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Cahill, J.
The plaintiff sued the defendant before Edgar J. Wiley, a justice of the peace of Chippewa county, for running over and killing a colt valued at 1100. The defendant appeared specially, and moved to quash the summons and the service thereof, because—
1. Edgar J. Wiley is not a justice of the peace in and for Chippewa county.
2. The return of the service and the service itself of said summons is insufficient and void.
3. This court has no jurisdiction to hear and determine this cause.
—Which motion was overruled. The summons was returned with the following certificate indorsed thereon:
ftI served the within summons on the 23d day of November, A. D. 1888, on the defendant by handing a copy to the station agent at Sault Ste. Marie, and deliving to him a copy thereof at the city of Sault Ste. Marie, within the said county.
“Wji. Hand, Constable.”
It is objected that this return does not show that the station agent upon whom service was made was the ,agent of the defendant. We see no force in this point. The statement is that the service was on the defendant by handing a copy to the station agent. This implies that the station agent was the agent of the defendant; ■otherwise the statement that defendant had been served was not true. The other grounds for the motion to ■quash were properly overruled.
Plaintiff’s declaration was as follows:
“ Plaintiff present, and declares orally against the defendant that, whereas, the defendant is a corporation owning and operating a railroad through the township of Bruce, county of Chippewa, and have been so operating .a railroad for over a year last past; that said company have not fenced said road at any place through said township; that on the 18th day of September last the plaintiff was the owner of a certain horse colt of great value, to wit, of the value of one hundred (100) dollars, which was lawfully in said township, which colt went on the track of the said railroad, and was there killed through the negligence of said company, and because said track was not fenced, to the damage of said plaintiff one hundred dollars, and therefore he brings suit.”
The defendant demurred generally to the declaration, which demurrer was overruled, and the plaintiff recovered a-judgment for $70 and costs. The defendant appealed from the justice’s judgment, and on a trial in the circuit court the plaintiff again recovered judgment for $70. The defendant brings error.
The evidence showed conclusively that the plaintiff’s colt, about a year and a half old, was killed by freight train No. 40, passing over defendant’s road on the night of October 18, 1888; that the railroad track was not' fenced in the vicinity where the accident occurred; that plaintiff’s colt had escaped from pasture into the highway during the day without plaintiff’s knowledge, and following the highway down to the railroad track, and there being no fence to prevent, had entered upon the right of way, and wandered 40 or 50 rods up the track, where it was killed.
The only questions in the case are:
1. As to the sufficiency of the declaration.
2. Whether the plaintiff could recover upon a showing that the railroad company had failed to fence its track, and without other proof of defendant’s negligence.
We think the plaintiff’s declaration sets out a cause of action, and is as full as is usual or necessary in justice’s court.
It has been held repeatedly that when stock gets upon a railroad right of way by reason of the neglect of the railroad company to properly fence its track, and is killed by a passing . train, no other negligence need be proved. Flint, etc., Ry. Co. v. Lull, 28 Mich. 510; G. R. & L. R. R. Co. v. Southwick, 30 Id. 444. This liability attaches to railroads in the Upper Peninsula. Marcott v. Railroad Co., 47 Mich. 1.
We see no error in the record, and the judgment is affirmed, with costs.
The other Justices concurred. | [
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Morse, J.
The plaintiff recovered judgment in the Wayne circuit court for damages, upon the claim that he was severely and permanently injured and crippled by an electric shock while trimming lamps on an electric tower in Detroit, on August 19, 1886, at about 9 o’clock in the morning.
The plaintiff’s evidence showed that he had been working for the defendant company as a trimmer from April, 1886, up to the day of the injury. On that day he had trimmed the lamps in 12 or 13 towers before he came to the tower at the corner of Hastings and Marion (now Winder) streets. He went up this tower and trimmed three lamps, and had nearly completed the fourth one, when he received a shock, from which he claims his condition at the time of the trial resulted. It is not disputed but that he received or had a shock to his system of some kind while on this tower. The defense claimed that it was from paralysis, and not from electricity, and much medical evidence was introduced on both sides, one set of physicians claiming that his injuries were or might have been caused by an electric shock, and another set testifying that his condition was the result of paralysis. This question was settled in plaintiffs favor by the verdict of the jury.
This tower where the shock was received was upon the circuit numbered 11, and the wires should have been, and were supposed to be, at the time plaintiff was working upon the lamps, dead wires, or wires not charged with electricity. It is very plain from the whole evidence that, if the shock received by the plaintiff was from electricity, it was caused by live wires, or wires charged with an electric current, crossing the dead wires on circuit No. 11, and communicating by contact electricity to one or more of them. At this time circuit No. 4 was used for the purpose of furnishing electric light during the day-time, and the wires upon such circuit were consequently “live wires ” at the time plaintiff was trimming the tower where he was injured. The wires in circuit No. 4 ran part of the way upon the same poles as the wires on circuit No. 11, to wit, from the works of the defendant to the corner of Shelby street and the alley, “And from the corner of Griswold street and Michigan avenue, the north-west corner on the east side of Michigan avenue, around Farnsworth^ store, from Woodward avenue to the corner of Gratiot.” There were crosses of these dead and live wires observed on the very day of the injury to plaintiff. It was shown that when the insulation of these wires is worn off, and such insulation will wear off by friction as well as from other causes, so that the bare wires come together, — a live and a dead wire in contact, — the electricity will instantly be conveyed from the live to the dead wire along the whole line of the wire. It was also shown that the insulation had worn off in places on the wires; that the wires were improperly placed upon the poles so that the wires of one circuit crossed those of another, and that whenever they sagged, and sagging was to be expected, the wires of different circuits would touch one another.
The main objections to the verdict are directed against the declaration and proof in the case. The declaration was specially demurred to, and the demurrer overruled. The defendant then pleaded, and issue was joined upon the plea. The questions raised upon demurrer were again interposed upon the trial by the defendant objecting to the introduction of any evidence under the plaintiff’s declaration.
It is claimed by plaintiff’s counsel that, inasmuch as the defendant did not choose to stand upon its demurrer, but pleaded issuably after it was overruled, it could not thereafter again raise the questions settled by the overruling of the demurrer; citing Ashton v. Railway Co., 78 Mich. 587 (44 N. W. Rep. 141); Cicotte v. County of Wayne, 44 Id. 173 (6 N. W. Rep. 236); Peterson v. Fowler, 76 Id. 258 (43 N. W. Rep. 10). See, also, Wales v. Lyon, 2 Mich. 276. This position is undoubtedly correct under all our previous holdings, and this disposes of all the questions raised upon the declaration.
It is strenuously argued that there was no evidence in the case showing how the accident occurred. As before intimated, we think differently. The first question to be determined by the jury was the nature of the shock that the plaintiff received. Was it from electricity or paralysis? If from the former, as the jury found, it was not difficult to ascertain how it occurred. The wires upon circuit No. 4 were live wires. They were in contact in more than one place that day, as shown by the proofs. The shock, it is true, might have been caused by turning the electric current upon circuit No. 11, through the negligence of the defendant's employés, or the act of a stranger, or perhaps from unavoidable accident, though the latter two suppositions are hardly entertainable; but the most probable cause was the transfer of electricity from some live wire on circuit No. 4 to some dead wire on circuit No. 11 at some of the crosses of these wires. The jury under the evidence had the right to infer that this was the cause, and they were not compelled to find what particular wire of circuit No. 4 came in contact with a wire of circuit No. 11, or with what particular wire of No. 11, nor at what precise spot this contact and transfer took place. This would be an impossibility, and such a chasing or tracing of lightning is not required. The negligence of the defendant company in so stringing its wires that the wires of one circuit cross another, so that a slight sagging of one wire will bring the two in contact, and maintaining one circuit as a live one while employés are set at work handling with bare hands the wires of the dead circuit so crossing the wires of the live circuit, is plainly apparent to any one. And there was no excuse for it, when we consider the deadly nature and' effect of the electric current passing over the wires.
Fault is found with the charge of the court upon the assumption that the circuit judge put hypothetical suppositions to the jury, not based upon any testimony in the case, thereby misleading them, and permitting, and perhaps inducing, them to base a verdict upon one or more of such suppositions. We do not think the charge is open to this objection. The evidence in the case took a wide range, and there was a great deal of theory advanced upon both sides in the testimony, as there necessarily will be in the study and contemplation of an agency as little understood by the great mass of people as is electricity, and of which it may well be said that the savants know but little. The court said, speaking of the defendant and its employés:
“Was it through defendant’s negligence that the plaintiff was injured? Did they fail to turn off any of the live wires which connected with the tower located in the circuit on which this plaintiff was working (being designated as circuit No. 11), for the dead wires, so called, convey no electricity, and therefore could not possibly injure the plaintiff. It is only from the contact of the dead wire with a live wire, and remaining together for some time, or by the opening of some of the machinery at the principal place of business, — that is, where the electricity was manufactured on Third street, just below Fort street, — that he could have been injured. Does this evidence show you such was the case? Does this evidence show you that the wires were improperly placed upon the poles and upon some of the arms in such a manner that a live wire and a dead wire should come in contact with each other, and by such reason of coming in contact, and the crossing of the dead and the live wire, that an electric current was communicated to a line which carried it to the tower where the plaintiff was hurt? If you should so find that the plaintiff, when in the performance of his duty, had the right to do the work he was doing, and was in the exercise of due care to avoid injury, and if you should find that, by means of the electricity conveyed to the tower, in the manner stated, he received a shock that injured him, such as described, then the defendant would be liable to compensate the plaintiff for the injury he sustained; provided you find that the injury was done through the negligence of the defendant, and unless you can find it was done through the negligence of the defendant plaintiff cannot recover.”
It is objected that there was no testimony tending to support the idea that the company failed to turn off the electricity from any of the wires in circuit No. 11. While this may be so, there was evidence tending to show that one of the wires in circuit No. 11 was charged, with electricity, and shocked the plaintiff. The court told the jury, and we think properly, under all the testimony, that this wire being charged with electricity could only happen in one of two ways: By the contact of the live wire of another circuit, or by the turning of electricity upon circuit No. 11. We do not think the jury were misled or the defendant prejudiced by this part of the charge. While there was no positive or direct evidence that any •employé of the company turned or allowed the electric ourrent to pass into any of the wires of circuit No. 11, jet the fact appeared, as found by the jury, that such current did enter one of such wires, and injured the plaintiff. It was proper for the jury to inquire into and determine how it got there, and no error was committed in allowing them to determine whether or not there was any testimony showing that the current came directly from the works of the company. And, in view of the testimony that circuit No. 4 was a live circuit that morning, and that its wires came in contact with the wires of No. 11, it is not at all probable that the jury found otherwise than that this contact caused the injury. The charge was eminently a fair one, and properly stated the law of the case.
The hypothetical questions permitted by the court were entirely proper. They were all directed to the effect of certain conditions of the wires as to the transfer of electricity, and although some of the conditions inquired into were not shown to exist in this particular case, yet they were all shown to be caused by the same general principles that are supposed to govern electricity, and were therefore analogous to the case in hand. Take for instance this question:
“ Supposing that a live wire should come in contact, fox* instance, with a telephone wire, by the telephone wire settling down upon the electric light wire, what effect would that have upon the telephone wire?”
This question was entirely proper and competent. The telephone wire was used as an illustration, and although there was no claim or evidence of a telephone wire having anything to do with the plaintiff’s injury, yet the effect upon a telephone wire would be the same as upon an electric light wire, and therefore the illustration used could not only do no harm, but was directly in line with and corresponding to the question at issue.
There was no substantial error in showing crosses of the wires at other places in the company’s plant not connected with cii’cuit No. 11, and the effect and causes of such crosses. This evidence was given to show that the crosses were caused by the same method of stringing the wires as on circuit No. 11; that such crosses, by the sagging of the wires, brought the wires in contact, which contact woi-e off the insulation and left the wires bare. When these facts were noted by an eye-witness, it certainly was competent for him to testify to it to show that the same causes on cii’euit No. 11 would cause the same effect as he noticed elsewhei’e, the conditions being exactly the same in both cases.
A witness, Dyer, was permitted to testifiy that in the fall of 1886, some months after the injury to plaintiff, he was employed by the superintendent and foreman of the defendant to change the wires on the poles, and put them in uniform shape, so that the wires would run straight, and not cross each othei , which he did, and that before that time, from the time he went to work for the company, in the spring of 1886, the wires were in bad shape.
“ One wire would run from the top arm, and probably before tbe time it got four blocks or three blocks it would probably be on the lower arm, on the opposite side of the pole from where it started.
“ Q. It would make a complete cross from side to side, and also from the top cross-arm to the bottom?
“ A. Yes. There is some to-day the same way.”
It is alleged that it was error to permit this witness to state that a change was made in the manner of stringing these wires after the injury to plaintiff, and we are referred by counsel for defendant to Woodbury v. Owosso, 64 Mich. 239, 243, and to Grand Rapids, etc., R. R. Co. v. Huntley, 38 Id. 540, as sustaining this allegation.
It was certainly immaterial what change was made in the stringing of these wires after the injury was accomplished, or what their condition was a month or so after the accident. What it was immediately before and at the time of the accident, and soon thereafter, before any change was made, was material. We can see no harm, however, in showing that the wires were strung as they were on the day of the injury, on April 1, 1886, and continued until some months later than the accident, in view of the fact that this method of stringing the wires was claimed to be the cause of the accident. If it was a defect, it was not incompetent to show how long it had existed before the injury, and what was the natural result of its existence. Smith v. Sherwood Tp., 62 Mich. 159 (28 N. W. Rep. 806). While the nature of the change made was immaterial, as well as when it was made, we do not think that the admission of this evidence was so prejudicial in this case as to warrant a reversal of the judgment for that cause alone.
It is very plain to us that if the plaintiff received an electric shock it was caused entirely by the defective stringing of the wires, so that they crossed each other, and by sagging come often into contact, so often that men were constantly kept employed along the line taking up the sagging or slack of the wires and endeavoring to remedy the natural results of such crossing of different circuits. It is not so plain to us that the injuries of plaintiff resulted entirely from electricity, but this matter has been twice settled by a jury in his favor, and it is not our province to disturb the verdict because of any doubts we may have upon a question of fact.
The judgment is affirmed, with costs.
The other Justices concurred.
Counsel for appellant cited, in support of this proposition, Porter v. Railway Co., 80 Mich. 156. | [
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] |
Grant, J.
Plaintiff brought suit for damages claimed to have resulted from a defective sidewalk. Defendant pleaded the general issue. Verdict and judgment were for the plaintiff. After the jury had been called, but before they were sworn, defendant's counsel objected to swearing the jury, or proceeding with the trial, because:
1. The declaration is drawn as if plaintiff had a common-law right to the action therein mentioned, and does not refer to or count upon the statute which authorizes a suit for injuries caused by a defective sidewalk.
2. The place of the accident is not sufficiently described, it being described as 'An the south side of Pearl street, a short distance east from its intersection with Mechanic street, in the city of Jackson.”
3. The allegation is in the alternative, and therefore not set forth with sufficient certainty, the allegation being that the injury was caused by “stepping on a broken board, or into a hole.”
If any of these objections were good, they should have been raised by demurrer. The first objection is ruled by Grand Rapids, etc., R. R. Co. v. Southwick, 30 Mich. 446. All the objections are purely technical. The declaration is sufficient to sustain a general verdict. Only when no cause of action is stated in the declaration is defendant justified in pleading the general issue, and raising the objections upon the trial. Otherwise, the plea waives all defects. The objections were properly overruled. We are not disposed to treat such objections with much favor.
The evidence tended to show that Pearl street was one of the principal streets of the city, and much traveled; that plaintiff had lived on it several months, and passed over it every day; that the sidewalk was not ordered or built by the city, but was built by the owner of the property, of inch boards; that teams drove across it into a passage-way to another street; that a fence was put along the sidewalk to stop the teams, which was several times torn down; that the owner afterwards repaired the walk, and that some of the broken places were ‘filled in with cinders; that there were two holes in the sidewalk, which had been caused by the passage of the teams, and that these holes had been there for. some time previous to the accident; that the street commissioner was seen passing over Pearl street shortly before the accident, and that one of the aldermen frequently passed over the street, and saw teams passing over the sidewalk. No notice to the defendant was otherwise shown.
The accident happened in the evening, but it was suf •ficiently light for plaintiff to see. No teams had passed over the sidewalk for some time previous to the accident. She testified that when she came to the hole, and saw it, she stepped over it onto the next plank, which was broken, and let her down; that her foot slipped under the next plank, and threw her backwards; that she had never noticed the broken board before; she could see everything plainly; was not thinking of the defective condition of the walk till she came right to it.
The court instructed the jury—
1. That the sidewalk was one over which the corporate authority of the city extended.
2. That they must find that the injuries of which plaintiff complained were the result of the neglect of the defendant to keep the sidewalk in reasonable repair, and in condition reasonably safe and fit for travel.
3. That they must find that she was free from contributory negligence.
4. That they must find that the defendant had reasonable time and opportunity, after knowledge by or notice to it that the sidewalk had become unsafe or unfit for travel, to put the same in proper condition for use, and had not used reasonable diligence therein after such knowledge or notice.
5. That knowledge on the part of the street commissioner or alderman of the unsafe condition of the sidewalk for a sufficient length of time before the accident to repair it was equivalent to notice to the city, and that the jury must determine whether such knowledge had been shown.
6. That if the jury found that the defendant had notice of the hole across which plaintiff stepped, but had no notice of the defect in the board, and that the defendant in repairing the hole would have discovered the defect in the board, the defendant would be liable.
The charge of the court was very long, but the above are substantially the propositions submitted to the jury. The first five instructions were correct. The defendant could not avoid liability by permitting the owner of the property to put down the sidewalk. When the sidewalk was once laid, no matter by whom, it then became the duty of the defendant to see that it was kept in proper repair, and in safe condition for travel. By the terms of defendant’s charter, the control of all sidewalks in the public streets and alleys of the city is expressly conferred upon the common council, and the statute imposes a liability for neglect and consequent injury which the common law did not. This ruling does not conflict with McArthur v. Saginaw, 58 Mich. 357 (25 N. W. Rep. 313).
No fault is found with the second instruction, provided the others were correct.
The determination of the question of contributory negligence was properly left to the jury. The plaintiff had no occasion for the exercise of care until she reached the hole. She was justified in stepping over it onto the board beyond, — only about a foot, — unless she knew that the board was either weak or broken. We find no evidence in the record that she knew of its condition, or had reason to believe it was unsafe to step upon it.
The fourth and fifth instructions were correct. Knowledge on the part of the street commissioner or alderman was notice to the defendant. This was settled in this State in the case of Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. Rep. 1011). Further comment is therefore' unnecessary.
The sixth instruction was clearly erroneous. It could not follow that because there was a hole in the walk the defendant would have knowledge, and therefore constructive notice, that the surrounding planks or boards were defective. There was no necessary connection or association between the two. Knowledge of one defect is not to be inferred by neglect to repair another. This Avas given great prominence in the oral charge of the court, and very likely had great influence in determining the verdict.
For this error, the judgment will be reversed, and a new trial ordered, with costs.
The other Justices concurred. | [
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Cahill, J.
This is a suit, brought for an alleged, breach of covenant against incumbrances in a warranty deed given by defendant to plaintiff, for the recovery of the amount paid by plaintiff for city taxes after the delivery of the deed.
On May 15, 1889, defendant was the owner of lots 57 and 58, and the northerly 10 feet of lot 105, section 3, governor and judge’s plan of the city of Detroit. On that date plaintiff made defendant a written offer for such property of $1,000 cash on acceptance of the offer, and $20,000 on July 1, 1889, all papers pertaining to title to be approved by W. J. Gray at defendant’s expense. Defendant accepted the offer in writing on May 22, 1889, and plaintiff paid defendant $1,000 'down, and a new contract was drawn up and executed by the parties. This contract was to the same effect as the written offer and .■acceptance. It contained nothing about taxes, nor about the possession of the premises before July 1. It contained the following clause:
“It is understood that the title of the last described property, in Detroit, shall be examined by William. J. Gray, of Detroit, and, if not certified by him as good, then this agreement shall be void, and said $1,000 paid by the second party be returned to him by the first party.”
On or about June 25, 1889, Mr. Gray approved the title, and defendant was notified. In the afternoon of July 1, 1889, the parties met by appointment, and plaintiff paid defendant $20,000, the balance of the purchase price.. Defendant executed and delivered to plaintiff a warranty deed. Immediately after the description of the property in the deed, the following clause appears:
“This deed is made in pursuance of contract of sale made by proposition of the grantee herein, dated May 15, 1889, and accepted by grantor herein, May 22, 1889.”
After the delivery and acceptance of the deed, and on July 12, 1889, the plaintiff called upon the defendant to pay the city taxes for the year 1889, amounting to $260.08, which defendant refused to do. Thereafter, and on July-20, the plaintiff paid the taxes in question, and brought this suit to recover the same from Ohesebrough under the covenants of his deed. The case was tried before the Honorable O. J. Reilly, circuit judge, without a jury, who, at the request of the parties, made and filed written findings of fact substantially as herein stated, and, as a conclusion of law, he found that the plaintiff was not entitled to recover.
In addition to the facts already stated, the following facts appear in the judge's finding:
“ 7. That the board of estimates of the city of Detroit, on April 15, 1889, duly approved and adopted their final estimates of the amounts to be raised by taxation for city purposes in 1889, aggregating $2,236,463.54.
“8. That the common council of the city of Detroit, on April 16, 1889, accepted the report of the board of estimates, and duly levied and assessed upon the real, and personal property in the city of Detroit the sum of $2,236,463.54, as the city taxes for 1889.
“9. That on May 1, 1889, the assessment rolls for the city of Detroit for 1889 were finally adopted and duly confirmed by said common council, the total assessed valuation as so confirmed being $165,505,790.
“10. That said premises were duly assessed upon said rolls, and so confirmed. ********
“11. That the board of assessors spread upon the said assessment rolls for the city taxes of 1889 the sum so levied, and that said premises were assessed for taxes as follows, which said amounts were actually extended upon the rolls between June 1, and June 20, 1889 * * * [aggregating $260.08].
“ 12. That the tax rolls for the city taxes of 1889 were delivered, with proper warrants of collection, to the city receiver of taxes on June 29, 1889, and were ready for payment at the opening of business at 9 o'clock in the morning of July 1, 1889."
“ 16. That the said premises were vacant property on May 15, 1889, and so remained till after July 10, 1889.
“17. That the fiscal year for the city of Detroit, for which said taxes were paid, began on the 1st of July,, •1889, and will expire on the 30th day of June, 1890.”
Under the charter of the city of Detroit the council has power to levy and collect taxes upon all property made taxable by law for State purposes, which taxes are-declared to be a lien upon the property till paid; to make regulations for assessing, levying, and collecting such taxes, and to sell the property taxed in default of payment. By ordinance the city has provided for a sale of the property delinquent for such taxes by an officer of the city, and such taxes are not returned to the county treasurer’s office, nor are the lands sold by the Auditor-General for delinquent city taxes under the general law. While the charter of the city makes the taxes a lien upon-real estate, it nowhere provides at what time such lien shall attach. Under the general law of the State (Act, No. 195, Laws of 1889), taxes assessed upon real estate-become a lien thereon on the 1st day of December. But the city taxes levied in Detroit cannot be governed by this general law.
The question here to be decided is, when did the city-taxes for 1889, levied upon the property sold by defendant to plaintiff, become a lien upon that property?' Plaintiff’s counsel insist that the warranty in the deed speaks from its date, and that, as the taxes were due and payable in the forenoon of July 1, 1889, and the-deed was not delivered until the afternoon of that day, at the time of the delivery of the deed the taxes in question were a lien upon the property. To this the defendant’s counsel replies that the deed contains a clause that it is given in pursuance of a contract of sale, and that, as the rights of third parties are not affected, the doc trine of relation applies to the covenant, and the deed relates back to the contract of sale. If by this counsel for defendant means that it was intended by the parties that the plaintiff should take the title as it existed at the time the contract was made (May 22), I do not agree with him. There is nothing in the contract to support such a position. On the other hand, it was clearly the intention of the parties that the title to the property should be perfect on July 1, which was the date set for concluding the purchase. This is evident by the fact that Mr. Gray was, after the making of the contract, and before July 1, to investigate and certify to the title. It would not be claimed that if Mr. Gray had discovered any incumbrance upon this property executed after the contract was made the plaintiff would have been bound to take the property subject to such incumbrance. If the taxes complained of had been called to the attention of the parties on the afternoon of July 1, before the deed was delivered, upon inquiry at the collector’s office it would have been ascertained that they amounted to $260.08; that they were then payable, and were a charge upon this land. The plaintiff could then -have insisted upon the taxes being paid before he paid the purchase money and accepted the deed;, nor would he have been liable under his contract to take the property and pay the money, unless these lands were relieved of this charge against them.
It is not insisted by either side that these taxes had not become a lien upon this property on the 1st of July. Plaintiff’s counsel insisted that they became a lien at the time of their assessment, in May. We do not think this position is correct. The exact question involved here has not been passed upon in this State. We are referred by defendant’s counsel to the case of Harrington v. Hilliard, 27 Mich. 373. We think some of the language of that opinion is applicable here:
“It is therefore clear that up to this time [first Monday in December] there is no tax upon the land which can be paid by or to any one, nor until about this time could the amount be in any way ascertained, and the land is just as clear from any charge or lien on account of the taxes to be assessed for the current year as it is from those of any future year."
Applying this doctrine to this case, we think the lien must be held to attach to lands under the charter of the city of Detroit from the time when the roll comes into the hands of the receiver of taxes, which is the first day of July. But this, we have seen, was 'before the making and delivery of the deed from the defendant to the plaintiff. The defendant was, at the time the deed was executed, and before its delivery, under obligation to pay these taxes to relieve his land from the liability which it was then subject to.
Some stress is laid upon the fact that the plaintiff required Mr. Gray’s opinion as to the state of the title, and it is urged that, having obtained that opinion, he must be bound by it. The plaintiff did not undertake to accept Mr. Gray’s opinion in lieu of the covenants of' warranty, but he desired such opinion in addition to the covenants. There is nothing in this circumstance that will prevent him from having the benefit of the covenants in his deed. Having paid these taxes to relieve his lands from the lien on them, he is entitled to recover them back in this action.
The judgment is reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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] |
Grant, J.
The defendant authorized the plaintiff to sell a certain piece of land, the property of one Mrs. Steele, for whom defendant was agent. The agreement was in writing, and is as follows:
“Jackson, Mich., June 22, 1888.
“I hereby authorize Z. E. Wright to sell the Dixon place on Fourth and Union street, subject to right of redemption, for the sum of $350 net cash to me, the amount above the same to be retained by said Wright as his commission. This sale is made subject to any back taxes on same. This agreement to be binding for 60 days. , Will Beach.”
The case was tried with a jury.
July 25, 1888, defendant made a contract for the sale of the land to one Platt, who paid $10 to bind the purchase, for which a written receipt was given stating the terms of the sale.
The court instructed the jury that, in order to find a verdict for plaintiff, they must find that the plaintiff procured a purchaser of the property able and willing to buy on the terms of defendant’s proposition, as stated in the writing; that he notified defendant, Beach, of the fact; that this was done before the expiration of the 60 days, and before defendant had revoked the authority, or before plaintiff knew that the land had been sold to some one else; and that it was through some fault of the defendant that plaintiff’s purchase was not consummated. The jury were further instructed that if they found these facts established by the evidence the plaifitiff was entitled to recover but if they were not established then their verdict should be for the defendant.
The jury found for the plaintiff, and rendered a verdict for the amount established by the evidence. There was evidence for the consideration of the jury upoñ all these points, and the instruction of the court was correct.
The special count upon which the plaintiff relied upon the trial was sufficient. It set forth the agreement, the securing of a‘purchaser by plaintiff in accordance with the terms of the written agreement, the purchase price, and the sale by defendant, without notice to the plaintiff.
Judgment affirmed.
The other Justices concurred. | [
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] |
Grant, J.
The respondent was convicted of the larceny of a watch on November 27, 1889. The principal question raised upon the record is that the court erred in permitting evidence to be, given of defendant’s possession of the watch until facts and circumstances had been shown from which the jury might find the possession to be a guilty possession, and that the watch in. question had actually been stolen.
It is contended on behalf of respondent that there is no evidence in the record from which the jury could find that the watch was stolen, or .that the defendant was guilty of the crime.
The watch was alleged to be the property of one Soule. Soule had been in the habit of visiting the house where it is claimed the crime was committed, and for some days previous had spent the most of his time there. This was a notorious house of prostitution, kept by one Mrs. McCarty, just outside the limits of the city of Detroit. On the morning of November 28, Soule was found dead in the dance-room of the house, having been killed by stabs with a knife. Whether it was murder or suicide does not appear. Soule had owned the watch in question for several years. He was known to have had it shortly before his death. The fact that it was not upon his body when found aroused suspicion. The inmates of the house were questioned by the officers, and denied any knowledge of the watch. The respondent was questioned, and said that he never saw a watch on Soule, and never knew that he had one, but that he saw that Soule wore a chain, and supposed he had a watch. A warrant was obtained for respondent’s arrest, and the watch which had formerly belonged to Soule was found irpon his person, in an inside vest-pocket. When the officer felt the watch in his pocket, respondent said: “I suppose that is what you want.” Afterwards respondent said that he had loaned Soule some money on the watch and taken that as security.
Several of the inmates of this house were witnesses for the respondent, and gave evidence tending to sustain this claim of the respondent. Among these was one William Moran, an employé at the McCarty house, who had been convicted of several crimes, and had served a term in State prison. He was one of the jury summoned by the coroner to investigate the circumstances surrounding Soule’s death. The prosecution gave evidence that this Moran was under arrest, and confined in the county jail, at the same time with respondent; that a conversation took place between them through the waste-pipe; that respondent said to Moran:
“ I want you to swear that you saw me give Soule $32, and he give me the watch; if you will do that, they cannot convict me; ”—
And that Moran replied that he would do it. The respondent testified that he got this watch from Soule the Sunday night before he died, by lending him $15 in cash and his bar-bill, and that the money and the bar-bill belonged to Mrs. McCarty.
We think, under this record, that it was properly left to the jury to determine whether the corpus delicti had been proven. Direct proof of the corpms delicti cannot always be obtained. It and the defendant’s guilt’can rest together on one foundation of circumstantial evidence. 1 Bish. Crim. Pro. (2d ed.) §§ 1070, 1071; Johnson v. Com., 81 Ky. 825. It was proven that the watch was Soule’s. Bespondent admitted receiving it from him shortly before his death. He had no interest in it, according to his own story. He deliberately made false statements in regard to it, and when, if his story were true, he could have had no motive to lie. There was evidence from which the jury might find that he induced the witness Moran to-swear falsely in order to acquit him. For the court to hold, under these circumstances, that there was no evidence of crime, would have been a clear usurpation of the proper function of the jury.
The circuit judge charged the jury fairly and properly on all questions involved. He said to them that the testimony must be that from which nothing but guilt can, in the natural order of things, be adduced, and that, if they found that the possession of the watch was for the purpose of securing a loan, they were bound to take the theory of innocence, and acquit the respondent.
The conviction must be affirmed.
Morse and Cahill, JJ., concurred with G-rant, J.
Champlin, O. J.
I do not think that there was any testimony proving that the crime of larceny had been committed. All the testimony of a criminating nature-is as consistent with the innocence of respondent as with his guilt.
Long, J., concurred with Champlin, O. J. | [
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] |
Long, J.
The bill is filed in this cause to set aside a sale of two parcels of land in the city of Detroit, purchased by Ann Daly at administrator’s sale, on the theory that a bargain was entered into between Mrs. Daly, as purchaser, and the administratrix, at a price much lower than it otherwise would have brought.
The claim made by the bill is that the complainants are the children of Mark McGraw, and that in his lifetime he owned a large amount of real estate, which at his death, some five years previous to the filing of the bill, was somewhat incumbered; that Margaret McGraw, the widow of Mark McGraw, was duly appointed as administratrix by the probate court of Wayne county, and duly qualified; that it became necessary to sell real estate for the payment of debts, and license was granted by the probate court for that purpose, and, included in the property which she was so authorized to sell, were the two pieces in controversy here, which are claimed by the bill to be worth the sum of $1,600; that, upon the date fixed for the sale of the property, Margaret McGraw, desiring that the sale might be thought absolute without any interference on her part, and desiring that the property might not be sacrificed, asked Mrs Daly that, in case the bids for the property in question did not reach a certain figure, she would raise the bid, and have the property struck off to her, and Mrs. Margaret McGraw was then to take said property off her hands; that it was expressly agreed that Mrs. Daly was so to bid in the property in her own name, and hold it in trust for Margaret McGraw, and to convey it to whomsoever Mrs. McGraw should direct; that, in compliance with such agreement, on March 16, 1880, Ann Daly was allowed to and did bid in lot .No. 434 of Johnston's subdivision of the “ George B. Porter Farm," so called, being part of private claims Nos. 20 and 21, for the sum of $200, and lot 348 of said subdivision, a part of private claim 44, Lafontaine farm, for the sum of $242, though said premises were worth then, and are now of the value of, $1,500; that such sale was afterwards confirmed by the probate court, and, though the said Margaret McGraw has requested a conveyance of said premises upon the payment of said sums of money, yet the said Ann Daly refuses so to convey the same; and that the said Ann Daly now holds the said premises as trustee. The bill prays for a conveyance of the prem ises to the complainants, and for an accounting for the rents and profits, and such other and further relief as shall be agreeable to equity.
The defendant Margaret McGraw answered, admitting all the material allegations of the bill.
Ann Daly by her answer denies absolutely any such bargain or arrangement, and alleges that she bid in such property at public auction, and that she was the highest bidder therefor, and purchased the same for her own use and benefit; that the sale was fully and fairly reported by the administratrix to the probate court, and there duly confirmed; and that Margaret McGraw and the complainants are now conspiring together to cheat and defraud her out of the property, because the value thereof has increased since such purchase.
Issue was joined in the cause by filing general replication, and heard in the court below; the testimony being taken in open court. On the hearing, complainants’ bill was dismissed. The prayer of the bill proceeds on the theory of a resulting trust. No such resulting trust can be sustained, under How. Stat. §§ 5569, 5570.
It is provided by How. Stat. § 6042, that—
“The executor or administrator making the sale, and the guardian of any minor heir of the deceased, shall not, directly or indirectly, purchase, or be interested in the purchase of, any part of the real estate so sold, and all sales made contrary to the provisions of this section shall be void,” etc.
If, therefore, the sale was really made in the interest of Mrs. McGraw, and with the arrangement and understanding as claimed, it should be set aside. The determination of the question rests, therefore, upon the truth or falsity of this alleged agreement. Mrs. McGraw testified that such an arrangement was entered into. It is as positively denied by Mrs. Daly and her son Thomas, with whom Mrs. McGraw claims to have had part of the understanding. Some other witnesses were introduced as to what Mrs. Daly said about purchasing for Mrs. McGraw. The whole controversy is, therefore, one of fact, to be determined by the testimony of witnesses, and the circumstances surrounding the case. It would profit no one to set this testimony forth at length, or the circumstances which have weight with us in reaching our conclusions. From a careful reading of the record, we are satisfied that the complainants have not established their case, and that the conclusion reached by the circuit judge was correct; and the decree must be affirmed, with costs.
The other Justices concurred. | [
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Grant, J.
One Cynthia W. Crawford filed a bill of complaint in the Presque Isle circuit court, in chancery, to set aside a deed purporting to have been executed by her to her son. The sole question was whether the deed was forged. That suit was brought to a final determination in this Court, and decided in favor of the complainant; the Court holding that the deed was forged. 'James D. Turnbull, administrator of the estate of complainant's son, was a defendant in that suit. Crawford v. Hoeft, 58 Mich. 1-25. Some time after the determination of that suit, Turnbull, as administrator, commenced a suit at law in the circuit court for the county of Alpena against relator, charging him with the mutilation of the deed, and seeking to recover damages therefor. The declaration sets forth the proceedings in this Court in the case above referred to, and alleges that this Court was wholly mistaken in the opinion and decree therein rendered, and was imposed upon by the acts of the relator.
If this were true, the only course open to the defendants in that suit is by application to this Court for a rehearing. They did make such application, and it was denied. They now seek to reopen the issue there adjudicated and settled, in a suit at law and in another court. The bare statement of the case is sufficient to condemn the proceeding. The respondent had no right or jurisdiction to try the case. He should have granted the motion for the perpetual stay of proceedings. Barnum Wire & Iron Works v. Judge, 59 Mich. 272; Maclean v. Judge, 52 Id. 257; Hudson v. Judge, 42 Id. 248.
The writ of prohibition will therefore be granted.
Morse, Cahill, and Long, JJ., concurred. Champlin, O. J., took no part in the decision. | [
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Long, J.
Plaintiff brought suit in trover in the circuit court for the county of Saginaw to recover from the defendant the value of 63,000 feet of pine saw-logs, of the stumpage value of six dollars per thousand feet board measure, which had been removed by the defendant from a strip of land containing about four acres. Each party to this controversy claims to own this strip of land. The controversy grows out of a difference between two government surveys, one of which was made in 1839, and the other in 1877. On the trial in the court below the court advised the jury, in substance, that the title to the land was in the plaintiff, and, it being conceded that the 63,-000 feet of logs were taken off the land by defendant, left the only question of fact for their determination, as to the value of the logs taken. The jury found a ver diet in favor of the plaintiff, and, judgment being entered thereon, defendant brings error.
The plaintiff on the trial traced his title to this piece of land by virtue of a patent from the State of Michigan bearing date May 7, 1869, conveying to him the N. i of the N. E. ¿ of section 3, town 18 N., range 1 W., and other lands, his claim being that the strip in dispute belongs to him as a portion of the above description according to the government survey thereof made in 1839. The defendant claims title through a patent from the State of Michigan to one Edmund Hall, dated October 6, 1871, and sundry mesne conveyances, conveying the S. E. £ of the N. E. of said section 3. That is, the controversy arises over the true boundary line between the N. {- and the S. $ of the N. E. £ of that section.
The main question arising upon this record is which of these two surveys governs. It is claimed by the plaintiff that, if the survey of 1839 controls, the plaintiff is entitled to recover, but he concedes that, if the survey made in 1877 controls, the plaintiff is not entitled to recover. It is insisted, however, that the survey of 1839 should control, and that the plaintiff is entitled to recover, for the reason that he bought with reference to the survey of 1839, before defendant’s grantor bought the description of land he now claims, and that the defendant took his description subject to plaintiff’s rights. On the other hand, the claim of the defendant is that the interior lines of the township were never actually surveyed, until ordered by Congress in 1877, and that plaintiff purchased with reference to the established rule that any deficiency must fall upon the north quarter of that quarter section; also that, even if the interior lines of the township were surveyed in 1839, there was evidence of a shortage on the north and south lines, which shortage should be prorated over the whole line; and that there was no evidence showing the extent of such shortage, and that, therefore, the plaintiff had failed to prove that he owned the four acres, or, if any part, how much thereof, and that there was no evidence showing on what part of the four acres the timber was cut.
Each party to the controversy purchased his respective descriptions of land with reference to the survey made in 1839. This was the only survey made of that township up to 1877, some six years after the purchase by Edmund Hall, under whose patent the defendant claims. These lands are State swamp lands, and were granted to the State by the general government under an act of Congress of September 28, 1850. The State selected these lands under such grant, and adopted the surveys on file in the Surveyor Generals office as the basis upon which it would receive the lands under the grant. Laws of 1851, p. 322 (How. Stat. § 5381 et seq). It was also provided by that act that these lands should be sold in the same legal subdivisions in which they were received by the State, and the Commissioner of the Land-office was authorized to procure all necessary books, maps, or plats of such lands as required. The field-notes of these surveys, made in 1839 by the general government, are all contained in the record here, together with the map made by the Surveyor General in that year. Both these patents refer to this survey. On February 16, 1877, however, Congress passed an act authorizing a resurvey of this township, and also of township No. 19, as follows:
“That the Commissioner of the General Land-office is hereby directed to cause to be surveyed towns numbered eighteen and nineteen north, of range one west, in the State of Michigan, these towns having never been properly surveyed; and that there be appropriated out of any money in the treasury, not otherwise appropriated, a sufficient sum to pay the expense thereof, not exceeding twenty-five hundred dollars.” 19 U. S. Stat. at Large, p. 231.
It is claimed by defendant that, under this survey, the line of his land is ascertained to be further north than as indicated by the field-notes of the survey of 1839, and that the four-acre strip, from which the timber in controversy was taken, is within the description of his land under this survey of 1877.
On the trial, the plaintiff introduced in evidence the field-notes, map, and survey made by the general government in 1839. He also introduced the deposition of Mr. Isaac H. Leavenworth, who testified that he was a civil engineer and surveyor, and that in the year 1882 he made a survey at the request of the defendant for the purpose of locating the lines around the S. E. £ of the N. E. £ of section 3 of that township. In this survey he followed the field-notes of the government survey of 1877. He also testified that in 1885 he made a survey of these lands on section 3, at the request of the plaintiff, following the field-notes, map, and survey made by the general government in 1839. The defendant introduced in evidence on the trial the field-notes, map, and survey made by the general government under the act of Congress of February 16, 1877. From the testimony of Mr. Leavenworth it appears that in making the survey of 1885, at the request of the plaintiff, the only lines of the survey of 1839 which he could find were the township lines, and no lines of this survey of 1839 could be found around section three, except the township lines; the township lines, however, were easily traced; that, taking these township lines as found by the survey of 1839 as a basis, the four-acre strip fell within the description of the plaintiff’s lands. It also appears that in the survey made for the defendant, and at his request, Mr. Leavenworth took the field-notes, map, and survey made in 1877, and that, taking these field-notes, map, etc., made in 1877, the four-acre strip fell within the description of the defendant's land. Mr. Leavenworth testified also that he could not say that the south-east corner of section 3 was not first surveyed out in 1839, and the corner post located and established. All he could say about it was that he could not find it, and did not find it when he made the survey for the defendant in 1882. Defendant's counsel thereupon asked the witness the following question:
“ Q. Is it your judgment that the quarter post had or had never been located and established under the survey of 1839, — south-east quarter post?''
This was objected to by plaintiff's counsel, and ruled out by the court. This ruling constitutes the defendant's first assignment of error. There was no error in this ruling. It called for an opinion, and riot for* any fact within the knowledge of the witness. Boundary lines are not to be established or disturbed by the mere opinion of surveyors. They may detail facts, but, when they have no knowledge of facts, their opinions or conjectures cannot control to establish or disturb boundaries. The government survey was made in 1839, and the first survey of Mr. Leavenworth was made in 1882, some 43 years after-wards, and the witness did not pretend to have any means of judging whether or not this quarter post was ever established by any former survey. The question of the location of a starting point for a surveyor is one of fact for the jury, and not one of theory to be determined finally upon the opinion of surveyors or experts. Stewart v. Carleton, 31 Mich. 270; Gregory v. Knight, 50 Id. 63 (14 N. W. Rep. 700); Lemon v. Railway Co., 59 Id. 623 (26 N. W. Rep. 793).
The other assignments of error relate to the charge of the court in taking the case from the jury, and directing verdict for the plaintiff. The only remaining ques tion, therefore, is whether the survey of 1839 controls. It is contended by defendant:
1. That the recital in the act of Congress of February 16, 1877, is evidence of the fact that township No. 18 had never been properly surveyed.
2. That if a survey in fact had been made, and a proper resurvey demonstrated a shortage, such shortage, in the absence of any evidence to control, would have to be prorated over the whole line where the shortage occurred.
3. That there Was evidence showing a shortage on the north and south lines.
There is no evidence upon this record to show that these particular descriptions of land were not properly surveyed in 1839. The act of Congress in 1877 is not evidence of an improper survey of these lands. 1 Long prior to this act the State of Michigan had made selections of^these swamp lands, and had issued its patents to purchasers, describing the lands according to the government surveys, and selling them in the government subdivisions, having reference to the surveys, maps, and field-notes of 1839. The rights of the plaintiff had become vested in accordance with this survey at the time of the issue of the patent to Edmund Hall, and, as well stated by plaintiff’s counsel, if this act of Congress of 1877 was permitted to change Mr. Burt’s title, the next Congress can pass an act, and say the survey of 1877 was void, and thus purchasers under that survey be divested of rights acquired thereunder. It was shown by the witness Leavenworth, the only surveyor called by either party, that he found the north and south township lines as surveyed and marked out by the survey of 1839. It is not disputed but that, according to this survey, the line between these lands is where the plaintiff claims, and, even if this survey of 1839 is inaccurate, the plaintiff having purchased in accordance with that survey, his rights have become vested. And the subsequent act of Congress did not lessen or disturb the right's thus acquired. Baker v. McArthur, 54 Mich. 139 (19 N. W. Rep. 923); Chapman v. Polack, 70 Cal. 487 (11 Pac. Rep. 764).
The court was not in error in stating to the jury that the field-notes made in 1839 should govern between the parties, and that the land upon which the timber was cut belonged to the plaintiff. The other questions raised do not become important.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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] |
Cahill, J.
This is an action for damages for a breach of promise of marriage. The declaration is in the ordinary form where no special damages are claimed, and the plea is the general issue, without notice of special defense.
The plaintiff was about 40 years of age when her alleged engagement to the defendant took place, and the defendant was about 70. She and the defendant lived at Byron Center, in Kent county. The plaintiff had made her home for the most part with her brother-in-law, except at intervals, when she was employed at domestic service in the neighborhood. She became acquainted with defendant in the winter and spring of 1886. At that time she lived in his family, and was employed as cook, housekeeper, and nurse for his wife, who was an invalid, and who soon after died.
The plaintiff claims that about two and a half years after the death of defendant’s wife, and in the fall of 1888, he began to pay his addresses to her, with a view to matrimony, — waited upon her, took her out riding and to church, and had. numerous interviews with her, at each of which, after the first, he proposed marriage; that .she declined giving him a definite answer until she had considered the matter, and had consulted with her friends; that she also urged her fear that a certain married daughter of defendant, living at Elyria, Ohio, would object to the match. Plaintiff claims that she also urged as obstacles to the union certain discrepancies of disposition and habits of life which she feared could not be reconciled, but that defendant promised to reform his habits of life, and to conform to her ideas; that finally all the differences were reconciled except the consent of the daughter in Ohio, and that this objection was urged by her, and not by defendant. She claims that defendant was urgent for an answer before October 9, on which date there was to be an excursion to Ohio, and, if she gave' her consent, they were to go down to Ohio. together, and be married there; that, on the Sunday evening preceding the proposed excursion to Ohio, plaintiff had promised defendant a definite answer; that on this particular Sunday in question the parties were together the most of the day and evening, at which time plaintiff finally gave her consent; that, on the Tuesday following, they, in company with others from their neighborhood,, started on the excursion to Ohio; that they sat together in the same seat during the entire trip, until they reached Elyria, where the defendant stopped, but the plaintiff went on to Cleveland, with the understanding that a few days after she would return to Elyria, where they had mutual friends, and that defendant would meet her, and they would then be married.
Plaintiff claims that she returned to Elyria as promised; that defendant met her at the train, and told her that his daughter, Mrs. Langton, had been very much excited when he told her of his contemplated marriage with the plaintiff, that she had had fits which lasted three days, and that the proposed marriage would have to be delayed for some time; that she went from the train to her cousin’s house in the village, with the understanding that defendant should call and see her soon after. She claims, also, that her contemplated marriage had in some manner become known to her friends and relatives in Elyria, and that, when they questioned her about it, she admitted it, and told them that she was waiting in expectation of the defendant’s coming to see her. She claims to have waited at one place for nearly a week, and at another place for three days, in hourly expectation that the defendant would come to see her, and arrange for the marriage, and that she was greatly humiliated by his failure to come, and by the commiseration of her friends on account of the defendant’s neglect of her; that, hearing that defendant was .about to return to Byron Center, she went to the depot for the purpose of returning with him; that defendant did not appear, and she came without him, reaching home on November 5; that some days afterwards the defendant returned; that, she met the defendant casually at a- neighbor’s soon after his return; that nothing special was said about their relations; that about November 22 or 23 she learned for the first time that the defendant was married; and in company with her brother-in-law, Mr. Carpenter, and Mr. Drinkall, she went to defendant’s house to see him in relation to it. She there, in the presence of her friends, charged him with having deceived her, and with having married another woman. He denied that he was married, and gave as reasons for his refusal to marry the plaintiff—
1. That his daughter, Mrs. Langton, at Elyria, would not give her consent, and had been greatly excited over his proposed marriage.
2. That he had learned that the plaintiff had some physical infirmities which made him unwilling to marry her.
He told her that he had learned this from her friends. The evidence shows that the defendant was in fact married during his visit to Elyria, Ohio, in the month of November.
The defendant does not deny that he proposed marriage to the plaintiff at different times during the months of September and October, 1888; but he says that she at all times refused her consent, on the ground that she did not wish to marry him unless it was agreeable to his children; that all of his children except one lived in the same neighborhood, and were willing, but that Mrs. Lang-ton, a daughter, lived at Elyria, Ohio; that the understanding between himself and plaintiff was that they should go to Ohio on an excursion; that he should there see his daughter; and that, if she consented, the marriage should then take place, but that, if she did not consent, the proposed marriage should be abandoned. He also claims that on the Sunday night preceding their trip to Ohio the plaintiff made certain statements to him in regard to the condition of her health which made him unwilling to marry her, and that he then, upon hearing her statements, expressly told her that he would not marry her. He admits that, on the trip to Ohio, he and the plaintiff occupied the same seat, and that their friends, who accompanied them, joked them more or less on their proposed marriage. He admits that at the interview with the plaintiff and her brother-in-law and Mr. Drinkall, after his return from Ohio, he denied that he was married, and gives as an excuse that he did not consider that it concerned the plaintiff whether he was married or not.
On the trial the plaintiff was allowed to testify, under objection, that certain persons had told her what defendant had said about her health; that they had told her that defendant had told them that she had a cancer; that she had heard three different stories about her disability,’ which’ it was claimed the defendant had put in circulation. In response to the objection of defendant’s counsel that this testimony was hearsay, and ought notJ to bind the defendant, the court said that the witness might be cross-examined to ascertain the names of the persons who had told her these things, and that the defendant might then call such persons to dispute the plaintiff, if he desired to. We cannot conceive upon what ground it could be claimed that this testimony was admissible. That it was hearsay was beyond question. Nor can I see that it comes wdthin any of the exceptions within which hearsay evidence is sometimes admitted. The purpose and effect of the testimony was to show that the defendant had made derogatory statements of the plaintiff, calculated to bring her into ridicule and contempt; and yet the defendant may have been in no way responsible for such statements. They might have been, for all the plaintiff herself knew, but the idle or malicious gossip of the persons who made them.
There was no evidence in the case (if we except one occasion, when he was questioned by the plaintiff herself) to show that the defendant did in fact make such statements, or put into circulation any stories reflecting upon the plaintiff’s physical condition; and yet the court charged the jury upon this subject as follows:
“If in this action the jury should find that he did wantonly and ruthlessly and unjustifiably break the engagement, and find that, in order to excuse himself for so doing, he made statements derogatory to her, and defamatory to her physical condition, and calculated to bring her into even greater ridicule and contempt than the mere breaking of the engagement would do, then the jury may, in the use of a sound and reasonable discretion, * * * award her damages in such measure as to punish him for such conduct, and to deter others from such evil-doing in like cases.”
It will be seen from this that the testimony last referred to was not only intended, but well calculated, under the charge of the court, to largely increase the damages which the plaintiff recovered.
On the trial the defendant’s counsel asked the plaintiff, on cross-examination, whether she had not told certain lady friends (naming them) that she had a tumor. This was objected to as immaterial, and excluded. Defendant’s counsel claimed the right to ask the plaintiff these questions (1) for the purpose of establishing his defense, claiming that defendant was justified in refusing to perform his contract of marriage if *it appeared that the plaintiff was in a condition of health which made marriage with her unsuitable or undesirable; (2) if the plaintiff denied these statements, he claimed the right to call the persons named by him for the purpose of impeachment. The court, in excluding the testimony, did so upon the grounds:
1. That it was not admissible under the plea of the general issue, — that the defendant could not show under such plea anything in avoidance of the contract.
2. That the plaintiff could not be impeached by interrogating her upon immaterial matters, and then calling witnesses to contradict her.
In overruling the objection the court said:
“ If the defendant shall testify that the plaintiff stated to him that she was incompetent because ” of any physical disability, fT will then permit defendant’s counsel to recall the witness for cross-examination, and allow them to lay the ground for an impeachment, * * * not in avoidance of a contract, but as going to the question whether a contract was made at all. * * * It is simply competent for the purpose of showing he didn’t enter into a contract at all.”
In this we think the circuit judge was in error. The plaintiffs right to recover involves something more than a determination as to whether there was in fact a contract of marriage. It must appear that she ivas at the time capable of making such a contract, and of carrying it out, without fraud or injury to the defendant. If there had been no plea in the case at all, and the defendant had appeared with a right merely to cross-examine the plaintiff, he would have had a right to ask her as to her physical condition at the time the contract was entered into; and if it appeared from her own statement that she knew she was diseased, or in any way physically disqualified from entering into the marriage state, and that she concealed this fact from the defendant, it would have been a fraud upon the defendant which would prevent her recovering any, except, possibly, nominal, damages, upon the case as made by herself, and without reference to any defense.
Moreover, the plaintiff had been allowed to testify, as we have seen, to statements alleged to have been put in circulation by the defendant in regard to her physical condition. It was competent to cross-examine her as to statements she herself had made on that subject, as it might be legitimately argued that the stories in circulation were traceable to her.
Much complaint is made by the defendant of the charge of the court upon the question of damages. In actions of this kind the rule in relation to damages is a broad one. While the action is in form upon contract, the damages are governed by principles which apply to actions for personal torts. 3 Snth. Dam. 316. The rule, however, is the same as in other actions, that, unless specially averred, such damages only can be recovered as can fairly be considered as arising from the breach itself. Damages that are not the necessary consequence of the injurious act complained of are not recoverable unless specially alleged in the declaration. I do not see that the court, in its charge to the jury, permitted the recovery of any damages which could be deemed special, or which were not recoverable under the declaration, in the general form in which they were averred. The charge upon this point was as follows:
“And, first, she is entitled to damages as compensatory damages for loss of time; for any expense she may have been put to in making preparations for marriage; for mental suffering which may have been occasioned by the breaking off of the contract; for injury to her health, if any; for loss of a permanent home, and the worldly advantages which might have been derived therefrom by her, — the circumstances as to home, property, and pecuniary condition of the defendant being considered from the evidence in the case, and her own lack of independent means, if established. She is entitled to damages to her reputation, if any, either moral or physical; for injury to her future prospects of marriage. She is entitled to damages for any humiliation, contempt, or mortification she may have suffered in the circles wherein she has moved, by reason of the breach of the contract upon defendant's part. All these she may recover by way of compensatory damages; and these she would be entitled to even if the jury should find that he broke the contract in a careful, considerate, discreet, and kindly manner."
While the facts which give rise to exemplary damages need not be specially pleaded, but such damages may be recovered as a part of the general damages in a proper case, still it must appear that there has been something more than a refusal, without sufficient legal excuse, to carry out the contract, before exemplary damages can be recovered. While it is the policy of the law to encourage marriage, it is not the policy of the law to encourage unhappy marriages.
“The marriage state ought not to be lightly entered into. It involves the profoundest interests of human life, transmitting its complex influences direct to posterity, and invading the happiness of parents and near kindred. * * * From such a stand-point, we view the marriage engagement as a period of probation, so to speak, for both parties, — their opportunity for finding one another out; and if that probation results in developing incompatibility of tastes and temperament, coldness, suspicion, and incurable repugnance of one to the other, though all this may impute no vice to either, nor afford matter for judicial demonstration, duty requires that the match be broken off. What, then, shall be the consequence to the party who takes the initiative?”
I quote the foregoing with approval from an article by Mr. Schouler in 7 South. Law. Eev. 65. I answer that in such case the defendant should be required to pay only such damages as are strictly compensatory.
It may be said that there is very little room for sentiment in this case, where the groom is 73, and the bride 43; and yet the defendant, in selecting a wife, had a right to choose one who would be congenial and useful to him for the only purpose that, at his time of life, he could need a wife. Aside from the hearsay evidence of reports put in circulation by defendant, there was very little in the case to justify the court in its charge that exemplary damages might be awarded. It would seem that the court had that testimony in mind when giving his instructions, because it does not appear that defendant wantonly and ruthlessly broke the engagement, but that he was induced to do so by the violent opposition of his daughter." At his time of life, it was reasonable that he should be governed somewhat by the wishes of his children.
For the errors pointed out, the judgment must be reversed, and a new trial granted. We have noticed only a few of the errors assigned upon the record, calling especial attention only to such as are likely to arise on another trial. Those not noticed, so far as they are not trivial, are overruled.
Champlin, C. J., Morse and Long, JJ., concurred. Grant, J., did not sit. | [
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Morse, J.
The plaintiff sued the defendant in an action in assumpsit upon the common counts, and recovered judgment in the circuit court for the county of Wayne-The plantiff claimed that the defendant authorized him to sell 10 acres of lapd owned by defendant, situated on Woodward avenue, in the city of Detroit; that in pursuance of such authority the plaintiff procured W. K. Anderson, who accepted and stood ready to take the 10 acres of land at 817,000, the price agreed upon between plaint iff and defendant; that, after this purchaser was procured, defendant refused to convey the 10 acres, which would be a frontage of 165 feet on Woodward avenue, and would only convey 150 feet frontage for the $17,000. Defendant told plaintiff that he thought he could get the purchaser to pay this price for the 150 feet, which was a little over nine acres. Plaintiff thereupon tried to induce Anderson to take the nine acres at $17,000, but did not succeed in doing so. Mr. Fisher himself after-wards sold the nine acres to other parties for 17,000. Plaintiff claimed that he was entitled to 2 per cent, on the price above named, because, in the first place, he secured a purchaser for the 10 acres, as authorized by defendant, and the sale was only prevented by the action of defendant.
The defendant contended and testified that he never employed plaintiff to sell the land for him; that Hannan first met him on the street, and asked him if he would sell some of his land on Woodward avenue. Fisher replied that he would if he could get his price for it. Hannan said, “I think I can sell a piece of it, — ten acres.” About two weeks afterwards Hannan said to him, “I think I have got a customer for that.” Mr. Fisher then told him that before Hannan sold any land for him it would be well to understand exactly what was going to be sold, and said to him that the piece they had spoken about, and designated as the south half of lot 5, only contained nine acres and a fraction. In the first conversation he did not authorize Hannan to sell it.
At the second talk plaintiff said he did not think he could sell the 9 acres; the purchaser wanted 10 acres. They had other talks about it, plaintiff wanting defendant to sell the 10 acres, and Fisher refusing to sell more than the 9 acres and fraction. Plaintiff finally asked defendant to give him an option for one week upon the 9 acres, which he did. After the week was up defendant sold to other parties for $17,000. The option was given to Claude TV. Case, who was a clerk of TV. K. Anderson, who, plaintiff claims, was the purchaser that he procured for the 10 acres.
In order for the plaintiff to maintain his case, it was not only necessary for him to establish that he was employed to sell the 10 acres at $17,000, but also that he procured a purchaser. He does not claim that he got any purchaser except Anderson, and we think that upon the testimony of Anderson a verdict should have been directed for the defendant. But the circuit judge instructed the jury that Anderson stood ready to take the 10 acres for $17,000, and, if they found that Fisher employed Hannan to sell the 10 acres at that price, the plaintiff was entitled to recover his commission.
It seems that Anderson owned land adjoining that of defendant, and knew that defendant contemplated platting his land, and intended to run a street between 30 acres that he owned there, which would take half the highway off from the 10 acres to be sold. It also appeared that the street had already been partially laid out by defendant. Anderson testified that plaintiff came to him, and offered to sell him the south half of lot 5, and asked him $17,000 for it.
“ I told Mr. Hannan that I thought I would accept the property at $17,000, if he could get it. I told him to get me an option on the property.”
Mr. Hannan went away, and came back and said that Mr. Fisher had now concluded that he would only sell 150 feet front, Avhich would be about 9 acres.
“I told him he had better get an option from Mr. Fisher on the best terms he could, and that I would consider it.”
The option was taken, at Anderson’s request, in the name of Case, which option he never accepted. On cross-examination, he testified that he never met Mr. Fisher, or came to any terms with him in reference to the property.
“ Q. You never accepted any proposition, nor made any proposition that was accepted on one side or the other, finally?
“A. No.
“ Q. And this option in writing was made at your suggestion ?
“A. Yes, sir; I think so.
“ Q. And was not that option asked by you because you wanted to know definitely what the proposition was, because there was some disagreement as to what you were getting, and what you were to pay for it?
“A. Well, I wanted that to give me time to consider it. I did not know but what I might accept it after all.
“ Q. And that was the first proposition that you ever got from Mr. Fisher?
“A. The first one that I ever saw any writing about.
" Q. Prior to that time, as I understand you, nothing definite was completed?
“A. Nothing was completed.”
He further testified, in answer to questions put bv •counsel for plaintiff, that he intended to take the 10 acres if he could get it for $17,000. The same counsel also asked him on redirect examination:
“ Q. Is it not a fact that you told Mr. Hannan that if he could get you that 10 acres for $17,000 you would take it?
“A. I don’t know that I can answer that question exactly categorically, but that is my recollection that I told him that I would take the property at $17,000,-10 acres of land.”
Counsel for defendant then asked him:
“ Q. Was not that the time that you told him you wanted it in writing, when you told him you thought you would take it? If I remember, your first testimony was that you thought that you told him there that you would accept the 10 acres at $17,000.
“ A. Yes, sir.
“ Q. And that thereupon you asked him to get the proposition in writing?
“ A. Yes, sir; and I did so.”
Anderson also further testified:
“ Q. Why did you ask for this option, if you understood that that proposition had been made to you and had been accepted by you?
“A. 1 wanted to get it in writing so that I would know exactly what I would get.
“ Q. Then, didn’t you think that there was some uncertainty as to what the proposition was?
“A. There was this question: The one reason why I wanted that option in writing was this, I wanted to know whether Mr. Fisher would insist on that right of way being put down on the south side of his property, between the two ten acres, — between his two ten acres, that is, between the part that he retained and the part that he sold.
“ Q. You knew, then, that in the proposition which Mr. Hannan submitted to you Mr. Fisher contemplated a highway there, and the proposition was based upon such an idea?
“ A. I inferred that he did, but I did not want the highway there.
“ Q. And that is why, because that you inferred that that was the basis of his proposition, that you wanted it in writing?
“ A. I wanted it in writing so that if he insisted on that highway being put where he is now contemplating—
“ Q. And where he contemplated then?
“ A. The property would be no use to me.
“ Q. I suppose that you inferred that Mr. Fisher would insist upon the highway going there, simply on account of the size and position of his own property?
“ A. Yes, sir.”
It is plain to me from the whole of Anderson’s testimony that he never agreed to purchase the ten acres at $17,000. He told the plaintiff that he thought he would take it, but he knew well enough that the situation of dfisher’s land was such that he would not be likely to sell the whole 10 acres, and would reserve enough for half of the street that would be necessary in order to plat the remaining land owned by him. He therefore required a written proposition before he would accept the plaintiff’s offer to sell. And after the option was secured for the 9 acres, he did not know but he might buy it, but did not, and subsequently sold his own lands, adjoining Fisher. The plaintiff could not show that he procured a purchaser, and was entitled to his commission, by the testimony of Anderson that he intended to take the 10 acres for $17,000 if he could get the whole of it, untrammeled by any conditions. There must have been a clear, plain acceptance of plaintiff's offer at the time by Anderson. Instead of that, Anderson thought he would take it, but wanted a written proposition from Fisher before he accepted the offer. The written proposition to sell the 10 acres never came, and the offer was never accepted. But plaintiff and Anderson together, abandoning the idea of getting the 10 acres, procured an option from Fisher of the 9 acres in Anderson’s interest, but in the name of Case, because Anderson did not wish Fisher to know that he was concerned in it. This option expired, and was not accepted. Then Fisher, on his own motion, sold to other parties.
The judgment must be reversed, and a new trial granted, with costs of both courts to defendant.
The other Justices concurréd. | [
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] |
Chahplin, C. J.
Plaintiffs brought an action in the court below to recover the balance due for a quantity of coal sold and delivered to the defendant.
The defendant pleaded the general issue, and gave notice that the plaintiffs had entered into a general average bond to pay their proportion of the losses and expenses arising from the raising of the schooner barge H. F. Church, which had sunk in the river near’ the pier at Cleveland, Ohio, having on board a cargo of coal belonging to the plaintiffs in this suit. The court below rendered a judgment in favor of the plaintiffs for 1746.67.
There appears in the record before us the following exception:
“And now comes the said defendant, John E. Bots-ford, by George P. Voorheis, his attorney, and excepts to the conclusion of the circuit judge in rendering a judgment for the plaintiffs instead of the defendant, for the reason that, under the pleadings and proofs in this cause, the defendant is entitled to a judgment.”
There does not appear in the record before us any exceptions to the ruling of the court during the progress of the trial of the cause, and no errors are assigned upon any rulings of the court in the admission or rejection of testimony. «.The cause was tried before the court without a jury. No requests were made for written findings of fact and law, and none were made. The defendant’s attorney has brought the case to this Court by a writ of error.
The counsel for the plaintiffs insists that the exception to the judgment above quoted was not filed in the circuit court until May 10, 1890, and without any notice to him, and after the bill of exceptions had been settled and filed, on March 26, previous; and he insists' that such exception ought not to be considered by the Court.
It has long been the established practice in this Court that we cannot weigh the evidence, or draw conclusions from facts, and that we cannot review law cases upon the facts. See Jacobs & C. Dig. tit. “Error,” p. 727, § 303. We have also held that the findings of the court on a trial without a jury are conclusive as to the facts where there is any evidence, legally admitted, tending to support them, and they will not be reviewed. See authorities collected in Id. p. 728, § 318. Neither can we review the conclusions of the court below, on a trial without a jury, as to the weight and bearing, of the evidence; and, where no exceptions are taken in a case tried without a jury, the only question of error is, do the findings of fact support the judgment? And, if no findings of fact are obtained, this Court will not examine the evidence to see whether it sustains the conclusion of the court below. We have also held that no exception can be taken to a judgment upon general findings of fact made by the court? where no special findings were asked for or made. Id. p. 728, §§ 319, 323, 324, p. 729, §§ 333, 336, 339. And in Chatterton v. Parrott, 46 Mich. 432 (9 N. W. Rep. 482), we held that we had no power to review law cases upon the facts. Our jurisdiction is limited to a review of the rulings of the trial court on such questions of law as were distinctly presented and passed upon.
There is nothing in the record before us which we are authorized to consider. The testimony contained in the bill of exceptions certainly supports the judgment, and we cannot say whether the court passed upon the points raised by the testimony of the defendant or not. We have no basis of knowing what particular reasons influenced the court to render the judgment he did. Error may be assigned upon the record, without exceptions, when the only question is whether the facts found support the judgment; the finding being treated in such cases as a special verdict. Trudo v. Anderson, 10 Mich. 357; Peck v. Bank, 51 Id. 354 (16 N. W. Rep. 681). Here there is no special finding, and nothing that can be reviewed. The questions raised and argued in the briefs of counsel are very interesting, but are not raised by the record, and are not properly before us for review.
The judgment must be affirmed.
Morse, Cahill, and Long, JJ., concurred. Grant, J., did not sit. | [
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Grant, J.
The defendant company was organized in 1876, under the general railroad laws of the State, and built and operated its road till November 38, 1881, when it sold and conveyed by warranty deed all its property, except bills receivable, to John L. Woods. This sale was made to pay a mortgage indebtedness. January 3, 1883, Woods conveyed the property to C. H. Hackley & Co., who took possession and operated the road until 1883, when they took up and sold the track, and removed portions of the movable property to another road owned by them. The company made its annual reports for each year to and including 1881. Specific taxes were assessed against the company for each year based upon these reports. Such taxes were paid for the years 1877 and 1878, but were not paid for the years 1879, 1880, and 1881. The Auditor General took no steps to enforce the collection of the taxes against the railroad company. At the time of the sale the company was evidently insolvent. After the sale to Hackley & Co., the Auditor General demanded payment of the taxes from them, which was refused. The Auditor General then issued his warrant, and levied on the property purchased by Hackley & Co. This levy was held to be void, and was set aside. Hackley v. Mack, 60 Mich. 591. The Court in that case held that the lien of the State, if it existed, could not be enforced by execution until the right had been adjudicated in a court of equity. Decree was entered for complainant for a perpetual injunction, but without prejudice to the State or Auditor General to take any action deemed proper and necessary.
The Auditor General subsequently brought this suit in equity to enforce the lien, praying that the defendants Hackley and Hume, the then owners of the property, might be declared personally liable; that they be decreed to account for the property received; and, in brief, that a proper decree might be entered to enforced the lien. Defendants Hackley and Hume demurred. The demurrer was overruled, and they then answered. Issue was joined, proofs taken, and decree entered for complainant ordering the defendants to pay the taxes, and, in default thereof, that the property should be sold to pay the amount thereof, the sale to be made in the following order:
1. All the stock of the company.
2. All the real estate.
3. The four locomotives- formerly belonging to the company and now to Hackley and Hume.
4. All such other movable property formerly belonging to the company and subsequently in control of defendants Hackley and Hume as they shall in writing designate.
Defendants Hackley and Hume appeal.
1. Defendants contest the authority of complainant to file the bill. The statute provides that the Auditor General shall examine, adjust, and settle the claims of all persons indebted to the State. How. Stat. § 275. The Legislature passed a resolution in 1881 (Laws of 1881, p. 407) instructing the Commissioner of Railroads to ascertain what railroad companies had failed to pay the taxes assessable to them, and to compute and report in each case the amount of such deficiency for each year to the Auditor General, who was directed to assess and collect the same in accordance with the provisions of the law. How. Stat. § 1220, provides that, if any incorporated company shall neglect or refuse to pay the tax assessed against it, the State Treasurer shall furnish the name of every such company to the Attorney General, who shall thereupon file a bill in the court of chancery against every such company for the discovery and sequestration of its property. These provisions furnish ample authority for the maintenance of the suit in the name of the Auditor General. The complainant is described in the bill as—
“William C. Stevens, Auditor General of the State of Michigan, by direction of Moses Taggart, Attorney General of the State of Michigan.”
Aside from these statutory provisions it is the general rule that public officers need not be expressly authorized by statute to bring suit, but that their capacity to sue is commensurate with their public trusts and duties. Supervisor v. Stimson 4 Hill, 136; Overseers v. Overseers, 18 Johns. 407; Todd v. Birdsall, 1 Cow. 260; County Treasurer v. Bunbury, 45 Mich. 84 (7 N. W. Rep. 705). The objection is purely technical, and were it of any force an amendment would be allowed, inasmuch as the bill shows the real party in interest,- and defendants have not been surprised or prejudiced. The Attorney General has fully complied with the above provision of the statute by filing the bill in the name of the Auditor General. That provision does not necessarily mean that he should file the bill in his own name. It is fully satisfied when filed by his direction, and with his name subscribed as the Attorney General of the State.
2. It is next insisted that railroad corporations are excluded from the operation of Act No. 64, Laws of 1848, which provides for the institution of the suit in chancery to enforce the lien created by the statute. How. Stat. § 1224. The title of that act is as follows:
“An act relative to specific State taxes on plank-road, mining, and other corporations not enumerated in the Revised Statutes of 1846."
The body of the act provides that—
“In all cases when any incorporated company hereafter to be incorporated is made subject to the payment of a specific State tax, this State shall have a lien on all the property of said company, to secure the payment of said tax, which lien shall take precedence of all other liens or incumbrances whatever."
At the time this act (How. Stat. § 1223) was passed, the Constitution contained no provision requiring the object of the act to be expressed in the title, as does the Constitution of 1850. Formerly no titles were prefixed to the legislative acts, and, except as limited by constitutional provisions, the title cannot control the express words in the body of the act. Rogers v. Windoes, 48 Mich. 630 (12 N. W. Rep. 882); Stewart v. Riopelle, Id. 178 (12 N. W. Rep. 36); U. S. v. Palmer, 3 Wheat. 631; Cooley, Const. Lim. 141. The fact that this act has been incorporated in the subsequent revisions and compilations of our laws, dees not render it subject to the constitutional provision of 1850, concerning titles to legislative acts. It follows, therefore, that this act of 1848 included all corporations thereafter to be incorporated. The defendant company was such a corporation, and subject to its provisions.
3. Does the remedy by a suit in chancery exist? The general railroad act of 1873, as amended in 1879, simply imposes the tax, and provides for the lien. It provides no method of collection. How. Stat. §§ 3358-3362.' We must therefore look to other provisions of the statute for the method of collection. How. Stat. § 1293, provides a remedy by distress and sale, and defendants* counsel claim that this is the only remedy provided, but sections 1220 and 1221 expressly provide for a suit in chancery upon the neglect or refusal of the company to pay the tax, while section 1222 provides that the tax may also be recovered from a delinquent company by action in the name of the people. In this case the Auditor General issued his warrant for the collection of the tax, but no property belonging to the defendant corporation could be found. It had sold and transferred the legal title to all it had. No other remedy was therefore left but by suit, as decided in Hackley v. Mack, 60 Mich. 591. We think the above statutes are sufficient to authorize this suit.
4. Does the law create a lien upon the engines and other rolling stock of the corporation? How. Stat. § 3362, provides that the State shall have a lien upon all railroads and their appurtenances and stock therein, for all taxes which may accrue to the State from the companies owning or operating the same, and that each citizen of the State shall have a lien upon all the personal property of said company for all penalties, etc., which, after said lien of the State, shall take precedence of all other debts, etc. From the phraseology of this section it is clear that the Legislature understood and intended the personal property of the corporation to be included within the description of the property upon which the State had a paramount lien.
