the last sale, lease, mortgage, or transfer. Section 1, unlike 2, imposes no requirements on a conveyance of mineral rights. Section 2 provides a method of preservation for those interests that have not been sold, leased, mortgaged, or transferred for a period of twenty years. Neither section is concerned with the conveyance or actual transfer of mineral rights; the act is concerned solely with the preservation and abandonment of mineral rights, and, by its plain and ordinary meaning, does not deem dormant mineral rights terminated until the expiration of the twenty-year period.
The trial court correctly determined that the conveyance of mineral rights effectuated through the order that assigned the residue of the estate of the previous owner was not rendered invalid by the dormant minerals act.
Affirmed._
This appeal is not otherwise concerned with the validity of the conveyance.
We note that MCL 700.193; MSA 27.5193 governs orders assigning residue. This section provides in pertinent part:
The order assigning residue shall state the date of death of the decedent and shall name the persons and the proportions or parts of the estate to which each shall be entitled.
Section 193 imposes no requirement that the order assigning residue contain a legal description of the property interest being conveyed.
See Bates v Keso, 187 Mich App 409, 410; 468 NW2d 251 (1991), wherein this Court noted that the order assigning residue was properly recorded with the register of deeds. Although not at issue in the case, this Court implied that the order effectively conveyed the mineral rights at issue. | [
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Weaver, P.J.
In 1986, plaintiff retained defen dants to defend her against charges of criminal sexual conduct in the first degree. Following a jury trial, plaintiff was found guilty, then was sentenced on February 8, 1987. Plaintiff discharged defendants and hired a new firm to represent her. On March 24, 1987, plaintiff’s new counsel filed a motion for a new trial. One argument was that a new trial should be granted because of the poor representation given by defendants. On June 13, 1988, the trial court granted plaintiff’s motion for a new trial. A judgment of acquittal was entered on July 11, 1988, and became final on April 19, 1989. On May 31, 1989, plaintiff discussed the possibility of suing for legal malpractice.
On November 28, 1989, plaintiff filed a complaint against defendants, alleging legal malpractice, misrepresentation by fraud and deceit, and breach of contract by failing to provide plaintiff with skillful, competent representation. Defendants filed a motion for summary disposition based exclusively on the defense of the statute of limitations. Following a hearing, the court ruled that the suit was time-barred. Plaintiff now appeals. We reverse and remand.
An action for legal malpractice must be brought within two years of the date the attorney discontinued serving the plaintiff or within six months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. MCL 600.5805(4), 600.5838; MSA 27A.5805(4), 27A.5838. Tort actions accrue when all the necessary elements of a cause of action have occurred and can be alleged in a proper complaint. Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972).
The question before us, one of first impression in this state, is when a claim for legal malpractice arising out of a criminal conviction accrues. Plain tiff argues that her cause of action did not accrue until April 19, 1988, when the judgment of acquittal became final. We agree.
We follow the Alaska Supreme Court, Shaw v State Dep’t of Admin, PDA, 816 P2d 1358 (Alas, 1991), in holding that a convicted criminal defendant must obtain postconviction relief before pursuing an action for legal malpractice against trial counsel. We limit this holding to situations where the defendant in the underlying criminal action has indeed pursued appellate remedies. See Parisi v Mich Twps Ass’n, 123 Mich App 512; 332 NW2d 587 (1983).
We adopt in support of this holding many of the reasons set forth in Shaw, supra, p 1361:
The requirement of post-conviction relief promotes judicial economy because many issues litigated in the quest for post-conviction relief will be duplicated later in the legal malpractice action. This is because dispositive post-conviction relief is relevant to the issue of proximate causation. Claudio v Heller, 119 Mise 2d 432, 463 NYS2d 155 (Sup Ct 1983). As Shaw argues it is also relevant to the issue of damages. See Johnson v Schmidt, 719 SW2d 825, 826 (Mo App 1986). If the defendant was denied post-conviction relief, the legal principle of collateral estoppel would serve to eliminate any frivolous malpractice claim. See Schlumm v Terrence J O’Hagan, PC, 173 Mich App 345; 433 NW2d 839, 846-47 (1988) (collateral estoppel barred malpractice claim which rested upon the same issues previously decided in plaintiffs ineffective assistance of counsel case); Weiner v Mitchell, Silberberg & Knupp, 114 Cal App 3d 39, 170 Cal Rptr 533, 538 (1980) (valid federal conviction cannot be relitigated in malpractice action and-must be accepted as the proximate cause of plaintiffs conviction); Johnson v Schmidt, 719 SW2d at 826; see 2 R Mallen & J Smith, Legal Malpractice § 21.3, at 289 (3d ed 1989); see also D Potel, Criminal Malpractice; Threshold Barriers to Recovery Against Negligent Criminal Counsel, 1981 Duke LJ 542, 551-56 (1981). Thus, by prioritizing post-conviction relief judicial resources will be conserved. Moreover, requiring post-conviction relief as a prerequisite to a legal malpractice action aids in determining whether the statute of limitations bars the action. By adopting the date that post-conviction relief is obtained as the trigger to the statute of limitations, we establish a bright line test which should significantly assist courts in the resolution of statute of limitations issues.
Systemic concerns also support such an approach. Mallen and Smith note "the litigious nature in incarcerated persons who occupy the time of their incarceration by pursuing civil actions against their former attorneys.” 2 R Mallen & U Smith, supra, at 290. Also of concern is the attorney who, in the course of defending against a malpractice action, might produce privileged or other evidence in his or her defense that might hurt a criminal defendant with a legitimate basis for post-conviction relief. Finally, we note the desirability of allowing a criminal defendant with a valid post-conviction relief claim to pursue that remedy without the distraction of also filing a legal malpractice claim.
We note that this approach parallels that of malicious prosecution actions, which accrue upon rendition of the final judgment on appeal. Parisi, supra. It is also consistent with the prior holding of this Court that a client in a criminal action has received effective assistance of counsel when a full and fair determination has been made in that action, and the defendant attorney in a subsequent civil malpractice action brought by that client may defensively assert collateral estoppel as a bar. Schlumm v O’Hagan, PC, 173 Mich App 345; 433 NW2d 839 (1988).
Our holding makes it unnecessary to discuss plaintiff’s remaining issues. We reverse and re mand for further proceedings. We do not retain jurisdiction.
Reversed and remanded. | [
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Jansen, J.
Defendant, Robert Anthony Dem-man, appeals as of right from the June 3, 1988, judgment of divorce entered by the Monroe Circuit Court. After review of the record, we affirm.
Defendant contends that the award of alimony to plaintiff was improper because she makes more money than him, has more seniority on the job, has a house payment roughly one-half the size of his rent payment, and because plaintiff is likely cured of cancer, thereby obviating the necessity of awarding alimony to cover future medical expenses or loss of income due to the illness. Defendant contends that the award of alimony was punitive. We disagree with defendant.
An award of alimony is within the trial court’s discretion. Pelton v Pelton, 167 Mich App 22, 27; 421 NW2d 560 (1988); Ackerman v Ackerman, 163 Mich App 796, 803; 414 NW2d 919 (1987). 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. Pelton, p 27; Ackerman, p 804; Burkey v Burkey (On Rehearing), 189 Mich App 72, 79; 471 NW2d 631 (1991).
A court may award alimony in a divorce action "as it considers just and reasonable,” after considering the ability of either party to pay, the character and situation of the parties, and all other circumstances in the case. Ackerman, p 803. Several relevant factors should be considered by the court, including, but not limited to, the past relations and conduct of the parties, the length of the marriage, the ability of the parties to work, the ages of the parties, the needs of the parties, the health of the parties, and general principles of equity. Id. In addition, a party’s fault in causing the divorce is a valid consideration in awarding alimony. Kurz v Kurz, 178 Mich App 284, 295; 443 NW2d 782 (1989).
As the trial court noted, at the time it entered the judgment of divorce, plaintiff was forty-seven years old and defendant was forty-six years old. The marriage had lasted twenty-three years, during which time plaintiff mothered two children to adulthood. Defendant described plaintiff as a good wife and mother. Defendant was in apparent good health, while plaintiff undisputably was in poor health. Plaintiff’s "health and future are precarious.” Plaintiff had a "nightmarish” bout with cancer and it is certain that she will have to undergo further reconstructive procedures in the future. The marital relationship, combined with plaintiff’s poor health, has taken an emotional toll on her as well.
Plaintiff wprked six days a week while defendant went to college during the early years of their marriage. Plaintiff’s earnings contributed substantially to defendant’s obtaining a professional degree. Plaintiff returned to work three weeks after the birth of their first child, six weeks after the birth of their second child, and she continued to work throughout the marriage.
The trial court found that defendant’s "actions and uncaring attitude caused the marital breakup.” It is clear that defendant had at least one extramarital affair, and possibly a second. The record indicates that defendant had decided to go his own way after the children were raised. The trial court determined that an award of alimony was required to ensure the maintenance of plaintiff’s prior standard of living. As the court noted: "It is essential to plaintiffs well-being that the causes of acute anxiety in her remaining years be reduced.”
Had we sat in the place of the trial court, we would not have reached a different conclusion regarding the award of alimony to plaintiff. The record supports the trial court’s award of alimony to plaintiff, and its findings in this regard were not clearly erroneous. Beason v Beason, 435 Mich 791; 460 NW2d 207 (1990). Additionally, and contrary to defendant’s assertion, the record is devoid of any evidence that the trial court awarded alimony to plaintiff as a punitive measure. There was no abuse of discretion in this regard. Pelton, supra.
Defendant next contends that consideration by the trial court of defendant’s inheritance as a joint marital asset was inappropriate. Defendant argues that plaintiff did nothing to procure or preserve the inheritance, and the first distribution of assets comprising the inheritance came after plaintiff filed for divorce. We are of the opinion that, under the given facts of this case, it was within the trial court’s discretion to include in its calculation of marital assets the disbursement of inheritance made to defendant in 1986.
In support of defendant’s argument, he relies upon Grotelueschen v Grotelueschen, 113 Mich App 395; 318 NW2d 227 (1982). A reading of Grotelueschen indicates that the decision to include inheritance in the valuation of marital assets is discretionary and is dependent upon the particular circumstances of a given case. This Court, quoting from Charlton v Charlton, 397 Mich 84, 94; 243 NW2d 261 (1976), stated that an inheritance may be treated as part of the marital estate "if an award otherwise was insufficient to maintain either party.” Grotelueschen, p 400.
In the present case, the trial court concluded that plaintiff would be unable to maintain her standard of living without alimony, even under a property division that took into account approximately one-half of defendant’s entire inheritance. Therefore, the trial court decided to include in the calculation of the marital estate only $150,000 of defendant’s inheritance, which represents the value of disbursements made to defendant in 1986. Under the circumstances of this case, the inclusion of the $150,000 inheritance was necessary for the maintenance of plaintiff. We believe this to be a valid exercise of the court’s discretion.
Defendant also claims that plaintiff was not entitled to an award of attorney fees. It has long been the general rule that a trial court possesses broad discretion relative to the grant of attorney fees in a divorce case. Vollmer v Vollmer, 187 Mich App 688, 690; 468 NW2d 236 (1991).
The trial court did not specifically state its reasons for believing that plaintiff should be awarded attorney fees in order to prosecute the litigation. However, the trial court did note that, in light of the property division that was made, it would not be fair to award to plaintiff the entire amount of attorney fees sought. The trial court then awarded plaintiff an amount that "would be, fair.”
It is our opinion that, on the basis of the evidence of plaintiff’s monthly expenses and her need for alimony, the trial court properly exercised its discretion in this matter. Vollmer, supra. We find no error in the award of attorney fees to plaintiff.
Lastly, defendant contends that the trial court abused its discretion in awarding plaintiff seventy-four percent of the marital estate, while at the same time only awarding defendant twenty-six percent. We cannot agree with defendant. The division of marital assets in a divorce proceeding is left to the sound discretion of the trial court. Nielsen v Nielsen, 179 Mich App 698, 699; 446 NW2d 356 (1989). Appellate review is de novo, and this Court will not substitute its judgment for that of the trial court unless it. is convinced that it would have reached a different result. Burkey, p 78.
Our review of the record indicates that the division of the marital estate is nearly equal on each side. Although removal of defendant’s inheritance from consideration would skew the percentages in the fashion suggested by defendant, resort to such calculations by defendant is unavailing because we have determined that the inclusion of his inheritance in the property calculation was a valid exercise of the trial court’s discretion.
The objective of a property settlement is to reach a fair and equitable division in light of all the circumstances. Ackerman, p 807; Pelton, p 26. No mathematical formula governs the division, and the division need not be equal, but only equitable. Ackerman, p 807; Pelton, p 26.
In the present case, we are of the opinion that the division of the marital estate was fair and equitable, given the circumstances of this case. We find no abuse of discretion.
Affirmed.
T. J. Lesinski, J., concurred. | [
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Murphy, J.
Plaintiff appeals from an order of the circuit court granting summary disposition to defendant pursuant to MCR 2.116(0(10). We affirm.
This action arises from a single-car automobile accident in which plaintiff was severely injured. Plaintiff was at that time attending college in Texas. While in Texas, she purchased a used automobile. She did not obtain insurance for the vehicle.
On July 2, 1988, while driving the car from Texas to her mother’s home in Michigan, plaintiff lost control of her car in a rainstorm in Tennessee and struck a bridge pillar. She sustained serious injuries.
At the time of the accident, plaintiffs mother, Wanda Henson, was insured by a no-fault insurance policy issued by defendant. Plaintiff was not listed on the policy. Plaintiff, however, allegedly considered her permanent residence to be with her mother in Michigan.
Defendant denied coverage for the accident, and plaintiff filed this action, alleging that she was entitled to no-fault benefits under the policy. Defendant moved for summary disposition pursuant to MCR 2.116(0(10) on the ground that plaintiff was not entitled to no-fault benefits. The circuit court granted the motion.
Plaintiff contends that she is entitled to no-fault benefits for her injuries pursuant to MCL 500.3111; MSA 24.13111 because she is a resident relative of Wanda Henson. Defendant contends, however, that, even if plaintiff is a resident relative of Ms. Henson, she is precluded from recovery of benefits pursuant to MCL 500.3113; MSA 24.13113, which provides, in pertinent part:
A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
(b) The person was the owner or registrant of a motor vehicle or motorcycle involved in the accident with respect to which the security required by section 3101 or 3103 was not in effect.
Thus, if plaintiff was the owner or registrant of the vehicle involved in the accident, and the security required by § 3101 or 3103 was not in effect with respect to that vehicle, then she is precluded from recovery of personal protection insurance benefits. Childs v American Commercial Liability Ins Co, 177 Mich App 589, 592; 443 NW2d 173 (1989); Laskowski v State Farm Mutual Automobile Ins Co, 171 Mich App 317, 324; 429 NW2d 887 (1988).
Plaintiff contends, however, that § 3113(b) bars her recovery only if she was required under § 3101 to register, and therefore insure, the vehicle in Michigan. Section 3101 provides, in pertinent part:
(1) The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security shall only be required to be in effect during the period the motor vehicle is driven or moved upon a highway. [MCL 500.3101; MSA 24.13101.]
Plaintiff contends that only vehicles operated on the highways in Michigan are subject to the registration and insurance requirements of the Michigan no-fault act because § 216 of the Vehicle Code, MCL 257.216; MSA 9.1916, provides, in pertinent part:
Every motor vehicle . . . , when driven or moved upon a highway, shall be subject to the registration and certificate of title provisions of this act.
Plaintiff also contends that she was not required to register her vehicle until the vehicle had been present in Michigan for thirty days, pursuant to MCL 500.3102; MSA 24.13102, which provides, in pertinent part:
(1) A nonresident owner or registrant of a motor vehicle or motorcycle not registered in this state shall not operate or permit the motor vehicle or motorcycle to be operated in this state for an aggregate of more than 30 days in any calendar year unless he or she continuously maintains security for the payment of benefits pursuant to this chapter.
We reject plaintiff’s interpretation of § 3113(b) and MCL 257.216; MSA 9.1916. The Legislature is presumed to have intended the meaning plainly expressed in' a statute. If the meaning of statutory language is clear, judicial construction is unnecessary and not permitted. Rosner v Michigan Mutual Ins Co, 189 Mich App 229, 231; 471 NW2d 923 (1991).
The language of § 3113(b) clearly and unambiguously states that the owner of a vehicle involved in an accident, where the vehicle had no security required by § 3101 at the time of the accident, is not entitled to personal protection insurance benefits. See Coffey v State Farm Mutual Automobile Ins Co, 183 Mich App 723, 730; 455 NW2d 740 (1990); Childs, supra. MCL 257.216; MSA 9.1916 does not specifically limit the requirements of § 3113(b) of the no-fault act only to cars driven on Michigan highways. Because the language of § 3113(b) is unambiguous, we will not read additional provisions into the language. Further, to so interpret the language would produce the absurd result that a person who is covered by a no-fault policy in this state could own and fail to insure several other vehicles in other states and still be permitted to recover under the one insurance policy for accidents occurring in the other states involving the vehicles for which security had not been obtained.
We also reject plaintiff’s argument that registration was unnecessary under § 3113(b) because of the provisions of § 3102. Plaintiff contends that she is a resident relative of Wanda Henson, who lives in Michigan. Assuming this to be true, plaintiff cannot then be a nonresident for purposes of MCL 500.3102; MSA 24.13102.
Affirmed.
Ownership of the vehicle is undisputed. Plaintiff’s attorney acknowledged at oral argument that his client was the owner of the vehicle.
Plaintiff does not dispute that the vehicle was involved in the accident in question, nor does she claim that there was in effect the security required by MCL 500.3101; MSA 24.13101. | [
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Per Curiam.
Defendant appeals as of right from the trial court’s granting of plaintiffs motion for summary disposition pursuant to MCR 2.116(C) (10). We reverse and remand to the trial court for entry of an order granting defendant’s motion for summary disposition.
This declaratory judgment, action was brought by plaintiff, an optometrist, for the purpose of establishing defendant insurance company’s duty to defend and indemnify plaintiff pursuant to the terms of a general insurance policy covering plaintiffs business premises. The insurance policy excluded coverage for accidents or injuries caused by rendering or failing to render a "professional service.” The term "professional service” was not defined in the insurance contract.
The underlying lawsuit prompting this declaratory judgment action stems from injuries sustained by Betty Ann Hugaert at plaintiffs place of business. Hugaert visited plaintiffs office for the purpose of having plaintiff perform an eye examination. Plaintiffs employee performed a blood-pressure test and a visual test on Hugaert. Plaintiff then called Hugaert into his examination room. As she was backing into the examination chair, the chair rotated and Hugaert fell, sustaining various personal injuries including a broken arm and a fractured wrist. The examination chair was equipped with a lock to be used to prevent rotation until a patient was seated. Plaintiff testified in his deposition that it was his practice to lock the chair after he finished examining a patient and before the next examination began.
Hugaert sued plaintiff, seeking damages under the alternative theories of malpractice and premises liability. Plaintiff then filed this declaratory judgment action for the purpose of determining defendant’s duty to defend and indemnify him in the Hugaert lawsuit. The trial court held that the term "professional service” found in the insurance contract was ambiguous because of defendant’s failure to define the term, and held that the ambiguity must be construed against defendant. The trial court interpreted the term "professional service” as not including the factual situation that gave rise to the underlying action for personal injuries. Because the facts did not fall within the "professional service” exclusion, the trial court ruled that there existed no genuine issue of material fact that defendant owed a duty to indemnify plaintiff as well as to defend him in the underlying lawsuit.
Defendant’s first argument, that the trial court erred in failing to distinguish between the duty to indemnify and the duty to defend, is without merit. It is clear from the record that the trial court considered separately the issues of indemnity and the duty to defend, and concluded that plaintiff was entitled to be both indemnified and defended by defendant.
Defendant next argues that the term "professional service” is unambiguous and that the professional service liability exclusion applies to the facts of the underlying action. We agree.
First, we believe that the trial court erred in deciding that the term "professional service” was ambiguous for the sole reason that defendant failed to define the term in the insurance policy. In fact, we believe that the term "professional service” has a plain meaning and that judicial construction was unnecessary. See Friske v Jasinski Builders, Inc, 156 Mich App 468, 472-473; 402 NW2d 42 (1986).
Secondly, the insurance policy excludes coverage for injuries arising from the rendering of or the failure to render a professional service. We believe it is clear that plaintiff was rendering a professional service when Hugaert was injured. We find the authority cited by defendant in this regard, especially American Policyholders Ins Co v Michota, 156 Ohio St 578; 103 NE2d 817 (1952), to be persuasive. In Michota, the Ohio Supreme Court included in the definition of the term "professional services” the maintenance, in a safe condition, of a metal hydraulic chair because the maintenance of the hydraulic chair was part of the chiropodist’s "professional service.”
In the underlying action, Hugaert was injured when the examination chair rotated as she was attempting to sit down to have her eyes examined by plaintiff. The examination chair was a piece of specialized equipment used by plaintiff in examining his patients. We believe that, as in Michota, the safe operation of the examination chair was part of plaintiffs professional service. Therefore, Hugaert’s injuries arose from the rendering of or the failure to render a professional service. Because the insurance policy excluded coverage for such injuries, defendant is under no obligation to indemnify plaintiff for losses incurred in the underlying action.
The trial court erred in granting summary disposition in favor of plaintiff. We reverse the trial court’s order granting plaintiff’s motion for summary disposition, and we remand to the trial court for entry of an order granting summary disposition in favor of defendant.
Reversed and remanded.
Sawyer, P.J. I concur in the result only. | [
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Per Curiam.
This is an appeal as of right from the trial court’s order granting summary disposition to defendants of plaintiffs legal malpractice claim. At issue is the trial court’s application of the doctrine of collateral estoppel. See MCR 2.116(C)(7). We affirm.
Plaintiff suffered a work-related injury in 1986 and sued his employer, a railroad company, in federal court. On defendant Pearlman’s advice, he settled that case and agreed to resign from his employment. About ten months later, plaintiff, through other counsel, moved to have the settlement set aside, alleging that, because of medication and stress, he was not mentally competent when he entered into it.
Plaintiff’s motion was referred to a magistrate who, after holding an evidentiary hearing, recommended that it be denied. Plaintiff refused to waive the attorney-client privilege so that defendant Pearlman and his staff could testify. The federal court reviewed the record de novo and denied plaintiff’s motion. That decision was not appealed.
Plaintiff subsequently filed this lawsuit alleging that Pearlman and his law firm committed malpractice in allowing plaintiff to settle his federal case while he was mentally incompetent. Defendants successfully moved for summary disposition on the ground that, in the absence of an appeal in the action in federal court, relitigation of plaintiff’s competency at the time of settlement was barred by the doctrine of collateral estoppel. We agree.
The doctrine of collateral estoppel holds that, where the first and second causes of action are different, "the judgment [rendered in the first cause of action] is conclusive between the parties in such a case as to questions actually litigated and determined by the judgment.” Howell v Vito’s Trucking Co, 386 Mich 37, 42; 191 NW2d 313 (1971). By the "very definition” of the doctrine, "one of the critical factors” is "whether the respective litigants were parties or privy to a party.” Id. at 42; see also Lichon v American Universal Ins Co, 435 Mich 408, 427; 459 NW2d 288 (1990). "In other words, '[t]he estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it had it gone against him.’ ” Id. at 427-428, quoting Howell.