5. When did the lien attach, and upon what property? The contention of the defendants is that the lien was a mere floating and general one, and did not attach to any particular property until the commencement of the suit, when the court for the first time, under the statute, had power to sequestrate so much of the property as the court should deem necessary for the purpose of satisfying the tax, and that an absolute transfer of the property prior to a levy or to the commencement of suit defeats the lien. The language of the statute precludes the adoption of this contention. It includes all, and not a part. The intention was to establish a lien upon all the property, which should at some time attach. The existence of this lien does not prohibit the company from selling its property, part or all. If part were sold, the State would undoubtedly be compelled to first resort to that the title to which remained in the company. The lien provided is similar to a mortgage which in general terms includes all the property of the company. The statute provides that the Commissioner of Railroads shall, on or before the 15th of May of each year, make and file with the Auditor General a computation of the amount of the tax, to be based upon the report of the company the preceding year. The computation for the year 1881 was not reported to the Auditor General until July 24, 1882. No-lien could attach until this computation was made and filed. When so made and filed it became a lien just as effectually as judgments do, which, by the law of many states, are made liens upon all the real estate of the judgment debtor. The maxim caveat empior then applies to all purchasers. The property having been sold November 28, 1881, before any computation was or could have been made, no lien for that year attached to the property. The liens for 1879 and 1880 were complete, and had attached prior to the sale.
6. Was the lien of the State lost by the laches of the Auditor General? The statutes provide that, in case any company shall neglect or refuse to pay the tax within 20 days after the same is due, it shall be the duty of the Auditor General to issue his warrant for the levy and collection of the same. How. Stat. §§ 1244-1248. It is evident that Auditor General Latimer neglected his duty in that regard, but his neglect does not destroy the lien. The warrant can be issued at any time thereafter. There is no presumption of payment. Purchasers of property, upon which the State has a lien, have no right to act upon the presumption that the officers charged with the duty of collection have exhausted all the remedies provided for such collection, and have secured payment. There is no presumption that taxes have been paid any more than that other debts have been paid. No one will contend that the power of the Auditor General to issue his warrant, or to commence suit, was limited to any specified time. The statute nowhere fixes a time for the expiration of the lien, nor within which the Auditor General must act. The State cannot be deprived of its rights by the neglect of its officers where their acts are not made precedent to the creation or continuance of such rights, and no time is specified within which they must act. We quote with approval the language of the court in Swan v. Mayor, 11 Humph. 132:
“It would be a violation of principle to hold that a public right shall be lost by the mere delay or neglect of the public agents to enforce it, and in the absence of any law expressly limiting the time in which it may be done.” Cooley, Tax’n (2d ed.), 449; U. S. v. Railway Co., 118 U. S. 125 (6 Sup. Ct. Rep. 1008); Attorney General v. Supervisors, 30 Mich. 392; Oceana Co. v. Supervisor. 48 Id. 320 (12 N. W. Rep. 190).
7. It follows as a natural consequence that the defendants are not in law bona fide purchasers. As well might it be contended that one who purchases real estate without an examination of the records in the office of the register of deeds was a bona fide purchaser as against a prior recorded mortgage. Every one' is presumed to know the law. The statute authorizing the absolute sale of the railroad expressly provides that it is subject to all the obligations and duties prescribed by the general railroad laws of the State. How. Stat. § 3403. John L. Woods, from his relations to the company, cannot be considered a bona tide purchaser either in fact or in law. The appealing defendants, Hackley and Hume, wisely protected themselves in the purchase by a written guaranty from Woods of the title to the property conveyed.
8. The defendant company and its assignees were entitled to the use and possession of the property until the proper officers of the State, by some of the methods provided by law, had taken steps to secure the possession thereof for the purpose of enforcing the lien. Those steps must be regarded as having been taken by the commencement of this suit. It is the duty of the defendants Hackley and Hume to produce the property which formerly belonged to the defendant company, and which came to their possession by virtue of the sale, to be sold by the proper officer under the decree of the court to satisfy the liens for the years 1879 and 1880. Failing to do this they will be held liable for the property destroyed or converted by them.
The decree of the" court below will be modified to correspond with the views above expressed. No costs will be allowed to either party.
The other Justices concurred. | [
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Grant, J.
This is an action of trespass originating in justice’s coiirt, in which plaintiff recovered a judgment for six cents. Defendant removed the case to the circuit court by certiorari, where the judgment was reversed, and plaintiff brought it to this Court by writ of error. The suit was commenced by warrant based upon the affidavit of plaintiff. Plaintiff filed the usual declaration in trespass. Defendant pleaded the general issue, and asked for an adjournment, which was granted. Upon the adjourned day defendant was present with his counsel, who, after examining the pleadings, expressed himself as satisfied and ready for trial. A jury was impaneled and sworn. After the taking of testimony had commenced, defendant moved to quash all proceedings on the ground that the affidavit was not sufficient to authorize the warrant.
The motion came too late. If the affidavit was defective the defect was waived by the plea and proceeding to trial without objection. No notice of title or other special defense was given, and the justice had jurisdiction of the case.
Judgment reversed, and a judgmeut entered in this Court for plaintiff, with costs of both courts.
Champlin, O. J., Cahill and Long, JJ., concurred. Morse, J., did not sit. | [
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] |
Per Curiam.
The relator presented a claim against the estate of Moses W. Field, to the commissioners appointed on such estate, for $3,500. The decision of the commissioners disallowing the claim was filed November 23, 1889. No appeal was made or claimed by Smith from the report of the commissioners within 60 days, as required by statute; but on March 31, 1890, an application was made by C. C. Burt, as attorney for Smith, for leave to appeal from the report of the commissioners disallowing the claim, under How. Stat. §§ 5948, 6784. A hearing was had before the circuit judge, and the application denied. We are asked to review this action by mandamus.
It is not necessary for us to recite the grounds upon which the application was based. The application was one which appealed to the discretion of the circuit judge, and we decline to review the exercise of such discretion, except in cases where it clearly appears that the discretion has been abused. There is nothing to indicate that in this case.
The application for mandamus will be denied. | [
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Long, J.
The bill is filed in this cause to set aside certain deeds and conveyances of land in Livingston county, and to quiet the title of complainant in said lands.
The claim of complainant is substantially that one Francis Fogden, being the owner of about 115 acres of land, and a small amount of personal property, died in the year 1863, leaving a last will and testament, by which he devised said lands to his wife, Elizabeth, to hold daring the term of her natural life, and after her- death to the children of his daughter Fanny, w’lio was then the wife of Mr. George H. Tuttle. Mr. Eogden’s will was probated and allowed in Livingston county in October, 1863, and his widow continued in the use and enjoyment of the lands until her death, in 1871. The daughter, Fanny, at the time of the death of her father, was living-in Allegan county, and, from that time up to the date of the death of her mother, so continued to live in various places in Allegan county and Shiawassee county with her husband and family.
It is claimed by complainant that there were five children issue of the marriage of Fanny with George H. Tuttle, as follows: John, born May 6, 1855; James, February 27, 1857; William, July 10, 1860; Samuel, September 17, 1862; and Mary, August 1, 1865. It is also claimed that James died August 21, 1860; William, February 6, 1864; and Mary in the year 1868 or 1869, — all infants, and without issue, leaving only surviving John and Samuel; that, at the death of Mrs. Fogden, the widow of Francis Fogden, these grandchildren, John and Samuel, took the land in fee. Mrs. Tuttle, the mother, died shortly after the death of Mrs. Fogden, and her husband, George H. Tuttle, soon after Mrs. Fogden's death, removed with these two boys to Livingston county in the year 1872, and went into possession of the lands devised to them by Mr. Fogden. In that same year, Mr. Tuttle was appointed guardian of his two sons by the probate court of Livingston county, and at a guardian's sale disposed of 5-| acres of these lands to Ira Brayton, one of the defendants in this suit. In 1875, the probate court of Livingston county attempted to partition the remaining lands between these two boys, John and Samuel, and made a decree setting off the 40-acre piece to John, and the balance unsold of the 75-acre piece, which includes the land in controversy here, to Samuel. It is complained by the complainant that, while this proceeding was insufficient to convey the title, yet it was accepted by the two^ boys, and has ever since been acquiesced in by them as a valid proceeding to convey title. John moved upon his part, and after becoming of age sold it in 1877, and received all the consideration therefor, and the purchaser subsequently obtained a deed from Samuel of all his interest therein. After the attempted partition, the father, George H. Tuttle, continued to live in the house on Samuel's part of the land, Samuel remaining with him.
On November 7, 1877, Ira Brayton procured a deed to be executed and delivered to himself by Samuel Tuttle and John Tuttle of the lands so partitioned to Samuel. This deed Brayton caused to be recorded in the office of the register of deeds of Livingston county, on November 15, 1877. It is alleged by the bill, and claimed, that at the time of the execution and delivery of t.his deed, Samuel Tuttle was a minor, under the age of 21 years, and that said deed was procured by said Brayton, he well knowing that Samuel was under the age of 21 years, and that no consideration was ever paid to Samuel, but that whatever was paid went into the hands of the father of Samuel. It is further claimed that Samuel and John were brought up by their father in ignorance, and without any education, so that, at the time of execution of the deed to Brayton, Samuel did not know and could not state his age; that afterwards, and in 1883 or 1881, Samuel made a visit to his old home in Allegan county, and there learned for the first time the date of his birth, and then for the first time learned that he was under the age of 21 years at the time of the execution and delivery by him of the Brayton deed, and without delay he served upon Brayton a written notice revoking the deed. On February 11, 1888, Samuel conveyed his interest in the land to complainant, Hubert, taking from Hubert a contract to pay over to him the sum of $200, on condition that Hubert succeeded in setting aside the Brayton deed, and quieting the title to the lands. The other parties are made defendants by reason of some interest claimed by them in the premises. The complainant claims to have been in the actual possession of the premises at the time of filing his bill.
The defendants set up several grounds of defense. It is claimed that Samuel was 21 years of age at the time of the execution of the deed, or that, if he was not of age at that time, he is now estopped from setting up any claim to the lands by reason of his ratification of the sale after he became of age; that Brayton acted in good faith in making the purchase, and in the belief that Samuel was of full age at the time of the execution and delivery of the deed, and that he paid $1,000 for the land, which was its full and fair market value at that time. It is further claimed by the defendants that Ira Brayton after his purchase went into actual possession and occupancy of the premises, made valuable improvements thereon, and cultivated the premises for more than ten years, when, on account of his age and feebleness, he went to live with his son in Barry county, leaving the premises in care of a Mr. Allen, who lived across the road from the premises; that he left in the house considerable house" hold furniture, and considerable personal property in the barn on the premises; that complainant soon thereafter obtained a deed from Samuel, and on Sunday broke into the house, and put a stranger in possession, as tenant under him, and who now holds forcible possession, and maintains it with guns and revolvers,. for the purpose of filing this bill to quiet title, and to avoid a suit at law.
The testimony in the case was taken in open court before the Honorable William Newton, circuit judge, who on the hearing made a decree dismissing the complainant’s bill. The complainant appeals.
The record contains over 300 pages of printed matter. It would be useless to attempt to set out the testimony. The whole of the questions presented are purely of fact, and from which we find—
1. That Samuel Tuttle was not of age at the time of the execution and delivery of the deed to Ira Brayton.
2. That since Samuel became of age he has accepted a part of the proceeds of the sale of the lands in question, and has acquiesced in and ratified the sale and conveyance thereof.
3. That the complainant took and maintains forcible possession of the lands in controversy, and for the purpose of filing this bill to quiet title, and avoid a suit at law, and is not therefore in a position to maintain the bill.
We need not discuss these propositions at length. A large mass of testimony was taken as to the exact date of the birth of Samuel Tuttle. This question becomes one of no importance from the after conduct of Samuel, and after he knew of the exact time of his arriving at full age; but, aside from these considerations, it is quite evident that the complainant bought upon a speculation, and was to pay nothing unless he succeeded. In order to avoid a suit at law, he went into possession, with knowledge of the fact that the defendant Ira Brayton had not abandoned the premises, and that he was holding them by the tenant, Mr. Allen. The complainant could not therefore force himself into possession, and then file his bill, and ask the aid of a court of equity to quiet his title and assist him in his wrongful holding. The decree of the court below was right, and must be affirmed, with costs.
The other Justices concurred. | [
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Grant, J.
Plaintiff was one of the night watchmen in one of the defendant’s horse barns, and as such was employed from December 3, 1888, to September 19, 1889. The contract was for $1.35 per night. He was paid each half month at that rate. After the termination of his service, he brought this suit to recover for extra hours above ten hours per day, basing his right of recovery upon Act No. 137, Laws of 1885, making ten hours a legal day’s work in factories, workshops, etc. The suit was tried before the court without a jury, and judgment rendered for plaintiff.
Several questions are' raised by the record, but the view taken by this Court renders a determination of but one necessary. The following facts were found by the court: Plaintiff had formerly been in the employ of defendant under a written contract in the same employment, by which he agreed to and did work at a given price per day, waiving all claim for extra time. Shortly before .his employment the second time, plaintiff met defendant’s assistant superintendent, and applied for employment. This officer referred him to the barn foreman, who had authority to employ men. Plaintiff went to this foreman, and was engaged for the service and at the price above named. The contract was verbal. During the conversations at and previous to the contract, nothing was said about the number of hours to . constitute a day’s work. Plaintiff, the assistant superintendent, and the foreman all knew that it was the absolute custom and invariable rule that the employés should work as many hours as the convenience or business of the company demanded for the pay agreed on as one day’s pay. Plaintiff’s account was made up every half month upon this basis, settled, and receipt given. Several times he gave written orders upon defendant for his half-monthly pay, specifying the number of days, and the amount, each time figuring at $1.35 per day. Each receipt contained the following:
“ I acknowledge to have received from the Street Railway Company of Grand Rapids the amount opposite my name, * * * in full of all demands for work done during the regular and irregular working hours in the service of said company up to and including the date of this pay-roll.”
Plaintiff had not read this,, nor had it been read to him until the last receipt was given, when he left defendant's employ, when the recei¡3t was read to him before he signed it, and he said he understood it, and the meaning of the words used therein. Plaintiff, during his service, made no claim for any extra pay. While it is not expressly found as a fact, yet it is evident that plaintiff knew that the authority of the assistant superintendent and foreman to employ men was limited to so much per day, regardless of the number of hours' work.
There are two fatal objections to plaintiff's right to recover:
1. He contracted with knowledge of and with reference to the invariable custom and rule of the defendant, and the limitation of authority given to its officers. His contract therefore was to work without reference to the number of hours to constitute a day's work.
2. The final settlement, when the receipt was read to him, covered all claims for extra time, and not for the time covered by the last pay-roll, as found by the circuit judge. He settled twice a month, and these settlements were binding upon him. If he had any claim for overtime he should have insisted upon it when these settlements were made. He kept silent as to his rights, if he had any, when he should have spoken. The law now estops him from speaking. Law is founded in common sense and common honesty. Measured by these principles, plaintiffs claim is absolutely destitute of merit or legal standing. The judgment is in direct conflict with the rule so often recognized in.this Court. Reid v. Ladue, 66 Mich. 22 (32 N. W. Rep. 916); Gingrass v. Iron Cliffs Co., 48 Id. 413 (12 N. W. Rep. 633); Cicotte v. Wayne Co., 59 Id. 510 (26 N. W. Rep. 686); Perry v. Cheboygan, 55 Id. 250 (21 N. W. Rep. 333); Manley v. Saunders, 27 Id. 347; Faxton v. Faxon, 28 Id. 161; Truesdail v. Ward, 24 Id. 135.
It is very doubtful if the statute covers employment such as the plaintiff was rendering, but upon this we express no opinion.
Judgment reversed, with costs of both courts, and no new trial ordered.
Chamelin, C. J., Morse and Cahill, J J., concurred. Lon&, J., did not sit. | [
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Grant, J.
Plaintiff’s decedent, her husband, was an employé of defendants in their saw-mill. During the noon hour it was his duty to go down into the box of. the lower band-saw wheel and clean out the sawdust. This box, which inclosed the wheel, was constructed with & slanting bottom, so that the sawdust would slide down to the sawdust carrier. It was necessary to stand on the wheel while cleaning off the sawdust. The only access to this box was by climbing down on the wheel, and the only mode of egress was by climbing up the same way. The wheel was eight feet in diameter. The work could only be done while the machinery was motionless, when of course there was no danger.
The deceased entered this box during the noon hour, November 8, 1888, to clean out the sawdust. The engineer started up the engine and machinery while he was there at work, and he was killed. Before starting the engine, the engineer blew the whistle, which was the customary warning to those about the machinery to get out of the way, or, by pulling a rope provided for the purpose, to blow the whistle again as a signal to the engi neer not to start the engine. No one gave the signal to the engineer not to start up. Very shortly after starting up, he received a signal to stop, but it was too late to save the life of Bergstrom. Bergstrom had worked in the mill for about a year, and was familiar with the signals, the machinery, and the workings of the mill. During his entire service he had daily performed this work. Two of his co-employés stood near and saw him go into the box, and were in a position to have signaled the engineer not to start up. One of them saw him take off the cover to the box and go down. He testified that he knew that Bergstrom was in the box when the whistle blew, and that he heard him “holler” after the machinery started, and that he then blew the whistle to stop. The other testified that he was 20 feet from Bergstrom when he went into the box; that he was ready to go down stairs when he heard the engineer blow the whistle, and stood with one foot on the first step; that he started for the rope to blow the whistle, but that some other person reached there first and blew it, but the machinery had started. These were the only witnesses who saw Bergstrom go into the box. In their estimates of the time between the blowing of the whistle and the starting of the machinery one says about 15 seconds, and the other half a minute to a minute. Plaintiff insists that it was the duty of the defendants to give deceased sufficient warning before starting the machinery, and the negligence alleged is the violation of this duty. The defendants introduced no evidence, and the court directed a verdict for them.
If there was negligence it was that of the engineer, and he was a fellow-servant of the deceased, for whose negligent act the defendants are not liable. Plaintiff's counsel seek to avoid this rule by the fact that the place was unsafe, and therefore they say the absolute duty to give sufficient warning followed. But they admit that the place was not unsafe when the machinery was motionless. Many places in these mills are rendered dangerous by the moving machinery, and vigilance is required on the part of the employés to avoid the danger. No claim is made that defendants' mill and machinery were not constructed in the usual and proper manner, nor that they did not employ competent men to run it. The engineer was engaged in the same common employment with the deceased. The engineer in his duty to the deceased was no more the alter ego of the defendants than was the deceased their alter ego in his duty towards the engineer. Both were competent workmen, the mill properly constructed, the means of signaling sufficient, and the dangers apparent. In providing these things, the defendants had done their whole duty. Each of these men assumed the risk of negligence on the part of the other. Such negligence cannot be imputed to the defendants. Any other rule would be unreasonable, unjust, and therefore unfounded in law.
The circuit judge instructed the jury to render a verdict of no cause of action, without giving the reasons for such instruction. This is not the proper practice. The appellate court is entitled to know on what points the verdict is directed, and the court should state them in its instructions to the jury. The record in this case does not disclose upon what point the court directed the verdict, but, as the correct result was reached, we will not disturb it.
Judgment affirmed, with costs.
Champlin, C. J., Cahill and Long, JJ., concurred. Morse, J., did not sit; | [
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] |
Grant, J.
Hillsdale College was organized in 1855, under an act of the Legislature providing for the organization of corporations for the purpose of founding and establishing a college, seminary, academy, or other institution of learning. How. Stat. § 4373. Twenty-five acres of land were donated and conveyed to it for college and academic purposes, and for no other purposes whatever. It has been in continuous operation, fulfilling the purposes for which it Avas organized.
Defendant Bideout, for some time prior to 1870, carried on a commercial and business institute in the city of Hillsdale. On June 6, 1870, he made a proposition to the complainant as folloAvs:
“1. To remove the Commercial College to Hillsdale College, annex and conduct it nominally as a department.
“2. That said commercial department occupy such part of the college edifice as may be agreed' upon with the building committee, the undersigned paying rent therefor at such rate as may be agreed upon.
“3. That the said commercial department be provided by the undersigned with at least $2,000 worth of furniture and fixtures of quality fully equal to appurtenances usually found in connection with commercial colleges, and that it shall be open to receive students at the beginning of the fall term of the next college year.
“4. That said commercial department shall be conducted by the undersigned without expense or liability to said college.
“5. That students of said department pay to said college matriculation fees, and be subject to discipline, the same as students of the college proper.
“ 6. That the undersigned have a voice and vote in the faculty of said college upon all matters related to discipline in said commercial department.
“A. C. Bidkout.”
The board of trustees held several meetings, and on June 28, 1870, made an agreement in Avriting with Bide-out by Avhich the college leased to him a certain portion of the college building to be occupied by the commercial department of Hillsdale College, and for no other purpose whatever, the department to be called and known as the “ Commercial and Telegraphic Department of Hills-dale College.” The students of that department were to be subject to all tbe rules and regulations, thé same as students of other departments. The lease was for five years, with an annual rental of $300. Rideout had the privilege of making certain alterations, and agreed to keep the premises in repair. Complainant reserved the right to terminate the lease at tfie end of the first or second year.
This arrangement continued until March, 1874, when the building was destroyed by fire. June 17, 1874, the board of trustees passed a resolution for the erection of a building suitable in size and architectural style, upon the college ground, for the use of a commercial department, provided such conditions and relations to the college could be mutually agreed upon as should be satisfactory, the said commercial department to furnish the means for constructing said building. June 30, a committee was appointed to confer with Rideout to arrange and recommend details, and 'report at a future meeting. July 23, this committee reported, and the following resolution was adopted:
“ Resolved, That A. O. Rideout be authorized to raise funds for the erection of the building in the group of college buildings to the west, and in a line with the center building, with the understanding that such part of said building as may be necessary shall be set apart for the use of the commercial department of Hillsdale College, and that the remainder shall be appropriated to gentlemen’s dormitories, with the further understanding also that those having charge of the commercial department shall enjoy all the rents arising from the commercial building, upon condition that they be at the expense of keeping it in necessary repair; and, in case A. C. Rideout raises the funds adequate to the erection of the commercial building, the commercial department shall sustain the relations to the college herein set forth:
“ 1. The college shall not be liable for maintaining the commercial department, but said department shall be self-sustaining.
“2. Commercial students shall, as others, pay to the college the usual matriculation lee.
“3. Commercial students shall be under the same general regulations as others in the college.
“ 4. The commercial department shall be represented in the faculty of college, the numbers from the commercial department and kind of representation being determined from time to time by the board of trustees. At present Prof. A. C. Eideout and W. A. Drake shall enjoy such representation, being entitled to a voice in all matters pertaining to the government of the college.”
This was accepted by Rideout, and the necessary funds were raised, and the building known as “ Griffin Hall ” was erected. It was a ’ substantial structure, built with walls of brick and stone, permanently imbedded in, and attached to, the soil. Scholarships for that department were sold, and the funds were largely realized in that manner. These scholarships were dated April 13, 1875, and were payable in monthly installments at 10 per cent, at the Second National Bank of Hillsdale, to be held in trust until such time, not exceeding 10 months from date, as it should be announced by authority of the trustees that a sufficient amount had been secured to insure the erection of the building. If a sufficient amount was not secured within the time, then the sums paid were to be returned to the subscribers.
December 16, 1875, Rideout notified the prudential committee of the board that he had nearly sufficient funds subscribed, desired to make contracts for material, and asked for suggestions as to general exterior appearance. The committee met December 17, and appointed a subcommittee to decide who should be authorized to make contracts, etc., and report at a future meeting. December 21, the following resolution was adopted by the prudential committee:
“Vheeeas, it appears that a subscription has been secured nearly sufficient to make sure the erection of the building to be occupied by the commercial and telegraphic department of Hillsdale College, with a prospect of the remainder being secured before January 1, 1876; therefore,—
“Resolved, that A. C. Rideout be authorized to notify the subscribers, according to the considerations of the subscription, when, in his judgment, the additional amount necessary to make sure the erection of said building shall have been duly pledged, and that he be further authorized to collect the subscriptions, and expend the same for material and labor to be used in the erection of said building; it being understood that said building is to be erected in accordance with the general plan of the group of college buildings, and of a style to correspond, and that the plans of said building shall first be submitted to this committee, and be approved by it; and it being further understood that no liability attach, in any way, to Hillsdale College in connection with said building.”
Hpon the completion of the building it was occupied for the purposes indicated, and a commercial and telegraphic department was carried on under the direction of Rideout. Many of the students occupied dormitories, and some of them boarded in the general boarding-hall of the college, located in another building.
July 12, 1884, Rideout made a contract with his co-defendants, by which he agreed to let and hire to them several rooms in Griffin Hall, for the purpose of keeping a dwelling and school boarding-house, the lease being for five years. This required certain alterations to be made in the building. Notice was served upon the defendants forbidding the changes and the use of the building for the purposes mentioned. Defendants refused, and complainant filed a bill in equity to restrain the proposed action of the defendants, and for a determination of the rights of defendant Rideout in Griffin Hall. Defendant Rideout answered, denying the right of the -complainant to relief, and claiming the right to use the building for the purposes mentioned in the lease, and also asking the benefit of a cross-bill to determine his rights in the building.
The cause was heard upon pleadings and proofs, and decree rendered in the court below for complainant, decreeing that the defendant Rideout had the right to the possession and use of Griffin Hall, together with the right of ingress and egress therefrom, for the purposes only of carrying on and conducting a commercial and telegraphic school as a department of Hillsdale College, and for maintaining and furnishing dormitories for the use of male students, officers, and teachers connected with the college in any of its departments; that the right of Rideout to possess and use this hall was a right personal to himself, and not subject to be assigned, sold, or in any manner transferred by him; that he had every right necessary and usual for the proper and orderly carrying on and enjoyment of the building for these purposes, but not the right to change the general plan or structure of the building, but that he had the right to make such repairs, changes, and alterations as may be necessarily incident to the proper and full enjoyment of the said uses; that he had not the right to rent or use any portion of the building for general family or general residence purposes, nor the right to carry on a boarding or dining hall in the building. Defendants appeal.
Defendant Rideout claims the absolute right to control this department; that it is not an organic part of the college; that he has a right to supply boarding facilities in the building, to make any changes he desires; and that he is the owner of the building; and that the equitable estate in that part of the land upon which the hall stands, together with the building, appurtenances, and hereditaments thereunto belonging, were granted, and vested in him. The claim of the defendant Rideout is stated by his learned counsel as follows:
“That the resolution of July 23 is a conveyance; that the building is his property, without any qualification or limit, so long as used by him, his heirs, successors,' or assigns, for the purposes of his school; or if not a conveyance, then a grant in the form of an irrevocable license, coupled with an interest; and that the estate thus created in said Rideout is one of perpetuity and inheritance.”
The board of trustees consisted of 35 members, and this prudential committee appointed by the board was intrusted with the general charge of the interest of the-college, and special care of the buildings and real estate of the college, during the intervals between the meetings of the board, and all their transactions were made subject to the articles of association, the by-laws, and general action of the board.
It was clearly contemplated by the founders of Hills-dale College, by its articles of association, and by the terms of the deed of the lands to it, that it’should be carried on as a unit. No power is conferred upon the-board of trustees to create separate schools or colleges. Separate departments may be organized, but they must-all belong to and be a part of the college. If, therefore, the construction contended for by the defendant’s counsel could be placed upon the resolution of July 23, which forms the contract between the complainant and the defendant Rideout, it would, in our judgment, be clearly ultra vires, and void. Under the deed the college had no power to convey the title to any part of the real estate so conveyed to it to any person or institution for the purpose of carrying on a separate school.
No inference can be drawn from this resolution that it was the intention to convey to defendant Rideout any title to or permanent interest in the building or land which should be descendable to his heirs, and which he could sell and assign. The very terms of the resolution are repugnant to any such claim. It provides that ho shall enjoy all the rents, and that he shall at his own expense keep the building in repair. These terms would be idle if it Avas understood that he owned the building. It is of no consequence whether he erected the building with his oAvn funds or not. It was not contemplated at the time by the terms of the resolution that he was to erect the building with his own funds; but it was clearly understood that he should raise the funds for the erection of the building not for his own benefit alone, but for the benefit of the college, and that the building, if erected, should become a part of the college property. If instead of raising the funds from others, as contemplated, he contributed his OA\rn money for the erection of the build-' ing, that forms a matter for equitable adjustment only between him and the college. It gives him no legal rights. The professors of-that department were expressly made a part of the college faculty, and two of its members were then appointed to enjoy such representation, and were entitled to a voice in all matters pertaining to the government of the college. It is unnecessary to detei'mine Avhether the defendant Rideout erected the building with his own funds or not. If he did, it was clearly a voluntary contribution, the same as that of any other subscriber, and Avith no intention to give him any title to or interest in any of the college property. He is entitled to the use and benefit of the building, and to receive the rents and profits thereof, so long as he retains his connection with and management of that department. His rights and interests will cease upon, his death, or Avhenever he shall cease his connection Avith it.
There is no room for an application of the doctrine of estoppel. Both parties to the contract are presumed to have contracted Avith full knoAvledge of the law and the powers inherent in the college corporation. No charge of fraud or misrepresentation is or can be claimed. The doctrine of estoppel cannot apply where there was no power conferred upon the corporation to convey the title and interest claimed.
It is contended that defendant Rideout has the right to maintain a general dining-hall in the building in which to board the students. A large amount of testimony was taken upon both sides bearing upon the necessity for another dining-hall in the college. That is a matter which belongs to the board of trustees to decide, and with which the courts have nothing whatever to do. Defendant’s claim in this respect is based largely upon the idea that the word “dormitory” includes a 'place for meals, or, in this instance, a boarding-hall. “Dormitory” is defined by the lexicographers as “a room, suite of rooms, or building used to sleep in; a bedroom; sleeping quarters or sleeping-house; a lodging-house.” The testimony in the case that in some schools and colleges which supply dormitories for their students boarding-halls are provided has no bearing upon the question here involved. It does not tend to establish defendant’s claim, that the students in his department have been permitted to board themselves in their rooms, nor that he has been permitted to occupy rooms in the building for his own family purposes. This is very different from maintaining a general dining-hall. We must interpret the word in its usual significance. The complainant college has always had one dining-hall situated in another building. No general dining-hall was or is necessary for the commercial, department, or has ever been maintained there. It was certainly not contemplated by the contract between the parties, nor has it been so interpreted by 4heir actions. The building for the commercial department was not erected with accommodations for a general dining-hall. Changes must be made in order to adapt it to that purpose. As soon as defendant Rideout attempted this the complainant took prompt steps to prevent it. This resolution is plain and unambiguous, and cannot now be interpreted in the light of facts which have recently arisen. It is the exclusive function of the board of trustees of the college to determine whether or not they will maintain a boarding-hall in connection with the college, and, if they determine to do so, where it shall be maintained.
Decree affirmed, with costs of both courts.
The other Justices concurred. | [
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60
] |
Cahill, J.
This case involves the same questions that were considered in Weber v. Ryers, ante, 177. The two oases were heard together, and this case will be governed by that.
The other Justices concurred. | [
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Champuin, O. J.
Petitioner, James S. Berkery, asks for a mandamus based upon the following facts;
On January 29, 1884, “ Thomas Bortz, for James B. Bortz,*’ sued Berkery before Charles H Borgman, one of the justices of the peace of Wayne county, in a plea of assumpsit, and recovered judgment on February 19, 1884, for $251.29 damages, and costs of suit, taxed at $4.50. On January 18, 1890, Thomas J. Corkery, as attorney for the plaintiff, made and filed an affidavit with Joseph C. Gibson, one of the justices of the peace of Wayne county, and who had control of tbe docket and judgment record of said judgment. On the same day Justice Gibson made and delivered to Corkery a transcript of the judgment, and annexed his certificate thereto. On January 28, 1890, James B. Bortz made an affidavit of the amount due upon the judgment, and on January 29 the transcript, the affidavit for the same, and the affidavit of the amount due were filed with the clerk of the circuit court for the county of Wayne, who thereupon entered the same in the docket kept by him in which are recorded transcripts of judgments from justices of the peace for said county.
May 19, 1890, Berkery, by his attorney, made a motion in the Wayne circuit court before Hon. C. J. Reilly to set aside the said judgment, based upon the filing of the transcript, for the following reasons:
“1. There is no affidavit of amount due, as required by the statute.
The affidavit filed therein is not properly sworn to, or authenticated, as required by statute, being sworn to in the state of Ohio before a notary public of that state, and there is no certificate attached to said affidavit by the clerk of any court of record under the seal of said court showing that the signature of the notary was genuine, or that he was authorized by the laws of his state to administer oaths.
“ 3. The transcript shows that the original judgment before the justice was entered in the case of f Thomas Bortz, for James B. Bortz, against James S. Berkery,’ whereas the affidavit is entitled in a case of James B. Bortk against said James S. Berkery, judgment on Justice Borgmaffis docket.
“ 4. The affidavit as filed was sworn to before Thomas J. Corkery, who appears on the record in said circuit court as the attorney for said plaintiff.
“5. The affidavit filed with the justice for the tran script of judgment is sworn to on the 18th day of January, 1890, while the transcript was not filed in this court until the 29th day of January, 1890, and cannot therefore be treated as an affidavit of amount due, as required by the statute.
“6. The affidavit filed does not identify the judgment, the transcript of which was filed in this case, so that it cannot be treated as an affidavit in such ease.”
This motion was argued before the circuit judge, and on May 26, 1890, he disposed of the motion by the following order:
“The motion heretofore made in said cause for an order setting aside the judgment therein came on to be heard, and after hearing Geo. W. Bates, defendant's attorney, in support thereof, and Thomas J. Oorkery, plaintiff's attorney, in opposition thereto, it is ordered that said plaintiff have ten days from date to file new affidavits of amount due on said judgment, and for transcript thereof, in substitution for those now on file therein, nunc pro tunc, and that unless such affidavits are filed in said time said judgment be set aside.”
Affidavits were filed under this order on June 4, 1890. Belator insists that such order allowing new affidavits to be filed was irregular and void for the following reasons:
“ 1. That there was no sufficient affidavit filed with the justice for such transcript, in this, that the affidavit filed was not made by any authorized person, it not being made either by the plaintiff, his assignee, or the attorney of either party.” Act No. 173, Laws of 1885, amendatory of How. Stat. § 6947.
The other reasons stated are substantially the same as those above quoted in support of the motion.
If these affidavits were insufficient to confer jurisdiction, the one upon the justice to certify his transcript, and the other upon the clerk to file the transcript and -enter judgment, then jurisdiction could not be conferred by substituting sufficient affidavits nunc pro tunc. The question must be determined upon the validity of the affidavits filed with the transcript.
Parties may appear in justices’ courts and prosecute or defend either in person or by attorney. Such courts being of special and limited jurisdiction, the authority of the attorney extends no further than the proceedings before the justice. An attorney may act for a party in any judicial proceeding in which he may be employed: and, when a party is entitled to appeal or obtain a transcript from a justice of the peace by filing an affidavit made by himself or his attorney, it is not necessary that the affidavit shall be made by the attorney who appeared in the suit as such, but it may be made by any attorney thereunto duly authorized by the party, and his authority may be proved by the affidavit of the attorney deposed to in the affidavit. In this case, the affidavit for the transcript was made by Thomas J. Corkery, who states in the affidavit that he is the duly-authorized attorney of. the plaintiff. The affidavit was a sufficient compliance with the statute authorizing it to be made by the attorney of the plaintiff.
The plaintiff’s name only appears in the title of the-cause, above, or in the caption of, the affidavit, and it then appears as “ Thomas Bortz, for James B. Bortz, vs. James B. Berkery.” In a cause so entitled the next, question is, who is the plaintiff in the suit? It cannot, be disputed that Thomas Bortz is the nominal plaintiff. The words “for James B. Bortz” are surplusage, and are indicative merely that the suit is prosecuted for his use and benefit. He may be the real party in interest, but-he is not the real party to the record. And the law refers to parties to the record. If James B. Bortz had been the real party in interest, and as such was the absolute owner of the judgment recovered, he would 'have been authorized to make the affidavit as to the amount due, as the agent of the plaintiff to the record. The judgment before Justice Borgman was rendered in favor- ■of Thomas Bortz, and he was the party authorized by the statute to apply for the transcript, by himself or through his attorney. The affidavit of Corkery must refer to him when he says that he is the duly-authorized attorney of the above-named plaintiff.
A series of blunders appear in the affidavits and transcript. In the title of the cause, in the affidavit of Corkery, the defendant is called “ James B. Berkery.” In the transcript he is called “James S. Berkery.” In the title of the cause in the same affidavit the plaintiff is styled “ Thomas Bortz, for James B. Bortz,” and also in the caption of the-transcript; but in the docket entries, Book No. 4, Docket No. 2743, p. 94, the cause is entitled “ Thomas Bortz, for James 8. Bortz, against James S. Berhery,” etc., and, if the middle initial letter in a name were of any consequence, it would raise serious questions .as to the identity of the parties. We hold, however, that the affidavit made by Corkery is good and sufficient.
This affidavit states the amount due and unpaid upon the judgment, exclusive of costs, to be $251.29. It does not state whether there were any costs. This affidavit, under the authority of Smith v. Judge, 46 Mich. 338 (9 N. W. Rep. 440), would have been sufficient authority to the clerk to enter judgment for this amount had it been timely filed, but nothing could have been entered for costs. The presumption would have been that they had been paid or waived. But it was not timely filed, and nothing can be claimed for it as showing the amount due. The affidavit was sworn to on January 18, 1890, and the transcript with the affidavit was not filed until January 29, 1890, a period of 11 days. In Bigelow v. Booth, 39 Mich. 622, eight days elapsed between the making of the affidavit for the transcript and the filing thereof, and the Court held that in such case there “ was ample time in which the judgment might have been paid, in whole or in part,” and that “it does not necessarily follow that the amount sworn to as due on the 4th of April remained due and unpaid on the 12th of the same month.” The transcript could not therefore be filed without another affidavit of the party plaintiff, or the agent or attorney of the plaintiff, stating the amount due upon such judgment.
There is what purports to be an affidavit of James B. Bortz, and, as it is short, it is inserted here:
“Jambs B. Bortz v. “James S. Berkery.
Judgment on the justice doclcef of Justice Borgman.
“The State of-Ohio, ) _ Lucas county. )
“James B. Bortz, being duly sworn, says he is a resident of Lucas county, Ohio; that there is now due him on said judgment the sum of $251.29 damages, and $4.50 costs, with interest on each of said sums, at six per cent, interest, from Feb'y 19, 1884, from said defendant, James S. Berkery, to him, the plaintiff, James B. Bortz.
“Jas. B. Bortz.
“ Sworn to and subscribed before me this 28th January,. 1890.
[Seal.] “Thomas J. Oorkery,
“Notary Public, Lucas County, Ohio.”
This affidavit is not entitled in the cause, but is entitled in another cause upon Justice Borgman's docket.
By compliance with the requirements of the law, and filing the transcript, it becomes the duty of the clerk to enter and docket the judgment, and it then becomes a judgment of the circuit court. It was said in Jewett v. Bennett, 3 Mich. 200:
“Under such entirely ex parte proceedings, to be followed by such unusual consequences, justice and- the protection of the-parties, as well as law, require a strict compliance with the provisions of the statute before they can be made available to remove the judgment, convert it into a judgment of the circuit court, and throw about it the sanctions, and attach to it the remedies, of a court of general jurisdiction.
This principle has been enunciated and followed repeatedly from 1854 to the present time. O’Brien v. O’Brien, 42 Mich. 15 (3 N. W. Rep. 233); Doty v. Dexter, 61 Id. 348 (28 N. W. Rep. 123); Wedel v. Green, 70 Id. 642 (38 N. W. Rep. 638); Peck v. Cavell, 16 Id. 9.
A more serious objection to the affidavit of James B, Bortz is that it does not appear to have been sworn to before any officer authorized to administer oaths. It purports to have been sworn to before “ Thomas J. Corkery, Notary Public, Lucas county, Ohio,” and he has attached a notarial seal. But in this State a notarial seal is not-recognized as evidence of the authority of a notary to administer an oath. The authority of notaries to administer oaths is usually conferred by statute, and does not pertain to their office by usage or custom. Keefer v. Mason, 36 Ill. 406; Proff. Not. § 21. The affidavit of' Bortz of the amount due was to b.e used in a judicial proceeding in this State. To entitle it to be used it was. necessary that it should have been certified under How.. Stat. § 7448 (subd. 3).
Attention is called to the language of this section, that “to entitle the same [affidavit] to be read it must be authenticated,” etc., and it is claimed that, as the' affidavit required by section 6948 is only to be filed by the clerk, this statute does not apply. This would be a too narrow construction to put upon the language of the statute. The clerk must read the affidavit to know whether it complies with the statute, and so to determine whether he should file it, and enter judgment upon it. This affidavit is jurisdictional, and the foundation of a judgment in the circuit court; and it would indeed be a strange construction to give this statute that no affidavit. taken in another state to be used in a judicial proceeding could be read unless authenticated as required' by this section, and yet an affidavit which is to give the court jurisdiction may be filed or used without authentication, and without any certificate of the authority of the officer to administer oaths, or of the genuineness of his signature. The affidavit without such authentication was a nullity, and gave no jurisdiction to the clerk to file the transcript, or enter and docket the judgment.
The counsel for respondent cites the case of Pinkham v. Cockell, 77 Mich. 265, as an authority for holding that there is a presumption that the party before whom the oath was taken was a proper officer, in the absence of proof to the contrary. It is proper to state that a mistake crept into the opinion in that case. The record showed that the authority of the notary wat properly certified, and the opinion was corrected by Judge Campbell in one part, and by oversight left in another part as originally written.
We think the mandamus must issue as prayed, and it is so ordered.
The other Justices concurred.
The fact of such certification is stated in the report of the case in 77 Mich. 265 (head-note 2). | [
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Cahill, J.
The plaintiff brought an action of replevin in his individual name against the defendant to recover possession of the following personal property, to wit:
“Two iron road-scrapers, one wooden road-scraper, one wooden beam-plow, one wooden tool-box and its contents, consisting of a quantity of shovels and picks, also all notice-books containing blank notices used by the street commissioner of Menominee city," — „
Which he claims belongs to the office of street commissioner of the city of Menominee.
The defendant defends upon the ground that he is himself street commissioner of the city of Menominee, and is therefore entitled to the possession of the property. The defendant claims that on May 6, 1889, he was duly appointed to the office of street commissioner for one year; that he qualified and entered upon the discharge of his duties as such officer, and so continued down to the commencement of this suit. The plaintiff claims—
1. That the defendant was never legally appointed to the office.
2. That, if he was appointed, he was removed by the common council on the 5th day of August, 1889.
The point made against the legality of the defendant’s appointment to the office is that the charter of the city of Menominee provides that—
“The council shall prescribe the rules of its own proceedings, and keep a record or journal thereof. All votes shall be taken by yeas and nays, and be so entered upon the journal as to show the names of those voting in the affirmative, and those in the negative; and within one we.ek after any meeting of the council all the proceedings and votes taken thereat shall be published in one of the newspapers of the city.” Chapter 8, § 8.
The record of the defendant's appointment is as follows:
“Alderman Spies nominated William Campbell street commissioner, seconded by Alderman Oehrling, and he was declared elected.”
It is claimed that this record does not comply with the requirements of the charter’, and that the appointment is therefore void, and we are cited to Steckert v. East Saginaw, 22 Mich. 104.
If we were required in this case to pass upon the title of the defendant to the office which he claims to hold, the case cited would be in point; but we agree with plaintiff's .counsel that the title to this office cannot be tried in an action of replevin for property belonging to the office. It is sufficient for the defendant’s claim that the common council, having authority to do so, undertook to elect him street commissioner; that he accepted their action, qualified for the office, and entered upon the discharge of his duties, ’and was' recognized by the common council as de facto street commissioner. This position would entitle him to the custody of the property in controversy unless he had been legally removed from office by the common council, or had been in fact removed by the common council, and had acquiesced in such removal, and to the appointment of the plaintiff as his successor.
“A person actually obtaining office with the legal indicia of title is a legal officer until ousted.” Board of Auditors v. Benoit, 20 Mich. 180.
The first action of the common council for the removal of the defendant was taken at a special meeting called for July 22, 1889, at which the following resolutions were presented and read:
‘Whereas, Wm. Campbell, the street commissioner of the city of Menominee, has graded and graveled a road on the town line, and running from the State road west to the gravel-pit, without being ordered by the common council, or without their knowledge., thereby expending a large sum of money without authority, and thereby subjecting .the city to needless and uncalled-for expense; and—
“Whereas, The said Wm. Campbell as street commissioner, as aforesaid, has neglected and refused, and still does neglect and refuse, to obey the orders of the city council in this, to wit, refusing to gravel Ogden avenue as directed by vote of this council passed at a regular meeting held July 15, 1889:
“Now, be it resolved, That said Wm. Campbell be and hereby is removed from office of street commissioner of said city, and the office of street commissioner is hereby declared vacant.”
Upon a motion being made to adopt this resolution, the mayor stated that he did not think it could be acted upon at this meeting, under the call that had been made, and, the matter being referred to the city attorney, he decided that the mayor was right. No action was therefore taken on the resolution at that meeting. At the next regular meeting, held August 5, 1889, the resolutions above quoted were adopted by yeas, seven; nays, two. Immediately following this action a resolution was adopted appointing Magnus Hallgren, the plaintiff, street commissioner by a similar vote. No notice was given to the defendant of these charges against him, or of the proposed action to remove him from office.
The following provisions of the charter (Local Acts of 1883, pp. 161, 162, 176) bear upon the question of the right of the common council to remove the defendant from office:
“ The following officers shall be appointed by the council, viz., a city attorney, city surveyor, city marshal, city clerk, street commissioner, and engineer of the fire department. The council may also, from time to time, provide by ordinance for the appointment of, and appoint for such term as may be provided in the ordinance, such other officers, whose election or appointment is not herein specially provided for, as the council may [shall] deem necessary for the execution of the powers granted by this act, and may remove the same at pleasure.” Section 3, chapter 5.
“The mayor, city marshal, city clerk, city treasurer, street commissioner, supervisors, and constables shall hold their office for the term of one year from the first Monday in April of the year when elected, and until their successors are qualified and enter upon the duties of their offices.” Section 5, chapter 5.
“Any person appointed to office by the council, by authority of this act, may be removed therefrom by a vote of the majority of the aldermen, elect, and the council may expel any alderman, or remove from office any person elected thereto, by a concurring vote of two-thirds of all the aider-men elect. In case of elective officers, provision shall be made by ordinance for preferring charges, and trying the same, and no removal of an elective officer shall be made unless a charge in writing is preferred, and an opportunity given to make a defense thereto.” Section 17, chapter 8.
It is claimed by the plaintiff that under this last provision of the charter the common council had a right to remove the defendant from the office of street commissioner without notice to him. In Mead v. Treasurer, 36 Mich. 416, this Court said:
“ Our State system favors appointments for fixed periods, and almost entirely rejects the policy of removals at will.”
We shall need to find in the charter of Menominee clear and unequivocal power vested in the council to remove this officer without notice before we can concede that any such power exists. In 1 Dill. Mun. Corp. § 250 (188), it is said:
“ "Where an officer is appointed during pleasure, or where the power of removal is discretionary, the power to remove may be exercised without notice or hearing.”
In Mechem, Pub. Off. § 454, it is said:
tfIn those cases in which the office is held at the pleasure of the appointing power, and where the power of removal is exercisable at its mere discretion, it is well settled that the officer may be removed without notice or hearing.”
In support of this position both of these learned writers cite the case of Ex parte Hennen, 13 Pet. 230, and upon this case most of the later cases have been based. That was the case of a clerk of the district court of the United States for the eastern district of Louisiana. He had been removed from office by the district judge without other cause than the desire of the judge to supplant him with a personal friend. The Court held that as the law vested in the judge the appointment of a clerk, and as such appointment was not for any fixed term, the power of appointment necessarily carried with it the power of removal. The main ground of the decision was that it could not be admitted that it was the intention of the constitution that such an office should be held during life. We have not found any case where an officer who was appointed for a fixed term (and when the power of removal was not expressly declared by law to be discretionary) has been held to be removable except for cause, and wherever cause must be assigned for the removal of the officer he is entitled to notice, and a chance to defend. Field v. Com., 32 Penn. St. 478; State v. City of St. Louis, 90 Mo. 19 (1 S. W. Rep. 757).
It is claimed on behalf of the plaintiff that, because section 17 of chapter 8 of the charter provides expressly that elective officers shall not be removed except for cause, it is to be presumed that the Legislature intends that appointed officers might be removed without cause. We are not disposed to allow any presumption to aid the exercise of such arbitrary power. In such a case the Legislature may by express words confer upon the common council of a city the power to remove an officer, without cause; but, in the absence of such power given in express-words, the presumption must be that the Legislature intended that every officer appointed for a fixed period should be entitled to hold his oflg.ee until the expiration of such period, unless removed therefrom for cause after a fair trial. This presumption is strengthened when we compare section 17 of chapter 8 with section 3 of chapter 5, before quoted. In the latter section certain officers are declared to be removable at pleasure, and, although the street commissioner is expressly named in that section, he is not included among those who may be so summarily removed.
But it is claimed by plaintiff that lie has, since his appointment, been acting as street commissioner, and is-therefore de facto such officer. There could not be two-incumbents of this office. The defendant, by his refusal to deliver up the property, books, and papers of the-office, has indicated that he claimed to -hold the office. If he was once lawfully in office, a fact which we are not allowed to question on this record, and has never yielded, but has held on and continued to act, then the plaintiff’ has never gotten possession, and cannot be regarded as an officer de facto. Mead v. Treasurer, 36 Mich. 419.
The judgment of the court below was in accordance with these views, and is affirmed, with costs.
Champlin, C. J., Morse and Long, JJ., concurred. Grant, J., did not sit. | [
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Long, J.
But three questions are discussed in the principal brief of the counsel for the garnishee defendants.
On the oral argument of the case in this Court it was noticed that the original brief of the garnishee defendants’ counsel, containing only eight pages, presented but three questions, while in a supplemental brief, which contained forty pages, he presented 45 points, which counsel relies upon for reversal of the case. Counsel was advised at the opening of the argument in this Court that only such points as were treated in his original brief would be considered by this Court in disposing of the case. The attention of counsel was called to Supreme Court Rule No. 59, as amended to take effect July 1, 1888, and printed in full in 62 Mich. iv. That rule was adopted to be observed and followed by counsel in bringing cases into this Court. It will at least be followed and enforced by this Court.
The history of this case is stated by counsel for the plaintiffs in their brief, and about which there does not seem to be much controversy.
In November, 1886, Osmun & Dawson, the principal defendants, went into the hardware business in Detroit, and from that time up to February, 1888, bought goods of the plaintiffs. Evidence was given on the trial tending to show that the firm had given two notes, — one for $2,400 to Charles Dawson, father of defendant Robert E. Dawson, and one for the same amount to Mr. Pearsall, grandfather of the defendant George E. Osmun, and father of defendant Dawson’s wife. The defendant Osmun is a son of Mrs. Dawson by a former marriage. On January 14, 1888, Mr. Pearsall died, and Mrs. Dawson was, on January 20 following, appointed special administratrix. On the 25th of the same month two chattel mortgages were given by the firm; the one of $2,400 to the said Charles Dawson, and another, of like amount, to Mrs. Dawson. Defendants introduced, evidence tending to show that these two mortgages were given to take the place of a previous $4,800 chattel mortgage, which had never been filed. On February 2, 1888, these two mortgages were filed in the office of the city clerk, and on the same day the mortgagees took possession of the property covered thereby by their agent, the defendant Riddle, and began foreclosure. The notes these mortgages were given to secure did not become due until April 30, 1888. On Feb ruary 8, 1888, garnishment proceedings were begun by the plaintiffs against Mrs. Dawson, George Pearsall, and Mr. Riddle. On February 4, the plaintiffs, finding that Mr. Pearsall was dead, abandoned proceedings under the first affidavit for garnishment, and made a new affidavit, upon which new process issued, in which Mrs. Dawson and Charles Dawson were made garnishee defendants. The subsequent pleadings were entitled in the new proceedings.
On February 4, 1888, a common-law assignment was made by Osmun & Dawson for the benefit of creditors to Mr. Riddle. On February 21, 1888, all the goods were sold to Mrs. Dawson at an auction sale held by the mortgagees for a little more than the two mortgages. Mr. Riddle, Mrs. Dawson, Charles Dawson, and their attorneys were present at this sale, and Charles Dawson was one of the bidders at the sale. On the trial of the present case the plaintiffs attacked these two mortgages as fraudulent in that they were given to hinder, delay, and defraud the creditors of the mortgagors, and that the possession and sale of the mortgaged property thereunder was for the purpose of hindering, delaying, and defrauding such creditors. It appeared also that the plaintiffs made and filed proof of their claim in the assignment proceedings wherein Mr. Riddle was made assignee. It appears from the record that at the close of the testimony the attorney for the garnishee defendants proposed in writing five questions to be submitted to the jury for special findings. These the court below submitted, and the jury found thereon as follows:
“1. Was the debt of the defendants Osmun & Dawson, of $2,400, to the First National Bank of Pontiac, a Iona -fide debt?
" “A. Yes.
“ 2. Did Charles Dawson indorse the note of $2,400 given for that debt in good faith?
“A. Yes.
“3. Did he take the chattel mortgage in question to secure him for indorsing said note in good faith?
“A. No.
“4. Was the debt of Osmun & Dawson to the estate of George Pearsall, of $2,400, as indorser to the First National Bank of Pontiac as principal creditor for that $2,400, a Iona fide debt?
“A. Yes.
“5. Did Martha Dawson, as administratrix of the estate of George Pearsall, take the chattel mortgage to secure her and her bondsmen for liability in good faith?
“A. No.”
The jury rendered a verdict for the plaintiffs for the value of the goods, found to be of the amount stated in the inventory in the assignment of Osmun & Dawson to Riddle, against the garnishee defendants Charles Dawson and Martha Dawson, and as against Riddle no cause of action.
The first point made by the counsel for garnishee defendants, as stated in the original brief, is that, after proving their claim in the assignment proceedings, the plaintiffs placed themselves among the other creditors of the principal debtors, and could no't prosecute their attack against the chattel mortgages; that that was exclusively the duty of the assignee. The fact, however, that the plaintiffs proved their claim in the assignment proceedings, does not estop them in this. This proposition needs no discussion. The doctrine was fully settled in Detroit Stove Works v. Osmun, 74 Mich. 7 (41 N. W. Rep. 845); Parsons v. Clark, 59 Id. 414 (26 N. W. Rep. 656); Barnum Wire & Iron Works v. Circuit Judge, Id. 272 (26 N. W. Rep. 802).
The second point made by counsel for the garnishee defendants is that there were two affidavits for garnishment. The first affidavit was made on February 3, 1888, and the writ of garnishment issued against Martha Dawson, George Pearsall, and Nelson K. Riddle. On the fol lowing day, February 4, the plaintiffs filed a new affidavit, and took a second writ of garnishment against Charles Dawson and Martha Dawson, setting forth in this second affidavit that “ Martha Dawson and Charles Dawson have property, money, goods, chattels, credits, and effects in their hands, or under their control, belonging to George E. Osmun and Robert E. Dawson," the principal defendants. The first proceedings in garnishment being abandoned, the parties proceeded under their second writ, and the trial of the present case before the jury was under this second writ.
It is insisted and claimed, however, by counsel, that there is nothing in the case showing any privity of contract between Martha and Charles Dawson, and that no joint action in garnishment could be maintained against them. We think there is no force in this contention. While it is true that these parties were claiming to hold under two separate and distinct chattel mortgages, yet they acted jointly in taking possession of the property thereunder, and the possession was held by Mr. Riddle as agent of both mortgagees. Their possession was joint. Both mortgages were executed at the same time, and filed at the same time, each covering the entire stock of goods. There is no claim that one mortgage had priority over the other. If the mortgages were valid, the plaintiffs had no right to recover. If they were fraudulent and void as to creditors, as the jury found them to be, then the garnishee defendants, under the facts shown in this case, cannot be heard to claim that they were acting independently of each other. No assignment for the benefit of creditors had yet been made, but Riddle went into possession of and was holding the property for the joint benefit of Martha and Charles Dawson, and the property was subsequently sold to and bid in by Martha Dawson for more than the amount of the two mortgages.
This case is clearly distinguishable from the case of Lyon v. Ballentine, 63 Mich. 97 (29 N. W. Rep. 83). In that case it was not claimed or pretended that there was any joint actual possession- of the property. In the present case, while the property was seized and taken upon the two mortgages, or rather turned over by the mortgagors to the two mortgagees, yet the property was held as a whole by the agent appointed by the two. It is difficult to see how, under such circumstances, several actions could have been brought or maintained against Charles and Martha Dawson for having in their separate custody and under their separate control this stock of goods, or any particular part or parcel of it.
The third and only remaining point discussed by counsel in his original brief relates to the testimony of Mr. Clarence A. Black, one of the plaintiffs in this cause, and the ruling of the court thereon. We have carefully read the record, and the question sought to be raised is one purely of fact. The testimony was admissible, and the court properly admitted it. We see nothing in the testimony which calls for the statement contained in the brief of counsel. If the statement was warranted under any circumstances, it certainly can have no weight in this Court. We shall not discuss it.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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] |
Champlin, C. J.
Wood presented his petition to this Court, setting up that he was imprisoned and restrained of his liberty by Harvey S. Millard, deputy-sheriff of the county of Wayne, at the city of Lansing, by virtue of a writ or process issued, out of the circuit court for the county of Wayne, a copy of which is as follows:
“ Statu ou Michigan, } County of Wayne, f
“ In the Circuit Court for said County.
“To the Sheriff or any Deputy-sheriff of Wayne County, Greeting:
“Whereas, it has been made to appear to said circuit court, by return of the officer duly made, that E. T. Wood was duly served with an order of said court citing him to appear before said court on Wednesday, the 4th day of June, 1890, at 9:30 o'clock A. M., to show cause why he should not be punished for contempt of court, and the hearing of said matter being continued until 2 p. M. of said June 4, at which time said respondent was ordered to appear in court, and E. T. Wood has made default in obeying the command of said order:
“Now, therefore, you, and each of you, are hereby commanded, in the name of the people of the State of Michigan, forthwith to apprehend said E. T. Wood, and bring him before the said court to be dealt with according to law; and you are further commanded to detain, in the manner prescribed by law, the said E. T. Wood, until he shall be discharged by said circuit court, and of this writ make due return.
“ Witness the Honorable H. N. Brevoory, Presiding Judge, on the 4th day of June, A, D. 1890.
“Ím. P. Lane,
“ Clerk of the Circuit Court for the County of Wayne.
“By Wm. May, Dp. Clk.”
The petitioner alleges that he is not imprisoned or detained by virtue of any process, judgment, decree, or execution specified in the eighth section of chapter 296, How. Stat. He alleges several causes why his imprisonment is illegal, viz.:
1. Because it does not appear in or by said writ or process that he was lawfully required to appear in person in the circuit court for the county of Wayne on the 4th day of June, A. D. 1890.
2. Because it does not appear in or by said writ or process that he had been guilty of any contempt of court, or that for any other reason the circuit court for the county of Wayne had any authority, power, or jurisdiction to make an order requiring him to appear before the court on the 4th of June, 1890, to show cause why he should not be punished for contempt of court.
3. Because such writ is void on its face, and without warrant of law.
The petition sets up further and other facts and proceedings which led up to the issuing of the writ, which will be referred to below so far as is necessary to an understanding of the case. We issued our writ of habeas corpus, and the .officer made return that he had Mr. Wood in custody under the above-named writ. The return of the officer was traversed, setting up that the proceedings upon Avhich the writ issued were without authority of law, and void. We thereupon adjourned the hearing, and ordered a writ of certiorari to issue to the circuit court for the county of Wayne; and return has been made to this writ which shoAvs that, on May 29, 1890, said Emery T. Wood was adjudicated guilty of contempt of court, and the following order was entered upon the journal of said court:
“At a session of the circuit court for the county of Wayne, convened and held at the circuit court room, in the city of Detroit, on the twenty-ninth day of May, in the year one thousand eight hundred and ninety.
“In the Matter oe Emery T. Wood, for Contempt of Court.
“ Present: Hons. H. N. Brevoort, Geo. Gartner, Geo. S. Hosmer, C. J. Reilly, Circuit Judges.
“Before Judge Brevoort.
“It appearing to the court now here, from its own immediate view thereof, that Emery T. Wood hath been and is guilty of disorderly behavior in using language disrespectful to the court during its sitting, and in the immediate view and presence of the said court, and directly tending to interrupt its proceedings, that is to say, in using the following language:
“ ‘ With all due respect to your honor, I must say that when your honor chastises me from the bench, as your honor does now; and when you chastise me as you did when the pleadings came up, and when the public press sends out a report, and sets your honor upon the pedestal, and says I do not know how to draw a declaration, your honor has overstepped the mark, and not accorded me the justice I am entitled to in this court. It seems to me, while I cannot refrain from the feeling which takes possession of me while I am to be chastised, I must say that I have not been treated fairly in this case, and I have not been treated fairly in one or two other cases before your honor. Why it is, I cannot say. I am not aware that I have ever had any difficulty that your honor should carry into a case I am trying, and affect my client as well as myself. I .say there are things that are discretionary with the court; but, if the court abuses his discretion, I have my remedy.’
“ Wherefore, it is adjudged by the said court now here that the said E. T. Wood is guilty of a criminal contempt of the said court; and it is further ordered and adjudged that the said Emery T. Wood do pay to the people of this State a fine of twenty-five dollars within twenty-four hours, or that in default thereof he be committed to the county jail for the period of five days.”
It appears in the showing before us that this fine was imposed in the forenoon; that, during the adjournment at noon, Wood delivered to the clerk, in his office in the •city hall, a certified check upon a bank for $25, upon the back of which was indorsed in his handwriting the following:
“ This cheek is given in payment of an illegal and unjust fine imposed by the Honorable Henry N. Brevoort this 29 th day of May, 1890, in court-room No. 2, circuit court, Wayne county, Mich., during the trial of the case of Alie Brown ly David Brown-, next friend, v. Detroit Qity Railway. I respectfully comply with the order of court, but herewith protest against the payment of said fine, as I insist there was no contempt of court, and no legal or just cause for the imposing of said fine, or the payment of said sum of money.
“E. T. Wood.
“ Detroit, May 29, 1890."
The clerk inclosed this check in his “ short book," and carried it to" the court-room, where it was seen and inspected by several persons, and among others by reporters of the newspapers, and it appeared in the public newspapers the next morning. It also came to the attention of the court, but not by any affidavit, who, upon inspection of the writing, and verbal information from the clerk of the manner he had acquired possession of it, caused the following order to be entered on May 31, 1890; the intervening day being a legal holiday:
“In the Matter oe E. T. Wood, eor Contempt oe Court.
“Present: Hons. H. N. Brevoort, George S. Hosmer, O. J. Beirut, Circuit Judges.
“Before Judge Brevoort.
“In this matter it is ordered that E. T. Wood show cause on Monday, June 2, 1890, at 9:30 o’clock, why he should not be punished for contempt of court in having indorsed on a certain check words disrespectful to the court; said check having been paid into court as payment of a fine heretofore imposed on said E. T. Wood."
This order not having been served, another like order Was entered on June 2, ordering Wood to appear on June 4, at 9:30 o’clock A. m. This order was served, and Wood appeared by attorney, and filed a written answer to the order to show cause. Judge Brevoort then announced that he was not satisfied with the excuses contained in the answer, and continued the matter until 2 o’clock, and notified Wood’s counsel that Wood must' be personally present at that time before the circuit court. Wood did not appear, and the judge then caused the following order to be entered:
“At a session of the circuit court for the county of Wayne, convened and held at the circuit court room, in the city of Detroit, on the 4th day of June, in the year one thousand eight hundred and ninety.
“In the Matter oe Emery T. Wood, eor Contempt oe Court.
“Present: Hons. H. N. Brevoort, Geo. Gartner, Geo. S. Hosmer, C. J. Reilly, Circuit Judges.
“Before Judge Brevoort.
“In this matter, the respondent having been served with an order to show cause why he should not be punished for an alleged contempt of court at 9:30 a. m., and the hearing thereof having been continued until 2 p. m., and the counsel for respondent having been notified of such continuance, and the respondent not being present in court at said adjourned hour, it is ordered that an attachment issue for said respondent.”
The statute is mandatory that no court or officer, on the return of any habeas corpus or certiorari, shall have power to inquire into the justice or propriety of any commitment for a contempt made by any court, officer, or body according to law, and charged in such commitment as thereinbefore provided. The Constitution vests in this Court a general superintending control over all inferior courts, with power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo, and other original and remedial writs, and to hear and determine the same. Article 6, § 3. Under this section of the Constitution, and the statute above cited, we have authority to inquire into the justice or propriety of proceedings in contempt, whether before or after commitment, only so far as to ascertain whether the court or officer has jurisdiction, and is proceeding according to law. If the court or officer has jurisdiction, and is proceeding according to law, we can go no further. Commitments for contempts cannot be impeached, for mere irregulárity. The attack upon a judgment for contempt can go no further than to the power of the court to act in the given case. But the question of jurisdiction necessarily involves an inquiry whether the conduct alleged was in fact a contempt of the court, and committed under circumstances which authorize the court to proceed to punishment therefor; and it also involves the question whether the court is proceeding in the manner prescribed by law.
It was said by this Court in Langdon v. Judges of Wayne Circuit Court, 76 Mich. 367, that the—
“ Courts of record in this State have inherent power to hear and determine all contempts of court which the superior courts of England had at the common law; and the statute has not undertaken to limit or prohibit their jurisdiction in the matter of contempts. The statutes are in affirmation of the common-law power of courts to punish for contempts, and, while not attempting to curtail the power, they have regulated the mode of proceeding, and prescribed what punishment may be inflicted.”
Two classes of contempts are recognized by our statutes. One class is special, in chapter 255, How. Stat., section 7334 of which provides that—
“ Every court of record shall have power to punish as for a criminal contempt persons guilty of either of the following acts, and no others:
1. Disorderly, contemptuous, or insolent behavior committed' during its sitting, in its immediate view and pres ence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.”
There are five other subdivisions in the section, but the offense charged against Wood is not embraced in them. Contempts under subdivision 1 of section 7334 are confined to those committed during the sitting of the court, and in its immediate view and presence. If it be admitted that the act charged against Wood in writing upon the back of the check was disorderly, contemptuous, or insolent behavior, it was not committed during the sitting of the court, in its immediate vieAV and presence. While the court, under this statute, may be considered as sitting from the beginning of its session until the end thereof, yet the words “immediate view and presence” are words of limitation, and exclude the idea of constructive presence. The immediate view and presence does not extend beyond the range of vision of the judge, and the term applies only to such contempts as are committed in the face of the court. Of such con-tempts, he may take cognizance of his OAvn knowledge, and may proceed to punish summarily such contempts, basing his action entirely upon his own knowledge. AH other alleged contempts depend solely upon evidence, and are inferences from fact, and the foundation for the proceedings to punish therefor must be laid by affidavit. How. Stat. §§ 7336, 7358, 7359.
The method of procedure is entirely different in the two classes of contempts. A direct contempt, committed in the immediate view and presence of the court, will be noticed by the court, and, on its own motion, it will punish summarily in the mode pointed out by the statute. But those not committed in its immediate view and presence must be brought before the court by affidavit of the persons who witnessed them, or have knowledge of them; and a rule is made, based upon such affidavit, either that an attachment issue, or that the accused show cause at a certain time and place why he should not be punished for the alleged contempt. How. Stat., above cited. See, also, 4 Bl. Comm. 286; 2 Hawk. P. C. 222; 1 Tidd, Pr. (4th Amer. ed.) 88, 478, 479; In re Judson, 3 Blatchf. 148; 6 Dane, Abr. p. 528, chap. 193, art. 28; 7 Id. pp. 307, 308, chap. 220, art. 4; Com. v. Dandridge, 2 Va. Cas. 408; State v. Matthews, 37 N. H. 450; Crow v. State, 24 Tex. 12. In the case under consideration, the fact was not made to appear by affidavit upon which the alleged contempt proceedings are predicated; and the court therefore obtained no jurisdiction either to order Mr. Wood to show cause, or to cause him to be arrested for the misconduct alleged. A person cannot be deprived of his personal liberty except in the mode pointed out by law.
We have refrained from expressing any opinion upon the question whether or not the alleged action of Mr. Wood relating to the writing upon the check constituted a contempt of court. We do not consider that question before us for decision upon this application. The facts material to our decision are that Mr. Wood has been arrested, and ordered to be detained • and brought before the court to answer for an alleged contempt not committed in its immediate view and presence, without the misconduct which is alleged to constitute the contempt being proved to the satisfaction of the court by affidavit. Clearly the court was proceeding without jurisdiction, and the petitioner should be discharged.
Many interesting questions were raised and argued upon the hearing, and supported by decisions of courts acting under different statutes and practice from our own; but, as they are not material to the disposition of the case under our practice and statutes, we shall not discuss them.
Let an order be entered discharging the petitioner from imprisonment.
The other Justices concurred.
How. Stat. § 8577. | [
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] |
Grant, J.
This suit was originally brought by 10 plaintiffs, as heirs at law of Horace Beers, deceased, against Alice M. Beers, the widow of said Horace, in 1866. The declaration alleges that Horace died in 1859, seised of certain lands therein described, the title-deeds to which have not been recorded; that he left no direct heirs, but left a widow, Alice; that she destroyed the deeds, and afterwards obtained the title in her own name; that some years afterwards she sold the same to one Fish, who bought in good faith, and in ignorance of plaintiffs’ rights; that therefore they have no remedy against Fish; and that, by means of these matters, she unlawfully defrauded the said plaintiffs of their legal rights and interests in said lands, and the same became wholly lost to them, — to their damage $5,000. Ispue was joined, and suit tried in the circuit court, while the then plaintiffs were all living, resulting in a judgment for the defendant. The case was brought to this Court in 1870, reversed for errors in the admission of testimonjf, and remitted for a new trial. Beers v. Beers, 22 Mich. 42.
Two of the present plaintiffs, besides claiming as heirs at law, also claim the rights of other heirs, by virtue of two quitclaim deeds of the lands described, and plaintiff Edwards claims the right to sue, by virtue of three other deeds from four other heirs. These deeds contain no ■express assignment of the right of action, and the deeds themselves do not operate as such. These deeds were all executed after the alleged fraud on the part of Alice, by which it is claimed that their rights in the land were lost to them. Edwards was attorney for the original plaintiffs, and caused his name to be inserted as plaintiff, December 27, 1888.
Edwards had no interest which entitled him to be made a plaintiff. The only interest he had, if any, was the interest his grantors had in the land.
The suit was tried again in February, 1890, and verdict directed by the court for the defendants. Between the first and second trials, seven of the original plaintiffs had died, as had also the original defendant, Alice M. Beers, whose name, at the time of her death, was Alice M. Bis-don.
This is not one of those actions that survived at the common law. 1 Williams, Ex'rs, 669; 3 Bac. Abr. 539; U. S. v. Daniel, 6 How. 11; Jarvis v. Rogers, 15 Mass. 398; Cutting v. Tower, 14 Gray, 183; Leggate v. Moulton, 115 Mass. 552; Cummings v. Bird, Id. 346; Mellen v. Baldwin, 4 Id. 480. Our statute in regard to the survival of actions is as follows:
“In addition to the actions which survive by the common law, the following shall also survive, that is to say: Actions of replevin and trover; actions for assault and battery, or false imprisonment, or for goods taken and carried away; and actions for damage done to real or personal estate.” How. Stat. § 7397.
The Massachusetts statute is identical in language with our own. Cutting v. Tower and Cummings v. Bird, supra, hold that the statute—
“ Was intended to include only those cases where injury is occasioned to property by the direct wrongful act of a party upon the property.”
We think this construction of the statute correct. It has frequently been held by this Court that rights of action which survive are assignable. Final v. Backus, 38 Mich. 231; Brady v. Whitney, 24 Id. 154; Grant v. Smith, 26 Id. 201; Finn v. Corbitt, 36 Id. 318; Felt v. Evaporating Co., 52 Id. 606 (18 N W. Rep. 380). It is also the settled rule in this State that actions for fraud and deceit are not assignable. Dayton v. Fargo, 45 Mich. 153 (7 N. W. Rep. 758); Brush v. Sweet, 38 Id. 578; Felt v. Evaporating Co., supra. The case at bar is nearly identical in principle with Brush v. Sweet. In that case the proceeding was in equity by the executors of the grantor nominally, but really for themselves and another, to whom they had assigned an interest in the suit. The suit was against the original grantees to set aside the deeds as fraudulent. The assignment was held void, and the bill dismissed; the Court holding that “the right to complain of a fraud was not a marketable commodity.” Now, in such cases, the right of assignment and survival to personal representatives are convertible propositions. Zabriskie v. Smith, 13 N. Y. 334. The claim of plaintiffs is based wholly upon the fraud alleged against the widow of Horace Beers in destroying the deeds and procuring the title in herself. It follows that the right of action did not survive, and that the suit abated upon the death of the original defendant.
Judgment affirmed.
The other Justices concurred. | [
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Morse, J.
In 1888/ one W. G. Cogswell and Rhodes & Lynch entered into the following contract:
“This agreement entered into the 22d day of December, A. D. 1888, between W. G. Cogswell, of Pinconning, Bay county, Mich., of the first part, and John T. Lynch and O. H. Rhodes, of the same place, of the second part, witnesseth:
“That, for the consideration hereinafter set forth, the said parties of the second part agree to cut and deliver upon the line of the Saginaw Bay and Northwestern Railroad all the merchantable pine timber upon section 17, town 17 north, range 3 east.