Our Supreme Court has recently reaffirmed the vitality of the mutuality requirement in Michigan in the face of a modern trend to abandon it. See Lichon, supra at 428. We therefore decline defendants’ invitation to do away with the requirement altogether. Nevertheless, our Supreme Court has recognized that "lack of mutuality does not always preclude the application of collateral estoppel. There are several well-established exceptions to the mutuality requirement, such as when an indemnitor seeks to assert in its defense a judgment in favor of its indemnitee, or where a master defends by asserting a judgment for a servant.” Id. at 428, n 16.
There are no published opinions of this Court allowing nonmutual defensive use of collateral estoppel in the context of a legal malpractice action arising out of a civil case. However, the Supreme Court noted in Lichon that "[t]he Court of Appeals has recognized that [in addition to the well-established exceptions listed above] there may be other situations in which the mutuality requirement is relaxed.” Id. at 428, n 16, citing Knoblauch v Kenyon, 163 Mich App 712; 415 NW2d 286 (1987).
In Knoblauch, an attorney who had represented the plaintiff in a criminal case was sued for malpractice. Id. at 713-715. In the underlying criminal case, the malpractice-plaintiff had asserted ineffective assistance of counsel and had failed after an evidentiary hearing. Id. at 713-714. This Court allowed counsel to use that determination defensively in the civil case to collaterally estop relitigation of the competency issue. Id. at 725; see also Schlumm v Terence J O'Hagan, PC, 173 Mich 345, 357; 433 NW2d 839 (1988) (following Knoblauch).
In Knoblauch, this Court acknowledged that the parties were not identical, that there was no mutuality, and that none of the recognized exceptions to the mutuality requirement applied. Knoblauch, supra at 720. Nevertheless, this Court found that the standard that applied to claims of ineffective assistance of counsel was identical to the standard that applied to civil claims of malpractice and that, therefore, the issue had been fully litigated. Id. at 717-719. The Court noted that the mutuality requirement had been eroded, that Supreme Court cases had not dealt with crossover (criminal to civil) collateral estoppel, and that the reasons articulated in Howell for rejecting nonmutual offensive collateral estoppel did not apply where the earlier adjudication was used defensively against a party who had had the opportunity to fully litigate it. Knoblauch, supra at 724-725. The reasons articulated in Howell, supra at 47-51, were: (1) lopsided justice in cases involving successive plaintiffs, (2) fear of increased litigation to avoid adverse judgments, and (3) the unfairness of declaring defendant a loser to a competitor he had never met. The Court also noted that, as a matter of public policy, a criminal defendant who has lost a claim of ineffective assistance should not be able to recover against the attorney in a malpractice action. Knoblauch, supra at 725.
Given that the standard for establishing ineffective assistance of counsel has been restricted in People v Tommolino, 187 Mich App 14; 466 NW2d 315 (1991), so that it is no longer identical to the standard for a civil claim of malpractice, we do not express an opinion with regard to the continuing validity of Knoblauch and Schlumm in crossover situations. However, the analysis remains valid in situations involving civil actions and has been applied recently in two unpublished decisions of this Court.
In Caveney v Kirkpatrick, unpublished opinion per curiam, decided August 13, 1991 (Docket No. 124149), this Court held that a wife’s malpractice action against her divorce attorney based on the inadequacy of the property settlement was barred by an appellate decision in the divorce proceeding holding that the settlement was fair and equitable. Similarly, in Sumpter v Koskinski, another unpublished opinion per curiam of the Court of Appeals, decided January 30, 1991 (Docket No. 116944), a malpractice action based upon the drafting of an antenuptial agreement was barred by a decision finding no breach of duty in connection with the agreement. In the first action, the attorney had been sued as the representative of the deceased husband’s estate; in the malpractice action, he was sued in his own name.
To succeed in his malpractice case, plaintiff must prove: (1) the existence of an attorney-client relationship; (2) the acts constituting negligence; (3) that the negligence proximately caused an injury; and (4) the fact and extent of the injury. Schlumm, supra at 359. There is no question that the acts allegedly constituting negligence, i.e., allowing or causing plaintiff to settle while he was not mentally competent, are identical to the issue decided in the federal case, i.e., whether plaintiff was competent at the time he signed the settlement agreement. There is also no question that plaintiff had a full and fair opportunity to litigate this issue in federal court.
Therefore, we hold that plaintiff is collaterally estopped from relitigating the issue, even though the parties are not identical, no mutuality exists, and no traditional exceptions apply.
Affirmed._
1 "A privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, or purchase.” Howell, supra at 43.
This is totally dissimilar to Lowman v Karp, 190 Mich App 448; 476 NW2d 428 (1991), which involved only the issue whether a settlement of an underlying action is an absolute bar to a subsequent action for legal malpractice. The underlying issue was not litigated in that case. | [
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Per Curiam.
Defendant Amerisure Insurance Company appeals by leave granted an order denying its motion for summary disposition based on the statute of limitations. The trial court held the one-year statute of limitations contained in MCL 500.3145(2); MSA 24.13145(2) was tolled by notice letters sent to Amerisure by plaintiff within the limitation period. We reverse.
On March 26, 1989, a car owned by Timothy Romback, and insured under a no-fault automobile policy issued by Amerisure, was involved in a collision with a car owned by Becky Swanson. As a result of the collision, the Romback car left'the roadway and struck and damaged a building owned by Salvatore T. Sarvello, doing business as Tudy’s Market. Ms. Swanson’s vehicle was insured by defendant Reliance Insurance Company, and the building and its contents were covered by a casualty insurance policy issued by plaintiff.
Mr. Sarvello made a claim against plaintiff for property damage and loss of income and use. Plaintiff investigated and adjusted the damage claim. By checks dated September 13, 1989, plaintiff paid Mr. Sarvello $53,201.05 for damage to the building and its contents. However the negotiations with respect to the claims for loss of income bogged down, and plaintiff did not tender its check for $9,093.50 to Mr. Sarvello for those claims until late September or early October 1990.
By letter dated September 12, 1989, the firm adjusting plaintiffs loss notified Amerisure of the intention to seek subrogation under the property protection insurance benefits provisions of Mr. Nomback’s no-fault insurance policy:
As you know, we have been handling this claim in behalf of U.S.F. & G. Insurance Companies who provided a business owners policy for Salvatore Sarvello, dba Tudy’s Market struck by your insureds vehicle on the above captioned date of loss.
We are getting close to settling this loss with the Sarvello’s and wanted to make you aware that subrogation papers will be forthcoming in the near future. In the event you would like somebody to check out the premises for your own satisfaction, please advise so that arrangements can be made at a later date and time.
It appears that this loss once the business interruption has been resolved will be somewhere in the area of $70,000.00. I thought for that kind of money, it would be advisable to inform you as to the status concerning this matter to date.
On December 18, 1989, plaintiffs adjustor once again contacted Amerisure by letter:
Please consider this letter to be formal written notice regarding the pending subrogation claim of U.S.F. & G. Insurance Companies who insured Tudy’s Market damaged by your policyholder on the above captioned date of loss. Written notice is made in compliance with the Michigan No Fault law, more specifically MCL 500.3145.
We are still in the process of working out the loss of income claim with the owners of Tudy’s Market, and therefore will be in touch once we have resolved this matter with them to perfect the final subrogation amount with you.
By letter dated October 1, 1990, plaintiff again notified Amerisure of the claim:
We had previously informed you on September 12th, 1989, and December 18th, 1989 that we would be forwarding documentation relative to the subrogation claim once settlement had been made with the owners of Tudy’s Market.
We have not been able to agree on a loss of income claim with the Sarvello’s, however we have tendered a check payable to them for $9,093.50 which we feel is representative of the loss of income claim which can be documented.
In addition to that, we are including copies of the Proofs of Loss for the building, and business personal property claim which total $53,201.05. Adding that to the loss of income claim, the total damages paid to the owners of Tudy’s Market comes to $62,294.55.
Since your insured’s vehicle collided with a second vehicle operated by Becky Swanson, we hereby make claim for 50% of the property claim for $31,147.28 at this time.
Amerisure, by letter dated October 16, 1990, refused to pay, citing § 3145(2) of the Insurance Code, MCL 500.3145(2); MSA 24.13145(2), which provides that an "action for recovery of property protection insurance benefits shall not be commenced later than 1 year after the accident.”
On January 2, 1991, plaintiff filed this action for subrogation and reimbursement by both Amerisure and Reliance of the claims paid to Mr. Sarvello. Reliance and Amerisure filed a motion for summary disposition, claiming that more than twenty-one months had elapsed since , the accident and, therefore, the complaint was untimely. The trial court denied Amerisure’s motion, having determined that the statute had been tolled from the time the plaintiff had given notice of the claim until the time Amerisure formally had denied liability. Amerisure applied for leave to appeal, which was granted. We now reverse.
Subsections 1 and 2 of § 3145 of the no-fault statute set forth the time limits for suits seeking no-fault benefits for personal and property protection insurance benefits:
(1) An action for 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 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. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. . . .
(2) An action for recovery of property protection insurance benefits shall not be commenced later than 1 year after the accident.
Defendant argues that because the Legislature specifically provided for tolling of the limitation period for recovery of personal protection insurance benefits, it specifically intended to omit any tolling provision with respect to actions for recovery of property protection insurance benefits. We find this reasoning persuasive.
When statutory language is clear and unambiguous, judicial interpretation to vary the plain meaning of the statute is precluded. The Legislature must have intended the meaning it plainly expressed, and the statute must be enforced as written. Frasier v Model Coverall Service, Inc, 182 Mich App 741, 744; 453 NW2d 301 (1991). The maxim "expressio unius est exclusio alterius,” the expression of one thing is the exclusion of another, means that the express mention of one thing in a statute implies the exclusion of other similar things. Feld v Robert & Charles Beauty Salon, 174 Mich App 309, 313; 435 NW2d 474 (1989), rev’d on other grounds 435 Mich 352; 459 NW2d 279 (1990). While this maxim is only a tool, we note that the Legislature is presumed to act with knowledge of appellate court statutory interpretations, Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505; 475 NW2d 704 (1991). Although Michigan and federal case law provides precedent for the principle that limitation statutes are not entirely rigid, allowing judicial tolling under certain circumstances, American Pipe & Construction Co v Utah, 414 US 538, 559; 94 S Ct 756; 38 L Ed 2d 713 (1974), we find that the Legislature did not intend to allow tolling under the property protection section of this statute.
In reaching our conclusion, we first note that the Michigan Supreme Court has affirmatively determined that tolling does apply to the one-year-back rule of § 3145(1). Welton v Carriers Ins Co, 421 Mich 571; 365 NW2d 170 (1984); Lewis v Detroit Automobile Inter-Ins Exchange, 426 Mich 93, 100-101; 393 NW2d 167 (1986). Under that provision, the tolling depends upon a triggering event sufficient to have started the tolling. For example, a notice of injury was held insufficient to trigger tolling in Welton because it did not inform the insurer of the expenses incurred, whether the expenses were covered losses, and whether the claimant would in fact file a claim.
A panel of this Court subsequently addressed whether a tolling provision exists under § 3145(2). The Court in Preferred Risk Mutual Ins Co v State Farm Mutual Auto Ins Co, 123 Mich App 416; 333 NW2d 303 (1983), held that § 3145(2) is tolled from the time the insurance company is notified of the claim until the company formally denies it. The Court did not determine what type of notice triggers the tolling. See also Norfolk & W R Co v Auto Club Ins Ass’n, 894 F2d 838, 843 (CA 6, 1990), where the Sixth Circuit Court of Appeals, relying in part on Preferred Risk, determined that tolling may be triggered by events that amount to more than simple notice of a claim.
Our examination of the plain language of § 3145(2) leads us to conclude that the Legislature, by omitting notice and tolling provisions in that section, which deals with property damage benefits, while including them in § 3145(1), which deals with personal injury benefits, did so intentionally. We find no tolling under the facts of this case. Although plaintiff as early as September 1989 had paid the bulk of the total claim, it made no specific claim against Amerisure until October 1990. Plaintiff neither informed Amerisure that it had paid much of the claim nor provided Amerisure with proof of loss or demand for payment for the claims involving the building and its contents. Instead, plaintiff chose to delay the making of a formal claim until after it had completely resolved all of Mr. Sarvello’s claims against it, including the $9,093.50 claim for loss of income. By this time, however, more than eighteen months had elapsed since the accident. Therefore, even if there were tolling of the statute of limitations between the date of the making of a specific claim and the date of defendant’s denial of liability, that tolling would not save this action from operation of the statute of limitations.
For the foregoing reasons, the trial court’s denial of Amerisure’s motion for summary disposition is reversed.
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Cahill, J.
This suit was commenced by declaration to recover for injuries received by plaintiff by his falling through a trap-door in the store of defendants on January 26, 1888.
The building of defendants had, prior to their entry therein, been occupied by one Morehouse as a hardware store. Plaintiff had been employed by Morehouse as a tinsmith. The shop in which he worked was on the second floor. Plaintiff's only means of access to the shop in which he worked for Morehouse was by way of the front door of the store, and up inside stairs; at that time there being no stairs to the rear door of the store. The store fronted west on Main street, and along the south side of it ran Lafayette street. Some months before the accident the defendants came into possession of the store, and plaintiff was permitted to continue his business in the shop he had worked in for Morehouse. Some time after the defendants took possession, the post-office was moved into the store. Up to this time the back door of the store was only used to receive goods in, and not as a way to the store. The testimony tends to show that, after the stairs were put up at the back door of the store, leading from the ground to a platform, most of the people coming to the store from the east entered it by the back door. The stairs and platform were narrow, and without rail.
The trap-door or hatchway through which plaintiff fell was in front of the back door, and from a foot to a foot and a half distant from it. It had been there from the erection of the building, and was used as a way through which to hoist heavy goods from the cellar to the store floor, and' through a trap-door overhead to the second floor. Plaintiff, after the back stairs had been put up, had been accustomed to have his wood taken up the back way, by the load or cord at a time, having it thrown on the platform, and carried up in baskets. It was the custom of those employed in the store in the morning to use the hatchway for throwing up from the cellar the day’s supply of wood. This custom was known to the plaintiff. It was also usual to keep the back door locked when the trap-door was open. The door of the hatchway, when opened, rested against a desk, and could be seen by one on the platform, about to enter the door, through the glass, which extended from the latch up. The plaintiff testified that some of the panes of glass were gone, and had been replaced by tin. He said: “I did not look through the window. I couldn’t.” He was not asked, and did not say, why.
On the morning of the accident the store was opened by Wilber Smith, a son of one of the defendants. The plaintiff entered with him, went up to his shop, built his fire, came down, and went to his breakfast. Wilber Smith testified that he did not see him go out. Soon after the plaintiff and Smith entered, Ernest Brabb, a son of the defendant Brabb, came in. He sprinkled the floor, and began sweeping out. He saw the plaintiff go out. Young Smith, as usual, opened the trap-door, and went down cellar to throw up wood. Ernest Brabb was at the other end of the store, sweeping. Both Smith and Brabb testified that they did not remember having unlocked the back door that morning; but, as there was no evidence that any one else was there who could have done so, the jury must have concluded that they were mistaken. The plaintiff lived north and east from the store, and in returning from breakfast came to the rear of the store from the east, picked up an armful of wood, and, carrying it up the outside stairway, opened the rear door, and stepped in, and in doing so fell through the hatchway, and was injured. On hearing the door open, the young naan in the cellar, looking up, saw the plaintiff, and called loudly to him; but the plaintiff says he did not hear him. In the fall the plaintiff’s leg was broken just above the ankle, and his arm and shoulder badly bruised.
The negligence charged is that the defendants failed to properly guard the hatchway while it was open, or to warn the plaintiff of the danger. The plaintiff recovered a judgment of §1,000, and the defendants bring error. Errors are assigned upon the admission and rejection of evidence, and upon the charge and refusals to charge of the court, but the principal questions in the case are:
1. Were the defendants guilty of negligence?
2. Was the plaintiff guilty of contributory negligence?
It is not charged that the maintenance of this hatchway was of itself negligent. Trap-doors, elevator shafts, and similar openings in floors have long been a usual and necessary part of the appliances of business in most warehouses, manufactories, and other business buildings. The mere fact of their existence and use is no evidence of negligence. But they are dangerous openings, especially if located in places where they are obscured by darkness, or in such close proximity to doors that a person entering the door may step into them unawares. The fact of their dangerous character makes it the duty of those maintaining them to properly guard them when they are open. If, as in the case of this hatchway, it is not practical to guard it with a railing, it has been held that the owner is bound to give actual notice of the danger to every person lawfully approaching the place, and, in default of such notice, he is liable for all injuries resulting therefrom. Shear. & R. Neg. § 719, and cases cited.
It would seem, under the circumstances of this case, that the defendants could only properly guard this hatchway by locking the back door when the hatchway was open, or by stationing some one at the opening to give actual notice to any one who might approach it. Its close proximity to the door made it extremely difficult for one entering the door without notice that the hatchway was open to stop in time to save himself from falling into it. There was abundant evidence tending to show the defendants’ negligence. Young Brabb saw the plaintiff come down stairs, and go out of the store. He could not know by which door he would return, as both doors were used freely by people coming to the store or post-office. There were two young men in the store at the time, one of whom ought to have stood guard while the trap was open. If the back door had been locked, the accident could not have occurred. One or the other ■of these precautions was necessary, and ordinary care required the defendants and their employes to observe them.
The question of the plaintiff’s contributory negligence is one of more difficulty. He knew as much about the location of the trap-door as did the defendants. He knew that it was customary for defendants to use it at that time of the day in throwing up wood for the use of the store. He did not think, upon opening the door, to stop and examine to see whether the trap was open before stepping in. Any thought on his part at the moment would have prevented the accident, and the question is a very close one as to whether the duty on his part of. taking care was not as great, under the circumstances, as was the duty of the defendants. The controlling fact in the case seems to be, however, that the negligence of the defendants’ employés was active. The opening of the trap-door was a circumstance which of itself called their attention to the duty of guarding it. It was a warning which, with their knowledge of the frequency with which the back door was used, they could not disregard without being guilty of negligence as. a matter of law. The plaintiff had no such immediate warning. Neither did he have any reason to apprehend danger. It is a sound rule of law that it is not contributory negligence not to look out for danger when there is no reason to apprehend any. Beach, Contrib. Neg. 41, and cases cited. The authorities cited by the learned commentator go much further than the text, and state the rule to be that every one has a right to presume that others, owing •a special duty to guard against danger, will perform that duty. Grand Rapids, etc., R. R. Co. v. Martin, 41 Mich. 667 (3 N. W. Rep. 173). As we have said, the question is one of some difficulty, and is not free from doubt. We have held that in such cases the facts should be submitted to the jury. Palmer v. Harrison, 57 Mich. 183 (23 N. W. Rep. 624); Dundas v. Lansing, 75 Id. 499 (42 N. W. Rep. 1011).
The plaintiff, when on the stand, was allowed to answer .this question:
“ What is the fact about people waiting about the trapdoor for mail?”
And Miss Cargill was allowed to answer the question:
“To what extent was that portion of the store in the rear, right opposite the post-office, used by the public?”
This evidence was objected to by the defendants’ counsel, and error is assigned upon its admission. It is claimed that this testimony in no wise tended to show negligence on the part of the defendants in the use of the hatchway at the time of the accident, but that it was likely to prejudice the jury, by conveying the idea that it was negligence for the defendants to have the hatchway at that place at all. We do not see how this testimony was very material. It might possibly tend to show additional reasons for the exercise of due care by the defendants. The accident occurred at half past 7 in the morning. At that hour, it was not unlikely that people might come into the post-office, and in such case the trap-door would be a source of danger. We cannot say that the admission of this evidence was error.
James McFarlane, a witness for defendants, and long employed as clerk in the store, up to the date of the-accident, testified that, when using the trap-door, the back door was usually kept fastened. He was asked:
“What instructions were given by Smith and Brabb in-regard to that?”
This was objected to by plaintiff, and excluded. It is claimed by defendants’ counsel that they ought to have-been allowed to prove that the defendants had given instructions to their employés to keep the back door fastened when the trap-door was open. We do not see-how this is material. The injury complained of resulted from the negligence of the defendants’ employés in not locking the back door, or properly guarding the trapdoor. For this the defendants were liable, and they could not be relieved from such liability by showing that-they had given their employés different instructions.
Various errors are assigned by defendants upon the refusal of the court to give certain of their requests to the jury. We have examined them carefully, and, are of the opinion that all of the requests that ought to have been were in fact given, in substance, in the charge of the court.
The judgment is affirmed, with costs.
Champlin, O. J., and Long, J., concurred. Morse and Grant, JJ., did not sit. | [
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Champlin, C. J.
Frances E. Meech filed her bill of complaint against Philo D. Beckwith to compel the delivery up and cancellation of two notes and mortgages, which she claims were procured from her under circumstances which amounted to duress, and which should also be declared void on grounds of public policy.
She alleges that she is the widow of Stephen H. Meech, who died several years ago; that she is 69 years of age, and is infirm from age; that her husband, at the time of his death, was the owner and seised of certain real estate, a portion of which constituted the family homestead; that she has been endowed in a part thereof during her life, and resides upon the same; that, aside from her interest in such lands, she has no means of support; that she has a son, named Marquis H. Meech, who is married, and resides with her upon the homestead. Complainant further charges that—
“ On or about March 14, 1887, one Fred E. Lee, who, she is-informed and believes, is the son-in-law of Philo D. Beckwith, who is named as mortgagee iu each of the mortgages hereinafter mentioned, and another person, whose name she does not know, but who, she was told by the said Fred E. Lee, was a sheriff, came to her residence; that the said Lee represented to her that he came there as the agent of the said Philo D. Beckwith; that her son, Marquis H. Meech, had borrowed and procured of the said Philo D. Beckwith the’ sum of $2,000, to secure the payment of which he had given to said Beckwith a mortgage on his portion of the lands inherited as above stated; that said Lee further stated toiler that, in order to procure such moneys, he, the said Marquis, had falsely represented to said Beckwith that the lands which he proposed to give as security for such sum were free and clear from all incumbrances; that, in order further to convince said Beckwith that said lands were free and clear of incumbrance, he produced and exhibited and gave to said Beckwith an abstract of title to said lands from the firm of Dix & Wilkinson, abstractors of titles in said Berrien county, which abstract, as exhibited and given to the said Beckwith, did show that the said Marquis H. Meech had an unincumbered title to the lands mortgaged; but that the same was not a true abstract, nor such a one as had been furnished by the said title abstractors, but had been changed and mutilated by him, said Marquis, so as not to show several previous mortgages for large amounts upon the same premises; that said abstract had been so changed and mutilated by the said Marquis for the purpose of falsely obtaining such money, of the sum of §2,000, from the said Beckwith; and that by means of such false pretenses the said Beckwith had advanced him, the said Marquis, the said sum of §2,000, taking as security a mortgage on such lands, believing such representations to be true, and that the same were not incumbered, whereas in fact and in truth they were incumbered by mortgages previously given by the said Marquis to a large amount, and that the security of the said Philo D. Beckwith, by reason thereof, was comparatively worthless.
“ Complainant further says that the said Lee further represented to her that by such proceeding and false pretenses her son, the said Marquis H. Meech, had committed a criminal offense punishable by imprisonment in the State prison; and that, unless she would join in a mortgage of her lands to said Beckwith to secure the payment of such sum as the said Beckwith would have to advance to pay off such prior incumbrances on the lands of said Marquis, the said Beckwith would cause her said son to be prosecuted for such offense. Complainant says that she was very reluctant to mortgage her lands for such or any purpose,' and at first refused so to do; that the said Lee then told her the sheriff was there with him with the papers all ready to arrest said Mafquis; that he, the said Lee, and the person whom he said was a sheriff, remained until long after dark. And complainant says that the wife of the said Marquis was then living with your oratrix, and was sick and about to be delivered of a child, and had been informed of the trouble, and was suffering and crying bitterly.
“ And complainant says that finally, and at a late hour in the evening of the said 14th of March, 1887, she reluctantly signed a mortgage of her lands to the said Philo D. Beckwith, wherein and whereby she was 'made to agree to pay to the said Beckwith, 80 days after such date, the sum of $1,700, with interest at 8 per cent, per annum, and signed also a note for such sum payable to said Beckwith 30 days after date, such lands being described in such mortgage as follows:
“‘The same being in Bainbridge, Berrien county, Michigan, and known as subdivision No. Í, of the estate of Stephen H. Meech; beginning at north-west corner of section twenty-six, town four south, range seventeen west; thence south forty chains; thence easterly along the center of highway ñve and 1-100 chains; thence north thirty minutes and 95-100 chains; thence west five and 1-100 chains to place of beginning — 20 2-100 acres. Also, lot two (2) in subdivision of said estate aforesaid. And also, lot eight (8) in subdivision aforesaid of .said estate.’
“And reference was made in said mortgage for a more particular description to the record of said subdivision of said estate, recorded in Liber 3, Miscellaneous Records, p. 249, register’s office, Berrien county, Michigan. Such mortgage purported to be duly executed, and was delivered to the said Lee, as agent for the said Beckwith, and was afterwards recorded in the office of the register of deeds of Berrien county, Mich., March 15, 1887, in Liber 40 of Mortgages, on page 9.
“Complainant further says that on or about the 24th day of March, 1887, the said Lee, as agent for the said Beckwith, again came to her residence, and stated that since the execution of the said mortgage dated March 14, 1887, the said Beckwith had discovered that the sum which he was compelled to pay to redeem the prior incumbrances on the said mortgaged lands of said Marquis was much greater than 51,700, and amounted to the sum of §2,440, or thereabouts, and insisted that the complainant should make another or new mortgage for such sum of §2,440; and again the said Lee threatened this complainant that, unless she would give such mortgage, the said Beckwith would immediately cause the arrest of said Marquis, but that, if she would sign the same, the said offense of said Marquis would be condoned, and no prosecution had.
“Complainant says that at the time she was sick, and nearly worn out with trouble and nursing of her sick daughter-in-law, and that under such threats and coercion she did join in another mortgage on March 24, 1887, to the said Philo D. Beckwith, for the sum of §2,440, to be paid on or before ten years from date, with interest at 8 per cent, per annum, payable annually; the lands embraced in said mortgage being described as follows:
“ ‘All those pieces or parcels of land situate in Bainbridge, Berrien county, Michigan, to wit, lots one, two, three, four, and five, in the subdivision of part of the north-west quarter of section twenty-six, town four south, range seventeen west, made by cdmmissioners in partition of the estate of Stephen H. Meech, deceased; beginning at the north-west corner of section twenty-six aforesaid; thence running south along section line forty chains; thence eastward along the center of highway 35 91-100 chains; thence north thirty-nine and 04-100 chains to the north line of said Section; thence west along the north line of said section to the place of beginning, — one hundred and forty-three acres of land, more or less. Also, lots seven and eight of the subdivision of part of the south-east quarter of section twenty-five, in town four south, range seventeen west, made by the commissioners in said estate, and de scribed as all that part of the east one-half of said south-east quarter lying south of the highway, and containing forty-one acres of land more or less.’
“Such mortgage purports to be properly executed by your oratrix, and was taken by the said Lee, and delivered to the said Beckwith, as your oratrix is informed and believes, and was subsequently recorded in the office of the register of deeds, Berrien county, Mich., April 5, 1887, in Liber 36 of Mortgages, page 377. And your oratrix further says that she never received any consideration whatever for the giving of either of the above-named mortgages, and that she had ijo reason for giving either of them other than as she has stated. Complainant further says and charges that she only signed such mortgages and the notes accompanying the same through fear and duress, and was unduly harassed and over-persuaded into making the same; and that for such reasons, each cf said mortgages, so far as she is concerned, or is a party thereto, is a fraud upon her rights, and is void. And she further says that the only consideration for such mortgages, or either of them, so far as she is concerned, was an agreement on the part of said Beck-with that if she would make the same he would not prosecute the said Marquis, her son, for the said alleged offense. And complainant says that such agreement or promise was and is contrary to public policy and unlawful, and that for such reason also said mortgages are each void.
“And your oratrix says that the said Beckwith, well knowing the premises, notwithstanding insists that your oratrix shall pay him the sum named, and asserts that he has full right to collect the same, and to sell the lands of your oratrix, embraced in such mortgages, under foreclosure.”
The answer to the bill was made by the defendant, Philo D. Beckwith, in his life-time, wherein—
“He admits that the complainant is the widow of the late Stephen H. Meech, deceased, and that she is the mother of Marquis H.'-Meech, and that complainant was and became seised and possessed of part of the lands of which her husband died seised as his widow, to wit, some 76 acres was duly assigned to her, which embraced the buildings upon the farm, and being the same lands described in the bill of complaint. The defendant further admits that the said Marquis H. Meech was and is the owner of certain lands, to wit, 106 acres of land in the township of Bainbridge, Berrien county, and which his father, Stephen H. Meech, owned at the time of his death, and of which the said Marquis H. Meech became such owner, in part by inheritance from his father, and in part by purchase subsequent to the death of his father from the other heirs, and as owner he went into and still is in possession of the same.
“And this defendant, further answering, says that on or about the 81st day of March, 1884, the said Marquis H. Meech came to this defendant in the city of Dowagiac to obtain a loan of $2,000, and, in order to secure the repayment of the same with interest, proposed to mortgage to this defendant certain real estate in Bainbridge township, Berrien county, Mich., to wit, certain premises containing 106 acres of land, and embraced in his mortgage to this defendant, — as by the said mortgage, ready to be produced as this court shall direct, or the record thereof, duly recorded with the register of deeds for the county of Berrien, will more fully appear, —representing to this defendant that the said 106 acres of land was improved and valuable land, and that on the same was a good dwelling-house with a good barn and other outbuildings, and that said premises were free and clear from all liens and incumbrances whatsoever; and at the same time he exhibited to this defendant an abstract of said premises showing that he had an unincumbered title to said real estate.
“ That this defendantj in full reliance upon the representations of said Marquis H. Meech, and the corrcetness of the abstract so exhibited to him, loaned him the said sum of $2,000, and thereupon the said Marquis H. Meech executed his promissory note for the said $2,000, and at the same time executed and delivered to this defendant a mortgage upon the said premises to secure the repayment of the said loan of $2,000, with interest at 8 per cent, per annum, evidenced by said promissory note, within five years from the date of said promissory note and mortgage; that the ,said Marquis paid the first year’s interest as agreed in said note, but failed to pay the second year’s interest, and after the same had been due a long while and on or about the 1st day of February, 1887, this defendant, on making inquiries as to the character of said security, learned for the first time that there were no buildings upon said premises, and the land was worth about $3,000, and that the same was not free and clear from all liens and incumbrances, but, on the contrary, said premises were, at the time of obtaining said loan of this defendant, largely incumbered with mortgages, one to Rufus P. Barnard, one to Freedom Shepard, and one to John S. Edwards. This defendant was informed that said several mortgages were due, and the principal sum of the several mortgages amounted in the aggregate to $1,700. This defendant further .says that the said Marquis H. Meech had mutilated the said abstract of title of said premises, made by Dix & Wilkinson, abstractors of Berrien county, by cutting off that part of said abstract that showed that these several mortgages were still unpaid and undischarged, and then exhibited the said abstract as showing that the said Marquis was possessed of an unincumbered title to said premises.
“This defendant further says that he was informed by said Dix & Wilkinson that the said several mortgages amounted in the aggregate to some $1,700, the amount they were given, originally to secure, and that the mortgages must be looked after; that thereupon defendant sent Fred E. Lee to see the said Marquis H. Meech in reference to them, and the defendant is informed, and believes and states the fact to be, that the said Fred E. Lee, with Eoscoe D. Dix, went to the house of said Marquis H. Meech, and had an interview with him about said mortgages, on or about the 14th day of March, 1887; that Marquis H. Meech and the complainant were and are living together as one family; that during the interview it was finally arranged and mutually agreed that if this defendant would advance the money, and pay off these several mortgages, the said Marquis and this complainant would give him a mortgage for the amount so advanced them as hereinafter stated; that the said Marquis H. Meech and the complainant were to execute a mortgage upon the said premises; that is, the said Marquis H. Meech was to execute a mortgage upon all his interest in said 106 acres, and also on his interest of an undivided one-third interest in all the remaining lands of which his father died seised, and in which his mother, the complainant, was entitled to a life-estate.'
“And the complainant proposed, and agreed on her part, in consideration of the said Marquis H. Meech deeding and conveying to her all his interest in said 106 acres, and also all his one-third interest in and to the said balance of said real estate, to wit, the said 76 acres, to secure her, to join with her said son, Marquis, in the said mortgage to this defendant. It was further arranged that this defendant, for the repayment of the money that he should advance to take up these several mortgages, would wait ten years, with interest to be paid annually; and, the true amount of said mortgage not being known, it was finally agreed as a temporary and preliminary arrangement that a mortgage for §1,700, the principal sum of said several mortgages upon said mentioned premises, together with a note for $1,700, due thirty days from date, be made by said complainant with her son, Marquis H. Meech, together with Mary E. Clifton and Milton Meech, running to this defendant, and should be left with Eoscoe D. Dix, and within thirty days he should ascertain the true amount due upon said several mortgages, and then a new mortgage, with a new note running ten years from date, with interest at 8 per cent, per annum, payable annually, should be made and executed in place of the §1,700 mortgage by the said complainant and Marquis H. Meech, together with said Mary E. Clifton and Milton Meech. In pursuance of this arrangement the said mortgage of the said $1,700, together with the said note, was then executed. Afterwards the said Roscoe D. Dix, having ascertained the actual amount due to the said mortgagees on the respective mortgages, thereupon called upon complainant and the said Marquis H. Meech at their residence upon the premises in Bainbridge, and on the 24th day of March, 1887, in accordance with said arrangement, made out the mortgage of §2,440, and the same was executed by the complainant and Marquis H. Meech and his wife, and was also signed by Mary E. Clifton, but was not executed by the said Milton Meech, he declining to join in this mortgage. This mortgage not only embraced the lands of complainant, as mentioned in her bill of complaint, but the lands of Marquis H. Meech and his interest in the said first-mentioned premises, as well as the interest of Mary E. Clifton therein. * * * * * *
“And this defendant further says, as he is informed and believes, and therefore states the truth to be, that thereupon, and on the-same day, to wit, the 24th day of March, 1887, the said Marquis H. Meech, with his wife, and as a part of the same transaction, made, executed, and delivered a deed of all of his interest and estate in his lands hereinbefore mentioned to the complainant, to secure her for giving the said mortgage upon her said lands, as by such indenture of deed of conveyance, which this defendant avers to be in the possession and under the control of the said complainant, will fully appear, and prays may be produced as this court, shall direct, or by the record thereof, duly recorded in the office of the register of deeds of Berrien county, will, on reference, appear.
“This defendant, further answering, says that in pursuance of the said arrangement and agreement, and in full execution thereof of said mortgage and the note for §2,440, this defendant paid the several mortgages, as by the receipts of which payment now in the possession of this defendant, and ready to be produced and proven as this court shall direct, may more fully appear; and said several mortgages were duly discharged of record, as by the said several discharges of mortgages now in the possession of this defendant, and ready to be produced as this court shall direct, or the records thereof duly recorded in the office of the register of deeds of the said county of Berrien, will fully appear.
“This defendant, further answering, says that the said mortgage was made, executed, and delivered to this defendant solely to fulfill and carry out the arrangements and agreements made between this defendant and complainant and the said Marquis H. Meech, as aforesaid, and the defendant paid the said several mortgages in full reliance upon the said mortgage, and that the same was executed and delivered to the defendant solely to carry into effect the agreement with the defendant as aforesaid.
“This defendant, further answering, says that complainant freely offered to execute to this defendant the said mortgage with her son, Marquis, on his deeding and conveying to her his real estate as aforesaid, and to secure this defendant for advancing the money needed to pay and satisfy the said several mortgages as aforesaid.
“ And this defendant expressly and absolutely denies that the said Fred E. Lee ever held out any threat, promise, or persuasion, or practiced any improper circumstances whatever, to induce the complainant to execute said mortgage of §1,700, or the mortgage of §3,440.
“ And he expressly and absolutely denies that the said Fred E. Lee ever threatened the complainant that if she did not join in said mortgage made March 14, 1887, and the mortgage made March 24, 1887, or either of them, this defendant would cause the arrest of Marquis for his misrepresentation in obtaining the loan of §2,000 as aforesaid.
“ And he expressly denies that said Lee told complainant that the sheriff was in attendance ready to arrest the said Marquis on her refusing to join in said mortgage; and this defendant expressly and absolutely denies that the complainant refused to sign either of said mortgages, or signed them, or either of them, with any reluctance whatever; but, on the contrary, this is true, as the defendant is informed and believes, that the representations of Marquis to this defendant were talked over in her presence with Marquis. She had a full understanding of the mortgages being on the land prior to the defendant’s mortgage, and the arrangement and agreement hereinbefore stated was talked over fully, and adopted to carry it into effect. * * * * * *
“And the defendant does fully, entirely, and absolutely deny that the execution of said mortgage on the 24th day of March, 1887, was obtained by or through means of any fraud or any threat or other improper practice of any nature or kind whatever.”
When Stephen H. Meech died he left four children, his heirs at law, consisting of three sons and one daughter. One son died after the father's decease, and those living at the time of the acts narrated were Milton Meech, Marquis H. Meech, and Mary E. Clifton, all married. There had been a partition of all the property except the homestead of 56 acres, and 20 acres in which the son who died had purchased the interest of the other heirs. On his death it descended to his mother, two brothers, and one sister in equal shares, and it was this 76 acres which was set out to the widow as her dower. The portion set oil to Marquis H. Meech was described and was designated in the partition proceedings as lots 3, 4, 5, and 7, containing in the aggregate 107 8-100 acres, and is referred to in the testimony as the 107-acre tract, and. this was the land which he had mortgaged to Beckwith and other parties.
The testimony was taken in open court before the circuit judge. And, in passing, it is well here to state that during the taking of the testimony objection was made to certain questions, and the testimony called for was rejected by the circuit judge, and does not appear in the printed record. This was wrong. The circuit judge, in cases of this character, has no authority to absolutely reject testimony, unless it is of a nature so scandalous as not to be proper to appear in the record of the proceedings. He cannot reject testimony upon the objection that it is irrelevant and immaterial. He may rule upon it, but the testimony must be taken and returned, and this for the reason that the Supreme Court is in equity an appellate court, and has a right to pass upon all the testimony, as well as upon the rulings of the circuit judge. If testimony is forced into a case which is evidently irrelevant and immaterial, a motion may be made to expunge it, and the court may order it expunged with costs against the solicitor insisting upon its being taken; but it must be returned to this Court, in order that we may pass upon the correctness of the ruling. Some testimony, as appears upon this record, was excluded which was evidently a part of the res gestee, but sufficient remains to enable us to determine the issues involved upon their merits.
Some facts are proved by the testimony of the wit nesses for both parties, and may be considered as admitted. They may be summarized as follows:
1. Marquis H. Meech had obtained $3,000 from Beckwith by false pretenses.
3. Beckwith had made a criminal complaint before Henry Michael, a justice of the peace, against Marquis H. for the crime of obtaining money by false pretenses, and a warrant was issued by tbe justice for his arrest, and delivered to Beckwith. The complaint was drawn by the prosecuting attorney, and was made on the 14th of March, 1887, and the warrant was issued that day.
3. Mrs. Frances E. Meech was not indebted to Beckwith, and had no part in obtaining the money from him, and knew nothing of the fraud practiced upon him.
4. She had a dower and homestead interest in certain lands, and also an undivided one-fourth interest in 30 acres more, which was her own property.
5. She was the mother of Marquis H. Meech, and was induced by some person or persons, and by some means, to execute a mortgage upon all her interest in the lands mentioned, to secure the payment of $3,440 indebtedness which she did not owe, and was under no legal obligation to pay.
6. The two Lees, Dix, and Chase, the deputy-sheriff, went to Mrs. Meech on March 14, 1887, to settle up the matter of the prior mortgages, and, in case it could not be settled, to arrest Marquis H., and prosecute him for the offense; they were armed with a warrant for his arrest.
7. The warrant has never been returned, nor the criminal offense prosecuted.
The disputed questions of fact are, whether the parties who represented Mr. Beckwith’s interests made any threats or statements as to the arrest of Marquis H., or of sending him to prison, before the notes and mortgages were executed.
Counsel for defendants seems to think that if no threatening language was used to complainant, or in her hearing, the case of complainant is not made out. And in addition to the denial of the two Lees and Dix, and the total want of memory of Chase, the deputy-sheriff, who did no talking, and had nothing to do but listen, defend ants have introduced several impeaching witnesses who testify that the reputation of the whole Meech family for truth and veracity is bad, and that they should not want to believe them under oath. The testimony of the impeaching witnesses, when sifted, is entitled to no weight; and the denial of defendants’ witnesses was in conflict with the natural sequence of the facts, about which there is no dispute, above narrated, unless they went there with the preconceived design and understanding that if they could obtain this security without actually making threats of arrest it would be valid, and it is quite possible that there was such an understanding.
The transaction of the 14th, when the first, or preliminary, mortgage for §1,700 was given, and that of the 24th, when the $2,440 mortgage was executed, were in fact one transaction, having one object in view. Mr. Dix admits that on the night of the 14th, after the $1,700 mortgage was executed, and after the other parties had left, he stayed there a half an hour, perhaps, and it was then brought up, and discussed by Mrs. Meech, Mrs. Clifton, and himself; that it was a very hard thing,— what a loss it might be to them in ease they could not sell. He consoled them by telling them—
“We all had experiences of that kind, or most all. Of course it was a good deal better to settle it up in this way than to have trouble otherwise.”
And he also says, upon his cross-examination, that in this conversation he told Mrs. Meech that it was a criminal offense, and that Chase, who was there during the day, was the sheriff. The pertinency of the remark that “it was better to settle it up this way than to have trouble otherwise ” is plain to be seen. It cannot be denied that these facts were brought home to Mrs. Meech before she executed the second mortgage, and must have influenced her to do so.
It is claimed by tbe solicitor for complainant that the facts and circumstances which occurréd upon the 14th of March, by which complainant was induced to execute ■a note and mortgage for $1,700, show that she was induced thereto by a sort of duress, and it was not her voluntary act; and that such influence continued, and was the inducing influence of her executing the mortgage and note for $2,440.
Courts of equity grant relief in many cases where there is no legal duress in the strict acceptation of the term, and where the wronged party would perhaps be remediless at the common law. Thus it is said:
“ Where there is no coercion amounting to duress, 'but a transaction is the result of a moral, social, or domestic force exerted upon a party, controlling the free action of his will, and preventing any true consent, equity may relieve against the transaction on the ground of undue influence, though there may be no invalidity at law.” 2 Pom. Eq. Jur. § 951.
So, it is laid down by Mr. Justice Story that when a person—
“ Does an act, or makes a contract, when he is under duress or the influence of extreme terror or of threats, •or of apprehension short of duress,” he may be relieved in equity; “for in cases of this sort he has no free will, but stands in vinculis, and the constant rule in equity is that where a party is not a free agent, and is not equal to protecting himself, the court will protect him. * * * Circumstances also of extreme necessity and distress of the party, although not accompanied by any direct restraint or duress, may in like manner so entirely •overcome his free agency as to justify the court in setting aside a contract made by him on account of some oppression or fraudulent advantage or imposition attendant upon it.” 1 Story, Eq. Jur. § 239.
Harris v. Carmody, 131 Mass. 51, was a case where a son had forged his father’s name to promissory notes, as indorser. The holder sued the father, and before the suit terminated the father settled the suit, and gave his note for $1,000, secured by a mortgage on real estate. The wife of the mortgagor paid interest on the note and mortgage twice, and once in the presence of her husband. She testified she paid it for her son. The mortgage was foreclosed, and proceedings taken to dispossess the mortgagor and his wife, and he set uj> as a defense that the note and mortgage were obtained by duress. The evidence tended to show that he was induced to sign the mortgage by threats of the prosecution and imprisonment of his son. Mr. Justice Morton, after referring to authorities, said:
“The exception in favor of husband and wife is not based solely upon the legal fiction that they are in law one persoD, but rather upon the nearness and tenderness of the relation. The substantial reasons for the exception apply as strongly to the case of a parent and child as to that of a husband and wife. No more powerful and constraining force can be brought to bear upon a man to overcome his will, and extort from him an obligation, than threats of great injury to his child. Both upon reason and upon the weight of the authorities we are of opinion that a parent may void his obligation by duress to his child, and therefore that the ruling of the superior court upon this point was correct.”
Foley v. Greene, 14 R. I. 618, was a case very much like this. In that case the court said:
“It is true, there was no direct threat by Hanley, but there was a pressure exerted which had the effect, and was doubtless intended to have the effect, of a threat.”
And in that case the court quotes at length from the case of Bayley v. Williams, 4 Griff. 638, in which case the note and security were given by a father to protect his son from criminal prosecution for forgery of his father’s name to certain promissory notes. At page 659 the court says:
“ If the fair result of the evidence shows that the agreements were executed under influence felt by the plaintiff, and exercised by the defendants, if the fear of the criminal prosecution against the plaintiff’s son, or if the result of the discovery of a criminal act, for which the plaintiff was not liable, was used by the defendants against the plaintiff, to operate upon his fears so as to induce him to give a security which would relieve his son from a criminal prosecution, according to the law of this court a security obtained under such circumstances cannot stand. The inequality in the situation of the parties, the one exacting a security which the other is driven to give in order to save his son from exposure, disgrace, and ruin, taints the security obtained under the influence of such fears. If the main and influencing purpose was the relief of the son from the consequences of his crime, if this was the main consideration operating on the father’s mind, and was the origin and real cause of the transaction, the intervention of other circumstances, or other collateral advantages to the father, will not be enough to justify the court in upholding such a security.”
The case reported in 4 Giff. 638, was appealed to the house of lords, and is reported in L. R. 1 H. L. 200 (Williams v. Bayley). Separate opinions were given by the lord chancellor and by Lords Chelmsford and West-bury, and the decree or order, was affirmed, and the bill dismissed. The opinions pronounced in that case are quite applicable to the case at bar. See, also, the case of Coffman v. Bank, 5 Lea, 232.
The case under consideration may be considered from two points of view:
1. Was the complainant a free and voluntary agent, or did she give the security in question under undue pressure exerted by the emissaries of the defendant?
2. Was the transaction, taken independently of the question of undue influence, an illegal one, as being contrary to the rules and settled principles of law?