“Said first party agrees to pay the said second party the sum of four dollars per thousand delivered on said railroad, and the further sum of one dollar per thousand when said second party delivers the said logs upon the cars of said railroad; the logs now on skids along said railroad to be scaled by the 15th day of January, 1889, by A. II. Cogswell and George Walstead, said logs now-on skids, — 3,500 in number, — to be estimated by the said John T. Lynch and A. II. Cogswell, and the sum of four dollars per thousand to be paid by the said first party to the said second party upon such estimate.
“And it is further agreed by the said parties hereto that on "the 15th and 30th of each succeeding month a scale of all logs got out and delivered as above by the second party, they shall be paid for at said rate of four dollars per thousand, said second party to furnish trains and load said logs upon said cars, and to be delivered after the 10th day of January next, as may suit the convenience of the said second party. All logs mentioned in contract to be delivered by said second party on cars by the 15th day of March, 1889.”
The plaintiff in this suit brings trover for a certain quantity of logs cut under this contract. He claimed title on the trial under two chattel mortgages given by Cogs-well, — 0ne to McCausland & Co., of Saginaw, and a subsequent one executed by Cogswell to the Commercial Bank of Bay City. The last mortgage was foreclosed by the sale of the property named therein April .15, 1889, at which sale the plaintiff purchased the logs he claims in this suit. The McCausland mortgage was assigned to the Commercial Bank of Bay City before the commencement of this suit. Plaintiff holds the title for the bank. The-defendant claims title to the logs by purchase from Rhodes & Lynch. The material question in issue, therefore, was, who was the owner of the logs in question at the time-Hall got possession of them, the plaintiff, claiming under Cogswell, or Rhodes & Lynch? The verdict of the jury was in favor of the plaintiff.
There is no question but that the logs before they were-cut belonged to Rhodes & Lynch, the timber being their property. The proofs show, in accordance with the contract, that at the time it was made there were about 3,500 pieces, — logs,—on the skid-ways; that an estimate was made of the amount of feet in these logs; and that Cogswell made a draft in favor of Rhodes, upon Dwight & Co., of Detroit, Mich., for $1,400, on account of these logs, and handed the same to Rhodes. He also after-wards gave drafts to Rhodes on the same parties as fol lows: January 17, 1889, $1,000; February 16, 1889, $600. The drafts of $1,100 and $1,000 were indorsed by Rhodes, and discounted at the Bay City Bank, where he kept an account. They were accepted by Dwight & Co., but not paid. The $600 draft was presented to Dwight & Co., but not accepted by them. Before any of these acceptances became due, Dwight & Co. failed, as did Cogswell. Upon their being dishonored, and about April 6, 1889, Rhodes & Lynch returned the drafts to Cogswell, saying they were of no use to them. Cogswell remarked that they better keep them, as they were of no use to him, but Rhodes & Lynch went away leaving the drafts in Cogswell's hands. They were in the possession of plaintiff's counsel at the time of the trial. This return of the drafts was made upon the advice of counsel. Rhodes procured the drafts from the Bay City Bank, where he had discounted them, by paying back to the bank the amount of them. It will thus be seen that Cogswell never parted with a dollar towards the payment of these logs, and Rhodes & Lynch never received a dollar for them upon this contract. These drafts were drawn upon estimates of the amount of these logs. It does not appear that they were ever scaled or moved from the skid-ways until the defendant bought them. Rhodes & Lynch testify that they called upon Cogswell to have them scaled, and they made arrangements to furnish cars upon which to load and ship them, but Cogswell refused to receive and pay for them. Cogswell testifies that they did not load the logs on the cars, because he was not yet ready to receive them; it was not convenient for him to take care of them
The two main questions bearing upon the ownership of these logs are: When did the title pass, or, rather, when was it to pass, under the contract? Was it to pass when the logs were placed on the skid-ways upon payment of the estimates, and was the taking of the drafts by Ehodes such payment?
We do not think that the title to these logs ever passed from Ehodes & Lynch to Cogswell under the contract. Four dollars per thousand was to be paid when the logs were delivered on skids, and another dollar per' thousand when put upon the cars. The logs had to be scaled before they were loaded on the cars, and—
“All logs mentioned in contract to be delivered by said second party TEhodes & Lynch] on cars by the 15th day of March, 1889 "
Ehodes & Lynch had the logs on the skid-ways ready to be delivered on the cars according to the contract. Cogswell was not ready to receive them, and refused to do so. Leaving out of question whether or not the drafts were received as payment of the four dollars per thousand, Cogswell was never ready to take the logs and pay the balance upon them. There is nothing in the case or in the contract showing the intention of the parties to be that the title should pass when the logs were delivered on the skid-ways. On the contrary, the plain inference of the agreement is that the delivery which should take the logs out of the possession of Ehodes & Lynch, and put them into the hands of Cogswell, — -the delivery transferring the title, — was the delivery on the cars, which might commence on January 10, 1889, and must close on March 15, 1889. ¡ When Cogswell refused to permit of this delivery he repudiated the contract, and the title did not pass to him.
This construction of the contract is also shown by the -conduct of the parties to be the correct one. The logs mentioned in the contract were cut on section 17, township 17 N., of range 3 E. The mortgage by virtue of which these logs were purported to be sold described the logs pledged therein as—
“About three million feet of pine saw-logs, marked fA. G.,' ‘2/ ‘3/ cut from section 10-16-3 [meaning town 16 north, of range 3 east], now in the mill boom at said Pinconning, and in transit thereto, and lying along the line of the Gladwin Railroad."
The other mortgage, given to McOausland, and claimed to be owned by the Commercial Bank, which bank the plaintiff in this suit represents, described the logs conveyed therein as follows:
“About two million feet of white pine logs, marked fA. G./ ‘2/ ‘3,' being all the logs cut from section ten, town 19 north, range 3 east, Mich., and now being in transit on the S. B. & N. W. R. R. at Murphy's, and at Pinconning, Mich.; also about eight hundred thousand feet of white pine logs, purchased by first party from Rhodes & Taylor, now in town 14 north, range 4 east, Mich."
It will be seen that the description of logs in both of these mortgages is particular, but does not include the logs in question. The Rhodes & Taylor logs were not the same as the Rhodes & Lynch logs, but logs gotten out under a contract between Cogswell and Rhodes & Taylor. When this suit was commenced, these Rhodes & Taylor logs were claimed by the plaintiff; but, it being conclusively shown that the defendant never had any of them, the claim was withdrawn upon the trial. It is clear that Cogswell never mortgaged, or intended to mortgage, the logs in question.
The court permitted oral testimony to show that these logs were included, or meant to be, in the description of both mortgages, but this was plainly error. The record shows that there were logs cut on section 10-16-3, and taken by the Commercial Bank, and sold under their mortgage. The description was not ambiguous, and needed no explanation, in either mortgage. It was not claimed that any mistake was made in the drafting of the mort gages in the references to the sections or townships in which the logs described therein were cut, or that Rhodes & Lynch cut any logs upon any other than section 17-17-3. Mr. Cogswell was permitted to testify that, as to the mortgage to the Commercial Bank, he had only about 1,200,000 feet from section 10-16-3, and that in stating the amount at two or three million feet he-made the balance up from the Rhodes & Taylor logs and from the Rhodes & Lyuch logs. He also testified that the McCausland mortgage included all these logs. This-testimony was incompetent, but it was also not consistent. If the Rhodes & Lynch logs were meant to be included in the McCausland mortgage, why were they not mentioned, as were the Rhodes & Taylor logs? And if the latter logs, as well as the'Rhodes & Lynch logs, were meant to be included in the bank mortgage, why were they not mentioned independently of the other logs, as they were in the first mortgage? It will not do, in a description as clear and specific as each of these was, to allow the mortgagor or mortgagee, in a contest with third parties, to come in and swear that the description was intended to cover other property not mentioned in such description. The verdict in this case should have been for the defendant, as the court should have instructed the jury that the title to the logs in dispute never passed to Cogswell.
It is not necessary to inquire whether the drafts' taken were intended to be given and received in payment of the $4 per thousand. But one thing is certain, — Rhodes & Lynch obtained no money through them, nor did any one else get any benefit from them. And neither Cogswell nor any one else will lose anything through them under our ruling. If the judgment below was permitted to stand, Rhodes & Lynch would lose about $2,800 by the drafts, and somebody would get that amount, without paying any value therefor, and without right.
The judgment of the court below is reversed, and a new trial granted, with costs of both courts to defendant.
The other Justices concurred. | [
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Cahill, J.
The question in .this case involves a construction of circuit court rules 85 and 86, relating to the settlement of bills of exceptions.
On July 9, 1890, the plaintiff recovered a verdict in the Saginaw circuit court against the Liverpool & London & Globe Insurance Company for $951.29. On the same day an order was made in the case extending the time to July 24, 1890, for either party to move for judgment on the verdict, or for a new trial, or to settle a bill of exceptions. On July 24, a motion by defendant for a new trial was heard, and denied, and a judgment entered on the verdict. On the same day an order was entered extending the time to settle a bill of exceptions to and including October 1 following.
The June term of court, at which the cause was tried, was extended from time to time until September 30, 1890. Court convened for the October term on October 6, andón that day defendant’s counsel presented a bill of exceptions for settlement. Plaintiff’s counsel objected to a settlement of the bill, on the ground that the time within which to settle it had expired October 1. It was claimed by defendant’s counsel that the bill had been prepared and ready for settlement before October 1, but had not been presented for settlement before, because they had understood that the time had been extended to the first day of the October term, instead of the 1st day of October. The circuit judge returns that this claim of defendant’s counsel was not questioned, and, believing it to have been made in good faith, he decided to and did make another order extending the time %0 days within which to settle the bill of exceptions. This is the order complained of, and we are asked to require the circuit judge to vacate it. We have declined to do so.
Circuit court rule 85 provides that a bill of exceptions shall, when prepared, be noticed for settlement during the term at which the trial was had, unless the court or circuit judge shall otherwise order. In this case the court did otherwise order. Rule 86 provides as follows:
“ At or before the time specified for settling such bill of exceptions, the party alleging such exceptions shall serve a copy thereof on the opposite party, who may propose amendments thereto in writing, and the same shall thereupon, or at such other time as he shall appoint, be settled by the judge according to the facts, and signed by him,” etc.
It was claimed by relator that, as the order of July 2i did not extend the time for settling the bill into the next term, the court had no jurisdiction to again extend the time, and that the case of White v. Campbell, 25 Mich. 463, did not apply. ¥e do not consider the particular language used by the Court in the case just referred to as indicating that special stress was laid upon the fact that the first extension of time had been into the succeeding term. There is nothing in the rule or practice to indicate that that fact was important. That happened to be the time to which the time had been extended in that case. The doctrine laid down in that case was that when the court had, during the. term at which the case was tried, regularly extended the time for settling a bill of exceptions, the judge had full authority to settle the same at any time thereafter, at his discretion. The fact that the time limited in a previous order has expired does not deprive the court of jurisdiction. The same rule had been adopted, although not so clearly stated, in the earlier case of People v. Littlejohn, 11 Mich. 60.
Those cases rule this one, and the mandamus will be denied.
Ohamplin, C. J., Morse and Grant, JJ., concurred. | [
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Cahill, J.
On April 21, 1890, William W. Hannan began his suit in assumpsit by summons in the Wayne circuit court against the relators and one Nellie S. Evans, claiming $5,000 damages. The summons was personally served on Nellie S. Evans, April 24, 1890, and was returned not s'erved as to relators.
On May 21, 1890, William W. Hannan filed his affidavit with the clerk of said court for a writ of garnishment against Aaron C. Fisher, in which he set forth that he had good reason to believe, and did believe, that Aaron C. Fisher was indebted to each of said defendants severally in a large sum of money, and that Frederick E.. Fisher and Hattie F. Wilson, the relators, were non-residents of Michigan, and resided in the state of Wisconsin, and that Nellie S. Evans resided in said Wayne county, Mi'ch. On the same day a writ of garnishment was issued against Aaron C. Fisher, and was personally served on him. On May 23, a copy of the summons, and of the return of service thereon, and also of the affidavit and writ of garnishment, and the return of service thereon, together with a notice requiring' them to appear and defend said action within 30 days after service upon them of said copies and notice, were served upon the relators in the-state of Wisconsin.
On June 14, 1890, relators appeared specially by their attorney, and made a motion to set aside the garnishment proceedings, so far as related to them, upon several grounds’. The motion was overruled by the circuit judge, and the proceedings held good. We are asked to review this ruling by mandamus. It will be necessary for us to-notice only one point made in the motion to quash. It-is as follows: The relators moved that the writ of summons and the writ of garnishment and proceedings, by virtue of which they are sought to be brought into court,, be set aside,—
“Because the defendant Nellie S. Evans is a resident-of the county of Wayne, and the defendants Frederick E. Fisher and Hattie F. Wilson only are non-residents, and there is no statutory provision for bringing non-residents into court in the manner attempted while some of the defendants are residents within the jurisdiction.-”
The section of the statute under'which these proceedings are sought to be maintained, being How. Stat. § 8087, is as follows:
“If the plaintiff, in addition to the allegations herein- before required to be contained in tbe affidavit for the writ of garnishment, shall set forth in such affidavit that the principal defendant is a non-resident, or a foreign corporation created in any jurisdiction (naming it), the principal writ (or declaration) and affidavit may be filed of the day of issue, and the writ of garnishment may be served as in ordinary cases; and within sixty days after such service the plaintiff shall cause to be delivered to such non-resident defendant, or to the president, secretary, cashier, or treasurer of such foreign corporation, residing out of this State, or upon any officer, clerk, or agent, residing or to be found within this State, a true copy of the principal writ (or declaration), affidavit, and writ of garnishment, with return of service thereon, and with a written or printed notice attached, signed by the plaintiff or his attorney, and stating that said non-resident defendant or foreign corporation is notified to appear and defend within thirty days after such service, or default will be entered, and judgment taken; and, upon filing an affidavit of such service, further proceedings to judgment may be had as in ordinary personal actions.55
This special statutory provision, allowing the commencement of a suit in this State against a defendant residing in another state, is one which, under the former decisions of this Court relating to special statutory proceedings, cannot be extended to include any cases not within its express provisions. The statute provides only for the case of a non-resident defendant. No provision is made for cases where there are several defendants, some of whom are not non-residents, and who are personally served with process within the jurisdiction of the court. '
In Ford v. Dry-dock Co., 50 Mich. 358 (15 N. W. Rep. 509), we held that a garnishee proceeding could not be commenced where there was more than one defendant, and where it appeared that the garnishee was indebted to only one of such defendants. In Farwell v. Circuit Judge, 62 Mich. 316 (28 N. W. Rep. 859), the decision in Ford v. Dry-dock Co. was reviewed, and its correctness affirmed. By Act No. 128, Laws of 1885, the Legislature amended the garnishee statute, so as to allow proceedings to be commenced where the garnishee was indebted to “the defendant, or any or either of the defendants,” presumably to avoid the difficulties pointed out in the cases just cited.
We are asked by counsel for respondent to construe the section of the statute under which these proceedings are taken as though it read “that the principal defendant or defendants, or either of them, is a non-resident.” We do not feel authorized to interpolate these words into the statute, but must leave that for the Legislature, if it choose so to enlarge the statute.
This disposes of the case, and the writ of mandamus must issue as .prayed for.
The other Justices concurred. | [
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Long, J.
On September 4, 1888, plaintiff was a passenger on defendant’s road from Benton Harbor to Watervliet, and, in alighting from the train at her destination, was seriously and permanently injured, as she claims, through the negligence of defendant’s servants. This action was brought in the Kent circuit court, where, on a trial before a jury, the plaintiff was awarded a verdict and judgment for $13,388.88. Defendant brings error.
On the trial in the court below, the plaintiff’s claim was that, when the train reached Watervliet, the name of the station was called by one of the trainmen; that the train came to a full stop; that she arose from her seat, went forward upon the platform, and down upon the steps of the car, and was in the act of stepping off upon the depot platform when the train, without any warning, suddenly started backward, throwing her down, and breaking her hip; that, before she got off, the conductor at one of the platforms had assisted several passengers off, and every one aboard the train, except the engineer and fireman, supposed the regular stop had been made, and that all the passengers for that point were expected to alight.
On the part of defendant company, it is admitted that the train came to a full stop, but that the engine had gone by -the water tank where they expected to take water, and that the engineer backed the train as quickly as he could operate the engine. The defendant claimed further, and introduced testimony tending to show, that the train on which the plaintiff was a passenger always stopped at the stand-pipe for water; that, as the engineer passed the stand-pipe on that occasion, he reversed his engine and released the brakes so that when the train stopped it would back up immediately; that it was impossible at all times to stop at the immediate point of taking water, and, in the event of running past the point a short distance, the usual and proper course is to back up immediately.
It appeared from the testimony of some of the witnesses that they were standing in the aisle and on the platform of the car at the time the train was moved back, and did not notice the change in motion, or that the train was in motion, until after they had alighted, or had seen the station lights at the depot. Testimony was given by Dr. Stratton and Mr. Lyon that they occupied seats in the chair-car, the one in the rear of the one in which plaintiff was riding; that they got off from the front •end of that oar, and walked in the direction of the rear of the train 25 or 30 feet, when their attention was attracted to the fall of the plaintiff; that they turned and walked back about 10 feet to where she had fallen. It was claimed from this and other evidence that the train was moving backward when the plaintiff attempted to alight, and, in fact, had moved back a car-length when she fell.
The cause was submitted to the jury upon the theory of both the plaintiff and defendant. With their general verdict they returned special findings, which were submitted, as follows:
“ 1. Did the plaintiff, on the occasion in question, attempt to alight from the front end of the car in which she had been riding?
“A. Yes.
“2. Did the bell on the locomotive continue to ring until the final stop had been made?
“A. Yes.”
Defendant, by its counsel, submitted the following questions for special findings, which the court refused to submit to the jury:
“ 1. Did the witnesses Dr. Stratton and Mr. Lyon alight from the front end of the chair-car of the train in question ?
“2. Had they walked in the direction of the rear of the train a distance of about 25 or 30 feet, when their attention was attracted by the fall of the plaintiff?
“3. When the attention of the witnesses Stratton and Lyon was attracted by the fall of the plaintiff, did they return to where she had fallen, and reach the plaintiff in walking a distance of about 10 or 15 feet?”
It is contended here by counsel for defendant that these were proper questions to be submitted, and upon which they had a right to a finding by the jury. The argument made in favor of this contention is that the length of time the train remained at a stand-still was of import anee, inasmuch as their contention was that the train was moving backward, and had actually moved one car-length, at the time the plaintiff attempted to alight, while the-plaintiff contended that the train had come to a full stop-for the purpose of allowing passengers to alight, and she, seeing others alighting, or about to alight, undertook to get off, and just as she was stepping from the car to-the platform the train was suddenly started back, and she was thrown upon the platform, and injured. Counsel for defendant contend that if these questions had been answered in the affirmative by the jury their general verdict could not stand, as such answers would have been a finding, in effect, that the plaintiff- was injured through her own negligence in attempting to step off while the-train was in motion; for that if Dr. Stratton and Mr.. Lyon got off the front end of the car next back, and then walked towards the rear of the train 25 or 30 feetr and, turning around upon seeing plaintiff fall, they reached her by going forward again only 10 feet, it would be a self-evident proposition that the plaintiff did not attempt to get off and step down while the train was at a stand-still, but rather while it was in motion, and had backed nearly a car-length.
The court was in error in refusing to submit these special questions to the jury. They are plain and unambiguous. They call for findings upon questions of fact.. Testimony was given upon the trial tending to support the theory of the defendant that the plaintiff alighted from the train while it was yet in motion. The special questions point to a direct finding upon that branch of the case. Whether or not the plaintiff did alight while the train was in motion was a question of fact for the jury, and upon which the defendant had the right to a special finding. The questions presented the main issue in the case. While the court in its general charge very fairly presented the defendant’s theory, upon this branch of the case, yet the statute gives the right to either party upon the trial to present questions of fact for the finding of the jury, and, if the questions propounded are presented in unambiguous form, and relate to the questions of fact in issue, the court has no right to ignore them. Harrison v. Railroad Co., 79 Mich. 409.
The court instructed the jury as follows:
“If the jury find that, at the time of the accident, the servants of the defendant brought the train into the station in the usual way, but that, not being able to stop the train at the usual place, it ran by a short distance, and that the engineer reversed his engine and caused the train to back up to the proper place at the station without delay, and as quickly as it could be done, and that this was the usual, customary, and proper way of operating the train, then the defendant would not be guilty of negligence for operating the train in that manner, unless that the stop referred to was so made and for such a length of time as to indicate that it was an invitation to passengers to alight, and the movement' backward was made without warning while the plaintiff was in the act of alighting in response to such invitation.
“If the plaintiff, with the mistaken belief, at the time she arose from her seat for the purpose of leaving the train in question, that it had come to a stop for the purpose of enabling passengers to alight, when in fact the train had not come to a stop, but was running so smoothly and noiselessly that the passengers could only distinguish it by comparison with standing objects; that it ran past the usual stopping place a short distance, when its motion was instantaneously reversed, but so noiselessly and smoothly that the passengers standing in the aisles or on the platform on the cars could not and did not distinguish the stopping or change in motion; and while in such backward motion the plaintiff, seeing other passengers alighting,- or preparing to alight, supposing the train had actually halted for the purpose of enabling the passengers to alight therefrom, attempted to alight therefrom before the train had halted in its backward movement, and was thereby injured, — then the acts of negligence alleged against the defendant in plaintiff’s declaration have not been, established, and your verdict should be for the defendant.”
It is contended further by defendant’s counsel that the court was in error in refusing to give the following requests to charge:
“9. The running of a railroad train beyond the usual stopping place at the station before coming to a standstill is not negligence per se or as a matter of law, nor is the pause after it was brought to a stop, for a period necessary to reverse the motion so as to back it to its usual stopping place, negligence.
“10. If the jury find that, at the time of the accident, the servants of the defendant brought the train into the station in the usual way, but that, not being able to stop the train at the usual place, it ran by a short distance, and that the engineer reversed his engine and caused the train to back up to the proper place at the station without delay and as quickly as it could be done, and that this was the usual, customary, and proper way of operating the train, then the defendant would not be guilty of negligence for operating the train in that manner.
“ 11. It is shown in the case, by evidence which is undisputed, that it is the proper and usual way in managing a train, in case it runs past the usual stopping place, to immediately reverse the engine, and bring the train to its proper place, and the jury would not be justified in disregarding said evidence, or in coming to a different conclusion in that regard upon their own ideas of the proper and judicious management of the train.
“ 12. It appears from the testimony that it was dark, or becoming dark, at the time of the accident; that neither the defendant nor the conductor or brakeman knew that the train had run past the usual stopping place at the station, or that it was necessary to back up to get the train in proper place. If the jury find this to be the case, then the defendant is not liable for negligence because the plaintiff alighted and was injured while the train was being backed to its proper position.
“13. The plaintiff cannot recover in this action under the declaration in this case, there being a variance between the plaintiff’s allegations in her declaration and the proofs offered on the trial.
“14. The plaintiff cannot recover in this cause under her declaration, because there is a variance between the allegations of said declaration and the proof offered on the trial, in that the declaration alleges that the plaintiff broke her leg, whereas the proof is that the injury was to her hip.
“15. The plaintiff cannot recover under her declaration in this case, because there is variance between the allegations of her declaration • and the proof offered on the trial, in that it is alleged that, when the plaintiff was about to alight from the train, the defendant caused the train to be suddenly and violently started and moved, and that the plaintiff was thereby, with great force and violence, thrown from and off the train to the ground, whereas there is no evidence in the case to sustain said allegation.”
The ninth and tenth requests were substantially given as asked. The court stated to the jury:
“Eailway companies are not insurers of the safety of their passengers. They are only liable when there has been actual negligence of themselves or their servants. The running of a railway train beyond the usual stopping place at the station before coming to a stand-still is not of itself negligence, or not negligence as a matter of law; nor is the pause after it is brought to a stop, for a period necessary to reverse the motion so as to back it to the usual stopping place, negligence, unless the stop is so made and for such a length of time as to indicate that it is an invitation to passengers to alight, and the movement backward is made withoiit warning while they are alighting in response to such invitation.”
The words in italics, however, were added by the court. It is evident that these requests were extracted from the opinion of Mr. Justice Andrews in Taber v. Railroad Co., 71 N. Y. 492. In that case it was further said by the learned justice:
“ But the fact that the train over-shot the station, rendering it necessary after it came to a stand-still to start it back to the usual stopping place, in connection with the other circumstances, made it a question for the jury whether, in the exercise.of reasonable care and prudence, the defendant should not have given notice to pas sengers desiring to alight at the station that the train had not come to a final stop, and that it would back up.”
The modification, therefore, made by the trial judge, left the question as one of fact for the jury, whether the circumstances warranted the engineer in backing his train without notice to those alighting. There was no error in this modification. From the plaintiff’s testimony, the jury might well, under the circumstances, say that she was free from negligence in attempting to alight as she did. The defendant was bound to take notice, under the circumstances stated, that the passengers would attempt to alight, and, if the stop was of sufficient length of time to allow it, some of them would be in the act of alighting when the train started back. If, therefore, the stop was of such duration, it would be negligent in starting back without some warning. Wood v. Railway Co., 49 Mich. 372 (13 N. W. Rep. 779); Stone v. Railway Co., 66 Id. 77 (33 N. W. Rep. 24). The question was fairly submitted to the jury.
In Keating v. Railroad Co., 49 N. Y. 673, it appears that plaintiff attempted to get upon a train at the station at Niagara Falls. The train was standing still, partly filled with passengers. As the plaintiff stepped upon the steps of the car, the train, without any signal or notice* and without any examination by those in charge to ascertain whether any one was getting on or off, was started with a violent jerk, which threw plaintiff from the car. It was held that the question of negligence was for the jury. This rule is also laid down in Van Horn v. Railroad Co., 38 N. J. Law, 133; Railroad Co. v. Kilgore, 32 Penn. St. 292.
The questions raised under the remaining requests relate to the variance between the declaration and the proofs. There is no such variance as claimed, and the question need not be discussed. The court properly refused the requests.
Some question is made upon the charge of the court relative to the measure of damages. But, as it was said by plaintiffs counsel upon the argument here, a reading of that portion of the charges is the only answer necessary to refute the claims of error. The court charged upon that branch of the case as follows:
“In this action, which is a single wrongful act, the plaintiff, if she has shown herself entitled to recover, is entitled to recover all damages which she has suffered up to the time of the trial, and for all damages which 'it is reasonably probable that she will sustain in the future, not exceeding, in all, the amount claimed in the declaration, and that has been stated to be $20,000.
“In estimating the compensatory damages in cases of this character, all the consequences of the injury, future as well as past, are to be taken into consideration, including the bodily pain which is shown by the proof to be reasonably certain to have naturally resulted from the injury. The injured party, when entitled to recover, should be awarded compensation for all the injuries, past and prospective. These are intended to include and embrace indemnity for actual nursing and medical expenses; also for loss of power, or loss of capability to perform ordinary labor, or capacity to earn money, and reasonable satisfaction for loss of physical powers. The elements of damages which the jury are entitled to take into account consist of all effects of the injury complained of, consisting of personal inconvenience, the sickness which the plaintiff endured, the loss of time, all bodily and mental suffering, impairment of. capacity to earn money, the pecuniary expenses, the disfigurement or permanent annoyance which is liable to be caused by the deformity resulting from the injury; and, in considering what would be a just sum in compensation for the sufferings or injury, the jury are not only at liberty to consider the bodily pain, but the mental suffering, anxiety, suspense, and fright may be treated as elements of the injury for which damages, by way of compensation, should be allowed. And as these last-mentioned elements of damage are, in their very nature, not susceptible of any precise or exact-computation, the determination of the amount is committed to the judgment and good sense of the jury. And if you find for the plaintiff, such sum should be awarded as will fairly and fully compensate her for all damages which she has sustained consisting of the elements referred to, not exceeding in amount the sum claimed in the declaration."
We see no error in this charge. It is fully supported by the rulings of this Court in Geveke v. Railroad Co. 57 Mich. 596 (24 N. W. Rep. 678); Power v. Harlow, Id. 116 (23 N. W. Rep. 610).
It is further contended that the court erred in permitting the plaintiff to testify as to the costs and expense of her trip to La Porte, Ind., and the medical treatment which was given her at the time of her attendance there. The reason of this objection, stated by counsel, is that-this treatment was not necessary or usual for an injury of this kind, and that, by permitting this testimony, the court allowed the jury to charge the defendant with the entire expenses of the trip, her board and medical treatment from December 5 until May 28, following, at the rate of $21.50 ¡3er week, including the board of her sister. There was evidence tending to show that the injuries which she received resulted in produced atrophy of the muscles, and it was thought by her physicians that the electrical treatment which would be given at La Porte might relieve that difficulty. It appeared that the injury was in the thigh, and the indications of the injury, as testified by Dr. Lawrence, were that of an intra-capsular fracture, causing a shortening of the limb and atrophy of the muscles. The plaintiff suggested going to La. Porte, and Dr. Lawrence told her it would be a good idea, and tha,t it might improve her general health, and indirectly help the health of the muscles. It appears that she was suffering at that time to such an extent from these injuries that she was bedridden, and her general health greatly impaired. She went to La Porte and took this treatment. Her health and general condition was such that an attendant, or nurse, was necessary. She was entitled, as a part of her damages, to recover whatever was a reasonable and necessary outlay in her attempt to be cured of the injuries resulting from the negligence of the defendant. It cannot be said, under the circumstances, that this was an unreasonable expenditure. The testimony was properly received. The plaintiff, as it appears, is permanently crippled, and compelled to use a cane or crutch to get about .with, or to depend upon some one to assist her.
For the error pointed out, the judgment of the court • below must be reversed, with costs, and a new trial ordered.
The other Justices concurred.
On a second trial plaintiff recovered a verdict of $15,000. | [
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Long, J.
This action was brought in the Muskegon circuit court against defendant Maud Anderson, a liquor dealer in the village of Holton, Muskegon county, and the defendants Badeaux and Blythe, sureties oh her liquor bond, for injuries sustained by plaintiff in her means of support, etc., by reason of the unlawful sale of intoxicating liquors to her husband, an habitual drunkard, by the defendant Anderson, on December 31, 1888. On the trial of the cause a jury awarded the plaintiff $303 damages, for which amount judgment was entered. Defendants bring error.
On the trial the sworn statement of the defendant Anderson, filed with the county treasurer, was received in evidence without objection. Evidence was 'also given showing the execution of the liquor bond, the genuineness of the signatures of the bondsmen, as well as of the signature of the magistrate before whom the sureties justified, the fact that such magistrate was legally qualified, the genuineness of the signature of the township clerk whose name is indorsed upon the bond, and the fact that he was township clerk at that time, and the fact that the bond was filed in the office of the county treasurer of Muskegon county, May 7, 1888, by the then treasurer. Evidence was also given showing that defendant Anderson, after filing the bond with the county treasurer and paying the tax, engaged in the liquor business at Holton, in May, 1888, and continued in that business up to the time of the unlawful sale of the liquor, and of the sale, and consequent injury, and the damage sustained.' The liquor bond, with indorsements thereon, was then produced and offered in evidence. The bond and affidavit of sureties are in the form prescribed by the statute. On the bond is the following indorsement:
“ Liquor bond of Maud Anderson. Sureties, William Badeaux and William Blythe. ■
“The within bond of Maud Anderson, with sureties named therein, was approved by the township board of the township of Holton at a meeting held May 4, 1888.
“ B. J. Nash,
“ Township Clerk.
“Filed May 7, 1888. Martin Waalkes,
“ County Treasurer.”
Counsel for the defendants objected to the reception of the bond on the ground that it had not been shown that it had been approved by the township board of Holton, and that the clerk’s certificate was insufficient for that purpose. This objection was overruled. The plaintiff having rested without any other showing as to the action of the township board, defendants’ counsel moved the court to strike out such bond, affidavits, etc., upon the grounds above stated. This was denied. This ruling of the court constitutes the only ground of error claimed.
The action was brought under Act No. 313, Laws of 1887, section 8 of which provides that—
“Such bond shall not be received by the county treasurer unless the approval thereof by the township board or the board of trustees, the council or common council of the village or city, shall be duly certified thereon in writing by the clerk or recording officer of such township, village, or city,” etc.
It is contended by the counsel for the defendants that the" certificate of the township clerk by this act is not made evidence for any purpose except the guidance of the county treasurer, and is not made evidence at all before a judicial tribunal where the legal question is, “Has the bond been actually and legally approved?” It is not pretended that the bond was not approved, or that the records would show defective action, or no action at all, on the part of the township board, but that proof of the execution by the principal and sureties, justification of the sureties, depositing with the county treasurer, together with the certificate of the township clerk that the same was duly approved by the township board, do not furnish prima facie evidence of the approval of the bond. We cannot agree with counsel in this contention. The purpose of this provision of the act of 1887 was to make the certificate of the clerk authentic evidence of the action of the body approving the bond, and the court was not in error in receiving it in evidence.
Counsel cites, in support of his position, the case of Garrison v. Steele, 46 Mich. 98. That action was brought under Act No. 193, Laws of 1877. The question raised here did not arise in that case. It was claimed in that case that the bond was never approved by the common council of Bay City. Proofs were offered showing that fact. The bond, as offered in evidence, had upon it a brief approval signed by the recorder; and this appearing, the defense were permitted to show that the hond had never been in fact approved. The defense to the action was rested on the ground of want of penalty stated in the bond and of approval. The statute of 1877 did not provide who should make this certificate of approval. It simply provided that the county treasurer should not receive the bond, unless the approval of the township board, etc., should be indorsed thereon in writing. The statute of 1887, under which this action is brought, it is seen, makes it the duty of the township clerk to certify to the approval, and the county treasurer is to receive it when such certificate appears indorsed thereon.
The judgment must be affirmed with costs.
The other. Justices concurred. | [
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35
] |
Grant, J.
The defendant owns and operates an electric railway upon Dix avenue, in the city of Detroit, under authority granted hy the city. At the time of the accident complained of, the street was not paved; the track was laid in the center, and was several inches higher than the roadway upon either side, thereby rendering it somewhat difficult for persons to drive from one side to the other, except at the street crossings. The situation of Dix avenue, and of the streets crossing it near where the accident occurred, is shown by the diagram on following page.
The land in the vicinity was open common, except three houses situated at the corner of Dix and Military avenues. Plaintiff had his horse and buggy, and was driving on the right-hand side of the street. His statement is substantially as follows: He had crossed Campbell avenue, and was within about 75 feet of Cavalry avenue, when he saw the cars coming around the bend, about 350 feet distant. He stopped his horse, put up his hand as a signal to stop the train, jumped out of his buggy, and took his
N.
horse by the head. He judged that the cars were about half-way down when he caught his horse by the head, and that they were slowing down. The horse began to exhibit signs of fear, and he led him across the sidewalk into the open field. The horse dragged plaintiff around the open field, and finally turned, and dragged him across the street onto the track, where plaintiff fell and was injured, and the horse ran away. When the horse began to run with the plaintiff, the cars, according to his own testimony, were about 150 feet distant, and slowing down, and stopped before reaching the point in the street where plaintiff stopped his horse.
The testimony on the part of the defense was that the person in charge of the cars saw plaintiff when about 400 feet distant; that he saw signs that the horse was frightened; that he rung the gong when nearing the bend, which statement is not disputed; that he ran slowly for about 250 feet, when he brought the cars to a stop; that the horse did not cross the track, but that he came back over the sidewalk into the street, then turned around and ran across the sidewalk again into the open lot; that plaintiff stumbled on the sidewalk as the horse was going over it the second time; and that all usual and necessary precautions were taken by the defendant's servants.
The negligence alleged is that defendant did not observe sufficient caution in coming around the bend to alarm plaintiff, so as to enable him to avoid the trouble complained of; but that, without notice, and at a great rate of speed, it caused its cars to come suddenly around the bend as plaintiff was approaching. There is no evidence that any other notice than the noise produced by the running of the cars and the ringing of the gong would have been of any avail, nor that those were not sufficient. Plaintiff has not even suggested the necessity of any other notice. But any question of notice is eliminated from the case by the plaintiff's own testimony. He was familiar with the situation. He had driven there before, and had had trouble with other horses. He was on the outlook, and saw the cars as soon as they reached the bend. Any additional noise for the purpose of giving notice would certainly have tended to increase his horse's fright, without being of any possible use.
The record fails to show negligence on the part of the defendant. The rate of speed is not shown to have been unusual, or excessive. The horse evidently became restive and somewhat frightened when the cars first appeared in sight, 350 to 400 feet distant. Defendant's servants in charge of the cars were not under obligations to immediately stop them. They had fulfilled their duty by commencing to run more slowly. If such companies were obliged to stop their cars at that distance upon seeing a horse, with his owner holding him by the head, in apprehension of fright, or in actual fright, they could not meet the demands of the requirements of public travel. The defendant had an equal right to the use of the street with its oars as plaintiff with his horse. Each was bound to exercise due care and caution; and this the defendant did. It was evidently the sight of the moving ■cars, not their speed, that frightened the horse. They were from 150 to 200 feet distant when plaintiff and his horse went over the sidewalk into the common. It is difficult to see how the defendants servants were under any legal obligation to act differently from what they did.
The plaintiff is not entitled to recover on his own statement. He took his horse, three years old, which was unused to the place or the cars, and for the purpose of trying him. He testified: “I never had the horse there before. I wanted to see how he acted.” He knew the danger of his horse becoming frightened, and yet he' took him into this dangerous place knowing that the cars were coming. There was ample opportunity for him to have turned into another street where there was less danger in subjecting his horse to the sight of, the cars. It was also admitted upon the hearing that there were other streets by which he might have reached his destination. It is common knowledge that such vehicles, when first seen in motion, have a tendency to frighten animals. When one deliberately drives into such a place as this was, with a full knowledge of the situation and danger, for the express purpose of testing his horse, he is guilty of contributory negligence, and, under the decisions of this Court, is not entitled to recover. This disposal •of the case renders it unnecessary so discuss the other assignments of error.
The judgment must be reversed, and a new trial ordered, with costs of both courts.
The other Justices concurred. | [
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Cahill, J.
The complainant commenced summary proceedings before a circuit court commissioner to recover possession of the N.'W. £ of the N. E. £ of section 18, in the township of Sumner, Gratiot county, Michigan, where he had judgment. The defendant appealed the case to the circuit court, where a trial was had before the judge without a jury. No special finding was asked, and none was made. A judgment was rendered in favor of the defendant. A bill of exceptions was thereupon settled, and the case brought to this Court by writ of error.
The complainant claims title through an execution sale made on a judgment recovered by him against Jeremiah A. Sprague, for $179.04 damages, and $22.94 costs. The execution levy was made on September 8, 1887; the premises were sold on November 5, following, and bid in by complainant, to whom the sheriff gave his certificate of sale, presumably bearing the same date. On February 11, 1889, the premises not being redeemed, the sheriff made and delivered his deed to the complainant as such purchaser, according to the statute.
The defendant claims title by mesne conveyance from Edwin A. Sprague, a son of Jeremiah Sprague, who, it is claimed by the defendant, was the real owner of the land in question, and 'in the actual possession of the same, at the time of complainant's levy, and defendant claims a right to the land by paramount title to that of complainant, under the following circumstances:
It is claimed that on March 21, 1887, Jeremiah A. •Sprague, being the owner of the land, sold and undertook to convey the same to his son Edwin A. Sprague, but that, by mistake he conveyed to him the N. E. ¿ of the N. E. ¿, which he did not own, instead of the N. W. i of the N. E. that at the time of such conveyance Jeremiah and his son Edwin were living on the land, but that some time after Jeremiah, who had been a widower, remarried, and went to live with his wife on another piece of land, leaving his son Edwin and his family in possession of the land in question. The mistake in the deed of March 21, was not discovered until after complainant's levy of September 8. On September 19, Jeremiah executed a quitclaim deed to Edwin, which contained this clause:
“This deed is executed to perfect the title of Edwin A. Sprague to the lands described herein, which lands were supposed and intended between the parties to have been conveyed by deed dated March 21, 1887, and recorded in liber 67, page 468.''
On February 18, 1888, Edwin A. Sprague conveyed the premises in question to Sarah Paddock. On March 3, 1888, Sarah Paddock conveyed to M. Y. Smith, and on January 23, 1888, M. Y. Smith conveyed the premises by warranty deed to the defendant.
It will be noticed that the deed from M. V. Smith to defendant was prior to the conveyance from Sprague to-Paddock, and from Paddock to M. V. Smith. This is accounted for by the fact .that on September 13, 1887, Edwin A. Sprague had conveyed the premises in question to one Samuel T. Morgan. After the execution of this deed, Edwin A. Sprague refused to give possession under it, or to recognize it, claiming that it had been procured by fraud. Morgan, however, on September 16, 1887, conveyed an undivided half interest in the land to M. V. Smith, and . the latter appears to have purchased in the Paddock title as a means of protecting himself against the warranty contained in his deed to the defendant. Defendant paid Smith for the W. of the N. E. |- $2,200, and defendent claims that it was agreed that he should take the premises subject to a $1,200 mortgage on them, and the taxes of 1887-88, and that Smith should procure a release of complainant's levy on the north 40.. Under this arrangement the deed was not delivered on January 23, 1888, but was deposited in a bank, until Smith should procure such a release, when it was to be delivered. Afterwards, and on January 28, 1888, Smith and defendant entered into a different arrangement, whereby Smith agreed to indemnify defendant against the-levy by executing to the defendant a mortgage on certain lands in Midland county, conditioned that Smith should procure a release and discharge of the levy within one year from that date. Defendant claims that, at the time the deed was deposited in the bank, it contained no mention of the levy, but after the execution of the mortgage by Smith to defendant, and before the deed was delivered, Smith wro'te in the deed, as a limitation upon the covenants against incumbrances therein, the words: “Except a certain levy filed September 8, 1887." But defendant says that it was not intended or agreed between himself and Smith that he should take said premises subject to the levy, or that he was obligated to pay it off.
On the trial in the circuit court, the evidence of the defendant in regard to the circumstances under which the deed from Smith to him was executed and delivered, and the clause concerning the levy inserted, was objected to by complainant upon the ground that the defendant was estopped by the terms of his deed to deny that the levy was binding upon him. But the evidence was received, and the complainant excepted. At the conclusion of the testimony, the defendant’s counsel requested the court to dismiss the case, for the reason that the evidence disclosed that the defendant did not hold the premises in question under the complainant, but held then adversely to the complainant, and by title adverse, hostile, and paramount, and. that such title could not be litigated in this action. The circuit judge held in accordance with this view.
The judgment of the circuit judge was right. Whatever may be the fact, each party claims to have the paramount title derived from Jeremiah Sprague. Such claims are hostile and adverse, and cannot be tried under How. Stat. § 8295, providing for summary proceedings. Complainant’s counsel claim that defendant is estopped, by the recital in his deed, to make the defense of paramount title. But this inquiry involves of itself the trial of a question of title, which is not cognizable by a circuit court commissioner in these proceedings.
It follows that the judgment of the circuit court must be affirmed, with the costs of all the courts to the defendant.
Champlin, C. J., Morse and Long, JJ., concurred. Grant, J., did not sit. | [
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Cahill, J.
The petitioner seeks to review by certiorari the proceedings taken by the commissioner of highways of the township of Hampton, in Bay county, in altering a certain highway in said township, known as the “ Weber Road.” He claims that the proceedings and the determination of the commissioner are erroneous, and ought to be reversed, for eight different reasons, five of which relate to the regularity of the proceedings by the commissioner, two to the compensation allowed by the commissioner, and one to the right of the commissioner to alter a highway that has been long established.
We have examined the return of the commissioner and clerk, from which it clearly appears that the several errors assigned as 1, 2, 3, 4, and 8 are fully met, and are shown to have no foundation to rest upon. The return is, of course, binding upon us.
The fifth and seventh assignments of error relate to the compensation allowed petitioner for taking his land. That question cannot be reviewed in this proceeding, nor in any other manner, except by appeal to the township board.
The sixth error assigned is as follows:
“ That it is incompetent to alter the line of said highway, the boundaries of which have been established between the public and this deponent by a user of twenty-seven years last past.”
Under Act No. 130, Laws of 1873, it was provided that no highway which shall have been in use as such for an uninterrupted period of 10 years shall be discontinued, except by the unanimous vote of all the officers or authorities present at such meeting, approved, in the case of township roads, by the township board or boards. It was to this provision of the statute that the Court referred in the case of Shue v. Highway Com’r, 41 Mich. 638 (2 N. W. Eep. 808). But by Act No. 243, Laws of 1881, the laws relating to the establishment, opening, improvement, and maintenance of highways were revised, and the provision concerning highways that had been in use for 10 years was omitted, except as found in section 15, chap. 1, of that act, which relates exclusively to line roads between townships, or between townships and municipalities. Subdivision 2, § 1, chap. 1, and section 10, chap. 1.
This road is not such a highway as is described in section 15, nor is the purpose of this application to discon tinue a highway, but to straighten it. There is nothing in our present law which forbids the altering of a highway on account of its having been in use for a long, time.
The writ will be quashed, with costs.
The other Justices concurred.
How. Stat. § 1310. | [
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Morse, J.
The defendant, at and before the time this suit was brought, was the manager of a public restaurant in the city of Detroit, and was licensed by that munici pality to conduct such public restaurant. It was to all intents and purposes a public place. On August 15, 1889, the plaintiff, a colored man, in company with a friend, entered this restaurant, and; sitting down at one of the tables provided for that purpose, ordered supper. The plaintiff claims, in substance, that the restaurant was divided in two parts, not separate rooms, but one side or part of the room was known as the “restaurant side,” and the other as the “.saloon side.” The restaurant side was furnished with tables, covered with tablecloths. Glasses were on the tables, with napkins in them, and there was an electric fan over the- tables. The tables had a very neat appearance. The tables on the saloon side were furnished with beer glasses, and were beer tables such as are usually, found in saloons. The plaintiff testifies that he and his friend sat down .on the restaurant side at the first table from the last in the second row, and called for a lunch. The waiter said: “I canJt wait on you here.” Ferguson said: “What do you mean by that?” The waiter replied:
“We cannot serve you kind of people here. It is against the rules of the house to serve colored people in the restaurant. If you want anything to eat, you will have to go on the other side of the house.”
After waiting a few minutes Ferguson went to the office, and said to the defendant, “ Mr. Gies, I came into your restaurant with a friend, and I have been insulted by one of your waiters,” and told Mm what the waiter had said. Gies replied:
“ That is all right. That is the rule of this, house, if you want anything to eat.”
They had some conversation, which ended by defendant saying to plaintiff that he would get nothing to eat unless he went on the other side. Plaintiff asked if he could not sit at the table adjoining, or at any of the tables behind him, which were empty, but the defendant refused to serve him at any of the tables on that side of the room. Plaintiff went away without eating anything. While he was sitting at the table, several white persons came in, sat down, and had refreshments at different tables on the restaurant side of the house.
The defendant admits that he refused to serve refreshments of any kind to the plaintiff at the table where he sat, for no other reason than that Ferguson was a colored man, and that he said to him:
“That is the rule of the house. We cannot serve colored people right at those certain tables.”
But he testifies that he further said:
“Ferguson, there is no use in your waiting here. We cannot serve you at these tables. If you will sit over at the next table in the other row, I will see that you are served there all right, the same as any other person will .be.”
Ferguson said, “No.” There was about six feet between the two rows of tables. Defendant admits also that there was a difference in the tables, being of different shape; that the tables at which he told Ferguson he might be served were at the time uncovered; and that the covers were taken off to accommodate the crowd that came in for beer; but testifies that he told plaintiff he would cover the table, and furnish it the same as the one he was sitting at, and that he should be waited upon and served the samé as those on the other side of the room. Defendant denies that this was in the saloon part of his place. He says it was a part of the restaurant, but situated in a more private place, as the bar would hide them from the view of those in the front part of the place. There was no partition between the tables. They were in the same room, and divided only by space. Colored people were not permitted to sit except in one part of the room, but white men were served wherever they liked.
The circuit judge, Hon. George Gartner, instructed the jury that the plaintiff was entitled, under the law, to full and equal accommodations at' this restairrant with all other citizens; that—
“.All citizens under the law have the same rights and privileges, and are entitled to the same immunities, — it makes no difference whether white or colored. A different idea or principle than this never rested in reason. The reasoning of Chief Justice Taney in his opinion in the Dred Scott Case is now largely and almost universally regarded as fallacious and contrary to the principles of law then claimed to exist. The emancipation of the slaves followed, and then the fifteenth amendment placed the colored citizen upon an equal footing in all respects with the white citizen. Since then, in many of the states, laws have been enacted to modify and overcome the prejudices entertained by many of the white race against the colored race, and to place the latter upon an equal footing with the former, with the same rights and privileges. Thus the Legislature of this State in 1885 passed a law with that object and for that purpose; and in certain instances a denial of such rights is made a crime under the law of this State.”
He further said to the jury that, if they found that the plaintiff was denied full and equal accommodations, the defendant was liable in damages for such denial. So far the learned judge was eminently sound in his reasoning, and correct in his law, but in his application of the law to this particular case he was in error. The jury, under the defendant’s own version of the transaction, should have been instructed to find a verdict for the plaintiff.
In his definition of “full and equal accommodations,” the court said:
“It is claimed by the defendant that he did not refuse to serve the plaintiff, but told him substantially that he would not serve him on that side of the house, but that, if he would go over and take a seat at a table on the other side of the room in the restaurant, he would then serve him in precisely the same manner in which he would be served at the table at which plaintiff had seated himself; and that the rule of the house was not to serve colored persons on that side of the house. Now, gentlemen, the defendant would not have the right to refuse to serve the plaintiff in the restaurant proper; but it is claimed by the defendant that the saloon portion is divided from the restaurant, and that the table at which he requested the defendant to sit was in the restaurant. While the defendant had no right to make a rule providing for an unjust discrimination, still he would have the right, under the law, to make proper and reasonable rules for the conduct of his business, and governing the conduct of his patrons; and whether this was a reasonable rule I will submit to you for determination. Thus, the defendant has the right to reserve certain portions of his business for ladies, and other portions for gentlemen, while he may also reserve other portions for his regular patrons or boarders. He might also, under the law, reserve certain- tables for white men, and others where colored men would be served, providing there be no-unjust discrimination. And this brings me to an explanation of the term which I have used, viz., ‘full and equal accommodations/ By this term ‘full and equal * is not meant identical accommodations, but by it is meant substantially the same accommodation. A guest at a restaurant has no more right to insist upon sitting at a particular table than a guest at a hotel has the right to demand a particular room, as long as the accommodations offered are substantially the same. This is all the law demands and requires, and if you find from the evidence in this case that the defendant offered to -serve the plaintiff in one part of the restaurant proper in the same manner as guests were served in other parts, and that he offered the plaintiff full and equal, although not identical, accommodations, and if you find that the rule made by the defendant did not make an unjust discrimination, but was reasonable, then your verdict must be for the defendant.”
Under this charge, the jury found for the defendant. The fault of this instruction is that it permits a discrimination on account of color alone, which cannot be made under the law with any justice. As far as it relates to the right of a restaurant keeper to make rules and regulations based upon other considerations, the charge is of no concern in this case, and we shall not express any opinion as to its correctness. But in Michigan there must be and is an absolute, unconditional equality of white and colored men before the law. The white man can have no rights or privileges under the law that are denied to the black man. Socially people may do as they please within the law, and whites may associate together, as may blacks, and exclude whom they please from their dwellings and private grounds; but there can be no separation in public places between people on account of their color alone which the law will sanction.
We have been cited to a large number of cases upholding the doctrine enunciated by the trial judge. It has been held that separate schools may be provided for colored children, if they are reasonably accessible and afford substantially equal educational advantages with those provided for white children. State v. McCann, 21 Ohio St. 198; Bertonneau v. Directors, 3 Woods, 177; Ward v. Flood, 48 Cal. 36, 45; Cory v. Carter, 48 Ind. 327; Roberts v. Boston, 5 Cush. 198; People v. Baston, 13 Abb. Pr. (N. S.) 159; Dallas v. Fosdick, 40 How. Pr. 249; U. S. v. Buntin, 10 Fed. Rep. 730; People v. Gallagher, 93 N. Y. 438. It has also been held that common carriers may provide different cars or separate seats for white and colored persons, if such cars or seats are equal in comfort and safety one with the other. Railroad Co. v. Miles, 55 Penn. St. 209; The Sue, 22 Fed. Rep. 843; Logwood v. Railroad Co., 23 Fed. Rep. 318; Railroad Co. v. Wells, 85 Tenn. 613; Murphy v. Railroad Co., 23 Fed. Rep. 637, 640; Railway Co. v. Williams, 55 Ill. 185. In Day v. Owen, 5 Mich. 520, this same principle was recognized; but it must be remembered that the decision, as in the- case of Roberts v. Boston, 5 Cush. 198, was made in the ante bellum days, before the -colored man was a citizen, and when, in nearly one-half of the Union, he was but a chattel. It cannot now serve as a precedent. It is but a reminder of the injustice and prejudice of the time in which it was delivered. The negro is now, by the Constitution of the United States, given full citizenship with the white man, and all the rights and privileges of citizenship attend him wherever he goes. Whatever right a white man has in a public place, the black man has also, because of such citizenship.
But this is not all. In 1885 the Legislature of this State, by Act No. 130, enacted:
“ Section 1. That all persons within the jurisdiction of this State shall be entitled to the full and equal accom■modations, advantages, facilities, and privileges of inns, restaurants, eating-houses, barber-shops, public conveyances on land and water, theaters, and all other places of public accommodation and amusement,* subject only to the conditions and limitations established by law, and applicable alike to all citizens.
“Sec. 2. That any person who shall violate any of the provisions of the foregoing section by denying to any citizen, except for reasons applicable alike to all citizens of every race and color, and regardless of color or race, the full 'accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not to exceed one hundred dollars, or shall be imprisoned not more than thirty days, or both.”
Section 3 provides that there shall be no discrimination on account of race or color in the selection of grand and petit jurors.
This statute exemplifies the changed feeling of our people towards the African race, and places the colored man upon a perfect equality with all others, before the law in this State. Under it, no line can be drawn in the streets, .public parks, or public buildings upon one side of which the black man must stop and stay, while the -white man may enjoy the other side, or both sides, at his will and pleasure; nor can such a line of separation be drawn in any of the public places or conveyances mentioned in this act.
But it is claimed by the defendant’s counsel that this statute gives no right of action for civil damages; that it is a penal statute; and that the right of the plaintiff under it is confined to a criminal prosecution. The general rule, however, is that where a statute imposes upon any person a specific duty for the protection or benefit of others, if he neglects or refuses to perform such duty, he is liable for any injury or detriment caused by such neglect or refusal, if such injury or hurt is of the kind which the statute was intended to prevent; nor is it necessary in such a case as this to declax*e upon or refer to the statute. The common law as it existed in' this State before the passage of this statute, and before the colored man became a citizen under our Constitution and laws, gave to the white man a i-emedy against any unjust discrimination to the citizen in all public places. It must be considered that, when this suit was planted, the colored man, under the common law of this State, was entitled to the same rights and privileges in public places as the white man, and he must be treated the same there; and that his right of action for any injury arising from an unjust discrimination against him is just as perfect and sacred in the courts as that of any other citizen. This statute is only declaratory of the common law, as I understand it now to exist in this State.
Any discrimination founded upon the race or color of the citizen is unjust and cruel, and can have no sanction in the law of this State. The cases which permit in other states the separation of the African and white races in public places can only be justified on the priuci pie that God made a difference between them, which difference renders the African inferior to the white, and naturally engenders a prejudice against the African, which makes it necessary for the peace and safety of the public that the two races be separated id- public places and conveyances. This doctrine which runs through and taints justice in all these cases is perhaps as clearly and ably stated in Railroad Co. v. Milos, 55 Penn. St. 212, as anywhere. In that case, Judge Agnew says:
“If a negro take his seat beside a white man, or his wife or daughter, the law cannot repress the anger or conquer the aversion which some will feel. However unwise it may be to indulge the feeling, human infirmity is not always proof against ««it. * * To assert separateness is not to declare inferiority in either. It is not to declare one a slave, and thé other a freeman. That would be to draw the illogical sequence of inferiority from difference only. It is simply to ’say that, following the order of Divine Providence, human authority ought not to compel these widely-separated races to intermix. The right of each to be free from social contact is as clear as to be free from intermarriage. The former may be less repulsive as a condition, but not less entitled to protection as a right. When, therefore, we declare a right to maintain separate relations as far as is reasonably practicable, but in a spirit of kindness and charity,. and with due regard to equality of rights, it is not prejudice nor caste, nor injustice of any kind, but simply to suffer men to follow the law of races established by the Creator himself, and not to compel them to intermix contrary to their instincts.”
This reasoning does not commend itself either to the heart or judgment. The negro is here, and'brought here by the white man. He must be treated as a freeman or a slave; as a man or a brute. The humane and enlightened judgment of our people has decided — although it cost blood and treasure so to determine — that the negro is a man; a freeman; a citizen; and entitled to equal rights before the law with the white man. This decision was a just one. Because it was divinely ordered that the skin •of one man should not be as white as that of another furnishes no more reason that he should have less rights and privileges under the law than if he had been born white, but cross-eyed, or otherwise deformed. The law, as I understand it, will never permit a color or misfortune, that God has fastened upon a man from his birth, to be punished by the law unless the misfortune leads to some contagion or criminal act; nor while he is sane and honest can he have less privileges than his more fortunate brothers. The law is tender, rather than harsh, towards all infirmity; and, if to be born black is a misfortune, then the law should lessen, rather than increase, the burden of the black man’s life.
The prejudice against association in public places with the negro, which does exist, to some extent, in all communities, less now than formerly, is unworthy of our race; and it is not for the courts to cater to or temporize with a prejudice which is not only not humane, but unreasonable. Nor shall I ever be willing to deny to any man any rights and privileges that belong in law to any other man, simply because the Creator colored him differently from others, or made him less handsome than his fellows, —for something that he could not help in the first instance, or ever afterwards remove by the best of life and human conduct. And I should have but little respect or love for Deity if I could for one moment admit that the color was designed by Him to be forever a badge of inferiority, which would authorize the human law to drive the colored man from public places, or give him less rights therein than the white man enjoys. Such is not the true theory of either the Divine or human law to be put in practice in a republican form of government, where the proud boast is that “all men are equal before the law.’’ The man who goes either by himself or with his family to a public place must expect to meet and mingle with all classes of people. He cannot ask, to suit bis caprice or prejudice or social views, that this or that man shall be excluded because he does not wish to associate with them. He may draw his social line as closely as he chooses at home, or in other private places, but he connot in a public place carry the privacy of his home with him, or ask that people not as good or great as he is shall step aside when he appears. All citizens who conform to the law have the same rights in such places, without regard to race, color, or condition of birth or wealth. The enforcement of the principles of the Michigan civil rights act of 1885 interferes with the social rights of no man, but it clearly emphasizes the legal rights of all men in public places.
This idea of the equality of the races before the law was also shown in the legislation of 1867, .relative to public schools, which declared that—
“ All residents of any district shall have an equal right to attend any school therein.” Act No. 34, Laws of 1867.
This legislation was construed by this Court as an act to prevent the exclusion of colored children from any public schools in the State, although separate schools for the education of blacks, and whites might exist, where the accommodations and advantages of learning were fully equal one with the other. People v. Board, 18 Mich. 400. Our holding in the present case is also supported by the following authorities: Coger v. Packet Company, 37 Iowa, 146; Clark v. Directors, 24 Id. 267; People v. Board, 101 Ill. 308; Chase v. Stephenson, 71 Id. 383; Messenger v. State, 25 Neb. 674; Baylies v. Curry, 128 Ill. 287; Board v. Tinnon, 26 Kan. 1; Railroad Co. v. Green, 86 Penn. St. 421; Donnell v. State, 48 Miss. 680; Decuir v. Benson, 27 La. Ann. 1. See, also, the able dissenting opinion of Danforth, J., in People v. Gallagher, 93 N. Y. at pages 458-466, inclusive.
Under the circumstances, as admitted by the defend-ant upon this record, the only question to' have been properly submitted to the jury was the amount of the plaintiff's damages. The judgment is reversed, and a new trial granted, with costs of both courts.
The other Justices concurred.
A second trial resulted in a verdict for the plaintiff of nominal damages. | [
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] |
Cahill, J.
This action was brought in justice’s court by plaintiff, as indorsee, against the defendant, as maker, of a promissory note, which, with its indorsements, reads as follows:
“$173.71. Muskegon, Mich., Aug. 15, 1884
“ Sixty days after date I promise to pay to the order of Arthur Meigs & Co. one hundred seventy-three and 71-100 dollars at Lumberman’s Nat. Bank, with interest at the rate of ten per cent, per annum. Value received. Secured by chattel mortgage of even date.
“Henry Principaal.”
INDORSEMENTS.
“Pay to the order of Orrin E. Norcross, without recourse.
“Arthur Meigs & Co.,
“ By Delano & Bunker,
“Their Agents and Attorneys.”
“Pay to the order of Lyman Newton, without recourse.
“ O. E. Norcross.”
The plaintiff had judgment, and the defendant appealed. In the circuit the plaintiff again had judgment. The defendant brings error.
The return of the justice shows that the pleadings before him were as follows:
“Plaintiff declares on the common counts in assumpsit. Defendant pleads the general issue.”
Nothing appears in the return of the justice relating to a promissory note, nor does it appear that the plaintiff recovered upon any such note. On the trial in the circuit, when the note was offered in evidence, the defendant objected that the note was not admissible in evidence without proof of two facts—
1. The execution of the note by the maker.
2. The authority of Delano & Bunker to indorse the names of Arthur Meigs & Co., the payees of the note.
No proof was given tending to show the execution of the note by the maker, but counsel for plaintiff seems to have proceeded upon the idea that it was unnecessary. This would have been true if the note had been filed with the justice, but there is nothing in this record to show that the note in suit was so filed, or that the defendant ever had an opportunity to deny the execution of the note in justice’s court, or in the circuit, until it was offered in evidence on the trial. In such case the plaintiff cannot have the benefit of the statute, or the rule relieving him of the necessity of proving a written instrument, as it is only in cases where the defendant has been given an opportunity to deny the execution of the note under oath, and has failed to do so, that the plaintiff is not required to prove the execution. How. Stat. §§ 6875, 6928; Colbath v. Jones, 28 Mich. 280; Circuit Court Rule No. 79.
Nor was the note admissible in evidence without proof of the authority of Delano & Bunker to indorse the names of Arthur Meigs & Co. as payees. It was through this indorsement that the plaintiff claimed title to the note, and the burden was upon him to prove it. Spicer v. Smith, 23 Mich. 96; Hinkley v. Weatherwax, 35 Id. 510. An effort was made to supply this proof by evidence that Delano & Bunker had been attorneys for Arthur Meigs & Co. in certain suits pending in Muskegon, involving the property covered by the chattel- mortgage which was given as collateral to the note in question, and that in the settlement of those suits this note was purchased by one Orrin E. Norcross. This evidence was given by Mr. Norcross, and was of necessity almost entirely hearsay. We do not think it had any tendency to show that Delano & Bunker had authority from Arthur Meigs & Co. to indorse their names upon this particular note.
The admission of the note in evidence, under the circumstances, was error, for which the judgment must be reversed, with costs.
The other Justices concurred. | [
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Champlin, C. J.
On December 18, 1888, the F. J. Dewes Brewery Company and Lentz Bros, entered into the following agreement;
“Big Rapids, Mich., Dec. 18, 1888.
“ It is hereby agreed by and between the F. J. Dewes Brewing Company of Chicago, Illinois, and Lentz Brothers, of the city of Big Rapids, Michigan,—
“ 1. That the F. J. Dewes Brewing Company agree to ship to Lentz Brothers all beer ordered by them at the following price, $5.75 per barrel, f. o. b., at Big Rapids, and that the right, title, and interest of said beer is to remain and rest in the F. J. Dewes Brewing Company until sold; and we, the said Lentz Brothers, agree to take the said beer, and pay for the same, on above conditions. Signed in duplicate.
“F. J. Dewes Brewery Company, “per Adolph Boundy, Agt.
“Lentz Brothers."
The F. J. Dewes Brewery Company, under the above contract, sent to Lentz Bros, two car-loads of beer, which was received by them at Big Rapids. After they had sold about one and one-half car-loads, the balance was levied upon by the defendant, as sheriff of the county of Mecosta, and was taken away by him upon an execution in his hands, issued upon a valid judgment in favor of a creditor of Joseph Lentz, one of the members of the firm of Lentz Bros., as his property. The circuit judge instructed the jury that, under the terms of the foregoing agreement, the absolute title to the beer passed at once to Lentz Bros., and was subject to levy and sale upon an execution in favor of the creditors of Lentz Bros., or either of them, and directed a verdict for the defendant.
This ruling raises the only question for our consideration. The writing contains an express condition that the right, title, and interest of the property ordered was to remain and rest in the F. J. Dewes Brewery Company until sold.
The learned judge was of opinion that this condition enabled Lentz Bros, immediately to sell the beer, and convey a good title, divested of any interest of the brewery company, and that the company could not follow the property into the hands of purchasers; that there was a plain understanding contained in the instrument that Lentz Bros, should be permitted to sell, and the fact of sale terminated the condition. The court further considered that, if the contract could be upheld, it would simply put it in the power of Lentz Bros, to do an extensive business, apparently on their own account, thus giving to them a false credit, to which they were not entitled in dealing with others.
There is no testimony before us showing how the credit arose in this case, nor when the indebtedness accrued. It evidently was not- a credit which the firm had acquired by dealing in this way with the brewery company, for it appears as an indebtedness against one of the brothers only, and not the firm. Now, the contract was one which it was competent for the parties to make, unless it was void as being against public policy. The brewery company had a right to say,—
“We will fill your order for beer, which you may sell as you choose, but the title shall remain in us until you do sell, and then the title will pass to the purchaser, in which case we will trust to your personal responsibility to pay us, at the rate of $5.75 a barrel.”
The effect of such contract was that the property not sold remained the property of the company, and the firm owed them for all they had sold. What different is this from a sale of goods upon commission? The factor solicits goods to be sold on commission. The consignor says:
“I will ship you all goods you may order, but you must sell so as to net me so much a bushel or barrel or yard.”
Until sold by the factor the goods remain the property -of the consignor, and are not subject to seizure at the suit of the commission merchant’s creditors. The public are not defrauded in the one'case more than in the other. As in the case of other agents, persons dealing with them must ascertain the extent of their authority at their peril. Wright v. Solomon, 19 Cal. 64. They could not, .any more than a factor who has possession of the goods and sells them in his own name, pledge the beer for their own debt. Newsom v. Thornton, 6 East, 17; Rice v. Cutler, 17 Wis. 351; Hirschorn v. Canney, 98 Mass. 149. There is nothing illegal, immoral, or corrupt in the contract. In effect, it creates á mere agency, in which Lentz Bros, are to take the beer, sell it, and pay over the proceeds to the amount of $5.75 a barrel. They find their remuneration, if at all, in what they can sell it for above that price.
This Court has gone very far in sustaining conditional sales, and has never declared them void, or different from what the parties have intended by their agreement. Couse v. Tregent, 11 Mich. 65; Dunlap v. Gleason, 16 Id. 158; Preston v. Whitney, 23 Id. 260; Johnston v. Whittemore, 27 Id. 463; Whitney v. McConnell, 29 Id. 12; Smith v. Lozo, 42 Id. 6 (3 N. W. Rep. 227); Marquette Manufacturing Co. v. Jeffery, 49 Id. 283 (13 N. W. Rep. 592); Edwards v. Symons, 65 Id 348 (32 N. W. Rep. 796); Kendrick v. Beard, 81 Id. 182 (45 N. W. Rep. 837).
The authorities cited above show the principles upon which this Court has proceeded in upholding such contracts, and it is unnecessary to restate them here, or to review the decisions of other courts holding a different view.
The judgment is reversed, and a new trial ordered.
Morse, Cahill, and Long, JJ., concurred. Grant, J., did not sit. | [
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Champlin, C. J.
An opinion was handed down in this case October 10, 1890, and the defendant has moved for a rehearing, based upon errors of fact and law. The defendant in person has furnished reasons for a rehearing, in which he states there are several misapprehensions and misstatements of facts as proved upon the trial.
And first he calls attention to the purchase price paid by him for the legal title to the lands purchased by him from Remick. He states that the record shows that he paid Remick $4,000, and allowed McKay one-third of the net profits to be made on the purchase for his interest, and also paid him $1,000 cash bonus in addition. In this the defendant is correct; but, as the amount paid by defendant for the land was not involved in the issue, it was not stated in the opinion.
2. He shows that the Court was in error in stating that—
“Remick had an estimate of the pine timber on the lands made by Robinson & Flynn, which showed that the land contained about 4,000,000 feet of pine."
The record shows, both from the testimony of Mr. Hall and of Mr. Wilcox, that the Robinson & Flynn estimate was made after the purchase by Mr. Wilcox. Mr. Wil cox testifies that when he purchased he interviewed both. McKay and Remick,. and each assured him that the land was good for 5,000,000, and a few months after he bought he employed Robinson & Flynn to estimate the pine, and they did so. He testifies:
“I told them I had purchased that land, and would, like to know what there was as near as I could.”
This estimate was the one which Hall had with him when he had his interviews with Busch, and showed that their estimate was 3,770,000 feet. This estimate he got from Wilcox. Hall also had Van Riper make an estimate, and that showed the quantity of pine to be 5,162,-000 feet. It is freely admitted that the Court was laboring under a misapprehension when it stated in the opinion that—
•‘Remick had an estimate of the pine timber on the lands made byJ Robinson & Flynn, which showed that the land contained about 4,000,000 feet of pine.”
Mr. Wilcox contends that—
“The effect of these misapprehensions of the facts is prejudicial to the good faith of the initial purchase having been made on the basis of 5,000,000 feet, and the subsequent holding and dealing with the lands on this .basis, supported by Van Riper’s estimate, subsequently made.
“It is submitted [says Mr. Wilcox] that, even if these misstatements of fact do not materially affect the final judgment of this Court, it is due to the defendant that they should appear correctly in the opinion and published report.”
We think the defendant is entitled to have it appear .that when he purchased he was told by McKay and Remick that the land was good for 5,000,000 feet of pine; and that he relied upon such statement; and that after he purchased he had a desire to know what there was on the land, and procured Robinson & Flynn to estimate the pine; and that they did so; and that their estimate •showed him that there was 3,770,000 feet of pine upon the land. We think these facts can only have a bearing upon the issue when considered in connection with what was said and done, and the use made of this estimate, by Hall in his interviews with Busch.
The third reason assigned for a rehearing by the defendant is mainly an argument upon the facts, and if ■addressed to the jury, or if we could decide upon the facts, would not be without great weight. But we cannot reverse a case upon disputed facts, however much we might feel that they impressed us differently from what they did the jury. Now, we might infer and find from the testimony that Busch relied exclusively upon the guaranty of Mr. Hall as to the quantity of pine and of Van Biper’s estimate. The testimony is very strong in that direction. But Busch also testifies that he relied upon the representations made by Mr. Hall, and we cannot say that he did not rely upon both. It does not .seem to us that, because, he would not have entered into the contract without HalFs guaranty, such fact was a waiver of his right to rely upon the prior representations made by Hall, whatever may have been the value of such -verbal guaranty in a legal point of view.
The defendant, Wilcox, further insists that,—
“The contract having been made and sent to Wilcox for his adoption without any intimation of there being anything outside of the written contract to which he was •committed by signing it, Wilcox at least was entitled to be apprised of these facts immediately upon his coming personally into his relations of principal with Busch.”
In other words, if we understand the proposition correctly, it is asserted that when one enters into a contract with a self-constituted agent who has no authority to act for another, and the person for whom the self-con stituted agent assumes to act adopts the contract so made in his name and behalf, thereupon it becomes the duty of the person so treating with the self-constituted agent immediately to notify or inform the principal of the instrumentalities made use of by such self-constituted agent to induce him to enter into the contract. In a case where such contracting party is free from fraud or collusion, and acts in good faith, we do not perceive that such duty is imposed upon him. He has no right to presume that the self-constituted agent has misrepresented facts to him, or that he intends to defraud him. On the contrary, we think it is the duty of the principal, or the person who becomes so by adopting the contract made in his name and for him, to make all needed inquiry and investigation into the facts, acts, and representations of the person who, without authority, has assumed to act for him before he adopts the contract as his own. For, in adopting the contract, he not only adopts it as written, but he thereby adopts as his acts all the instrumentalities of the self-constituted agent in obtaining the consent of the opposite party to enter into the contract. By adopting the acts of the self-constituted agent, he seeks to appropriate to himself all the benefits to be derived from it as fully as if he had himself induced it in the first instance, and with this he must assume all the liabilities which attach to it. Wilson v. Tumman, 6 Man. & G. 236; Morse v. Ryan, 26 Wis. 356; Kerr, Fraud & M. 111; Bigelow, Fraud, 367; Broom, Leg. Max. 708; Whart. Ag. §§ 89, 90; Fitzsimmons v. Joslin, 21 Vt. 142; Baker v. Insurance Co., 43 N. Y. 283; Elwell v. Chamberkin, 31 Id. 611; Presby v. Parker, 56 N. H. 409; Garner v. Mangam, 93 N. Y. 642; Bennett v. Judson, 21 Id. 238; Carpenter v. Insurance Co., 1 Story, 57; Mundorff v. Wickersham, 63 Penn. St. 87; Coleman v. Stark, 1 Or. 115. The point made by Mr. Wilcox need not be discussed further, inasmuch as it was not raised in the court below.
Counsel for defendant has placed in our hands a printed argument in which he gives the reasons why a rehearing should be granted. Upon one point he stands with the Court upon common ground, which is accurately and tersely stated by him as follows:
“In this case there can be no question but that the contract must now be treated as the contract of Mr. Wilcox. He adopted it. He made payments upon it, and he has brought suit upon it.”
This leaves the only real contention between counsel and the Court, the question of the extent of the liability of a principal who becomes such by adopting the unauthorized act of a self-constituted agent. We quote from his argument, as showing precisely the position of counsel. He says:
“I want to emphasize the fact that, at the time Mr. Busch was informed that Mr. Hall had no authority to speak in relation to the quantity or quality of the pine, the negotiations were still pending and not concluded; and the fact that when Mr. Busch signed the writing he knew that the representations made by Hall were outside •of any authority that he (Hall) might exercise or might assume to exercise. And I want to emphasize the additional fact that Mr. Hall’s personal guaranty was not given in addition to representations made within the scope of authority, but Mr. Hall’s personal guaranty was given because his representations were without authority and Mr. Busch knew it.”
Grant that Busch knew that Hall had no authority from Wilcox to enter into any contract to lumber the land; and also that Wilcox had not theretofore authorized him to make any representations in relation to the •quantity and quality of the timber; still he did know that Hall assumed to act as the agent of Wilcox in making the contract, — that he assumed to act for him in executing the contract; and the question recurs, when Wilcox adopted the contract and made it his own, did he not also adopt as .a legal consequence the agency of Hall to its full extent, as to inducements held out by him, and in reliance upon which Busch entered into the contract? We have already stated what we consider to be the law upon this proposition, and referred to some of the authorities by which we think it is supported.
Counsel for defendant also says:
“It is stated in the opinion of the Court that Hall, Wilcox, and Noyes & Sawyer were acting in concert, and not each one for his separate and individual interest, but as a whole. There is no testimony to that effect, but, on the contrary, the testimony is that Mr. Wilcox did not act at all. There is no act of Mr. Wilcox in this case of any sort prior to the reception of the written bargain. That Hall and Sawyer acted in concert is true, but that Wilcox acted is untrue."
We did not attempt to state the testimony from which we deduced the statement referred to, but we think counsel must have overlooked the testimony which Mr. Wilcox gave as follows:
- “ There was a contract, I believe, that we should put in a part of this timber that coming winter."
The point, however, is not very important, as we are content to rest our opinion upon the obligations and liability of Mr. Wilcox arising from his adopting the contract made by Hall as his agent, and the paramount duty of Wilcox to ascertain the extent of the authority assumed and the means employed by Hall in making the contract. The law, as we conceive it to be, is this: When a person deals with an authorized agent, he is bound to inquire and ascertain the extent and limit of his authority to bind the principal, and the principal is bound by all acts of the agent within the scope of his authority; and when a principal adopts the contract of a self-constituted agent, who has assumed to act for such principal without authority, he is bound to inquire and ascertain the extent the self-constituted agent assumed to act in his behalf, and the principal, when he becomes such by adopting his acts, is bound by all acts within the scope of the assumed authority; and in both cases the liability of the principal extends to the frauds or misrepresentations of the agent committed or made while acting within the scope of the real or assumed authority. We entertain no doubt upon the law that should govern the case.
Upon the facts as they are developed by the testimony, we regard it as a close case, and, viewed from Mr. Wilcox’s standpoint, it is in some respects one of apparent hardship. But we cannot treat the facts differently from what the jury have found them to be upon the whole testimony; and the court in his charge, which was not excepted to nor was error assigned upon that portion of it, instructed the jury that, as Mr. Wilcox had commenced suit against Busch for damages for not performing the contract, they could not in this suit allow Wilcox anything for failure to perform. His remedy against Busch is therefore left intact for any overpayment, or breach of contract on Busch’s part.
We see no reasons for coming to a different conclusion than that first announced, and the rehearing is denied.
The other Justices concurred. | [
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Grant, J.
Plaintiff’s decedent was a switchman in the employ of the Wabash, St. Louis & Pacific Kailway Company. The engine upon which he was employed ran into a truck owned by the defendant, and driven by his teamster, and resulted in the death of decedent. Plaintiff brings suit against defendant, claiming that the accident was the result of the negligence of his employé, and that such negligence was to be imputed to the defendant.
A diagram showing the situation of the tracks and streets near which the accident occurred will be found on page 371. Woodbridge street is north of the freight-depot and Union Depot elevator and the tracks of the railroad company. The whole space represented upon the diagram is a part of the yard of the company. The space marked “roadway,” leading from the Union Depot elevator to Woodbridge street, is a private way belonging to the company, but was constructed for the accommodation and convenience of those patrons of the company who had business at the elevator. All such, therefore, had the right to use it the same as if it were a public highway. Teams Avhich had been to the elevator or freight-depot had their choice of going east to Twelfth street, thence to Woodbridge street, or north, by this roadway.
There are two tracks on each side of the main track, near the place of the accident. The regular switch-engine was laid off for repairs, and a regular road-engine was being used for switching. The engine was going west on the main track to attend to some switching some distance beyond the roadway. The switch crew consisted of foreman, engineer, fireman, and the deceased as switchman. Tracks Nos. 4= and 5 were filled with freight-cars from a
point near the freight-depot up to near the crossing-of the roadway, hut space was left of sufficient width for teams to pass. Defendant's teamster had been to' the freight-depot, loaded his truck, and was going south by this roadway, having reached it by the way indicated on the map by the dotted lines between tracks Nos. 5 and 6, and, when the team was fairly upon the crossing, it was struck by the engine, resulting in the killing of the deceased, injury to defendant's teamster, and the destruction of the team and truck. The deceased, at the time, was sitting on the beam of the pilot, which is next to the “cow-catcher," as it is called, with his feet hanging down over the cow-catcher. The deceased had no duty to perform while riding upon the engine. His duty consisted, in attending to the switching of the tracks, getting on and off the engine for that purpose. The regular switch-engine has a step in front, upon which the switch-men stand when engaged in moving to and fro. This is for convenience and safety.
The litigation resulting from this accident is anomalous. Defendant's teamster sued the railroad company for injuries; the company was found negligent, and judgment recovered, which was paid. The railroad company paid defendant for the loss of his team. Plaintiff sued the railroad company in the Circuit Court of the United States for the Eastern District of Michigan, claiming that the death of deceased resulted from the negligence of the company in not ringing the bell, blowing the whistle, stationing a flagman at the crossing, and in obstructing-the view of the track. Judge Brown, before whom the case was tried, directed a verdict for the defendant, upon the ground that the deceased was guilty of contributory negligence. Plaintiff then brought this suit.
Several questions are raised by thp record, but the plaintiff’s right to recover is barred by his decedent's con tributory negligence, rendering- a determination of the other questions unnecessary. There is no dispute about the facts. The judge found as a fact, and so charged the jury, that there was no testimony in the case that the deceased was obliged to ride upon the cow-catcher, and left it to the jury to determine whether or not this constituted negligence on his part. In the absence of proof, we cannot believe that any railroad company requires its switchmen, or any of its employés, . to ride in so dangerous a place. There was a safer place for him to ride. He was neither required nor directed to ride in a position which every person of ordinary intelligence and observation knows was the most dangerous he could have chosen. The fact that upon switch-engines switchmen rode standing upon the platform provided for them in front of the engine had no tendency to prove that the deceased was justified in riding in a sitting posture upon the cow■catcher of a road-engine; nor would the fact that switch-men were in the habit of riding upon the cow-catcher •excuse the deceased, as between him and defendant. Yet the judge substantially left the jury to determine the •question of contributory negligence by the determination of the question as to whether the deceased was riding in the usual and ordinary place upon the engine. If switch-men always rode there, still that fact would not take them without the rule of contributory negligence. When a .safer place is provided, and employós choose a more dangerous one, they do it at their own risk. The difference in danger between standing on a platform of a regular switch-engine and sitting on a cow-catcher, with one’s ¡egs hanging over it, is apparent. In the one case the switchman is ready to jump upon the approach of danger; in the other, considerable time must elapse before he could recover his standing position upon the pilot beam, and put himself in readiness to avoid danger. In the present ease, deceased was the only one upon the engine who was injured. He chose the only place in which he could have been injured, and chose a sitting instead oí a standing posture. Railroad Co. v. Jones, 95 U. S. 439; Doggett v. Railroad Co., 34 Iowa, 284; Kresanowski v. Railroad Co., 18 Fed. Rep. 229.
We quote with approval the language of the Court in Railroad Co. v. Jones, as applicable to this case:
“This [contributory negligence] is shown with as near an approach to a demonstration as anything short of mathematics will permit.”
There was no fact in this case for the determination of the jury. The question was therefore one purely of law. It was therefore the clear duty of the court to instruct the jury to find a verdict for the defendant. It was as clearly its duty as it would he to determine the legal effect of a contract the terms of which are undisputed-
judgment is reversed, and case remanded for a new trial, with costs of both courts.
The other Justices concurred. | [
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Grant, J.
This was a suit upon three promissory notes executed by the defendant to plaintiffs, and aggregating $900.
The plaintiff Marcus W. Bates and the defendant were- partners in tbe fire and accident insurance business in the city of Grand Rapids, Bates having a two-thirds interest, and the defendant a one-third interest. The partnership was dissolved by mutual consent, September 1, 1885, and the plaintiffs, at the same time, formed a partnership for a general insurance business. At the time of the dissolution it was agreed that Bates should take the fire insurance, and the defendant the accident insurance, the defendant agreeing not to engage in the fire 'insurance business, and Bates agreeing not to engage actively in the accident insurance business, so long as defendant was engaged therein in Grand Rapids. The notes in question were given in settlement of the partnership -business, and no payments were made thereon.
The defendant kept his agreement, but the plaintiff Marcus W. Bates, on or about January 1, 1886, obtained the agency of the Standard Insurance Company, doing an accident insurance business, but he did not do much until after February, 1887. The company for which defendant was working was the Accident Insurance Company of North America. In February, 1887, it withdrew from the State. Prior to that time one Patterson had been at work for Herrick soliciting insurance. The withdrawal threw Herrick and Patterson temporarily out of employment. In about 30 days Herrick, obtained the agency of the Pacific Mutual Insurance Company, and meanwhile told Patterson that he did not want him to engage with any one else. Defendant could not guarantee Patterson work, and did not employ him. Meanwhile one Patten, the State agent of the Standard Insurance Company, employed Patterson to work for his company in soliciting insurance under the direction of plaintiffs in Grand Rapids and western Michigan. The plaintiffs, under the arrangement made between Patterson and the Standard Insurance Company, were to be charged with Patterson's salary and expenses, and were to receive 25 per cent, or more of the premiums upon the business written by Patterson. Patterson continued in such employment until September 30, 1887.
The defendant received for such business as that done by Patterson 35 per cent, of the gross premiums, and would have made a profit of from $133.33 to $194 per month, provided he could have procured Patterson and secured such business. The defendant was greatly embarrassed by the competition of Patterson, and claimed that he suffered damages on account thereof in at least the sum of $50 per month, as near as he could estimate the same, but could give no definite estimate of the business lost by him on account of plaintiffs' competition, save the amount of business done by Patterson. Such are the material facts found by the court.
The court held that there was no evidence on which to base an estimate of damages on account of the speculative character of the estimated damages and the various contingencies connected therewith, and therefore rendered the judgment for the full amount of the notes, less $340, the amount of a judgment rendered against plaintiff Marcus W. Bates and Herrick growing out of their former partnership, which Bates, at the time of the dissolution of the partnership, had agreed to pay.
The errors complained of are that the court erred—
1. In refusing to find that the plaintiffs hired Patterson.
2. In refusing to find damages for the violation of the contract by Bates.
It is manifest that the principal damage done to defendant's business was by Patterson. It was therefore material to determine in whose employ Patterson was. That the plaintiffs assisted in securing Patterson to work for the Standard Company is evident, but that they were the principals in tbe transaction is not clear. This Court will not interfere with the findings of fact unless but one conclusion can be drawn from the evidence, and a contrary one has been drawn by the trial judge. After a careful examination of the testimony we do not feel warranted in setting aside this finding of the court. This renders a discussion of the question of damages unnecessary. By the defendant’s own version of the agreement, at the time of the dissolution, which was verbal, Bates did not agree absolutely to desist from doing any accident business, but did retain the right to do whatever might come to his office. Outside of what was done by Patterson, there is nothing upon which to base any damages.
Judgment affirmed.
The other Justices concurred. | [
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Morse, J.
Carlos E. Warner files his petition in the circuit court for the county of Wayne, in chancery, in substance showing:
1. That at the time of the insolvency and assignment of the Scranton & Watson Lumber Company, the Merchants’ & Manufacturers’ National Bank of Detroit was a creditor of said company to the amount of $8,786.12, and that a claim for this amount was duly filed and proved in the office of the county clerk.
2. That the Scranton & Watson Lumber Company was organized as a corporation September 30, 1885, and succeeded to the business of J. P. Scranton & Co., and, in consideration of the transfer of the property of said last named company to the said corporation, the said corporation assumed and became obligated to pay the debts of said'J. P. Scranton & Co., the said company then being solvent and composed of Harvey M. Mixer and James P. Scranton.
8. While Mixer was a member of the firm of J. P. Scranton & Co., in order to secure the said Merchants’ & Manufacturers’ National Bank for moneys advanced by said bank upon commercial paper to said J. P. Scranton & Co. he executed and delivered to said bank a mortgage upon certain real estate owned by him individually, and situated in Toledo, Ohio.
4. This real estate was pledged by him as his individual property for the said firm.of J. P. Scranton & Co.
5. The petition sets out certain notes delivered by J. P. Scranton & Co. to the bank, and indorsed by said company, amounting to about $8,000. All these notes were either made or indorsed by the Scranton & Watson Lumber Company except two, and J. P. Scranton & Co. received a valuable consideration for them from the bank.
6. That no part of the notes had been paid the bank at the time of the assignment of the Scranton & Watson Lumber Company except $100 on a note of $850; that the mortgage given by Mixer upon his property in Toledo was foreclosed by the bank to pay these notes, and sold for a sufficient sum to pay the same, and depriving and divesting said Mixer of all right, title, and interest in or to said mortgaged property by such sale; that, as between the said Scranton & Watson Lumber Company and J. P. Scranton & Co., the former was the principal debtor upon these notes and the latter but security; that these notes were secured by the Mixer mortgage, and, the real estate being the individual property of Mixer, and sold to pay them, Mixer was entitled to be subrogated to the claim of the bank proven against the insolvent estate of the Scranton & Watson Lumber Company, and to be paid any- dividend which might be declared upon said claim.
7. That Mixer was individually indebted to Benjamin Vernor in the sum of $1,000, and to secure such debt assigned to him a part interest in the aforesaid notes.
8. That the bank then assigned to Mixer its claim against the ,estate of the Scranton & Watson Lumber Company, and all its right, title, and interest in and to said notes, subject to said Vernor’s interest.
9. Afterwards Mixer, being indebted to his wife in the sum of $1,000, assigned and set over to her his interest in said claim and notes.
10. Then Mrs. Mixer and Vernor assigned the same over to Warner to collect the claim or receive the dividend in trust for them.
Warner therefore prays that he may be subrogated to all the rights of the bank as against the Scranton & Watson Lumber Company, and that the receiver be ordered to recognize him and pay him all dividends that might or should have been payable to said Merchants’ & Manufacturers’ National Bank.
The receiver answered denying the right of Warner to be so subrogated, on the ground that the Scranton & Watson Lumber Company never assumed the debts of J. P. Scranton & Co.; that J. P. Scranton & Co. were to contribute to the capital stock of said corporation the sum of $55,000; that they did contribute in lumber and other property about $54,000; but they were indebted to a large amount at the time, and, when the Scranton & Watson Lumber Company made an assignment, the corporation had advanced to J. P. Scranton & Co. to pay such indebtedness $41,931.09; that of this capital stock of $55,000, there was issued to Mixer $50,000 and to Scranton $5,000; that Mixer, at the time of the assignment, was largely indebted to the insolvent corporation, and in more than enough to cancel the claim of the bank to which he asks to be subrogated.
Proofs were taken upon the petition, and a decree entered by Judge Gartner, granting the prayer of the petitioner in that he be subrogated, and stand in the place of the bank, to the extent of the sum of $7,652.41.
Previous to October 5, 1885, Mixer and Scranton were in the lumber business in Detroit, under the firm name of J. P. Scranton & Co. They had on hand at that date some $54,000 worth of lumber, and also outstanding accounts. Their liabilities were undoubtedly less than their assets. Joseph E. Watson was also carrying on a lumber business at Detroit and at other places in Michigan. The Scranton & Watson Lumber Company was formed, and a corporation organized October 5, 1885, by putting the stock and other property of each business into one. The corporation was organized with an authorized capital of $150,000, $110,000 of which was called “paid in." This was done by turning the lumber of J. P. Scranton & Co. in at $55,000, and the lumber and other property of Watson in at the same amount. The stock was divided and issued as follows: Watson $50,000, Mixer $50,000, Scranton $10,000. It was agreed substantially, and was a part of the arrangement, that the debts of each of the old concerns should be paid by the new company. The amount advanced for J. P. Scranton & Co. was to be made good by Mr. Mixer, and the amount to Watson by Watson. The indebtedness of J. P. Scranton & Co. was supposed to be about $30,000, and of Watson about $20,000. In fact it exceeded these amounts in both cases; how much it is not material to ascertain. The new corporation ran about 10 months and then made an assignment. Scranton and Mixer lay the blame of failure to Watson, who, they claim, kept drawing out and returning nothing of any account. The new corporation is admitted to be insolvent. It is not disputed that Mixer mortgaged his individual property to the bank for the benefit of J. P. Scranton & Co., and it is shown by the proofs that a portion of the notes which the bank proved against the insolvent estate were made by the Scranton & Watson Lumber Company, and that such corporation received the avails of the discounts of the same. The balance of the notes were given by the corporation in renewal of the J. P. Scranton & Co. indebtedness.
It is claimed, however, by the receiver that the doctrine of subrogation is one of equitable origin, and that—
“It is only to prevent fraud and subserve justice that equity ingrafts the wholesome provisions of subrogation or of equitable lien upon a transaction, and it should never be done where it would work injustice." Kelly v. Kelly, 54 Mich. 47.
The position of the receiver is undoubtedly correct; and we do not think that, under the circumstances of this case, as against the other creditors, Mr. Mixer, or his assignees, Yernor and Mrs. Mixer, through their trustee, Mr. Warner, can claim or hold any equitable.right to be subrogated to, and stand in the place of, the bank. It is true that the bank has been paid, and by the private property of Mr. Mixer; but the conduct of Mixer has been such as to estop him from claiming the right of subrogation which might under other circumstances belong to him.
The capital stock of a corporation constitutes a trust, fund for the benefit of its creditors for the payment of its debts. Mr. Mixer, by his own showing, was a party to a transaction in the organization of this corporation by which its articles, filed by law in a public place, showed a capital stock paid in of $110,000, of which Mr. Mixer had paid in $50,000. By agreeing at the same time to pay the debts of the two concerns whose property represented and made up the paid-in capital, of which agreement the public knew nothing, those dealing with the new corporation were deceived, and will be defrauded if the present decree stands. It appears ■ from the evidence that the property which was called $110,000 paid-up capital was estimated and inventoried at, J. P. Scranton & Co., $54,211.81, and Watson, $45,771.31, a total of $99,983.12. Out of this there was drawn a large amount, —over $20,000 to pay the pre-existing indebtedness of Watson, and $41,931.09 to pay the debts of J. P. Scranton & Co., as shown by the books at the date of the assignment. Therefore, in reality Scranton and Mixer only paid in about $13,000 of capital, while the creditors, as shown by Mr. Déy, or at least a portion of them, supposed they had paid in $55,000. Since the assignment the amount shown to have'been paid out on claims against J. P. Scranton & Co. has been increased over $3,000, leaving less than $10,000 contributed by Mixer and Scranton to the capital stock. This assumption of the debts of J. P. Scranton & Co. amounted to the same thing as if Mixer had paid in $50,000 in cash to the capital stock, and then drawn out $40,000 of the same to pay his individual debts.
It must be remembered that the record shows that Mixer was the principal owner of the J. P. Scranton & Co. property, and was to make good what was paid out by the new corporation upon its debts. He put in the property, and gave $5,000 of the stock to Scranton. Watson gave Scranton the other $5,000. Scranton testifies that he took $5,000 for his interest in the 3. P. Scranton & Co. business, “and quit” as far as that was concerned. If' Mixer had withdrawn $40,000 in the case supposed to pay his private debts, equity would not have permitted him to prove a debt of his own against the ,corporation for $8,000, and obtain dividends upon it. Nor can he do so in the present case. He was obliged to pay the debtl of J. P. Scranton & Co.; and so much of the debt to the bank (to pay which his property was sold) as was made up of renewals of the paper of J. P„ Scranton & Co. was his to pay. The balance for which the corporation was liable, as it received the avails of the notes discounted, would make but a small offset to the amount that he has withdrawn from the corporation to pay his own debt. If the transaction had stood before the public as it really was, so that persons dealing with the corporation would have known that the paid-in capital was subject to the individual debts of the corporators, and with such knowledge had trusted the corporation, the claim of Mixer for subrogation would have been equitable. As it is, it would be manifestly unjust to allow him to be so subrogated and become a creditor of the corporation, while, in the light of the articles of association, he is a debtor.
The case of Dunlap v. J. P. Donaldson Co., 74 Mich. 290, is not in point here. That was an action at law upon a note made to a member of the corporation by the corporation, and transferred to the plaintiff in that suit. It was held that, as the original payee of the note was not regarded by the corporation as a debtor when she drew out money for family expenses, and as the suit was in common law form merely, and for the purpose of settling the creditor’s claim against the corporate estate, the set-off could not be allowed. But this is a proceeding in equity, and he who seeks equity must do equity.
The decree of the court below is reversed, and the petition will be dismissed, with costs of both courts.
Ohamplin, O. J., Long and Grant, JJ., concurred. Cahill, J., did not sit. | [
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] |
Morse, J.
These applications for mandamus grow out of a disgraceful squabble between two factions of the common council of the city of Detroit, each seeking to get the advantage of the other in the appointment of election inspectors, who are ex officio members of the boards of registration.
The charter of the city of Detroit, as amended by Act No. 564, Local Laws of 1887, page 909, provides for the election by ballot of five inspectors for each election district at the annual November election, who hold their offices for one year, or until their successors are duly elected and qualified. There is no provision for filling vacancies, except by the people at the polls. As it is provided that only three candidates can be voted for by any one elector, the minority party in each district is sure of representation on these boards in every district, and the chairman of the board, who is appointed as hereinafter stated, becomes a potent political factor on the board.
The charter provides that the chairman of each board of inspectors shall be one of the aldermen of the ward, or some elector of the election district, who are to be appointed as follows:
“ Sec. 4. The common council shall, at least two weeks previous to each general election, assign and designate the aldermen from each ward to election districts therein, and shall at the same time appoint a suitable person, who shall be a qualified elector in the district, to each of the other districts in said city, and the alderman and person so appointed shall, respectively, be the chairman of the board of inspectors and of registration in their respective districts.”
The chairman and five inspectors constitute these boards. They appoint the clerks of election. Any vacancy in those chairmanships, occasioned by death or removal from the district, is to be filled by the common council. If they neglect or refuse to do so, or a vacancy occurs from any other cause, the vacancy is to be filled by the people at the opening of the polls at any general or special election. Local Acts of 1887, p. 910.
The common council met on October 21, 1890, and were proceeding to perform this duty, when Alderman Jacob introduced a resolution declaring the seat of Aider-man Dingwall of the first ward vacant, because of alleged removal therefrom. From the return of the majority of the aldermen present, and the city clerk, it appears that, thereupon, Alderman Yernor made a motion to adjourn. The yeas and nays were demanded by a sufficient number of aldermen, but, without calling the roll or putting the question, President Griggs declared the council adjourned, and left the chair. Alderman Yernor, who was president pro tern., refused to preside, and thereupon Alderman O’Kegan was called to the chair on motion and vote, and business was resumed. It pretty clearly appears from all the papers in the case that thereupon the minority — to wit, 11 members — left the council chamber for the purpose of breaking the quorum and preventing any further business. The balance of the council — 15 in number and 1 less than a quorum — went on and transacted business, among other things assigning the aldermen, except in the first ward, to chairmanships, and other persons to the same, in conformity to the statute, and also going further and filling vacancies in the boards of inspectors. The record shows that the city clerk called the names of the 26 aldermen present at the opening of the meeting on every resolution, and recorded them as voting in the affirmative, Alderman Dingwall among the rest, although, after the 11 had left, the resolution declaring his seat vacant was passed.
The minority were not justified in leaving the council, and the action of President Griggs in declaring the council adjourned was an outrage and cannot be excused. No presiding officer can arbitrarily adjourn a meeting in defiance of the majority present. It is very evident that the majority present were not in favor of adjournment, because they stayed and transacted business after the minority left. And these men who thus left the council chamber at the last meeting at which this designation and selection of chairmen of the different boards could be made under the strict letter of the charter, are entitled to no favor at the. hands of the courts. But this does not excuse the illegal action of those who remained. They well knew that they were without a quorum, and the counting of absent members, and recording them as voting in the affirmative on all questions, was also an inexcusable outrage, as was also the attempted unseating of Dingwall. The acts of both factions were exhibitions of political partisanship both unlawful and indecent. Such acts do not help either party, but serve only to disgust honest men of all parties. The courts cannot allow such proceedings to stand.
But the people of Detroit cannot be disfranchised by such proceedings, and the registration in that city which, has now taken place, the appointees of the meeting of October 21 acting upon such boards, is valid, and cannot be interfered with. They must be held to be de facto officers as far as they have acted, from the very necessity of the case. But none of them can act hereafter. It is the duty of the common council immediately to make a new designation and appointment of the chairman of each of the boards. The vacancies in the election inspectors can only be filled at the opening of the polls by the electors then present. And if the council, by the breaking of a quorum, or a tie vote, should neglect or refuse to fill the chairmanships, then the electors can do so at the opening of the polls.
In relation to Alderman Dingwall it appears that he has since been recognized by the council, and the action taken on October 21 is admitted in the answer to have been illegal. No order is necessary on his application to have the portion of the record affecting him expunged.
We cannot grant the order in full as prayed in the other case; but a writ of mandamus may issue to the common council requiring them to meet on Friday evening, October 31, 1890, at 9:30 o’clock, city time, and assign and designate under the charter the persons to act as chairmen of the different boards of election inspectors, at which meeting Alderman Dingwall must be recognized as an alderman.
No costs will be allowed on either motion.
Champlin, O. J., Long and Grant, JJ., concurred. Cahill, J., did not sit. | [
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Champlin, C. J.
. The plaintiff brought replevin for a span of horses, harness, whiffletrees, and neck-yoke.
Defendant claims title to the property by virtue of an execution sale made about July 30, 1889, in the suit of Adams v. Johnson. Plaintiff claimed them by virtue of a iona fide sale from Johnson to him about July 15, 1889.
There is no conflict in the facts, which are substantially as follows: One Robert Adams sold to Archie Johnson one span of horses, one pair of bob-sleighs, one set of double harness, one set of whiffletrees, and one neck-yoke, and took Johnson’s note, with John Sexton as surety, in payment, for $340, due in six months from date. At the time of the sale of this property Johnson was considered ■by Adams to be irresponsible, but Sexton was responsible, and. so considered by Adams. The note was dated November 1, 1888, and was due in six months, and was in form the joint and several note of Johnson and Sexton. On May 8, 1889, Sexton paid $100 to Adams upon the note, ■and the amount was indorsed thereon. July 11, 1889, Adams brought suit before one Squires, a justice of the peace, to recover the balance due upon this note. Service was had upon defendant, Archie Johnson. Upon the return-day, which was July 19, the plaintiff declared orally in asstmpsit on a certain promissory note given by defendant, and indorsed by John Sexton, for the payment of the span of horses bought by defendant of plaintiff, and claimed damages, $243.16. The defendant filed no plea, and stated he had no defense. The suit was tried, and resulted in a judgment in favor of plaintiff; and after the rendition of judgment the court certified upon its docket as follows:
“I further certify and say that the above judgment was rendered for the purchase money due said plaintiff from the defendant for the following described goods and chattels: One bay horse nine years old, white spot in forehead, called ‘ Fred;’ one bay horse thirteen years old, white face, white hind-foot, called ‘Bill;’ one set of whiffletrees; one set of double harness; and one set of heavy bob-sleighs, — which judgment was rendered by me July 19, 1889.”
Execution was issued on this judgment on July 25, and levied upon the same property, which was sold to the defendant at constable’s sale. At the time of commencing this suit Adams filed in the office of the clerk of the township where the parties resided a notice of which the following is a copy:
“Notice is hereby given that I, Eobert Adams, of the township of Garden, Delta county, Michigan, have this day commenced an action before H. G. Squires, Esq., a justice of the peace in and for said county, against Archie Johnson for the recovery of the sum of $242.84, due me from the said Archie Johnson; that said suit is brought to recover the same amount as purchase money of the following described property, to wit: One bay horse about thirteen years old, white face, one white hind-foot, called ‘Bill;5 one bay horse about nine years old, small white spot in forehead, called ‘ Ered;5 one set of double harness; one set of whiffletrees and eveners; one neck-yoke; one pair of lumbering bob-sleighs, — purchased from me by Archie Johnson, defendant in said action.
“ Dated this 11th day of July, 1889.
“ Egbert Adams.55
On July 15, 1889, Archie Johnson executed a bill of sale of this property to the plaintiff, Frank Eoberts, for which he claims to have paid $150. After the sale of the property upon the execution he made demand upon McGur for the delivery of the same to him, and, upon his refusal to do so, brought this action of replevin.
Two questions are raised by the plaintiff and appellant. The first is that when the sale was made by.Adams to Johnson of this property he received therefor from Johnson his note, with Sexton as surety, and that hence section 2, Act No. 159, Laws of 1885, does not apply to such a case, but only applies to cases where no security is taken; and, second, that if it does apply, the act itself is unconstitutional. The section referred to reads as follows:
“The property exempted in the subdivision of which this act is amendatory shall not be exempt from any execution issued upon a judgment rendered for the purchase money for the same property; and any sale of such prop erty, after the commencement of a suit to recover the purchase price thereof, and the filing of the-notice hereinafter required, shall be null and void as against such an execution: Provided, The plaintiff in any suit shall file, or cause to be filed, with the clerk of the city, village, or township in which the owner of such property resides, a notice in which he shall state the time when such suit was commenced; the amount claimed to be due; that the suit is brought to recover the purchase money for the property; a description of the property sought to be reached; and the name of the defendant.”
This section (How. Stat. § 7716), as it originally stood, was enacted in 1849, and it provided that—
“ The property exempted in the subdivision of which this act is amendatory, excepting mechanical tools and implements of husbandry, shall not be exempt from any execution issued upon a judgment rendered for the purchase money of the same property.”
The statute does not create a lien upon the property sold, but it applies to the remedy for the recovery of the purchase money for which the same was sold. The provision permitting notice to be filed after suit is commenced is analogous to a lis pendens in other cases, and was designed to protect and preserve the status of the property .pending suit. There is no reason wrhy the statute should not apply to the remedy in cases where security is taken as well as where it is not. Certainly in this case it inures to the benefit of the surety, and he is a favorite in the law. There is no reason why the surety should be made to pay the purchase money, instead of the purchaser, by subjecting the property to execution.
We think the court was right in its construction of the statute, and that the judgment should be affirmed. We see no reason for declaring the statute unconstitutional.
The other Justices concurred. | [
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Morse, J.
It appears from the record in this case that in the year 1870 the board of supervisors of Shiawassee county apportioned to the township of New Haven in said county the following taxes:
State taxes. $219 40
County tax. 811 23
Ditch tax... 2,553 31
Total......................................... $3,583 94
The township treasurer made his returns to the county treasurer February 6, 1871, when he paid the said county treasurer in cash and orders $91.58, and returned lands to the amount of $3,492.43, which it is stated balanced the account between the township and county. Among the lands so returned were certain lands for drain taxes, such taxes here in issue, and upon four descriptions, amounting, in the aggregate, to $518.37. These taxes, at some time previous to 1880, were declared void by the circuit court for the county of Shiawassee, but at what particular date this judgment was rendered does not appear.
The drain for which these lands were assessed was a county drain, and the tax was levied by the county drain commissioner. In 1880, the Auditor General, to whom these lands had been returned by the county treasurer, and who had credited the amount of the taxes to the county as against the State, charged back these taxes, so declared void, to the county of Shiawassee, sending the following statement to the county treasurer:
The taxes with interest and charges as computed by the Auditor General, amounted, June 30, 1880, to $985.66.
Upon, receiving this statement, no steps were taken under the drain law to reassess these taxes upon the lands benefited by the drain, and no call was made upon the township to pay the amount of these rejected taxes until November 2, 1889, when the board of supervisors, at an adjourned meeting, passed a resolution ordering the county treasurer to charge these taxes against the township of New Haven, and commanding the supervisor of said township to spread the same on his roll, with compound interest on the same from June 30, 1886, to February 1, 1890. The county clerk, in accordance with said resolution, reported such amount, with compound interest as aforesaid, in all, $1,226.47, t'o the said supervisor. The supervisor refused to spread the same upon his roll, and hence this controversy.
"We are asked to issue a writ of mandamus to enforce this order of the board of supervisors. We must decline to do so. The township has never had any concern with this money, or with the taxes, save the collecting of them. What money the township treasurer was enabled to collect upon the county drain levy went under the law into a county drain fund, with the handling of which neither he nor any other township official had any part or voice. The fund was held by the county treasurer subject to the order of the drain commissioner, and the county treasurer was expressly forbidden to pay any orders of such commissioner out of auy other fund than that derived from such drain taxes, unless expressly ordered to do so by the board of supervisors. Act No. 43, § 17, p. 80, Laws of 1869; Id. § 25, p. 83. The township is in no manner responsible for the construction of this drain, or the taxes assessed and levied for such construction, nor for the fact that they were decreed void for irregularity or illegality. The county drain commissioner was under the control of the board of supervisors, the legislature of the county, and this board, under the law, had full power and authority to control his action, and to order a reassessment of the drain tax, or any portion of it, to correct errors, and to make any other order in relation to the drain “not inconsistent with the public interests or the rights of individuals.” Act No. 43, § 24, p. 82, Laws of 1869. The whole duty of the township consisted—
1. In its supervisor spreading the tax upon the lands, as apportioned by the county drain commissioner, and approved by the board of supervisors.
2. In its treasurer faithfully attempting to collect the same, and, upon collection, paying the same over to the county treasurer. See section 11, Act No. 43, Laws of 1869, p. 78.
The lands upon which the taxes were not collected were to be returned in the same manner as for other delinquent taxes. Section 12. Here the duty of the township ended. It is not claimed but what this duty was fulfilled. '
It is asserted that the county treasurer has paid out upon orders drawn by the drain commissioner the whole amount of this drain tax. This does not help the county. The county treasurer had no right to pay out any money upon the commissioner’s order unless the fund collected under the tax would authorize such payment. He could pay out of no other fund unless expressly ordered hy the supervisors. And, if so ordered, the county cannot replace the amount so used out of another fund, by levying it upon the township of New Haven. If the county has lost anything, it must be recovered by proper proceedings under the drain law for a reassessment upon the lands benefited, if possible, or the body of the county must pay it.
The writ is denied, with costs to the respondent.
The other Justices concurred. | [
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Morse, J.
This is an action of ejectment. It was tried before the circuit judge of the Kalkaska circuit court without a jury.
He finds that June 4, 1885, Addie B. Getty, wife of the plaintiff, entered into a contract with George W.Peters, husband of the defandant, to sell him lots 7 and 8 in the village of Kalkaska for $200, payable $25 down, and the balance on or before three years from date, with interest at 10 per cent., payable annually. Peters was to pay all taxes assessed on said premises from said date, and was to keep the buildings insured for the benefit of Mrs. Getty. When the contract was fully paid and performed, Mrs. Getty was to convey the premises to Petex-s free and clear of all liens and incumbrances, save those suffered by Peters to accrue after the making of the contract. Peters paid the $25, and went into possession. At the time, Mrs. Getty had a clear title to lot 8, but not to lot 7, the legal title to which was then in one David E. McVean, subject to a mortgage to David Ward. A foreclosure of this mortgage was commenced in chancery April 14, 1885, resulting in a sale and conveyance of the same to William C. Ward, June 14, 1886. Ward quit-claimed to the plaintiff April 25, 1888. A warranty-deed of both lots was given by Mrs. Getty to plaintiff June 23, 1886. there was a house on lot 7 at the date of the contract, into which the defendant and her husband moved, and in which the defendant has ever since lived. She has improved the house to the value of $50. The value of the lots without the improvements is $250. July 7, 1885, Peters paid Mrs. Getty $20 on the contract, and also the taxes for 1885 on January 26, 1886. In March, 1886, he died intestate, leaving his widow and one son, Albert O. Peters, him surviving. ■ Albert O. Peters never lived on or occupied said premises. It was further agreed in this contract that if Peters failed to perform his contract, or any part thereof, Mrs. Getty should have the right to declare the same void, retain whatever had been paid upon it, and all improvements made thereon, treat Peters as her tenant, holding over, and take immediate possession of the premises, and remove him therefrom.
After the death of Mr. Peters, and in the fall of 1886, plaintiff went to defendant, and wanted to know if she was going to carry out the contract, and asked her to furnish $50 with which to buy the title of Ward to lot 7. She refused to furnish the $50. At this time there was nothing due upon the contract. In 1886 the premises were sold for the taxes of 1884, — taxes becoming a lien on the land before the contract was made. The defendant bid in the lots for these taxes, paying therefor $5.60. November 12, 1887, she received her tax deed, and put it on record December 14, 1887. She paid the taxes for 1886 on lot 8, and for 1887 on both lots, and the village taxes for 1887 and 1888. Plaintiff was supervisor in 1886, 1887, and 1888. He assessed both lots to defendant in 1886; in 1887, lot 7 to her, and lot 8 to himself; and both lots to himself in 1888, and paid the taxes for that year. Some time in 1887, and after plaintiff had heard of the procuring of the tax title by defendant, he served a notice upon her—
“To the purport and effect that she had forfeited all rights under said contract by non-performance of the conditions thereof, and demanding possession of said premises from her.”
The court finds that, allowing the sum defendant paid at the tax sale upon which she received her tax deed as a payment upon the contract, there was due June 4, 1887, as interest upon the same, $7.60. Before commencing this suit, which was begun October 1, 1888, no other notice but the one already mentioned was served upon the defendant or her son. After the death of Peters, no payment of the principal or interest on the contract was ever made to Mr. or Mrs. Getty, and the buildings on the premises were never insured for their benefit.
The court further finds that the defendant was unable to effect such insurance, owing to the fact that the building was not such a risk as the insurance companies, doing business in Kalkaska, would take; that the plaintiff knew when he received his title of the full extent of defendant’s rights under the contract; that he gave no notice of. his acquiring the title from Ward; that no demand was ever made upon the defendant for any amount due ■on the contract, and neither she nor her son ever had or sought any interviews with plaintiff in regard to the contract, and never offered to pay any sum of money on said contract, or for getting a deed of said property on any terms, since January 11, 1887. On that date defendant and her son attempted to make some arrangement about fulfilling the contract, and receiving a good title to the land. This was done at the request of his mother. He and plaintiff went to a law-office, and a warranty deed was drawn up by Willis B. Perkins with Getty and his wife as parties of the first part, and Albert O. Peters as party of second part. The consideration was put at $150. The deed purported to convey lot 8, and the dwelling-house on lot 7. Said Peters claimed in his testimony that when he read said deed, and found it did not cover both lots 7 and 8, he, on inquiry, learned then for the first time that said Getty did not have his title completed to said lot 7, and that Mr. Ward had title to said lot, and refused to pay said $50 until Mr. Getty should complete his title, and be able to convey both lots; that his understanding was that he should then and there pay his $50, get a deed of both lots, and give his mortgage back thereon for the balance of the purchase price. Said Getty claimed in his testimony that said Peters had before that been fully informed by Mr. Getty about the title to said lot 7 being still in Mr. Ward, and that the $50 was to be paid then so said title could be procured from said Ward. Said Getty further claimed in his said testimony that two ways had been talked about of getting said title, — one was for Peters to take a deed of lot 8 and the house on lot 7, and then procure title to himself of said lot 7 from Ward, and then give Getty a mortgage back on both lots for the balance; and the other way was for him to pay or advance $50, and Getty would get the title from Ward, and then complete title in Peters, and take the mortgage back as aforesaid. Said deed so drawn by Mr. Perkins was not executed and acknowledged by said Getty, and, pending said negotiations, said Peters left said office, and nothing more was ever done in regard to consummating any such arrangement.
The circuit judge also found that—
“ The defendant has been ready at all times to perform said contract on her part, as the widow of said George W. Peters."
Judgment was rendered on these findings for the defendant. Error is assigned upon some of these findings, that they are not supported by the evidence. All the tes timony is returned in the record, and we find, in this regard, that there was evidence tending to sustain all the findings of the court. The weight of it, and to whom credence should be given in the case of conflicting testimony, was a matter to be settled by the circuit judge. We have no power in such case to disturb his findings.
The defendant pleaded not guilty to the declaration in ejectment, and also served a notice that she would claim on the trial as follows:
“Compensation for buildings erected by her, and that her expense and other improvements made on the said lands described in the plaintiff’s declaration, which said improvements were made by said defendant since her possession and occupancy of said premises, and said defendant will also show that she has been in the quiet, peaceable, and notorious possession of said premises since the 4th day of June, 1885, by virtue of a tax deed and land contract, in good faith, and will request the jury to find whether the said premises have been actually and peaceably occupied by the said defendant, and the time of such occupation, and to determine the increased value of the premises by reason thereof.”
It is claimed by plaintiff’s counsel that the defendant relied on the tax title; that the same was shown to be void; and that after setting up an adverse claim of the tax deed she was estopped from claiming under the land contract. This claim is not tenable from the findings of the court or the evidence in the case; nor did she rely on the tax title upon the trial. It appears that she bid in the property at the tax sale to protect her possession and title under the land contract.
The other main contention is that the defendant had never offered to perform the contract or make any payments thereon after her husband’s death, and that her rights under the contract had been duly terminated by notice. But the circuit judge finds that she was always ready to perform the contract, but that no demand was ever made upon, her to do so. It is true, the plaintiff served a notice upon her some time in 1887, declaring that she had forfeited her contract, but at that time neither he nor his wife had any title to lot 7, upon which defendant was living. After that negotiations were made looking towards a settlement of the controversy and a fulfillment of the contract on both sides; but plaintiff could give no deed of lot 7, and did not propose to do so, and the bargain fell through. Plaintiff acquired the title to lot 7 in April, 1888. In October he commenced suit, without notifying the defendant that he had the title, and could fulfill on his part, and without any demand upon her for payment of the amount due upon the contract. It is plain that when she found that he had the title, and before notice of forfeiture, she could have tendered him the amount due, and, upon a refusal by him to deed, could have forced him in equity to a specific performance. The bringing of this suit was not a sufficient notice of forfeiture; nor was the old notice of any avail to him, as at the time he gave it he was not in a condition to perform, as he had before notified her, and there was but a small sum due as interest. His subsequent negotiations showed that he did not rely upon this notice. Having no title to lot 7 at the time he gave it, he could not forfeit the contract for non-payment, and oust the defendant of possession, when he himself was not in a condition to perform on his own part. Converse v. Blumrich, 14 Mich. 109. The contract of purchase by its terms gave the defendant the immediate right of possession, and to keep the same unless the contract was not fulfilled on her part. If she failed, then the vendor had the—
“ Eight to declare the same void, and retain whatever may have been paid on such contract, and all improvements that may have been made on said premises, and may consider and treat the party of the second part as her tenant, holding over without permission, and may take immediate possession of the premises, and remove the party of the second part therefrom."
Before the defendant could be ousted from her legal possession under this contract in an action of ejectment, or in summary proceedings, it was necessary for plaintiff to notify the defendant, under the circumstances of this case, that he had full title to the premises, and could perform on his part, and demand payment upon her part.
The judgment is affirmed, but without prejudice to any further proceedings to recover the land after forfeiture as above indicated.
The other Justices concurred.' | [
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] |
Cahill, J.
The plaintiffs brought an action in justice’s court to recover an amount claimed to be due them for work and labor performed in sinking a mining shaft for the defendant. The plaintiffs recovered a judgment in justice’s court, and the defendant appealed to the circuit, where the plaintiffs again had judgment, and the case is brought to this Court on writ of error.
The case made by the plaintiffs is that they made a contract with defendant through Capt. Florida, who was at the time superintendent of the defendant company, by which they were to sink a shaft 8 by 11 feet, down to the “ ledge,” and timber the same lip; plaintiffs to furnish everything, and to be paid $10 per foot. They claimed that they sunk the shaft to the “ ledge,” and had timbered it to within 8 or 10 inches of the “ledge/5 when they were stopped in their work by Capt. Carlin, who, as they claim, had immediate charge of the mining operations for the defendant. They claim the right to recover for the work actually done by them under the quantum meruit, on the ground that they were prevented by the defendant, without fault on their part, from performing the contract. The case was submitted to the jury by the circuit judge upon this theory, and the jury were instructed as follows:
“It is the law that, if an employer terminate a contract without any fault on the • part of the employé or contractor, then the employé or contractor may sue upon the contract to recover damages, or he may sue in ■assumpsit upon the common counts, as they are called,— the quantum meruit, — to recover what his services were worth. That does not mean what they were worth to the employer. It is the fair value; that is, the value of work and labor. Of course, the main question is first as to whether the contract was performed up to that time by the plaintiffs. If it was not, then the defendant had the right to stop the work, and discharge them, and' they could not recover.
“Now comes the question as to the discharge. That depends upon two witnesses, as I remember the testimony; that is, Capt. Carlin and the plaintiff Mooney. I understand all the testimony there is upon that point is given by these two men. Mooney says that Capt. Carlin ‘ told us to stop and take the timbers up.’ Mr. Carlin denies it. The burden of proof is upon the plaintiffs in the case, so that if you find that the contract was performed up to that time by the plaintiffs, but still that they were not discharged, but stopped the contract without being discharged, then they cannot recover in this case at all. If that were the case, then the plaintiffs could recover only upon the ground that their work had been of value to the defendant.”
Counsel for defendant objects to that part of the above charge in which the court said the plaintiffs might recover upon a quantum meruit what their services were worth; that this does not mean what they were worth to the defendant, but the fair value of the work and labor; and it is claimed that the true basis of recovery in such cases is not the value of the work and labor, but of the product of the work and labor. We think the circuit judge adopted the correct rule. If the plaintiffs had abandoned the work, without being directed to do so by the defendant, and the defendant had appropriated the work to its own use, the rule contended for by defendant's counsel would have been correct. That rule was recognized and clearly stated by the circuit judge in his charge. But where, as in this case, the plaintiffs are prevented from performing the contract, they are entitled to recover, if at all, what their work and labor is worth, whether it was of value to the defendant or not. The case of Clark v. Mayor, 4 N. Y. 338, cited by defendant's counsel, does not support a contrary doctrine. It is claimed also that the court erred in stating to the jury that Oapt. Carlin was the agent of the mine, and represented the mine in the transaction. No question was made upon the trial as to the position that Cap. Carlin occupied. Capt. Florida testified:
“ Q. Isn't it true that Cap. Carlin had more to do with this matter than you did?
“A. Yes, sir; he did.
“ Q. You are a general superintendent of this mine, are you not?
“A. Yes, sir.
“ Q. And you conceimed yourself more about the business generally than you did about those little details about the shaft?
“A. Yes, sir.
“ Q. And you left this in a large measure to him, did you not?
“A, Yes, sir.”
There was no testimony to the contrary. There was no error in this statement by the circuit judge of an admitted fact on the trial. The judgment is affirmed, with costs.
Champlin, C. J., Morse and Long, JJ., concurred. Grant, J., did not sit. | [
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Grant, J.
April 28, 1884, defendant executed to William Anderson a mortgage for $5,646, due in five years, with annual interest at 7 per cent. Anderson died in 1886. Plaintiff was appointed administrator, and commenced a foreclosure of the mortgage by advertisement April 12, 1887, claiming as then due $929.38. In fact, the amount then due was only $525.78. April 28, 1887, another installment of interest became due, amounting to $395.22. The only irregularity in the notice was the •erroneous amount claimed. July 14, 1887, the premises were sold under the notice for the sum of $6,669.48, and were bid in by plaintiff. The difference between the amount actually due and the amount of the purchase price was never tendered to defendant. No money was actually paid at the sale. The sale was made by a deputy-sheriff, and the deed executed by the sheriff. The sale was made for the principal sum secured by the mortgage, the interest due at the date of sale, and costs of sale, less $63.64. The land was not worth the amount duo upon the mortgage. The sheriff's deed was executed to plaintiff as administrator.
July 2, 1888, defendant filed a bill in chancery against plaintiff, praying that the sale might be set aside. Issue was joined, and on September 24, 1888, decree was entered holding the sale to be null and void, and permitting defendant to redeem by paying $525.78, less the costs, within 90 days, and, in default of such payment,'that the bill be dismissed without costs. Defendant did not pay the amount decreed to be due. Plaintiff thereupon filed a petition setting forth that fact, and on April 8, 188.9, decree was entered dismissing the bill. Plaintiff, after demand, on April 12, 1889, brought this suit to recover possession of the premises. The case was tried by the court without a jury, and judgment rendered in favor of defendant.
The foreclosure sale was not made subject to future installments, but the proceedings were evidently conducted upon the theory that the mortgagee possessed the right to bid the property in for the full amount secured by the mortgage, * without any obligation resting upon him to pay to the mortgagor the amount not due. It is unnecessary to determine what the rights of the defendant would have been under the sale if no suit had been instituted by him to set the sale aside. But he has had his day in court in the manner chosen by himself. He did not choose to stand upon his rights at law upon the alleged ground that the sale was void, but he filed his bill in chancery praying that the sale be set aside and declared void. Our only concern, therefore, is to determine the effect of the final decree rendered in that suit.
The bill filed by defendant must be considered as a bill to redeem, and it can make no difference that he did not pray for the right to redeem. When no fraud is alleged, and the only irregularity is that the notice of sale claims a greater amount than is actually due, the mortgagor must be prepared to do equity, and this can only be accomplished by payment of the amount actually due, or by a decree for the resale of the premises. 2 Jones, Mortg. § 1921; Schwarz v. Sears, Walk. Ch. 172; Goodenow v. Curtis, 33 Mich. 510. It is well settled that, where no actual injury or fraudulent purpose is shown, the mere fact that a larger amount is claimed in a notice of sale than is actually due does not render the sale, and the deed made in pursuance thereof, void. Klock v. Cronkhite, 1 Hill, 110; Jencks v. Alexander, 11 Paige, 626; Millard v. Traux, 47 Mich. 251 (10 N. W. Rep. 358), 50 Id. 343 (15 N. W. Rep. 501). The case of Fosdick v. Van Husan, 21 Mich. 567, established the rule in this State that the decree should be for redemption by payment of the amount actually'due within a specified time, and that, in default thereof, the premises be sold as in foreclosure cases. Grover v. Fox, 36 Mich. 461; Newkirk v. Newkirk, 56 Id. 525 (23 N. W. Rep. 206); Meigs v. McFarlan, 72 Id. 194 (40 N. W. Rep. 246). The decree in this case did not provide for a resale upon failure to redeem, and, in this respect, was not in accordance with the established practice, but the defendant appears to have been satisfied with it. Whether it was such an one as he asked for does not fully appear. It is fair to presume that it was, for it nowhere appears that he objected to it, and he did not •appeal. The decree is therefore binding upon him. Were he dissatisfied with it, he should have appealed, and had his rights determined and the error corrected in that suit. He cannot now be heard to attack it collaterally. He must therefore be held to have rested satisfied with that decree, which was one of strict foreclosure. Prior to the decision of Fosdick v. Van Husan, supra, the prac tice in this State was to decree a dismissal of the bill upon failure to redeem, and this operated as a foreclosure. The court in the chancery case had jurisdiction of' the parties and the subject-matter, and, though the decree be erroneous, it is binding upon both parties until set aside.
Judgment reversed, and judgment entered in this Court for plaintiff.
The other Justices concurred^ | [
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Champlin, O. J.
This action is brought by the firm of Spitzer & Co., of Toledo, against the village of Blanchard, to recover the amount of certain bonds claimed to have been given on the purchase of a fire apparatus.
The defendant is a village organized in Isabella county under 'the general law for the organization of villages, being chapter 81 of Ho well’s Annotated Statutes. The first count in the declaration sets up that on October 9, 1885, one John T. Noble submitted to the village of Blanchard a proposition in writing for the sale to it of certain fire-extinguishing apparatus to be manufactured by John T. Noble. In this proposition he agreed to manufacture, and furnish to the village, and to ship the same within 60 days after the acceptance of his proposition, one hand-engine, one hose-cart, and 500 feet of hose; the apparatus to be built in accordance with the following specifications as regards equipment, dimensions, material, finish, etc., to wit: One crane-neck hand-engine, capable of turning on its own length* with two 5|- inch pumps, side-brakes, one arch-scroll (name on scroll, “Rescue No. 1”), one bell on scroll, room on brakes for 10 men, and suction carried squirrel-tail fashion, strains on end of suction, Sarven “A” wheels, and tongue and drag-rope (the hose-cart to be capable of carrying 600 feet of hose in safety), 500 feet of hose, all to be first-class, for the sum of $750, payable as follows: One hundred dollars on delivery, and $300 in June, 1886, and $350 and interest in June, 1887 (apparatus at the village of Blanchard, Mich.). Noble agreed that the material and workmanship should be of the best character, and that he would at his own expense replace such parts, if any, as might fail, if such failure was attributable to a defect of material or inferior workmanship. And he agreed to fully guarantee the apparatus to perform efficient fire duty, accidents or injuries excepted.
The declaration alleged that the common council of the village of Blanchard, at a meeting duly and regularly called, passed and adopted on behalf of the village the following resolution:
“Resolved, By this board of trustees that we purchase of J. T. Noble, of St. Louis, Michigan, the fire apparatus as per his proposition made to this board in writing, to wit, one hand-engine, one hose-cart, and 500 feet of hose, for the sum of $750, to be paid for as follows: One hundred dollars to be paid on delivery thereof; three hundred dollars by a bond of this village made payable to the said J. T. Noble, or order, and to become due June 1, 1886; three hundred and fifty dollars by a bond of this village made payable to said J. T. Noble, or order, and to become due June 1, 1887; said bonds to draw interest at the- rate of seven per cent, per annum, payable annually; and that the president and clerk of this board be and are hereby authorized and empowered to execute and deliver to the said J. T. Noble said bonds as aforesaid, upon the delivery of the aforesaid fire apparatus.”
The declaration in this count also avers that the contract was entered into on October 9, and signed by Ira Higby, president pro tem., and L. A. Houghton, clerk, and John T. Noble, in which Noble agreed,' as party of the first part, to sell to the village of Blanchard, party of the second part, the fire apparatus described as one crane-neck, side-brake hand-engine, one hose-cart, and 500 feet of hose, all to be in accordance with the specifications and guaranties set forth in the proposals of the party of the first part, and annexed to the contract, the same to be delivered free on board the cars at St. Louis, Mich., on or before December 9, 1885; and the second party agreed to purchase and pay for the aforesaid property, delivered as aforesaid, the sum of $750, in the following manner: One hundred dollars on delivery, $300 and interest in June, 1886, and $350 and interest in June, 1887.
It is further alleged that Noble delivered to the village of Blanchard the said apparatus in good condition, and performed all things by him to be performed; that the apparatus was duly received and accepted by the village on or about November 9, 1885, at a special meeting of the common council of the village, which was duly and regularly called, and at which the following resolution was adopted, to wit:
" That inasmuch as J. T. Noble has furnished and ■delivered the fire apparatus in accordance with his proposition and contract with this village, under date of October 9, 1885, and that the same having proven satisfactory upon a trial thereof, that we do now accept the same; and that the clerk and president execute and deliver the bonds of said village to said J. T. Noble in accordance with a resolution passed by this board October 9, 1885.”
It further alleges that on November 17, 1885, the village, by its president and clerk, executed and delivered to said John T. Noble its two bonds, Nos. 1 and 2, respectively, which bond (No. 1) reads as follows:
"No. 1.
"Blanchard Village Bond, $300.
'" Know all Men by these Presents, That the village of Blanchard, in the county of Isabella, and State of Michigan, acknowledges itself justly indebted, and hereby promises to pay, to John T. Noble, or order, three hundred dollars on the first day of June, A. D. 1886, at Gardner & Gardner’s Bank, Edmore, Michigan, with interest at the rate of 7 per cent, per annum.
"This bond is issued in conformity with the general laws of the State under which the said village of Blanchard is incorporated, and authorized by the board of trustees at a regular meeting thereof held at the village of Blanchard aforesaid, on the ninth day of October, 1885, for the purpose of purchasing certain fire apparatus, and is payable out of the general fund of said village.
“ In testimony whereof the president and clerk have signed this bond this seventeenth day of November, 1885.
“Henry Y. Darling, President.
“L. A. Houghton, Clerk.”
The other of said bonds is of like tenor and effect, whereby the village promises to pay $350 to the order of John T. Noble, on the first day of June, 1887, at the same place and rate of interest; and it contains the same recital as bond No. 1. Plaintiffs allege as a breach that the bonds have not been paid, nor the interest thereon.
The second count of the declaration counts upon the-proposition, contract, and resolutions, independent of the bonds. The third count briefly counts upon the bonds-themselves without setting forth the consideration.
The defendant pleaded the general issue, and gave notice of several special defenses, and, among others, that the bonds were invalid for the reason of the want of power to issue them under the Constitution and laws of Michigan. And this raises the main point argued in the-case.
The Constitution, by Article 15, § 13, provides:
“The Legislature shall provide for the incorporation and organization of cities and villages, and shall restrict their powers of taxation, borrowing money, contracting debts, and loaning their credit.”
The Legislature, by Act No. 62, Laws of 1875, passed an act granting and defining the powers and duties of incorporated villages, and it is under this act that the village of Blanchard is incorporated. Chapter 9 of that act relates to finance and taxation, and section 1 (How. Stat. § 2923) authorizes the village council to raise by general tax upon all the real and personal property liable to taxation in the village, exclusive of taxes for highway and street purposes, such sum, not exceeding in any one year 1£ per cent, of the assessed value of such property, as they shall deem necessary for the purpose of defraying the general expenses and liabilities of the corporation, and to carry into effect the powers granted in that act. Among other powers granted to the village is the power to make ordinances for the organization and regulation of the fire department, and for the prevention and extinguishing of fires. Chapter 9 also provides (section 7) that the assessor of the village shall in each year make an assessment roll containing the description of the real and personal property liable under the laws of the State to taxation in the village, and shall set down in the roll the valuation of such property at its true cash value, and in doing so he shall conform to and be governed by the provisions of law governing the action of supervisors of townships performing like service, unless otherwise in the act provided. Provision is also made for the review of this assessment, and that the roll, after review, shall be certified to the village council, who, after an examination, shall certify it back to the assessor, together with the amount which they require to be raised by the general tax for highway and other general purposes. The assessor js then to spread the tax upon the assessment roll, and deliver it to the marshal, with the warrant of the president annexed for collection. Provision is also made for a return and sale of the property in case of non-payment.
Section 31 of chapter 9 (as amended in 1879), being section 2953 of HowelFs Annotated Statutes, provides that—
“The council of any village organized under the provisions of this act may, by a concurring vote of two-thirds of the trustees elect, borrow, in any year, in anticipation of the collection of taxes for the same year, such sum, nor exceeding one-half of the tax, as may be necessary to defray current expenses.. The money so borrowed shall be so repaid from such tax when collected.”
Section 32, being section 2954 of Howell’s Statutes, provides as follows:
“Should any greater amount be required in any year for the purchase of grounds for erecting public buildings, or for other necessary corporate purposes, than can be raised by the council under the foregoing provisions of this chapter, such amount may be raised by tax or loan, or partly by tax and partly by loan, if authorized by a majority vote of the electors voting upon the question at an annual or special village election. The amount that may be voted or raised, in any year, under the provisions of this section, shall not exceed two per cent, of the assessed valuation of' the property in the village as shown by the last preceding tax roll made therein.”
Section 33, being section 2955 of Howell’s Statutes, provides that—
“The proposition to raise such additional amount shall be submitted to a vote of the electors by an ordinance or resolution of the council, distinctly stating the purpose of the proposed expenditure for which said money is required, the amount proposed to be raised therefor, and whether by tax or loan, and appointing the time when the vote will be taken.”
This section also provides for publication of notice of the election.
Section 35, being How. Stat. § 2957, reads as follows:
“No loans shall be made by the council, or by its authority, in any year, exceeding the amounts prescribed in this act. For any loans lawfully made, the bonds of the village may be issued, bearing a legal rate of interest. A record showing the dates, numbers, and amounts of all bonds issued, and when due, shall be kept by the clerk.”
Authority is given by chapter 10 to the council to purchase and provide suitable fire-engines ajid apparatus for the extinguishing of fire, but the only method provided for meeting the expense of purchasing such fire-engines and 'apparatus is that above quoted. Chapter 11 •of the act authorizes the village to construct and maintain water-works; and for this purpose express provision is made for borrowing the money to be used exclusively for that purpose, thus, by implication, prohibiting the borrowing of money for purchasing fire-engines and apparatus except under the provisions and restrictions above set forth. The provisions above quoted from chapter 9 relative to the authority to borrow money for necessary corporate purposes, exceeding in amount that which the common council can raise by ordinary taxation in any one year, do not provide how the votes shall be canvassed, •or the result certified.
It is claimed on behalf of the defendant that the bonds upon which suit is brought are void for the reason that the amount is in excess of 1-£ per cent, of the assessed valuation of the real and personal property in the village for the year in which the indebtedness was incurred, and that there was no vote of the electors of the village authorizing their issue. The circuit judge was of this opinion, and. directed a verdict for the defendant. The plaintiffs claim that, in case of bonds issued by a municipal corporation, if the corporation could under any circumstances issue the same, and they are proper in form, the holders will be protected as bona fide purchasers, and when bonds recite the existence of precedent conditions they are conclusively presumed to exist when the bonds are in the hands of bona ficle holders^ And they further claim that the plaintiffs had a right to depend on the circumstances as they appeared, knowing that, to the extent necessary to execute the special powers and functions with which defendant was endowed by its oharter, there was an implied incidental authority to contract obligations and incur debts, there being no express limitations in such oharter.
We think that there are express limitations in the charter upon the power' of the council to incur indebtedness, and that such limitations are found in the restrictions of their power to incur such indebtedness not to exceed, in ordinary cases, 1|- per cent, upon the assessed valuation of the real and personal property in the village, and that they cannot exceed that limit unless they are authorized so to do by a vote of the electors, in the manner and under the circumstances prescribed in the act, in which case they are limited to 2 per cent, of the assessed valuation of the property in the village as shown by the last preceding tax roll made therein. The record in this case shows that the amount of such assessment was $11,708. This would only permit them to incur indebtedness for ordinary purposes of $146 and a fraction. And this shows that they could not incur the indebtedness for the purchase of this fire apparatus without a vote of the electors.
It is not entirely accurate to say that holders of bonds issued by a municipal corporation will ‘ be protected as bona fide purchasers if the corporation could, .under any circumstances, issue the same. This question was considered by the Supreme Court of the United States in Dixon Co. v. Field, 111 U. S. 89 (4 Sup. Ct. Rep. 315), where the proper distinction is drawn as to irregularities in the exercise of the power conferred and the total want of power to do the act. Where there is a total want of power, under the law, in the officers or board who issue the bonds, then the bonds will be void in the hands of innocent holders, the distinction being between questions of fact and questions of law. If it is a question of fact, and the board or officers are authorized by law to determine the fact, then their determination is final and conclusive, And although it may be contrary to the fact, yet, if recited in the bond that the necessary and proper steps required by law to be taken had been taken, then the municipality is estopped from denying that they were taken. But it is held that all persons are presumed to know the law, and if the law created conditions precedent upon which the right to act at all depended, and these conditions were not complied with, and the law appointed no board or officer to determine that fact, then there could not be an innocent holder of such bonds. Bernards Township v. Morrison, 10 Sup. Ct. Rep. 333.
In this case there was no authority in the council nor in the president and clerk to issue the bonds in suit, unless first authorized to do so by a vote of the electors, and the law did not make the president and clerk the judges to determine and certify the existence of the fact .as to whether there had been an election or not; and consequently the recitals in the bonds that they had been issued in accordance with law bound no one, and protected no one dealing with the bonds. Speaking upon this subject Mr. Justice Matthews, in Dixon Co. v. Field, said:
“Recurring, then, to the consideration of the recitals in the bonds, we assume, for the purposes of this argument, that they are in legal effect equivalent to a representation or warranty or certificate on the part of the county officers that everything necessary by law to be done has been done, and every fact necessary by law to have existed did exist, to make the bonds lawful and binding. Of course, this does not extend to <yr cover matters of law; all parties are equally bound to know the law; and a certificate reciting the actual facts, and that thereby the bonds were conformable to the law, when, judicially speaking, they are not, will not make them so, nor can it work an estoppel upon the county to claim the protection of the law. Otherwise, it would always be in the power of a municipal body to which power was denied to usurp the forbidden authority by declaring that its assumption was within the law.”
In the present case there was no power to issue the bonds of tbe village except by a vote of the electors, and then only to the amount of 2 per cent, upon the assessed valuation. Under this restriction they could not issue bonds to exceed 1234.16. So the bonds issued were in excess of the amount authorized. The limit of power is determined by three facts:
1. The amount of bonds to be issued.
2. The assessed value of the property of the village.
3. The vote of the electors authorizing the issue.
The amount of the bonds to be issued was known and appears upon the face of the bonds. The assessed valuation and the vote of the electors are matters of public-record, and are open to all the world for inspection and ascertainment, and are as accessible to intending purchasers as other persons. The limitation of power upon the common council appears in the public statute, and is presumed to be known by all dealing with corporate authorities or in corporate bonds. McBrian v. Grand Rapids, 56 Mich. 95 (22 N. W. Rep. 206).
The testimony failed to show an acceptance of the-apparatus. The sjmcial meeting at which such action was attempted was not legally called, and the resolution passed by it was not binding on the corporation. The corporate authorities have steadily refused to use or accept the apparatus, and have housed it subject to Noble's order. There can be no implied liability of a village where there can be no binding express contract. In this case there never was a valid contract between Noble and the village because of the want of authority of .the village to incur the liability in excess of its power to raise by tax the money to liquidate such indebtedness.
At the time the contract was entered into the village had no funds at its disposal, from liquor tax or otherwise, out of which it could pay for the apparatus. The question of authority relates to that time.
The judgment must be affirmed.
The other Justices concurred.
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] |
Grant, J.
The charter of the city of Grand Kapids contains the following provisions:
“ Whenever the common council shall determine that the whole or any part of the expense of any public improvement shall be defrayed by an assessment on the owners or occupants of houses and land to be benefited thereby, they shall declare the same by an entry in their minutes, and after ascertaining, as provided in section two of this title, the estimated expense of such improvement, they shall declare by an entry in their minutes whether the whole or what portion thereof shall be assessed to such owners and occupants, specifying the sum to be assessed, and the portion of the city which they deem to be benefited by such improvement; the cost and expenses of making the estimates, planá, and assessments incidental thereto shall be included in the expense of such improvement.” Section 3, tit. 6, of the charter (Local Acts of 1883, p. 416.)
“If, upon completion of any such improvement for which such assessment shall have been made, it shall appear that a greater amount has been assessed and collected than is necessary to defray the expenses thereof, the common council shall apportion such excess among the persons and property assessed, in proportion to the amount collected of them, and shall pay the same to such persons, and the owners of such property entitled thereto, on demand.” Section 14, tit. 6, of the charter (Local Acts of 1877, p. 161.)
Eight special public improvements, consisting of sewers, and grading and graveling streets, were duly made by the city authorities, and the assessments levied. The plaintiffs were the owners of valuable lands in the various assessment districts within which these improvements were made. Upon the completion of these improvements, there was found to be a surplus in the treasury upon some, and a deficiency upon others, after deducting certain expenses hereinafter mentioned. The council made no reassessment in those districts where there was a deficiency. The surplus in each case was, by resolution of tlie council, transferred from the special fund to the general fund of the city. The following expenses were paid by the city out of the general fund, and not out of these special funds, viz.: Expenses of board of review in making rolls; printing, consisting of advertising for proposals, notice of hearing appeals, etc.; expenses for surveying and engineering; abstracts of title; and cost of assessment i’oll books.
September 19, 1887, plaintiffs presented a petition to the common council, showing the cost of the improvements, the amount assessed against them, and showing that the amount due them was $551.64, and demanding payment. The petition was referred to the committee on ways and means, who reported the same back to the council, November 28, 1887, recommending an examination of the tax rolls, and that the amount of such overtax,’ if any, be paid back, after deducting all claims which the city might have against said fund. This report was laid upon the table, and nothing more appears to have been done by the council in regard to it.
Plaintiffs brought an action of assumpsit, June 5, 1888, upon the common counts. A bill of particulars was furnished showing the amounts raised for each improvement, the amounts paid by plaintiffs, the amounts unexpended and transferred to the general fund, and the amount due the plaintiffs. Upon the accounts as they stood, there was a surplus in each case. In some cases the surplus was wholly wiped out by deducting the expenses above referred to, and a deficiency shown, while each amount was reduced by tbe deduction of such expenses.
The case was tried before the court without a jury, and the judge found the following conclusions of law:
“1. The plaintiffs are entitled to recover in this suit their proportion of the balance remaining in said special funds after the payment of all expenses chargeable to said funds.
“2. The defendant is entitled to deduct from the amount transferred from the said special funds to the general fund, as hereinbefore set forth, the amounts paid by said defendant from its contingent and general funds for the salaries of the board of review and equalization in making said rolls, for printing incident to the making of said rolls and the collection thereof, for the engineering and surveying done in making said improvements, for the abstracts used by the board of review and equalization in making said rolls, and for the books on which said rolls were made.”
After deducting these items of expense, the court found the amount due, with interest from the date of demand, to be $31S.33, for which judgment was rendered.
Í. It was said in behalf of defendant that assumpsit will not lie, but that plaintiffs’ only remedy was by mandamus to compel the common council to apportion the surplus, and pay it over. The claim is not well founded. The defendant contested all liability, as well as the amounts. The plaintiffs had made a demand, which the defendant ignored. The action for money had and received is an equitable one, and can be maintained for money which in equity and good conscience belongs to the plaintiff. The objection is purely technical, and the defendant will not now be permitted to raise it after its virtual denial of the plaintiffs’ rights.
Besides, it has misappropriated the funds by transferring them to the general fund, and therefore no longer has any specific fund to apportion, as the charter requires. Plaintiffs must now be paid out of the general fund. This transfer was undoubtedly made under the authority supposed to be conferred by section 3, tit. 10, of the charter (Local Acts of 1877, p. 179), which reads as follows:
" Whenever there shall be found in the treasury of said city any sum of money not otherwise appropriated, or whenever any fund of said city shall contain a balance after all legal demands against it shall have been satisfied, the same shall be transferred by the city treasurer to the general fund under the direction of the common council.”
But this section is not applicable to these special improvement funds.
2. From the amount due the plaintiffs in each fund the court deducted the expenses of the board of review, the cost of making the estimates, plans, and assessments, printing, abstracts of title, and books for making the assessment rolls. We think this was correct. Plaintiffs contend that these were to be paid out of the general or contingent fund. They were paid in the first instance out of such fund, and the charter provides that these preliminary expenses may be so paid. Section 7, tit. 6 (Local Acts of 1877, p. 159), provides:
"The members of said board of review and equalization, as such commissioners [to make these special assessments], as by this act constituted, shall each receive the sum of three dollars per day, when actually employed, to be paid out of the contingent fund of said city.”
If this provision were to be interpreted by itself, no doubt would arise. But the provision of the statute first above quoted expressly makes the cost and expenses of the estimates, plans, and assessments incidental thereto a part of the expense of the improvements. There could be no purpose in this provision other than to make the property-owners benefited bear this expense. With this in mind, any apparent conflict or inconsistency between the two provisions disappears. The court included all these necessarily incidental expenses, and excluded others ■which were not contemplated by the charter. This we think was correct.
3. There were eight distinct special improvements. The defendant sought to set off the plaintiffs’ proportion of the amount of the deficiency against the amounts due them where there was a surplus. Each improvement must stand by itself, and the only way in which the city can provide for such deficiency is by another assessment in such case. A debit in one fund cannot be offset by a credit in another fund.
Both parties having appealed, and the judgment being affirmed, no costs will be allowed.
The other Justices concurred. | [
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] |
Grant, J.
Plaintiffs brought suit to recover a balance of $373.27 due them for wire cloth " sold to defendant. Judgment in the court below was rendered for plaintiffs.
The judgment is admitted to be correct, unless the defendant is entitled to recoup damages for the violation of a contract alleged to have been made between the parties, by which it is claimed that plaintiffs agreed to buy of the defendant 500 dozen, or more, screen doors, at certain specified prices, to be applied in payment of wire cloth purchased from plaintiffs by defendant. Defendant insists that a written contract was made by correspondence between the parties, as above stated. Several letters passed between them, but it is contended by the defendant that two letters, one written by him to plaintiffs November 28, 1888, and the reply of the plaintiffs, written November 30, concluded the contract. The first-named letter is as follows:
“ Messrs. Fletcher, Jbnks & Oo.,
“ Detroit, Mich.
“ Gentlemen: Tours of the 11-27 received. We are satisfied to sell you 500 dozen, or more, doors, should you want them, at the price named by you, but will expect you to take any doors you give us specific orders for, which we think will be satisfactory to you, as we should not want to have order canceled after goods were made. Can you not give us about the percentage of doors you are likely to need so that we may be able to determine the amount of cloth we shall require? An early reply will oblige,
“Yours respectfully,
“E. Germain.”
The reply was as follows:
“■Edward Germain, Esq.,
“East Saginaw, Mich.