In considering the first point, it is pertinent to ascertain what was the basis of the transaction or negotiations between Beckwith, acting through his agents, and the complainant, that led to the giving of the securities in question, and what was the motive or inducement that was brought to bear on the complainant in order to induce her to give the securities. It is not claimed that she was liable for the debt of her son in any manner, but the negotiations were conducted throughout upon the basis that her son had committed a serious offense and was liable to criminal prosecution. This is apparent from the testimony of witnesses for defendants, not only from what was said, but from the whole conduct of the parties who obtained the securities. It is idle to say that Mrs. Meech did not understand that her son stood in jeopardy of being arrested for the mutilation of the abstract and obtaining the money thereby. The language used was a menace, as stated by defendants’, witnesses. And that Mrs. Meech was greatly agitated and wrought upon, so that in her mental distress she shed tears, is also proven by their testimony. The prospect was presented to her of her son’s disgrace, and the danger of his being taken from her home, leaving her without help or assistance, with his wife in the critical condition described. Ey the testimony there were ’ four men there, three <of them urging a settlement, and the giving of security by this aged mother for her son, one of them playing the part of the mysterious stranger. What was the settlement they were urging? What had she to settle? Is there any doubt that in her mind and understanding she was settling the serious offense her son had .committed, to save him from prosecution? Was that not the object of the parties who went there for that purpose? They admit they had a warrant for her son’s arrest with them, and a sheriff to serve it; and they admit the arrest would have been made had not the settlement been effected. What, then, was the motive which Induced the mother to mortgage all she possessed to this .party to whom she did not owe one cent? The only motive to induce her to do so was the hope that by so -doing she would relieve her son from the inevitable consequences of his crime.
The question is whether, when under such circumstances, about which there is no dispute, a mother is appealed to to take upon herself an obligation of paying $2,440, with the knowledge that unless she does her son will be exposed to a criminal prosecution, with the certainty of conviction, it can be regarded as her free and voluntary act. I have no hesitation in saying that it cannot. She stated to these men that she did not want to do it; that she ought not to do it at her time of life; and it is plain that she was brought into the situation of either refusing, and leaving her son to his perilous condition, or of taking on herself, at the age of nearly three score years and ten, the burden of this, to her, unjust debt.
The second mortgage was made under the like restraint, and after she was fully aware of the perilous situation of her son. Mr. Justice Story says:
“If the party is still acting under the pressure of the original transaction, or the original necessity, or if he is still under the influence of the original transaction, and of the delusive opinion that it is valid and binding upon him, then, and under such circumstances, courts of equity will hold him not barred from relief by any such confirmation.” 1 Story, Eq. Jur. § 345.
This was the case with Mrs. Meech, and the second mortgage is affected by the original transaction.
The fact of a deed, from the son to his mother of his incumbered property does not render the transaction valid. She has asserted no rights under such deed, and there is no evidence that it was delivered to her. The evidence is that Mr. Dix took the deed and left it for record at the same time he did the second mortgage, and says that was the understanding that he should do so. So far as the relief sought by this suit, it does not concern defendants where the legal title to the 107 acres is. Whether it can be considered as held by Mrs. Meech in trust, to support the mortgage given by Marcus H. Meech, is not involved in this litigation.
The other question remains to be considered. It appears that there was a criminal complaint made, and that the purpose was to prosecute if no settlement was made. They obtained the security, and the warrant never was returned to the justice. Mr. Dix told Mrs. Meech that it was better to settle it in this way than to have any trouble otherwise. The inference is plain. The object of the settlement was to stifle the criminal proceedings; such was the result of the settlement. As was said by Lord Westbury in Williams v. Bayley, cited above,—
“They knew well, for they had before them the confessing criminal, that forgeries had been committed by the son; and they converted that fact into a source of benefit to themselves, by getting the security of the father. Now that [you shall not make a trade of a felony] is the principle of the law, and the policy of the law, and it is dictated by the highest considerations. If men were permitted to trade upon the knowledge of a crime, and to convert their privity to that crime into an occasion of advantage, no doubt a great legal and a great moral offense would be committed.”
It is only necessary to insert in this quotation, in the place of “forgeries,” the crime for which Meech was charged, and in the place of “ father,” the word “mother,” to make it entirely applicable to the case under consideration. Such transactions are against public policy, and a contract growing out of them is voidable.
The counsel for defendants insists that, if the claim be true that complainant executed the mortgages to save her £on from a criminal prosecution, she was compounding a felony, and has no standing in court. But this rule does not apply in all cases. The distinction is pointed out in 1 Story’s Equity Jurisprudence in section 298, where the learned author says:
“ In general, for it is not universally true, where parties are concerned in illegal agreements or other transactions, whether they are mala proMbita or mala in se, courts of equity, following the rule of law as to participators in a common crime, will not at present interpose to grant any relief, acting upon the known maxim, ‘ In pari delicto potior est conditio defendentis et possidentis.’ But in cases where the agreements or other transactions are repudiated on account of their being against public policy, the circumstance that the relief is asked by a party who is particeps criminis is not, in equity, material. The reason is that the public interest requires’that relief should be given, and it is given to the public through the party.”
So it is laid down in 2 Pomeroy’s Equity Jurisprudence, In section 941, that—
“ Even where the contracting parties are in pari delicto, the courts may interfere from motives of public policy. Whenever public policy is considered as advanced by allowing either party to sue for relief against the transaction, then relief is given to him. In pursuance of this principle, and in compliance with the demands of a high public policy, equity may aid a party equally guilty with his .opponent, not only by canceling and ordering the surrender of an executory agreement, but even by setting aside an executed contract, conveyance, or transfer, and decreeing the recovery back of money paid, or property delivered, in performance of the agreement.”
He also says, in section 942, that — ■
“When the contract is illegal, so that both parties are to some extent involved in the illegality, in some degree affected by the unlawful taint, but are not in pari delicto, that is, both have not with the same knowledge, willingness, and wrongful intent, engaged in the transaction, or the undertakings of each are not equally blameworthy, a court of equity may, in furtherance of justice and of a sound public policy, aid the one who is comparatively the more innocent, and may grant him full affirmative relief by canceling an executory contract, by setting aside an executed contract, conveyance, or transfer, by recovering back money paid or property delivered, as the circumstances of the case shall require, and sometimes even by sustaining a suit brought to enforce the contract itself, or, if this be impossible, by permitting him to recover the amount justly due, by means of an appropriate action not directly based upon the contract.”
I think the mortgages and notes should all be set aside,, and held for naught, as against the lands and interest in lands belonging to the complainant, and described in her bill of complaint, and such lands be declared free and clear from any and all liens created by said mortgages,, and the nodes must be declared invalid, and be surrendered up to be canceled. The circuit court held the note and mortgage given March 14, 1887, invalid, and the note and mortgage of March 24 valid. The decree will be affirmed as to the note and mortgage of March 14, and reversed as to the note and mortgage of March 24, 1887, and a new decree will be entered here declaring both notes and both, mortgages void in accordance with this opinion.
I do not, in anything I have said in reaching this conclusion, cast any imputation upon the character of these gentlemen who obtained these mortgages. Nor I find it necessary to decide upon any conflict of testimony. If the complainant’s testimony is given full credit, she is entitled to the relief prayed, and, if the testimony of the defendants is considered in connection ívith the undisputed facts, the complainant’s case is made out. They may have believed that they were acting for the best interests of all concerned, but an honest and disinterested application of the principles of the law will not allow the securities obtained under the circumstances these were to stand.
The other Justices concurred. | [
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Morse, J.
The respondent was convicted in the circuit court for the county of Jackson upon an information charging him with having unlawfully taken into his possession, and with willfully carrying away, without the knowledge and consent of any person having lawful control and custody thereof, “ an enrolled decree, containing the bill of complaint, pleadings, and other papers filed in and belonging to a certain cause theretofore determined in the circuit court for said Jackson county, in chancery, wherein Sarah T. Bussey was complainant, and said Mark T. Bussey and William H. Bussey were defendants;” the said enrolled decree, containing the bill of complaint, pleadings, and other papers in said cause, being lawfully in the court-house of said county, and in the possession and custody, and under the control, of Charles E. Snow, then and there being the clerk of said county of Jackson, and register in chancery of said circuit court for the said county of Jackson, in chancery, and being so carried away without the consent of said Charles B. Snow.
This information was filed under How. Stat. § 9347, which provides:
“That all books, papers, or records belonging, or in any wise appertaining, to the offices of clerk * * * of the several counties * * * are hereby declared to be public property, belonging to the people of the State of Michigan, to be used and preserved by and under the direction of said officers, and be by them preserved during their continuance in office; and any person or persons who shall willfully canxy away, mutilate, or destroy any of such books, papers, records, or any part of the same, and any person or persons who shall retain and continue to hold the possession of any books, papers, records, or parts thereof, belonging to the aforesaid offices of clerk, * * * and shall refuse to deliver up said books, papers, records, or parts thereof, to the proper officer having charge of the office to which the said books, papers, or records belong, upon demand being made by such officex , shall, on conviction thereof, be deemed guilty of a misdemeanor, and shall be punished by fine not exceeding $1,000, or imprisonment in the State prison not exceeding three years.”
After such conviction the respondent made a motion for a new trial, which was overruled. As the case must be reversed, and sent back for a new trial, it is not necessary to set out the grounds of this motion.
The sufficiency of the information is raised for the first time in this Court. It is alleged that the information should have charged that the records were the property of the State of Michigan. This was not necessary. The records were specifically descx-ibed as an enrolled decree, containing the bill of complaint, pleadings, and other papers in a certain chancery cause. The statute expressly makes them the property of the State, and an allegation to that effect, after describing them, would be superfluous.
It is also argued that the offense is not complete under the statute unless it is shown that a demand was made by the proper custodian, and that after such demand the defendant still retains possession of the records, or parts thereof, and refuses to deliver them up. The defendant's counsel was correct in what he says was his first impression on reading the statute, to wit, that it creates three offenses:
1. For willfully carrying away the property described.
2. Refusing to deliver up the property upon proper demand.
3. Destroying or mutilating the property described.
The information correctly charged the first of these offenses.
Another point is made that the words “and other papers," in the description of the property carried away, as found in the information, are general, and must be confined to papers of the same nature and kind as those named in the specific words, such as motions, orders, and' the like, and that, being used in this case after the specific words “enrolled decree" and “pleadings," they cannot be held to include deeds, mortgages, and “a blank piece of paper with names Written upon it." It was claimed upon the trial that among the papers tied in one bundle, and taken away by the respondent, were a deed and mortgage, written in green ink, and called the “ Green Deed and Mortgage," and also a piece of paper upon which the name of Sarah T. Bussey, the respondent's wife, and with whom he was then engaged in much litigation, was written several times; and it was the theory of the prosecution that the respondent had a motive to take these papers to escape a charge of forgery. The respondent’s counsel here urge that he could not lawfully be convicted of carrying away papers not specifically described and charged against him in the information, and that he had a right to know, and be specifically informed, what books, papers, or records he was charged with willfully carrying away, and that the words “other papers” conveyed to him no intimation that he was to be tried for taking away this green deed and mortgage, and the “Practice Paper,” as it .was called upon the trial, and is named in the record.
The trouble with this point is—
1. That the testimony shows without dispute that these papers were a part of the enrolled decree.
2. That no objection was made at any time to the information on this account, or to the evidence in relation to it.
3. It would have been proper to show as a part of the case just what papers were taken in this bundle, or at the same time with it, as a part of the res gestee, whether such papers were mentioned in the information or not.
The main objection to the conviction of the respondent is that he did not have a fair trial—
1. Because he was prosecuted by a prosecuting attorney who was deeply prejudiced against him, and had a personal interest in the trial.
2. On account of the use of improper and insulting language by such prosecuting attorney.
3. Because the respondent was compelled to answer questions irrelevant to the issue, and having a tendency to bring in other charges of crime and immoral conduct.
Í. Because the court permitted the credibility of the respondent to be assailed or impeached by the direct testimony of other witnesses to criminality, or charge of criminality, of which respondent had never been adjudged, guilty.
It is a fact patent in the case that the prosecuting-attorney, James A. Parkinson, was, by his own admissions, prejudiced* against the respondent, and employed as counsel for his wife in several civil suits against him, in most of which there was a charge of forgery, or some other ofíense against the laws, and that Parkinson acknowledged that upon objection he would have been found disqualified to act as the public prosecutor in this case. I was very strongly impressed upon the argument that a new trial ought to be granted for this reason; but, upon a careful examination of the record, it appears very plainly that the respondent is not entitled to this favor on his own account because of the circumstances, and the acts of himself and his counsel upon the trial.
It appears that when Mr. Parkinson was elected prosecuting attorney of Jackson county, in the fall of 1888, he was or had been one of the solicitors for Mrs. Bussey in at least three suits in the circuit court for the county of Jackson, in chancery, one of which came to this Court. See Bussey v. Bussey, 71 Mich. 504 (39 N. W. Rep. 847). When he entered upon his duties as prosecuting attorney, January 1, 1889, he found two suits in behalf of the people pending against the respondent, of which the present case was one. The enrolled decree supposed to have been stolen by the respondent, Dr. Bus.sey, was the decree in the case that came to this Court, :in which Parkinson was solicitor for Mrs. Bussey. Know, ing this, it was undoubtedly his duty to procure some one -else to prosecute the present case against the respondent. His excuse is that when the other criminal case came up in the circuit coirrt, a charge of false pretenses, he asked for the appointment of Thomas E. Barkworth to assist him; that this request was opposed by Mr. Sagendorph, attorney for Dr. Bussey in that case, as in this, and denied by the court; that he informed Mr. Sagendorph, and the other attorneys of respondent, before the trial of this case, that he would be glad if they would object to his trying the case, so that he could not try it. No such objection being made, he did not procure another attorney, because of the additional expense to the county, and the explanation which such expense, and his declination to try the case, would require to the board of supervisors.
It appears very plainly from the record that the attorneys of the respondent, as well as Dr. Bussey himself, were well acquainted with the fact that Parkinson was prejudiced against the doctor by reason of his being the counsel of Mrs. Bussey, and that he would be precluded from acting as prosecutor if objection was made. It seems to me that they deliberately waived this objection, and then forced, upon the trial of the case, the circumstanees of Parkinson’s relations with the case as attorney for Mrs. Bussey, and his feeling towards Dr. Bussey, into the evidence, for one of two purposes, — either to influence the jury against Parkinson to the benefit of the respondent, or, in case of failure in this respect, to lay the foundation for appeal to this Court. Mr. Sagendorph, in substance, admitted upon the trial that Parkinson asked him to object to his prosecuting the case, and Bussey avers that he was willing he should try it. Bussey is a sharp, shrewd man, as shown by this record, and was not deceived, either in the law or the fact, as to the situation as to Parkinson, and well knew his rights in the matter.
Notwithstanding the evident and natural feeling of Parkinson in the matter, nothing improper occurred on his part until the cross-examination of Dr. Bussey was reached, and this was provoked by the respondent. Upon objection being made to a question, Mr. Parkinson said:
“I want to go into this man’s whole life.
“ The Court. You are entitled to go into his whole life, but his business with Quinvey I do not think is essential.
“Dr. Bussey. I am willing. Whatever facts can be shown at the same time, I think, will compare favorably with his.
“ The Court. Keep silent.
“Mr. Parhinson. I have never been convicted of forgery.
“ The Court. That remark is totally improper for the prosecuting attorney to make.”
Upon the redirect examination of respondent, his counsel opened up the matter of the prosecuting attorney's feeling in the ease as follows:
“ Q. How long have you been acquainted with Mr» Parkinson ?
“ A. I have been acquainted with him nearly all the time I have been in Jackson. I have known him, I think, from his earliest coming here.
“ Q• What has been the state of feeling between you and Mr. Parkinson for the last three or four years?
“A. It has been personal animosity on his part, indignation on mine. We have not been good friends, to say the least. In the case of Sarah T. Bussey against Mark T. Bussey and Edwin B. Hamblin, there was a motion for a new trial. I put in affidavits sustaining that motion. At that time this ill feeling was existing between me and Parkinson.
“ Q. Did Mr. Parkinson cause any of your witnesses, or persons that made affidavits, to be arrested?
“A. Yes, sir; they had their examination. Had one witness bound over to the circuit court to be tried for perjury. He never did anything about it then. Piled his reasons afterwards for not filing information.''
The prosecuting attorney then re-examined him, and,, among other things, the following appears in the record:
“Q. You know, ever since I came into office as prosecuting attorney, that I have been a partner of Mr. Gibson, and, as such partner, interested in civil suits of yours?
“A. Yes, sir.
“ Q. You know that, by objecting to my trying these cases, I could not try them?
“ A. I don't know whether I knew that or not. I don't know that you asked my attorneys to make the-point.
“ Q. Don't you know that I said to Mr. Sagendorph I did not want to try your criminal cases, and I wished that they would object to my trying them?
“A. I did not known that you said that to them.
“Mr. Sagendorph. You said that you would be disqualified if we would object-
“Mr. Parkinson. Did I not say, ‘I wish you would object?'
“Mr. Sagendorph. I don't remember that.
“ Mr. Parkinson. And I say so now. Any day when you will object to my fulfilling my official functions in any case against you, you will please me.
“A. I don't fear you at all, Mr. Parkinson. You can try any case you please. You have no proofs against me, or the State of Michigan has no claims on me.
“ Q. That is true, possibly, as long as your wife cannot testify against you.
“ The Court. Don't let us have this. You understand the impropriety of it, if Mr. Bussey don't. It is your duty to restrain yourself, and keep yourself within your oath as an officer."
The defendant's counsel followed this up by recalling Michael Kinney, an attorney at law, and a witness in behalf of the respondent, and attacking Mr. Parkinson as follows:
“ Q. Did Mr. Parkinson have any conversation with you yesterday, in the court-room?
“ A. He did..
“ Q. Did he say to you that we were going to have a desperate case here?
“A. Something to that effect, or a desperate man for trial.
“Q. Did Mr. Parkinson say to you that you were going to be a witness in this case, and, if there was anything you knew that would favor Dr. Bussey, he wanted you to forget it?
“A. He did."
CROSS-EXAMINATION-.
“ Q. Don't you know that you have told absolute, downright falsehoods?
“A. No, sir; I don't know any such thing. I have been arrested at Baton Rapids, and got clear on the examination.
“ Q. And, before they could get another warrant out, you got out of the county?
“A. No, sir; my family was gone. It was just such a case as you are trying to put up on Dr. Bussey here.
“ Q. Walking up that street that night, after these files had been found to be missing, did you not say to me that would be just like Bussey?
“A. No, sir; nor did say, CI believe he is guilty, damn him, and I hope they will go for him.’ Nor did I say he was one of the ^damnedest rascals in the country. I might have said I did not like Dr. Bussey, or his actions.”
This language of Parkinson to the witness is assigned as error. We think it was provoked, and that an ordinary man, having his integrity thus impugned, would have used language of the same import; and, while Mr. Parkinson ought to have kept his temper, it is not at all surprising that he did not do so. We cannot reverse a case for an error committed under such circumstances. Mr. Parkinson was obliged, in self-defense, to go upon the stand, and deny the truth of Kinney’s accusations.
This case shows the wisdom of the rule established by this Court, prohibiting the employment of private counsel by the complaining witness, or any other persons, save the public prosecutor and the board of supervisors, to assist or act in the stead of the prosecuting attorney in the prosecution of offenders against the criminal laws. This rule is attacked by one of the counsel for the people as being a new one, and having its origin in the west and south, “where the-rule is that the horse-thief must be tried as a gentleman, and hung as a gentleman.” It certainly can be no reproach to any section of our country that all men are treated equally, and served 'alike, before the law, and that in a criminal trial the worst man in the estimation of the community has the full benefit, with the best, of the presumption that every man. is innocent until proven guilty. Nor is it desirable, nor is it in the interest of justice, that hate, malice, or envy should be used as instruments in the conviction of accused persons. Certainly, none of these things should actuate the prosecuting officer, or be permitted in one who assists him or fills his place. Here we see some of the effects of prejudice and ill feeling on the part of the prosecutor against Dr. Bussey. The prosecutor himself is virtually put upon trial by the defense, and the court is occupied in unseemly wrangles between the accused and the prosecutor. It becomes necessary for the prosecuting attorney to be a witness, and make oath to his own integrity,— a matter which ought never to have been in issue in the case, and would not have been, had the trial been conducted by one known to be without bias, and impartial, as between the State and the accused. It could hardly be expected, under the circumstances, that Mr. Parkinson would not at times, in the heat of the trial, let his prejudices be manifested, and forget his duty. This shows how salutary and just is the rule so often laid down by this Court, and ever, I trust, to be adhered to, that the prosecuting attorney is a sworn minister of justice, whose duty it is to see that the innocent are protected, as well as that the guilty are brought to punishment, and who must stand indifferent as between the accused and any private interest. Hurd v. People, 25 Mich. 405, 415; Meister v. People, 31 Id. 99; Sneed v. People, 38 Id. 248; People v. Hurst, 41 Id. 328 (1 N. W. Rep. 1027); People v. Bemis, 51 Id. 422 (16 N. W. Rep. 794); Wellar v. People, 30 Id. 16; People v. Gordon, 40 Id. 716; People v. Davis, 52 Id. 570 (18 N. W. Rep. 362); People v. Quick, 58 Id. 322 (25 N. W. Rep. 302).
As far as the personal interest of Mr. Parkinson was concerned, or the state of his mind towards the respondent, the defendant and his counselors were well aware of it before the trial commenced, and well knew that a simple suggestion of such interest, coupled with a request that he be precluded from conducting the prosecution or taking part therein, would have put him out of the case. For some reason, they preferred him as a prosecutor, and brought into the trial afterwards the question of his interest and enmity against Dr. Bussey for their own pur poses, and by so doing aroused him to anger, and provoked him to bitter and improper language. The respondent ought not to profit by his own wrong in this way.
But there are other considerations that must not be lost sight of. A statute of this State forbade the appearance of Mr. Parkinson as a public prosecutor, under the circumstances; and such statute was passed in the interest of justice, and in line with the repeated holdings of this Court. The violation of this statute cannot be atoned by any waiver of the defendant; nor can any of his acts, or those of his counsel, upon the -trial, serve to excuse the nullification of this law. It was not enacted for the benefit of the accused alone, but in the interest of the whole people, and with a view to the proper administration of justice and due process of law. It is a wise as well as a beneficent statute, and if enforced will prevent the profanation of the temples of justice by unseemly quarrels between prosecutor and accused, — wrangles which have a tendency to degrade the courts in the minds of the people, and to make a farce of criminal trials, as well as to both obstruct and mislead the course of justice.
Previous to 1883, we had the following statute (How. Stat. § 557) in reference to prosecuting attorneys:
“No prosecuting attorney shall receive any fee or reward from or on behalf of any prosecutor or other individual for services in any prosecution or business to which it shall be his official duty to attend, nor be concerned as attorney or counsel for either party, other than for the State or county, in any civil action depending upon the same state of facts upon which any criminal prosecution, commenced or prosecuted, shall depend."
This section was amended by Act No. 33, Laws of 1883, by adding the following provision:
“Or in any action for malicious prosecution brought in consequence of any criminal prosecution commenced or prosecuted during his term of office in the county of which he is prosecuting attorney; nor shall any attorney be permitted to prosecute, or aid in prosecuting, any person for an alleged criminal offense where he is engaged or interested in any civil suit or proceeding depending upon the same state of facts against such person, directly •or indirectly.”
Mr. Parkinson clearly came within the spirit, if not the letter, of this statute, and all the evil consequences against which the statute was aimed followed his entry and action as public prosecutor in this case. We are of the opinion that Mr. Parkinson could not act as prosecuting attorney in this cause, even with the unqualified consent of the respondent. The statute forbids, and for good, humane, and prudential reasons. In this view of the case, it will not be necessary further to notice the errors alleged to the remarks and conduct of Mr. Parkinson upon the trial.