“Dear Sir: Replying to your favor of the 28th, you have our idea exactly, and your proposition is satisfactory. Would say that the specifications would run, so far as we can now tell, the same as last year. You can get the proportion of sizes from last season's business as nearly as we could give them to you. * * * *
“ Yours truly,
“Fletcher, Jenks & Co.”
Whatever conclusion might be drawn from these two letters, there is other correspondence showing the intent and understanding of the parties. The negotiations com menced November 20, 1888, by a letter from plaintiffs, in which they say:
“Please enter our order for coming season's wants on screen doors, not to exceed 500 dozen, at the following terms," etc.
Accompanying this was another letter, of the same date, containing an order for 247 dozen doors. To these letters defendant replied November 26, in which he says:
“Will enter your order for -247 dozen doors for stock, but would not care to take order for 500 dozen, giving-us the privilege of meeting any low price, or canceling any unfilled order, as we should not care to make any to-hold over. We will sell you the 500 dozen at the price you named, if you will send list of sizes you want, or will place your order for above amount."
To this plaintiffs replied' the following day, stating that they expected to sell 500 dozen during that year, and expected to sell defendant's doors altogether, but that it-would be impossible for them to specify the whole amount, until after their travelers had made a trip. They closed the letter with this language:
“ The whole thing summed up is, we want to give you our season's business, whatever it may be, on these goods, at this price. Is this satisfactory?”
Then followed the two letters first above given. This-ended the correspondence for that year. On May 9, 1889, defendant wrote plaintiffs asking for a list of sizes of doors they thought their trade would require, and stating-that he had about 300 dozen in stock, and should not-care to make any to hold over. To this plaintiffs replied, May 10:
“It would be impossible for us to make up an order now for what we want. We are not any more desirous of carrying over stock than yourself."
It is evident from this correspondence that no contract was made between the parties for, at least 500 dozen doors. It was a contract for so many as tbe plaintiffs sbonld need for tbe season^ wants. No other conclusion can, in our judgment, be reached. The circuit judge was correct in instructing the jury to find a verdict for the plaintiffs.
The judgment is affirmed.
The other Justices concurred. | [
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Ohampiut, C. J.
This is an action of trover brought by the plaintiff against the defendants, as husband and wife, for the alleged conversion of a lot of household goods.
The plaintiff was engaged in the restaurant business in the city of East Saginaw. On May 30, 1887, he and his wife, Louisa Iler, executed and delivered to Henry Turner, of East Saginaw, a chattel, mortgage covering their household goods, kitchen utensils, filter, refrigerator, a sewing-machine, and wearing apparel, to secure the payment of 830 in 30 days, with interest at 8 per cent. When the 30 days came around they obtained a renewal for another 30 days by paying Turner 83, and when the time expired again, in July, they obtained a further renewal by paying to Turner 83 for an extension of time for 30 days.
On August 26 they made the defendant and his wife acquainted with the fact that they had given this mortgage, and also that for lack of custom they were going out of the business, and were fearful that they would lose the property covered by the mortgage. The plaintiff and his wife testified that the defendants offered to' befriend them, and let them have the money to take up the mortgage, or to take an assignment of it to Baker, and saying to them that they could have their own time ■in which to pay it; that an arrangement was made by which Elick L. Baker paid to Turner the money due him upon the mortgage and the note thereby secured, and. Turner assigned the mortgage and delivered the note and mortgage to Baker. Baker in this arrangement insisted that he should also have an absolute bill of sale of the property, in order that he might not be to the expense of a sale under the chattel mortgage at public auction in case they should fail to redeem it, and after the assignment of the mortgage was executed and .delivered to him he prepared a bill of sale of the goods of every description covered by the mortgage, except wearing apparel. The goods were delivered into the possession and control of Baker. Some were stored at his house, and some at other places.
After the mortgage was executed, Iler went to Baker and requested the feather-bed and some other articles, including the sewing-machine, which Baker delivered to him and his wife. She shortly after went to Canada, where she had formerly resided, and he obtained work in the lumber woods. In the spring he came back to East Baginaw, his wife preceding him. She went to Baker and told him that she had the money to pay the debt, and requested the goods. He told her that he had none of her goods, except her child’s picture, which she could have, and which he got and gave to her. She demanded the goods, but made no tender of the amount due. Afterwards her husband called upon Mr. Baker, a'nd requested the goods. Baker claimed that the bill of sale •conveyed- to him the absolute ownership of the goods, and refused to deliver any of them. Plaintiff made no tender ■of the amount due. At the time plaintiff’s wife made ■demand for the goods the defendant Mr. Baker told her that he had disposed of part of them, and intended to keep the balance, except the picture, which he gave her. It also appeared in evidence upon the trial that Baker had disposed of a portion of the goods, and that he had the balance in his possession. A portion he had disposed of to one Gottlieb Stork, amounting to $56.50. A part of the purchase price was applied on a note which Stork held against Mrs. Baker. The exact amount does not ■appear, nor does it appear what particular items of goods remained in Mr. Baker’s possession, nor the value of them, as distinct from those that had been sold. The bill of ■exceptions states that it contains all the testimony given upon the trial.
It is claimed on the part of the defendant—
1. That no sufficient demand was made for the goods •before suit brought.
2. That there was no tender of the amount due Baker.
3. That the court erred in reference to his charge respecting the liability of Mrs. Baker in this action.
4. That he erred as to the rule of damages which he laid down for the jury.
Some other errors of minor importance are relied upon, but which are not necessary to notice. We think the' court was correct in its instruction to the jury with reference to the bill of sale. The circumstances detailed in the testimony presented a state of facts for the jury to determine whether or not the transaction was an absolute purchase by Mr. Baker, or whether the bill of sale was received by him as security for the money which he paid to Turner to obtain the note and mortgage of him. That certainly was the only consideration which passed between the parties, and the assignment of the mortgage was sufficient to support that consideration; and it is-plain enough from all the testimony that the bill of sale could be considered in no other light than as an additional security in the hands of Mr. Baker for the money which he had paid. His position with reference to the property was that of a pledgee or mortgagee in possession. If the testimony of plaintiff was entitled to credence, then there was an extension of time for the payment of the money due to Mr. Baker. But the time was indefinite; and had he retained possession of the goods it would have been necessary for the plaintiff both to have made a tender of the amount due and to have made a demand for the delivery of the property before he could maintain an action of trover for its conversion. But Baker, being in possession as pledgee of the property, as the testimony shows, sold sufficient, and more than sufficient, to pay the debt due to him from Iler, in which case he became bailee for Iler of the remainder of the goods, and also it was his duty to pay over the surplus money realized on the sale over aiid above the debt due to Mm on request; and in such case neither tender nor demand was necessary before bringing action where the pledgee asserted absolute title to the goods, and denied all right of property in the pledgor to them.
But we are unable to discover how Mrs. Baker can be held jointly liable with her husband in an action of trover for the conversion of the goods. The testimony shows that Baker advanced the money, took the assignment of the mortgage to himself, in his own name, and also a bill of sale signed by the plaintiff and his wife, running to himself, and all this with the consent of plaintiff and his wife. His refusal to deliver up what goods remained in his possession, and denying the right of Iler to them, do not constitute a conversion by Mrs. Baker. The only testimony which has a tendency in the least to show that she had anything to do with the conversion was the testimony of Stork, who claims that for part of the goods purchased by him from Baker he turned out a note which he held of Mrs. Baker, but even that would not make her liable for the conversion, unless she actually participated in the disposition of the property to him. It is true that he’says that Mr. Baker consulted with his wife from time to time as to what property he should let Stork have. But we think, in the relation which they occupied to each other as husband and wife, all these acts may be considered the acts of Baker.
But the court, in giving the case to the jury, placed her liability on different and peculiar grounds from those above stated. He charged the jury as follows:
“If you find from the evidence in this case that Mr. Baker had the Turner mortgage assigned to him, and the bill of sale executed to him of the goods in question, and the goods delivered to him, with the intention of obtaining the property and converting the same unlawfully to his own use and benefit, and that all the trans fers were as security, and you also find that Mrs. Baker knew that the transfers were as security only, and without the direction or coercion of her husband, but voluntarily, aided and assisted her husband in obtaining the transfers and in disposing of the property or in asserting absolute title to it, she having also the intention to aid her husband in converting unlawfully the property to his use, their joint use, or their separate use, she would in such case be liable for the value of the goods so converted. If what she did in this respect was without any such wrongful intention, but she was simply acting under the direction of her husband, or under his coercion, or simply being with him and assisting him in a general way that she supposed was a lawful act on her part, she would not be liable.”
In these instructions we think the court erred. There is no special count in the declaration charging fraud upon Baker and his wife in the procuring of the mortgage, or any intention to defraud plaintiff by obtaining possession of the property under the guise of taking it as security, and then converting it to their own use, and this portion of the charge is entirely without testimony to support it. It was a theory which neither side asserted, and which no testimony supported.
The court also erred with respect to the rule laid down for the guidance of the jury in arriving at the damages. Upon this subject he instructed the jury as follows:
•■‘With reference to the value of the goods in a case •of this character, the general rule of law is that if a party is entitled to recover damages he is entitled to recover the market value of the goods converted. But the rule presupposes that the goods converted were marketable property; otherwise the rule does not apply. The rule that the true rule of damages is the market value is the rule where the property converted is marketable property; that is, property for sale in open market, such as stores and other places, where a party who has lost goods can go and replace them by purchase. Now, with regard to these goods, if such goods as the jury find from the evidence in this case that the plaintiff could replace by going in the market and buying them, — that is, goods of the same general character and condition, — (remember, these goods had been used; were not all new), if you find from the evidence in this case that they could go into the market in East Saginaw and buy second-hand goods as good as those were, if you find they were converted by the defendant or the defendants, then the true rule of damages would be the value of these goods in the market; but if such goods were not to be found in the market, so they could have been replaced by purchase in an open market, then the fair value of the goods to the owner would be the true rule of damages.55
The character of these goods, as indicated by the declaration, was, as stated before, household goods, tableware, furniture, etc., such as are used by any party in keeping house. They were second-hand goods, and as such had a value in the market, as appears .from the testimony in the case. There was no article, such as family pictures or heir-looms, which had a special value to the owner aside from its market value. The testimony of the witness Becker, who had been engaged in dealing in second-hand household furniture and other goods for years in East Saginaw, showed that there'were several second-hand dealers in the city following the business, and that he had been requested by Mr. and Mrs. Iler to examine their goods, with a view of selling them to him, previous to the assignment of the mortgage to defendant Baker. He had taken a list of the goods, and had placed a value upon each item, and he testified that these goods had a market value in the second-hand market, and that they could be purchased in the secondhand stores at the value he placed upon the goods, which was $77. In view of this testimony, and the absence of any testimony showing a peculiar value in the goods to the owner, the court was not justified in assuming that these, goods had no market value, and could not be replaced in open market where such goods are dealt in, and he erred in giving the rule to the jury that the damages would be the fair value of the goods to the owner.
Judgment is reversed, and a new trial granted.
The other Justices concurred. | [
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Grant, J.
This suit was brought upon the following written agreement:
“ In consideration of the undertakings of DeWitt E. Wilbur, in connection of the Stoepel Lumber Company, ( and as part of the contract for the sale of $10,000 of the j capital stock of said company by us to him, we hereby j •agree that if at the end of two years he decides to with- j ■draw from said company we will repurchase the stock he j buys of us, or so much of it as he may then have, for l ■cash, at 80 per cent, of its par value; and if at any time j during the first two years the said company dispenses l with his services we agree to buy back the stock, on the \ •same terms as above stated; but in either case we stipu- J late to have three months* time in which to take and pay/ for the same.
“ William C. Stoepel.
“Joseph E. Watson.
“April 1,1884.**
The first declaration filed in the case set forth the above agreement in hcec verba, and alleged that the defendants were large stockholders in the Stoepel Lumber Company; that they were desirous of selling 400 shares of its •capital stock to plaintiff, and that he should become man•ager of the business; that he agreed to become a member of the corporation, and manager of its business, and! that thereupon the above written contract was executed.! The contract was not made with the company, but with two of its stockholders. One Herman E. Stoepel was •also a large stockholder. This declaration did not allege any contract with him, verbal or written, nor any ■consent on his part to the agreement sued on, nor did his name appear in the declaration. Issue was duly .joined, and the case came to trial. Upon that trial there was no evidence of consent on the part of Herman E. Stoepel to the agreement, and the court held that the contract was void as against public policy,'~ahcf thereupon the plaintiff withdrew a juror.
Plaintiff then filed an amended declaration, in which he alleged that the two Stoepels and Watson, on March 26, 1884, owned a saw-mill and the land on which it was situated, and that he owned a stock of goods; that they proposed to him to organize a corporation with a capital stock of $50,000, the above property to be turned over to' the corporation, and plaintiff to pay in a certain amount in money; that they proposed to make him manager; with a salary of $1,500, to give him $10,000 worth of the capital stock, and to agree in writing that if at the end of' two years he should desire to withdraw from the company they would purchase his stock at $8,000; that the formal organization was completed; that, before he had transferred his stock of goods to the corporation, Herman Stoepel refused and declined to join in making the written agreement, and that thereupon the defendants by themselves, and without said Herman, made said written agreement. The declaration is entirely silent as to any assent to the agreement, except the alleged verbal promise to make such an agreement, which it is alleged he refused to carry out. Issue was joined, and, upon the second trial, verdict and judgment were rendered for the plaintiff.
This alleged agreement between the defendants, who-owned a majority of the stock, and the plaintiff, is contrary to public policy, and void as against those not consenting to it. The defendants were directors, and, in the management of the corporate affairs, cannot but be unduly influenced by such an agreement. Their natural desire and inclination would be to continue the plaintiff as manager, although it were against the interest of the other stockholders, and would be against their own as stockholders, but for the agreement which might render them liable for the payment of a large sum if they failed to retain him. Nor is such contract made valid by the good faith of the parties to it. Its effect,upon stockholders who are not parties to it, or do not consent to it, is the same in the one case as in the other. The law therefore wisely condemns and prohibits all such contracts.. The Supreme Court of the United States has so decided in a recent case, under facts very similar to the case at bar. West v. Camden, 10 Sup. Ct. Rep. 838, and authorities there cited.
The pivotal question in the ease, therefore, was whether Herman R. Stoepel consented to the agreement. The learned circuit judge charged the jury that the agreement upon its face was void, but that there was evidence in the case that Herman did consent to it, and if he did the plaintiff was entitled to recover. The learned counsel for plaintiff seem to admit in their brief that there was no such evidence, but insist that defendants cannot complain, because their counsel admitted there was, by asking the court to instruct the jury that plaintiff could not recover unless they found that Herman consented to the agreement. We do not think this warranted the judge in charging that there was evidence, if such was not the fact. The establishment of such a rule would require greater care and caution on the part of counsel in the trial of causes than can well be exercised, and would often result in the defeat of justice. Litigants cannot be deprived of their right to except to instructions by the court unless they have expressly requested them. Requests by' implication are not known.
A careful examination of the evidence is therefore necessary in order to determine whether this instruction was correct. The allegation in the declaration that Herman R. Stoepel made a verbal promise to make such an agreement is not sustained by the proof. On the contrary, by plaint iff’s own evidence, he expressly refused from the beginning to make any such agreement. The agreement sued on was signed by defendants April 14, although dated April 1, as the latter was the date from which the operations of the corporation were to commence. Herman was not then present, and, if any consent was given by him which was binding upon him, it was given before April 14. This depends upon two conversations testified to by plaintiff, one in February, and the other on March 26, when the articles of association were signed. He testified that defendants read and offered to him a proposition to buy back his stock, should he withdraw at the end of two years, or should the company decide to dispense with his services. This proposition was unsigned. When first read, defendants and plaintiff alone were present. It was read again when Herman was present, and he said:
“ That is all right, Mr. Wilbur, only I have not enough interest in it to guarantee it myself. Mr. Watson and brother Will here can do so if they like. I have no objections, but I have not money enough in it so that I would agree to it.”
When the articles of association were signed, plaintiff says that the question of this contract was brought up again, and there was some talk about it, and Herman said, as before, that—
“He had not enough in it so that he cared to sign it, but he had no objection to Mr. Watson and W. C. Stoepel making that contract.”
The above is the testimony of plaintiff upon the last trial. Upon the first trial he testified as follows, referring to the conversation on March 26:
“Q. How did it happen that Herman R. Stoepel did not sign this paper?
“A. At the time we were talking of this, at the time of the signing of it, H. R. Stoepel withdrew from the room. As he went out he beckoned to W. C. Stoepel. W. C. Stoepel went out with him. .W. C. Stoepel returned, but H. R. Stoepel did not. W. O. Stoepel said that H. R. Stoepel objected to signing the paper. Then Mr. Parker, who was doing my business for me, said: ‘The business is all up unless Mr. Wilbur is willing to go on without any such guaranty/ I stated that I was not willing. Joseph E. Watson said: ‘Will, you and I might make a contract with him, if he is willing to accept it/”
Plaintiff admitted on the second trial that the above transaction occurred when the articles of association were signed, and not when the contract to repurchase the stock was signed. It is clear, therefore, from this record that up to the meeting of March 26, when the articles of association were executed, plaintiff wished to obtain Herman as a party to the contract of guaranty; that he was then unwilling to consummate the arrangement unless this was done; that no such contract was at that time made with defendants until after Herman had left; that plaintiff had never expressed to Herman his willingness to take the guaranty from defendants alone; that no intimation was made to Herman at the meeting, or at any other time, that any such contract was contemplated between plaintiff and defendants; and there is no evidence that Herman had any knowledge of the existence of such a contract until May afterwards, when he says Parker presented it to him for signature. Hpon what principle can Herman R. Stoepel be held to have consented to a contract which he had never been informed was in contemplation? In order to make such a contract valid, which would be void without the consent of all the stockholders, there must be evidence that they had knowledge that it was to be made, and that they assented.
There is a further error in this instruction of the court. If there was evidence of consent he should also have instructed the jury that there was evidence of non-consent. Such a statement from the judge, without calling the attention of the jury to the contrary evidence, certainly has a tendency to unduly influence them, and to give undue prominence to plaintiff's evidence. The testimony on the part of the defendants was certainly very strong that no such consent was given.
It is insisted by plaintiff's counsel that this contract was severable; that the contract to repurchase the stock after two years was independent of the agreement that t ithe company should employ the plaintiff as manager; that ¡'the latter clause was fulfilled; that the former clause was ' not performed, and was enforcible in the present action. They cite, as sustaining this proposition, Seymour v. Rolling Mills, 56 Mich. 117. That case is not the parallel of the one at bar, and a careful examination convinces us that it does not sustain the proposition. In that case the contract was made with the defendant corporation, while in this the corporation had nothing whatever to . do with the alleged contract. One of the material con-I siderations for this contract was the agreement that | plaintiff should be employed by the corporation as its J manager. It is evident that but for this he would not have entered into the contract, and he so testifies. This, if void as against public policy, taints and vitiates the whole contract, and both law and equity provide no remedy for either party, but leave them in such a position as they have voluntarily placed themselves in.
There are other exceptions which, in view of the probability of a new trial, should be noticed. At the expiration of the two years, plaintiff gave notice of his withdrawal, tendered his stock to defendants, and demanded that they repurchase. They desired him to continue his employment. He was unwilling to do so, but finally did, upon the execution of the following memorandum :
“It is hereby agreed between the parties hereto as follows:
“ Whereas, the Stoepel number Company has this day agreed to employ DeWitt E. Wilbur as manager, under the provisions of a certain contract, dated this 23d day of April, 1886.
“Now, therefore, in consideration of the advantage to us as stockholders of said company by reason of such employment, we agree that it shall make no change whatever in the mutual rights and responsibilities between said Wilbur and ourselves, made by contract of April 1, 1884, with reference to the repurchase of stock in said company, nor shall it affect any action taken thereunder.
“Dated this 23d day of April, 1886.
“W. C. Stoepel.
“Joseph E. Watson.”
As to the effect of this memorandum the court instructed the jury as follows:
“That memorandum was made on the 23d day of April, 1886, whereby they agreed to further employ Mr. Wilbur, and that memorandum, gentlemen of the jury, is signed by William O. Stoepel and Joseph E. Watson. If William O. Stoepel and Joseph E. Watson knew of the condition of this former contract of April 1, 1884, the paper in evidence would estop them, and you will have to determine what the fact in that regard is. William C. S'toepel, when upon the stand, said that the paper was left there; he did not do anything with it, and was not aware, I think the testimony is, that Herman E. Stoepel did not sign it. If he was not aware of that fact, and did not know the exact condition of this paper, then there ■could be no estoppel; while, on the other hand, if he knew this at the time it was executed by himself and Mr. Watson, that would operate in the law as an estoppel.”
The contention on the part of the defendants was that they signed the agreement with the understanding and upon the condition that Herman was to sign it also; that they left it with Parker to deliver when signed by him; and that at the time of making the said memorandum they supposed that it was signed by him, and to that effect was their testimony. In view of these facts, the charge was correct. The memorandum spoke of a contract made, executed. If defendants used this language with a full knowledge of all the facts, they are certainly estopped from denying the execution of the contract.
The conversations and negotiations preliminary to the agreement, although merged in it, were still admissible,, not for the purpose of explaining its terms, about which there was no doubt, but for the purpose of throwing light upon the question of the execution of the contract, and other questions connected therewith. The rulings of the court in this respect were correct.
Each of the defendants filed an affidavit with his plea, denying the execution of the contract. The court charged the jury that the burden of proof was on the-defendants to show that the contract was not executed. In this the court clearly erred. Whenever the execution of an instrument sued on is denied by affidavit, under circuit court rule 79, the burden of proof is upon the plaintiff' to show the execution of the instrument. No instrument is executed until delivered. In such case, delivery, which is an essential part of the execution, cannot he inferred from possession. The burden of proof remained throughout the trial upon the plaintiff.
The court admitted an unsigned memorandum of an agreement drawn up by Parker previous to the contract sued on as rebutting testimony. He testified that it was drawn pursuant to instructions or conversations, but from whom or with whom does not appear. Its admission was error. It was wholly incompetent and immaterial.
Judgment reversed, and new trial ordered.
Ohampuin, 0/ J., Morse and Long, JJ., concurred.. | [
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] |
Grant, J.
Plaintiff is a manufacturer of a patent roofing in Pittsburgh, Penn. Defendants were contractors doing business in Port Huron, in 1886. Negotiations were entered into between them relative to the handling and sale of this roofing by the defendants, and resulted in the following written memorandum:
“ Port Huron, Mich., May 19, 1886.
“ This is to certify that I have given Casler & Co., of Port Huron, Mich., the full control to handle our patent granite roofing for the county of St. Clair, State of Michigan; also, Croswell, Michigan; Lexington, Michigan; Imlay City, Michigan; Capac, Michigan.
“Granite Booking Co.,
“ Per E. D. Hartford.”
On the same day the following memorandum was made on the same paper as the above:
“ Sold Casler & Co. one car-load of roofing, to be paid for as sold; settlement to be made monthly of all sold.”
On May 20, 1886, defendants wrote the following letter to the plaintiff:
“ Port Huron, Mich., May 20, 1886.
“Granite Booking Co.,
“Pittsburgh, Penn.
“ Gentlemen: Your favor of the 18th received and noted. Yesterday, the 19th, a gentleman representing himself as your agent, — he gave his name as E. D. Hartford, — he settled with us for $12.50, and receipted your bill. We hope that it is all right. We gave him an order for a car-load of granite roofing. It is to be No. 1 roofing, on felt, not with beeleek backing, — that we don’t want; but the felt roofing is all right, — that is, if it is as good as the sample that we have got.
“Yours truly,
“Casler & Co.”
The car-load was shipped and received by the defendants, they paying the freight, which was to be credited on the price of the roofing. They stored it in a shed built for that purpose on the mill premises occupied by them. The agreed price for the car-load was $562.50. Defendants sold some, and made payments therefor on July 12 and October 15.
April 1, 1887, Oasler & Co. dissolved partnership, Casler retiring from the firm, and selling his interest to Robert Campbell. The same business at the same place was carried on by the new firm under the name of Cooley & Campbell. In the sale to Campbell the roofing on hand was not inventoried or taken into account, but was left in the shed in the possession and control of the new firm. Cooley & Campbell made- one sale, amounting to $14.50, which they paid to plaintiff’s agent. July 12, 1887, the mill was destroyed by fire, and the roofing remaining on hand was very much damaged, and in part rendered worthless. Plaintiff brought suit against the defendants to recover the balance of the purchase price of the roofing. The court found as a conclusion of law that there was no absolute sale, and that the title did not pass to defendants, except as to such portions as they sold, and then only at the time of such sales, and rendered judgment in favor of defendants.
The sole question in the case is whether defendants acted as the agents for the plaintiff, or whether the transaction was an absolute sale. All the prior conversations and negotiations were merged in the written contract. This contract is clear and specific. By it the defendants were given exclusive right to sell the goods in the territory mentioned. They were not made the agents. They then purchased the goods in controversy, and the conditions of the sale were written on this agreement. The language is susceptible of but one construction. It was a sale upon credit; the time of payment was fixed at the, end of each month after defendants had made sales. Post ponement of payment has no tendency to prove agency. The language cannot fairly be construed into an agency. The title had clearly passed. Plaintiff could not even after demand replevy the property. It retained no interest in it, nor any right to control it.
Judgment must be reversed, and, the facts being conceded, judgment entered here for the amount unpaid, which is conceded to be $487.50, with interest.
The other Justices concurred. | [
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] |
Champlin, C. J.
This case comes here upon writ of certiorari issued by this Court to the circuit court for the county of Wayne.
Lauder was indicted by a grand jury of Wayne county. To this indictment he interposed two pleas in abatement. The first plea relates to the composition and legality of the grand jury which found the indictment. The second relates to what is claimed as a violation of the constitutional right of Lauder in being summoned before the grand jury, and being examined by them upon the subject-matter for which he was indicted. The first plea in abatement we hold to be bad, for reasons stated in the opinion of Mr. Justice Morse, post, 126. The second plea in abatement we think should be overruled, for the reason that it .is uncertain and insufficient. The following is the second plea:
“And the said James B. Lauder, in his own proper person, for his second plea in abatement to the said indictment, says that while the said indictment and the charges of bribery therein contained, were pending before the said grand jury, and they were inquiring into said charges, and considering the question whether thoy would find the said indictment to be a true bill, and present the same to the court, and after Peter Hirth, Charles G-. Eggeman, Charles Flowers, Augustus G. Kronberg, and William TJthes, who are all the witnesses for the people whose names are indorsed upon said indictment, had been fully examined, and had given their testimony before the said grand jury, to wit, on the 18th day of September, 1889, a subpoena was issued out of said court, under the hand of Allan H. Frazer, an assistant prosecuting attorney for said county of Wayne, commanding the said defendant, James B. Lauder, to appear before the said grand jury as a witness, on, to wit, the 18th day of September, 1889, at 10 o’clock in the forenoon; that said subpoena was served by the sheriff of the county of Wayne upon the said defendant, James B. Lauder, to wit, on the 18th day of September, 1889, by exhibiting to him the original, and informing him of the contents thereof, and delivering to him a copy of said subpoena; that .¿said defendant, James B. Lauder, being wholly ignorant of the fact that said indictment and charges of bribery against him were pending before and were being inquired into by said grand jury, without consulting counsel, or being advised in the premises, appeared before said grand jury in obedience to said subpoena on the said 18th day of September, 1889, and while under legal restraint before said grand jury he was required and compelled to take his oath as a witness before said grand jury, and under such oath he was required and compelled to give his testimony in the matter of the charges of bribery set forth in said indictment, and so pending against him before said grand jury as aforesaid; that he was interrogated fully as to said charges of bribery, and was questioned as to each and every detail and circumstance of the same, and to all of which interrogatories and questions he was then and there, without having the aid and advice of counsel, required and compelled to make, and did make, answer; that in so testifying, and because the said defendant did not have the assistance of counsel to bring out all the facts and circumstances of the case, and while under legal restraint as aforesaid, he, the said defendant, in response to the questions and interrogatories put to him, did testify to facts material and necessary to prove the truth of said charges of bribery, and to sustain and establish the said indictment as a true bill; that upon the testimony of the said witnesses for the people, and the testimony of said defendant so given before the said grand jury as aforesaid, the said grand jury did find the said indictment to be a true bill, and did, to wit, on the 24th day of September, 1889, present the said indictment to said court; and this the said defendant is ready to verify, and he prays judgment of said indictment, and that the same may be quashed, etq.
“James B. Lauder,
“ Defendant.
“Fred H. Warren,
“Attorney for Defendant.
“F. A. Baker,
“ Of Counsel.
“State or Michigan, 1 County of Wayne, ) s'
“ James B. Lauder, the above-named defendant, being duly sworn, upon his oath deposes and says that he has heard read the above and foregoing first and second pleas in abatement, by him subscribed, and knows the contents thereof, and that both of said pleas are true in substance and fact.
“James B. Lauder.
“ Subscribed and sworn to before me this 13th day of January, A. D. 1890.
“A. C. Kronberg,
“Notary Public, Wayne County, Michigan.”
By this plea in abatement two causes are assigned as reasons why the indictment should be abated:
1. Because of the reception by the grand jury of incompetent testimony.
2. Because respondent’s constitutional privilege was invaded in compelling him to testify against himself.
In determining the sufficiency of this plea it should be borne in mind that the finding of the grand jury was not a trial upon the merits, but a presentment of charges or mere accusation upon which a trial may be had. The plea does not assail the form or the substance of the indictment, but sets up the misconduct of the grand jury in proceedings before them, anterior to the finding of the indictment. It is a dilatory plea, which, in the unbroken practice of the courts, is for that reason looked upon with disfavor, and has always been subjected to technical rules. When such dilatory pleas are resorted to, we must apply to them those long-established canons of construction to test their sufficiency for the purpose of abating the prosecution, which the experience of courts through a long series of years has found necessary to protect suitors from unnecessary delay and expense. Those rules are necessarily strict and technical, and a party interposing such dilatory plea invites the most rigid scrutiny of its sufficiency under the established rules of pleading.
It is laid down in works on pleading, and' supported by abundance of authority, that a plea in abatement must be certain to every intent; and the greatest accuracy and precision are required in framing it. 1 Chit. Pl. 445, 448; Gould, Pl. chap. 3, §§ 57, 58; 1 Bish. Crim. Proc. § 324. Dolan v. People, 64 N. Y. 492; O’Connell v. Reg., 11 Clark 6 F. 155; Stale v. Bryant, 10 Yerg. 527; State v. Newer, 7 Blackf. 307; State v. Brooks, 9 Ala. 9; Hardin v. State, 22 Ind. 347; Findley v. People, 1 Mich. 234; Belden v. Laing, 8 Id. 500. The second plea in abatement is bad for uncertainty and insufficiency. It is uncertain whether it is based upon the reception of incompetent testimony, or upon the point that the prisoner’s constitutional rights were violated in compelling him to give testimony against himself. If based upon the reception of incompetent testimony, then the plea is insufficient, in that it does not state that some one material fact, and what material fact, was testified to by himself, without which testimony an indictment could not have been found, which fact was not testified to or established by the testimony of the other witnesses examined. From all that is alleged in such plea, it may still be true that the testimony of the other witnesses named was sufficient evidence of the facts charged to support the indictment, and to justify the jury in finding a true bill. In a plea in abatement nothing must be left to inference to support the plea. On the contrary, all intendments are to be taken against the pleader. Hence we must assume that the testimony of the other witnesses named in the plea and indorsed upon the information was the testimony upon which the grand jury acted in finding a true bill against the respondent, and that it was sufficient and competent testimony for that purpose.
The point whether the indictment was bad because the grand jury admitted incompetent evidence was before the court of appeals of the state of New York in Hope v. People, 83 N. Y. 418. Mr. Justice Rapallo said:
“The demurrer to the special plea interposed on behalf of the prisoner was properly sustained. The substance of the plea is that the grand jury by whom the indictment was found did not proceed in accordance with law, but considered, regarded, and examined improper, incompetent, and irrelevant matters; and the specification is that they had before them for their consideration, and as part of their method of inquiry, and did consider, certain ex parte affidavits taken before a police justice in an examination had before him as such, together with the examination of the prisoner taken in accordance with the statute. We find no authority for the position that the sufficiency of the evidence upon which an indictment is found by the grand jury is a question which can be raised by plea to the indictment, or that the reception of incompetent or irrelevant evidence by the grand jury can be pleaded. People v. Hulbut, 4 Denio, 136, is to the contrary, and no case has been cited in support of the plea. * * * Moreover, it does not state facts which would be sufficient, even on a-motion, to require the court to quash the indictment. It does not aver or show that the ex parte affidavits were the only evidence before the grand jury, nor that the witnesses by whom they were made were not also personally examined, or that the indictment was not based upon sufficient competent evidence; nor does it contain the very essential averment that any fact material to the case of the prosecution was established by such ex parte affidavits; nor does it show that the prisoner was in any manner prejudiced by their being before the grand jury.”
The same question came before the supreme court of New Jersey in State v. Dayton, 23 N. J. Law, 49. Chief Justice Green, upon page 56, says:
“If the position be sound that every indictment not found upon the production of legal and competent evidence before the grand jury is essentially vicious, it follows that in all cases where the witnesses produced before the grand jury are from any cause legally disqualified or incompetent to testify, or where any essential link in the chain of testimony is sustained by evidence not in itself legal, the indictment cannot be sustained, although there be ample competent testimony not produced before the grand jury to sustain the charges of the indictment.”
He also says:
“ But conceding that the proposition is fully established, that there was not legal and competent evidence before the grand jury,, does that afford the subject-matter to sustain either a motion to quash or a plea in abatement? We are clearly of opinion that in this state, at least, it does not.
In this last position the learned court is not sustained by the weight of authority. There must be legal and competent testimony before a grand jury to sustain an indictment. 1 Whart. Crim. Law (7th ed.), § 493.
In the case of State v. Logan, 1 Nev. 509, the trial court quashed the indictment on motion of counsel for defendant on the ground that it “was found upon illegal and incompetent evidence.” In reversing this action of the circuit judge, the supreme court of Nevada say:
“The proposition that, if a grand jury receive and consider any but legal proofs, the indictment found by them may be quashed upon that fact being shown to the court, having no authority to support it, and being so mani festly repugnant to the utility of the entire grand jury system, scarcely justifies an extended consideration. * * * As none but legal evidence can be introduced upon the trial of the defendant, it- would clearly be improper to find an indictment where there is not sufficient legal evidence to justify a conviction; hence the rule that the grand jury should receive none but legal evidence. But the reason of the rule will not authorize the setting aside the indictment merely because evidence not of the best legal character is received and considered. If there be nothing to support the bill but evidence •clearly incompetent, and which would not be admissible at the trial, as the sole testimony of a person rendered incompetent by the conviction of an infamous crime, the indictment may be quashed before plea; but where there is the slightest legal evidence, the court cannot inquire into its sufficiency, or set it aside, because some illegal evidence was received with it.” U. S. v. Reed, 2 Blatchf. 466; People v. Hulbut, 4 Denio, 133; Washington v. State, 63 Ala. 189; Bloomer v. State, 3 Sneed, 69; Thomp. & M. Jur. § 642.
Lauder was not a competent witness before the grand jury in a matter pending against himself. It appears affirmatively from the plea that there were other witnesses produced and sworn, and their names are indorsed upon the indictment. It was necessary, therefore, in order to present the question that the indictment was found upon incompetent evidence, or upon the evidence of a witness who could not be sworn upon the trial and be compelled to testify, for the plea to state positively that there was no legal evidence given before the grand jury upon some material fact, stating it, and that his testimony, stating it, was the only testimony which tended to establish such material fact. Without such averment the plea is insufficient and uncertain, for, notwithstanding all that is stated and averred in the plea, there may have been, and the court must presume there was, testimony other than that of Lauder’s, legal in character, and sufficient to justify the jury in finding the indictment. •
The second ground for quashing the indictment, namely, that the grand jury violated Lauder’s constitutional right in compelling him to attend before them and testify against himself, presents a question of gravest importance, and is the only one upon which I have entertained any doubt. It has been presented to this Court with great force and ability; but, upon mature consideration, I am obliged to hold that the plea does not make a case-for quashing the indictment. The question presented is, does the fact that Lauder was subpoenaed to attend before-the grand jury, was sworn, and gave testimony relative-to the charge of bribery, which the grand jury was then investigating, and upon his and the other testimony the jury found a true bill, vitiate the indictment? I have-already shown that the plea does not aver that there was not sufficient legal and competent testimony without his. to support the finding of the indictment, and that all intendments are taken against the plea, and that we must presume that there was sufficient legal and competent testimony without his to warrant the jury in finding a true bill against Lauder. If, therefore, the indictment is to be held bad, it must be so held as a rebuke to the grand jury, and punishment to the people, for having violated the constitutional right of Lander. To this complexion must it come at last, for the circuit court has before it a valid indictment, found upon sufficient legal and competent testimony. The testimony of Lauder before the grand jury cannot be used against him upon the trial. Rex v. Lewis, 6 Car. & P. 161; Rex v. Davis, Id. 177; Reg. v. Owen, 9 Id. 238; Reg. v. Wheeley, 8 Id. 250; People v. McMahon, 15 N. Y. 384; People v. Mondon, 103 Id. 211. Nor upon the trial can he be compelled to testify against himself. The case stands before the court in all respects as if Lauder had not testified before the grand jury. Why should the indictment be quashed? Is it simply that another grand jury may be summoned, impaneled, and the legal and competent testimony be again presented, and another indictment found in all respects like the one before the court? When all this has been done, the court has traveled in a circle, and come again to the point now occupied, and what has been gained for the cause of justice? What has been gained or secured for the privilege of the citizen? Absolutely nothing. But, instead, delay in the administration of the law, and great and needless expense to the people. It would be different if the violation of this constitutional right had operated to Lauder’s injury, as it might had he been the only witness, or his the only testimony upon some material point upon which the indictment was found. But this is not the case made by the plea. He shows no injury; simply a violated privilege.
This brings me to a consideration of the claim of a violation of a constitutional right or privilege. And, first, it may be premised that being subpoenaed and appearing before the grand jury was not a violation of his constitutional right, nor being sworn before that body, nor testifying upon any matter that did not criminate himself. All these the law compelled him to do under pains and penalties. But the law did not compel him to give testimony that would criminate himself. The. fundamental law expressly declared that he should not be compelled to do so. It was therefore a personal privilege, and Mr. Lauder could claim it or not as he chose. If he gave such criminating testimony voluntarily, it is doubtful if it could be used against him upon the trial. If it was not voluntarily given, it could not be used against him upon the trial. In all cases where a personal privilege exists for a witness to testify or not, if such witness does testify without objection he will be deemed to have done so voluntarily. How could there be compulsion or legal restraint, when there was no law which could compel Lauder to testify to criminating matters against himself, or punish him for refusing to testify? He does not claim in his plea that he claimed his privilege, or refused to answer any interrogatory. He , avers that he was required and compelled to, and did, make answer to the questions put to him. This is a conclusion from the facts. The rules of pleading in abatement required him to set forth the facts, and not his conclusions. The same is true with the averment of the plea with reference to his being compelled to take his oath. But, as before observed, there was no violation of Lauder’s constitutional rights in compelling him by subpoena to attend before the grand jury, nor in administering an oath to him. The real complaint made by the plea is that Lauder was subpoenaed to appear before the grand jury, and he appeared in obedience thereto; that he was sworn, was interrogated, and answered all questions. He states that all this was done without having the aid and advice of counsel, and “because he did not have the assistance of counsel to bring out all the facts and circumstances of the case” he testified to facts material and necessary to prove the truth of the charges. As he was not upon trial for any offense, no exception can be taken to his not having the assistance of counsel; and, as he made no objection to testifying on account of privilege, I do not see why that should be appealed to as a ground for quashing the indictment.
In People v. King, 28 Cal. 265, the respondent was sub“ pcenaed before the grand jury, and gave testimony against himself. This was made the ground of a motion to quash the indictment. In deciding this point, the court said:
“ So far as the motion was based upon the ground that the defendant had testified against himse’; before the grand jury is concerned, it is only necessary to say that we know of no rule of law which made it illegal for him to testify if he felt inclined to do so, nor do we know of any rule of law which makes the voluntary testimony of the defendant before the grand jury a ground for setting aside-the indictment.”
In U. S. v. Brown, 1 Sawy. 531, the defendants' were subpoenaed before the grand jury, and their testimony taken respecting the offense for which they were afterwards indicted. Other witnesses were also examined. Each defendant moved to set aside and quash the indictment, because they were compelled to appear before the grand jury and testify against their will. The court denied the motion. In both of these cases there was other competent testimony upon which the jury might have acted. See, also, Thomp. & M. Jur. § 643.
A party may waive personal rights, although secured to him by law or by the Constitution. He may waive the right to a preliminary examination upon a criminal charge. Washburn v. People, 10 Mich. 372; Hicks v. People, Id. 395; People v. Jones, 24 Id. 215; Pierson v. People, 79 N. Y. 429; Lee v. Tillotson, 24 Wend: 337; Van Hook v. Whitlock, 26 Id. 43; People v. Murray, 5 Hill, 468; Baker v. Braman, 6 Id. 47; Embury v. Conner, 3 N. Y. 511; People v. Rathbun, 21 Wend. 509, 542. In People v. Arnold, 40 Mich. 713, this Court said:
“ No doubt the witness might have declined to answer, under the acknowledged rule that no one can be compelled to criminate himself. But this is a matter of personal privilege which a witness may waive, and is not a ground of objection by the people; and here the witness did not object, and we cannot assume but that he was not only willing but desirous to answer.”
We do not find it necessary to determine whether the grounds set up and relied on to quash the writ can properly be raised by plea in abatement, or whether they should rffft be raised by motion to quash. If issues of fact had been joined upon the pleas, we suggest that very serious obstacles lie in the way of trying such issues. Grand jurors cannot, in general, be questioned as to what took place among or before them while acting as such. The only exceptions existing are made by How. Stat. § 9502. That section permits members of the grand jury to testify upon the trial in two instances: One, where a witness upon the trial has testified before them, they may testify whether the testimony of the witness examined before them is consistent with or different from the evidence given by such witness before the court; and in the other they may be required to disclose the testimony given before them by any person upon complaint against such person for perjury, or upon- his trial for such offense.
“ Where the statute prescribes the cases in which a grand juror may testify, it is held that he may do so in no other.” 9 Amer. & Eng. Enc. Law, p. 17, and cases cited to note 1, p. 18.
But neither of these contingencies has arisen in this case. Lauder has not been offered as a witness upon his trial, and cannot be unless he voluntarily presents himself as such, and then he would waive his privilege, and would stand upon the same footing as any other witness. Neither has a complaint been made against him for perjury; so upon the trial of this plea no juryman could he permitted to testify against or for him. Such testimony is not permitted on grounds of public policy. The same immunity extends to the clerk of the grand jury, and the prosecuting officer if present at their deliberations. Best, Ev. § 579; 1 Tayl. Ev. § 863; 1 Greenl. Ev. § 252. The statute further declares that in no case can a member of the grand jury be obliged or allowed to testify or declare in what manner he or any other member- voted on any. question before them, or what opinions were expressed by any juror in relation to any such question. The same principle of public policy would not permit a witness who was present in the grand-jury room to testify in any case where a grand juror could not testify. How, then, could it be proved that Lauder gave testimony material to the case upon which the jury found the indictment, or how could it be proved that the grand jury found the indictment upon Ms and the testimony of the other witnesses? The latter fact is quite beyond the knowledge even of Lauder, if he could be deemed a competent witness, which I do not think he would be.
The statute makes it a felony for any person to bribe or attempt to bribe any executive, legislative, or judicial officer. It is alleged in the indictment that Peter Hirth bribed Lauder, who was an alderman of the city of Detroit, to vote for him for the office of meat inspector. It was competent and proper for the grand jury to indict Hirth for the offense of bribery; and, had they investigated with that view, it would have been competent and proper for them to have subpoenaed Lauder, and to have interrogated him with reference to the transaction; and had he not claimed his privilege, and had testified fully, and no indictment had been found against Lauder, we hardly think that he would have complained that his constitutional rights had been violated by the grand jury. Yet they would have been violated in that case as much as they were in this. The gravamen of his complaint cannot justly be said to lie in the fact that he was summoned before the grand jury, was sworn and testified, but it exists, if at all, in the fact that he was afterwards indicted by the grand jury. Being indicted by a grand jury is not a violation of a constitutional right. I can conceive a case where it would be an outrage upon a citizen, similar to that perpetrated under the general warrant of James Otis’ time; and such would be the case if a grand jury, for the purpose of obtaining information against a person upon which to found an indictment against him, should summon him before them, and compel him, against his objection, to testify to criminating facts, or worm out of him testimony detrimental to his rights, and upon such testimony only should indict him. But I cannot conceive of a case when, if such person stood upon his rights, such thing could be successfully accomplished, for such testimony cannot be compelled from an unwilling witness. It is true that the timid, the feeble minded, or the ignorant might not stand upon their rights, and might be imposed upon, having no counsel at hand to protect them. In all cases, in the progress of events, their case must come before a trial court, and they would have the aid of counsel who would bring the facts to the attention of the judge with all necessary and proper averments, where their rights could be fully protected. In this case, Mr. Lauder has the advice and assistance of eminent counsel, who have placed his case in their plea in as favorable a light as possible for him, and we find that he makes no averment that he was summoned by the grand jury to give testimony for the purpose of obtaining information from him upon which to find an indictment against him, nor that they would not have found an indictment without his testimony, nor that he was a timid person, and was overawed by the grand jury, nor that he was feeble minded, or ignorant of his rights, and the jury took advantage of his mental condition or want of knowledge to his injury.
To restate the case, Lauder was lawfully summoned and sworn. He testified without claiming his privilege. How were his constitutional rights any more violated than in the ordinary case of a party who is a witness upon the trial of a cause who is asked questions which, if answered, would criminate him, and he answers without objection or claiming his privilege? The compulsion in that case is the same as in the one under consideration. Was ever a verdict or judgment set aside in such case upon the ground that the witness’ constitutional rights had been violated in compelling him to testify to facts criminating himself? To state a more analogous case, suppose a person is upon trial, charged with a criminal offense, and a witness summoned by the people is sworn, and testifies without objection to facts which criminate him in reference to the crime under investigation and trial. Here he attends under the compulsion of a |ubpcena, and is sworn and testifies under the same compulsion. He is afterwards indicted upon the testimony of other competent witnesses. Would a claim that his constitutional right had been in this manner violated, embodied in a plea, afford sufficient ground for quashing such indictment? Clearly not. The plea in Lauder’s ease places him in no better position before the court. No more compulsion, and no more violation of personal rights.
The cases cited by the counsel for the plaintiff in certiorari are numerous and convincing, to the effect that the testimony given before the grand jury by Mr. Lauder cannot be used against him upon the trial. Such are the cases of Rex v. Lewis, 6 Car. & P. 161; Rex v. Davis, Id. 177; Reg. v. Owen, 9 Id. 238; Reg. v. Wheeley, 8 Id. 250; Reg. v. Haworth, 4 Id. 254; Boyd v. U. S., 116 U. S. 616; People v. McMahon, 15 N. Y. 384; People v. McCoy, 45 How. Pr. 216; People v. Mandon, 103 N. Y. 211. The cases of People v. Singer, 5 N. Y. Crim. R. 1, 18 Abb. N. C. 96, and People v. Haines, 1 N. Y. Supp. 55, support the contention of plaintiff in certiorari that compulsory attendance of the party indicted before the grand jury is sufficient ground for quashing the indict ment, but they are the decisions of nisi prius courts, and the questions depended, as presented by motion to quash, very much upon the discretion of the presiding judges. In one case, at least, the court seems to have made haste to overthrow the indictment. The courts of last resort have not passed upon the question in that state, as I am aware of. The case of State v. Froiseth, 16 Minn. 297, is squarely in favor of quashing the indictment. The point was not argued 'before the court, but error was conceded by the attorney general.
The pleas having been overruled by order of this Court on 'the 1st day of August last, with the statement that we would file our opinion later, it being the day of final adjournment of the term, these opinions will therefore be filed nunc pro tunc as of that date.
Cahill and Grant, JJ., concurred with Champlin, C. J. ?
Morse, J.
At the September term, 1889, of the circuit court for the county of Wayne, a grand jury was ordered, summoned, and impaneled. The result of their deliberations was the finding and returning of seven indictments, two of which were against the relator. The defendants have, in that court, interposed pleas in abatement to all of these indictments. Said pleas are similar in character and import. We are concerned here, however, only with the case of Lauder. It is considered probable that our ruling in the case before us may affect, if not control, all the other cases, and for that reason we felt disposed to hear and determine the questions presented on application for mandamus that a speedy trial might be afforded the defendants, if such trial was found necessary. We therefore issued our writ of certiorari upon such application to bring the record in the lower court before us. But we are not willing that this shall be made a precedent in other cases for the use of the writs of mandamus or certiorari to decide matters arising upon motions to quash or the issue joined in pleas of abatement to the indictments or informations in criminal cases. Usually, such questions must come before us on writ of error or certiorari after trial and judgment. In view of the importance and the number of cases involved in this matter, and the great expense that would necessarily be incurred in the trial of them, we have thought it best for the public interest, and the good of all concerned, that we should make this an exceptional case, and for once relax the rule to which we have heretofore always adhered.
Three questions are raised by the pleadings in Lauder’s case; and, without noticing any technicalities as to the form of the pleadings, I shall examine and dispose of them upon the merits. Two of the questions relate to the organization of the grand jury, and will first be considered. It appears that on September 11, 1889, 47 persons had been drawn and summoned as grand jurors. Of these all but 20 had either failed to appear, or had been excused. Thereupon, upon the same day, as appears by the court records, the court made the following order:
“Ordered, that the clerk forthwith draw, according to law, the names of three (3) persons to serve as grand jurors at the present term of court;, and to be and appear in the court September 12, at 2 p. m.”
Before this order was entered, the 20 persons who had appeared were sworn and charged by the court as a grand jury, and had retired to their room, chosen a foreman, and reported the same to the court. On September 12, 1889, Thomas R. Rayl, Charles Mowers, and Hervy O. Park, were drawn, under the order of the day before, to serve as grand jurors. A venire was issued, returnable September 13, 1889. On that day the sheriff made return that he had served the same on Rayl, but not on Park and Flowers. Rayl was then excused.. In the journal of the court, under date of September 16, 1889, appears the following entry:
“Charles Flowers, drawn and summoned as a grand juror, answered to his name; and after being duly sworn retired to the grand-jury room.”
It is alleged in the plea of abatement, and not successfully controverted, that the grand jury had entered upon their investigations and taken testimony before Flowers became a member of that body. The grand jury were in session five days before Flowers was sworn, as shown by the records of the court. Two of the circuit judges return that the order to summon three additional jurors was asked for by the assistant prosecuting attorney, after the grand jury had elected their foreman, and that the foreman of such jury said to the court that he hoped the order would be made, and gave his reasons therefor. Judge Ilosmer does not recollect about the matter, but believes the statement of the other two judges to be true. Judge Reilly was absent, and does not know the facts. The short-book of the court shows that this order was the last one entered on September 11, 1889.
The plea in abatement sets forth that Charles Flowers is an attorney at law, and also a stenographer, — a shorthand reporter; that oi) September 11, 1889, Allan H. Frazer, then an assistant prosecuting attorney for said county of Wayne, was desirous to obtain a stenographer for the said grand jury, and applied in open court for the appointment of such stenographer, and called the attention of the court to the fact that the name of the said Charles Flowers was among the names — to wit, 103 names; — remaining undrawn in the grand jury box; that thereupon the court made the order to draw and summon three additional jurymen, and among the three names so drawn appeared, at the second drawing, the name of Charles Mowers; that on September 16, 1889, it was agreed between the board of auditors of Wayne county and said Charles Mowers that said Flowers should serve as a grand juror, and also act as the stenographer for said jury, and receive as pay for the latter services, in addition to his regular pay as grand juror, the sum of $7.50 per day, and also compensation, for such services in translating and writing out his stenographic notes taken before said grand jury; that thereupon the said Charles Flowers, although no member of the grand jury had been discharged, and no vacancy in said grand jury had occurred by reason of the sickness, death, or non-attendance of any of said 20 grand jurors, appeared before the said circuit court, and was sworn as a grand juror, and retired to the jury-room, and from thence participated as a member of such jury, and as a stenographer in the employ of said county; that the said Flowers was at that time, and during his participation in the deliberations of said grand jury, an assistant prosecuting attorney of said county of Wayne, having been appointed on February 4, 1889, to prosecute one William W. Langdon in the contempt proceedings against him in said circuit court (see Langdon v. Circuit Judges, 76 Mich, 358); that among the indictments found by said grand jury; said Flowers participating in said finding, was one against the said Langdon, for the identical crime or offense with which he was charged in said contempt proceedings.
The replication to the plea sets forth that the order under which Flowers became a grand juror was entered before the 20 jurors were sworn and charged by the court, but admits that said Flowers was not sworn, and did not retire to the jury-room, until September 16, 1889. The replication also says that no testimony was taken, or other proceedings had, by or before said grand jury until Flowers became a member thereof; that said Flowers was not employed by the people as assistant prosecuting attorney, and did not act as such, except in the contempt proceedings against said Langdon; and that he did not act in any capacity with said grand jury except as a grand juror.
The rejoinder of the defendant, Lauder, to this replication, put at issue the fact whether or not the order for the summoning of three additional jurors was made before or after the 30 jurors were sworn and impaneled as a grand jury, and had organized and reported the election of a foreman to the court, and whether or not they had begun their investigation and taken testimony before Flowers joined them, and his employment and action as a stenographer, and as a public prosecutor, while a member of said jury. To this rejoinder the people demurred.
As the record appears before us, it must be conceded that the three additional names were ordered to be drawn after the 30 men had been sworn and charged and organized as a grand jury; and that the object of drawing these names was to obtain, if possible, the summoning of Charles Flowers as a juror, that he might also act as a stenographer. That he did so act, under the promise of extra pay by the board of county auditors, must be also conceded. It is a little singular, when this was the avowed object of the drawing, that the second name to come out of the box was that of Flowers, the only man wanted out of 103 names remaining therein. But there is no evidence and no claim of any bad faith or trickery in the drawing. Of course, if any had been shown, it would have been the end of this case.
We are not prepared to say that the .object of this drawing was an illegal one, or that the employment of Flowers as a stenographer was not proper; A stenographer was certainly desirable, and there can be no possible harm in one of the jurors, who has been regularly drawn and summoned, acting as such stenographer. Indeed, no other person could be tolerated or allowed to act as stenographer. The fact that Flowers received extra pay for his services does not affect the indictments. If he acted as such stenographer, there was no impropriety in his being paid for such services, as he could not be compelled to do this extra duty without compensation. Neither does the fact that he had been employed to act as public prosecutor against Langdon in the contempt case cut any figure as against the relator, James B. Lauder. The indictment against Langdon, if the plea in this case be true, is worthless, because it would be a crime against the liberty of the citizen to permit the presecuting attorney of a county to form one of the grand-jury panel; and it would be much worse to permit Flowers, who had been specially appointed to prosecute Langdon, and had-prosecuted him, in the contempt proceedings, to sit upon the grand-jury panel, and participate in bringing in an indictment against Langdon for a criminal offense .growing out of the identical transaction for which he had prosecuted him in the contempt case. But this ■does not touch Mr. Lauder. Flowers was prosecuting .attorney in no case but that of Langdon. He was specially appointed for a special case, and, outside of that ■case, he was no more a public prosecutor than if he had never been appointed to prosecute Langdon. Therefore the question is, and the only question, as far as the •organization of the jury is concerned, was it lawful after twenty men had been summoned, sworn, charged, and organized as a grand jury, and commenced their deliberations, to increase the number from twenty to twenty-one by the addition of Charles Flowers?
Our statutes provide that—
“ There shall not be less than 16 persons sworn on any grand jury; and after such jurors have been impaneled, and have received their charge from the court, they shall retire with the officer appointed to attend them, and before they proceed to discharge the duties ox their office they shall elect by ballot one of their number to be foreman, and give notice thereof to the court, and the clerk shall record the same.-” How. Stat. § 9494.
Twenty-three grand jurors are to be drawn and summoned. How. Stat. § 7562. So that in this State a grand jury may be lawfully impaneled and act, consisting of any number of persons more than 15 and less than 24.
“No indictment can be found without the concurrence of at least twelve grand jurors, and when so found, and not otherwise, the foreman of the grand jury shall certify thereon, under his hand, that the same is a true bill." How. Stat. § 9506.
The twenty-third section of the Wayne county jury act. (Act No. 95, Laws of 1887) provides:
“And when a grand jury shall be ordered to be drawn, the clerk shall give the same notices, and take the same proceedings, as is provided in the case of drawing petit jurors, for ‘drawing the names of twenty-three persons from said list of grand jurors, to serve as grand jurors, and the same shall be summoned and served in like manner, and with like pay, as petit jurors. If any of the-persons whose names shall be drawn as grand jurors shall not appear, or shall be exempted or excused, the court may order a sufficient number to be drawn and summoned to complete the panel.”
And it is provided by How. Stat. § 9490, that—
“Any court in which a grand jury may be sitting may discharge any of the grand jurors for intoxication, or other gross misconduct; and in case of such discharge, or in case of the sickness, death, or non-attendance of any grand juror, after he shall have been sworn, the court may cause another juror to be summoned from among-the by-standers or inhabitants of the city, township, or Tillage, having the qualifications required by law, and to be sworn and serve in his stead.”
It is contended by Lauder’s counsel that when the court had impaneled and sworn the 20 persons as a grand jury, and they had been charged, and had retired to their room, the power of the court was exhausted, and there was no authority to add another or more jurors, except in the cases pointed out by said section 9490, and the following cases are cited in support of such contention: Portis v. State, 23 Miss. 578, 582, 583; Finley v. State, 61 Ala. 201; Berry v. State, 63 Id. 126; Couch v. State, Id. 163; State v. Symonds, 36 Me. 128; State v. Bowman, 73 Iowa, 110. How. Stat. § 7578, provides that—
“Whenever, for any cause, grand or petit jurors shall not have been drawn and summoned to attend any circuit court, or a sufficient number of qualified jurors shall fail to appear, such court may, in its' discretion, ■order a sufficient number of grand or petit jurors, or both, to be forthwith drawn and summoned to attend such court.”
This section and the twenty-third section of the Wayne county jury act, heretofore given, it is argued by relator’s counsel, have reference only to proceedings before the jury is impaneled and sworn. Therefore the deduction is made that the addition of Mr. Flowers to the grand jury was not a mere irregularity, but was done by a proceeding wholly illegal and unwarranted.
On the other hand, the counsel for the people call our attention to How. Stat. §§ 9496, 9497, reading as follows:
“Sec. 9496. A person held to answer to any criminal charge may object to the competency of any one summoned to serve as a grand juror on the ground that he is the prosecutor or complainant upon any charge against such person; and, if such objection be established, the person so summoned shall be set aside.
“ See. 9497. No challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be allowed in any other case than that specified in the preceding section.”
It is evident, as was held in Thayer v. People, 2 Doug. 417, that this right of challenge allowed in these sections can only be exercised by a person shown to the court to be under prosecution, and whose case is about to be submitted to them; and therefore Lauder has not been at, any time in a condition to challenge the array, or any person summoned as a grand juror. But he certainly has the right to raise, by plea in abatement, or on motion to quash, the same objections to the grand jury that a, person under prosecution at the time it was impaneled could have interposed. But, has he the right to raise-any other? We think not. The decisions in other states throw no particular light on this question, when we consider these statutes, except in states having similar laws.. It was evidently intended by the Legislature that no mere-technicalities or irregularities should be permitted to quash the grand-jury panel, and that only in case of a. prosecutor or complaining witness being summoned could the accused person successfully complain and exercise the-right of challenge. And, certainly, if a person under accusation and arrest, and about to have his case submitted to the grand jury, could interpose but this one-objection to the formation of the grand jury, he would not be permitted, after indictment found against him by such grand jury, to have such indictment quashed for any ineompetency of a grand juror, or any irregularity in the selection or formation of the jury, which he could not raise before the jury was sworn. Such a holding would be nonsensical, and entail needless expense. And Lauder must stand in the same position. He can have no advantage over one who might have been under accusation and arrest at the time of the impaneling of the jury.
I am satisfied that the Legislature has wisely ordained that no inquiry for the purpose of quashing an indictment shall be made into the composition of a grand jury, or as to the competency of the individual jurors, except in cases where some member has been the prosecutor of, or the complaining witness against, the person indicted. It must be remembered that the grand jury does not settle the guilt or innocence of the accused, but acts something the same as does an examining magistrate. No irregularities in the examination of an accused person before a magistrate are permitted to quash an information filed in the circuit court against him, and based upon such examination. The admission of incompetent evidence, or the rejection of proper testimony, by the justice of the peace, or other person holding such examination, has no' effect upon the information. This proceeding to find an indictment before a grand jury, or to bind an accused person over to the circuit court by a justice of the peace, is but the presentment of a case to be tried before a petit jury, and the proceeding is not to be governed by any mere technicalities, as long as the substantial rights of the accused to a speedy and fair trial before a jury of his peers is preserved and remains to him. In a case where a grand jury was impaneled without any jurisdiction whatever, or fraudulently, or in willful disregard of the law and the rights of the accused, or when substantial injustice was shown to have been done him by any of the proceedings in organizing the grand jury, or by the proceedings before it after it was organized, it would be the duty of the court, upon proper showing, to quash the indictment. U. S. v. Reed, 2 Blatchf. 435, 449; U. S. v. Tollman, 10 Id. 21; Thomp. & M. Jur. § 518, p. 596. But that is not this case, as far as the organization of the jury is concerned. It is not shown that the addition of Mr. Flowers to the jury was of any disadvantage to Mr. Lauder, or that he was' in any way prejudiced against him. It is manifestly in the discretion of the court, under our statutes, to impanel a grand jury of any number of men not more than 23 or less than 16. If, after the jury had been impaneled and sworn with 20 members, the court had seen fit to add more thereto* and had forbidden the 20 to do any business until the others were drawn and summoned, and, after such others appeared and were accepted, had called the 20 in, and, adding the others, had sworn and charged them over again, there certainly could have been no cause of complaint; or, if a person drawn and summoned before the 20 were sworn, but failing to appear until afterwards, had been, on appearance, sworn and sent to the jury-room to join his fellows, this would not have invalidated the panel, or have been a cause for quashing an indictment found by the grand jury as so constituted.
The rare exercise of the authority conferred upon the circuit courts in this State to order a grand jury has left us comparatively bare of precedents, and with but few interpretations of the statutes relating to the organization of grand juries, and the procedure before them. But it was held in Findley v. People, 1 Mich. 231, that where a grand jury had finished their business, and been dismissed without day before the adjournment of the court, they might be resummoned, at any time during the term, to inquire into an offense committed subsequently to their discharge, and grand jurors who were originally summoned, but did not appear and act with their fellows before they were dismissed, might be resummoned, and on appearing might act with them on their second convocation; and that a grand juror, who appears after the jury have been sworn and charged, may or may not be sworn in the discretion of the court, when there are enough grand jurors without him. In speaking of the two grand jurors who were drawn and summoned to attend the September term of the circuit court for the county of Oakland, but who did not attend at the first session of such grand jury, the Court say:
“ It is said that they were not sworn at the commencement of the term, and, though grand jurors, that they did not belong to the grand jury inquiring in and for the body of the county of Oakland. If they had not been dismissed for the term, it would have been competent for the court at any time before the panel had been dismissed, upon- their coming into court, to have sworn them, and sent them to their fellows. It has been very usual to do this when delinquent jurors have come in on the same day after the jury have been sworn and charged. If it may be done that day, it may be done at any time during the session of the grand jury. It is a matter entirely in the discretion of the court; and circumstances, as the absence of a part of those impaneled, from sickness or other cause, might make its exercise very proper.” See, also, Wadlin’s Case, 11 Mass. 142.
So we think that, in its discretion, the court may increase the number of grand jurors, after they are sworn and charged, to any number not more than 23, if 'the exigencies of justice require it in the opinion of the court. Such discretion could not be used to the disadvantage or persecution of any accused person, as this would manifestly be an abuse of discretion; and if, as suggested by a member of this Court upon the hearing, such addition was made for the purpose of procuring votes enough to find an indictment against any person who could not be indicted without such addition, such indictment would not be permitted to stand. In this case, the addition was made for the purpose of securing a juror who was a stenographer. There was nothing wrong in this, and, as before shown, it was desirable that such a juror should be procured, if possible to do so under the law, and not in violation of it. And it nowhere appears that this addition had any weight or bearing one way or the other upon Lauder’s case.
It is said in Thompson & Merriam on Juries, § 507,. that there is no case showing any authentic instance of a challenge allowed to grand jurors, either individually or to the array, at common law; and it is asserted that the right exists in the states of the Union only by force of' statute law. Id. § 519.
Michigan is not alone in prohibiting challenges to the-grand jury except in certain cases. In New York, Missouri, Kansas, and Oregon challenges to the array or the poll are more or less interdicted. 2 Rev. Stat. N. Y. p. 724, §§ 27, 28; Code, Crim. Proc. N. Y. 1881, § 238; Carpenter v. People, 64 N. Y. 483; Rev. Stat. Mo. 1835, p. 479, § 3; Rev. Stat. Mo. 1845, p. 863, § 3; Rev. Stat. Mo. 1879, § 1773; State v. Bleekley, 18 Mo. 428; State v. Welch, 33 Id. 33; Comp. Laws Kan. 1879, § 4570; Gen-Laws Or. p. 345, § 35; State v. Fitzhugh, 2 Or. 227. But. it is held in most, if not all, of these states that if there-has been any improper conduct or fraud on the part of the officers in selecting the jury, or impaneling them, by which the accused person has been prejudiced, the proceedings, which are always under the supervision and control of the courts, may be reached and corrected by plea, in abatement or motion to quash. The courts have general power to preserve the pure and just administration of the law, and their discretion will always be exercised freely for the purpose of securing such end.
The second plea in abatement alleges that while the-indictment and the charges of bribery therein contained were pending before the grand jury, and such grand jury were inquiring whether they would find the same to be a. true bill, and after Peter Hirth, Charles G. Eggeman,. Charles Flowers, Augustus G. Kronberg, and William Uthes, who are all the witnesses for the people whose names are indorsed upon said indictment, had been fully examined and given their testimony before the said grand jury, and upon September 18, 1889, a subpoena was issued to said Lauder, and he was brought before the said grand jury as a witness; that he was wholly ignorant of the fact that said indictment was pending against him, or charges of bribery; that he was compelled under the legal restraint of said subpoena to take his oath, as a witness, before said grand jury, and under such oath he was required and compelled to give his testimony in the matter of the charges of bribery set forth in said indictment, and so pending against him before said grand jury; that he was interrogated fully as to said charges of bribery, and was questioned as to each and every detail and circumstance of the same, and to all of which interrogatories and questions he was required to answer, without having the aid and advice of counsel; that he did answer such questions, and, because he did not have the aid and advice of counsel to bring out all the facts and circumstances of the case, he did, in response to such questions, testify to facts material and necessary to prove the truth of the charges of bribery against himself, and to sustain and establish the indictment as a true bill; and that upon his testimony, and that of the said witnesses named upon the indictment, the same was found, on September 24,-1889, to be a true bill. To this plea the people demurred, thereby admitting the facts to be as stated in said plea.
The plea amounts substantially to this: An indictment was pending before the grand jury against Lauder. He had no knowledge of it, or that there were any charges of bribery against him being investigated by such grand jury. After all the witnesses, examined in relation to the charge against him, had testified fully, a subpoena was served upon Lauder to appear and testify before the grand jury. He obeyed the subpoena, and made no objection to giving his testimony. He gave testimony tending to support the charges against him, and to sustain the indictment pending against him before the grand jury. His testimony cannot be said to have been voluntary. He was compelled to attend and to testify by the mandate of the subpoena. He might have objected, but, if he had, although under the circumstances he could not lawfully have been compelled to testify, yet he might have been fined or imprisoned for his disobedience of the subpoena before his rights could have been asserted and settled. This is not the case of a person voluntarily appearing and offering himself as a witness. In such case, if he did not object to any question put to him, his testimony would be voluntary, and could be used against him. People v. Arnold, 43 Mich. 303; People v. Eaton, 59 Id. 559, 562. And if he had known that he himself was under investigation, and that his testimony was to be used against him to uphold an indictment then pending before the grand jury, and had not objected, there might be some sense in the claim that he had waived his right to claim his privilege; but brought before the grand jury by a subpoena that promised him punishment if he did not obey, and not knowing that he was under accusation, or that the intent was to indict him out of his own mouth, there is no respectable authority to be found anywhere, nor does it stand- in right or reason, that this testimony is to .be considered voluntary, or that it is to be inferred that he' has waived his constitutional right to be protected against criminating himself. ‘
The Federal Constitution, by the addition of the first amendments ever proposed and adopted, contains a bill of rights, and article 5 of such bill of rights provides that no person “shall be compelled, in any criminal case, to be a witness against himself.” Our own Constitution expressly declares that—
“No person shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property without due process of law.” Article 6, § 32.
This right guaranteed by both Constitutions is a cardinal one, and is guarded and protected by the State organic law in the same sentence with the fundamental right to life, liberty, and property. It has ever been regarded as one of the superior and inalienable rights of the freeman under our system of government, with which neither legislatures nor courts have been permitted to tamper, nor allowed to disturb or destroy. If this indictment stood alone upon the testimony of Lauder, given under such circumstances against himself, all the authorities are united in holding that it could not be sustained. The testimony was incompetent, and an indictment cannot stand upon incompetent evidence alone. Thomp. & M. Jur. § 642; 1 Chit. Crim. Law, 319; 2 Hawk. P. C. chap. 25, § 145, in notes; State v. Logan, 1 Nev. 509; Sparrenberger v. State, 53 Ala. 481, 486; Com. v. Knapp, 9 Pick. 496, 498; 1 Whart. Crim. Law (7th ed.), § 493. Thompson & Merriam on Juries (section 643) sum up the rule as follows:
“If the defendant voluntarily appears before the grand jury, and there gives evidence when his case is under examination, this constitutes no ground for setting aside an indictment subsequently found against him; aliter, of course, where the defendant is compelled to appear and give evidence in the proceedings against himself. But at this point a distinction must be taken. Suppose the grand jury, by virtue of their inquisitorial powers, are engaged in searching out crime. Clearly, they may summon any person whom they have good reason to believe to be cognizant of facts which will lead to the detection of crime. In the end they may see fit to find indictments against some of the persons whom they have compelled to appear before them as witnesses. If any of these indicted persons has seen fit to give answers implicating himself, the validity of the indictment found upon this testimony cannot be impeached by the circumstance that he has been compelled to appear before the grand jury. Otherwise, the inquisitorial powers possessed by this body in many states would be greatly impaired. In many cases the inquiry would be stopped at the very threshold.”
As before said, Lauder did not voluntarily appear before the grand jury. He was brought in by the process of subpoena, which he could not disobey without peril. Nor was he made acquainted with the fact that he was under suspicion, and that an indictment was drawn and pending against him, and that his testimony would be used against him for the purpose of finding the indictment a true bill. The bringing of Lauder in before the grand jury under such circumstances, and subjecting him to an examination by, the prosecutor, without counsel to aid him, and in ignorance of the object of his examination, is characterized by his counsel as an unwarranted and inexcusable legal outrage. If Lauder had known the purpose of his examination, he would have undoubtedly asserted his right to refuse to testify, and he would have been sustained in such refusal by this Court, as in a like case we have unanimously sustained the Detroit Street Eailway Company in refusing to submit their private books and papers to the inspection of the grand jury under a showing that the avowed object of such inspection was to obtain evidence upon which to indict the officers of such corporation. The subpoenaing and examination of Lauder, under the circumstances alleged in the plea (which must here be taken as true), was unwarranted, and an outrage. Prosecuting officers ought not to forget, in the zeal of a commendable investigation of a supposed great public scandal and corruption, that accused persons are presumed to be innocent until proven guilty, and that there are no circumstances possible in a republican government that can take away irom any citizen, in time of peace, the inalienable rights guaranteed to him by the fundamental law of both the State and Nation, and among which, no less than any other, is the right not to be compelled to be a witness against himself in any criminal case.
And it must be remembered that a grand jury is not above the law, or the Federal and State Constitutions. 'The law that creates it governs it, and the Constitution prevails, and must be obeyed, and cannot be either violated or evaded on the ground of any supposed public necessity. The grand jury has always been considered in the law as a means of protection, and not as an oppression, to the citizen. It was never intended to be used as .an engine of personal or partisan malice, and cannot lawfully be so used; neither can it, although inquisatorial in its procedure, deprive the citizen of any substantial night in which he is protected by the express mandate of -the organic or statute law. The grand jury, in the language of the text from ThompsonMerriam, “may .summon any person whom they have good reason to believe to be cognizant of facts which will lead to the detection of crime,” and they may find indictments against persons whom they have compelled to appear and testify before them. But the grand jury cannot, under any ■authority found in the books, or existing in reason, if this constitutional right is to be preserved, call a person before them and compel him to testify against himself for the express purpose of finding an indictment, then pending before them, a true bill against him. This is what was done in this case. If the prosecutor had said to Mr. Lauder, “ The jury is considering an indictment against you for the crime of bribery, and your answers will be used against you; you are at liberty to answer questions or not, as you choose,” — the case would have been different. This is what should have been done. Lauder’s testimony would then have been voluntary.