It is further alleged as error that the cross-examination of the respondent was carried to an extreme and unwarrantable extent, looking towards his having been, before that, charged with forgery, and that such examination falls within the condemnation of this Court as expressed in People v. Pinkerton, 79 Mich. 110. This case, hoAvever, differs materially from that case. Here it was legitimate to show a motive for the commission of the offense •charged. It was the theory of the prosecution that the “ green deed and mortgage” were forgeries, or at least that they were alleged by Mrs. Bussey to be forgeries, and that the doctor had been charged with such forgery in the very case in which they formed a part of the enrolled decree, and that the “practice paper,” so called, was one upon which the respondent had been experimenting in the direction of forgery. If this were true, it furnished an ample motive for the carrying away or destruction of these papers. Testimony in support of this theory was therefore admissible; and the respondent having furnished himself as a witness in his own hehalf, was subject to any cross-examination which went directly to the merits of the case. The cross-examination indulged in in this respect was not “irrelevant to the issue/’ as it was in Pinkerton’s case, where no proof of motive was necessary; and no objection was interposed on the trial against the cross-examination of Bussey as to his being charged with, and arrested for, another crime, to wit, false pretenses.
It is also claimed that Mr. Pringle was permitted to-impeach the credit of Dr. Bussey by giving his testimony to identify an information filed against him for false pretenses, and what he (Pringle) did as acting prosecuting attorney before the justice in such case. The testimony of Mr. Pringle was offered to show that, in the examination of the false pretense case before the justice, this s&me enrolled decree alleged to have been stolen by the’ respondent was used in evidence in support of such charge, to show another and additional motive for the commission of the offense here charged. For this purpose the testimony was admissible, it being shown that the false pretense case was pending when these papers were alleged to have been taken by Dr. Bussey.
But there was an error committed on the trial which necessitates a reversal of the conviction. Thomas A. Wilson, an attorney at law, was permitted to testify as follows:
“ Q. Do you know of any interest, directly or indirectly, contingent or otherwise, or possible advantage, Mrs. Bussey could have or derive from the loss or destruction of that enrollment? (Objected to by defendant. Objection overruled, and exception taken for defendant.)
“A. I cannot imagine any person who would derive any benefit from the destruction of those papers except Dr. Bussey. I think he could. I think those two green-ink- papers, with the testimony which was then in existence or obtainable, — they were evidence of forgery; the view I take of the matter. I mean, of course, Dr. Bussey. I did not take those papers.”
There can be no possible excuse for the admission of this testimony. The opinion of the witness that no person but Dr. Bussey could have any possible motive or interest in the disappearance of these papers must have prejudiced the defendant’s case. When we remember that no one saw the respondent take these papers, the question of motive becomes of paramount importance. In fact, the case against Dr. Bussey, in the absence of any testimony tracing the papers into his possession, rested, as it necessarily must, upon three things:
1. That the papers were missing, and could not be found.
2. That Dr. Bussey was last seen near them, and had the opportunity to take them.
3. And, not least, that he had a motive for taking them.
It was for the jury to determine, from the facts and circumstances proven in the case, whether the doctor had any such motive. It was not for Mr. Wilson or any other witness to state his inferences, and there could be no expert evidence in this matter. The movings of the heart and mind which might prompt him or Mrs. Bussey to action as regarded these papers were for the jury to ascertain and determine from the testimony. The study of human nature, and the emotions that move mankind to action, criminal or otherwise, has not yet become a special science, in which lawyers, or any other particular class, are recognized as experts.
The charge of the court was eminently fair, and without fault; but, for the reasons heretofore given, the conviction must be set aside, and a new trial granted.
It is to be hoped that the lesson of this trial will not go unheeded. "Wise and judicious conduct on the part of the prosecutor in every criminal trial is called for, and will nearly always obviate the difficulties encountered on this trial. Some person must conduct the next trial of this case who stands “ indifferent between the accused and any private interest,” and who is only concerned for the due and orderly administration of the law, and that justice may be done. We intend to find no fault with Mr. Parkinson. We have no doubt that he intended to do his whole duty without fear or favor, and we have great respect for him, and believe in his perfect integrity; but human nature is so constituted that, in the excitement of a heated trial, one whose mind is deeply biased and prejudiced must, perforce, as happened in this case, at times, let his rancor get the better of his judgment, to the detriment of that even-handed justice which is not only always, in fact, impartial, but ever has, also, such an appearance as to give all people confidence in the integrity and equity of the courts.
The other Justices concurred. | [
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] |
Morse, J.
The plaintiff is tbe husband of Caroline Oldenberg, deceased. Tbe defendant is her executor.
The property in controversy is a note for $800, executed April 10, 1883, by Christian Herring to John Oldenberg, and at that date secured by a mortgage running to him, and signed by Herring and his wife, Mary, who signed her maiden name thereto, Mary Miller. The money loaned belonged to Caroline Oldenberg, but tbe plaintiff claims that the note and mortgage were made to him at her request, as a gift. In this he is corroborated by the testimony of the conveyancer. This is denied by the defendant, who claims that the instruments were made payable to plaintiff through mistake. In this he is supported by the evidence of Herring and his wife.
In October, 1883, a new mortgage was made for the same sum, and dated the same as the old one, running to Caroline Oldenberg, • and plaintiff discharged the first mortgage of record. The new mortgage was signed by Christian Herring and Mary Herring. There is no satisfactory testimony that any new note was made. The plaintiff, who is a German and understands the English language but imperfectly, testifies that this change in the mortgage was made at the solicitation of E. L. Timm, for the purpose of having it signed by the proper name of Mary Herring instead of Mary Miller, as it appeared upon the old mortgage. Timm is a relative, and his wife a beneficiary under the will, of Caroline Oldenberg. Timm testified that the change was made to correct the mistake in the first mortgage, which should have run to Caroline instead of John Oldenberg.
The plaintiff further claims that he had the possession of the note during the life-time of his wife, although he kept it in the same place, most of the time, where his wife kept her securities; that, on the day of his wife’s death, Timm and the executor came and said they must take possession of all the securities and property, and he thereupon handed them all the papers in his wife’s notebook, among which were this note and mortgage. The executor told him that he must take this note, because other parties said “there was an estate there.’’ He did not know until after his wife’s death that the new mortgage was running to his wife. Was told by Timm at the time it was made that it was all right and in his name. This Timm denies.
The defendant claimed that there was never any gift of the note to plaintiff; that he never had possession of •jt except for his wife, and that she received all the interest upon it while living; that plaintiff did not claim the note when the executor took it and the other notes away; and that, when his attention was called to the note being payable to him, plaintiff said it was a mistake; the note belonged to his wife.
The plaintiff sued defendant in trover for the conversion of the note, and recovered in the. circuit court for the county of St. Joseph.
It is alleged that the note was improperly introduced in evidence, objection being made thereto, as there was no competent testimony tending to show a gift of the note to plaintiff, and that the plaintiff’s discharge of the first mortgage extinguished the debt evidenced by the note. If the plaintiff’s claim was correct as to the facts of the case, he was entitled to recover. It was a pure question of fact, and was properly submitted to the jury,- and there was sufficient competent evidence, if believed by the jury, to support his claim.
Under the plaintiff’s theory of the reason why the change was made in the substitution of the new mortgage for the old one, to wit, simply to coi’rect the mistake made by Mary Herring in signing her maiden instead of her marital name, the debt was not extinguished, and the note, which was the evidence of the debt, remained the-same and as good as before the change was made; and the payment of the note would be a payment of the new mortgage, which was only an incident and security to it.
We find no error in the judgment, and it is affirmed, with costs.
The other Justices concurred. | [
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] |
Cahill, J.
March 1, 1889, George Morley, of Detroit, Mich., made a general assignment for the benefit of his creditors to Edmund Haug, of Detroit.
The Third National Bank of Detroit, one of the creditors of said Morley, filed its claim on April 26, 1889, which was contested, but upon March 19, 1890, judgment was entered in favor of the bank, for the sum of $22,-178.64, which judgment is still in force. The bank claims to be a secured creditor, and to hold as security foj said debt mortgages upon the vessels R. O. Brittain, Colorado, and Reindeer, and upon certain land in the city of Detroit, as well as an assignment of a certain land contract, promissory notes, etc. Defendant denies the right of the petitioner to hold the said mortgages, land contract, notes, etc., as security for the payment of said debt, for reasons immaterial to the present issue, and the matter is now in litigation in the Wayne circuit court, two phases of said case having already been passed upon by this Court. Haug v. Third National Bank, 77 Mich. 474 (43 N. W. Rep. 939); Third National Bank v. Reilly, 81 Id. 438 (45 N. W. Rep. 830).
Upon April 22, 1889, Archibald G. Lindsay, of the city of Detroit, was appointed receiver of the above-mentioned boats, with power to sell the same, and hold the proceeds to await the result of said litigation. The petitioner took part in the sale of the boats, and upon May 2, 1889, an order was entered confirming the sale thereof for the sum of $8,610. This sale was consented to by all parties. Petitioner took an appeal to this Court from the order appointing a receiver, and upon November 8, 1889, the order was vacated. Immediately thereafter, petitioner made an application for an order directing the receiver to pay over the money in his hands, less his fees and expenses, to petitioner, and upon December 2, 1889, the receiver was ordered to do so. Thereupon he paid to the bank the sum of $6,989.13, which sum the bank now has in its possession. The other securities still remain available, and the proceeds therefrom, if the bank is successful in the pending litigation, will be applied, together with the proceeds from the sale of the boats, in reduction of the petitioner’s debt.
On June 26, 1889, the defendant declared and paid to all creditors except the petitioner a dividend of 20 per cent., petitioner’s claim not having been adjudicated at that time. Immediately upon rendition of judgment for petitioner as above set forth, petitioner applied for the payment of a dividend of 20 per cent, upon the whole debt, disregarding the sum already in its possession, and the securities which it holds for the payment of said debt, or a portion thereof. Defendant declined to pay the same on the ground that petitioner was entitled to a dividend upon the residue only, after the securities had been worked out and the proceeds applied. In other words, that petitioner must first resort to its securities, and that it will be entitled to a dividend upon only so much as shall remain unpaid after the proceeds of said securities have been applied upon the debt. The court directed the assignee to pay a dividend upon the whole amount, regardless of the securities and the amount already realized from the sale of the vessels, and from this order defendant appeals.
The question here presented is an interesting one. If it were a new one in this State, much could be said, and many authorities cited, in support of either position, but we think the question is ruled by the case of Southern Mich. Nat’l Bank v. Byles, 67 Mich. 296. In that case, the bank was the holder of a note made by Kellogg, Sawyer & Co., as accomodation makers for the payees, Chickering & Kyser. The note was negotiated by the payees, and by them and Frank Chickering and Rice & Messmore indorsed; and the day before the note became due, Kellogg, Sawyer & Co. made an assignment. The note was duly protested, and the liability of all the indorsers established. Chickering & Kyser and Frank Chickering each soon after made an assignment. Under the circumstances of that case, then, the bank had, as against Kellogg, Sawyer & Co., the additional security of Chickering & Kyser, Frank Chickering, and Rice & Mess-more as indorsers, Chickering & Kyser being the parties for whose benefit the note was made, and who were therefore primarily liable to pay it. In course of time the bank received from the assignee of Chickering & Kyser a dividend of 40 per cent, on the note, which had been proved as a debt against all the insolvent estates. After-wards, it received a dividend of $88.60 from Frank Chickering’s estate. When the assignee of the estate of Kellogg, Sawyer & Co. declared a dividend, he declined to pay such dividend to the bank, except upon the balance that remained unpaid after indorsing the payments made by the assignees of Chickering & Kyser and Frank Chickering. A petition was filed by the bank in the circuit court for the county of Kalamazoo, in chancery, where the Kellogg, Sawyer & Co. estate was being settled, praying that the assignee be required to pay a dividend upon the entire debt as originally proved against the Kellogg, Sawyer & Co. estate, and without reference to the amount received from the other estates. An order was made in accordance with that prayer, and the case was brought to this Court for review, where the order and decree of the circuit court was affirmed; Mr. Justice Sherwood, who wrote the opinion, using this language (p. 308):
“ The general rule that, when one of two creditors of a common debtor has two funds out of which he may receive his pay, he is first to resort to the fund upon which the other creditor has no lien, and exhaust that before encroaching upon the other, does not apply to ■cases like the present.”
The reasons advanced by the learned Judge in support of that opinion do not apply with the same force to this case, and yet the principle decided is a controlling one here. The doctrine invoked by the defendant is above all things an equitable one, and can therefore never be appealed to when it would work an injustice. 1 Story, Eq. Jur. § 560. Equity never interferes to deprive one of a substantial legal right, although it will sometimes require one so to exercise his right as not unnecessarily to injure another. Let us see how the claim of defendant, if applied to this case, would affect the legal rights of the petitioner. Before the assignment was made the bank had a legal right to proceed against the debtor personally, and to realize from him the whole of its debt, or as much as it could, without reference to its security. The debtor could not say:
“I have given you security, and you must resort to that before troubling me with your claim.”
An assignment does not affect the rights of the creditor. He may still look to the debtor’s general estate for the payment of his debt, and if his debt be thus paid, the property on which he has security will fall back into the body of the debtor’s estate, which passed to the assignee, relieved of the creditor’s lien. If a part only of the debt be realized from the general estate of the debtor, the creditor may look to his security for the balance. The assignment affects the remedy merely. The creditor can no longer proceed according to the usual forms of law to subject his debtor’s property to the payment of his debts. Such property has by the assignment become a trust fund, and the creditor’s only remedy is to insist upon the due execution of the trust. But this remedy remains to him, and the fact that he has other security in no way impairs it. The legal right of the bank, then, is to have the trustee convert the trust fund into money, and pay to it its ratable share. If this be done, the dividend of 20 per cent, now due on the bank’s claim would, amount to $4,435.72, leaving a balance due it of $17,742.92, and, if the securities in its hands realized that sum, it would receive its pay in full. - If, however, we apply the doctrine contended for by defendant, and require the bank to credit upon its debt the value of its securities first, there would be a balance due it of $4,435.72, on which it would receive a dividend of 20 per cent., leaving a balance unpaid of $3,548.58. I know of no principle of equity bearing upon the marshaling of securities, the practical application of. which would result in so manifest a deprivation of a legal right.
If the figures here used by way of illustration, merely, be incorrect as applied to this particular case, and if the value of the securities in the hands of the bank be equal to or greater than its debt, the defendant may pay the debt, and take the securities. If this involve any risk or burden, it will not be greater to the defendant than to the bank, and the former cannot require the latter to assume it in the interest of the unsecured creditors. In no event can the bank receive more than its debt, except as a result of the profitable handling of the securities, and this opportunity the defendant can secure to himself for the benefit of the unsecured creditors if he chooses to assume the attendant risks. As supporting the views here expressed, see Evertson v. Booth, 19 Johns. 486; Brinkerhoff v. Marvin, 5 Johns. Ch. 320; Woolcocks v. Hart, 1 Paige, 185; Morrison v. Kurtz, 15 Ill. 193; Paddock v. Bates, 19 Ill. App. 470; Morris v. Olwine, 22 Penn. St. 441; Keim’s Appeal, 27 Id. 42; Miller’s Appeal, 35 Id. 481; Patten’s Appeal, 45 Id. 151; Graeff’s Appeal, 79 Id. 146; Kellock’s Case, L. R. 3 Ch. 769; Mason v. v. Bogg, 2 Mylne & C. 446; Findlay v. Hosmer, 2 Conn. 350; West v. Bank, 19 Vt. 403; Moses v. Ranlet, 2 N. H. 488; Walker v. Baxter, 26 Vt. 710. The rule contended for has been applied in the case of insolvent estates, and in the settlement of the estates of deceased persons. A different rule prevailed in bankruptcy, based, not upon equitable principles, but upon the express provisions of the statute.
Since this opinion was first prepared, my attention has been called to the case of People v. Remington, decided by the court of appeals of New York in June last (24 N. E. Rep. 793), in which Mr. Justice Gray, in a full aud exhaustive opinion, which is concurred in by all the judges sitting, approves the doctrine here stated. The opinion of Justice Gray is published in 31 Cent. Law J. 330, supported by a learned note by Mr. S. S. Merrill containing full citation of authorities.
But if anything was needed to enforce the rule here stated as applied to this case, the statute relating to voluntary assignments in this State seems to me to be decisive. How. Stat. chap. 303.
Section 1 of this chapter provides that the assignment shall contain a list of the creditors of the insolvent.
Section 2 requires the list to contain the name and post-office address of each creditor, with a statement of the amount due, as near as may be, over and above all defenses, the actual consideration for the debt, and when contracted, and all securities, and the value thereof, held by each creditor.
Section 4 requires every assignee, within ten days after-receiving such trust, to give notice to each creditor, and make and file proof of the service of such notice with the county clerk within ninety days thereafter. The notice shall require creditors to prove their claims within ninety days, or in default thereof the assignee will proceed to' distribute the estate without reference to claims not proven when dividends are paid. Before paying any dividend, the assignee is required to serve personally, or by mail, upon each creditor a complete list of all the creditors who have proved their claims, with a statement of the amount claimed.
Section 7 requires every proof of a claim to be sworn to, and to state the actual amount unpaid, the consideration, when contracted, and when due; whether any and what securities are held therefor; whether any and what payments have been made thereon; and that the claimant has not, nor has any other person for him, received any security or satisfaction other than that by him set forth.
Section 8 provides for contesting claims by the assignee on his own motion, or at the request of any creditor. The service of such a request operates to stay all payment of dividends on the claim until the further order of the court.
Section 9 prescribes the proceedings for making the contest, and after issue is joined it is provided as follows:
“The circuit court of said county shall proceed to the trial of said cause in the same manner as in other suits at law, allowing a jury, if demanded, * * * and the Court shall have the same power over the verdict of a jury and shall render judgment thereon as in other suits at law, except that no execution shall be awarded or issue in favor of the claimant.- * * * The amount of the claim as finally adjudicated, after allowing a proper sum for interest to or from the time of making a dividend upon the other claims, shall be the amount upon which a dividend shall be computed.”
The petitioner’s claim has passed through the various stages of this statutory proceeding, including the contest, and tlie amount upon which it asks to have a dividend computed and paid is “the amount of the claim as finally adjudicated” in such contest. I know of no power in the courts to gainsay this clear, statutory right. Farwell v. Myers, 66 Mich. 678 (33 N. W. Rep. 760). It will be noticed that although reference is made in two different sections of the statute to the fact that the creditor may have security, which he is required to disclose, yet he is nowhere required to surrender such security before receiving a dividend, nor to deduct the amount or value thereof, and accept a dividend on the balance of his debt. The absence of such a provision in the statute is significant, and clearly indicates that such a rule was not intended to be established.
The order and decree of the court below is affirmed, with costs.
Chahplin, C. J., Long and Grant, JJ., concurred with Cahill, J. | [
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Chamrlin, C. J.
In October, 1882, one Remick held the legal title to certain lands in Mackinac county to the amount of about 2,000 acres, and one McKay claimed the beneficial interest. Remick had advanced the money to pay for the lands, and held them subject to a purchase on estimates by McKay within a given time. The amount advanced by Remick was about $1,000. McKay attempted to make sale of these lands to Buffalo parties, and through a broker there applied to the firm of Noyes & Sawyer, who were lumber dealers at Buffalo. They telegraphed George A. Wilcox, of Detroit, to investigate, and the result was that Wilcox purchased the legal title of Remick, jointly for himself and Noyes & Sawyer, with an agreement with McKay that he should receive for his interest one-third of the net profits arising from a disposition of the land and timber thereon. Remick had an estimate of the pine timber on the lands made by Robinson & Flynn, which showed that the land contained about 1,000,000 feet of pine.
George A. Wilcox had been quite an extensive dealer in pine, as had also E. Hall. These parties occupied the same office in Detroit, and knew more or less of each other’s transactions. After the above agreement was made McKay called at the office of Mr. Wilcox for the avowed purpose of borrowing money from him, upon the strength of the interest he had in the deal as security. Mr. Wilcox was absent, and McKay borrowed $1,000 from Hall, and assigned his interest in the lands and profits to Hall, as security. Later he borrowed $500 more. The money was not paid by McKay, and Hall became the owner of his interest in the contract on April 28, 1883.
Noyes & Sawyer desired to cut the pine in the winter of 1883-81, and convert it into lumber. The other parties interested were not anxious but willing it should be done. In August, 1883, Sawyer, of the firm of Noyes & Sawyer, came to Detroit, and had an interview with Hall about letting the job of lumbering the tract during the coming winter. Wilcox was east, in Connecticut. Sawyer went as far north as Alpena, endeavoring to find some lumberman who would take the job of lumbering the land. He did not succeed, and returned to Detroit. Hall, soon after making his purchase from McKay, sent his own estimator to examine the land, and report the quantity and quality of the pine it contained. His name was Van Riper. He made a report to Hall of the quantity and quality of pine on the tract, and his estimates exceeded 5,000,000 feet, by between one and two hundred thousand. This report Hall had, and also Robinson & Flynn’s, in his possession when Sawyer returned to Detroit.
The plaintiff, William C. Busch, is a jobber in lumbering contracts, and was at the time possessed of a large outfit. He was at Harper’s hospital, in Detroit, being treated for a diseased arm. He and Hall were old-time acquaintances, and were on friendly and intimate terms. Hall had visited him at the hospital, and knew that he had no contract for putting in logs the next winter. He recommended him to Sawyer as a competent and proper man to put in the logs from this tract of land, and he took Sawyer to see Busch at the hospital, where the matter was talked over. Busch at first was disinclined to enter into a contract—
1. On account of his health.
2. Because he was not experienced in lumbering upon the north shore of Lake Huron, where these lands were, and knew nothing of the character of the land or the quality of the timber.
And he offered to rent them his outfit, but this they declined. The result of this interview was that Busch should telegraph for his foreman to come to Detroit, and another interview was had an evening or two later, at which Sawyer, Hall, Busch, and his foreman, Brumby, were present. At this time Hall produced a map of the territory and Van Riper’s report or estimates, and also tbe Bobinson & Flynn estimates. Tbe subject-matter of logging tbe tract was fully discussed. No one of the parties had ever been upon the land. Busch testified that they figured up the plats, — the estimates as shown. It was figured up on the plats, and it amounted to not very considerably over 6,000,000 feet. This by Yan Eiper’s estimates. As to the other estimates, they were simply talked of, — that there was a big estimate, but did not suppose that the timber was there, estimated at some eight or ten millions. Mr. Busch further testifies that, upon that occasion, Mr. Hall said Mr. Yan Biper had worked for him so long, and he had cut after, his estimates, so that he knew thoroughly what there was, and he relied upon it, and guaranteed and warranted the timber; and, as to the quality, that there was somewhere in the neighborhood of one-half of it represented as cork pine, and the balance sap pine. Upon his cross-examination he testified that Hall stated that there was about 6,000,000 feet on the tract.
“Q. Did he say that, or did he say that the estimate showed that?
“A. That is the only thing that could show anything.
“ Q. Did he say himself that there Avas 6,000,000 feet, or did he say that the estimate showed that; which did he say?
“A. Well, that I could not say. He referred to estimates that he made his figures on, of course.
“ Q. Well, did he make figures in your presence?
“A. No sir; not at that time.
“ Q. What do you mean by his making figures?
“A. Well, he makes his figures, — I mean, of course, he figures 6,000,000 feet from estimates in his possession.”
On the subject of cork pine, on cross-examination, he testified:
Q. Now, tell us what was said by Mr. Hall at that time about cork pine.
“A. They figured up there was so much pine upon it, and there was so much cork pine.”