It is argued that Lauder is a shrewd, bright man, and ought to have known his privilege, and to have taken advantage of it by refusing to testify; that his testimony must be presumed to have been voluntary, because he knew his right and did not insist upon it. But, in dealing with the principle here involved, we are to establish a precedent in this State for all time to come, which shall govern and operate against all men alike, the ignorant as well as the learned. Courts cannot inquire in any or each particular case what the intelligence of the accused is, or presume that, because of a superior grade of intelligence, one man knows his right when another does not. There is no necessity anywhere, and never can be under any circumstances, that the law should be stretched to make an accused person testify against himself in a criminal case; and, when force and deception are combined to attain such an end, the courts must see to it that his rights are restored, notwithstanding popular clamor or supposed necessity is invoked to justify his deprivation of - constitutional privileges. We are not dealing alone with Lauder’s case, but with the rights of every citizen of our great State for all time to come. In such a case, no constitutional barrier can be let down as against encroachments upon the liberty of the citizen.
But it is argued that there wa.s other evidence than that of Lauder himself upon which the indictment was in part based; that the evidence of the other witnesses must be presumed to have been competent; and that the general rule is that where the grand jury indict upon evidence, some of which is competent and some incompetent, the court will not go behind the indictment, or weigh the sufficiency of the evidence. See U. S. v. Reed, 2 Blatchf. 466; State v. Logan, 1 Nev. 515, 517; People v. Hulbut, 4 Denio, 133; U. S. v. Shepard, 1 Abb. (D. S.) 431; Washington v. State, 63 Ala. 189; Sparrenberger v. State, 53 Id. 481; Bloomer v. State, 3 Sneed, 69; Hope v. People, 83 N. Y. 418; State v. Dayton, 23 N. J. Law, 52, 57. It is also urged that the plea fails to show (as it does) that all the facts and circumstances material and necessary to sustain the indictment came solely from Lauder; nor does it appear, except by inference, what part the testimony of Lauder played in the finding of the true bill. It is suggested with much force by his counsel that, if there was testimony sufficient to indict him without his evidence, why was he subpmnaed and sworn unless ■ it was to complete the chain against him, by the furnishing of a missing link out of his own testimony. The case is then left in this uncertainty: Was he indicted solely upon the testimony of the others without reference to his own evidence, or was he indicted solely'on the strength of his own testimony, or was he indicted upon the whole testimony?
It is undoubtedly the general rule that where an indictment is founded upon both competent and incompetent testimony it will be permitted to stand, as the courts will not undertake to weigh the sufficiency of the competent evidence when it is shown that there was any. But what then is the reniedy when the rights of the accused have been violated as in this case? Chief Justice Green, in State v. Dayton, supra, while holding that an indictment might be sustained though found on incompetent and competent testimony combined, said:
“It is not denied that the court may, in the exercise of a sound discretion, in order to promote the purity of the administration of justice, and for the greater security of the rights of the citizen, quash an indictment by reason of the misconduct of the grand jury.”
But he held that this discretion could not be exercised upon a plea in abatement.
I can find no case in the books where a person charged with crime before a grand jury, and pending investigation of such charge before them, has been brought in by subpoena and compelled to testify against himself, without warning of the charge against him, and without knowledge of it, in which an indictment found against him after the taking of such testimony has been sustained, while there are many to the contrary. If the indictment is not quashed, the accused person has no remedy, and is put upon trial through a violation and open disregard of one of his most valued rights. On principle, I do not see how such an indictment can stand. It is founded necessarily upon the violation of a constitutional right, which the law never permits in any case. Besides, the prosecutor, although the testimony so given before the grand jury cannot be used against Lauder upon his trial, has in his possession facts and circumstances divulged by Lauder, which he can use and avail himself of upon the trial. He obtained this testimony unlawfully, and has no right to so use it, but it is within his knowledge, and there is no means known to the law to prevent him from taking advantage of such knowledge.
If a failure of justice shall occur in this particular case, it will be the fault of those who have -invaded and overridden the constitutional rights of the accused, and not of the courts, whose duty it is to e.xpound the law without fear or favor, and to stand as a stone wall in front of the Constitution in the defense of the inalienable rights of all men as declared in the bill of rights in that instrument. The supposed or even probable failure of justice in Lauder’s case cannot be entertained by this Court as a reason for establishing a precedent that will, for all the years of the future (unless overruled in some other case by this Court), authorize the compelling of a witness to testify against himself before a grand jury for the express purpose of indicting him; for the only redress in this case, and any other, to the accused person, and the only way to prevent a repetition of this practice in other cases, is to quash the indictments when such a course is taken. Courts cannot make law for particular cases, but must expound it the same, and as it is, in all ' like cases.
And it will not do to say that this defect in the indictment cannot be raised by plea, but must be brought before the court upon motion to quash. Such holding only postpones the evil day, and makes additional expense, as a motion to quash would at once follow such a ruling.
I have carefully read the opinion of the learned judge below, who refused to quash the indictments against Lauder, and have examined the cases cited by him in support of his ruling. Such examination but confirms me in the views above stated.
In the case of In re Hackley, 24 N. Y. 74, it was held that the constitution did not protect a witness in a criminal prosecution against another from being compelled to give testimony which implicates him in a crime tohen he has been gorotected by statute against the use of such testimony on his own trial. Hackley was summoned before a grand jury, and sworn as a witness in a complaint pending before such grand jury against certain aldermen of the city of New York for feloniously receiving a gift of money under an agreement that their votes should be influenced thereby. He was asked,—
fiWhat did you do with the pile of bills received from Thomas Hope, and which he told you amounted to $50,000?”
He refused to answer, for the following reason:
“Any answer which. I could give to that question would disgrace me, and would have a tendency to accuse me of a crime."
The matter went to the court of appeals. It was decided against Hackley, upon the express ground that the testimony, by an express statute, could not be used against him, and therefore he was not required to give evidence against himself upon his own trial, which was forbidden by the constitution. The bribery act (so-called) of 1853 in New York declares that the giving to or receiving money, etc., by any of the divers public officers named, including any member of the common council of a city, with a view to influence their action upon any matter which may come officially before them, shall be an offense punishable by fine or imprisonment in a state prison. For the purpose of enabling the public to avail itself of the testimony of a participator in, the offense, the fourteenth section provides as follows:
“ Every person offending against either of the preceding sections of this article shall be a competent witness against any other person so offending, and may be compelled to appear and give evidence before any magistrate or grand jury, or in any court, in the same manner as other persons; but the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying.”
.In the same statute by which Hackley was compelled to testify against his participator in the crime, and thereby also against himself, he was as amply protected against the use or employment of such testimony against himself in any trial or proceeding as the constitution protected him. Would it be for a moment contended that, under this statute, the testimony thus given by Hackley could be used as the basis of an indictment against him by this same grand jury? And Justice Denio, in the opinion in the Hackley case, expressly says, at page 82:
“It is perfectly well settled that where there is no legal provision to protect the witness against the reading of the testimony on his own trial he cannot be compelled to answer. This course of adjudication does not result from any judicial eonstrtfction of the constitution, but is a branch of the common-law doctrine which excuses a person from giving testimony which will tend to disgrace him, to charge him with a penalty or forfeiture, or to convict him of a crime. It is of course competent for the legislature to change any doctrine of the common law, but I think they could not compel a witness to testify on the trial of another person to facts which would prove himself guilty of a crime, ivithout indemnifying Mm against the consequences, because I think, as has been mentioned, that by a legal construction the constitution would be found to forbid it.”
In People v. Sharp, 107 N. Y. 427, the ruling In re Hackley was sustained, and it was held that Sharp could have been compelled to testify before a legislative committee under a statute which authorized it, as it did not violate the constitutional provision that no person shall “be compelled, in any criminal case, to be a witness against himself,” as it was provided in the same statute, not only that “the testimony so given shall not be used in any prosecution or proceeding * * * against the person so testifying,” but that the person testifying to the giving of a bribe, which has been accepted, “shall not thereafter be liable to indictment, prosecution, or punishment for that bribery.” Here, again, the same statute that compelled Sharp to testify before the legislative committee as to the giving of a bribe protected him, by the same ample shield as the constitution itself, by providing that such testimony could not be used against him, and further, if the bribe which he testified to offering was accepted, it exempted him from all penalty or punishment for such bribe-giving. This case cannot certainly be relied upon to authorize the compelling of Lauder to testify against himself before the grand jury, when an indictment for bribery against him was under consideration by them, but is authority directly to the contrary. This case also holds that Sharp, attending before said legislative committee in obedience to its subpoena, and being sworn and examined as a witness, could not be deemed a willing or consenting witness because he made no objection to giving his testimony.
In State v. Froiseth, 16 Minn. 297, the defendant was indicted for receiving greater fees than were allowed by law for his services as justice of the peace. He was. required by the grand jury to testify as a witness touching the charge alleged against him in the indictment. The court said:
“ We think there can be no doubt upon the question. The bill of rights expressly declares that fno person * * * shall be compelled, in any criminal ease, to be a witness against himself/” See, also, U. S. v. Brown, 1 Sawy. 534, 537; U. S. v. Farrington, 5 Fed. Rep. 348; U. S. v. Kilpatrick, 16 Id. 765.
In People v. Singer, 5 N. Y. Crim. Rep. 1, 18 Abb. N. C. 96, the defendant was indicted for murder in the second degree. While she was in custody, pending a preliminary examination before a magistrate, she was taken before the grand jury. The .district attorney refused to-examine her, and informed her that if she answered any questions it might hurt her, and she ought not to, and was not obliged to, answer, as her answers might criminate her. Notwithstanding this advice, she was asked questions by some of the jurors, aud answered them. -The court said:
“I am satisfied, upon a careful consideration of all the circumstances, that the prisoner was compelled by the grand jury to give evidence against herself before that body, when it was investigating a charge of crime against her, and that the indictment should be quashed on that ground. No precedent has been cited, nor am I aware of any, for the action of the grand jury in thus subjecting an accused prisoner to interrogation. The practice is too dangerous to be sanctioned without express legislative authority.”
In People v. Haines, 1 N. Y. Supp. 55, the defendant was summoned before the grand jury, and after being sworn proceeded to answer questions against himself put by the grand jury. The court set aside the indictment, and. said:
“The situation of a person charged with crime which is under investigation before the grand jury is similar to that he would occupy if under investigation before a committing magistrate, and he should be treated in all respects as he would be if the crime charged against him was being investigated before the committing magistrate instead of the grand jury. It was so held in reference to a coroner’s inquest, in People v. Mondon, 103 N. Y. 211, and I see no reason why it should not be so held in reference to the grand jury. In fact, the preliminary examination which takes place before the committing mágistráte, the coroner’s inquest, and the grand jury, is in the main for the same purpose; and a person who is charged with the commission of a crime which is under investigation before either of them should be treated in all respects as required by sections 188, 189, and 198 of the Code of Criminal Procedure. He should be informed of the charge against him, and of his right to the aid of counsel; and, if he has no counsel, must have reasonable time to send and obtain one. He must be advised of his right to make a statement in relation to the charge against him, or that he may waive making one, and that his waiver cannot be used against him on his trial.”
In People v. Briggs, 60 How. Pr. 17, the indictment was quashed because the wife of the respondent was called and sworn before the grand jury. The court said, quoting Justice Story in U. S. v. Coolidge, 2 Gall. 364:
“The grand jury is the great inquest between the government and the citizen. It is of the highest importance that this institution be preserved in its purity, and that no citizen be tried until he has been regularly accused by the proper tribunal."
See, also, as bearing upon this question, the following cases: U. S. v. Coolidge, supra; People v. Sellick, 4 N. Y. Crim. Rep. 329; U. S. v. Kilpatrick, 16 Fed. Rep. 765; In re Falvey, 7 Wis. 630.
I am satisfied that the writ of mandamus should be granted, directing the Wayne circuit court to quash the indictments against Lauder. It was urged on the argument that it appears from his own testimony that Lauder has been guilty of corruption in public office, and that the granting of this writ will let the guilty go free. But it must be remembered that this testimony, which tends to show his guilt, was obtained from him in violation of his constitutional rights. Such testimony could not be used against him upon his trial, under all the authorities. The preservation of the constitutional privileges, affecting the liberty of the citizen, is of paramount importance beside which each individual case sinks into insignificance. The right which, by the granting of this writ, we preserve to Lauder is also the property of every other citizen of our State. If we take it away from Lauder because we believe him guilty of the offense charged against him, we must take it away from all others, or be guilty ourselves of an inconsistency which would be a disgrace to us, and a reproach to the law.
I cannot better conclude than by quoting the language -of Justice Peckham, in granting a new trial to Jacob ¡Sharp, who had testified that he was guilty of bribery foefore the legislative committee of New York:
“The law must protect all who come within its sphere, whether the person who invokes its protection seems to be sorely pressed by the weight of the inculpatory evidence in the case or not. It cannot alter, for the purpose of securing the conviction of one who may be called or regarded as a great criminal, and yet be invoked for the purpose of sheltering an innocent man. In the eye of the law, all are innocent until convicted in accordance with the forms of law, and by a close adherence to its rules.” People v. Sharp, 107 N. Y. 476, 477.
Long, J., concurred with Morse, J. | [
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Morse, J.
The respondent was arrested upon complaint of the village marshal of Sparta. The complaint recited that on or about June 10, 1889, and on or about July 10, same year, one Porter Vinton,—
“Not being then and there a druggist who sells liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, did then and there, to wit, in the frame building occupied by him in said village, sell spirit- nous and intoxicating liquors, and liquors a part of which was spirituous and intoxicating liquors, containing fermented liquors.”
And that the said Porter Vinton, on the days and year aforesaid, and between such dates, at said village of Sparta, did—
“Keep and maintain a saloon in said village of Sparta for the purpose of selling the liquors aforesaid, and was then and there a saloon-keeper for the sale of spirituous and intoxicating liquors aforesaid, against and in violation •of the form and provisions of an ordinance of said village entitled f An ordinance for the suppression of saloons for the sale of spirituous and intoxicating liquors/ enacted and approved May 5, A. D. 1886, and published May 6, A. D. 1886, in such case made and provided, and contrary to the peace and dignity of the people of the State of Michigan.”
The warrant followed the complaint in its description of the offense, and commanded his apprehension in the name of the people of the State of Michigan. Upon a jury trial before a justice, the respondent was found guilty, and sentenced to pay a fine of $100, and $24.67 costs, and, in default of such payment, to be confined in the county jail of Kent county until such fine and costs were paid, but not to exceed a period of 90 days. From this judgment, Vinton appealed to the circuit court, his recognizance on appeal running to the village of Sparta.
The justice returns that he docketed the case as the Village of Sparta vs. Porter Vinton, and sends up a transcript of his docket entries in the case. When the case came into the circuit it was docketed “ The People of the State of Michigan vs. Porter Vinton,” and the oath administered to the jury and the witnesses was the usual oath taken in criminal cases.
Before the trial Myron H. Walker, an attorney of the • court, appeared for the prosecution, whereupon respondent’s counsel objected to his appearance. Said Walker then stated that the prosecuting attorney of Kent county had told him that he had no objection to said appearance, which was corroborated by the clerk of the court. Said Walker, being sworn as to his authority, testified that the village attorney and clerk of said village had authorized him to appear for the prosecution.
“Thereupon the village attorney of the village of Sparta, to wit, Amherst B. Cheeny, Esq., who is not an attorney of this court, appeared and produced the records of proceedings of the common council of said village, showing that he was duly elected and qualified as village attorney of said village, and that his term of office had not yet expired, and that he had authorized and directed said M. H. Walker to appear herein in his stead, to prosecute said cause on behalf of said village, but that the common council of said village had not officially authorized or empowered him to do so; and the said village attorney remained in said court during said trial, supervising the same.
“ Thereupon respondent, by his counsel, renewed his objection to the appearance of said Walker as prosecuting attorney in said cause, because he had not shown, nor had any showing been made, that he had been lawfully authorized to appear as such prosecutor; but the court overruled said objections, .and decided that the village-attorney had authority to appoint said Walker to prosecute said cause in manner aforesaid.”
Respondent excepted to this ruling. The trial proceeded, resulting in the conviction of Yinton. His attorneys then moved the court in arrest of judgment, because the respondent was arrested, tried, and convicted, and recognized on appeal herein, before the justice of the peace, in a suit named “ The Village of Sparta vs. Porter Vinton,” and the judgment appealed from was pronounced by the-justice in the same cause.
“And because the records, pleadings, and proceedings in this cause and court have all been entitled ‘ The People vs. Porter Vinton,’ the witnesses have been produced, subpoenaed, tried, and sworn in the suit of c The People of the State of Michigan vs. Porter Vinton,’ and the jurors who tried the cause in this court were impaneled and sworn to try the cause of ‘ The People of the State of Michigan vs. Porter Vinton, and no proceedings have been had in this court in this cause, either in subpoenaing and swearing witnesses or jurors in the cause, entitled f The Village of Sparta vs. Porter Vinton.’
“Because this court has no jurisdiction to proceed against the respondent in the cause entitled ‘ The People of the State of Michigan vs. Porter Vinton, for the reason that no such cause was brought into this court by said appeal.
“Because the whole proceeding in this court in the name of the people as plaintiff is void, unless the prosecution of the violation specified may by law be in the name of the ‘ People ’ as plaintiff; and in that case there is no case brought into this court by appeal which was originally commenced, prosecuted, and proceeded to judgment in the name of ‘ The People ’ as plaintiff, and hence there was and is no basis for the proceedings had in this court."
The motion was overruled, and the case comes here on exceptions before judgment.
No objection seems to have been made in either court as to the validity of this ordinance, nor is it attacked in this Court. The village of Sparta is organized under the general laws of the State for the incorporation of villages (chapter 81, How. Stat.), and the ordinance was passed under the powers granted in section 2847, How. Stat., and found in the seventh paragraph of said section, as amended by Act. No. 52, Laws of 1883, which grants the authority “to suppress saloons for the sale of spirituous and intoxicating liquors." The ordinance prohibits the keeping or maintaining of a saloon in the village for the sale of such liquors, and provides a punishment by fine not less than $50, and not exceeding $100, and costs of prosecution, and by imprisonment in the common jail of Kent county, or any jail or work-house, not less than 10 nor more than 90 days, and, in default of the payment of the fine and costs, the offender shall stand committed until said fine and costs are paid, but not for a longer period than 90 days.
The first error assigned is the appointment of Walker as prosecutor. It is not urged that the prosecuting attorney of the county should have managed this suit, but it is claimed that the village attorney of Sparta was not an attorney of the court, and, as he could not appear himself, he could not deputize another to appear for him. We think the objection not well taken. The person acting as village attorney, Amherst B. Cheney, was the duly-elected agent of the village as to litigation or enforcement of ordinances, and had the right to call in an attorney to assist him or to conduct the suit for him. The fact that Cheney was not an attorney of the court rendered this action necessary, and it is immaterial, so far as the issue here is concerned, whether or not the common council of the village had by resolution authorized him to do so. The record shows that Cheney was present during the trial, and supervising the case of the village. The respondent could no more object to Cheney’s authority to employ Walker, under the circumstances, than a party in a civil case could object to the appearance of an attorney whom the opposite party brought into court to manage his case, as no interest or prejudice against the respondent was shown in Walker.
We do not regard the entitling of this kind of cases as of any great importance. In the prosecution of offenses against city and village ordinances by complaint and warrant, some of them come into this Court on error entitled as in Village of Northville v. Westfall, 75 Mich. 603, and some as in People v. Gordon, 81 Id. 306; and either one is proper enough where there is no provision in the charter as to the name in which the suit shall be brought.
In Cooper v. People, 41 Mich. 403, the charter of the city of Charlotte expressly provided that suits for the collection of penalties for the violation of ordinances should be brought in the corporate name, “ City of Charlotte.” In Webster v. Lansing, 47 Mich. 192, it was held that a case commenced in the name of the people of the State of Michigan could not be changed ' to a civil suit, with the city as plaintiff, on appeal to the circuit court. If the head-note is correct, that the city charter of Lansing at the time contained a provision authorizing the city to prosecute civil suits in its own name for the violation of city ordinances, the opinion filed is in conflict with Cooper v. People, supra, as Mr. Justice Graves in the Lansing Case holds that the people could bring suit, and that the title of the case in justice's court should have been adhered to. "While it is true that these prosecutions for the violation of city or village ordinances are matters to be prosecuted by the village or city, and the people of the State of Michigan are not concerned with them, as they are not offenses against any general law of the State, yet the method of procedure in them in many cases by statute is made to conform to the proceedings in criminal eases cognizable before a justice of the peace.
It was held in a similar case to the one at bar (Village of Northville v. Westfall, supra) that, while the proceedings to enforce village or city ordinances have always been regarded as civil actions, yet where, under the statute, the enforcement is sought by a resort to proceedings which are carried on in all respects as criminal cases are prosecuted, by complaint and warrant, and where the court is authorized to inflict upon the offender not only the fine and imprisonment for its' non-payment, but also imprisonment aside from a pecuniary fine, such proceedings become criminal in so far that a person acquitted of the charge can never be again placed in jeopardy. This penalty under the ordinance before us might have been recovered in an action of debt or in assumpsit had it not been that such ordinance contained a provision for the . imprisonment of the offender. How. Stat. § 2839. The same section provides that cases for violation of such ordinances may be commenced by warrant, and when so commenced the proceedings shall, as near as may be, conform to the provisions of law regulating the proceedings in criminal cases cognizable by a justice of the peace. Upon removal of the cause by appeal to the circuit court, the statute further provides that the disposition of the cause in such court shall be the same as on appeal in criminal cases cognizable by a justice of the peace. How. Stat. § 2842.
The complaint of the respondent seems to be that these statutes were more than followed, in that the case in the circuit was treated as a criminal case, docketed as a criminal case, and the oaths administered to jurors and witnesses being the same taken in criminal trials. The record shows that no objection was made before or on the trial to the treatment or docketing of the cause as a criminal one, or to the form of the oaths administered. The first objection made -to such proceeding was in a motion in arrest of judgment. If the objection had been made seasonably, the case would probably have been tried and docketed as a proceeding or suit in the name of the village of Sparta, as it was in justice's court. • The defendant is thus seeking to escape punishment upon a technicality. The general law as to the incorporation of villages provides that—
“ Whenever a penalty shall be incurred for the violation of any ordinance, and no provision shall be made for the imprisonment of the offender upon conviction thereof, such penalty may be recovered in an action of debt or in assumpsit.”
But it is also provided in the same section that—
“Prosecutions for violations of the ordinances of the village may * * * be commenced by warrant for the arrest of the offender. Such warrant shall be in the name of the people of the State of Michigan, and shall set forth the substance of the offense complained of, and be substantially of the form, and be issued upon complaint made, as provided by law in criminal cases cognizable by justices of the peace. And the proceedings relating to the arrest and custody of the accused during the pendency of the suit, the pleadings, and all proceedings upon the trial of the cause, and in procuring the attendance and testimony of witnesses, and in the rendition of judgments and the execution thereof, shall, except as otherwise provided by this act, be governed by, and conform as nearly as may be to, the provisions of law regulating the proceedings in criminal causes cognizable by justices of the peace.” How. Stat. § 2839.
It is also provided, by section 2841, that such complaint shall contain the substantial matters required in criminal complaints, and a jury trial is provided for. The section further provides that—
“ Such jury, except when other provision is made, shall consist of six persons, and in suits commenced by warrant shall be selected and summoned as in criminal cases cognizable by justices of the peace, and in suits commenced by summons as in civil cases,” etc.
Section 2842 provides that—
“Any person convicted of a violation of any ordinance of the village in a suit commenced by warrant, as aforesaid, may remove the judgment and proceedings into the circuit court * * * by appeal or writ of certiorarij ■and the time for such appeal or removal, and the proceedings therefor, and the bond or security to be given thereon, and the proceedings and disposition of the cause in the circuit court, shall be the same as on appeal and certiorari in criminal cases cognizable by justices of the peace; and in suits to which the village may be a party, brought to recover any penalty for such violation, either party may appeal,” and like proceedings shall be had in the circuit as in civil appeal cases.
It is apparent from these provisions that suits to recover these penalties in an action ef debt or assumpsit would and must be commenced, tried, and appealed as civil cases, with the village of Sparta as plaintiff. But when they are commenced by complaint and warrant they take-on the nature of criminal proceedings, and may be commenced and prosecuted in the name of the people of the State of Michigan. There is no complaint that the proceedings up to the time of appeal and transfer to the-circuit court were not in compliance with the statute. If the cause had been docketed by the justice “ The People of the State of Michigan vs. Porter Vinton,” the whole proceedings would have been perfect and lawful. The-fact that it was docketed “ The Village of Sparta vs. Porter Vinton” is a mere technicality. Everything, but this docketing at the head of the entries, complaint, warrant, trial, and judgment, was as in a criminal case. This technical mistake or defect cannot be allowed to defeat the ends of justice, especially where no objection is made until after verdict. The case will be treated as one commenced and prosecuted from the beginning in the name of the people of the State of Michigan.
The conviction is affirmed, and the circuit court will proceed to judgment on the verdict.
The other Justices concurred. | [
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Per Curiam.
The question presented by the defendant’s application for leave to appeal is whether a totally inoperable pistol can constitute a "dangerous weapon” so as to support a conviction of felonious assault under MCL 750.82; MSA 28.277. We hold that it cannot.
I
The defendant, while a passenger in a car, pointed a starter pistol at the occupants of another vehicle after an exchange of insults. He was charged under MCL 750.82; MSA 28.277:
"Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.”
The defendant moved to quash the information, and the parties stipulated that, for the purposes of the motion, the weapon involved was a starter pistol with the barrel bored out, containing eight live .22 caliber shells, but with the firing pin filed down to the point that it would not be possible to fire the pistol.
The trial judge granted the motion to quash on the ground that since the pistol was inoperable, it was not a "dangerous weapon” within the meaning of the statute.
The Court of Appeals reversed. The majority pointed out that in using the word "gun” the statute does not refer to its caliber or its operability. The majority relied on the definition of "assault” in People v Sanford, 402 Mich 460, 479; 265 NW2d 1 (1978), in which we held that a simple criminal assault consists of either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery. The Court of Appeals said that if the victim perceives an object such as a handgun and believes it to be a dangerous weapon, a prima facie case of felonious assault is made out.
II
We agree with Judge Cavanagh’s dissenting opinion that more is required. Certainly, under People v Sanford, supra, and People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979), the victim’s reasonable apprehension can establish the element of an assault in a felonious assault prosecution under MCL 750.82; MSA 28.277. However, those cases provide no authority for the conclusion that the victim’s apprehension of an object can transform it into a "dangerous weapon”.
In this case, there is nothing to suggest a basis for concluding that the starter pistol was a "dangerous weapon” other than the theory that it was a "gun, revolver, [or] pistol”. While the statutes do not define the terms "gun” or "revolver”, we can see no other plausible interpretation of that series of words than that it applies to assaults with firearms. The term "firearm” is defined by law:
"The word 'firearm’, except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion, * * MCL 8.3t; MSA 2.212(20).
The starter pistol in this case was not capable of propelling a dangerous projectile, and thus its use in an assault did not violate MCL 750.82; MSA 28.277.
Accordingly, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgment of the Court of Appeals and remand the case to the circuit court for dismissal of the charge against the defendant.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
We note that the Legislature chose not to include language in the felonious assault statute like that found in the armed robbery statute, which permits conviction on the ground that the perpetrator committed the robbery with an "article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon.” MCL 750.529; MSA 28.797.
That is, there is no claim that the defendant attempted or appeared to use the starter pistol as a striking weapon.
The word "pistol” is defined by several statutes. For example MCL 28.421; MSA 28.91 states:
"As used in this act:
"(a) ’Pistol’ means any firearm, loaded or unloaded, 30 inches or less in length * * | [
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Per Curiam.
These cases have been consolidated for the purpose of making clear the nature of a criminal defendant’s right of allocution before sentencing. The claim of each defendant arises from distinct trial court proceedings briefly set out below.
Defendant Berry
The defendant pleaded guilty on October 11, 1977 to separate charges of armed robbery, MCL 750.529; MSA 28.797; assault with intent to rob while armed, MCL 750.89; MSA 28.284; and two counts of possession of a firearm during commis sion of a felony, MCL 750.227b; MSA 28.424(2). Pursuant to a plea bargain with the prosecuting attorney and a sentence bargain with the trial court, the defendant was sentenced to a total of not less than 7 nor more than 15 years in prison.
At sentencing, after stating that the sentence bargain called for imprisonment of 7 to 15 years, the Court said:
"The Court: All right. Is there anything you want to say before I impose sentence?
"Mr. Wolney: Richard T. Wolney, appearing on behalf of the defendant in 77-06332. I have had an opportunity to read the presentence report and I believe that it’s accurate factually in its basis.
"The Court: Is there anything you want to say?
"Ms. Gaskin: Deborah Gaskin appearing for the defendant. I also had an opportunity to review the report. I would only request that you follow the previously mentioned agreement.”
The court then recited at some length the defendant’s history of previous convictions, sentences, and prison escapes, commented about her use of heroin, described her sociopathic personality, observed that she apparently lacked remorse for the crimes committed, and imposed the sentence agreed upon.
Defendant Long
The defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, on December 1, 1976, After preparation of a presentence investi gative report, a presentence conference occurred in the court’s chambers involving the trial judge, counsel for the defendant, and an assistant prosecuting attorney.
No record was made of the conference in chambers. On December 27, 1976, the defendant was brought before the court and sentenced to confinement for a term of not less than 8 nor more than 20 years. The defendant complains that at sentencing he was denied his right of allocution and is entitled to be resentenced.
At the time of sentencing, the following occurred:
"The Court: Is your name Edward Long?
"The Defendant: Yes, sir.
’"The Court: Mr. Hills is your attorney; is that correct?
’’The Defendant: Yes, sir.
’’The Court: Mr. Long, is there any reason why you should not be sentenced today for armed robbery?
"The Defendant: Not that I know of.
’’The Court: Mr. Hills, you have discussed this case with me in chambers. Do you wish to add anything further?
”Mr. Hills: There is nothing further. I have discussed it in chambers with yourself and Mr. Mabbitt and the probation agent.
"The only thing that I objected to in chambers was the presentence report of his wife being included in his, because I do not think it adds anything. I would have no chance to rebut that.
"Other than that, I would have no objection, your Honor.
"The Court: Mr. Long, you are not a youngster anymore. You are thirty-four years old, according to a report; is that right?
"The Defendant: Yes, sir.
"The Court: You have not been able to hold a job for very long.
"The Defendant: No.
"The Court: When was the last job you had?
"The Defendant: I was self-employed for a long time.
"The Court: But you were drawing ADC and so forth, with your wife, were you not?
"The Defendant: No.
"The Court: You never have gotten ADC?
"The Defendant: She might have drawed ADC, but I didn’t draw on ADC.
"The Court: Your defense in this case was that you were under the influence of drugs, and that you did not recall what happened?
"The Defendant: Yes, sir.
"The Court: The jury did not feel that this was established sufficiently to acquit you on the charge. Even if this was the case, you are still a dangerous person if you are under the influence of drugs, and if you are carrying a weapon.
"The Court feels that you are a problem, and a danger to society. You have been found guilty and sentenced for armed robbery once before in Calhoun County, have you not?
"The Defendant: Yes, sir.
"The Court: It just seems to me that you have not learned your lesson, and you have to be put out of society for awhile.
"The Defendant: Well, your Honor, I ain’t been back in society since they found me guilty.
"The Court: Well, Mr. Mabbitt, do you have anything to say in this matter?
"Mr. Mabbitt: Nothing that I have not already said in chambers, your Honor.
"The Court: Well, it is the sentence of this court that you, Edward Long, shall be forthwith committed to the state prison of Southern Michigan in Jackson County for the purpose of classification, and shall be confined in such state institution as shall be duly designated for a term not to exceed twenty years, and not less than eight years, from and after this date.
"I will recommend that you receive psychiatric treatment, if it is available.
'The Defendant: I would rather not have that recommended.
"The Court: Well, you do not have anything to say about it. I am making that recommendation.”
I
Both defendants complain that they were denied the right of allocution to which they are entitled under the provisions of GCR 1963, 785.8(2) and 785.9.
In relevant part, the court rule provides:
".8 Sentencing. Before sentence is imposed the court shall:
"(2) Give defendant and his lawyer a reasonable opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence;
"Provisions of subrule 785.8 are mandatory and failure to comply shall require resentencing.
".9 Conformity with the practice provided under 785.3 through 785.8 shall affirmatively appear on the record.”
We find that in the cases of both defendant Long and defendant Berry the court did not comply with the requirements of GCR 1963, 785.8(2) and 785.9.
The rule requires that the record reflect that both the defendant and his counsel were given the opportunity to address the court before sentencing.
In defendant Long’s case, the record at sentencing clearly discloses that the defendant was denied his right of allocution. The court’s opening inquiry whether the defendant knew of any reason why "you should not be sentenced today” addressed the matter about which the court was concerned, but did not extend to the defendant an opportunity to address the court with respect to matters of concern to the defendant. Indeed, later in the colloquy, when the defendant spoke up on his own initiative to state that he preferred that no recommendation be made for psychiatric treatment, he was abruptly cut off by the trial court with the statement: "Well, you do not have anything to say about it. I am making that recommendation.”
Nor should the nature of the right of allocution be viewed any differently in cases like defendant Berry’s where a sentence bargain has been struck. Sentence bargain or no sentence bargain, the defendant must be given the opportunity to make a statement to the sentencing court in mitigation, extenuation, or justification of the crime for which he is to be sentenced, or in any other respect relevant to the sentence to be imposed. He may wish to supplement or contradict material appearing in the presentence report, even if his attorney does not, or to bring to the court’s attention information theretofore undisclosed which could have a bearing upon the justice of the entire proceedings. Moreover, to enable the defendant to address the court before sentence is imposed is more than a harmless charity extended to one about to be imprisoned. It is an important and integral aspect of the truth-discovery purpose of the criminal justice process and is specifically mandated by our court rule. No exception exists for cases in which the court has struck a sentence bargain with the accused.
The rule requires strict compliance and should be understood in all cases to require the trial court to inquire specifically of the defendant separately whether he or she wishes to address the court before the sentence is imposed. Ordinarily the inquiry should come immediately before the sentence is pronounced and after the trial court has made such remarks as it deems appropriate concerning the offense involved, the presentence report, the defendant’s personal history, the needs of the community, and any other subject.
In the cases before us, it is evident from the records that the defendants were not separately and individually given a reasonable opportunity to address the court. Thus the defendants must be resentenced.
II
The prosecution has also filed a delayed application for leave to appeal in the case of People v Berry. It is argued that the Court of Appeals erred in setting aside defendant Berry’s convictions of felony firearm on the theory that her convictions of the underlying felonies and felony firearm constituted double jeopardy. We agree. Wayne Prosecutor v Recorder's Court Judge, 406 Mich 374; 280 NW2d 793 (1979).
Ill
Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of grants of leave to appeal, defendant Berry’s convictions of felony-firearm are reinstated, and the sentences imposed in these cases are set aside and each case is remanded to the trial courts for resentencing.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
The multiple charges to which the defendant pleaded guilty and for which the sentence was imposed were brought in two separate cases. The cases were consolidated for guilty plea and sentencing and thus the defendant was represented by two attorneys, Mr. Wolney and Ms. Gaskin.
While it is not a basis for our decision, it is hard to imagine why the defendant "did not have anything to say about” whether the court should recommend psychiatric treatment. Who indeed would be more entitled to be heard on the matter than the proposed involuntary patient? He may have had something very worthwhile to tell the sentencing court about the worth of such a recommendation on the basis of his prior experience with psychiatric treatment in prison, the result of treatment received on earlier occasions, or some other information of value to the court — and if of no value to the court at all, in keeping with both the letter and the spirit of our rule that a citizen about to be incarcerated has a right to speak to the sentencing court. | [
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Ryan, J.
We granted leave to appeal in this case to consider a number of issues, including whether a trial judge’s refusal to give a properly requested lesser included offense instruction is harmless error in a case where the jury was instructed on some other lesser offenses and returned a verdict of guilty on a higher, charged offense.
Our review of the record reveals two errors which require reversal of the defendant’s conviction and remand for a new trial. First, on the record evidence in this case, the defendant was entitled to have the jury instructed on the lesser offenses of involuntary manslaughter and reckless use of a firearm causing death or injury. The refusal to give instructions on those properly requested and applicable lesser offenses was, in this case, prejudicial error. Second, the trial judge’s instructions on the element of malice, in stating that the law implies malice from a sudden, unprovoked killing and that in the absence of contrary evidence malice may be inferred from use of a deadly weapon, had the reversibly erroneous effect of suggesting to the jury that the prosecution need not establish the necessary factual element of malice beyond a reasonable doubt. See People v Wright, 408 Mich 1; 289 NW2d 1 (1980). In view of the record evidence and the defendant’s theory of the case, these instructional errors were prejudicial and likewise require reversal.
I
Defendant Jesse James Richardson, Jr. was convicted of first-degree murder by a City of Detroit Recorder’s Court jury on June 13, 1975. The Court of Appeals affirmed the conviction. On reconsideration of an earlier order denying leave to appeal, we granted leave to consider whether the trial judge’s refusal of the defendant’s request for certain lesser included offense instructions required reversal where the jury was instructed on other lesser offenses and returned a verdict of guilty on the highest, charged offense.
The Court of Appeals summarized the testimony which was offered at the defendant’s trial:
"On April 23, 1975, defendant was at the residence of Charles Johnson when an altercation arose between defendant and Marshall Cook, the brother of the decedent, Paul Cook. Marshall Cook testified that he beat defendant about the head with a brick in order to stop defendant from fighting another man. Defendant was cut badly and was bleeding profusely from two head wounds which ultimately required 22 stitches.
"Charles Johnson testified that he asked defendant if he could take him to a clinic for treatment. Johnson states he took defendant to the clinic but the defendant refused to stay long enough for medical treatment. Johnson then took defendant home. Johnson states that when they arrived at defendant’s home defendant got a box of shells and two rifles. Johnson observed defendant loading both rifles and getting a knife from a drawer. Linda Steen, defendant’s common-law wife, then called defendant’s father to request his assistance in taking defendant to the hospital. According to Johnson, defendant got on the phone and said to his father: 'I’m going to kill this mother fucker’. At this point Johnson left and told Marshall Cook to get off the street.
"At approximately 5:30 p.m., Miss Steen, her ten-year-old daughter Sonja, defendant and his father left for Deaconess Hospital. Defendant’s father was driving. Defendant gave some amount of direction. Defendant had placed a rifle under the front seat of the car before leaving the house. His wife and father described him as being 'agitated’ and uncommunicative.
"At approximately 6 p.m., as the car rounded a corner, defendant spotted Paul Cook, brother of his assailant Marshall Cook, and asked his father to stop the car. Paul was walking down the street, drinking a can of beer, in the company of one Glenn Spencer.
"Glenn Spencer, a good friend of the Cook family and a stranger to defendant, testified that defendant got out of the car and said to Paul, 'your brother just busted my mother fucking head’. Defendant then reached in the car for the rifle. Paul said he knew nothing about the beating. Defendant cocked the rifle and ejected an empty shell. Paul again said he had nothing to do with the beating. Defendant bent down to pick up the empty shell. As he arose he pushed Paul, who had approached him with his arms extended. Defendant then rapidly shot him twice. According to Spencer, Paul was facing the defendant when the first shot was fired. After the shot was fired, Paul fell backwards and was lying partially on his side when the second shot was fired. At no time did Paul turn his back on defendant. Spencer claimed to have seen the entire incident, although he began moving away as soon as he saw the rifle. By the time he heard the first shot he was two or three houses down the street. He said he never turned his back on the two men, but watched them as he trotted backwards down the street. He said the whole incident occurred in half a minute or less. Further, just before the shots were fired Spencer heard someone in the car say, 'Jesse don’t do that’.
"After the shooting, defendant got back in the car and left the scene. He proceeded to the hospital where he remained for several hours while his head wounds were treated. He then returned home. Defendant was arrested while cleaning up the dried blood from his own injuries.
"Defendant testified in his own behalf. His theory was that the shooting had been accidental. He testified that he had stopped to speak to Paul Cook because, although he and Marshall had never gotten along well, he and Paul were good friends. He wanted to tell Paul that he didn’t intend to press charges, but that he wanted to talk to Marshall after they had 'gotten themselves together’ about why Marshall would want to 'mess him up like that’. Defendant said that when he exited the car he and Paul got into an argument because Paul laughed about the head injuries as if they were a 'big joke’. The argument escalated into cursing and pushing. When Paul shoved him back towards the car the defendant pulled the gun out, butt end first. As he swung the rifle around Paul grabbed the barrel. The two men wrestled and the gun went off. Paul fell to the ground still holding onto the gun. Defendant pulled the gun away, got back in the car and left. He said he did not stop to check on Paul’s injuries because he did not believe Paul had been shot. He also said that Glenn Spencer 'took ofF when the gun first appeared.” 77 Mich App 414-416.
To the foregoing account we would add that there was testimony that on the day of the killing, the defendant, while en route to the local employment security commission office and some time before his altercation with Marshall Cook, encountered the decedent Paul Cook and another man named Curt. A conversation occurred at that meeting, during which it was suggested that some beer be obtained for consumption by the three men. The defendant told his two companions that he could not then indulge in any beer drinking because he was on his way to the "unemployment office”. Later in the day, the defendant joined a group of persons at Johnson’s house who were periodically pooling funds in order to purchase wine for the group’s consumption. The defendant testified that after a while he decided to leave Johnson’s, and after declaring that intention, he refused to contribute more change to the wine fund. It was then that Marshall Cook, after expressing a belief that the défendant had obtained some money at the "unemployment office”, became agitated and beat the defendant. Defendant’s testimony indicated that Marshall’s belief that the defendant had some money was based on information obtained from Paul Cook. The prosecutor argues that the defendant apparently believed that Paul Cook had thus "set him up” for the beating administered by Marshall.
At the conclusion of the proofs, defense counsel requested the court to instruct the jury on the charged offense of first-degree murder only. The trial judge denied the request, and stated that he would instruct on first and second-degree murder, at least. Defense counsel then requested the court to instruct on the additional lesser offenses of manslaughter and reckless use of a firearm causing death or injury. The trial judge refused to instruct on reckless use of a firearm causing death or injury because he interpreted the information as not encompassing that offense. He did instruct the jury on the offenses of first- and second-degree murder and voluntary manslaughter.
The jury returned a verdict of guilty of first-degree murder.
II
The rule in Michigan has long been:
"Where a request has been to charge the jury on a lesser included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser offense, refusal to give the requested instruction is reversible error but, in the absence of such a request, the trial court does not err by failing to instruct on the included offenses. People v Jones, 273 Mich 430; 263 NW 417 (1935).” People v Phillips, 385 Mich 30, 36; 187 NW2d 211 (1971).
Because the lesser offenses of involuntary manslaughter and reckless use of firearms are not necessarily included lesser offenses, the rule of People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975), requiring instructions on all necessarily included offenses without assessment by the court of the evidence, is not applicable. We therefore must first determine whether evidence was presented which would have supported conviction of either of the lesser offenses of involuntary manslaughter or reckless use of a firearm.
A
We have said about the crime of involuntary manslaughter:
"The elements of involuntary manslaughter, although not completely exclusive of those found in voluntary manslaughter are distinguishable in several respects. They define a crime that originates out of circumstances often quite different from those found in voluntary manslaughter and apply to a defendant who did not proceed with the intent to cause death or serious bodily injury. In the leading case of People v Ryczek, 224 Mich 106, 110; 194 NW 609 (1923), the Court approved the following definition of involuntary manslaughter:
"' "Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.” ’
"The usual situations in which involuntary manslaughter arise are either when death results from a direct act not intended to produce serious bodily harm, People v Carter, 387 Mich 397, 419; 197 NW2d 57 (1972); People v Austin, 221 Mich 635, 643-645; 192 NW 590 (1923); or when death results from criminal negligence. People v Stubenvoll, 62 Mich 329; 28 NW 883 (1886); People v Townsend, 214 Mich 267; 183 NW 177; 16 ALR 902 (1921).” (Footnote omitted.) People v Townes, 391 Mich 578, 590-591; 218 NW2d 136 (1974).
In the present case the prosecutor’s theory was that the defendant, with premeditation, deliberation, and malice, intentionally killed Paul Cook. The defense case offered, in differing measures, ingredients of provocation, accident, self-defense, and "criminal” negligence of the kind that attends involuntary manslaughter. Our review of the record convinces us that there was evidence presented, as summarized above, which would have supported a conviction of involuntary manslaughter, and we therefore agree with the Court of Appeals that the trial judge committed error in refusing defendant’s request for an instruction on that offense.
B
The defendant’s request for an instruction on the lesser offense of reckless use of a firearm was also refused. The statute involved announces this proscription:
"Any person who, because of carelessness, recklessness or negligence, but not wilfully or wantonly, shall cause or allow any firearm under his immediate control, to be discharged so as to kill or injure another person, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison for not more than 2 years, or by a fine of not more than $2,000.00, or by imprisonment in the county jail for not more than 1 year, in the discretion of the court.”
Here again, there was evidence presented which would have supported a conviction under this statute, and we therefore agree with the Court of Appeals that the trial judge erred in denying the defendant’s request for an instruction on this offense.
C
With respect to the trial judge’s refusal to give the defendant’s requested lesser offense instructions, the Court of Appeals said:
"Evidence was adduced in this case which would have supported a finding of involuntary manslaughter or reckless use of a firearm. People v Chamblis [395 Mich 408; 236 NW2d 473 (1975)] at 423. Therefore, instructions on these lesser offenses should have been given. However, given that the jury refused to convict on the lesser offenses of second-degree murder or voluntary manslaughter, for which instructions were provided, we do not believe the error, under Chamblis, is reversible. People v Herbert Ross, 73 Mich App 588; 252 NW2d 526 (1977).
"In Ross, on finding no reversible error, we made the following comment:
" 'If the jury had doubts about defendant’s guilt of the charged offense but believed him to be guilty of some wrongdoing they could have found him guilty of one of the lesser offenses. They did not do so. We must conclude, therefore, that the jury had no reasonable doubt as to the defendant’s guilt of the charged offense.’ 73 Mich App at 592.
"We see no reason to view the present case differently, and so decline to reverse here.” 77 Mich App 421-422.
The question is thus presented as to whether the kind of instructional error which occurred in the present case can be rendered harmless by the jury’s verdict of guilty on a higher offense where the option was available to convict on some lesser offense.
The doctrine of harmless error is stated in both court rule and statute. The essence of this doc trine is that: "appellate courts should not reverse a conviction unless the error was prejudicial”. People v Robinson, 386 Mich 551, 562; 194 NW2d 709 (1972). In the present case, we find it unnecessary to decide whether the harmless error principle can be applied generally to the kind of instructional error that occurred below, because even if such error could be harmless in some cases, it clearly was prejudicial here.
The defendant’s testimony, and his case generally, attempted to demonstrate that Paul Cook died as a result of the accidental discharge of the firearm. The defendant admitted his presence at the scene and his participation in a physical struggle with the deceased which culminated in the fatal discharge of the defendant’s rifle. His testimony, and other evidence, would have supported a finding by the jury that the fatal shot was the result of the defendant’s careless, reckless, or negligent, but not wilful or wanton, mishandling of the rifle. Alternatively, there was evidence which would have supported a finding that the defendant’s direct acts were not intended to produce serious bodily harm or that the death resulted from the defendant’s criminal negligence. In essence, the defendant’s theory was that he did not intend that any of his acts would produce serious bodily harm to Paul Cook.
The three offenses upon which the jury was instructed all involve activity which includes an intent to do great bodily harm or cause death. The two offenses upon which the defendant’s request for instructions was denied involve conduct which is careless, reckless, or criminally negligent, and results in injury or death.
Thus, the effect of the trial judge’s refusal to instruct on the lesser offenses of involuntary manslaughter and reckless use of a firearm was to foreclose the jury’s option to convict the defendant in accordance with his own testimony, evidence, and theory. In People v Stephens, 407 Mich 402, 406; 285 NW2d 664 (1979), in a similar context, we said:
"The Court has no interest in allowing a 'guilty’ man to escape punishment. When a defendant admits criminal involvement, but not to the extent of the charged offense, the jury should have the 'freedom to act according to the evidence’. People v Chamblis, 395 Mich 408, 426; 236 NW2d 473 (1975). When the instructions the defendant requests relate to a cognate included offense and are supported by the evidence, they should be given.”
In this case, the defendant’s testimony, while perhaps not admitting criminal involvement, certainly would have supported conviction of the lesser offenses upon which the trial court refused to instruct. The jury was therefore denied the freedom to act according to the evidence, and moreover was deprived of any option to convict consistently with the defendant’s testimony, evidence and theory. Under these circumstances, the trial court’s refusal to give the properly requested lesser offense instructions was prejudicial error and requires reversal.
III
Another error occurred which we address so as to prevent its repetition on retrial.
The trial judge’s instructions to the jury on the element of malice included the following:
"The real test of malice is to be found in the presence or [sic] adequate cause of [sic] provocation to account for the homicide, the killing.
"Possibly I can make that clearer by an illustration, if one without any cause inflicts a wrong upon another, we call him malicious; so when one, without any legal provocation, justification or excuse intentionally kills another, we call him a murderer. The law implies from the unprovoked, unjustiñable or inexcusable killing, the existance [sic] of that wicked disposition which the law terms malice aforethought.
"If a man kills another suddenly and without provocation, the law implies malice and the crime is murder. If the provocation is sufficient as must have greatly provoked him so that he acted from sudden passion, caused by some grave provocation, the killing would be manslaughter.
"The instrument with which the killing was done will be taken into consideration by you because the intention to kill in the absence of evidence showing a contrary intent may be inferred by [sic] the use of a deadly weapon in such a manner that death of the person assaulted by the weapon would be an inevitable consequence.” (Emphasis supplied.)
This Court long ago said:
"To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offense as the act which causes the death; without the concurrence of both, the crime can not exist; and, as every man is presumed innocent of the offense with which he is charged till he is proved to be guilty, this presumption must apply equally to both ingredients of the offense — to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof, as to each, rests equally upon the prosecution, though the one may admit and require more direct proof than the other; malice, in most cases, not being susceptible of direct proof, but to be established by inferences more or less strong, to be drawn from the facts and circumstances connected with the killing, and which indicate the disposition or state of mind with which it was done. It is for the court to define the legal import of the term, malice aforethought, or, in other words, that state or disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as in their judgment, they deserve: and that the court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as presumption of law. If courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist.” Maher v People, 10 Mich 212, 218 (1862).
See, also, People v Martin, 392 Mich 553, 560-562; 221 NW2d 336 (1974).
The portion of the instruction which stated that the law implies malice "from the unprovoked, unjustifiable, or inexcusable killing” or when "a man kills another suddenly and without provocation” had the effect of withdrawing from the jury the essential factual issue of the existence of malice. The law, of course, does not imply malice from a sudden and unprovoked killing, and it was error to so instruct. The necessary factual element of malice may be permissibly inferred from the facts and circumstances of the killing, but it can never be established as a matter of law by proof of other facts. Maher v People, supra; People v Martin, supra.
This error was especially prejudicial in the instant case, since the defendant’s evidence and theory included notions of accident, i.e., that the sudden and unprovoked killing of Paul Cook was also unintended and accidental. It is apparent that even if the jury had chosen to accept much of the defendant’s version of the fatal episode, they might have convicted the defendant of murder because the evidence established a sudden and unprovoked killing which, according to the court’s instructions, was murder.
This error was compounded by the court’s immediately subsequent statement that "[t]he instrument with which the killing was done will be taken into consideration by you because the intention to kill in the absence of evidence showing a contrary intent may be inferred by [sic] the use of a deadly weapon * *
In People v Wright, 408 Mich 1, 24-25; 289 NW2d 1 (1980), we declared the impermissibility of such potentially burden-shifting instructions:
"The vice of the instructions is thoroughly explained in an oft-quoted opinion in Mann v United States, 319 F2d 404, 409 (CA 5, 1963):
"'When the words, "So unless the contrary appears from the evidence” were introduced, the burden of proof was thereupon shifted from the prosecution to the defendant to prove lack of intent. If an inference from a fact or set of facts must be overcome with opposing evidence, then the inference becomes a presumption and places a burden on the accused to overcome that presumption. Such a burden is especially harmful when a person is required to overcome a presumption as to anything subjective, such as intent or wilfulness, and a barrier almost impossible to hurdle results.’
"We are convinced that by instructing the jury that 'unless the testimony satisfies you of something else’, the trial court created the prospect that the jury 'may have interpreted the judge’s instruction as * * * a burden-shifting presumption’, Sandstrom [v Montana, 442 US 510; 99 S Ct 2450; 61 L Ed 2d 39 (1979)], p 524, and the instruction is therefore unconstitutional.” (Footnote omitted.)
As has been discussed, the main trial issue below was the defendant’s state of mind, his intent. The defendant vigorously contested the question of whether his conduct at the time of the shooting was the product of an intent to kill, or do serious bodily harm to, Paul Cook. There was no controversy that the killing arose out of the "use of a deadly weapon” by the defendant, and little controversy that the killing was sudden and unprovoked. The above-discussed instructions, independently and in combination, had the potential of substantially diluting, and to some extent shifting, the prosecution’s burden of proof beyond a reasonable doubt on the issue of malice (and intent, generally), to which the defendant’s case was almost entirely directed. The erroneous instructions bore on the focal point of the trial. Upon review of the record, we are unable to say that the instructions in question were harmless error, and we therefore additionally reverse the defendant’s conviction on this ground. See People v Wright, supra.
IV
In conclusion, we find that the trial judge’s refusal to give the defendant’s requested lesser offense instructions was prejudicial error on this record and requires reversal.
We also find that the trial judge’s instructions on malice had the effect of taking the question of the factual element of malice from the jury, and additionally had the potential effect of shifting the burden of proof to the defendant, and that this error was likewise prejudicial on this record.
In view of our decision to reverse the defendant’s conviction and remand this case for a new trial, it is unnecessary to reach the other issues raised.
Reversed and remanded.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, and Blair Moody, Jr., JJ., concurred with Ryan, J.
MCL 750.321; MSA 28.553.
MCL 752.861; MSA 28.436(21).
MCL 750.316; MSA 28.548.
People v Richardson, 77 Mich App 411; 258 NW2d 741 (1977).
403 Mich 845 (1978).
406 Mich 1008 (1979).
See the later-decided People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975).
Our manslaughter statute does not define that offense, but instead incorporates the common-law definition. See People v Stubenvoll, 62 Mich 329, 331; 28 NW 883 (1886). There are two categories of manslaughter at common law: voluntary and involuntary. See People v Carter, 387 Mich 397, 418-419; 197 NW2d 57 (1972).
See People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978).
Defense counsel elicited, on direct examination, the defendant’s version of the fatal encounter with Paul Cook:
”Q: What happened, what hospital were you going to?
"A: Deaconess.
"Q: You eventually got there later, didn’t you?
"A: Yes.
"Q: On the way, you stopped somewhere, is that right?
"A: Yes.
"Q: Did you get out of the car?
"A: I got one foot out of the car, yes.
”Q: All right, why did you get out of the car at that time?
'A: I seen Marshall’s brother, Paul Cook, and this other guy coming through the alley and at the time I was just sitting there and I seen them and I said, 'Wait a minute, daddy’, I said, 'Waif, so he stopped and opened the door and got out of the car, one foot in and one foot out, leaning against the door. I called him, I called Paul Cook, I was going to run it to him that I wasn’t going to talk to Marshall that when I get myself together and he get himself together, I wasn’t going to press no charges against him down to the house or nothing. This was the purpose of me wanting to talk to him.
"Q: What happened when you saw his brother, Paul?
'A: He was coming to the sidewalk and we stopped, he come to the car, he was coming to the car as I got out.
"Q: Did you know him at this time from prior occasions?
'A: Paul Cook?
”Q: Yes.
’A: Yes, me and Paul Cook were good friends.
"Q: All right, what happened then?
"A: He got into a little argument.
"Q: What was the argument about?
'A: About him laughing and stuff, like it was a big joke to him about my head.
"Q: Now, did the argument result in any pushing and shoving?
'A: Yes.
"Q: What happened?
"A: When I cursed him, like he turned around and squared off on me, I said, 'Back off, just like that and as I touched him like that (gesturing) is when he shoved me and as I fell back, I drawed back because he had something in his hand and he drawed back like this (gesturing) and when he drawed back, I pulled the gun out.
”Q: What happened when you pulled the gun out?
"A: He stepped a foot back, I stepped back and as he pushed down into the car like this, I come out with the butt end of the gun like this (gesturing) and I was scringing it around, he grabbed it.
"Q: Did he get a hold of the gun?
'A: Yes, he grabbed the barrel of it, that’s when he was pushing me, he swung and hit me in the chin.
"Q: Did this gun go off?
’A: Yes.
"Q: All right, at the time the gun went off, did he have his hands on it?
'A: Yes, it went off when we were wrestling.”
In addition to this testimony, an apparently disinterested witness, Nancy Williams, testified that she observed the defendant and Paul Cook wrestling over the rifle. Defendant’s common-law wife, who was present at the scene, stated that the two men were "tussling” before the gun went off. The defendant’s daughter, who was also an eyewitness, stated that the two men wrestled for the gun.
GCR 1963, 529.1 provides:
"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding shall construe these rules to secure the just, speedy, and inexpensive determination of every action so as to avoid the consequences of any error or defect in the proceeding which does not affect the substantial rights of the parties.”
MCL 769.26; MSA 28.1096 provides:
"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”
Cf. People v Lester, 406 Mich 252; 277 NW2d 633 (1979); People v Hoskins, 403 Mich 95; 267 NW2d 417 (1978); People v Reed, 393 Mich 342; 224 NW2d 867 (1975).
The term "malice”, as a necessary element of murder, is defined:
"Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm.” (Footnotes omitted.) People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971).
See, also, People v Doss, 406 Mich 90, 99; 276 NW2d 9 (1979); People v Van Wyck, 402 Mich 266, 269; 262 NW2d 638 (1978). | [
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Levin, J.
The issue in this case is whether the payment by union members of temporarily increased "emergency dues”, authorized by an amendment to the union constitution, required as a condition of union membership and collected in designated amounts as part of the members’ monthly dues, into a union strike fund during an ongoing national strike against another employer, disqualifies those members from receiving unemployment compensation benefits when they subsequently become unemployed because local issue strikes in other establishments operated by their employer result in layoffs at the members’ own establishments, and when the local issue strikers at the other establishments receive strike benefits from the fund into which the "emergency dues” were paid.
Plaintiffs are members of a national union representing workers in the automobile industry and were employed at General Motors plants in Michigan in early 1968. When plaintiffs were laid off in the wake of local strikes at other GM plants, their eligibility for unemployment benefits was contested because of certain dues payments they had made to their union strike fund several months before, in the midst of a national strike against Ford Motor Company.
This controversy arises under the labor dispute disqualification provision of the Michigan Employ ment Security Act, subsection 29(8), which, at the time, provided in pertinent part:
"(8) An individual shall be disqualified for benefits for any week with respect to which his total or partial unemployment is due to a labor dispute in active progress, or to shutdown or start-up operations caused by such labor dispute, in the establishment in which he is or was last employed, or to a labor dispute (other than a lockout) in active progress, or to shutdown or start-up operations caused by such labor dispute, in any other establishment within the United States which is functionally integrated with such establishment and is operated by the same employing unit. No individual shall be disqualified under this subsection 29(8) if he is not directly involved in such dispute.
"(a) For the purposes of this subsection 29(8), no individual shall be deemed to be directly involved in a labor dispute unless it is established that:
"II. He is participating in or financing or directly interested in the labor dispute which causes his total or partial unemployment. The payment of regular union dues (in amounts and for purposes established prior to the inception of such labor dispute) shall not be construed as financing a labor dispute within the meaning of this subparagraph * * *.” 1967 PA 254.
The application of subsection 29(8) to the facts of this case potentially raises three connected questions:
(1) Was plaintiffs’ unemployment "due to” labor disputes in active progress at other establishments operated within the United States by the same employing unit and functionally integrated with the establishments where plaintiffs were employed?
(2) If so, were plaintiffs’ emergency dues payments to the strike fund sufficiently connected with the labor disputes which caused their unemployment to constitute "financing” of those labor disputes unless excepted by the terms of subparagraph 29(8)(a)(II)?
(3) If so, are plaintiffs’ temporary emergency dues payments excepted from the category of "financing” because they were "regular union dues (in amounts and for purposes established prior to the inception of such labor dispute)”?
We conclude that plaintiffs’ unemployment was due to labor disputes in active progress at functionally integrated domestic GM plants. The basic disqualification provision of subsection 29(8) disqualifies an individual whose unemployment is claimed to result from a labor dispute if that labor dispute is shown to be a substantial contributing cause of his or her unemployment. While the Legislature did not intend to withhold benefits from individuals who would have been unemployed even if an apparently related labor dispute had not occurred, the dispute need not be the sole cause of the unemployment.
Before considering whether the emergency dues payments may be regarded as having financed the labor disputes that caused plaintiffs’ unemployment, we seek to determine whether those payments are specifically exempted from treatment as financing by the second sentence of subparagraph 29(8)(a)(II). We agree with the Court of Appeals that that provision requires union dues to satisfy two conditions in order to be exempted as a matter of law from possible classification as financing a labor dispute: the dues must be (1) regular and (2) in amounts and for purposes established prior to the inception of the labor dispute that caused the claimant’s unemployment.
We further agree with the Court of Appeals that the temporary emergency dues paid by UAW members in October and November, 1967 were not "regular” but extraordinary. The Legislature chose the term "regular” to exclude from possible treatment as financing those dues payments required uniformly of union members and collected on a continuing basis without fluctuations prompted by the exigencies of a particular labor dispute or disputes. The payments in question, enacted as a temporary emergency measure to build the union strike fund in the midst of a national strike against Ford Motor Company, cannot properly be described as "regular”. We therefore need not decide whether the emergency dues were estab lished "prior to the inception of [the] labor dispute”.
The referee, the appeal board and the Court of Appeals all implicitly assumed that unless the emergency dues payments fell within the specific exemption for "regular union dues (in amounts and for purposes established prior to the inception of such labor dispute)” the payments would constitute financing because the union strike fund had paid strike benefits to workers involved in the labor disputes that caused plaintiffs’ unemployment.
The determination that the emergency dues payments are not exempted from treatment as financing by the second sentence of subparagraph 29(8)(a)(II) does not, however, require the conclusion that plaintiffs financed the local labor disputes which caused their unemployment.
Since the appeal board, the tribunal with the most experience and expertise in the application of the act, did not discuss the meaning of "financing”, we remand this matter to the board’s successor for further explication of the term "financing”.
In supplemental briefs filed after oral argument, the parties have addressed the question whether federal labor policy prohibits a state from disqualifying union members for unemployment compensation benefits because they have made required payments into a union’s general strike fund. We do not decide whether the federal labor law preempts the application of the "financing” disqualification of the Employment Security Act because the construction given the term "financing” after remand may make it unnecessary to address the federal preemption issues.
We retain jurisdiction.
I
Every three years the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and the three major automakers (General Motors, Ford and Chrysler) negotiate new national collective bargaining agreements. The case has its roots in events contemporaneous with and subsequent to the 1967 automobile industry contract negotiations.
In June, 1967, the UAW notified each of the three major automakers by letter of its intent to terminate all national and local collective bargaining agreements when they expired on September 6, 1967. GM and the UAW began negotiations toward a new national agreement on July 15, 1967.
In a vote taken during the latter part of August, the UAW’s GM membership authorized strikes, if necessary, on national and local issues. However, the expiration of the agreements did not immediately result in strikes at GM plants because Ford, not GM, was selected as the strike target for that year.
On October 8, 1967, while a nationwide UAW strike against Ford was in progress, a special UAW convention amended article 16 of the union’s constitution to provide for "emergency dues”. The new dues, effective immediately and continuing "during the current collective bargain ing emergency as determined by the International Executive Board and thereafter, if necessary, until the International Union Strike Insurance Fund has reached the sum of Twenty-Five Million Dollars ($25,000,000)”, increased each member’s monthly contribution to the union Strike Insurance Fund from $1.25 to $11.25 or $21.25, depending upon the average hourly wage at the member’s plant. After the emergency ended or the $25,000,-000 goal was reached, each member’s monthly dues would consist of two hours’ "straight time” pay, with 40% earmarked for the member’s local union and 30% each allocated to the International Union’s Administrative and Strike Funds.
UAW members employed at GM plants in Michigan, including each of the plaintiffs, paid the emergency dues in October and November, 1967.
On November 30, 1967, the UAW determined that there would be no nationwide strike at GM plants during December, 1967 and waived collection of the emergency dues during December, 1967 and January, 1968. However, the letter informing GM of the waiver noted that "the collective bargaining emergency is not yet ended”.
The UAW and GM reached agreement on all national issues by December 15, 1967. Following ratification by the membership, the new national agreement took effect bn January 1, 1968. However, local bargaining issues at a number of plants remained unresolved.
During January, 1968, GM foundries at Saginaw, Michigan; Defiance, Ohio; and Tonawanda, New York, were each shut down for approximately 10 days because of strikes called by the UAW over local issues. It is stipulated that the striking UAW members at these establishments received strike benefits from the strike fund in which the emergency dues collected in October and November were deposited. The local strikes at the foundries were followed by shutdowns or cutbacks in production at 24 other GM plants in Michigan and over 19,000 workers, including the plaintiffs, were laid off from their employment in the affected plants.
The Michigan Employment Security Commission approved plaintiffs’ applications for unemployment compensation benefits. GM appealed to a hearing referee who reversed the Commission’s decision and ruled that plaintiffs were disqualified under subsection 29(8) of the Michigan Employment Security Act because they had financed the labor disputes which caused their unemployment. The referee found that plaintiffs’ increased contributions to the union’s strike fund during October and November, 1967 were not "regular union dues” within the meaning of the subparagraph 29(8)(a)(II) exception because they were not "in amounts and for purposes established prior to the inception of such labor dispute”. The referee’s opinion did not discuss what activities were intended to fall under the heading of "financing” but, rather, implicitly assumed that the dues in question were financing unless expressly excepted by the statute.
The Michigan Employment Security Appeal Board agreed with the referee that the emergency dues could not properly be described as "regular union dues”. Like the referee, the appeal board treated the parenthetical language — "(in amounts and for purposes established prior to the inception of such labor dispute)” — as an explanation of the word "regular”. The board focused upon the meaning of that language and the associated question when "such labor dispute” has its inception, and, rather than explicating the concept of "financing”, assumed that the emergency dues payments disqualified plaintiffs unless the stated exception applied. Declaring that the inception of the labor dispute had preceded the adoption of the increased strike fund dues, the board upheld the referee’s decision disqualifying plaintiffs.
On appeal to circuit court, the board’s decision was affirmed by the Ingham Circuit Court and reversed by the Genesee and Wayne Circuit Courts.
The Court of Appeals, construing the subparagraph 29(8)(a)(II) exclusion of "regular union dues” from the definition of financing as evidence of a legislative intent to treat non-regular or extraordinary union dues as financing a labor dispute if used to support a strike, held that the increased strike fund dues paid during October and November, 1967 were not "regular” as that term is ordinarily understood. Finding that the referee and the appeal board had correctly determined that claimants were disqualified for financing the labor dispute which caused their unemployment, the Court of Appeals affirmed the Ingham Circuit Court and reversed the Genesee and Wayne Circuit Courts. Having concluded that the emergency dues were extraordinary rather than regular, the Court of Appeals found it unnecessary to explore the parenthetical language or to decide when the labor dispute causing plaintiffs’ unemployment had its inception.
We granted leave to appeal, limited to the following issues:
"(1) Did payment of the dues in question constitute financing of the labor dispute as a matter of law;_
"(2) Was plaintiffs’ unemployment caused by a labor dispute in active progress?” 402 Mich 828 (1977).
II
Every state’s unemployment compensation statute includes some provision disqualifying from benefits an individual whose unemployment results from a labor dispute. Most provisions are patterned after the corresponding section of the draft bills published by the Social Security Board following passage of the Social Security Act of 1935, which provided federal funding for state unemployment insurance programs. The concept of labor dispute disqualification and the various statutes embodying it have engendered substantial litigation and commentary.
The Michigan statute declares the basic condition of labor dispute disqualification in its introductory sentence:_
"An individual shall be disqualified for benefits for any week with respect to which his total or partial unemployment is due to a labor dispute in active progress, or to shutdown or start-up operations caused by such labor dispute, in the establishment in which he is or was last employed, or to a labor dispute (other than a lockout) in active progress, or to shutdown or start-up operations caused by such labor dispute, in any other establishment within the United States which is functionally integrated with such establishment and is operated by the same employing unit.”
But under our statute, as under most statutes, determining whether a claimant’s unemployment falls within the terms of the basic disqualification is the beginning, not the end, of the inquiry. The seemingly categorical disqualification principle of the first sentence is tempered by the language that follows it:
"No individual shall be disqualified under this subsection 29(8) if he is not directly involved in such dispute.”
The statute requires that "direct involvement” be shown by establishing one of four enumerated circumstances. This case concerns but one aspect of the second of the listed alternatives:
"II. He is participating in or ñnancing or directly interested in the labor dispute which causes his total or partial unemployment. The payment of regular union dues (in amounts and for purposes established prior to the inception of such labor dispute) shall not be con strued as financing a labor dispute within the meaning of this subparagraph * * *.” (Emphasis supplied.)
Ill
Because the basic disqualification provision of subsection 29(8) applies only if the claimant’s unemployment is "due to a labor dispute in active progress” in the establishment where he is or was last employed, or in a functionally integrated establishment operated within the United States by the same employing unit, the threshold consideration is whether the facts of this case evidence the requisite causal link between plaintiffs’ unemployment and a dispute in active progress. Absent that causal connection, plaintiffs are not disqualified.
The Court of Appeals regarded the appeal board’s finding that plaintiffs’ unemployment was due to a labor dispute in active progress at a functionally integrated plant as conclusive because supported by competent, material and substantial evidence on the whole record. We agree with the Court of Appeals assessment of the evidence but find its conclusion only partially responsive to plaintiffs’ arguments. We understand plaintiffs to assert not only that the appeal board erred in finding a causal connection in fact, but also that the board and all courts except the Wayne Circuit Court misunderstood the legal standard of causation required by this subsection.
Plaintiffs argue that a claimant may be disqualified under subsection 29(8) only if a labor dispute in active progress is the sole cause of the claimant’s unemployment. They assert that their unemployment was due not only to the labor disputes in progress at the functionally integrated foundries and plants, but also to the seniority provisions of the national and local agreements, which marked them as the first to be laid off, and to a combination of GM business decisions, particularly the choice not to replace materials supplied by the struck establishments through purchases in the open market. Plaintiffs urge us to conclude that the causal connection required to support the threshold finding of disqualification has therefore not been established.
We disagree. An individual is disqualified for benefits under the basic provision if a disqualifying labor dispute is shown to be a substantial contributing cause of his or her unemployment. The dispute need not be the sole cause of the unemployment.
The decisions of this Court relied on by the plaintiffs establish only that disqualification is inappropriate where other circumstances unrelated to the labor dispute would themselves have been sufficient to cause the unemployment for which benefits are claimed. The Legislature did not intend to withhold benefits from individuals who would have been unemployed even if an apparently related labor dispute had not occurred. Those decisions all support the conclusion that the Legislature intended the basic disqualification provision to apply when a claimant’s unemployment was caused by a labor dispute and no independent and sufficient cause for the unemployment could be shown.
The seniority provisions and management decisions which plaintiffs identify as contributing causes of their unemployment would not them selves have caused plaintiffs’ unemployment or any unemployment were it not for the labor disputes in active progress at the functionally integrated foundries. But for those disputes, materials would have been available at plaintiffs’ places of employment, the work force at those establishments would not have been reduced, and the seniority provisions would not have become operative. The labor disputes in active progress at the foundries were shown by competent, material and substantial evidence to have been substantial contributing causes of the layoffs which idled plaintiffs. We affirm the board’s finding that plaintiffs’ unemployment was "due to a labor dispute in active progress” within the meaning of subsection 29(8).
IV
Once it has been determined that the basic disqualification provision applies, the inquiry progresses to whether the claimant is directly involved in the labor dispute which caused his or her unemployment. In this case, plaintiffs’ emergency dues payments to the strike fund are alleged to constitute "financing” of the local disputes at the foundries — a disqualifying direct involvement under subparagraph 29(8)(a)(II). That subparagraph, however, also declares that certain kinds of union dues payments may not be construed as "financing a labor dispute”. Since plaintiffs would escape disqualification if their emergency dues payments fall within the protective provision, we consider whether those payments are specifically exempted from treatment as "financing” before attempting to determine whether they may be affirmatively classified under that heading.
Subparagraph 29(8)(a)(II) states that the "payment of regular union dues (in amounts and for purposes established prior to the inception of such labor dispute) shall not be construed as financing a labor dispute * * Except for the parenthetical language, which was added in 1963, this proviso has been part of Michigan’s unemployment compensation act since 1937.
The referee and the appeal board both treated the parenthetical language as a limitation that would preclude labeling certain payments "regular” union dues and concluded that the payments in question did not satisfy the parenthetical condition. The Court of Appeals reasoned that the express exclusion of "regular union dues” from the category of "financing” evidenced a legislative intent to leave every other type of union assessment used to support a labor dispute within the terms of the subsection 29(8) disqualification, and that the language added in 1963 only qualified the "regular union dues” exception further. Employing the word "regular” as the first branch of a two-pronged test completed by the parenthetical language, the Court of Appeals declared that " 'regular’ is synonymous with 'normal’, 'typical’ and 'natural’ to the extent that they all mean 'being of the sort or kind that is expected as usual, ordinary or average’ ”, and concluded that the increased dues paid pursuant to the October, 1967 constitutional amendment did not meet that description.
Plaintiffs attack the Court of Appeals reliance upon everyday meanings of the word "regular” and urge us to construe the term "regular union dues” as the equivalent of "periodic dues” under § 8(a)(3) of the National Labor Relations Act, a term which they assert means "those uniformly levied union dues which are enforceable through a union security clause and which may be required of union members as a condition of continued employment”. In plaintiffs’ view, it is immaterial whether the amount of the dues is temporary or permanent, fixed or variable, so long as they are part of the union’s constitutionally adopted dues structure rather than separately imposed special assessments. Plaintiffs contend, alternatively, that the Legislature intended the parenthetical language added in 1963 to explain the meaning of "regular union dues”.
The parties direct us to no legislative history which would aid us in reaching a more precise understanding of the meaning of "regular union dues” or the relationship between that phrase and the parenthetical language added in 1963. Mindful of the remedial purpose of the Michigan Employment Security Act to provide relief from the hardship caused by involuntary unemployment, we seek a liberal construction that will effectuate that legislative purpose, yet be consonant with reason and good discretion.
We conclude, as did the Court of Appeals, that the parenthetical language states a separate test that union dues must meet in order to be exempted as a matter of law from possible classification as financing a labor dispute. In order to be exempt under all circumstances, union dues must be both (1) regular and (2) in amounts and for purposes established prior to the inception of the labor dispute that caused the claimant’s unemployment. We further agree with the Court of Appeals that the temporary emergency dues paid in October and November, 1967 were not "regular” union dues.
Every word of a statute should be given meaning and no word should be treated as surplusage or rendered nugatory if at all possible. Before the 1963 amendment, the word "regular” described a type of union dues, payment of which would not expose a union member to potential disqualification for financing however the dues payments were used. Had the Legislature intended the parenthetical phrase added in 1963 to be a complete definition of "regular”, it should have made that intention clear or supplanted the word "regular” altogether. It did not. We conclude that the word retains independent significance as a limitation upon the types of union dues automatically exempted from potential classification as financing.
The words of the Employment Security Act, like other statutes, are to be given their plain and ordinary meaning absent some indication that the Legislature intended otherwise. We perceive no evidence of a legislative intention to equate "regular union dues” with "periodic dues” enforceable through a union security agreement under § 8(a)(3) of the NLRA. The federal statute’s reference to "periodic dues” was not inserted until ten years after the "regular union dues” proviso was added to the Michigan Employment Security Act. We conclude that the Legislature chose the term "regular” to exclude from possible treatment as financing those dues payments required uniformly of union members and collected on a continuing basis without fluctuations prompted by the exigencies of a particular labor dispute or disputes. Such a construction is consistent with ordinary usage and the common understanding of the word and serves to distinguish between sums customarily and continually collected and unusual collections for the purpose of supporting a labor dispute.
In Burrell v Ford Motor Co, this Court approved the appeal board’s determination that UAW members had not financed local labor disputes which caused their unemployment merely because a portion of their monthly membership dues had been allocated to a union strike insurance fund from which payments were disbursed to strikers involved in the unemployment-producing local disputes. The appeal board had stated:
"We believe that any differentiation between adminis trative dues and Strike Insurance Fund dues is merely an internal designation by the union and still establishes that the regular union dues are established to be $5 monthly under Article 16, Section 2 * *
The record in Burrell disclosed that each UAW member’s $5 monthly dues consisted of $3.75 in administrative dues ($1.75 of which was forwarded to the international union) and $1.25 for the union’s strike insurance fund. There was no indication that the dues had been increased at any time relevant to the labor dispute in question. Monthly dues continued to be $5 per member until the union constitution was amended on October 8, 1967.
We are persuaded that the October and November, 1967 strike fund dues are not comparable to the strike fund portion of the pre-amendment monthly dues. The text of the amendment shows that each member’s strike fund dues were increased from $1.25 per month to $11.25 or $21.25 per month for the duration of the then existing collective bargaining emergency and perhaps until the fund contained 25 million dollars. It was not contemplated that the increased amounts would be collected indefinitely; following the emergency, dues would be set at "two hours straight time pay per month”. The emergency dues provided by the amendment constituted a marked deviation from the regular pattern of dues collection; they were a temporary emergency measure whose obvious purpose was to replenish the union strike fund. The Court of Appeals correctly concluded that these payments could not properly be termed "regular”.
V
Because the emergency dues payments were not "regular union dues”, we need not decide whether they were "in amounts and for purposes established prior to the inception of [the] labor dispute”. We turn to the question whether payment of the emergency dues constituted "financing” of the local labor disputes which caused plaintiffs’ unemployment.
While the statute does not require that payments made by individuals whose disqualification is in issue be traced into the hands of workers involved in the labor dispute which caused the individuals’ unemployment, the term "financing” suggests a meaningful connection between the payment or class of payments said to constitute financing and the labor dispute allegedly financed. The appeal board did not give separate consideration to the meaning of "financing”, in general or as applied to this case. We therefore remand this matter to its successor, the tribunal with the most experience and expertise in the application of the act, to reconsider, in light of its own unique familiarity with the act, practical considerations and related issues implicated by this question, whether plaintiffs’ emergency dues payments were sufficiently connected with the local labor disputes which caused their unemployment to constitute "financing” of those labor disputes. The parties shall be provided an opportunity to present additional evidence, arguments and briefs.
VI
After this case was argued, this Court granted plaintiffs permission to file supplemental briefs limited to two issues said to "necessarily result from the United States Supreme Court’s recent decision in New York Telephone Co v New York State Dep’t of Labor, 440 US 519; 99 S Ct 1328; 59 L Ed 2d 553 (1979):
"I. Is the financing proviso of § 29(8)(a)(II) of the MESA, as interpreted by the Court of Appeals, preempted by the National Labor Relations Act (NLRA)?
"II. Alternatively, can and should the financing proviso of § 29(8)(a)(II) be narrowly construed to apply only to direct payments to strikers by those sought to be disqualified thereunder and/or direct payments from a fund specially earmarked for such strikers, as opposed to a nationally established, general and regular strike insurance fund?”
Plaintiffs argue that, if the financing provision of the labor dispute disqualification is construed to disqualify them for the payment of dues required to maintain their union membership, that provision is preempted by federal labor law on two grounds: (1) it penalizes plaintiffs for maintaining membership in and providing financial support to their union, an activity expressly protected under § 7 of the NLRA; (2) under such an analysis, the state burdens and interferes with internal union decisions regarding allocation of dues and the amount and timing of dues increases, matters which Congress intended to leave free from both state and federal regulation.
So far as this Court can determine, federal preemption issues were not raised before the referee or the appeal board, were fleetingly noted in the circuit courts, and were not extensively briefed in the Court of Appeals. Except for a terse cdnclu sory statement by one circuit judge, none of those tribunals addressed these questions.
We are asked, after oral argument, to consider questions not yet decided by any court which have heretofore played a secondary role in the case and which lie in an area where the present direction of the United States Supreme Court is far from clear.
It is unclear what types of cases, other than the few to reach the appellate courts, have presented "financing” issues in the past, and in which of those cases disqualification for financing a labor dispute has been enforced. Nor does it appear whether the financing provision has any practical significance outside of auto industry disputes between the UAW and the major automakers. We should also be better informed concerning the pragmatic consequences that might follow adoption of any possible definitions of "financing”.
If plaintiffs did not engage in "financing” as a matter of state law, it may be unnecessary to decide in this case whether federal law preempts that provision of the state unemployment compensation act. And, even if plaintiffs are ultimately held to have financed the labor disputes which caused their unemployment, we are of the opinion that an asserted conflict between state and federal law should not be passed upon until the challenged state provision has been definitively construed. We therefore defer decision of the issues raised in plaintiffs’ supplemental brief until after remand.
The briefs of the parties after remand shall include (1) all historical materials that might assist this Court in determining (a) the extent to which Congress intended that the amounts and purposes of union dues should be subject to or free from state regulation or inquiry and (b) the extent to which Congress intended that the states should be permitted to disqualify, or prohibited from disqualifying, claimants from unemployment compensation benefits for financing through union dues the labor disputes that caused their unemployment; (2) any further argument the parties desire to make on the federal preemption issue; and (3) argument on the First Amendment and Equal Protection challenges raised in plaintiffs’ and amicus curiae United Steelworkers’ supplemental briefs.
We remand to the board of review, the successor to the appeal board, for further proceedings consistent with this opinion. We retain jurisdiction.
Coleman, C.J., and Williams, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Levin, J.
Kavanagh, J., did not participate in the decision of this case._
MCL 421.1 et seq.; MSA 17.501 et seq.
MCL 421.29(8); MSA 17.531(8).
1974 PA 104 added a new sentence and, along with 1975 PA 110, made minor changes in wording and punctuation of this subsection. The quoted portion of the statute now reads:
"An individual shall be disqualified for benefits for any week with respect to which his total or partial unemployment is due to a labor dispute in active progress, or to shutdown or start-up operations caused by that labor dispute, in the establishment in which he is or was last employed, or to a labor dispute, other than a lockout, in active progress, or to shutdown or start-up operations caused by that labor dispute, in any other establishment within the United States which is functionally integrated with the establishment and is operated by the same employing unit. An individual’s disqualification imposed or imposable under this subsection shall be terminated by his performing services in employment with an employer in at least 2 consecutive weeks falling wholly within the period of his total or partial unemployment due to the labor dispute, and in addition by earning wages in each of those weeks in an amount equal to or in excess of his actual or potential weekly benefit rate with respect to those weeks based on his employment with the employer involved in the labor dispute. An individual shall not be disqualified under this subsection if he is not directly involved in the dispute.
"(a) For the purposes of this subsection an individual shall not be deemed to be directly involved in a labor dispute unless it is established that:
"(ii) He is participating in or financing or directly interested in the labor dispute which causes his total or partial unemployment. The payment of regular union dues, in amounts and for purposes established before the inception of the labor dispute, shall not be construed as financing a labor dispute within the meaning of this subparagraph * * MCL 421.29(8); MSA 17.531(8).
The text of the amendments reads, in pertinent part:
"Article 16
"Section 2(a).
"Emergency Dues
"All dues are payable during the current month to the Financial Secretary of the Local Union.
"Commencing with the eighth (8th) day of October 1967 until October 31, 1967, and for each month thereafter during the emer gency as defined in the last paragraph of this Subsection, Union administrative dues shall be three dollars and seventy-five cents ($3.75) per month and Union Strike Insurance Fund dues shall be as follows:
"1. For those working in plants where the average straight time earnings * * * is three dollars ($3.00) or more, twenty-one dollars and twenty-five cents ($21.25) per month.
"2. For those working in plants where the average straight time earnings * * * is less than three dollars ($3.00), eleven dollars and twenty-five cents ($11.25).
"This schedule of dues shall remain in effect during the current collective bargaining emergency as determined by the International Executive Board and thereafter, if necessary, until the International Union Strike Insurance Fund has reached the sum of twenty-Bve million dollars ($25,000,000), at which time the dues structure established in 2(b), below, shall become effective." (Emphasis supplied.)
Section 2(b) provided in part:
"All dues are payable during the current month to the Financial Secretary of the Local Union. Commencing with the month following the emergency as set out in Section 2(a) and for each month thereafter, minimum Union dues shall be a sum equivalent to two hours straight time pay per month * * *.
"Dues income shall be distributed so that the Local Union shall receive forty (40) per cent, the International Union Strike Insurance Fund shall receive thirty (30) per cent and the General Administrative Fund of the International Union shall receive thirty (30) per cent.” (Emphasis supplied.)
The letter stated in part:
"We would like to advise you that the International Executive Board, at a meeting held November 30, 1967, determined that there would not be a strike at General Motors Corporation plants in the United States and Canada at least during the month of December, 1967, that the collective bargaining emergency could be determined to be in suspension and, therefore, the emergency dues would be waived for the month of December, 1967, and the month of January, 1968.
"Since, obviously, the collective bargaining emergency is not yet ended, the dues program is reverting to the basic five dollars ($5.00) per month in effect prior to the October 8, 1967, Convention, and not going to the permanent dues program of two hours’ pay per month.” (Emphasis supplied.)
The referee who heard the consolidated appeals on plaintiffs’ claims took testimony in regard to the circumstances surrounding the layoffs at each plant and rendered separate decisions on the claims filed by the employees of each plant. Some layoffs could not be traced to the labor disputes at the foundries but, instead, were attributed to other local strikes in which the strikers’ receipt of benefits from the strike fund was not shown by the record. The referee found that no disqualification applied in these instances and General Motors did not appeal from those adverse rulings.
Baker v General Motors Corp, 74 Mich App 237; 254 NW2d 45 (1977).
Anno: General Principles Pertaining to Statutory Disqualiñcation for Unemployment Compensation Benefits Because of Strike or Labor Dispute, 63 ALR3d 88, 96; Lewis, The "Stoppage of Work” Concept in Labor Dispute Disqualiñcation Jurisprudence, 45 J Urban L 319, 320 (1967).
Lewis, fn 8 supra, p 322, fn 14, cites Social Security Board, Draft Bills for State Unemployment Compensation of Pooled Fund and Employer Reserve Account Types (1936).
49 Stat 620; 42 USC 301 et seq.
Shadur, Unemployment Beneñts and the "Labor Dispute” Disqualiñcation, 17 U Chi L Rev 294 (1950); Lewis, fn 8 supra, pp 320-322.
See, generally, Anno, fn 8 supra.
In addition to the articles by Lewis (see fn 8, supra) and Shadur (see fn 11, supra), see Fierst & Spector, Unemployment Compensation in Labor Disputes, 49 Yale L J 461 (1940); Lesser, Labor Disputes and Unemployment Compensation, 55 Yale L J 167 (1945); Williams, The Labor Dispute Disqualiñcation — A Primer and Some Problems, 8 Vand L Rev 338 (1955); Note, Eligibility for Unemployment Beneñts of Persons Involuntarily Unemployed Because of Labor Disputes, 49 Colum L Rev 550 (1949).
1967 PA 254.
Shadur, supra, pp 324-325; Note, fn 13 supra, p 558.
In addition to the activities listed in subparagraph 29(8)(a)(II), the following conduct establishes direct involvement under paragraph 29(8)(a):
"1. At the time or in the course of a labor dispute in the establishment in which he was then employed, he shall in concert with 1 or more other employees have voluntarily stopped working other than at the direction of his employing unit, or
"III. At any time, there being no labor dispute in the establishment or department in which he was employed, he shall have voluntarily stopped working, other than at the direction of his employing unit, in sympathy with employees in some other establishment or department in which a labor dispute was then in progress, or
"IV. His total or partial unemployment is due to a labor dispute which was or is in progress in any department or unit or group of workers in the same establishment.” 1967 PA 254 (emphasis supplied).
"[T]he basic disqualification finding required in the first sentence * * * must be legally made before the proviso relating to 'direct involvement’ becomes effective, and before considering or applying the tests of direct involvement * * Park v Employment Security Comm, 355 Mich 103, 131; 94 NW2d 407 (1959).
Baker v General Motors Corp, supra, 74 Mich App 245, fn 3.
See Const 1963, art 6, § 28; MCL 421.38(1); MSA 17.540(1).
The opinion of the Wayne Circuit Court stated in part:
"Another factor in the layoffs were [sic] the economic situations GM chose to become involved with in the various plants. Much of the business at the Wayne County Plants was dependent upon parts supplied from other, then struck, plants. GM could have purchased the necessary parts on the open market, but chose not to do so.
"In order to uphold the finding from below, it must appear that the strike alone was the reason for the claimants’ unemployment and such was not the case. It is the opinion of this court that the claimants herein are entitled to unemployment compensation for the two periods during which they were unemployed in early 1968.”
Although plaintiffs advanced the identical argument in the other circuit courts, in the Court of Appeals, and before the appeal board, none of those tribunals specifically addressed it.
In Abbott v Unemployment Compensation Comm, 323 Mich 32, 47; 34 NW2d 542 (1948), the claimants were temporarily laid off during reconversion of the plant where they were employed from wartime to peacetime production. A strike halted reconversion operations on September 8, 1945. The appeal board found as a fact that "the employer’s reconversion program had progressed to the point that as of September 29, 1945, all of the employees involved herein would have been recalled to work were it not for the strike then in existence". (Emphasis supplied.) This Court upheld the board’s determination that the labor dispute disqualification barred claimants from receiving unemployment benefits from September 29, 1945 through the date the strike was settled.
In Clapp v Unemployment Compensation Comm, 325 Mich 212; 38 NW2d 325 (1949), the claimants were laid off on November 14, 1945 when General Motors shut down its main Buick production line and an associated Fisher Body plant because it was unable to obtain frames from its supplier. On November 21, 1945, before the shortage of frames was remedied, the UAW called a strike at all GM plants; the strike lasted until March 13, 1946. The supplier resumed production of Buick frames in December. GM claimed that it would have recommenced Buick production on December 18, 1945 were it not for the then existing labor dispute and that the claimants were disqualified from and after that date. Payment of benefits for the period during which production was precluded by the frame shortage was not questioned, and this Court did not pass upon the issue. Id., p 219. In affirming the appeal board’s determination that the labor dispute disqualification applied from December 18, 1945 onward, the Court noted that there was sufficient evidence “to warrant the finding that all the plaintiffs would have been called back upon resumption of activities on December 18, 1945, had there been no strike”. Id., p 226 (emphasis supplied).
In Scott v Budd Co, 380 Mich 29, 37; 155 NW2d 161 (1968), 44 of the 45 claimants were laid off when the employer reduced operations in its hub and drum machining section because a walkout in the foundry section of the same establishment had reduced the supply of brake drums available for machining; those employees fell within the labor dispute disqualification. One claimant employed in a different section was held not disqualified:
"His unquestioned testimony is that he was bumped by someone exercising greater seniority rights, but there is nothing to link the bumping with an employee who exercised such right to bump due to the shutdown operations in the brake drum section. No causal connection between a labor dispute in active progress or between the shutdown or start-up operations caused by such labor dispute, as to claimant Knapp, was established.”
The opinion thus intimates that if Knapp’s displacement by a fellow employee with greater seniority rights had been occasioned by the dispute-caused shutdown that idled the other claimants, Knapp would also have been disqualified.
To the same effect, see Unemployment Compensation Comm of Alaska v Aragon, 329 US 143, 151-152; 67 S Ct 245; 91 L Ed 136 (1946), where the United States Supreme Court concluded that the employees of two salmon canneries that failed to operate during the 1940 season "only because of their inability to negotiate satisfactory labor agreements” were properly disqualified, but that the employees of another canner whose cancellation of its season "was caused primarily by factors other than the company’s inability to negotiate a satisfactory labor contract” were not disqualified.
Abbott and Clapp arose under an earlier version of the basic disqualification provision, which disqualified a claimant if his unemployment resulted from "a stoppage of work existing because of a labor dispute in the establishment in which he is or was last employed”. Although this Court’s decisions "construing prior language are not applicable except insofar as they may afford guidance”, Scott v Budd Co, supra, p 36, Scott appears to have approached the causation question in the same manner as Abbott and Clapp.
1963 PA 226.
1937 PA 347.
29 use 158(a)(3).
Appellants’ brief, p 16.
Only the collection of "the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership”, as opposed to fines, special assessments or other penalties, may be enforced through a union security clause under § 8(a)(3). See National Labor Relations Board v Spector Freight System, Inc, 273 F2d 272, 275-276 (CA 8, 1960), cert den 362 US 962; 80 S Ct 879; 4 L Ed 2d 877 (1960). The emergency dues which gave rise to this case were ruled to be “a permissible change in 'periodic dues’ within the meaning of the Section 8(a)(3) proviso” by the NLRB Regional Director for Region 31 and the NLRB General Counsel.
MCL 421.2; MSA 17.502.
Noblit v The Marmon Group, 386 Mich 652, 654; 194 NW2d 324 (1972).
Collins v Secretary of State, 384 Mich 656, 666; 187 NW2d 423 (1971).
Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971); Scott v Budd Co, supra, p 37.
If the Legislature so intended, it could have said:
"The payment of union dues in amounts and for purposes established prior to the inception of such labor dispute * *
Bingham v American Screw Products Co, 398 Mich 546, 563; 248 NW2d 537 (1976).
Pub L No 101, 80th Cong, 1st Sess (1947); 61 Stat 136 (Labor Management Relations Act). See Gorman, Basic Text on Labor Law: Unionization and Collective Bargaining (St. Paul: West Pub Co, 1976), p 640.
The parenthetical language added in 1963 reflects much the same concern — to identify dues increased or imposed in connection with an ongoing labor dispute — but, rather than subsuming the distinction between regular and extraordinary dues, extends disqualification to some payments which otherwise would be non-disqualifying regular dues.
Burrell v Ford Motor Co, 386 Mich 486, 494-495; 192 NW2d 207 (1971).
Michigan Supreme Court Records and Briefs (31 October Term, 1971), Joint Appendix, p 309a.
Appeal board decision in this case.
The increased amounts were, respectively, 9 and 17 times the preceding strike fund dues. Overall, each member’s monthly dues were either tripled or quintupled.
In the case cited in plaintiffs’ request for leave to file supplemental briefs, New York Telephone Co v New York State Dep’t of Labor, 440 US 519; 99 S Ct 1328; 59 L Ed 2d 553 (1979), there were three opinions for the result that prevailed, none of which gained more than three signatures, and one dissenting opinion.
These issues, like those involving federal labor law preemption, were not extensively briefed or considered at prior stages of this litigation. In view of the protracted history of this case, we will, after remand, rule upon these issues as well in an effort to bring about a final resolution.
1977 PA 52; MCL 421.35(3); MSA 17.537(3). | [
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] |
Leave to appeal denied. Pursuant to this Court’s authority under GCR 1963, 971.5, we reduce appellant’s suspension of 121 days to the time served on the date this order is certified. | [
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Per Curiam.
This is an action by Motor State Insurance Company for a declaratory judgment decreeing an automobile insurance policy held by defendant Robert Leonard null and void as to a “hit-and-run” accident which occurred on January 13, 1967. By the express terms of the policy, coverage for such accidents was conditioned upon the insured’s filing with the insurer a sworn statement within 30 days from the date of the accident. The trial court entered a summary judgment in the plaintiff’s favor and defendants appeal.
Under GCR 1963, 117.2(3), a party may move for a summary judgment where there is no genuine issue as to any material fact. GCR 1963, 117.3 provides that a motion for a summary judgment based upon GCR 1963, 117.2(3) is to be supported by affidavits and that such affidavits, together with the pleadings, depositions, admissions and other documentary evidence, are to be considered by the trial court in ruling’ on the motion. The record below reveals a material issue of fact as to whether defendants had given plaintiff timely notification of the accident by a series of telephone calls purportedly placed by defendants in January, 1967, to one of plaintiff’s branch offices.
Furthermore, defendants raised by affirmative defense another significant factual dispute as to whether plaintiff waived the notice requirement by its entering into extensive negotiations (including submission of the claim to arbitration and the offering of a sum in settlement of the claim) with defendants after plaintiff had denied liability on grounds of defendants’ failure to comply with the notice provision. Plaintiff denied that it had intended a waiver by these negotiations but had made a settlement offer and had taken initial steps to arbitration solely to avoid litigation.
Waiver is a matter of intention and is primarily a question of fact. Bielski v. Wolverine Insurance Company (1966), 2 Mich App 501, aff’d. (1967), 379 Mich 280; Strom-Johnson Construction Co. v. Riverview Furniture Store (1924), 227 Mich 55.
A summary judgment is improper when the pleadings and opposing affidavits reveal a genuine issue of material fact. Tripp v. Dziwanoski (1965), 375 Mich 619; Sun Oil Company v. Rosborough (1967), 6 Mich App 176. The summary judgment issued by the trial court is vacated and the case remanded for trial.
Reversed and remanded. | [
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Danhof, P. J.
The defendant, while represented by appointed counsel, was found guilty of armed robbery, MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797) after a trial by jury. The evidence against him consisted of eyewitness testimony. He appeals raising numerous allegations of error.
The defendant’s first contention is that it was error to allow a police officer to testify regarding previous identifications made by witnesses at police showups. Defendant also contends that it was error to admit into evidence, and to allow to be taken into the jury room, certain police records known as showup sheets. These showup sheets are records of the showups made by the officer in charge who was on the stand when they were admitted.
At trial, four witnesses made in-court identifications of the defendant. The defendant then introduced, without objection, two showup sheets that indicated that one of the witnesses had made an equivocal identification and that another witness had identified someone other than the defendant. The prosecution then introduced, over objection, the testimony of the police officer that the two other witnesses had made positive identifications at showups. The prosecution then introduced, again over objection, showup sheets which also indicated that these witnesses had made positive identifications. The identifying witnesses also testified to the prior identification. When the jury retired they took all four showup sheets into the jury room with them.
The objection raised is that the officer’s testimony and the showup sheets are hearsay and thus inadmissible. The defendant concedes that testimony by an identifying witness regarding a prior identification is admissible but he contends that such testimony when offered by a third party is inadmissible as hearsay.
Turning first to the testimony of the police officer we believe that such testimony is admissible in spite of its hearsay nature. Such testimony has been held admissible in two Michigan cases. People v. Londe (1925), 230 Mich 484; People v. Floyd (1968), 15 Mich App 284. While the Michigan cases do not discuss hearsay there is abundant authority for admitting such testimony as an exception to the hearsay rule.
In People v. Gould (1960), 54 Cal 2d 621, 626 (7 Cal Rptr 273, 275, 354 P2d 865, 867), Justice Tray-nor explained the rule of admissibility as follows:
“Evidence of an extrajudicial identification is admissible, not only to corroborate an identification made at the trial but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached, * * * evidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have inter vened to create a fancied recognition in the witness’ mind. # # * The failure of the witness to repeat the extrajudicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extrajudicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination.”
See also State v. Chaney (1967), 5 Ariz App 530 (428 P2d 1004); Montos v. State (1956), 212 Ga 764 (95 SE2d 792); People v. Slobodion (1948), 31 Cal 2d 555 (191 P2d 1); Preston v. Commonwealth (Ky 1966), 406 SW2d 398; Proctor v. State (1960), 223 Md 394 (164 A2d 708); State v. Nordstrom (1968, RI) (244 A2d 842); State v. Redding (1969, Iowa) (169 NW2d 788); Clemons v. United States (1968), 133 App DC 27 (408 F2d 1230); 4 Wigmore, Evidence (3d ed), § 1130, p 208.
Thus it was not error to admit the police officer’s testimony.
The admission of the showup sheets presents a separate hearsay problem. While testimony regarding a prior identification is admissible the sheets themselves are a form of hearsay and to be admissible they must fit within another exception to the hearsay rule. We do not believe that a sufficient showing was made to bring the sheets within any exception to the hearsay rule and therefore their admission was error. However, we do not believe that this error requires a reversal.
The officer who prepared the showup sheets was available for cross-examination as were the identifying witnesses. While the fact that the declarant is available for cross-examination does not automatically render the admission of hearsay harmless, People v. Kaplan (1931), 256 Mich 36, we believe that the opportunity to cross-examine is relevant to determining whether or not the admission of the evidence was harmless error.
It has often been held that when hearsay has been admitted there is no reversible error when the same facts are shown by competent evidence. People v. Kregger (1953), 335 Mich 457, cert den 355 US 929 (78 S Ct 413, 2 L Ed 2d 415); People v. Hawks (1919), 206 Mich 233; People v. Goodrode (1903), 132 Mich 542; People v. Gregory (1902), 130 Mich 522; People v. Hallaway (1970), 25 Mich App 605. In this case both the officers and the identifying witnesses testified to the prior identifications.
Because of the foregoing, we do not believe that the erroneous admission of the showup sheets requires a reversal. Nor do we believe that the fact that the jury took the sheets into the jury room requires this result. As we have seen, it was entirely proper to introduce evidence of the prior identification and the showup sheets merely duplicated this evidence. The defendant’s basic objection has been to allowing any proof of a prior identification and he does not dispute the truth of the matter contained in the showup sheets. Also, of the four sheets, two contained matter favorable to the defendant’s case. On these facts we do not believe that a reversal is required.
The defendant contends that the police showup was conducted so unfairly as to deprive him of due process of law. This case was tried before the decisions in United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149) and Gilbert v. California (1967), 388 US 263 (87 S Ct 1951, 18 L Ed 2d 1178), and thus the issue of right to counsel at the showup is not involved. Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199). Under the doctrine of Stovall, supra, we must look to the totality of the circumstances to determine if the showup was so unnecessarily suggestive and conducive to irreparable mistaken identification that it amounts to a denial of due process of law.
The defendant points to several alleged defects in the showups. He contends that one witness had a one-to-one confrontation with him prior to the showup, that others in the showup were so unlike him in appearancé that the identifications must be considered invalid, and that the witnesses were brought together and allowed to arrive at a consensus identification. Examination of the record fails to support these allegations. The defendant also contends that he was prejudiced because the police showed the witnesses photographs, including one of the defendant, before the showups were held. The record shows that the witnesses were shown several hundred photographs and there is nothing to indicate that the procedure followed was unduly suggestive. Applying the test of Stovall, supra, we hold that the defendant was not denied due process of law.
The defendant contends that the trial court erred in refusing to recall a witness. Such matters are within the discretion of the trial court. People v. Hossler (1904), 135 Mich 384. We find no abuse of discretion here.
At the conclusion of the prosecution’s case, the trial court granted the prosecution’s motion to exclude the defense witnesses. The defendant contends that this was error. It is well settled that this question is within the trial court’s discretion. People v. Williams (1967), 6 Mich App 412. It does not appear that the defendant was prejudiced by this ruling and we find no abuse of discretion.
The defendant contends that the prosecution made improper remarks to the jury during his closing argument. The statement complained of was, “I myself would not consider Mr. Matthew’s testimony reliable”. Mr. Matthew was a prosecution witness and his testimony was favorable to the prosecution. We do not see how an expression of doubt as to his testimony could be prejudicial to the defendant. Furthermore, it is not improper for an attorney to state his belief that a witness is or is not entitled to credence. People v. Wirth (1896), 108 Mich 307.
The defendant contends that the trial court erred in refusing to give the following instruction to the jury.
“A reasonable doubt is any doubt in your minds for which you can assign a reason arising from the evidence you have heard or from the lack of evidence. It is the kind of doubt which would cause you to hesitate to act in the more important and serious affairs of your own lives. If you have such a doubt about the defendant’s guilt, then you must find him not guilty.”
Instead, the trial court gave the following instruction :
“Now, what do I mean by a reasonable doubt? In the general nature of things, it is rarely possible to prove anything to an absolute certainty. Proof beyond a reasonable doubt is established if the evidence is sufficient as you would be willing to rely and act upon in the most important of your own affairs. To put it another way, the people do not have to eliminate all of the doubt; that is that possibility that anything might happen. But the proofs presented by the people must eliminate any doubt based upon reason, any doubt which has a rational explanation. If in considering all of the evidence you find that you entertain a doubt, a fair doubt, based upon reason and common sense about the establishment of any of the elements in the case, then you must give the benefit of that doubt to the defendant. In other words, if after considering all of the evidence, you do not have a doubt based upon reason, but you are convinced to a moral certainty that the guilt of the defendant has been established, the mere fact that there is a remote possibility that it couldn’t be so is not the kind of doubt which acquits. The reasonable doubt may arise not only from the evidence but from a lack of evidence. In other words, a defendant has not a duty to present evidence to create doubt. The doubt might be created if in fact you find it from an absence of evidence by the people.
“The burden is upon the people to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged. And the defendant has a right to rely upon the failure of the people to establish the proofs if the people do not. The law does not impose upon the defendant the duty of producing any evidence. A reasonable doubt exists in any case when after careful and impartial consideration of all of the evidence, the jurors do not feel convinced to a moral certainty that the defendant is guilty of the charge”.
The defendant contends the instruction given was erroneous because it defined reasonable doubt in terms of a doubt one would be willing to act upon instead of a doubt that would cause one to hesitate to act. In support of this contention he cites Holland v. United States (1954), 348 US 121 (75 S Ct 127, 99 L Ed 150). In Holland, the Supreme Court indicated a preference for the form of instruction favored by the defendant, but it also held that language similar to that used by the trial court would not mislead the jury and therefore was not erroneous.
It is a familiar principle, that when a trial court has given an instruction which in substance is the same as one it has refused to give, there is no error. People v. Fred W. Thomas (1967), 7 Mich App 519. To hold the trial court’s instruction erroneous would be to seize upon a fine semantic nuance that would not affect the jury’s understanding of the law. We decline to do so.
The defendant contends that it was error to instruct the jury that there is a presumption that a witness speaks the truth. A jury instruction must he read as a whole. People v. Robinson (1968), 11 Mich App 162. When the court’s instruction is read in its entirety, it is clear that the jury was informed of a number of factors to he considered in determining a witness’ credibility. The instruction on a presumption that a witness speaks the truth amounted to no more than saying that the jury should not start out with the assumption that a witness was lying. This was not error.
The defendant’s final contention is that because of an alleged policy of the Detroit Eecorder’s Court of undercompensating assigned counsel, he' was denied effective assistance of counsel. The record shows that the defendant’s counsel was both diligent and competent and this contention has no merit.
Affirmed.
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Per Curiam.
Defendant Ivory Lee Hughes was convicted by the Muskegon County Circuit Court, sitting without a jury, of an attempt to break and enter an occupied dwelling house with intent to commit the crime of larceny therein. MCLA § 750.92 (Stat Ann 1962 Rev § 28.287); MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). He appeals as of right, alleging (1) that it was not proven beyond a reasonable doubt that he committed an act sufficient in law to constitute a criminal attempt; and (2) that there was no evidence in the record from which the trial court could conclude beyond a reasonable doubt that he intended to commit the crime of larceny. Neither of these allegations has merit and we affirm.
Defendant, under the impression that no one was home, tried to open a side window to complainant’s apartment shortly after midnight. The defendant was, however, mistaken; he was observed by the complainant. The trial judge correctly found that the defendant was guilty of a criminal attempt to break and enter under the facts and circumstances presented. People v. Bowen (1968), 10 Mich App 1, and People v. Coleman (1957), 350 Mich 268.
As to defendant’s second allegation, the requisite intent to commit larceny may be reasonably inferred from the nature, time, and place of his acts before and during the attempted breaking and entering. People v. Gollman (1966), 3 Mich App 463; People v. Griffin (1889), 77 Mich 585.
Therefore, after carefully reading the trial transcript, we find that the evidence was sufficient, if believed by the court, to find the defendant guilty beyond a reasonable doubt of attempt to break and enter with the intent to commit larceny. People v. Fred W. Thomas (1967), 7 Mich App 519.
Affirmed. | [
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] |
Per Curiam.
Defendants, Henry Gunn and Horace Williams, were tried in the Muskegon county circuit court and found guilty of assault with intent to commit armed robbery. MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). Defendant Gunn was sentenced to from 3-1/2 to 10 years in prison. Defendant Williams was sentenced to from 3 to 10 years in prison. After a motion to set aside the finding of guilty was denied, this appeal was brought.
At trial, there was testimony that on the evening of September 13, 1967, defendants broke into the apartment of Pearl Miller; announced their intention to commit robbery; discharged a pistol near a guest of Mrs. Miller; fled when Mrs. Miller ran from the apartment screaming; and finally that defendants were arrested some 20 minutes after the incident at a market approximately three-quarters of a mile away from Mrs. Miller’s apartment.
Although there was confusing and, at times, contradictory testimony, the trial judge found that the evidence presented was sufficiently compelling so as to support a finding of guilt beyond any reasonable doubt.
Defendants urge that the court could not have reasonably found sufficient evidence of guilt from the testimony of the alleged victim, Mrs. Miller, which was confused, or from that of the police officers involved, which was, they argue, fatally inconsistent. Defendants contend primarily that all evidence presented militates against a finding of guilt and that the lower court was thus incorrect in its holding. Tests made by the officers on a scarf which had been wrapped around the handle of the gun supposedly fired in Mrs. Miller’s apart ment are particularly attacked by defendants since the results of some of the tests favored a finding that the gun had not been fired with the scarf around it. Defendants submit that to find to the contrary that the gun had been fired was error.
The gun allegedly used in the attempted robbery was not recovered. No bullet has been found in Mrs. Miller’s apartment. It is speculated by plaintiff that a blank cartridge was fired. Further, there was conflicting testimony to the effect that defendant Gunn had a scarf wrapped around part of the pistol. Although a scarf was taken from defendant Gunn upon his arrest, no tests were made, prior to trial, to determine whether or not it contained powder burns. Nor were tests for gunpowder burns made upon defendant Gunn’s hands. Defendants maintain that these omissions or lack of diligent investigation by the police amounted to a suppression of evidence. The police testified that they lacked the proper equipment to perform such tests.
MGLA §750.89 (Stat Ann 1962 Rev § 28.284) reads:
“Any person, being armed with a dangerous weapon, or any article used or fashioned in a manner to lead a person so assaulted reasonably to believe it tO' be a dangerous weapon, who shall assault another with intent to rob and steal shall be guilty of a felony, punishable by imprisonment in the state prison for life, or for any term of years.” (Emphasis supplied.)
There was sufficient testimony by several witnesses, who identified the defendants as the would-be robbers, that a shot was fired. Although neither the gun nor physical evidence which would tend to corroborate its existence were introduced, there was enough evidence to convince the trial court of the guilt of the two defendants. Defendants’ arguments do not maintain that evidence which tends to prove their innocence was suppressed, hut rather that the evidence not gleaned nor introduced would fail to show their guilt. Defendants’ appeal must fail.
Since the trial court is in a better position to weigh the credibility of the witnesses, we will not disturb its findings unless they are shown to he clearly erroneous. The trial judge in the present case found, on the evidence before him, that defendants were guilty beyond a reasonable doubt. The trial records and transcript support such a finding.
Affirmed. | [
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] |
O’Hara, J.
Defendant was tried in December 1966 by jury for the crime of unlawfully driving away a motor vehicle, MCLA § 750.413 (Stat Ann 1954 Rev § 28.645). The trial, presided over by Judge John A. Bicca of Detroit Becorder’s Court, resulted in conviction. On December 27, 1966, defendant was sentenced to one to five years in state prison.
On appeal, appellant alleges that two reversible errors were made by the trial court. The first alleged error concerns the charge to the jury in which the trial judge sua sponte instructed the jurors that they should draw no inferences from the defendant’s failure to take the stand on his own behalf. Appellant contends that this instruction draws the juror’s attention to his silence and harmfully reminds them that he could have taken the stand. In People v. Waters (1969), 16 Mich App 33, this court decided the identical issue faced in the instant case. At page 36 we find the following:
“Both defendants allege error in the trial court’s charge regarding their failure to take the stand in their own defense. Even though the charge given was the standard one to the effect that no consideration could he given to their decision not to take the stand, defendants contend that in the absence of a request by them, the trial judge should not have given any charge on the subject. They claim that the charge given on the court’s own motion, although worded favorably to defendants, would necessarily prejudice the jury simply by calling their attention to defendants’ failure to take the stand. They further contend that Griffin v. California (1965), 380 US 609 (85 S Ct 1229, 14 L Ed 2d 106), requires silence from court and prosecutor when the defendant remains silent. But it is clear that Griffin forbids only adverse comment and does not speak of the problem raised in this case. There is some split of authority among lower courts (see annotation 18 ALR3d 1337), but in 4 different circuits of the United States Court of Appeals it has been held that it is proper for a trial judge on his own motion to give a charge favorable to defendant. Hanks v. United States (CA 10, 1968), 388 F2d 171, 175; Bellard v. United States (CA 5, 1966), 356 F2d 437, 439; Coleman v. United States (CA 9, 1966), 367 F2d 388; United States v. Kelly (CA 2, 1965), 349 F2d 720, 769. And we note that' trial counsel failed to object to the charge when given and specifically stated, in response to a query from the bench, that they were satisfied with the charges as given.”
Waters controls the case at bar.
The second allegation of error is the trial court’s failure to instruct the jury on the lesser included offense of “use of a motor vehicle without authority but without intent to steal”. MCLA § 750.414 (Stat Ann 1954 Rev § 28.646). No request for such an instruction was made by the defendant.
It is well-settled that where no request is made by the defense, failure to instruct on a lesser offense is not reversible error. People v. Ivy (1968), 11 Mich App 427; People v. Clouse (1969), 18 Mich App 582. See, also, GCR 1963, 516.2, and MCLA § 768.29 (Stat Ann 1954 Rev § 28.1052).
Affirmed.
All concurred. | [
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Per Curiam.
Defendant was convicted by a jury of assault with intent to do great bodily harm less than the crime of murder. CL 1948, § 750.84 (Stat Ann 1962 Rev § 28.279). He was sentenced to 2-1/2 to 10 years imprisonment and brings this appeal as of right.
On October 20, 1968, the defendant’s automobile was stopped for speeding by Officer John McAuliffe of the Flint Police Department. The officer went over to defendant’s car, told the defendant that he was going to be ticketed for speeding, and returned to his patrol car to write out a citation. The defendant then left his car and went to the patrol car where he began directing abusive language at the officer. The officer, observing that there were other people around, got out of his car and told defendant that he was under arrest for breach of the peace.
In the process of effectuating this arrest, a scuffle broke out between Officer McAuliffe and defendant in which the officer’s service revolver was fired twice, inflicting a slight wound on defendant’s hand. The officer was finally able to subdue defendant and arrest him. Officer McAuliffe testified at trial that the defendant had precipitated the scuffle and that he grabbed the officer’s gun; the defendant denied this, testifying that the officer was going to shoot him and that he was only protecting himself.
At trial Officer Thomas Haley, an interrogating officer, testified that after the incident in question he heard the defendant say: “I should have killed him.” This statement by defendant was volunteered after the Miranda warnings were given.
. The defendant contends that it was error to admit Officer Haley’s testimony because it was not contained in the “circuit court history” or other materials given to the defense by the prosecution. A review of the record clearly shows, however, that this question was ruled upon by the judge below in a hearing out of the jury’s presence. His ruling that Officer Haley’s testimony was admissible because defendant’s statement was voluntary, etc., was not erroneous and does not require a reversal on appeal.
The next point raised by defendant in his brief is that the judge erred by not instructing the jury on defendant’s right to use reasonable force to resist an unlawful arrest and on his right of self-defense. In the instant case defendant’s counsel made no request for the judge to charge on these matters and additionally expressed his approval of the instructions when given at trial. For these reasons defendant has waived the right to present that issue now. People v. Camak (1967), 5 Mich App 655; People v. Jebb (1966), 3 Mich App 118; People v. Thomas (1965), 1 Mich App 444.
Defendant’s final assertion is that the evidence produced at trial was not sufficient to support a verdict of guilty beyond a reasonable doubt. The defendant did not brief this issue but merely asserted it in his brief and we therefore consider it abandoned. People v. Rogers (1968), 10 Mich App 380.
The verdict below is affirmed.
Affirmed.
Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974). | [
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Per Curiam.
Prior to his retirement on December 31,1964, plaintiff’s decedent had been probate judge of Monroe County for 16 years. Before his death on March 2, 1969, plaintiff’s decedent brought this action to require the Board of Trustees of the Monroe County Employees Retirement System to grant him pension benefits. Plaintiff prevailed below and defendant appeals.
The controlling issue is whether the Monroe County Employees Retirement System was in effect while plaintiff’s decedent was a county employee.
During its February 1965 meeting, the Monroe County Board of Supervisors adopted a pension plan retroactive to November 30, 1964. At the same session, a motion to amend the retroactive date to January 1, 1965 was defeated. A subsequent motion to amend the effective date of the plan was also defeated.
As required by MCLA § 46.12a (Stat Ann 1970 Cum Supp § 5.333 [1]), this plan was submitted to the county pension plan committee for approval. The committee declined approval and required six amendments to the plan, none of which involved the effective date. At its June 1965 meeting, the Monroe County Board of Supervisors made the required six amendments and also made the effective date of the plan the first day of the month next succeeding its approval by the county pension plan committee. The effective date became July 1,1965.
Rule 21 of the Board of Supervisors was in effect during this entire period and it provided:
“Any member who votes with the majority on any question may move for its reconsideration on the same day or the day following (on which sessions of the board are held), but not later, and no question shall be reconsidered more than once”.
The trial court ruled and plaintiff contends on appeal that Rule 21 precluded the June 1965 alteration of the effective date of the pension plan.
We could agree with, plaintiff and the trial judge if the pension plan adopted in February 1965 had been approved by the county pension plan committee. However, we read Rule 21 as a restriction on reconsideration of effective board action. By the provisions of MCLA § 46.12a, supra, the plan adopted in February 1965 was neither effective nor operative until approved by the county pension plan committee. As originally submitted, the plan was not approved, and it never became effective or operative. The amended plan was approved and its effective date was July 1, 1965, at which time plaintiff’s decedent was not an employee of Monroe County.
Reversed but without costs, a public question being involved. | [
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] |
Per Curiam.
This appeal arises out of a suit initiated in the Ontonagon Circuit Court to challenge the refusal by the Secretary of State to renew the plaintiff’s driver’s license. Prom a judgment in favor of the defendant, plaintiff appeals.
Plaintiff is an ordained clergyman serving churches in Michigan’s upper peninsula. On August 26, 1966, he applied for a renewal of his driver’s license which expired on September 8 of that year. He was granted a 60-day permit and his application was forwarded to the Driver Improvement Section of the Office of Driver and Vehicle Services.
Since he had stated in his application for a license that he was subject to either “epilepsy, seizures, or fainting spells”, he was required to and did furnish a statement from his physician explaining his disability. The physician indicated that plaintiff had epilepsy, that it was under control with medication, and that the last epileptic seizure was in March of 1966. If otherwise qualified, an epileptic is issued a driver’s license where his seizures are reported by the physician to he under control and there have been no seizures in the last year. Since plaintiff had experienced a seizure within one year prior to his application, he was denied a license.
. Plaintiff next filed an appeal at the license appeal hoard, and before the appeal was scheduled for hearing, filed suit in the circuit court for a review of the denial. While these actions were pending, plaintiff again applied for a license on April 20, 1967. Since a year had passed from the date of his last seizure, he was issued a regular Michigan operator’s license. The circuit court then upheld the action taken by the Secretary of State finding that the procedure did not deprive plaintiff of any constitutional rights.
Prom all that appears before us, plaintiff is presently in possession of a valid operator’s license and has not had a seizure since March 1966. We are of the opinion that these circumstances render the case moot.
This Court will not consider moot questions or abstract propositions. McDermott v. City of Detroit (1969), 16 Mich App 283; Mulligan v. City of Kalamazoo (1968), 9 Mich App 713. An important test in determining mootness is whether an event occurs which renders it impossible for the reviewing court, if it should decide in favor of plaintiff, to grant any relief. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Zantop Air Transport Corp. (CA 6, 1968), 394 F2d 36. However, a question is not moot if the action complained of will continue to adversely affect the plaintiff in some collateral way, i.e., affect his qualifications for a license in the future. McMullen v. Secretary of State (1954), 339 Mich 175; Johnson v. Sanchez (1960), 67 NM 41 (351 P2d 449); Strasser v. MacDuff (1953), 282 App Div 1106 (126 NYS2d 357); Milam v. Texas Department of Public Safety (Tex Civ, 1962), 359 SW2d 623.
In the case at bar, the fact that the plaintiff sought ,-and obtained a license renders it impossible for this Court to grant effectual relief. It would be clearly useless to order the Secretary of State to give plaintiff a license since he already has one.
Furthermore, there is no indication that the plaintiff will be prejudiced in the future by the action of the Secretary of State in denying his application for a license. From a reading of the rules of procedure of the Office of Driver and Vehicle Services, it is clear that the action of which he now complains, the denial of a license, will not affect any future application he may make. The sole criterion will be the absence of any new seizure within the year preceding application irrespective of prior denials due to past seizures.
Thus, we are presented with an abstract question. We decline to decide this case on the basis that the problem is likely to arise again since it cannot be readily assumed that all of the following will necessarily occur: 1) that plaintiff will have another seizure; 2) that this seizure will occur in the last year prior to expiration of his three-year operator’s license; 3) such seizure will occur sufficiently early in that year so that the case would evade review should he decide to reapply for a license within a year from the seizure; 4) the plaintiff does reapply and is granted a license; and 5) no other seizures occur while the case is pending which would preclude the plaintiff from obtaining a license. Since the question presented is moot, the appeal will be dismissed without ruling on the merits. Zantop Air Transport Corp., supra.
Affirmed. | [
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O’Hara, J.
Defendant entered a plea of guilty to the charge of statutory rape, MCLA § 750.520 (Stat Ann 1954 Rev § 28.788). From his conviction on the plea, defendant appeals of right.
He was originally charged on an information with both kidnapping and statutory rape. It was alleged that he and two others had picked up a 14-year-old girl and had sexual relations with her. He stood mute as to both charges at the arraignment but later he entered a plea of guilty to Count I, charging statutory rape.
We set forth what transpired before the court accepted his plea of guilty and the court’s examination of the defendant after the plea was entered.
“The Court: Now, Mr. Ellison, Count I, as you know, is statutory rape.
“Defendant Ellison: Yes.
“The Court: And, you have understood everything that I have told all of you gentlemen up to this moment?
“Defendant Ellison: Yes.
Ji M, W w T?
“The Court: * * * And, are you pleading guilty because you are guilty of statutory rape?
“Defendant Ellison: Yes.
“The Court: And, you have had the opportunity of discussing this with your attorney so that you know what the elements of that charge are?
“Defendant Ellison: Yes.
*JX. -U-•ft5 *R>
“The Court: * * * And, then, what happened then?
“Defendant Ellison: And, then, so, we had sexual relationship.
“The Court: Who did?
“Defendant Ellison: Me.
“The Court: And, where did you do this in the car?
“Defendant Ellison: In the back seat.
*.«. j/.
“The Court: And, then, what happened?
“Defendant Ellison: And then I got back and had one.
“The Court: And, you went back a second time?
“Defendant Ellison: Yes.
& * #
“The Court: * * * And, you know this girl, through your counsel, to be under the age of 16 years at the time that the offense occurred, isn’t that correct?
“Defendant Ellison: Yes.”
If there is any infirmity in this plea of guilty, it is impossible to plead guilty effectively in this state.
The appeal is totally without merit.
Affirmed.
All concurred. | [
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Per Curiam.
The defendant was convicted by a jury of uttering and publishing, MCLA § 750.249 (Stat Ann 1962 Rev § 28.446), and he appeals the conviction, alleging error in the trial judge’s charge to the jury.
Juanita Boston, a witness for the people, testified that she and the defendant had passed other checks subsequent to the date on which the crime in question was alleged to have occurred. The testimony was admitted for the sole purpose of establishing the defendant’s intent and motive and was, therefore, in keeping with MCLA § 768.27 (Stat Ann 1954 Rev § 28.1050) which provides:
“In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant”.
The testimony was, therefore, admissible despite the fact that it tended to show the commission of a subsequent crime by the defendant.
However, the statute refers only to “acts”. Juanita Boston testified only to subsequent “acts”. The trial court, in its instruction, referred to both prior and subsequent “offenses”. The alleged error was contained in the following portion of the instruction :
“Now then, perhaps I should say something about prior offenses. It has been our practice for many years and I don’t know but forever back, to allow certain information about the prior record. Of course, when the defendant does take the stand, why, then he is questioned himself but we do allow a certain amount of this evidence to get in. Now then, if proof is brought in of a prior offense that is no proof of the present offense. In other words, to make the point plain, if a person should hold up a bank in Chicago and another bank is held up in Kalamazoo, it’s no proof that the same man in Chicago held up the bank in Kalamazoo, you see, or if we have proof that the man held up a bank in Chicago there is no proof that he would repeat somewhere else. But nevertheless, that evidence is brought in for the purposes of showing the credibility. And also, it is sometimes brought in and is permitted by statute. Certain other offenses may be brought in in order to establish the intent or motive of the party, and as I told you from the statute, it includes these words, ‘with intent to injure or defraud,’ and that is the reason why some of that evidence, of course, is allowed to be introduced”.
When defense counsel approached the bench to point out the court’s use of the word “offenses” rather than “acts”, the court stated:
“The attorneys called my attention to the fact that what I told you about prior offenses applies to subsequent offenses, too, that it’s the whole picture, in other words”.
The defendant contends that the court’s use of this language could not have but persuaded the jury that the defendant was guilty of both prior and subsequent criminal acts. The jury was therefore, according' to the defendant, rendered incapable of sitting fairly and impartially.
The statute to be contended with is MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096) which provides:
“No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice”.
In the present case, it is clear that the jury, as a result of the instruction, was allowed to consider erroneous matters. The defendant did not take the stand. Any criminal record which he might have had was not, therefore, admitted into evidence for purposes of testing his credibility. The witness, Juanita Boston, testified to subsequent acts of the defendant only, while the trial court referred to both prior and subsequent “offenses”.
The term “offenses” is used synonymously with crimes. The jury could not help but believe that the defendant had committed prior and subsequent crimes after hearing the judge’s instructions. The result is, therefore, that the jury could not, as ordinary human beings, carry that impartiality to the jury room which is so essential to insure the defendant a fair trial.
We hold that the instruction by the trial court denied the defendant a fair trial. We reverse and remand for a new trial. | [
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] |
Per Curiam.
The defendant, Vernon Piggee, appeals his conviction of carrying a concealed weapon. MCLA § 750.227 (Stat Ann 1962 Rev § 28.424).
On the evening of March 10, 1968, two policemen were summoned because of “trouble with a drunk” to a restaurant in a Detroit bus station. On arriving they discovered the defendant sleeping in á prone position on two chairs. As the officers attempted to awaken him one of them noticed a wooden object protruding from underneath the back of his sweater. Thinking that the object might be part of a weapon he pulled it out. The second officer testified that it appeared to him to be the wooden stock of either a rifle or a shotgun. He then bent over the defendant and ran his hands down the outside of his trousers. Underneath the left trouser leg lie felt “what [he] believed to be a firearm”. He reached inside the trousers and withdrew a barrel and firing mechanism of a sawed-off shotgun. By this time the defendant had awakened. The two officers then completed the search and found a shotgun shell.
We are satisfied that the gun and shell were admissible under the Fourth Amendment. The officers were “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably” warranted the intrusion upon the defendant’s privacy. Terry v. Ohio (1968), 392 US 1, 21 (88 S Ct 1868, 20 L Ed 2d 889). The officers were summoned to the restaurant by the proprietor who claimed he was having trouble with a drunk. Upon arriving they saw the defendant sprawled out sleeping on two chairs. One of them observed what appeared to him might be part of a weapon protruding from underneath the defendant’s sweater. Even though there was no probable cause then to make an arrest for carrying a concealed weapon, the officers were thoroughly justified in investigating further (Terry v. Ohio, supra, p 22) and, since they had reason to believe that the defendant was armed and dangerous, it was permissible for them to take measures necessary to determine whether the defendant was in fact carrying a weapon and to neutralize the threat of physical harm. Terry v. Ohio, supra, pp 24, 27.
The search here was “confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer”. Terry v. Ohio, supra, p 29. The officers did not place their hands under the outer surface of the defendant’s clothing until after they felt a weapon and then they reached for and removed the gun. Only after they discovered that the defendant was carrying the gun did they conduct a more complete search and find the shell. The officers confined their “search strictly to what was minimally necessary to learn whether the [defendant was] armed and to disarm [him] once [they] discovered the weapon. [They] did not conduct a general exploratory search for whatever evidence of criminal activity [they] might find”. Terry v. Ohio, supra, p 30.
The defendant’s argument, based on an analysis of the provisions of ch 37 of the penal code, concerning firearms, that a sawed-off shotgun is not “a dangerous weapon” within the meaning of MCLA § 750.227 (Stat Ann 1962 Rev § 28.424), which prohibits the carrying of a concealed weapon, was considered and rejected in People v. Bailey (1968), 10 Mich App 636, 639, 640. There was testimony that it was possible to fire the weapon in the condition in which it was found, i.e., without the stock attached.
At the trial the defendant’s lawyer moved for a mistrial after one of the officers said that the defendant was placed under arrest for armed robbery at the restaurant. Actually, the defendant had not been charged with armed robbery. The only charge lodged against him was the one of which he was convicted, namely, carrying a concealed weapon. The court deferred ruling on the motion until after the people had presented more of their evidence, saying he would then determine whether the possible prejudice to the defendant had been cured. An officer testified that the only offense charged against the defendant was the offense of carrying a concealed weapon, and that there were no other warrants or other charges outstanding against him whatsoever. Before instructing the jury the judge denied the motion for a mistrial. He instructed the jurors that there was nothing in the record concerning armed robbery of any nature and they were to completely disregard the officer’s statement. Defendant’s lawyer voiced no objection concerning the adequacy of the instruction.
The defendant was manifestly entitled to have the people retract any suggestion or inference that he had been charged with armed robbery and to an appropriate cautionary instruction by the judge to the jury. There was both such a retraction and such an instruction. We find no reversible error.
Affirmed. | [
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Ziem, J.
Plaintiffs are employees of the City of Lansing who were on the payroll from July 1, 1966, to July 1, 1967. During this period the city and the union representing the plaintiffs were covered by the terms of a collective bargaining agreement effective July 1, 1966. At the hearing of this cause, the parties stipulated that the contract between them be placed in evidence and it is a part of the record.
The contract provision in question reads as follows:
“Section 9. Overtime.
“A. General Provisions.
“Time and One-Half. Time worked in excess of eight (8) hours per day or forty (40) hours per week, or on a holiday recognized in this agreement (in addition to holiday pay therefor), shall be compensated for at the rate of one and one-half times the employee’s regular hourly rate of pay, exclusive of shift or premium pay.
“Double-Time. Double-time will be paid for all hours worked on Sunday.”
The city of Lansing denies it owes its employees double-time for Sunday work on the basis that the double-time provision is located within the general chapter on overtime. If this was the intent of the parties, they would have said so. Defendant’s argument has no basis for two reasons:
1) It disregards the clear contractual language; and
2) It disregards art XI, § 7, of the contract which reads:
“Headings in This Agreement, Effect of. The headings used in this agreement neither add to nor subtract from the meaning, but are for reference only.”
It is well established that an unambiguous contract is not subject to construction and must be enforced according to its terms. Sturgis National Bank v. Maryland Casualty Co. (1930), 252 Mich 426, 429. See also Michigan Trust Co. v. Grand Rapids Hotel Co. (1933), 265 Mich 328, 338, where the Court stated:
“But when there is no ambiguity in the language used and the intent of the parties is plainly expressed, there is nothing to interpret, and it is the duty of the courts to enforce the contract according to its terms.”
Rules of construction are resorted to only when the language of a contract is ambiguous and susceptible of different meanings.
The provision of § 9A concerning “time and one-half” speaks of “time worked in excess of 8 hours per day or 40 hours per week”; however, the portion dealing with “double-time” contains no such provision concerning time worked in excess of 8 hours per day or 40 hours per week.
The meaning of this provision is clear — double-time will be paid for all hours worked on Sunday. The contract does not state that double-time will be paid for all over-time hours on Sunday.
It would have been a simple matter to require that a 40 hour week must have been worked before the Sunday double-time provision applies. If such was the intention of the parties, they should have said so. This Court will not rewrite the contract at this late date.
Reversed. Judgment shall be rendered for plaintiffs in the stipulated amount of $7,932.94, plus interest.
All concurred. | [
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PER CURIAM.
Plaintiff Cynthia Adam appeals by right the trial court’s order granting summary disposition in favor of defendant State Farm Mutual Automobile Insurance Company (State Farm) on the ground that plaintiffs claims were barred by res judicata. We reverse and remand for further proceedings.
This Court reviews de novo a decision to grant a motion for summary disposition. Hines v Volkswagen of America, Inc, 265 Mich App 432, 437; 695 NW2d 84 (2005). When reviewing a motion for summary disposition under MCR 2.116(C)(7), this Court “considers all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them.” Blue Harvest, Inc v Dep’t of Transp, 288 Mich App 267, 271; 792 NW2d 798 (2010). The question presented in this appeal, whether the doctrine of res judicata bars a claim, is a question of law we review de novo. Washington v Sinai Hosp of Greater Detroit, 478 Mich 412, 417; 733 NW2d 755 (2007).
On July 3, 2011, plaintiff was injured when she was struck by a vehicle driven by Susan Bell and owned by Minerva Bell. In March 2012, plaintiff filed a lawsuit against State Farm for personal protection insurance (PIP) benefits under the no-fault act. See MCL 500.3105 (insurer liability) and MCL 500.3107 (allowable expenses). That claim was settled on October 15, 2012, with plaintiff signing a release of all claims for no-fault benefits “up to the date of [the] Release . ...” A stipulated order of dismissal with prejudice as to plaintiffs claims “for benefits up to 10-15-12 only” was entered on November 5, 2012.
On January 16, 2013, plaintiff filed a third-party complaint alleging negligence against Susan Bell, a claim of owner liability against Minerva Bell, and a claim of breach of contract against State Farm with respect to uninsured motorist (UM) benefits. State Farm filed a motion for summary disposition on April 5, 2013, asserting plaintiffs UM claim was barred by the doctrine of res judicata. The trial court heard the parties’ arguments on this motion on July 24, 2013. The trial court ruled that plaintiffs UM “claim clearly could have been filed in the prior matter and was not, therefore, the claim is barred by res judicata.” The court’s order granting State Farm summary disposition was entered on August 22, 2013. Subsequently, on December 13, 2013, the trial entered a default judgment in plaintiffs favor against the Bell defendants in the amount of $250,000. This last order was a final order closing the case and permitting plaintiff to appeal by right the order granting State Farm summary disposition.
In Michigan, the doctrine of res judicata is applied broadly to bar “not only claims already litigated, but also every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not.” Adair v Michigan, 470 Mich 105, 121; 680 NW2d 386 (2004). The doctrine is “employed to prevent multiple suits litigating the same cause of action.” Id. Specifically, the doctrine of res judicata is a judicially created doctrine that serves to relieve parties of the cost and aggravation of multiple lawsuits, conserve judicial resources, and encourage reliance on adjudication by preventing inconsistent decisions. Pierson Sand & Gravel, Inc v Keeler Brass Co, 460 Mich 372, 380; 596 NW2d 153 (1999). Importantly, res judicata is intended to “promote fairness, not lighten the loads of the state court by precluding suits whenever possible.” Id. at 383. Accordingly, res judicata will not be applied when to do so would subvert the intent of the Legislature. Bennett v Mackinac Bridge Auth, 289 Mich App 616, 630; 808 NW2d 471 (2010).
The doctrine of res judicata bars a subsequent action when “(1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, resolved in the first.” Adair, 470 Mich at 121. In addition, the prior action must also have resulted in a final decision. Richards v Tibaldi, 272 Mich App 522, 531; 726 NW2d 770 (2006).
There is no dispute here that the prior action for PIP benefits involved the same parties and was decided on the merits. The action was dismissed with prejudice pursuant to a stipulated order. See Limbach v Oakland Co Bd of Rd Comm’rs, 226 Mich App 389, 395; 573 NW2d 336 (1997) (holding that a voluntary dismissal with prejudice acts as an adjudication on the merits for purposes of res judicata). The only dispute remaining in this case is whether the two actions arose from the same transaction such that plaintiff in the exercise of reasonable diligence could have raised this UM claim during the prior action. See Adair, 470 Mich at 121.
Michigan’s broad interpretation of the third element of the res judicata doctrine has been referred to as a “same transaction test,” as distinguished from a “same evidence test.” Adair, 470 Mich at 123-125. Under the same-evidence test, the issue is whether the same evidence is required to prove the claimed theory of relief. Id. Under the same-transaction test, the question is more pragmatic, with claims viewed in factual terms regardless of the number of variant legal theories that might support relief. Id. The fact that differing claims may require different evidence might be relevant to deciding if the claims arise from the same transaction, but it is not dispositive. Id. at 124-125. Rather, quoting 46 Am Jur 2d, Judgments, § 533, p 801, and adding emphasis, our Supreme Court has stated, “ ‘whether a factual grouping constitutes a “transaction” for purposes of res judicata is to be determined pragmatically, by considering whether the facts are related in time, space, origin or motivation, [and] whether they form a convenient trial unit....’” Adair, 470 Mich at 125 (alteration in original). Using this pragmatic approach, we conclude that although plaintiffs PIP action and her tort and contract action both arose from the same automobile accident, the actions also have significant differences in the motivation and in the timing of asserting the claims, and they would not have formed a convenient trial unit. Further, applying res judicata to the facts of this case would not promote fairness and would be inconsistent with the Legislature’s intent expressed through the no-fault act. The no-fault act provides for the swift payment of no-fault PIP benefits. On the other hand, it severely restricts the right to bring third-party tort claims that would form the basis for a UM contract claim.
In reaching this conclusion we find instructive and persuasive Miles v State Farm Mut Auto Ins Co, unpublished opinion per curiam of the Court of Appeals, issued May 6, 2014 (Docket No. 311699), which addressed the exact question presented in this case. The facts of Miles are not identical but are very close to those in the present case. Anderson Miles was injured when struck by a motor vehicle in July 2008; he sued State Farm for PIP benefits under his mother’s insur anee policy as a resident relative. That suit was settled in April 2010 and dismissed in July 2010. Miles filed a new complaint in June 2010 for additional PIP benefits and also asserted that State Farm wrongfully refused to pay him uninsured motorist benefits. The trial court granted State Farm’s motion for partial summary disposition, ruling that the UM claim could have been brought with the first PIP claim and was therefore barred by res judicata. We quote at length the majority opinion in Miles, which reversed the trial court, and we adopt its reasoning as our own:
It is plain that both Miles’ claim for PIP benefits and his claim for uninsured motorist benefits arise from the same accident and involve the same injuries and insurance policy. For that reason, there is a substantial overlap between the facts involved with both claims. But that being said, there are also significant differences between the two types of claims.
A person injured in an accident arising from the ownership, operation, or maintenance of a motor vehicle as a motor vehicle is immediately entitled to PIP benefits without the need to prove fault. See MCL 500.3105(2); MCL 500.3107. The PIP benefits are designed to ensure that the injured person receives timely payment of benefits so that he or she may be properly cared for during recovery. Shavers v Attorney General, 402 Mich 554, 578-579; 267 NW2d 72 (1978). Moreover, the injured person has a limited period within which to sue an insurer for wrongfully refusing to pay PIP benefits. See MCL 500.3145(1). Because an injured person is immediately entitled to PIP benefits without regard to fault, requires those benefits for his or her immediate needs, and may lose the benefits if he or she does not timely sue to recover when those benefits are wrongfully withheld, the injured person has a strong incentive to bring PIP claims immediately after an insurer denies the injured person’s claim for PIP benefits.
In contrast to a claim for PIP benefits, in order to establish his or her right to uninsured motorist benefits, an injured person must — as provided in the insurance agreement — be able to prove fault: he or she must be able to establish that the uninsured motorist caused his or her injuries and would be liable in tort for the resulting damages. See Auto Club Ins Ass’n v Hill, 431 Mich 449, 465-466; 430 NW2d 636 (1988). Significantly, this means that the injured person must plead and be able to prove that he or she suffered a threshold injury. Id. at 466, citing MCL 500.3135(1). Except in accidents involving death or permanent serious disfigurement, an injured person will therefore be required to show that his or her injuries impaired an important body function that affects the injured person’s general ability to lead his or her normal life in order to meet the threshold. MCL 500.3135(1) and (5). This in turn will often require proof of the nature and extent of the injured person’s injuries, the injured person’s prognosis over time, and proof that the injuries have had an adverse effect on the injured person’s ability to lead his or her normal life. See McCormick v Carrier, 487 Mich 180, 200-209; 795 NW2d 517 (2010). Thus, while an injured person will likely have all the facts necessary to make a meaningful decision to pursue a PIP claim within a relatively short time after an accident, the same cannot be said for the injured person’s ability to pursue a claim for uninsured motorist benefits. Finally, an injured person’s claim for uninsured motorist benefits involves compensation for past and future pain and suffering and other economic and noneconomic losses rather than compensation for immediate expenses related to the injured person’s care and recovery. See Dawe v Bar-Levav & Assoc (On Remand), 289 MichApp 380, 408-410; 808 NW2d 240 (2010) (discussing the nature of the economic and noneconomic damages that are awarded in negligence actions). Consequently, a claim for PIP benefits differs fundamentally from a claim for uninsured motorist benefits both in the nature of the proofs and the motivation for the claim.
The record shows that within a short time of [the] accident State Farm took the position that medical ail ments were not causally related to the accident at issue and denied his request for PIP benefits on that basis. Because Miles could assert a PIP claim without the need to prove fault and without having to establish the full extent of his injuries, he could assert his PIP claim within a short time of State Farm’s decision to deny his claims. Indeed, because he required those benefits for his care and recovery, he had a powerful motivation to bring the claims as soon as practical. Further, in order to establish those claims, he only had to present evidence that his claims arose from the accident and met the other criteria provided under MCL 500.3107.
Miles, however, could not establish his claim for uninsured motorist benefits without being able to prove that [the driver of the vehicle that struck him] would be liable in tort for his injuries and that he met the serious impairment threshold. Because his claim for uninsured motorist benefits required evidence to establish the nature and extent of his injuries and proof that the injury affected his ability to lead his normal life and the original dispute involved only whether Miles’ injuries were causally related to the accident at issue, we conclude that it was not practical for Miles to bring his claim for uninsured motorist benefits in his original suit.
Because Miles’ claim for -uninsured motorist benefits was not one that could have been litigated during the time of his original lawsuit, his failure to bring his claim for uninsured motorist benefits did not implicate the doctrine of res judicata. Adair, 470 Mich at 125. [Miles, unpub op at 4-5.]
This conclusion is also supported by the fact that PIP claims have a base one-year limitations period unless the insurer receives written notice of injury within that time or the insurer has previously made a payment of PIP benefits for the injury. MCL 500.3145(1). Even then, the one-year-back rule limits recovery to allowable expenses incurred within the year preceding the filing of an action for benefits. Id.; Joseph v Auto Club Ins Ass’n, 491 Mich 200, 208; 815 NW2d 412 (2012); Linden v Citizens Ins Co, 308 Mich App 89, 95; 862 NW2d 438 (2014). This Court has opined that a contractual one-year limitation period for a UM claim was unreasonable because (1) the insured may not have sufficient information about his or her own physical condition to warrant filing a claim within that time frame, (2) the insured may not know the insurance status of the at-fault driver, and, thus, “(3) the action may be barred before the loss can be ascertained.” Rory v Continental Ins Co, 262 Mich App 679, 686; 687 NW2d 304 (2004), rev’d 473 Mich 457 (2005). Although this Court’s opinion in Rory was reversed by our Supreme Court, the Office of Financial and Insurance Services (OFIS) found its reasoning “compelling.” In re Uninsured Motorist Coverage, OFIS Order of Prohibition (Order No. 05-060-M), entered December 16, 2005, p 3. Relying on this Court’s reasoning, and in light of the statutory limits on claiming noneconomic damages under MCL 500.3135 and the Secretary of State’s inability to confirm whether a person was insured on the day of an accident, the OFIS ruled under the authority of MCL 500.2236(5) that a limitation on UM claims of fewer than three years is unreasonable. Id. at 4; see also Ulrich v Farm Bureau Ins, 288 Mich App 310, 312, 317-319; 792 NW2d 408 (2010). Under the reasoning of Rory, 262 Mich App 679, and OFIS Order No. 05-060-M, we must conclude that a UM claim may not yet be ripe for litigation until after a PIP claim must be filed. Consequently, applying res judicata to essentially require mandatory joinder of a mere potential UM claim with a PIP claim would be inconsistent with the very divergent statutory treatment of these two very different types of no-fault claims. See, e.g., Bennett, 289 Mich App at 630.
We reverse and remand for further proceedings. We do not retain jurisdiction. As the prevailing party, plaintiff may tax costs pursuant to MCR 7.219.
HOEKSTRA, P.J., and MARKEY and DONOFRIO, JJ., concurred.
“Although unpublished opinions of this Court are not binding precedent, MCR 7.215(C)(1), they may, however, he considered instructive or persuasive.” Paris Meadows, LLC v City of Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d 133 (2010) (citation omitted).
Now called the Department of Insurance and Financial Services.
Available at <www.michigan.gov/documents/Prohibition_Order_ 121605_145496_7.pdf> (accessed August 3, 2015) [perma.ee/5RJ4-VZ9L], | [
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PER CURIAM.
In Docket No. 321380, plaintiff appeals as of right an opinion and order of the Court of Claims granting defendants’ motion for summary disposition on plaintiffs complaint for a writ of mandamus and declaratory judgment; plaintiff had sought to compel the Department of Licensing and Regulatory Affairs to take action on his purported application for a limited license to practice medicine. In Docket No. 321749, plaintiff appeals as of right a final order of the circuit court affirming the decision of the Department of Licensing and Regulatory Affairs, Bureau of Health Care Services, Professional Licensing Section, which had rejected the application. We affirm.
I. FACTS
Plaintiff attended Saba University School of Medicine, located on the island of Saba in the Netherland Antilles. He completed two years of coursework, followed by two years of clinical rotations through Dalhousie University in Nova Scotia, Canada. After his clinical rotations, plaintiff returned to Michigan and began seeking entrance into postgraduate clinical training programs (commonly known as “residencies”), but was unable to secure a position.
On June 18, 2013, plaintiff submitted an application on a form he created himself, seeking a “limited license” to practice medicine within the state of Michigan pursuant to MCL 333.16182(1). On July 29, 2013, plaintiff sent defendants a follow-up letter, asking for a favorable response or, in the event of a denial, an opportunity to be heard pursuant to MCL 333.16232. On September 23, 2013, plaintiff filed a complaint for a writ of mandamus and declaratory judgment in the Ingham Circuit Court seeking an order directing defendants to take action on his June 18, 2013 application and entry of a judgment declaring the rights of the parties regarding medical licensure under applicable constitutional, statutory, and administrative law.