Arrangement was made at that interview by which Busch agreed to put the timber in, and Mr. Hall was to prepare a contract in accordance with such arrangement. It appears also from the testimony that, sometime during these interviews, Mr. Busch was informed of the respective interests of the parties in the land and proceeds. Mr. Hall did prepare a contract, which he left with Mr. Busch at Harper’s hospital, and which contract was as follows:
“ William C. Busch and George A. Wilcox agree as follows:
“Busch agrees and undertakes to cut into saw-logs, haul, and put afloat in the waters of Lake Huron, in the bay or bays contiguous to the lands from which said logs are hauled, all the pine timber suitable for sawing into lumber standing or lying on the lands described in the schedule appended hereto; the work to be done in a skillful and workman-like manner, cutting out roots and shakes so as to make good logs, and at the same time, as far as possible, economize timber; the work to be commenced as early as practicable this fall, and to be completed during the next winter and spring, so as to permit sawing during the summer of 1884: Provided, however, if the weather or other insurmountable obstacles prevent a full completion of the job within the time specified, another year shall be allowed during which to complete the same; the timber to be butted and cut into lengths from - 12 to 24 feet, as said Wilcox or his agent may direct.
“ For the above work, Wilcox agrees to pay Busch four dollars and twenty-five cents ($4.25) per thousand feet, board measure, according to rule and custom of scaling in Saginaw waters; the logs to be scaled by a competent scaler, to be agreed on by the parties, whose wages or compensation shall be paid one-half by each party to this contract.
“Payments shall be made as follows: Five thousand dollars ($5,000) upon the signing of this contract, or as soon thereafter as Busch shall require the same for the purchase of supplies, etc., for the purpose of fulfilling this contract, and for transportation of same with stock, implements, laborers, etc., to the land to be operated; five thousand dollars ($5,000) during the winter and spring of 1883-1884, as same may be needed from time to time by Busch, for use in this operation; and the balance in full upon the completion of the contract.
'‘Also agreed that ash, birch, bass-wood, and elm timber may be lumbered same as pine, at the option of said Wilcox.
"Geo. A. Wilcox,
" By E. Hall.
"William C. Busch.
"Detroit, Sept. 33, 1883.”
“ Schedule of lands attached to a memorandum of contract between William C. Busch and George A. Wilcox, said lands being. the tracts to he operated under said contract:
Subdivision. Sec. Town. Range. Aches.
South half of.......... . 3 42 N. 1 E. 320
Whole of...........'____ . 10 640
West half of........... . 11 320
S. 4 of N. E. 4......... . 20 80'
S. 4 of N. m. 4 of_____ . 21 80
West half of___________ . 26 320
S. 4 of S. E. 4 of...... . 26 80
N. 4 of N. W. 4 of_____ . 35 80
N. 4 of N. E. 4 of______ . 35 80
S. E. 4 of N. E. 4 of... . 35 40
S. W. 4 of N. W. 4 of. 36 40
E. 4 of N. W. 4 of..... . 36 80
S. W. 4 of N. E. 4 of.. . 36 40
‘Geo. A. Wilcox,
“Per E. Hall.”
This' contract, when presented to Mr. Busch for his signature, was dated Detroit, September 33, 1883, and was-. signed "Geo. A. Wilcox, by E. .Hall.” After the contract had been in Busch's possession a few days, he met. Mr. Hall as he was going out of the gate of the hospital yard, and the matter of signing the contract by Buschi was spoken of. Busch testifies that he handed Hall the-contract, and told him, after reading it through, that he-had some question about the contract; that he would not sign, and could not sign, it, in justice to himself; that some things were talked over between them,., and thera. were some things that were not in the contract, and he could not live up to it; the matter of payments was not sufficient to carry his work, as he had explained to him, and, the.next thing, the guaranty of estimates was not in the contract at all; the character of the land was not in the contract; and that, unless there was something ;to protect himself,, it would ruin him if it was not as they had talked and agreed before. Hall said that Wilcox was far away. Sawyer had gone home, and Busch must d0 that work. Said he had been a friend to him of long standing; that he would see that these things were all right; he must go and do the work. Busch objected to it for some time, and Hall used a good deal of persuasion; finally got him to sign the contract to go on and do the work. He told Hall it. did not contain all they had talked, and all as it was understood; ihat the payments would not cover the work, and that they had talked over before the contract the amount of timber and the character of the timber; that the- character of the land was not anywhere mentioned as they had talked; that, if it' was not as they had talked, it would certainly ruin him. Hall said:
“It was there,’and we could rely upon it, — could guarantee the timber was there; the quantity and quality was there; he could guarantee Van RipeFs estimates any time, and stand by the estimates at any time.
“ Q. And then it was upon the strength of that representation you consented to' signing the contract?
“ A. Yes, sir; he persuaded me. I gave other reasons for defects in the contract. * * * * * *
“ Q. And ■ it was upon his statement to you- .at that time that you affixed your signature to this contract?
“ A. Yes, sir.
“ Q. And you would not have done it except for that statement?
“ A. Except this statement.
“ Q. Hjs statement, if I understand you right, was this: That Mr. Wilcox was away from home, and he [Hall] would guarantee the accuracy of the estimates.
“ A. Yes, sir, certainly; he would stand by his estimates, certainly.
“ Q. And that is the reason you did not insist upon having it inserted in the contract?
“A. He explained to me that he could not do it, for the reason that Mr. Sawyer had gone home, and Mi\ Wilcox was out of his reach, and this work had to go on at once, and he would not; that I must go and sign the contract, and go on and do the work, and he would stand between me and all harm. * * * * * . *
“ Q. And then you went into the house and affixed your signature and he went away?
“A. I could not say that I affixed my signature there at that time, but that day. I at once telegraphed up for Mr. Brumby to go on and fit out and go ahead.
“ Q. At any rate, as soon as Mr. Hall told you what he would do, you made up your mind to go on with the ■contract?
“A. Yes, sir.”
This contract provides that a scaler should be chosen to scale the logs, but none was in fact chosen; Mr. Hall and Mr. Busch afterwards modifying the contract so that the amount should be arrived at from a scale of the logs in the mill where they were sawed into lumber, and this amount showed 3,300,000 feet, as the total amount put in by Mr. Busch. It appears from the testimony that Mr. Busch did not fully complete his job; that, on •account of a storm and the breaking up of a cedar swamp, he was unable to put in all the pine which stood on section 10; that there was 295,000 feet left on that section. He also failed to put in a portion of the timber on section 21, amounting to 80,000 feet, making a total, of timber not put in, of 375,000 feet. He stopped' working upon the job some time in February or March, 1884. In the execution of the work he was'obliged to build camps •on two different portions of the tract, and to make roads from the place where the logs were to be banked to the skid-ways, and also to get his supplies in camp for his men and teams. He claims that there was a shortage in the quantity of timber - of nearly half, and that, instead of there being one-half cork pine, there was no cork pine upon the tract; that had there been cork pine it could have been lumbered at very much less expense; and also that the expense of building his roads was as great, to remove the quantity he did, as it would have been to remove 6,000,000 feet, had it been there, as he claimed it was represented to be, and that by the expenditure of $2,000 more than he did expend he would have been able to put in 6,000,000 feet.
He has brought this action in a plea of trespass up on the case against George A. Wilcox, to recover damages for what he claims were misrepresentations, which induced him to enter into the contract. There is but one count in the declaration, and the representations set out in that count are as follows:
“ The defendant, well knowing the premises, to wit, at the city of Detroit, in said county, on, to wit, the 20th day of September, 1883, falsely and deceitfully represented to the said plaintiff that he, said defendant, was possessed of certain lands hereinafter described, situate in the county of Chippewa, in said State, upon which there was a large quantity, to wit, six million feet, of pine timber, a large proportion of which, to wit, one half, was cork pine, and the balance sap pine, the said defendant then well knowing that it was more expensive, and cost, to wit, one dollar a thousand, more to lumber sap pine than cork pine."
After setting forth the contract entered into, the plaintiff avers that—
“The'said plaintiff afterwards, relying upon the statements made by said defendant, , and believing such representations to .be true, and in the performance of his said contract, to wit, on the 1st day of October, 1883, incurred large obligations, and employed a large force of men, to wit, three hundred men, for a long space of time, to wit, for six months, and sent the said men, with a large force of teams, sleighs, supplies, and other things necessary to enable him to cut into saw-logs, haul, and put afloat from off said lands, at the time and in the manner mentioned in said contract, seven million feet of pine; and, in further performance thereof, erected camps, cut, opened, and constructed roads through said lands, and made all the necessary and other arrangements to cut, haul, and pnt afloat said seven million feet; whereas, in truth and in fact, there was not seven million feet of pine timber upon said lands, as the said defendant, at the time of making the said false and deceitful representations, well knew; that, on the contrary, there was but, to wit, 3,500,000 feet of pine timber upon said lands; and whereas, in truth and in fact, one-half of the same was not cork pine, and the same was all sap pine, — all of which was well known to the said defendant at the time he made said false and deceitful representations.
“By means of which said several premises the said plaintiff was then and there put to great and unnecessary costs and expense, and then and there lost and was deprived of the profits, benefit, and advantage which he otherwise would have derived and acquired from the performance of the said contract, to wit, to his damage,” etc.
The defendant pleaded the general issue. The cause was tried in the Wayne circuit court before a jury, and resulted in a verdict and judgment for plaintiff, and the defendant brings the case here on writ of error. Thirty-one errors are assigned, but only a portion of them are relied upon in the brief, — being 11, 12, 19, 27, 20, 28, 21, 22, 23, and 24.
The eleventh error assigned is to the refusal of the court to instruct the jury to render a verdict for the defendant. In support of this request it is claimed that there is no testimony which tends to prove that Hall was the agent of Wilcox in the making of the contract; that it was incumbent upon the plaintiff in this action, not ■only to show the agency, but the scope and extent of the authority conferred; that, not having done this, there is no basis for a recovery against Wilcox for misrepresentations made by Hall. This question lies at the threshold of the plaintiff’s right to recover, and must be first determined. The testimony is all returned, and from it we must ascertain if there is any from which a jury might infer that Hall was, at the time these negotiations were carried on, the agent of Wilcox in making the contract.
It appears that the parties interested in the legal and equitable ownership of this land desired to let the job of cutting and putting in the logs. They were acting in concert, not each one for his separate and individual interest, but as a whole. Indeed, their interests were-such that harmonious action of all was the only action which could produce the best results; and it appears, beyond doubt, that each was acting for the best interests of all. Noyes' & Sawyer wanted to put the logs in the next winter. Wilcox and Hall were willing it should he done. Hall had obtained his estimate. Sawyer came on with a view of letting the job. The legal title' was in Wilcox, and very properly, if not necessarily, the contract would be made in his name. The object of the interviews with Busch was to induce him to enter into the contract for putting in the logs, in which all were interested, and all were willing it should be done. -The contract was signed by Hall, as agent of Wilcox. It was declared upon as the contract of Wilcox, and its execution was not denied by the pleadings. It was acted upon by Wilcox as his contract, and no denial has ever been made that it was his contract. He has brought suit against Busch for not performing it. These facts are sufficient to warrant a jury in finding that an agency existed, and that Hall was clothed with sufficient authority to accomplish the object desired by all. This object was to enter into a contract with some person to cut and put in the pine upon the lands of which Wilcox was the legal owner, and in which the others were beneficially interested. The contract was considered complete and operative from the time it was signed. There was no understanding that it was not to be of any force or effect unless or until ratified by Wilcox. ' On the contrary, it was urged that the work must commence at once, and there was not time to draw up a new contract and' incorporate in it wSat Busch claimed should have been embraced in the one he signed. The authority to execute the contract as written by Hall, acting as' Wilcox’s agent, is not disputed. The objection is that, as the representations complained of were not included in it, if any such were made, they were beyond the scope of the authority of Hall to make, and are not binding upon Wilcox. Whether or not they were within the scope of the agent’s authority to make depends upon what the agent was authorized to do. If Hall was authorized to make a contract on behalf of Wilcox to have the pine timber cut into saw-logs upon the tract of land specified, and banked, or put afloat, then he was authorized tó do everything necessary to bring about such contract, and to make representations respecting the character of the land, as being well situated for logging purposes; the quality of the pine, whether large or small, cork or sapling; and the quantity of pine suitable for saw-logs upon the land. All these facts appertained to the subject-matter, and were necessarily involved in making any contract for lumbering. All of these considerations are inducing causes for the logger to enter into a contract, and are essential in determining the price for which the logger will perform the work. This is evident to any one having a knowledge of such transactions; but the testi mony in -this case shows that no contract could be made without giving weight to such facts.
Now, it appears without contradiction that neither Busch nor his foreman, Brumby, had any knowledge or information respecting this tract of land. Neither Sawyer nor Hall had ever seen the tract. Who, then, supplied this information upon which Busch must necessarily act, in order to determine the price per thousand at which he would lumber the tract? The testimony is convincing that Mr. Hall produced and furnished all the information Busch had respecting the essential elements which went to make up the expense of putting in the logs. He produced the maps showing the location of the land, from which »the length of haul could be estimated; showing, also, the quantity in each locality. He produced also the book containing the report of Van Biper showing the quantity and class of pine, as to being cork or ■sapling. Whatever Hall said as.to the quantity and quality of the pine was as much within the scope of his agency as it was to enter into the' contract at all as Wilcox’s agent. It requires no argument to prove that both quality and quantity were material matters, and any representations as to them must necessarily have been relied on by Busch.
It is not contended by counsel for defendant that if an actual agent makes false representations, whereby another is induced to make a contract into which he would not have entered except for the representations, the ■principal would not be liable. On the contrary, he admits ¡that a principal is liable to respond for the frauds of his ¡agent done in the course of his employment, whereby ¡another is involved to his injury, and even, for his frauds .and other torts, when committed in doing what he was intrusted to do. And counsel does not controvert the .authorities which hold that a principal, by adopting a contract made for him by an actual agent, and receiving and retaining the profits as belonging to him by virtue of that contract, assumes responsibilities for the instrumentalities which the agent may have employed in his behalf to effect the contract; but he insists that such authorities hold that the ratification must be intentional and with a knowledge of all that has been done, and that this responsibility for instrumentalities, either in the case of an actual agent or of one whose contracts have been ratified by adoption, does not extend to. collateral contracts made by the agent, not known to the principal, though such collateral contract may have been the means by which the agent was enabled to effect the authorized or adopted contract, and though the principal retain the proceeds thereof after knowledge of the fact.
The counsel for defendant also contends that, in all oases in which a person is held liable because of the representations of an agent, the person injured must have relied upon the representations as coming from the principal himself, and must have considered that the agent making the representations^was speaking for and in behalf of his principal; and if the testimony discloses that the person to whom the representations were made received them as the representations of the agent, and not those of the principal, then the principal cannot be liable, but the agent only; and, in an action on the case, it is not only necessary that the plaintiff should have relied on the representations, but the action can be brought against the principal only when the person to whom the representations were made received them as the statements of the principal. And, applying the principles above advanced to this case, he calls attention to the testimony of the plaintiff, in which he positively asserts that it was upon the statement of Mr. Hall that the timber was there, both as to quantity and quality, and that he could guarantee Van Riper’s estimates, and stand by the estimates at any time, — that it was upon the-strength of those representations that he consented to sign the contract.
The only new element this introduced was Hall’s personal guaranty of the correctness of the estimates, and his assurance to Busch that he would stand by them. The representations were no other or different than had been made before, and a reiteration of them would not relieve the principal from responsibility, even though coupled with the guaranty by the agent of their truth, and the added responsibility of the agent to stand between the contractor and all harm. It is not strictly accurate-to say that the party must rely upon the representations as those of the principal, and not as those of the agent. It is more accurate to say that the representations of the agent made respecting transactions within the scope of his employment, which were relied upon, and induced the party to enter into the contract, will be imputed to-the principal as his representations, and for the accuracy of which he must answer?
“ While keeping within the scope of his authority, and engaged in its execution, he is the principal, and his statements, representations, and admissions in reference to his act are as much the principal’s as the act itself. Such statements, representations, and admissions are therefore admissible in evidence against the principal in the same manner as if made by the principal himself.” Mechem, Ag. § 714, and note.
That Hall had the authority to make the contract for Wilcox is not, -and cannot under the testimony be, gainsaid. All authority conferred upon an agent rests upon the will and intention of the principal. That intention is proved, not only by words, but by conduct. And the conduct of Wilcox, and the situation of the parties, and their relation to the subject-matter, afford convincing proof of the authority of Mr. Hall to act as Wilcox’s agent in making the contract with Busch.
It is urged by counsel for defendant that this contract was made without previous authority, and became binding simply by adoption after it was sent to Mr. Wilcox, and hence no representations are binding upon him which he had not been apprised of at the time of or previous to his adoption of the contract. This contention is based upon Mr. Hall’s testimony to the effect that he supposed that Mr. Sawyer would execute the contract for Mr. Wilcox until the time came to execute it; and then he and Sawyer had a discussion, not in Busch’s presence, and he says that he told Sawyer that he had no legal authority to sign it for Wilcox; that (I quote his testimony)—
“ It was then represented” (by whom is not stated) “that I was there for years, and I, when Mr. Wilcox was away, attended to and looked after his interest and his business. Mr. Sawyer had a partner, and he and his partner were only representing a partner’s interest against Mr. Wilcox’s; and he seemed to think, on the whole, I ought to take the responsibility of signing the contract for Wilcox,” and, “after talking it over with Mr. Sawyer, I accepted his view of it. But, on the whole; I thought it was possible for me to sign it for Mr. Wilcox, and send it to him for his recognition.”
The understanding and talk between Hall and Sawyer in Busch’s absence was irrelevant; it cannot affect Busch; the material point being, from all that occurred in his presence, what was said and what was done, and the interest of the parties in the subject-matter, was he at the time authorized to enter into the contract by Wilcox; or, if not, did his acts and representations become binding upon Wilcox by his subsequent adoption of the contract made by Hall in his behalf?
If, however, it be conceded that there was -an entire" want of authority from Wilcox to Hall to execute the contract at the time it was executed by Hall in his name, there can be no question that it became Wilcox’s contract by adoption. He adopted the contract as his own, received the logs which were cut, hauled, and put in by Busch, made advances to him under it, and claims rights under it in the suit he has instituted against Busch for not performing it. He has received the benefit of the contract so made by Hall in his name, and the controversy has not been as to the authority of Hall, as agent, to make the contract, but as to the means or instrumentalities employed by Hall in inducing Busch to enter into it. When a person adopts the unauthorized acts of another made in his behalf, and has received the benefits accruing therefrom, he is held to adopt and ratify the instrumentalities by which the fruits were obtained. He cannot receive the benefits, and escape liability for the frauds or misrepresentations which have placed the fruits ■in his hands. This is not only elementary law, but is so well founded in the domain of morals as not to need the citation of authorities. The plaintiff, therefore, had a right to have the question whether any misrepresentations were made by Hall, as claimed, submitted to the jury, and the eleventh assignment of error must be overruled.
The twelfth assignment of error is based upon the refusal of the court to charge that,—
“ It is not sufficient to entitle the plaintiff to recover that Mr. Hall produced the estimates, and stated that he had high confidence in Yan Hiper as an estimator, or that he, Yan Biper, was a reliable man.”
The jury were entitled to pass upon all the representations made- by Hall as to the quantity of the pine timber upon the tract, and also with reference to what Hall said concerning Yan Riper and his. estimates. The request does not contain all that the testimony shows was said by Hall upon the subject, and was properly refused.
The court gave the third request of plaintiff’s counsel, as follows:
“ In order to make out deception in this class of cases, it is not essential that false assertions should be made in express words, but one may acco.mplish a fraud by encouraging and taking advantage of a delusion known to exist in the minds of others, especially where assertions or statements are made calculated to create such a delusion.”
This charge is the subject of the nineteenth and twenty-seventh assignments of error. Counsel for defendant insists that this instruction was entirely improper, under the declaration in this case, and under the testimony. The declaration has been quoted in the former part of this opinion. It does not set forth the language nor the method in which the representations were made. The declaration is broad enough, and specific enough, to permit proof of whatever representations were made, and of the manner in which they were made, whether by express words, or by reference to papers or writings, or by the use of terms which convey to the mind certain qualities or conditions of the subject-matter of the agreement. The law laid down in the instruction is unobjectionable, and we think there was testimony which justified the court in the statement of the law.
We discover no error in the twentieth and twenty-eighth errors assigned. The twentieth is covered by what has been said. The twenty-eighth reads as follows:
“'In saying to the jury that if, at the time of the interviews preceding the execution of the contract of September 22, Mr. Hall knew or had reason to believe that the plaintiff knew or relied upon him (Hall) for such" information necessary to enable him (Busch) to enter into the agreement, then it was the duty of Mr. Hall, when he undertook to impart such information, to give it fully and accurately; and, in saying that if, under such circumstances, Mr. Hall had an estimate in his possession of the quality and quantity of the timber upon this land by Van Riper, and knew that Mr. Busch, on account of sickness, was unable to and did not examine the same, and Mr. Hall undertook to state to Mr. Bus'-h the quantity and .quality of logs shown thereby, then it became his duty to state the same fully and accurately.”
Only four other assignments of error are noticed or argued in the brief of counsel for defendant. These are the 21st, 22d, 23d, and 24th, and relate to the following instructions given by the court:
“ 5. If, at the' time Mr. Hall met Mr. Busch at Harper Hospital, he (Hall) had two different estimates of the land in question, one showing a.much smaller quantity and in quality inferior to Van RipeFs estimate, and he (Hall) knowing that Mr. Busch was relying upon him for information as to quantity and quality in order to enter into the agreement of September 22, and you further find that Mr. Hall undertook to impart to Mr. Busch such information, then it was Mr. HalTs duty to inform Mr. Busch as to the quantity and quality shown by each estimate, and if you find that he did not- exhibit to Mr. Busch the smaller estimate, in order to induce Mr. Busch to enter into the agreement of September 22, in reliance upon the accuracy of Van RipeFs estimate, and you further find that the Van Riper estimate was grossly inaccurate, both as to quantity and qualify, and that the other estimate was substantially correct, these would constitute such a fraud as would enable the plaintiff to recover.
“ 6. When an agent makes material representations to a jobber as an inducement for the latter to enter into an agreement, and which is entered into in reliance thereon, and the person making such representations claims and so states to the jobber that he makes such representations in good faith, and upon an estimate which he believes to be reliable, and such agent then has another estimate which he believes, if communicated to the jobber, would prevent the execution of such a contract, and for this reason does not communicate to him, in so withholding such estimate he is committing a fraud for which his principal will be liable.”
“8. The plaintiff claims that Mr. Hall represented that there was a little under or a little over 6,000,000 feet of timber upon tbe land, and that about half was -cork pine. Mr. Hall, in his testimony, says that he represented the estimates to show by the plat and the book that the quantity was 5,162,000, and that a portion of it was cork pine. The plaintiff claims that there was cut about 3,300,000, and that about 350,000 feet left uncut, and but little, if any, of the timber was cork pine. It is for you to find from all the evidence in this case what are the true facts, both as to the representations made, .and the quantity cut, and left uncut, and what proportion, if any, was cork pine; and, should you find that the entire quantity of timber cut and uncut was as testified to by Mr. Busch, he would be entitled to recover all that falls far short of the quantity 5,162,000 feet, which Mr. Hall admits he represented to be on the land, according to Yan Riper’s estimate, provided you find that Busch, in entering into the agreement of September 22, relied upon the representations so made by Mr. Hall as to the •quantity and quality of the timber upon the land.”
These instructions appear to us to have been warranted by the testimony, as was also the seventh instruction, which constitutes the twenty-third assignment of error. In this the court said:
“If you find that Mr. Hall, acting as agent for Wilcox, knew that Busch did not know the quantity of the timber upon the land in question, — there is no question about that, — if you find that Mr. Hall, as agent for Wilcox, knew that Busch did not know the quantity of the timber upon the land in question, — that is, if he did not know from anything except from what he had heard, because the' evidence shows that none of these men had •ever been upon the land, and what they depended upon was Yan Riper’s figures, and the books and the map, and that there was also another estimate there got up by Robinson and Flynn, — and expected that Mr. Busch would, in entering upon the agreement, rely upon such information as he (Hall) might give him, and you further find that Hall did, in good faith, make material representations as to quality and quantity of timber to be lumbered, and at the same time he made such representations stated that he made them upon Mr. Yan Riper’s estimates, which he believed to be correct, and that Mr. Busch, relying upon such representations, did enter into the agreement of September 22, and you further find that there was not upon the land the timber, either in quantity or quality, as represented, the plaintiff would be entitled to recover. The law of this State considers the deceptive influence of such misrepresentations, though made innocently, as effective in inducing the contract, and the consequences to Busch as serious, as though the same had proceeded from a vicious motive; the result in either case would be, in contemplation of law, a fraud upon Mr. Busch, and would entitle him to recover such damages as he has sustained thereof, — that is, if Mr. Hall said or did anything that was untrue. Now, what did Mr. Hall say, or what did Mr. Hall do, that was untrue? I leave this to you.”
The seventh and eighth instructions are in harmony with the decisions of this Court, and state the law applicable to the case upon trial. Holcomb v. Noble, 69 Mich. 396 (37 N. W. Rep. 497), and cases cited in the opinion of Mr. Justice Morse.
The errors assigned are overruled, and the judgment of the court below is affirmed.
The other Justices concurred. | [
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] |
Chamelin, C. J.
The relator shows that on March 20, 1890, he was arrested on a warrant issued by the police justice of the city of Detroit, charging him with an assault and battery upon one Thomas P. Murrin, of the same place, on March 17; that he was arraigned, pleaded not guilty, was tried, convicted, and sentenced to pay a fine of $12, and $3 costs, and in default of such payment he be imprisoned in the Detroit House of Correction for the period of 20 days.
He avers that his conviction and sentence is unjust; that he was acting in self-defense; and that on April 3, 1890, under the general laws of this State authorizing .appeals from courts of justice of the peace, he executed a bond in regular form, with ample and satisfactory sureties, and so conceded by Hon. Edmund Haug, police justice, aforesaid, and presented the same to him for the purpose of appealing said suit to the recorder’s court of the city of Detroit, but said Edmund Haug refused to act upon said bond, and so notified relator, and told him that he should not, for the reason that there was no section in the police court act which authorized the taking of an appeal in a ease like this. Relator prays that a mandamus issue to the Honorable Edmund Haug, police justice, directing him to act in the matter and make return to such appeal.
The return of the police justice to the order to show cause admits the statments of the relator respecting his arrest and conviction before a jury, and also the sentence pronounced. He further returns that within 48 hours of sentence, the said fine being paid under protest, a proper recognizance with satisfactory sureties was tendered to him, which he accepted, so far as regularity and sufficiency were concerned, to appeal said cause to the proper appellate court, said recognizance being drawn to answer either the recorder’s or the circuit court, whichever might entertain such appeal, being authorized by law so to do; but that he refused to entertain such appeal in said cause, for the reason that the act creating the police court of the city of Detroit does not authorize appeals in such cases.
Section 23 of Act No. 161, Laws of 1885, being “An act to establish the police court of the city of Detroit,” as amended by Act No, 287, Laws of 1887, reads as follows:
“In all cases determined in said police court, when the sentence of imprisonment shall exceed twenty days, or where the fine imposed shall exceed twenty-five dollars, the judge.of the recorder’s court of the city of Detroit, or, in case of his absence or inability to act in the premises, then either of the judges of the circuit court having jurisdiction in the city of Detroit, may allow an appeal to the recorder’s court upon satisfactory affidavit presented to him within five days after the trial, showing the circumstances of the trial, and the substance of the evidence taken thereon, if, in the opinion of said recorder or judge,, justice requires an appeal. On filing such affidavit, and the allowance of said appeal indorsed thereon, with the clerk of the police court, such appeal may be taken in the manner and with the effect and restrictions prescribed for appeals to the circuit court in cases of sentences by justices of the peace in criminal cases: Provided, That if the appeal is taken on behalf of a person imprisoned under sentence the recognizance required by law may be entered into on his behalf by the surety or sureties on appeal; and such recognizance shall have the same force and effect in all respects as though entered into personally by the person so appealing.”
How. Stat. § 7109, allowing appeals from justices of the peace in criminal cases, enacts that— ;
“The person so charged with and convicted by any such justice of the peace of any such offense may appeal from the judgment of such justice of the peace to the circuit court: Provided, said person shall enter into a recognizance to the people of the State of Michigan, in a sum not less than fifty nor more than five hundred dollars, within ten days after the rendition of the judgment, with one or more sufficient sureties, conditioned to appear,”' etc.
The police court of Detroit was established in the first instance by Act No. 301, Laws of 1850. This act conferred upon the police court the sole and exclusive jurisdiction to hear all complaints, to conduct all examinations in criminal cases, and to try all offenses which by the laws of this State were then brought and established within the jurisdiction of justices of the peace, which might thereafter arise within the corporate limits of the city. It authorized justices of the peace to act as police justice in case of his absence or inability. The act was brief, and did not point out the method of procedure in the trial or examination of offenders, nor did it provide for any appeal from judgments rendered by such police court. Neither did the general criminal laws of the State regulating proceedings in criminal cases -before justices of the peace at that time allow an appeal. The general statute had been amended in 1849 so as to take away the right of appeal, and it was not restored until 1855.
In 1859 the case of People v. Police Justice, 7 Mich. 456, came before this Court for decision. One Jeschly and his wife had been convicted in the police court of assault and battery, and sentenced to pay fines, and in default to be confined in the county jail. The fines were not paid, and they were committed. They tendered a recognizance, which complied with the general laws where parties were convicted before a justice of the peace, and the justice refused to recognize an appeal on the ground that there was no appeal from police court on final judgment for a retrial of a question of fact. They applied to the circuit court for a mandamus to compel the justice to file the recognizance. On hearing, the circuit judge took the view that no appeal was allowed by statute, and denied the application. Upon review in this Court, the members were equally divided in opinion, Mr. Chief Justice Martin and Mr. Justice Manning hold ing that, as the police court act did not provide for an appeal, none existed; that when the right of appeal was restored from judgments of justices of the peace in criminal cases it did not, by implication, grant the right to appeal from judgments of the police court. Mr. Justice Campbell, in an opinion concurred in by Mr. Justice Christiancy, held that the police court act must be construed in connection with the general law, for it was from that law that the jurisdiction was transferred to be exercised by the police justice, and to that law the police justice was obliged to revert for 'his method of procedure, and consequently, when an amendment was made to the general law allowing appeals from judgments of justices, the inference was that appeals were allowed from the judgments of the police justice, who looked to the general law for his model. The Court being equally divided, the judgment of the circuit court was affirmed, as the decision of this Court.
The position of the Chief Justice and Mr. Justice Manning was acquiesced in, or at least was not questioned, until four years later, in 1868, the Legislature provided, by amendment to the police court act, for appeals where the sentence inflicted was a fine of $25 or over, or the imprisonment was 30 days or over, if within five days the party convicted should present an affidavit to a circuit judge or recorder, and such officer should allow the appeal. The law remained in this condition until 1885, when the Legislature repealed the police court act, and enacted a new law, establishing a police court in the city of Detroit. This act allowed appeals in the same time and manner as provided in the general law from justices of the peace in criminal cases. This new act was amended in 1887, and contains the provision relative to appeals quoted above.
The relator asks for a mandamus to compel the police justice to file his bond and certify the case to the circuit or recorder’s court, chiefly upon two grounds:
1. That all persons accused of violation of the criminal laws of the State are of right entitled to the same rights and remedies, regardless of locality or the court in which he is tried. In other words, the administration of the general criminal law must be the same throughout the State.
2. That the Constitution having vested the several circuit courts with appellate jurisdiction from all inferior tribunals, it is not competent for the Legislature to deprive them of such appellate jurisdiction.
What the Constitution guarantees is that the accused shall have the right to a speedy and public trial by an impartial jury; to be informed of the nature of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and have the assistance of counsel for his defense; and that he shall not be deprived of life, liberty, or property without due process of law. All of these have been accorded to relator. But he complains that to allow a large portion of the citizens of this State the right of appeal to a superior tribunal, and deny, under the same circumstances and conditions, that right to the citizens of Detroit, is a plain violation of the fundamental principle of equality which underlies a republican form of government, and recognized and guaranteed by the fourteenth amendment of the Constitution of the United States. We think the position is fully met and answered in the opinion of Mr. Justice Bradley, in Missouri v. Lewis, 101 U. S., at page 30, where, speaking of a similar claim made in that case, he said:
“It is the right of every state to establish such courts as it sees fit, and to prescribe their several jurisdictions as to territorial extent, subject-matter, and amount, and the finality and effect of their decisions, provided it does not encroach upon the proper jurisdiction of the United States, and does not abridge the privileges and immunities of citizens of the United States, and does not deprive any person of his rights without due process of law, nor deny to any person the equal protection of the laws, including the equal right to resort to the appropriate courts for redress. The last restriction, as to*the equal protection of the laws, is not violated by any diversity in the jurisdiction of the several courts as to subject-matter, amount,, or finality of decision, if all persons within the territorial limits of their respective jurisdictions have an equal right in like cases, and under like circumstances, to resort to them for redress. Each state has a right to-make political subdivisions of its territory for municipal purposes, and to regulate their local government. As respects the administration of justice, it may establish one system of courts- for cities, and another for rural districts; one system for one portion of its territory, and another system for another portion. Convenience, if n'ot necessity, often requires this to be done, and it would seriously interfere with the power of a state to regulate its internal affairs to deny to it this right.” And see Hayes v. Missouri, 120 U. S. 68 (7 Sup. Ct. Rep. 350).
Acting upon its own views of expediency, the Legislature organized and established the police court of the city of Detroit, and gave it jurisdiction over certain offenses, including the one for which relator was convicted. The Legislature deemed it expedient to provide for an appeal to the recorder's court in certain cases, and not in certain others when the punishment inflicted was small. All persons residing or committing offenses in the territorial limits of the city of Detroit are subject to the same law. It operates upon all classes alike, who are within the jurisdiction of the court. Assault and battery is not a. new offense, confined to the city of Detroit. The offense is the same in every portion of the State, and the limits to the punishment of fine and imprisonment the same. In this there is no discrimination in the law,- either for or against the relator. No person has a constitutional right to a second trial, after having been duly convicted before a court of competent jurisdiction, by an appeal to another tribunal; neither is there an inherent right to appeal from a judgment of an inferior to a court of superior jurisdiction for the purpose of securing a second trial upon the merits. The right to an appeal is and always has been statutory, and does not exist at common law. It is a remedy which the Legislature may in its discretion grant or take away, and it may prescribe in what cases, and under what circumstances, and from what courts, appeals may be taken; and unless the statute expressly or by plain implication provides for an appeal from a judgment of a court of inferior jurisdiction, none can be taken. See The Constitution v. Woodworth, 1 Scam. 511; Ward v. People, 13 Ill. 635; Fx parte McCardle, 7 Wall. 506; Prout v. Berry, 2 Grill, 147; State v. Railway Co., 18 Md. 193; Kundinger v. Saginaw, 59 Mich. 355 (26 N. W. Rep. 634); Weed v. Lyon, Walk. Ch. 77; Demaray v. Little, 17 Mich. 386; Maxfield v. Freeman, 39 Id. 64; Cady v. Manufacturing Co., 48 Id. 133 (11 N. W. Rep. 839); Mich. Ins. Co. v. Whittemore, 12 Id. 311; People v. Police Justice, 7 Id. 456; Clark v. Raymond, 26 Id. 415.
The decisions of this Court, with reference to appeals in chancery and other cases, are in point. The Constitution, after vesting in this Court a general superintending control over all inferior courts, with power to issue original and remedial writs, provides that “in all other cases it shall have appellate jurisdiction only." The appellate jurisdiction in “ all other cases" is as plainly conferred by this section as is the appellate jurisdiction of the circuit courts in all cases over inferior tribunals. Among the other cases are those which arise in equity, and are tried upon the chancery side of the circuit courts. In these cases the jurisdiction of this Court is appellate, but it obtains no jurisdiction of this class of cases, except by this act of the Legislature allowing appeals. In Clark v. Raymond, 26 Mich. 415, this Court held that no appeal lay from proceedings to enforce mechanics’ liens, under chapter 215, of the Compiled Laws of 1871, because the Legislature had not provided for an appeal in such law. And this although such proceedings were by petition to the circuit court in chancery, and were to be carried on in analogy to chancery proceedings. In Cady v. Manufacturing Co., 48 Mich. 137, Mr. Justice Campbell, in delivering the opinion of the Court, states the law as follows: “No appeal lies in any case except where given by statute.” That case was a proceeding in chancery for a voluntary dissolution of a corporation. Nothing was said in the statute authorizing such proceedings about the right of appeal, and the Court held that no appeal lies under our statute.
If the Legislature possess this power to grant or take away appeals as a remedy, they may deny it with reference to particular courts created by them, and permit it to others; they may deny appeals from the judgments of the police court, and permit it in other portions of the State. It follows that the remedy which a person may have depends very much upon the locality. The exercise of this power by the Legislature has been frequent in both civil and criminal cases. It has made it a crime to take fish from certain streams and localities, while it has been permitted in other portions of the State. It has permitted the killing of deer in certain portions of the State, while it at the same time prohibited it in others. It has constantly organized municipal courts in cities, and conferred jurisdiction over crimes and misdemeanors, and provided special procedures for such courts, which do not obtain outside of their respective jurisdictions; and, so long as they preserve to the individual the fundamentals of protection to life, liberty, and property, and proceed by due course of law to final judgment and execution, their right to do so is unquestionable.
When Article 6, § 8, of the Constitution clothed the circuit courts with appellate jurisdiction, it used that term in its known signification. It referred to such cases as the Legislature should provide for appealing and retrial in the circuit court. As there is no writ of appeal, or process by which the circuit court can bring the cause up from the inferior court for a retrial it is evident that this provision of the Constitution contemplated legislative action in order to bring the cause within the jurisdiction of the circuit court to retry. An appeal, when perfected, generally annuls the judgment of the court below, so that the party in whose favor the judgment stood can take no action to enforce it pending the appeal. Hence the statutes authorizing an appeal require that the appellant shall give a bond or security to the opposite party to pay or perform the judgment, and other conditions are sometimes annexed for the protection o£ the rights of the parties. It follows that, unless the Legislature provide a statutory remedy by appeal, redress against judgments of inferior courts must be by certiorari or mandamus. The relator in this case, if he wished a review and correction of errors committed by the police court, could have resorted to the writ of certiorari, but this would not secure for him a retrial of the case in the circuit court upon the merits. In People v. Mangold, 71 Mich. 338, in speaking of criminal prosecutions, Mr. Justice Campbell said:
“Hnder the Constitution it requires substantial equality throughout the State in methods of prosecution.-”
In Sullivan’s case this rule was not violated; for, as was said by Mr. Chief Justice Martin in People v. Police Justice, 7 Mich. 461:
“An appeal is no part of the machinery of the trial in the police court, nor is it a proceeding in that court; and to claim the appellate jurisdicton of the circuit court from the course of procedure in the trial below is to make the jurisdiction dependent upon the form of trial.”
The prosecution ended with the trial and judgment, and the method pursued was substantially the same as is practiced throughout the State.
Counsel for relator does not claim that Sullivan did not have a trial before a tribunal which secured to him the same safeguards that he would have had if he had been tried before a justice of¡'the peace under the general law, or that the trial which he had in the police court in any manner abridged any of ;his rights or privileges as a citizen of the State. He has so far received the equal protection of the laws. But what he complains of is that he is deprived of the right to take an appeal to a superior tribunal, where he may have a new trial of the case upon the facts. The general law giving jurisdiction to courts of justices of the peace to try a case like his allows an appeal in case of conviction, upon complying with certain conditions, to the circuit court of the county, where a new trial may be had. But Sullivan committed a petty offense in a locality where the statute did not allow an appeal, and where justices of the peace had no jurisdiction of the offense.
Cdunsel for relator contends that if Sullivan had committed the assault and battery upon his agricultural brother in the township of Springwells, which is separated from the city of Detroit by a mere imaginary line, he would have been entitled to greater rights than he now has, and that he ought to have the same right of appeal as an offender who commits a simple assault and battery in Springwells. In criminal cases, an offender is subject to the jurisdiction of the court in which the offense is committed, ana must submit to the forms and mode of procedure prevailing in such court, which in municipal courts may be different from those prescribed for country districts. Town of Summerville v. Pressley, 11 S. E. Rep. 545.
It may not be inappropriate to consider for a moment what would be the affect of acceding to relator’s contention. There is no statute .authorizing an appeal in a case like relator’s. There is no way of compelling the Legislature to enact a law authorizing appeals in such cases. What remedy can we afford him? Shall the law, therefore, under which he was convicted be declared unconstitutional or ineffectual, beoause it does not provide for an appeal? Shall criminals within the jurisdiction of the police court of Detroit be relieved from all punishment, although duly convicted, and turned loose upon the community, because the Legislature has failed to provide for a retrial of their cases in another court? The logic of relator’s contention would force us to such results.
I think the mandamus should be denied.
Long and Grant, JJ., concurred with Champlin, C. J.
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Champlin, C. J.
The declaration in this cause is upon the common counts in assumpsit, under which there is a bill of particulars setting forth the claim of plaintiff for sawing shingles and lumber. The defendants pleaded the general issue, and the cause was tried before a jury) who rendered a verdict for the plaintiff in the sum of $150.17, upon which judgment was rendered, and the cause is brought here by the defendant Henry C. Ferris.
In the spring of 1884, Samuel H. Stevens and Lawson S. Ferris, composing the firm of Ferris & Stevens, owned a lumber -and shingle mill situated at Belltown, in the township of Sumner, Gratiot county,_ Mich. On or about April 1, 1884, they entered into a contract with Charles M. Franks and Gaines Dunshee, as the firm of Franks & Dunshee, wherein it was agreed that Franks & Dunshee were to run and operate the saw-mill during the season of 1884, and cut out a certain stock of logs which the firm of Ferris & Stevens then had in their pond belonging to them, and also certain logs belonging to customers, for which Franks & Dunshee were to receive a certain price per thousand feet for lumber, and a certain. price per thousand for shingles. Franks & Dunshee were to pay all the running expenses of the mill, and stand all breakages oyer five dollars, and share with the firm of Ferris & Stevens the expense of certain other breakages. Ferris & Stevens were to remove all spaults and refuse from the mill.
Under this contract, Franks & Dunshee, about April 1, took possession of the mill, and commenced operations, sawed a few shingle bolts, but did nothing of any importance until they were informed that Lawson S. Ferris had sold out his interest in the mill, machinery, and power to his brother, Henry C. Ferris. By this sale no interest in the logs or stock then at the mill was sold or transferred by Lawson S. to his brother, Henry C. Ferris. At the time of his purchase from Lawson S., Henry C. Ferris did not know of this Franks & Dunshee contract, and no mention of it was made at the time of the sale, but afterwards Lawson S. Ferris called his attention to it, and stated what the contract was, and Henry O. Ferris said that he had no objections so long as he got his share of the use of the mill. Franks & Dunshee went on under their contract, and cut certain logs and shingles, and at the close of the season’s business presented their bill for a balance due them to Henry O. Ferris, who denied all liability therefor; whereupon Dunshee assigned his interest in the claim to Franks, and he instituted this suit to recover from Samuel H. Stevens and Henry O. Ferris the amount of the claim.
The theory upon which the plaintiff sought to recover was that Henry C. Ferris and the defendant Samuel H. Stevens entered into a partnership under the firm name of Stevens & Ferris, and that as such partners they undertook and agreed to carry out the contract which had been made between Franks & Dunshee and the- firm of Ferris & Stevens. Upon the trial of the canse he intro-duced testimony as to the admissions made by Henry C. Ferris that he was a partner doing business with the defendant Stevens under the name of Stevens & Ferris, and also that the defendant assumed with him the contract entered into with Franks & Dunshee, and had informed them that they were to continue on and cut the logs and shingle bolts just the same as if he had not purchased his brother’s interest in the mill property. The testimony was very conflicting. Both the Ferrises denied that Henry C. had any interest whatever in the logs cut, and denied that Henry C. was a partner of Stevens, and Henry denies ever having held himself out as such partner. He testifies that Stevens endeavored to treat him as such, and use his name in connection with his, but that as soon as he ascertained the fact he forbade him doing so, and refused to be recognized or become partner in any manner whatever.
It is claimed on the part of counsel for defendant Ferris that there was no testimony whatever offered by the plaintiff showing, or tending to show, any consideration for the agreement which the plaintiff claimed Henry O. Ferris entered into, but the testimony of defendant Ferris shows that he was to receive his share of the earnings of the mill (sometimes in the testimony termed “ profits ” for the use of the mill, sometimes denominated “rents”), and that he consented to the firm of Franks & Dunshee going on and performing the sawing under the contract. He also used the spaults and refuse made in carrying out the contract in a permanent improvement of the real estate, in building a dock or place to put lumber, and for teams to turn around on. He also took part in removing the spaults and refuse, but this he claims he did for his brother, Lawson. It cannot be said that there was no benefit accruing to him from the performance of the con tract, and hence it cannot be said that there was no testimony tending to show any consideration for the alleged agreement that he was to take the place of his brother, Lawson, in the performance of such contract.
The circuit judge was requested by counsel for defendant Ferris to charge the jury that the plaintiff had not established such a case as entitled him to recover. This the court refused, but charged the jury:
“If you find from the testimony that the contract was made, as the plaintiff claims it was, with H. C. Ferris, and they did this work under that agreement, * * * your verdict should be for the plaintiff. * * * On the contrary, should you be unable to find from all the testimony that the plaintiff worked for the defendant H. O. Ferris in the running of that mill, and sawing and manufacturing lumber and shingles, * * * your .verdict should be, ‘No cause of action.’”
It is claimed by counsel for defendant Ferris that there is not one scintilla of evidence upon which to base this charge. We think otherwise. There was testimony in the case which, if believed, tended to show that, after Henry C. Ferris purchased his brother’s interest in the mill, he entered into a partnership agreement with Stevens, under the firm name of Stevens & Ferris, and that, before the plaintiff and Dunshee had entered substantially upon the work of sawing the lumber, he had agreed with them to become responsible with Stevens for the contract which had been entered into between them and Ferris & Stevens. The court in its charge called attention to such testimony tending to establish such facts, and also to the testimony tending to disprove them, and very fairly and properly left,the question of fact with the jury to determine whether they found from the testimony that the contract was made, as the plaintiff claimed it was, with H. C. Ferris, and that they did this work under that agreement and arrangement made with H. C. Ferris, and, if they so found, their verdict should be for the plaintiff; but, on the contrary, that if they were unable to find from all the testimony that the plaintiff worked for the defendant H. C. Ferris in the running of that mill, and sawing and manufacturing lumber and shingles, by a preponderance of evidence in his favor, their verdict should be, “No cause of action,” for II. O. Ferris could not be held liable under a contract that he never made.
It is furthermore claimed by counsel for defendant H. C. Ferris that he could only be made liable by some agreement in writing whereby he became collaterally responsible, or by some complete and lawful obligation by which, for a valuable consideration, it was agreed between all the parties that his liability should be substituted; and counsel regard 'the contract, as proven, an attempt at novation, wherein, as he claims, there must be an absolute extinguishment of the old debt.
I do not think the contract tends to prove a novation, but an original undertaking, in connection with the defendant Stevens, to become responsible for work to be done for them, and for which they were to pay; that is, upon the strength of plaintiff’s testimony. The jury having found in plaintiff’s favor upon the disputed facts, if those facts were material to the issue, we must regard them as the real facts in the case. Upon the plaintiff’s theory, and upon his proofs, the work and labor which was to be performed in the future was not performed until after Henry C. Ferris had stated to Franks & Dunshee that he took his brother’s place in the contract with Stevens, and requested them to go on and perform the contract on their part. The contract between Ferris & Stevens of the one part, and Franks & Dunshee of the other, was a contract for labor to be performed in sawing lumber and making shingles. Franks & Dunshee did not lease the mill, and did not agree to pay any rental. The mill and power were furnished to them. If it was a fact that, before any material part of the labor had been performed, defendant Ferris represented to them that he had bought out the interest of Lawson S. Ferris in the-mill, and was to taire his place in the contract with them, and they, in reliance thereon, performed the services sued for, there does not seem to be any reason why the defendant Ferris is not liable with Stevens for the labor performed.
The testimony which was objected to was admissible under plaintiffs theory, and the errors assigned thereon must be 'overruled. If the defendant’s testimony is true, there was no cause for action against him; but neither the weight of the testimony nor the credibility of the witnesses is open to our consideration. All matters of fact are within the province of the jury.
The judgment must be affirmed.
Morse, Cahill, and Long, J.L, concurred. Grant, J., did not sit. | [
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] |
Long, J.
The relator is a mining corporation organized under the laws of Michigan. Its original articles of association bear date March 23, 1860, and were filed in the office of the county clerk of Keweenaw county May 11, 1860, and in the office of the Secretary of State April 10, 1860, and it was therein provided that its term of existence should be 30 years, and it has ever since been a mining corporation under the laws of Michigan.
On March 19, 1890, there was filed for record with the clerk of said county of Keweenaw, that being the county where the corporation carried on its business, duplicate articles of association of tbe Seneca Mining Company, bearing date January 24, 1890, signed by tbe president and secretary of tbe company, and acknowledged before a proper acknowledging officer. Tbe eighth article reads as follows:
“Art. 8. The term of existence of this corporation shall be thirty years from the expiration of its former term, which former term will expire, as is believed, on the 23d day of March, 1890.”
These articles of association were executed under the provisions of Act No. 129, Laws of 1889, which is an amendment to Act No. 16, Laws of 1882, entitled “An act to provide for renewing the incorporation of companies organized for mining and manufacturing purposes,” as amended by Act No. 37, Laws of 1887, which two lat ter acts received a construction by this Court in the case of Attorney General v. Perkins, 73 Mich. 303 (41 N. W. Rep. 426). We there held that these acts did not apply to corporations whose periods of existence were, in the articles of association, limited to 30 years.
On March 17, 1890, another of the duplicate articles of association of the Seneca Mining Company, executed under Act No. 129, Laws of 1889, was presented to the Secretary of State, with the request that he file and record the same, which he refused to do, for the reason that the original articles of association of the mining company provided for a corporate existence of 30 years, and that the amendment of 1889, authorizing an extension of the period of corporate existence of such corporation, is invalid. The Seneca Mining Company asks for a mandamus to compel the Secretary of State to file and record its articles of association, whereby the corporate term of its existence is extended 30 years from March 23, 1890.
A constitutional amendment was submitted to the elect -ors at tbe April election of 1889, and was adopted by them as follows:
“Art. 15, § 10. No corporation, except for municipal purposes, or for the construction of railroads, plank-roads, and canals, shall be created for a longer time than thirty years; but the Legislature may provide, by general laws applicable to any corporation, for one or more extensions of the term of such corporation while such term is running, not exceeding thirty years for each extension, on consent of not less than a two-thirds majority of the capital of the corporation, and by like general laws for the corporate reorganization, for a further period not exceeding thirty years, of such corporations whose terms have expired by limitation, on consent of not less than four-fifths of the capital: Provided, That in cases of corporations where there is no capital stock, the Legislature may provide the manner in which such corporations may be reorganized." Laws of 1889, p. 455.
Without the authority conferred upon the Legislature by this amendment to the Constitution, the Legislature would have no authority to authorize the extension of corporate existence of corporations such as this, as was held in Attorney General v. Perkins, 73 Mich. 303. The important question which is therefore presented is, when did the amendment adopted by the electors in April, 1889, take effect as a part of the Constitution? We must look to that instrument for a reply. Article 20 reads as follows:
“ Section 1. Any amendment or amendments to this Constitution, may be proposed in the Senate or House of Representatives. If the same shall be agreed to by two-thirds of the members elected to each House, such amendment or amendments shall be entered on the journals respectively, with the yeas and nays taken thereon, and the same shall be submitted to the electors at the next [spring or autumn election thereafter, as the Legislature shall direct], and if a majority of electors, qualified to vote for members of the Legislature, voting thereon, shall ratify and approve such amendment or amendments, the same shall become part of the Constitution.
“ Sec. 2. At the general election to be held in the year one thousand eight hundred and sixty-six, and in each sixteenth year thereafter, and also at such other times as the Legislature may by law provide, the question of the general revision of the Constitution shall be submitted to the electors qualified to vote for members of the Legislature; and in case a majority of the electors so qualified, voting at such election, shall decide in favor of a convention for such purpose, the Legislature, at the next session, shall provide by law for the election of such delegates to such convention. All the amendments shall take effect at the commencement of the year after their adoption."
This is all there is in the Constitution about amendments, and when they shall take effect. It is contended on the part of the respondent that the clause, “All the amendments shall take effect at the commencement of the year after their adoption," added to section 2, has reference solely to the amendments specified in section 1, and that section 2 has no reference to amendment or amendments of the Constitution, but to the submission of the question of revision each sixteenth year, or at such times as the Legislature may by law provide; and from this it is contended that the amendment passed at the April election in 1889 only took effect on January 1, 1890. If this is the construction to be given to the last clause of section 2, Article 20, of the Constitution, as it now stands, and that clause is still in force, since the amendment of 1876, and hereinafter referred to, then the act of 1889, under which relator claims the right to file articles of association, is wholly void; for, if the law-making power is prohibited from enacting a law, and in disregard of such prohibition it goes through the forms of enacting a law, such enactment is of no more force or validity than a piece of blank paper, and is utterly void, and power subsequently conferred upon the Legislature by an amendment of the Constitution does not have a retroactive effect, and give validity to such void law. Dewar v. People, 40 Mich. 401; Mt. Pleasant v. Vanspice, 43 Id. 361 (5 N. W. Rep. 378); Cooley, Const. Lim. 188.
The history of this article of the Constitution in the convention of 1850 is as follows: First there was a committee appointed upon the subject of amendments to the Constitution. This committee reported substantially the article found in the Constitution of 1835, and this was referred to the committee of the whole. Afterwards, a substitute was offered substantially as article 20 now is, except the change made in section 1, in 1876, and the last clause of section 2, which was adopted in committee, and referred back to the convention, and placed upon the order of third reading. On third reading, amendments were made in section 2 so as to require the question of revision to be submitted every sixteenth year after 1866. The article, as amended, was passed by the convention, and referred to the committee on arrangement and phraseology. This committee reported the article back to the convention, with these words added to section 2:
“All the amendments -shall take effect at the commencement of the political year after their adoption.”
The amendment was concurred in by the convention, and referred to the committee on enrollment, and the article was passed as a part of the Constitution by the convention. It does not appear, from the convention debates of 1850, that question was raised or debate had upon the subject of the amendment made by the committee on phraseology. This article of the Constitution remained unchanged until the Legislature, by joint resolution No. 17, in 1861, proposed an amendment to section 2 by omitting the word “political” before the word “year,” where it last occurs, so that this clause would read,—
“All amendments shall take effect at the commencement of the year after their adoption.”
This amendment was ratified and adopted by the electors at the general election held in 1862. Just what the effect of this amendment was, is not very apparent, as, by section 1 of the article, amendments were still required to be submitted to the electors at the general election, which occuri’ed only biennially, and the commencement of the year next' after their adoption would still place the time of the taking effect of the amendments beyond the time when the Legislature would have adjourned its session, so that no legislation could be had thereunder until the meeting of the Legislature two years thereafter, unless an extra session was called.
TJp to 1876, a period of 25 years from the adoption of the Constitution of 1850, no one ever contended that an amendment to the Constitution took effect until the commencement of the year after its adoption; the last clause of section 2 undoubtedly being construed as having referred solely to the amendments specified in section 1 of that article. During this time 21 amendments were submitted to the people, of which 8 were rejected and 13 adopted. No legislation was attempted under such amendment, however, during this time, until after the amendment took effect after the commencement of the year following. Amendments were proposed and adopted by the Legislatures of 1865, 1869, 1870, 1871, and 1874, and submitted to the electors, who voted upon them at the biennial elections following these years, and those adopted were not regarded as taking effect until January 1 following. By joint resolution No. 29 of 1875, the Legislature, however, adopted an amendment to section 1 by striking out the word “general” before the word “election,” and substituting therefor the words, “spring or autumn election thereafter, as the Legislature shall direct.” At the general election held in 1876, this amendment was ratified and approved by the voters, and this is the present condition of the article, and it stands as above quoted.
Whatever interpretation may ' have been given this article by the Legislature, or others acting under it, prior to the amendment of 1875, which was ratified by the electors, so that the vote of the electors upon amendments could be taken at the spring election, or in the autumn, it is very evident that it was the intention of the Legislature of 1875, so to change the time when the amendments should take effect that legislation could at once be had under the change so made in the Constitution. If the time of the taking effect of these amendments was still postponed until the commencement of the year following, then the submission of such amendments to the electors for their approval might as well have been at the general election as in the spring, and nothing would have been gained by a submission at an earlier period. It is quite apparent that the very purpose, and the only object, to be accomplished by this change in section 1, was to enable the Legislature, during its sitting, to enact laws to meet the object sought to be accomplished by a change in the fundamental law; that the Legislature might submit an amendment or amendments to the Constitution at the spring election, and, if ratified by the electors, the Legislature being then in session could, by appropriate legislation, carry out the object sought in the change. It must be held that the amendment took effect from the time of the ratification by the popular vote.
It follows that Act No. 129, Laws of 1889, is valid, and the writ of mandamus must issue as prayed.
The other Justices concurred. | [
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Cahill, J.
The defendant was convicted in the circuit court for Bay county of selling spirituous, intoxicating, brewed, and fermented liquors at retail without having paid the tax required by law.
The people, to maintain and prove the issue on their part, introduced evidence showing that the defendant was the owner and master of the scow Ida May; that on July 7, A. D. 1889, said scow was anchored and stationed on the waters of Saginaw bay, about one-half mile from its west shore, opposite the township of Bangor, in the county of Bay; that the water where the boat was anchored was about five feet in depth; that on the day aforesaid the defendant was on board of, and had charge of, said boat, and had in said boat a load of spirituous and intoxicating, and malt, brewed, and fermented, liquors; that on the west side of Saginaw bay, in said township and county, there are three summer resorts, known as “Oa-at-ka,” “ Belle View,” and “ Reservation ” beaches, and on the day aforesaid several hundred persons were sojourning at such places; that on that day, defendant’s boat was anchored opposite Oa-at-ka beach, and was easily accessible both by persons rowing out in small boats and by bathers; and that some of each class boarded the scow Ida May, and purchased intoxicating, malt, brewed, and fermented liquors from defendant, and that the persons purchasing such liquors became and were intoxicated. It was also shown that the defendant had not paid the tax required by law for the • sale of spirituous and intoxicating liquors, or for malt, brewed, and fermented liquors.
The defendant offered no evidence. Tlie defendant, by his counsel, then requested the court to instruct and charge the jury that there was no evidence in 'said cause which would entitle the people to a verdict, and that the defendant was entitled to a verdict of not guilty, which request the circuit judge then and there refused, and thereupon charged and instructed the jury that, if they believed the testimony, they might bring in a verdict of guilty. The jury rendered a verdict of guilty.
The defense relied on is that defendant was not carrying on the business of selling liquors in any city, village, or township of this State; that the boundaries of Bangor township, opposite which his boat was anchored, do not extend beyond the shore line of Saginaw bay; that there was no reason, therefore, why he should pay the tax required by law to that township rather than another; that the statute of 1887 (Act No. 313), making it unlawful to engage in the business of selling spirituous and intoxicating liquors “ without having paid in full the tax required by the act,” does not apply to his case.
The sole question, then, to be decided; is, does the township of Bangor extend beyond the shore line of Saginaw bay, so as to include within its boundaries and jurisdiction the place where respondent was doing business? This is an interesting and important question in this State, which has a coast line bordering upon the Great Lakes aggregating more than 1,600 miles. If the claim made by respondent is good, then it may be possible to conduct the business of selling liquors, without any restraint or regulation of law, at many points in this State opposite pleasure resorts, where the presence of large numbers of idle persons will make such business especially dangerous.
The township of Bangor was organized by the board of supervisors of Bay county in 1859. It included at that time the following surveyed townships: 14 N., ranges 4 and 5 E., lying west of Saginaw river; fractional townships 15 N., ranges 4 and 5 E.; and fractional townships 16 N., ranges 4 and 5 E. Laws of 1859, p. 1120. The boundaries of these surveyed townships bordering on the bay extended only to the shore line, according to the government survey. 1 Lester, Land Laws, 714. The township of Bangor was organized, and its boundaries defined by reference to lines already established by official surveys. It is difficult to see how such boundaries can properly be extended by judicial construction to 'include territory, whether of land or water, outside such surveyed lines. There is a practical difficulty in establishing any rule as to the distance that the boundaries of a township shall extend into the water on a shore line when the indentations by bays and otherwise are so frequent as to cause such lines to intersect each other at irregular distances from the shore. The same difficulty operates with reference to county lines. It was this, no doubt, that led the legislative council, as early as in 1831, to provide, in an act for the organization of various counties, that the boundaries of the counties of Allegan, Ottawa, Oceana, Saginaw, and Arenac (now Bay) so far as they bordered on the Great Lakes should run to the shore line. 3 Ter. Laws, 871, 872. Limiting the boundaries of counties by the shore lines also led to the provision in the Revised Statutes of 1838, giving to certain counties bordering on the Great Lakes a common jurisdiction of all offenses committed on such lakes within this State. Rev. Stat. 1838, p. 34; How. Stat. §§ 442-451. These statutes not only do not operate to extend the territorial boundaries of the shore counties into the Great Lakes, but they are an express legislative recognition that such boundaries do not so extend, by placing over the territory covered by water a new and peculiar jurisdiction.
It may be claimed that as the rights of the owners of the land bordering on the bay extend into the bay for a distance of one mile from the shore, for the purpose of fishing (How. Stat. § 2172), perforce the boundaries of the township are likewise so extended. But this cannot be true. The boundaries of a municipal corporation are fixed by law, and cannot be made to depend upon the fact that the owners of land within the limits have rights appurtenant extending beyond such limits.
I am of the opinion that, under the law as it now is, the respondent is not guilty of the offense charged; and the attention of the Legislature is respectfully called to this apparent slip in the 'statute, which may be easily remedied.
The conviction of the respondent must be set aside, and the prisoner discharged.
The other Justices concurred. | [
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Grant, J.
This is an action of trover for the conversion of two buildings. These buildings, the property of the plaintiff, were situated on leased ground. She was also the owner of a small steam-boat.
April 15, 1887, she and her husband executed a chattel mortgage upon one of the buildings and the boat to one Martin, to secure the payment of $50. On the 28th Of the same month, they executed another mortgage upon both of the buildings and the boat to Martin, to secure' the payment of $108. May 24, they executed a third mortgage upon the boat alone to the defendant, to secure the payment of $143.20. Defendant, in order to protect his third mortgage, purchased the other two; and they were duly assigned to him. The mortgages contained the usual clause against removal by the mortgagor, and provided for seizing and selling the property in case that was done.
Plaintiff sold her interest in the boat. Defendant thereupon took possession, advertised, and sold it at public auction, subject to the other two mortgages. He bid it off for the sum of $40, and afterwards sold . it. He afterwards took possession of the buildings, and sold them at private sale, under the authority conferred in the mortgage, for $360. There was a mechanic's lien upon one or both of these buildings for $60. The amount for which they were sold exceeded the amount of the mortgage liens, and defendant tendered to plaintiff the amount he claimed to be due her, less another sum which he claimed Mr. and Mrs. Bose owed him. Plaintiff declined to receive that amount, or to recognize the validity of the sale, and brought this action, claiming that the sale was without authority and void.
The court charged the jury that the power of sale in these mortgages was a special power, authorizing the sale only for the purpose of collecting the amount due upon the mortgages; that, to justify the sale under this power, it must have been made in good faith to carry out that intention; that if they found from the evidence that the purpose and intention of Page was to pocket the surplus, or apply it in any manner not authorized in said power, or to the payment of other or unsecured claims he had, or claimed to have, against the plaintiff, he was a wrongdoer, and the sale, instead of being a foreclosure, was a conversion of all the plaintiff’s interest in the property. The jury were further charged in regard to the measure of damages and the burden of proof.
Plaintiff does not complain of, or attack the validity of, the foreclosure upon the boat; and the court instructed the jury to determine the value of the boat, and the cost of foreclosing the mortgage upon it, and, if that was not sufficient to pay the amount of that mortgage and such expenses, that the balance remained a personal debt against the plaintiff, but could not be considered in figuring up the amount to be deducted from the value of the buildings. They were further instructed that if they found" that defendant had a balance still due him after a fair and equitable disposal of the boat, and he proceeded to sell the property in good faith, their verdict must be for the defendant. The jury found a verdict of no cause of action, and plaintiff appeals.
Two questions are presented by the record:
1 Did the foreclosure of the third mortgage operate as a discharge of the other two mortgages, and a payment of the debts secured thereby?
It is difficult to conceive any rule of law or equity by which this question can be answered in the affirmative. Plaintiff has sold and parted with all her interest in the boat. She has paid none of the debts secured by either of the three mortgages, nor the mechanic’s lien upon the buildings. The boat was not worth much if any more than the debt secured by the third mortgage upon it alone. What she secured from the sale of the boat does not appear. She now seeks to recover the value of the mortgaged property, not only without payment of any portion of the debt secured thereby, but insists that it has been paid by the act of the defendant in foreclosing. We have carefully examined the authorities cited upon plaintiff’s brief, and none of them maintain the doctrine here contended for. The court correctly charged the jury, and carefully protected all her rights and interests.
2. Was the private sale without notice to the mortgagor a conversion of the property, and did it destroy his lien thereon?
The complete answer to this question is that the mortgage expressly provided that the mortgagee might sell at private sale, and did not provide for any notice to be given. In such case a sale after the debt is due is valid without notice. Jones, Chat. Mortg. § 793. "Upon this branch of the case the plaintiff seeks to obtain the value of her property without tendering the amount of her debt; but a mere irregularity, where the sale is made in good faith, will not subject the purchaser or mortgagee to an action of tort in which the whole value 'of the property can be recovered, leaving the mortgage debt unpaid.
Culbertson v. Young, 50 Mich. 190 (15 N. W. Rep. 77), cited by plaintiff’s counsel in support of his contention, does not establish any such rule as is here contended for. That was a bill to redeem; and the facts were that the assignee of a chattel mortgage given to secure a number of notes transferred some, with the power of sale, but retained a junior interest in the mortgage much larger than that which he transferred. The transferee foreclosed without notice to the holder of the junior interest, and with no other notice to the public than by posting notices the night before the sale, and tearing them down immediately afterwards. The question of notice, under the circumstances of this case, was not involved in that one. That the defendant acted in good faith is settled by the verdict of the jury. Under such circumstances the proper remedy for the plaintiff was by a bill to redeem, in which proceedings the rights of all parties could be protected, or, if she chose, to ratify the sale, and bring an action of assumpsit to recover the surplus. We do not think that an action in tort was the proper remedy.
The judgment is affirmed.
The other Justices concurred.
Counsel cited Merritt v. Niles, 25 Ill. 282; Speer v. Whitfield, 10 N. J. Eq. 107; Bridgman v. Johnson, 44 Mich. 491; Denham v. Kirkpatrick, 64 Ga. 71; Ledyard v. Phillips, 32 Mich. 13; Robins v. Swain, 68 Ill. 197. | [
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Grant, J.
The respondent was convicted of the crime of assault with intent to commit rape.
The complaint before the justice of the peace charged-that the respondent committed the crime of rape upon one Yictorine Martin, a female child under the age of 14 years, to wit, of the age of 13 years, and also that he made an assault upon her with the intent, then and there, feloniously, unlawfully, and carnally to know her. He was arrested, examined, and bound over to the circuit court for trial; the justice making the usual return that he found probable cause to believe the respondent guilty of the commission of the crime charged.
The information filed in the circuit court contained three counts, — the first one charging rape; the second, assault with intent to commit rape; the third charging him with having taken indecent and improper liberties with the person of said Yictorine Martin without committing, or intending to commit, the crime of rape.
1. The first count omitted the words “under fourteen years of age,” but did charge that she was of the age of 13 years. Upon the trial the court permitted an amendment of this count by inserting the words “under fourteen years of age.” The court correctly permitted the amendment, if any was needed. But, even if its allowance were error, it is of no consequence, as the court charged the jury that there could be no conviction under this count.
2. It is claimed in behalf of respondent that the justice did not specify in his return which one of the offenses charged he found reason to believe the respondent guilty of. It is a sufficient reply to this claim that the justice was not requested to do so. The decision in Yaner v. People, 34 Mich. 286, was based upon the express request made to the justice, and his refusal to so find. That decision cannot apply where a lesser crime is included in the greater one charged, and no request is made upon the justice at the examination.
3. It is also claimed that it was error to add the third count to the information. Act No. 153, Laws of 1887, expressly provides that such a count may he added to an information charging rape. It was the evident intention of the Legislature to make provisions for a trial under section 1 of that act where the proof came short of showing rape, or an assault with intent to commit rape. The objection is that the respondent was not examined before the justice for this offense, and therefore could not be tried for it in the circuit. This objection was made after the jury had been impaneled, and was overruled by the court. If this contention be correct, the-statute providing for adding this count is void. The-facts and circumstances sustaining a charge of assault-with intent to commit rape upon a child under the age of consent would necessarily be very much the same as-those tending to sustain the charge set forth in the third count. We think the statute is valid, and the third count properly added to the information. But, whether this he so or not, the respondent was not convicted under this count, and was therefore not prejudiced by the ruling of the court.
4. The only important and serious question raised by the record is whether the respondent was properly convicted under the second count, of an assault with intent to commit rape. The complaining witness had been placed by her parents in the care of respondent, who was a peddler, to be taken by him to her grandparents for a visit. He promised to convey her safely to her destination. Instead, he took her to a hotel in Bay City, and registered as man and wife. The suspicion of the hotel-keeper was aroused, and he notified an officer. It is unnecessary to repeat the filthy details of the evidence. The jury found from abundant evidence that respondent attempted to have sexual intercourse with the girl, and that she at least made some resistance. The point raised in behalf of the respondent is settled by the case of People v. Courier, 79 Mich. 366. Her own acts, she being under the age of consent, could form no legal justification to respondent for an assault upon her with intent to violate her person; nor was it necessary for the jury to find, in order to convict, that he intended to gratify his passion, regardless of resistance.
5. The statements made by the complaining witness to the officer just after the arrest of the respondeut, and the prior acts of familiarity between them, were competent. This has been too often decided by this Court to require a citation of authorities.
There is no error in the record, and the judgment must be affirmed.
The other Justices concurred. | [
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