On September 30, 2013, the manager of the Bureau of Health Care Services, Professional Licensing Section, sent plaintiff a letter explaining that the Michigan Board of Medicine does not issue limited licenses to individuals upon request and that limited licenses are “typically issued for a group of licensees who either have restrictions to the location in which they may physically practice such as with an educational limited license or for disciplinary purposes for someone who has previously held a full license.” In addition, the manager explained that MCL 333.16232 does not authorize a hearing for someone whose education or training does not meet the requirements for licensure as a physician, but applies to initial licensure applicants who meet the educational and training requirements, but are denied licensure for reasons related to past criminal convictions, previous disciplinary actions, or other issues that might affect or relate to their overall good moral character and ability to practice safely and legally in the state of Michigan, giving those individuals the opportunity for a hearing to demonstrate that, despite their history, they currently pos sess good moral character and can practice their profession safely. On October 18, 2013, plaintiff filed an appeal in the Ingham Circuit Court seeking judicial review of defendants’ September 30, 2013 letter rejecting his application for a limited license and request for a hearing.
On October 28, 2013, defendants filed a motion for summary disposition of plaintiffs complaint for a writ of mandamus and declaratory judgment pursuant to MCR 2.116(C)(8) and (10). On November 1, 2013, plaintiff filed a response. On January 23, 2014, following statutory changes, plaintiffs writ of mandamus and request for declaratory judgment claims were transferred to the Court of Claims pursuant to MCL 600.6404(3), while the appeal of the agency decision remained in circuit court.
On April 1, 2014, the Court of Claims issued an opinion and order granting defendants’ motion for summary disposition on plaintiffs complaint for a writ of mandamus and declaratory judgment pursuant to MCR 2.116(C)(8). On April 28, 2014, the Ingham Circuit Court issued a final order affirming the September 30, 2013 agency decision.
II. INTERPRETATION OF MCL 333.16182
Plaintiff first asserts that defendants misinterpreted and misapplied the Public Health Code, MCL 333.1101 et seq., when they failed to issue him a “limited license” to practice medicine, which he contended was permitted by MCL 333.16182(1). We disagree.
MCL 333.16182 states as follows:
(1) Aboard may grant a limited license to an individual if the board determines that the limitation is consistent with the ability of the individual to practice the health profession in a safe and competent manner, is necessary to protect the health and safety of patients or clients, or is appropriate to promote the efficient and effective delivery of health care services.
(2) In addition to the licenses issued under subsection (1), a board may grant the following types of limited licenses upon application by an individual or upon its own determination:
(a) Educational, to an individual engaged in postgraduate education.
(b) Nonclinical, to an individual who functions only in a nonclinical academic, research, or administrative setting and who does not hold himself or herself out to the public as being actively engaged in the practice of the health profession, or otherwise directly solicit patients or clients.
(c) Clinical academic, to an individual who practices the health profession only as part of an academic institution and only in connection with his or her employment or other contractual relationship with that academic institution. For an individual applying for a limited license under this subdivision to engage in the practice of medicine under part 170 [MCL 333.17001 to MCL 333.17084], “academic institution” means that term as defined [MCL 333.17001].
Specifically, plaintiff asserts that the first part of Subsection (1), which authorizes a limited license when “consistent with the ability of the individual to practice the health profession in a competent manner,” is applicable here and that “[i]t is this provision that authorizes the Agency to issue Plaintiff a limited license which it refuses to do.”
Subsection (1) permits a limited license to be issued if any of its three criteria are met, including the condition of being “consistent with the ability,” the criterion on which plaintiff relies. However, the Legislature, through the Public Health Code, invested in the various licensing boards broad discretion with respect to the licensing of applicants to practice health professions. It did not, as plaintiff asserts, unambiguously provide in Subsection (1) that the board of medicine must grant a limited license to practice medicine to someone in plaintiffs particular situation.
For example, MCL 333.16174(1) permits a board to enact rules that promote safe and competent practice and informed consumer choice:
An individual who is licensed or registered under this article [MCL 333.16101 to MCL 333.18838] shall meet all of the following requirements:
(c) Have a specific education or experience in the health profession or in a health profession subfield or health profession specialty field of the health profession, or training equivalent, or both, as prescribed by this article or rules of a board necessary to promote safe and competent practice and informed consumer choice.
MCL 333.16141(3) makes it clear that it is the boards that set the standards: “The department may promulgate rules to promote the effective and consistent administration of this article. However, the department shall not promulgate rules that constitute the licensure, registration, or examination of health professionals.” Likewise, MCL 333.16148(1) provides that
the department, in consultation with a board, may promulgate rules to establish standards for the education and training of individuals to be licensed or registered, or whose licenses or registrations are to be renewed, for the purposes of determining whether graduates of a training program have the knowledge and skills requisite for practice of a health profession or use of a title.
MCL 333.16146(2)(b) permits a board to “declassify licenses on the basis of a determination that the addition or removal of conditions or restrictions is appropriate.” And MCL 333.16145(3) states that “[o]nly a board or task force shall promulgate rules to specify requirements for licenses, registrations, renewals, examinations, and required passing scores.”
In MCL 333.16175, the Legislature directed a board or its task forces to “consider” various factors in developing the standards:
In developing minimum standards of educational prerequisites for licensure or registration, a board and its task forces shall consider equivalency and proficiency testing and other mechanisms, and where appropriate grant credit for past training, education, or experience in health and related fields. Standards may include those for formal education, practice proficiency, and other training, education, or experience which may provide equivalence to completion of formal educational requirements.
This statute does not restrict a board in its decisions that follow these considerations. Rather, it reflects a grant of power and discretion.
Finally, it is evident from viewing the entire regulatory scheme (rather than only looking at MCL 333.16182 in isolation), that Subsection (1) was provided so that a board or task force may, in its discre tion, issue limited licenses in disciplinary proceedings. See Nolan v Dep’t of Licensing & Regulation, 151 Mich App 641, 652-653; 391 NW2d 424 (1986); MCL 333.16108(1) and (4) (defining “reinstatement” as “the granting of a license or certificate of registration, with or without limitations or conditions, to an individual whose license or certificate of registration has been suspended or revoked” and “reclassification” as “an action by a disciplinary subcommittee by which restrictions or conditions, or both, applicable to a license are added or removed”); MCL 333.16106(4) and (5) (defining “limitation” as “an action by which a board imposes restrictions or conditions, or both, on a license” and “limited license” as “a license to which restrictions or conditions, or both, as to scope of practice, place of practice, supervision of practice, duration of licensed status, or type or condition of patient or client served are imposed by a board”); MCL 333.16226 (instructing disciplinary subcommittees to order a limited license as a sanction for certain violations); MCL 333.16245 (“[A]n individual whose license is limited, suspended, or revoked under this part may apply to his or her board or task force for a reinstatement of a revoked or suspended license or reclassification of a limited license pursuant to [MCL 333.16247] or [MCL 333.16249].”); MCL 333.16247(1) (“[A] board or task force may reinstate a license or issue a limited license to an individual whose license has been suspended or revoked under this part if after a hearing the board or task force is satisfied by clear and convincing evidence that the applicant is of good moral character, is able to practice the profession with reasonable skill and safety to patients, has met the criteria in the guidelines adopted under [MCL 333.16245(6)], and should be permitted in the public interest to practice.”); MCL 333.16249 (“[A] disciplinary subcommittee may recias sify a license limited under this part to alter or remove the limitations if, after a hearing, it is satisfied that the applicant will practice the profession safely and competently within the area of practice and under conditions stipulated by the disciplinary subcommittee, and should be permitted in the public interest to so practice.”).
Plaintiffs argument that defendants misinterpreted and misapplied the relevant portions of the Public Health Code fails. Plaintiffs argument that the availability of medical care would be enhanced by issuance of the type of limited license he seeks should be directed to the Legislature and the appropriate agencies for consideration as a matter of policy.
III. CONSTITUTIONAL ARGUMENTS
Plaintiff next argues that if the licensing rules at issue do not authorize at least a limited medical license for individuals who have demonstrated competence through the testing process, i.e., by passing Step 3 of the USMLE, those rules should be declared an unconstitutional exercise of the state’s authority to regulate the professions because they violate his due-process and equal-protection guarantees. We disagree.
“That the State through the legislature may provide for the licensure and regulation of professions, like the healing arts in which the public interest is very great, is not open to question.” Fowler v Bd of Registration in Chiropody, 374 Mich 254, 256; 132 NW2d 82 (1965). This is because the right to engage in business is subject to the state’s police powers to enact laws in furtherance of the public health, safety, welfare, and morals. Grocers Dairy Co v Dep’t of Agriculture Director, 377 Mich 71, 75; 138 NW2d 767 (1966). Accordingly, when legislation is challenged on due-process and equal-protection grounds because of its interference with economic or business activity, the challenger must establish either that no legitimate public purpose is served by the legislation or that there is no rational relationship between the provisions and a legitimate public purpose. Stanfield v Dep’t of Licensing & Regulation, 128 Mich App 207, 211-212; 339 NW2d 876 (1983). Thus, there is a two-step inquiry: (1) whether there is a legitimate public purpose and, if so, (2) whether there is a rational relationship between the legislation and the public purpose sought to be achieved.
In this case, there is a legitimate public purpose served by the legislation: to protect the public by ensuring that medicine is practiced in a safe and competent manner. The real dispute is over whether there is a rational relationship between the postgraduate-residency requirement and this legitimate public purpose.
We conclude that the Public Health Code’s requirement that a period of postgraduate education must be completed before a license may be issued is rationally related to ensuring that medicine is practiced in a safe and competent manner. The requirement that a residency must be completed before a person can be licensed to practice medicine is rationally related to this public purpose because it ensures that those who practice medicine possess a certain amount of medical education and training and that they have adequately demonstrated their fitness and capacity to practice medicine in a safe and competent manner by completing a residency. Although plaintiff may be correct that there is a physician shortage and extensive areas of the state are medically underserved, that fact is of little relevance. The legitimate public purpose that must be rationally related to the residency requirement is ensuring the safe and competent practice of medicine, not reducing physician shortage and eliminating medical underservice. The residency requirement helps ensure that all licensed physicians attain proficiency in the practice of medicine. Although eliminating this requirement might reduce physician shortage and medical underservice, it would also frustrate the board of medicine’s ability to ensure that all licensed physicians have attained the requisite proficiency. Accordingly, because the Public Health Code’s requirement that a period of postgraduate education must be completed before a license may be issued is rationally related to a legitimate public purpose, it neither violates due process nor constitutes a denial of equal protection and plaintiffs constitutional claims fail.
IV. ACTS IN EXCESS OF STATUTORY AUTHORITY AND UNLAWFUL SUBDELEGATION
Plaintiff next argues that the board of medicine exceeded its authority under MCL 333.17031(1) and that the Public Health Code’s regulatory scheme results in the improper subdelegation of the licensing decision. We disagree.
MCL 333.17031(1) states: “[A]n applicant [for a license], in addition to completing the requirements for the degree in medicine, shall complete a period of postgraduate education to attain proficiency in the practice of the profession, as prescribed by the board [of medicine] in rules . . . (Emphasis added.) Pursuant to this statute, the board of medicine adopted a rule requiring applicants to satisfactorily complete two years of postgraduate clinical training in a program approved by the board in a board-approved hospital or institution. Mich Admin Code, R 338.2316(4)(a) and 338.2317(4). Regarding approved programs and facilities, the board adopted the following standards:
(2) The board [of medicine] approves and adopts by reference the standards for accrediting hospitals which were adopted in April, 1986, by the joint commission on accreditation of hospitals and which were effective January 1, 1987. The board shall consider any hospital or institution that is accredited by the joint commission on accreditation of hospitals as a hospital or institution approved by the board.
(3) The board approves and adopts by reference the standards for approving postgraduate clinical training programs which were adopted in 1987 by the accreditation council for graduate medical education and which were effective July 1, 1987, entitled “The Essentials of Accredited Residencies in Graduate Medical Education,” and the board shall designate any program of postgraduate clinical training approved by the accreditation council for graduate medical education as a program approved by the board. [Mich Admin Code, R 338.2313.]
Plaintiff asserts that, in adopting these rules, the board of medicine exceeded its statutory authority because the goal of MCL 333.17031(1) is ensuring “proficiency” and the Accreditation Council for Graduate Medical Education (ACGME) has declared its purpose to be the preparation of physicians for practice in a medical specialty. According to plaintiff, while “specialization” in the medical profession may be viewed as a worthy goal, it is not an objective expressed in the Public Health Code. Thus, according to plaintiff, by adopting the ACGME standards, the board enlarged its authority by requiring something that the Public Health Code does not.
As discussed above, the flaw in plaintiffs argument is that the Legislature, through the Public Health Code, invested in the board of medicine broad discretion with respect to the licensing requirements of applicants to practice medicine. Indeed, that the board has discretion to determine what satisfies the requirement of completing a period of postgraduate education to attain proficiency in the practice of the profession is evident in the text of MCL 333.17031(1) itself: An applicant for a license must complete the requirements for the degree in medicine and must complete a period of postgraduate education to attain proficiency in the practice of the profession “as prescribed by the board in rules . . . .” (Emphasis added.) Although plaintiff characterizes it as “exceeding statutory authority,” the real question is whether the board’s adoption of these standards conflicts with the Legislature’s intent as expressed in the language of the statute. Again, given that the Public Health Code invests broad discretion in the board and MCL 333.17031(1) unambiguously instructs the board to exercise that discretion in setting the postgraduate-education standards, we conclude that the board’s adoption of the above standards does not conflict with the Legislature’s intent as expressed in the language of the statute. Accordingly, plaintiffs argument is without merit.
Plaintiff also asserts that the regulatory scheme at issue, which requires admission to a postgraduate program to obtain a license, effectively enables the admissions committees of the programs to deny a license to practice medicine and is therefore an improper subdelegation of the licensing decision. “It is well settled that an administrative agency may not subdelegate the exercise of discretionary acts unless the Legislature expressly grants it authority to do so.” Edmond v Dep’t of Corrections (On Remand), 143 Mich App 527, 536; 373 NW2d 168 (1985).
Although it is true that the admissions committees of the programs determine the individuals who are admitted to the programs, which undoubtedly affects the likelihood of the ultimate goal of full licensure, such a decision is one of many indirect influences on the person’s ability to achieve the goal of licensure. Indeed, the same argument could be made concerning the admissions committees of medical schools. We find no impermissible subdelegation of authority.
V. ANTITRUST ARGUMENTS
Plaintiff next argues that the postgraduate-clinical-training rule violates antitrust law. We disagree.
The Michigan Antitrust Reform Act, MCL 445.771 et seq., makes it unlawful to engage in anticompetitive conduct in the marketplace:
The establishment, maintenance, or use of a monopoly, or any attempt to establish a monopoly, of trade or commerce in a relevant market by any person, for the purpose of excluding or limiting competition or controlling, fixing, or maintaining prices, is unlawful. [MCL 445.773.]
The act contains an exemption for state agencies and boards:
This act shall not apply to a transaction or conduct specifically authorized under the laws of this state or the United States, or specifically authorized under laws, rules, regulations, or orders administered, promulgated, or issued by a regulatory agency, board, or officer acting under statutory authority of this state or the United States. [MCL 445.774(4).]
Plaintiffs argument fails because the challenged anticompetitive conduct he complains of (requiring the completion of two years of postgraduate clinical training in a program approved by the ACGME before a license may be issued) is undertaken pursuant to a regulatory scheme that, as discussed above, is authorized by the Public Health Code. Thus, the exemption in MCL 445.774(4) applies.
Regarding federal antitrust law, plaintiff did not raise this issue in his complaint or argue it before the trial court, and we could very well deem it waived. See Admire v Auto-Owners Ins Co, 494 Mich 10,17 n 5; 831 NW2d 849 (2013) (noting that Michigan generally follows the “raise or waive” rule of appellate review). In any event, the policy complained of (again, requiring the completion of two years of postgraduate clinical training in a program approved by the ACGME before a license may be issued) is equally exempt from federal antitrust laws under the “state action” doctrine because it is clearly articulated and affirmatively expressed as state policy and the policy is actively supervised by the state. North Carolina State Bd of Dental Examiners v FTC, 574 US _, _; 135 S Ct 1101, 1110; 191 L Ed 2d 35 (2015).
VI. REGULATORY TAKING
Plaintiff next argues that denying him a license is a regulatory “taking” of private property in violation of state and federal law. We disagree.
“The constitutions of both the United States and the State of Michigan provide that private property shall not be taken without due process or just compensation.” In re Certified Question, 447 Mich 765, 787; 527 NW2d 468 (1994). “One who asserts an uncompensated taking claim must first establish that a vested property right is affected.” Id. at 787-788. “Without a property right, a plaintiff has no basis for challenging a statute on the ground that it constitutes a confiscatory taking without due process of law.” Id. at 788. A vested property right is an interest that is more than a mere expectation. Id. Rather, it requires a “legitimate claim of entitlement.” Berkowitz v Dep’t of Licensing & Regulation, 127 Mich App 556, 563; 339 NW2d 484 (1983).
In this case, although plaintiff might have had an expectation that his education, examination results, and experience would enable him to obtain a residency and ultimately a full license to practice medicine, that is not a vested property right. See id. at 562-563 (holding that the appellant had no property interest protected by due process in obtaining a psychology license because he did not have a legitimate claim to being licensed pursuant to the rules promulgated under the former Psychologist Registration Act); Nolan, 151 Mich at 655 (“We conclude that appellant’s expectation of obtaining a physician’s assistant license when his interim license expired was not an interest protected by the Due Process Clause.”) (citations omitted). Because plaintiff cannot establish that a vested property right is affected, his uncompensated-taking claim fails. Certified Question, 447 Mich at 788.
VII. DUE-PROCESS OR STATUTORY RIGHT TO AN ADMINISTRATIVE HEARING
Lastly, plaintiff argues that he was denied his due-process and statutory right to an administrative hearing. We disagree.
No person may be deprived of life, liberty, or property without due process of law. US Const, Am V; US Const, Am XIV, § 1; Const 1963, art 1, § 17. In this case, plaintiff did not have a due-process right to an administrative hearing because, as discussed above, plaintiff cannot establish that a vested property right was affected and therefore he was not deprived, or at risk of being deprived, of a life, liberty, or property interest protected by due process. Due-process protections are only required when a life, liberty, or property interest is at stake.
Plaintiff also asserts that he was entitled to a hearing pursuant to MCL 333.16232, which states:
(1) The department shall provide an opportunity for a hearing in connection with the denial, reclassification, limitation, reinstatement, suspension, or revocation of a license or a proceeding to reprimand, fine, order restitution, or place a licensee on probation.
(2) The department shall provide an opportunity for a hearing in connection with the denial, limitation, suspen sion, revocation, or reinstatement of a registration or a proceeding to reprimand, fine, order restitution, or place a registrant on probation.
(3) A disciplinary subcommittee shall meet within 60 days after receipt of the recommended findings of fact and conclusions of law from a hearings examiner to impose a penalty.
(4) Only the department shall promulgate rules governing hearings under this article [MCL 333.16101 to MCL 333.18838], article 7 [MCL 333.7101 to MCL 333.7545], or article 8 [MCL 333.8101 to MCL 333.8511] and related preliminary proceedings.
The statute does state that “[t]he department shall provide an opportunity for a hearing in connection with the denial... of a license. . . .” MCL 333.16232(1). However, in the instant dispute, defendants did not actually deny plaintiff a license. Rather, they informed plaintiff that the “limited license” he sought did not exist and was not authorized by statute or rules, rejected his self-made “application” for the nonexistent license, and refunded his money. This was not a “denial... of a license,” because no such license exists and no such license is authorized under the Public Health Code. Plaintiff did not have a right to a hearing under these circumstances, in which he filed an application for a nonexistent license.
Affirmed.
Sawyer, P.J., and M. J. Kelly and Shapiro, JJ., concurred.
Plaintiff has also taken and passed Step 3 of the United States Medical Licensing Examination (USMLE), which is typically taken after one has completed a residency.
Although plaintiff characterizes the agency’s action as “denying” him a license, the agency’s action is more accurately characterized as rejecting his application (again, the application form was created by plaintiff himself because the agency had not and does not recognize the type of license plaintiff believed he was entitled to under MCL 333.16182(1)). The agency refunded the application fee plaintiff included with his application.
This issue of statutory interpretation presents a question of law reviewed de novo. Huron Behavioral Health v Dep’t of Community Health, 293 Mich App 491, 497; 813 NW2d 763 (2011).
This Court reviews constitutional questions de novo. In re Ayers, 239 Mich App 8, 10; 608 NW2d 132 (1999).
Whether a decision by an agency exceeds the agency’s statutory authority or jurisdiction is reviewed for clear error. Huron Behavioral Health, 293 Mich App at 496.
Whether the rule requiring the completion of two years of postgraduate clinical training in a program approved by the ACGME violates antitrust law presents a question of law reviewed de novo. Huron Behavioral Health, 293 Mich App at 497.
Plaintiff asserts that he raised the federal antitrust issue in ¶ 48G of his complaint. He did not. All he did was cite a case from this Court and indicate in a parenthetical that this Court was citing the United States Supreme Court. The paragraph repeatedly refers to “Michigan law” and “Michigan’s antitrust act” and never cites or mentions any specific federal law.
This Court reviews constitutional questions de novo. Ayers, 239 Mich App at 10.
This Court reviews constitutional questions de novo. Id. Likewise, whether plaintiff had a right to an administrative hearing under MCL 333.16232(1) is an issue of statutory interpretation, which presents a question of law reviewed de novo. Huron Behavioral Health, 293 Mich App at 497. | [
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Long, O. J.
Plaintiff was injured by falling into the cogwheels in a machine used by the defendant in its shop. He was about 12£ years old at the time he entered defendant’s employ, and had worked in the shop about 3 months when the accident happened. The defendant’s shop is about 50 feet wide and some 250 feet long. It is well lighted, and the accident occurred in the daytime. The machines are arranged in the shop in three rows, the space between the rows being about six feet. The machines are about four feet square, and some consist of cogwheels, and others of twisted blades. The cogwheels aré about one foot in diameter, three at the bottom and four at the top of the machine. They were uncovered, and plain to the view. Plaintiff’s work was at one end of the shop, and his duty was to place nuts on the bolts. On the day of the injury he had passed through the center space, got a pail of the nuts, and was returning to his place. He testifies in relation to the injury as follows:
“The machine I was hurt on was next to the last towards the river in the middle row. I went to the machine to get the pail of nuts. They were standing alongside of the machine. I picked up the pail, and had it in my hand. Then Frank Lempke came up. He is a boy about my size and age. He said, ‘ Give me those nuts;’ and I said: ‘No, sir; I will not. I use them as well as you do. I need them more than you do, because I am further behind;’ and then he jerked, and said he wanted them, and I said I wouldn’t let him have them. He was trying to get them away from me. I resisted, and we both pulled on the pail. Then he jerked it, and gave me a shove, * * * and I fell backward right into the cogwheels. He struck me at the time with his hand like that, and he let go of the pail at the same time. At the time he let go' I fell. We were both pulling then. 1 fell into the cogwheels, and my hand got into the cogwheel, and I fell onto the box.”
On cross-examination he testified that he went up and down between these machines every day for three months; that he was familiar with the construction of machines, knew how they ran, had seen the cogwheels in motion before, but never saw anybody hurt there; that he knew if any one got his fingers between the cogs his fingers would-be smashed; that he knew enough to keep away from the machines while they.were in motion; that they were in plain sight as he went up and down the passageway; and that it was light. It was shown that both the father and mother of the plaintiff knew of his employment there, and never objected to it, though no written consent was given by either of the parents.
It is contended that the defendant was negligent in employing the plaintiff without the written consent of his parents. Section 1997c3 of 3 How. Stat. provides:
“It shall be unlawful for any factory, manufacturing or mercantile establishment, to hir.e or employ any child under the age of fourteen years without first receiving the permission in writing by the parent or guardian, stating the name and age of said child.”
The next section provides that no place where less than 10 persons or children are employed shall be deemed a manufacturing or mercantile establishment.
It may be said as to this claim that there is nothing in the record showing how many persons or children were employed in defendant’s factory; but counsel for plaintiff insist that it is plain that more than 10 persons were employed when the number of machines are considered, and that they are all in motion. There is some force in this contention, and, if the case rested upon this question alone, we should hesitate to hold that the statute had been complied with. The question must be determined, therefore, upon other grounds. The act itself, by section 8, provides a penalty for its violation. It is apparent that the noncompliance with the terms of the statute was not the proximate cause of the injury. The failure to comply with the statute by obtaining the written consent of the parents had nothing to do with the injury, as it was not one of the natural results of such failure to obtain the consent. There is no count in the declaration for negligence in employing the plaintiff, and it counts only upon the failure of the defendant to obtain the consent of the parents. The damages claimed are for the loss of the plaintiff’s thumb and three fingers. The direct and proximate cause of the injury from which the damages flowed was either the scuffle between the plaintiff and Lempke, by which the plaintiff fell or was thrown into the cogwheels, or the uncovered condition of the wheels. How can it be said that the failure to obtain the parents’ written consent to his working in the shop in any manner caused the injury, or was in any way connected with it?
In Poland v. Earhart, 70 Iowa, 285, the defendant, in violation of the statute, sold a revolver to plaintiff’s minor son, wherewith he by accident shot himself. Plaintiff sued for loss of services, and for expense incurred in nurs ing him. It was held that, in the absence of a showing that there was something in the minor’s disposition or want of experience from which defendant might reasonably have anticipated that such an accident would happen, plaintiff could not recover. The court said:
“The immediate cause of these injuries was not the sale of the weapon by defendant, but the accident which subsequently occurred while the boy was handling it, whereby he was wounded.”
The damages to be recovered in an action must always be the natural and proximate consequences of the wrongful act complained of. If a new force or power has intervened, of itself sufficient to stand as the cause of the mischief or injury, the first must be considered as too remote. Schmidt v. Mitchell, 84 Ill. 195 (25 Am. Rep. 448). See, also, Swinfin v. Lowry, 37 Minn. 345. As to proximate cause, see Lewis v. Railway Co., 54 Mich. 55 (52 Am. Rep. 790), where the cases are collected and discussed by Mr. Justice Cooley.
It is also contended that the defendant had failed to comply with section 1997c6, 3 How. Stat., which provides that—
“All gearing and belting shall be provided with proper safeguards.”
It is contended by counsel for defendant that this was no violation of the statute, inasmuch as it is provided by section 6 of that act, being section 1997c7, 3 How. Stat., that—
If * * * the belting, shafting, gearing, elevators, drums, and machinery in the shops and factories are located so as to be dangerous to employés, and not sufficiently guarded, * * * after due notice of such defect, said proprietors or agents shall be deemed guilty of violating the provisions of this act.”
It is claimed that “after due notice of such defect” means the notice to be given by the inspector mentioned in section 5 of the act. We think this was the notice required. There is no pretense that any such notice was given. The statute is very different from the one cited in Ashman v. Railroad Co., 90 Mich. 567.
Counsel for plaintiff further contend that the defendant was guilty of negligence is not furnishing the plaintiff a safe place to work; that the plaintiff was too immature in intellect to appreciate the dangers of the place, and in putting him there, and not instructing him in regard to the danger, the defendant was guilty of negligence. The court below was of the opinion that the plaintiff, when he entered the defendant’s employ, saw and knew the danger of getting into the cogwheels, and therefore assumed the risks of the employment. In this, we think, the court was correct. The testimony of the plaintiff shows conclusively that he knew and apprehended the danger. It cannot, therefore, be said upon this record that he was too immature to know the danger he was in. The accident apparently was the result of the contention of the plaintiff and Lempke over the pail, for which the defendant was in no wise responsible. The open cogwheels were to be seen by them, and the plaintiff testified that he knew, ‘ ‘ if anybody got their fingers in between the cogs, they would be smashed.”
We think the court below properly directed the verdict in favor of defendant. The judgment must be affirmed.
The other Justices concurred. | [
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Long, C. J.
An action of replevin was commenced by the relators in the Ionia circuit to recover possession of certain property described in the affidavit and writ as:
“About 500 bushels of ears of corn in crib; about 50 bushels of ears of corn in field; about 8 acres of corn in shock, not husked, including the corn stalks; about 9 acres of corn stalks; 125 bushels of potatoes; 1£ tons of hay; 12 hogs; 1 fanning mill; 1 pair bob sleighs; 1 f ourtined pitchfork; and one three-tined pitchfork.”
The property was taken under the writ, and appraised at $241.60. The cause was tried before a jury, who found that the plaintiffs were entitled to recover the fanning mill and the bob sleighs, the appraised value of which amounted to $22 only. The jury also found that the plaintiffs were not entitled to recover the balance of the property. The court below, under the findings of the jury, gave judgment in favor of the defendant for costs. Mandamus is asked to set aside that judgment, and to enter judgment in favor of the plaintiffs.
We think the court below was correct. 2 How. Stat. § 8964, provides:'
“In the following cases, if the plaintiff recover judgment by default, upon confession, verdict, demurrer, or otherwise, in any action or proceeding at law, he shall recover his costs: * * * Fourth. In all actions of replevin, and in all actions for the recovery of any debt or damages, or for the recovery of penalties or forfeitures, in all cases where the court has exclusive or concurrent jurisdiction.”
Section 8967, 2 How. Stat., provides:
“In all actions and proceedings in which the plaintiff would be entitled to costs upon a judgment rendered in his favor, if, after the appearance of the defendant, such plaintiff be non-suited, discontinue his suit, be nonprossed, or judgment pass against him on verdict, .demurrer, or otherwise, or in case a plaintiff recover judgment, but not enough to entitle him to costs, the*defendant shall have judgment to recover against such plaintiff his full costs, which shall have the like effect as all other judgments.”
It has been several times held in this court, under subdivision 4 of section 8964 above quoted, that if the amount of the plaintiff’s claim is less than $100, as established upon the trial, defendant is entitled to costs. Strong v. Daniels, 3 Mich. 466; Inkster v. Carver, 16 Mich. 484; Dikeman v. Harrison, 38 Mich. 617; Stortz v. Ingham Circuit Judge, Id. 243. Counsel for relators, however, relies upon Merrill v. Butler, 18 Mich. 294. That decision was based upon subdivision 4 as it stood prior to the amendment of 1871, and read: “In all actions for the recovery of any debt or damages, or for the recovery of penalties or forfeitures, in cases where such actions are not cognizable before a justice of the peace, and in all actions of replevin.” The amendment of 1871 (Act No. 122, Laws 1871) was undoubtedly passed in view of the decision in Merrill v. Butler, and for the purpose of granting to defendants in actions of replevin the costs where the plaintiffs failed to recover more than $100, as in such cases justices of the peace have exclusive jurisdiction.
Some question is raised by counsel for relators that there was nothing upon the record showing the value of the property. The appraised value was shown upon the record, and the respondent returns that, at the time of entry of judgment for costs in favor of defendant, it was conceded by counsel for relators that the value of the property recovered amounted to only $22. Since the passage of the amendment, it has been twice held that where the plaintiff recovered in replevin less than $100, the cause being commenced in the circuit court, the defendant was entitled to costs. Kittridge v. Miller, 45 Mich. 478; Kirby Carpenter Co, v. Trombley, 101 Mich. 447.
The writ must be denied.
The other Justices concurred. | [
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Per Curiam.
The two appeals involved were consolidated for purposes of appeal by an order of this Court dated February 20, 1969. Each appeal arose from the same lower court proceeding, namely: the grant of the petition of the Michigan commissioner of banking for the appointment of a receiver for Public Bank, a Michigan banking corporation. Our file No. 4,629 is the appeal of Public Bank Shareholders’ Association and our file No. 4,630 is the appeal of the individual defendants. For a variety of reasons, discussed in detail subsequently, the appeals attack the grant of the petition, the propriety of appointing Federal Deposit Insurance Corporation as receiver, and ;he sale and transfer of the assets of Public Bank -,o Bank of the Commonwealth by the receiver.
Our review of the actions of the trial court here mder attack must be in context with the facts presented to that court. In its written opinion, the trial court made detailed findings of fact, none of which are clearly erroneous (OCR 1963, 517.1), and our review of the record does not convince us that we would have found differently had we sat as triers of the fact. These findings establish the following:
Public Bank was a state bank chartered under Michigan Financial Institutions Act. Public Bank was not a member of the Federal Reserve System, but was insured with FDIC and subject to examination by it, as well as the state banking department.
From 1961, the state banking department was concerned with the operation of Public Bank. In 1963, the accounting department manager of Public Bank took exception with his superiors as to certain accounting methods employed by the bank. He questioned the handling of unearned income, a switch of accounting methods relating to unearned interest on installment loans, and he objected to the transfer of approximately $500,000 from the unearned interest account to the undivided profits account. Again in 1965, this same accounting officer questioned the handling of the unearned interest account, the renewal of consumer loans and the establishment of loss reserves pertaining to home improvement contracts purchased by the bank. These objections were voiced to several officers and directors of the bank.
In September of 1965, an officer of Public Bank brought to the attention of the state banking commissioner the method by which the bank handled the unearned interest account. During the fall of 1965, a Federal grand jury investigated Public’s accounting methods, especially those relating to the unearned interest account. This was a topic of discussion between the banking commissioner and officers and directors of Public during September and November of 1965.
Shortly prior to November 3, 1965, the secretary of Public Bank advised the directors of the bank that an initial accounting run had been made reflecting a deficiency in the unearned income account of $1,509,000 which would reflect in an overstatement of earnings. Such initial run was disputed and required further detailed checking in the opinion of other officers of the bank. At the November 3 meeting of the board of directors, the state banking commissioner requested an audit of the unearned interest account to determine any deficiency. There were substantial differences of opinion as to the most prudent method for accounting appropriately to reflect whether there was any deficiency. Shortly after this November 3rd meeting, the president of Public Bank, Mr. Hay, resigned effective November 30, 1965.
Soon after this meeting, the board of directors employed Touche, Ross, Bailey & Smart to conduct an audit of the unearned interest account. This audit resulted in a written opinion from the accountants which used three methods in reviewing the bank’s computations of unearned interest. Under each method a deficiency in unearned interest and an overstatement of profits was disclosed in amounts of approximately $1,835,000, $2,045,000 and $1,485,000, according to the method employed.
December 22, 1965, Ernst & Ernst were employed to review the findings of Touche, Ross, Bailey & Smart. Ernst & Ernst made no examination or audit of accounts but in a letter opinion as of December 28, reviewed tbe method used by Public in recognizing income on installment loans. This report reflected that Public since approximately 1962 had been recognizing income on installment loans on an “average yield method”, leaving in a deferred income account an amount approximately equal to ten or eleven per cent of the outstanding balance of the installment loans. Such practice according to the Ernst & Ernst report was “reasonable and similar to the practice followed by other banks”. This report also suggested that such interest earned on installment loans be reflected on a -78ths method in the future and proposed that such change be made after January 1, 1966. The opinion of Ernst & Ernst concluded that the present method be continued on the books through December 31, 1965, to avoid “an abnormal adjustment as of December 31, 1965, which might have serious effect on the bank’s image in the financial community”.
At a meeting held December 28, 1965, the board of directors considered the reports from both firms of accountants and adopted the recommendations of Ernst & Ernst. A resolution was adopted continuing the existing policy of computing earnings on installment loans through December 31, 1965, and providing that starting on January 1, the 78ths method be used for all new installment loans. The officers of the bank were instructed to advise interested state and federal officials of this resolution.
Walter F. Finan was elected president and director of Public Bank following the resignation of Mr. Hay. At a meeting held January 6,1966, Mr. Finan read a prepared statement relating to the handling of the unearned income account. The statement expressed his position that if Public did not follow the practices recommended by Touche, Ross, Bailey & Smart or make a full proper footnote to the December 31 statement as Touche, Ross, Bailey & Smart might recommend, Mr. Finan would submit his resignation. According to the statement, the books of Public Bank did not properly reflect the true condition of the bank because the unearned income on installment loans was understated and its earned income overstated. Mr. Finan recommended that an immediate cure should be effectuated either by suitable bookkeeping entries prior to the closing of the books of account for the year 1965, or by causing suitable footnotes to be made to the year-end report for 1965. Mr. Finan’s resignation was accepted at this meeting.
At a board of directors’ meeting held January 10, 1966, the footnote suggestion was adopted, and the statement of condition of the bank as of December 31, 1965, contained a footnote which indicated a reduction in undivided profits of approximately $1,500,000. At this meeting, it was also determined to amortize this deficiency over a period of years by charging it to current earnings computed on the 78ths method. The first amortization entry was made on Public’s books in March of 1966. This was reflected in the statement of condition as of April 5, 1966, and neither the state banking department nor FDIC objected to this procedure.
FDIC and the state banking department began separate examinations of Public Bank March 28, 1966, which continued until June 10, 1966. A summary of the FDIC report of this examination stated:
“In spite of repeated criticisms of supervisory authorities and field examiners, management has continued to expand the loan account far beyond accepted banking standards, has continued to extend credit to financially weak borrowers, has continued to extend credit in excessive concentrations to a few borrowers and their interests, has failed to adhere to the basic principles of sound banking of maintaining a normal risk diversification, has continued its weak lending policies, has not formulated a reasonable collection policy, has continued to grant loans with inadequate credit information, has failed to maintain the credit files in a current and satisfactory condition, has failed to effect reasonable recoveries on charged-off assets, has continued to operate the bank with an inadequate capital account, has failed to recognize operational expenses, has overstated income, has permitted excessive losses in the loan account, has repeatedly disregarded provisions of law and regulations, and has not provided the officer personnel necessary for the supervision of the large loan account which is filled with serious problems.
“Although the board has been repeatedly reprimanded for these deficiencies, it is apparent from the findings of this examination that it has failed to effect corrections and the present condition of the bank discloses that the problems have become more acute and seriously threaten depositor funds.”
The report of the state banking examiner contained the following:
“This examination discloses that subject bank is faced with many monumental problems for which there are no easy or readily apparent solutions. Bank has had a troubled history, and the major perplexities now facing the bank center around new, and unresolved asset problems of the past, and management’s failure to provide sound earnings, the cumulative effects of which are now endangering the solvency of this institution. Despite the combined past efforts of supervisory personnel to point up dangerous deficiencies and inherent weaknesses, bank’s board of directors have initiated few corrections. The more important areas in which the bank has continued to be deficient are outlined below, with detailed comments following:
“(1) Loans and Discounts:
“(a) Maintenance of an excessive loan volume.
“(b) Excessibe concentrations of credit and lack of diversification relative to individual borrowers, and also with regard to type and source of loans.
“(c) Excessive loan classifications and delinquency.
“(d) Excessive loan losses and an unsatisfactory recovery record.
“(e) Failure to provide for an adequate senior loan staff to grant and properly service an expanded loan portfolio.
“(2) Earnings:
“Failure of the bank to generate sound earnings, which are essential to the buildup of adequate loss reserves and maintenance of a strong capital account.
“(3) Capital Structure:
“Failure to maintain an adequate capital account in relation to the deposit structure.
“(4) Liquidity:
“Continued operation of the bank with low liquidity, particularly pronounced at this examination.”
Contributing to the foregoing criticisms of the bank’s condition at the time of this examination were the following facts:
a. From October 1, 1964, to December 31, 1965, Public purchased $29,264,584.21 worth of home-improvement contracts from two sources. From February 15, 1965, through March 28, 1966, the amount of such purchases from one of these sources more than doubled. Generally, the first payment on such contracts fell due several months in the future and a large number of these contracts purchased late in 1965 provided no income for 1965. The 1965 year-end statement of the bank disclosed that 95% of the earnings from home-improvement loans was attributable to two sources.
b. In 1963, the percentage of loans to total assets was 60.3%. This percentage rose to 71.6% by March 28, 1966. During the same period, the loan to deposit ratio rose from 67.1% to 82.1%. In 1965, the state average for this ratio was 59.2%.
c. Between December 31, 1965, and March 28, 1966, the bank lost deposits of nearly $14,000,000 and suffered a net loss of $440,252.58, which included a $178,155 amortization of the previous deficiency in unearned income.
d. The March 28, 1966, examination revealed that loans from five sources had grown to 722.3% of the bank’s total capital and surplus account and represented 50.4% of the total loan portfolio. The examination also disclosed that over $35,000,000 of $51,755,588.88 of installment loans were obtained from two sources and that 95.1% of the home-improvement loans had been purchased from these two sources.
e. On this examination, 46.6% of the bank’s total loan portfolio was adversely classified as loss, doubtful or sub-standard. The total of the loans classified adversely was six times the total book capital structure of Public Bank. A loan classified as a loss is charged against the capital account and 50% of a loan classified as doubtful is similarly charged. The percentage of loans classified adversely rose from 21% in 1963 to 46.6% on March 28, 1966. During the same period, the percentage of adversely classified loans to book capital rose from 199.9% to 637.6% and the percentage of loans classified as loss or doubtful to book capital rose from 14.9% to 52.3%.
The FDIC report of examination also contained the following:
“A check of the files discloses the lack of credit worthiness on the very great majority of the borrowings with borderline and weak credits predominating. A review of the past charge-offs in these accounts reflects the deterioration in the quality of the contracts purchased, as the amounts that are being charged off are increasing at a faster pace than the increase in the acquisitions indicating that probable losses still can reasonably be expected to increase further, resulting in staggering charges against capital funds. The loss reserves that were being built up when the accounts were increasing have all been used, and, as the bank has for all practical purposes shut off new acquisitions, there will be little, if any, reserve to absorb the losses that are still to be taken and the charge-offs will have to be out of capital funds.
•ft*
“Due to the time lag of approximately a year before the contracts become statutory, the losses for most of 1965 and the first quarter of 1966 have not come to light at this time, since nearly all of the contracts have a delayed first payment of from six to eight months from origination date, after which they do not become statutory until payments are six months past due.”
In a similar vein, the state examination report stated, “to date the bank has experienced a punishing loss experience on home improvent loans from the two sources”. Accordingly, the examiner placed a group classification of “doubtful” to $5,000,000 of such loans causing $2,500,000 to be charged against the capital account. This statement concluded:
“there is little doubt that the ultimate losses that will be suffered will far exceed the $2,500,000 that is charged against the capital account * * * and it is more probable that a loss classification of $5,000,000 would have been more appropriate. Likewise, as a group these loans are not considered to represent sound banking values and a substandard classification is accorded all the remaining contracts”.
These comments in the reports of examination are supported by the following:
a. Delinquency in the loan account was 10.2% and in the installment loan category 13.1%, more than twice the state average. To keep the delinqency ratio at this level, loans were rewritten or their maturities were extended.
From January 1963, to March 28, 1966, Public experienced a net loss of $318,134.91. As of May 31, 1966, Public had sustained a total book loss of $790,780.67 in spite of $360,000 advanced by the directors to purchase $900,000 of charged-off home improvement loans which reduced the loss in that category to approximately $540,000. The state examination report stated:
“Except to the extent that new deposit money can be attracted, bank will have little reinvestment ability for the remainder of the year. Bank will have a significantly frozen asset condition for many months due to the long-term liquidation provisions that are built into the major block of its earning assets, and any conceivable run off that will be experienced for the remaining months of 1966 will be needed to reduce the excessive loan deposit ratio, and provide for a minimum acceptable level of liquidity.
“The earnings prospects for year 1966 are indeed grim, and it is quite probable that the net deficit for the year will greatly exceed the very substantial true deficit that was experienced in 1965. Bank is faced with the task of liquidating (without benefit of remaining reserves) in excess of $35',000,-000 of sub-marginal loans which can reasonably be expected to produce additional losses running several hundred thousand dollars by year end.”
The charge against capital of adversely classified loans and the deficiency in unearned discount reduced the book capital account of $6,216,870.62 to an adjusted capital account of $1,474,184.37. The latter sum represented 1.18% of the quarterly average of all assets of Public Bank. The average state ratio of capital to assets as of October 13, 1965, was 8.01%. By letter dated June 28, 1966, the state banking commissioner required the directors to assess stockholders $12.44 per share to restore the deficiency in the capital account. This demand was repeated July 19 to be accomplished within two months, but it was never complied with.
In February 1966, Public had to sell $12,481,000 of United States notes and bonds at a book loss of $175,117.40 and also obtained a line of credit from a New York correspondent. The liquidity ratio to deposits was 27.17%, approximately 10% lower than at the time of the 1965 examination. At the time of examination, Public’s group I and group II securities showed a market depreciation of $1,004,991.05. The FDIC report of examination contained the following:
“Of further concern is the fact that there is a market depreciation of $1,004,991.05 in the securities account which is not reflected in the computations to arrive at the adjusted capital account. Should the bank again be faced with the problem of liquidating assets to meet depositors’ demands, as was necessary after the first of the year due to unfavorable publicity, the bank would be threatened with the prospects of additional punishing losses from the sale of securities to meet these demands, which would further deplete the already impaired capital account.
“Of grave concern is the effect that the present trend in the earnings will have on the capital account, since the deficit is growing month by month in substantial amounts, which is further reducing total capital accounts. The overhanging threat of pending losses in * * * (the two sources of installment paper), which will henceforth have to be charged against capital funds, is cause for serious doubts as to the ability of the bank to cover the expected losses.”
June 6, 1966, the directors of Public Bank met with the state banking commissioner, his examiner and certain personnel from FDIC to review the nearly-completed examinations. The commissioner requested the board to take positive steps with regard to correcting the capital account deficiency. The board indicated it would attempt to obtain additional capital from shareholders, put out feelers for a merger or explore the sale of stock to an outside investor. At this same meeting, the FDIC examiner stated he would recommend the issuance of a citation under section 8(A) of the Federal Deposit Insurance Act reflecting unsafe and unsound practices. This citation was issued July 26, 1966, with the following specific findings:
“1. The continued operation of the bank in an unsound and hazardous condition with a seriously impaired capital account, the impairment at the close of business on March 28,1966, being such as to exhaust entirely the bank’s undivided profits and surplus and to impair its common stock substantially;
“2. The continued operation of the bank with an adjusted capital account which is inadequate in relation to the kind and quality of assets held by the bank;
“3. The continued pursuit by the bank of lax credit, lending and collection policies and practices, including but not limited to (a) the carrying of an excessive volume of adversely classified loans, (b) the carrying of an excessive volume of loans, (c) the failure to diversify the loan portfolio, (d) the carrying of excessive concentrations of credit, (e) the failure to take aggressive and effective action to collect problem loans, including charged off loans, (f) the carrying of an excessive volume of overdue loans, and (g) the maintenance of deficient credit files;
“4. The continued failure of the directors of the bank to provide an adequate loan administrative staff;
“5. The continued failure of the directors and officers of the bank to exercise proper control over income and expenses and accounting procedures of the bank, as a result of which the bank’s reported earnings have been overstated and some of its expenses understated;
“6. The continued failure of the .directors and officers of the bank to observe and comply with, and their knowingly or negligently authorizing or permitting violations of provisions of law to which the bank is subject, including sections 74 and 91 of the Michigan Financial Institutions Act;
“7. The continued failure of the directors and officers of the bank to heed the criticisms and warnings and to comply with the recommendations of this corporation and the Michigan State Banking Department and their respective examiners.”
The 8(A) citation specified the following corrective measures to be completed within 120 days (November 28, 1966) or steps would be taken to terminate Public’s status as an insured bank:
“1. Charge off all assets classified as loss on its accounting statements;
“2. Charge off at least 50% of its assets classified as doubtful on its accounting statements;
“3. Proceed diligently to eliminate the remaining 50% of doubtful assets and reduce by at least 50% the substandard assets on its accounting statements ;
“4. Reduce the volume of large concentration of credit and diversify the loan portfolio ;
“5. Provide additional experienced loan administrators at the executive level;
“6. Make appropriate entries to correctly reflect interest collected but not earned;
“7. Place the assets of the bank in a form and condition acceptable to the commissioner and the FDIC and that the bank provide an adjusted capital account not less than $6,216,870.”
July 28, 1966, the state banking commissioner extended the time for the assessment of Public shareholders to November 28, 1966, on three conditions:
“1. That a written plan for correction of the capital impairment be provided to the commissioner’s office within 10 days;
“2. That reports be submitted to the commissioner’s office on the first and fifteenth day of each month beginning August 15, 1966, concerning progress on the corrected measures required by the FDIC, and;
“3. That a signed copy of the general ledger, daily statement of bank be submitted to the commissioner’s office each day for the previous day’s close of business effective immediately.”
The first condition was never met.
Prior to October 11, 1966, neither the officers nor the directors gave the shareholders any notice of the assessment or of the 8(A) citation.
During the spring and summer of 1966, Public initiated some corrective measures including hiring new experienced personnel, attempting to reduce the installment loan portfolio, not purchasing more home improvement installment loans and attempting to increase deposits. Merger or recapitalization were discussed with Mr. Leemon, president of Guardian Savings and Loan Association and the state banking commissioner. Some discussion was had with Michigan Bank relative to merger. Pub- lie and City National Bank entered into a merger agreement conditioned on review of assets and audit of Public. City National later withdrew from this merger agreement. A proposal for recapitalization was made by director Mebus. No merger or recapitalization was accomplished.
August 22, 1966, the State Banking Department and FDIC placed examiners in Public Bank where they remained until October 11, 1966, documenting on a daily basis information on Public’s condition.
The chairman- of the board of FDIC visited Detroit during the week of August 21, 1966, and called on five of six banks relative to Public’s problem and possible solutions therefor. City National Bank was not visited due to its prior withdrawal from a proposed merger agreement. National Bank of Detroit and Detroit Bank and Trust Company evidenced no interest in merging with or acquiring Public. Michigan Bank indicated its awareness of community responsibility and that it would join other banks in assisting Public. Manufacturers National Bank proposed a possible acquisition pro vided FDIC placed with Manufacturers a $25,000,000 liquidity deposit and guarantee Manufacturers against losses without limit as to amount. FDIC doubted it could do so legally and nothing further developed with Manufacturers Bank. Bank of the Commonwealth expressed an interest in acquiring Public if FDIC provided sufficient assistance. Officials of Commonwealth expressed concern for the impact on Commonwealth if Public failed. Near the end of August 1966, Commonwealth and Public began negotiations for the purchase of Public by Commonwealth. The latter engaged Touche, Ross, Bailey & Smart to examine Public and the resulting report formed a basis for negotiating and for limiting assistance by FDIC. An initial agreement was reached August 29,1966, and it was signed by directors McGuire, Moorman, Kotcher, Mebus, Sr., Granader, Youngblood, Meldrum, Harris, Burke, and Tunney.
Commonwealth and Public negotiated a formal agreement dated September 1, 1966. It provided a premium to Public of $550,000 for the latter’s going concern value and the right of Commonwealth to do business at Public’s banking house branch locations plus a two per cent premium on demand deposits and a one-half of one per cent premium on all other deposits. This agreement was approved at a board of directors meeting and it was signed by the following directors of Public: McGuire, Burke, Mebus, Sr. and Jr., Kotcher, Meldrum, Benway, Moorman and Harris. Philip Mebus, Sr., the largest individual shareholder of Public, not only approved and executed the sale agreement but he further agreed to execute and deliver to Commonwealth an irrevocable proxy by himself and each member of his family to vote for confirmation and approval of said agreement.
Shortly after the agreement of September 1, 1966, the FDIC and Commonwealth began negotiations which eventually culminated in two agreements, being agreement A and agreement B of September 19, 1966. Agreement A was a support agreement for the agreement between Commonwealth and Public dated September 1, 1966, and it reflects the method of appraising assets and recognizing liability of Public for the purpose of measuring Commonwealth’s right to charge the FDIC $10,000,000 guaranty fund established under agreement A. Agree ment B was a standby agreement relating to the method of appraising assets and recognizing liabilities in the event FDIC should be appointed receiver for Public and a court approved a sale by the receiver to Commonwealth. Agreement B also embodied a $10,000,000 guaranty fund from FDIC. Agreement A contemplated a direct purchase by Commonwealth from Public with Public stockholder approval. Agreement B contemplated a similar acquisition but through the route of involuntary receivership with court approval. After the execution of agreements A and B, Commonwealth officials executed the agreement between Public and Commonwealth dated September 1, 1966. Agreement B was initiated at the insistence of FDIC as an alternate route to effectuate the continued operation of Public in case agreement A failed to become effective. On September 30, 1966, but effective September 23, 1966, Commonwealth and Public amended their September 1 agreement so that it was exactly parallel to the terms of sale under the contingent receivership agreement, agreement B, except for a 15-day difference as to the time for calculating the premium on deposits. The amended agreement was approved at a special meeting of the board of directors of Public on October 3, 1966, with the following directors approving the amendment: Benway, Burke, Granader, Kotcher, McGuire, Me-bus, Jr., Meldrum, Moorman, and Tunney. Director Berry abstained from voting and Mebus, Sr., and Youngblood were absent. Agreement B excuses performance by Commonwealth in the event that a break in normal business operations occurred in Public Bank.
In the event Public was able to obtain a better offer than that made by Commonwealth, the latter agreed to step aside. The president and board of directors of Public knew the details of agreements A & B and that the latter contemplated the sale of Public by a receiver without interruption of Public’s banking operations. Public’s president expressed relief that under either agreement Public depositors would be fully protected. Approximately $10,000,000 of deposits in Public were not insured.
A public announcement of a Commonwealth-Public merger was made September 23 to September 26, 1966, including FDIC’s participation therein. By agreement and law, Public shareholder approval was required for the sale of Public to Commonwealth. A proxy statement had to be furnished to Public shareholders prior to the meeting at which such approval was sought, and FDIC had to approve the proxy statement.
The original closing date for the sale of Public to Commonwealth was October 3, 1966. Disagreement developed between Public’s management and its accountants, Touche, Ross, Bailey & Smart, as to the contents of the proxy statement, especially as to an appropriate loss reserve. The closing date was changed to October 14 and Public amended its bylaws to shorten the required notice to shareholders from ten to seven days. No acceptable proxy statement was available October 7 and no extension of the October 14 closing date was secured. Touche, Ross, Bailey & Smart withdrew from the preparation of the proxy statement October 11. Public’s board of directors resolved to hold a shareholders’ meeting October 14 and to then advise them of the bank’s condition.
The following facts indicate. the worsening of Public’s condition during the period of negotiations with Commonwealth:
a. Of the deposit loss of over $21,500,000 between October 7, 1965, and October 7, 1966, almost $2,500,-000 occurred between September 20, 1966, and October 7,1966.
b. August 26, 1966, Public had insufficient funds to meet its clearings and borrowed $500,000 from Federal Reserve in order to do so. On the same date, a second $500,000 was borrowed from Federal Reserve to cover a large deposit withdrawal.
c. This borrowing from Federal Reserve to maintain liquidity requirements without selling government securities continued on a daily basis from August 26 to October 11, and on the latter date these borrowings attained a total of $9,500,000.
d. As of October 11, Public’s book capital account was $936,116.01 and deposits were $92,952,642, resulting in a capital to deposit ratio of about one per cent. Loans against these deposits approximated $81,500,000, producing a loan to deposit ratio of almost 88%, 6% higher than on March 28, 1966. The installment loan portfolio was almost $46,000,-000, of which $31,550,000 was submarginal. The liquidity ratio to deposits had declined to 19.1% from the low ratio of 27.17% on March 28, 1966.
e. Based on market value of securities, as opposed to amortized cost which is the normal method of valuing a bank’s securities, Public’s liabilities exceeded its assets by $1,362,779.20 as of October 11, 1966.
f. Public’s statement of condition prepared September 20, 1966, was never published, a source of comment in Detroit’s financial community.
Concerned by all these developments, several weeks prior to October 11 the banking commissioner requested the attorney general to have a petition for appointment of a receiver for Public in readiness. The Attorney G-eneral conferred with the Wayne County Presiding Judge relative to the possible necessity for filing such a petition and having an immediate hearing thereon after normal court hours. The Presiding Judge pro tern, joined this consultation and by lot, Judge Burdick was assigned the case in the event it was filed. Arrangements were made with Judge Burdick to hold a hearing after normal court hours, if the petition was filed.
Although on October 11, 1966, Public met its obligations in the ordinary course of business and did not refuse to pay its deposits or obligations in accordance with the terms under which said deposits or obligations were incurred, met and satisfied its bank clearings as of that date and had on deposit with its clearing house representative sufficient funds to meet and satisfy its clearings on that date, the banking commissioner filed his petition for the appointment of a receiver for Public Bank on the basis of its insolvency at 5:30 p.m. on October 11, 1966. No notice of the petition or of the hearing was given to any officer or representative of Public and only court personnel, representatives of the State Banking Department, of FDIC, Commonwealth, their respective attorneys and persons associated with them were present at such hearing.
The hearing concluded in the early morning hours of October 12. Judge Burdick found that Public was insolvent and appointed FDIC receiver with authority to take possession of and liquidate Public’s assets. The judge appointed counsel for the receiver and the receiver presented its petition for the immediate sale of Public to Commonwealth pursuant to agreement B. This petition was granted under an order containing a defeasance provision or condition subsequent under which all interested parties considering. themselves aggrieved by the order were directed to appear November 2 and show cause why the order should be set aside. Thereafter, the president of Public was advised of the proceedings, FDIC took possession of Public, sale to Commonwealth was consummated, Commonwealth took possession and reopened the bank for business at the normal time on October 12. Copies of all orders and the sale agreement were subsequently mailed to Public shareholders.
On November 2, a preliminary hearing was held to develop a plan of procedure. At this time, Judge Burdick alerted those present to the fact that his son-in-law was a member of the firm which was one of the firms representing the receiver, that the judge was indebted to Commonwealth on several fully-secured loans and that he had some fiduciary accounts with Commonwealth. Judge Burdick stated that none of the foregoing would affect his ability to hear and judge the case fairly and impartially. The hearing was adjourned to November 17.
Various motions were filed during the adjournment, including a motion to disqualify Judge Bur-dick. The latter was noticed for November 14 and it was assigned to Judge Nathan Kaufman. November 11, Judge Burdick requested the presiding judge to reassign the case and it was reassigned on blind draw to Judge Moody. This reassignment was contested below and is contested on appeal.
November 17, Judge Moody presided and outlined ground rules for the proceedings. At respondents’ request, the hearing was adjourned to November 28. Further delay ensued from an attempt to remove the proceeding to Federal court. This was denied by Federal district court December 7, and several of the respondents thereupon sought appeal to this Court. The application for leave to appeal was denied by this Court February 21, 1967, and by the Supreme Court the same date.
March 1, 1967, Judge Moody notified all parties of record that the hearing on the order to show cause would commence April 6, 1967, and continue until terminated. The hearing commenced as scheduled and final argument was concluded August 31. Judge Moody’s opinion was filed September 29, 1967, which found independently that Public was insolvent October 11, 1966, that the appointment of a receiver was justified as was the sale of Public Bank to Commonwealth. Judge Moody found no error in the procedure followed. Judgment was entered and these appeals followed.
In making this detailed statement of facts, we are not unmindful of defendants’ contention below and here that the only pertinent facts are those developed before Judge Burdick on the night of October 11 and 12. We agree with Judge Moody that proper adjudication of this controversy requires a full and complete record. For this reason, we have adopted the findings of Judge Moody which we consider pertinent to decision.
Appellants dispute the authority of the trial court to appoint a receiver for Public Bank on the basis that the trial court applied an improper definition of “insolvency”.
The determination of this issue is controlled by § 115 of the Michigan Financial Institutions Act (MFIA), which enumerates several grounds which justify the appointment of a receiver by the court. The act provides in part:
“The following shall constitute grounds for the appointment of a receiver (as hereinafter provided) for any bank subject to the provisions of this act:
*jr. At, TP TP
“2. Whenever any bank shall become insolvent.
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“4. Whenever a bank has refused to pay its deposits or obligations in accordance with the terms under which such deposits or obligations were incurred”.
The trial court, relying on subsection 2, appointed a receiver for Public Bank after making the following findings of fact and conclusions of law:
“Instead of just being limited to a time when a bank has refused to pay its deposits or obligations in accordance with the terms under which deposits were incurred, grounds for appointment of receiver also are established whenever a bank has liability that exceeds the fair market value of its assets.
“Public Bank was insolvent on October 11, within the meaning of section 115 of the Michigan Financial Institutions Act {i.e., it had) liabilities that exceed(ed) the fair market value of its assets.” (Emphasis added.)
Appellants contend that the Commissioner’s petition was faulty and inadequate in that the appointment of a receiver, based upon the petition, was neither authorized nor legal since said appointment was based upon an erroneous definition of insolvency. Appellants argue that the test of insolvency in Michigan is whether a bank is able to pay its obligations in the ordinary course of business, not whether the liabilities exceeded the fair market value of its assets. Appellants cite the following cases in support of their position: Daugherty v. Park (1936), 274 Mich 673; Greene v. Ancient Order of Gleaners (1934), 267 Mich 488; Stone v. Jenison (1897), 111 Mich 592; Stone v. Dodge (1893), 96 Mich 514.
It should be noted, however, that the cases cited by appellants were decided prior to the enactment of the Michigan Financial Institutions Act (MFIA) and were based upon former statutes. As such, we do not consider these cases to be binding precedent for the issue presented in the instant case.
A determination of a bank’s insolvency based upon the relation of assets to liabilities is well recognized. See, e.g., United States Savings Bank v. Morgenthau (1936), 66 App DC 234 (85 F2d 811); Kester v. Helmer (1935), 16 F Supp 260; McIlvaine v. City National Bank & Trust Company of Chicago (1942), 314 Ill App 496 (42 NE2d 93); In re Citizens Exchange Bank of Denmark (1927), 140 SC 471 (139 SE 135). See, generally, 9 CJS, Banks and Banking § 486, pp 943, 944. In Commercial National Bank in Shreveport v. Connolly (CA 5, 1949), 176 F2d 1004, 1007, the court stated the following with respect to the issue of a hank’s solvency:
“[T]he universal requisite for a bank to be solvent [is] that it must own assets in an amount at least equal to its liabilities.” (Emphasis added.)
Prior to the 1937 enactment of the MFIA, banking in Michigan was governed by the General Banking Act of 1929. See Stewart v. Algonac Savings Bank (1933), 263 Mich 272. Section 62 of the 1929 act was the predecessor of § 115 of the MFIA. Under § 62 of the 1929 banking act the following qualified as a ground for the appointment of a receiver:
“[I]f the commissioner shall have become satisfied that any bank has refused to pay its deposits and/or obligations in accordance with the terms on which such deposits and/or obligations were incurred.”
The 1929 act did not, however, expressly list “insolvency” as one of the grounds for the appointment of a receiver.
Ground 4 of § 115 of the MFIA is virtually identical to the quoted section of the 1929 banking act. Thus, the refusal “to pay its deposits or obligations” was retained as a criterion for the appointment of a receiver, but the bank’s “insolvency” was expressly added as an additional ground for the appointment of a receiver. In view of existing case law and the previous statute, a question is presented as to whether the insertion of the “insolvency” ground by the legislature in § 115 of the MFIA was intended to be a redundancy. That is, did the legislature intend that ground 2 (insolvency) was to he equated with ground 4 (refusal to pay deposits or obligations) ? We answer these questions in the negative. Legislative intent is seldom, if ever, effectuated by discarding certain phrases in statutes on the theory that they were inserted superfluously. Bather, reason dictates that the “insolvency” ground under § 115 of the MFIA was intended by the legislature to mean something in addition to, and distinct and different from, “a refusal to pay deposits and obligations”.
The Michigan Financial Institutions Act was enacted in 1937 following a recent background of bank failures. The purpose of the act was to increase, not diminish, public protection. The history of § 115 illustrates that ground 2 (insolvency) was not intended to have the same meaning as ground 4 (refusal to pay deposits or obligations). To construe the statute otherwise would deny ground 2 any force or effect and make it meaningless. Since a bank can meet obligations and yet be near collapse because its liabilities exceed the fair market value of its assets, the appointment of a receiver under such circumstances was deemed necessary by the legislature. Ground 2 authorizes the appointment of a receiver by the court following a determination of the bank’s insolvency. It does not require that the court wait until the bank is without cash, its doors closed, its irretrievable position a subject of public knowledge, and the very catastrophe permitted to precipitate which the commission sought to avert by the proceedings below.
The finding of fact by the trial court that the liabilities of Public Bank exceeded its assets by $1,362,779.20 is supported by the record. Thus, ground 2 of § 115 of the MFIA empowered the trial court to appoint a receiver for the bank. We find no error in the trial court’s determination of fact or application of law.
Appellants contend that the appointment of FDIC as receiver was improper under Michigan and Federal statutory authority.
Two separate sections under the MFIA relate to the appointment of a receiver for a bank.
MFIA § 115 provides in part:
“Upon being satisfied that all or any of the grounds for the appointment of a receiver set forth in this section exist and that the interests of the depositors and creditors of the bank and other parties in interest render such action expedient, the commission, with the attorney general representing it, shall apply to the circuit court of the county in which said bank is located for the appointment of a receiver of the bank. Upon presentation to it of such application and upon its being satisfied that all or any of the grounds for the appointment of a receiver set forth in this section exist and that the interest of the depositors and creditors of the bank and other parties in interest render such action expedient, the said court shall immediately appoint a receiver for the bank who shall proceed to close the bank and enforce the personal liability of shareholders as provided for in section 59 of this act, if any exists, and require of the receiver so appointed such bond as the court deems proper. The court may appoint as receiver 1 of the bank examiners of the commission or some other competent and dis-. interested person who shall have the recommendation of the commission * * # (Emphasis added.)
MFIA § 125 specifically provides for the appointment of FDIC as receiver under the following circumstances :
“The federal deposit insurance corporation created by section 8 of ‘the banking act of 1933’ is hereby empowered, when authorised by the commission, to act as receiver without bond for any banking institution, the deposits in which are to any extent insured by said corporation, and which shall have been closed.
“The commission may, in the event of such closing, tender to said corporation the appointment as receiver of such banking institution, and if the corporation accepts said appointment, the corporation, as receiver, shall have and possess all the powers and privileges provided by the laws of this state with respect to a receiver of a banking institution and be subject to all the duties of such receiver, except insofar as such powers, privileges, or duties are in conflict with the provisions of ‘the banking act of 1933’.” (Emphasis added.)
Appellants contend that FDIC can be appointed as a receiver only under the authority of MF-IA § 125 and that MFIA § 115 does not authorize the appointment of FDIC as a receiver. Since no order of closing had been made or issued prior to the end of Public Bank’s working day on October 11, 1966, appellants argue that the appointment of FDIC as a receiver was unauthorized. We disagree.
MFIA §§ 115 and 125 were enacted to cover separate and distinct situations. If a bank is closed, § 125 empowers the commission, without the necessity of court proceedings, to tender the appointment as receiver to FDIC if the deposits of the closed bank are to any extent insured by FDIC. In contrast to § 125, § 115 applies to an involuntary proceeding in which the circuit court, upon application by the commission, appoints a receiver “who shall proceed to close the bank”. Thus, in a situation where the bank has not been closed, but one of the grounds enumerated under § 115 obtains, the court is empowered to appoint a receiver for the bank.
Although § 115 does not specifically state that FDIC must be appointed as the receiver, the court is authorized to “appoint as receiver 1 of the bank examiners of the commission or some other competent and disinterested person who shall have the recommendation of the commission”. Therefore, the issue as to whether the appointment of FDIC as receiver in the instant case was proper depends on whether FDIC qualified as a “competent and disinterested person”.
FDIC is a governmental agency, created by Congress for the purpose of insuring bank deposits and protecting depositors and the public interest in connection therewith. 12 USCA § 1811 et seq. Its management is vested in a board of three directors, one being the comptroller of the currency, and two appointed by the President of the United States, by and with the advice and consent of the Senate. 12 USCA § 1812. In addition to other purposes, FDIC was created “to promote soundness in banking”. Freeling v. Federal Deposit Insurance Corporation (WD Okla, 1962), 221 F Supp 955, 956. The fact that the FDIC insured the deposits of Public Bank would not preclude it from being appointed as a receiver for a state bank:
“Congress thus has authorized the FDIC to act simultaneously in the dual capacity of a federal insuror and as a state receiver.” Freeling v. Sebring (CA 10, 1961), 296 F2d 244, 245.
Although MFIA § 125 does not control the appointment of a receiver in the instant case because Public Bank had not been closed, the statute illustrates that the legislature did not consider FDIC’s position as an insurer to be in conflict with the duties imposed upon a receiver. Additionally, it should be noted that under the banking act of 1969, the legislature has once again expressed its opinion that FDIC possesses the very kind of interest which qualifies it to become a receiver of a state bank. The act provides in part:
“In any proceeding for the appointment of a receiver the commission shall request that the court appoint the federal deposit insurance corporation as the receiver if the deposits in the bank are insured to any extent by the corporation.” (Emphasis added.)
We conclude that FDIC does not have the type of interest which would disqualify it from being appointed by the court as a receiver under § 115. Rather, its expertise and qualifications, as well as its mandate to act for the protection of depositors, creditors and other interested parties is, in the contemplation of the legislature, the type of interest making it a preferred receiver.
Appellants assert that the appointment of FDIC as a receiver was error under Federal law in that no portion of the Federal Deposit Insurance Act invests FDIC with any general power to act as a receiver. Appellants contend that Congress has specifically empowered FDIC to accept the appointment as receiver of a state bank only in the following situation:
“(e) Whenever any insured State bank (except a District bank) shall have been closed by action of its board of directors or by the authority having supervision of such bank, as the case may be, on account of inability to meet the demands of its depositors, the Corporation shall accept appointment as receiver thereof, if such appointment is tendered by the authority having supervision of such bank and is authorized or permitted by State law.” 12 USCA § 1821(e). (Emphasis added.)
Since Public Bank met the demands of its depositors on October 11, 1966, appellants say that Federal law precluded FDIC from accepting the appointment as receiver.
The defect in appellants’ argument rests in its basic premise that “no portion of the Federal Deposit Insurance Act invests FDIC with any general powers to act as receiver”. The Federal Deposit Insurance Act sets forth the general powers of the FDIC and provides as follows:
“Upon June 16, 1933, the Corporation [FDIC] shall become a body corporate and as such shall have power—
“ * * * Ninth. To act as receiver”. 12 USCA § 1819(9). (Emphasis added.)
The foregoing is an explicit, unequivocal and unqualified grant of authority to FDIC to act as receiver. No other conclusion can be drawn from the statute. This section of the statute empowers FDIC with the authority to act as receiver even though the bank has not been “closed * # * on account of inability to meet the demands of its depositors”.
No conflict exists between 12 USCA § 1819(9) and 12 USCA § 1821(e). The former section entrusts the FDIC with the general power to act as a receiver. The latter section imposes the duty upon FDIC to accept the appointment as a receiver if tendered by the proper authority when the insured state-chartered bank is closed on account of inability to meet depositor demands. A reasonable interpretation of the statute would require the conclusion that FDIC must accept the appointment as receiver in situations covered by § 1821 and that it may, under the authority of § 1819, act as a receiver of a state bank in other situations.
Having decided that Public Bank was insolvent and that the FDIC could legally act as its receiver, we turn now to the question of whether the ex parte appointment of the FDIC violates the due process clauses of the Michigan and Federal Constitutions.
Preliminarily, we note that the Michigan Financial Institutions Act (MFIA) expressly dispenses with any notice requirement:
“Upon being satisfied that all or any of the grounds for the appointment of a receiver set forth in this section exist and that the interests of the depositors and creditors of the bank and other parties in interest render such action expedient, the commission, with the attorney general representing it, shall apply to the circuit court of the county in which, said hank is located for the appointment of a receiver of the bank. Upon presentation to it of such application and upon its being satisfied that all or any of the grounds for the appointment of a receiver set forth in this section exist and that the interest of the depositors and creditors of the bank and other parties in interest render such action expedient, the said court shall immediately appoint a receiver for the bank.” MCLA § 487.115 (Stat Ann 1957 Rev § 23.868) (Emphasis added.)
Pursuant to this section, Commissioner Slay applied to the circuit court to have the FDIC appointed as a receiver. Such appointment was made by Judge Burdick without notice to the bank or its stockholders, but providing for a later hearing at which time all parties would be afforded an opportunity to make objection. It is this failure to give notice which is claimed to be unconstitutional.
Appellants contend that due process requires notice and a hearing, citing a multiplicity of cases for this proposition. It cannot be disputed that in the ordinary case notice and an opportunity to be heard are constitutional prerequisites in any proceeding which is to be accorded finality. Milford v. People’s Community Hospital Authority (1968), 380 Mich 49. But it is equally indisputable that the regulation of banks and other such institutions burdened with a public trust have never been treated as an “ordinary case” — and rightfully so. The banking business, more than any other, has been the subject of the most careful scrutiny of regulatory agencies. The unique character and tradition of banking often justify the delegation of extremely broad discretionary powers to state banking commissioners which, if attempted elsewhere, would likely violate due process. 1 Davis, Administrative Law Treatise, § 4.04, p 247. It is with, this hack-ground in mind that we undertake to decide the constitutional issues here raised.
In the case of Fahey v. Mallonee (1947), 332 US 245 (67 S Ct 1552, 91 L Ed 2030), the Supreme Court faced an analogous issue. The Federal Home Loan Bank Board was authorized to appoint a conservator for any Federal Savings and Loan Association without a prior hearing “if it is in an unsafe or unsound condition”. When a conservator was appointed for the Long Beach Federal Savings and Loan Association, the constitutionality of the statute was challenged in a stockholder’s derivative action. The Court’s discussion lights the path which we choose to follow:
“The provisions are regulatory. They do not deal with unprecedented economic problems of varied industries. They deal with a single type of enterprise and with the problems of insecurity and mismanagement which are as old as banking enterprise. The remedies which are authorized are not new ones unknown to existing law to be invented by the Board in exercise of a lawless range of power. Banking is one of the longest regulated and most closely supervised of public callings. It is one in which accumulated experience of supervisors, acting for many states under various statutes, has established well-defined practices for the appointment of conservators, receivers and liquidators.
'7V* *ÍP
“A discretion to make regulations to guide supervisory action in such matters may be constitutionally permissible while it might not be allowable to authorize creation of new crimes in uncharted fields.
“The Board adopted rules and regulations governing appointment of conservators. They provided the grounds upon which a conservator might he named, and they are the usual and conventional grounds found in most state and federal banking statutes. They are sufficiently explicit, against the background of custom, to be adequate for proper administration and for judicial review if there should be a proper occasion for it.
“It is complained that these regulations provide for hearing after the conservator takes possession instead of before. This is a drastic procedure. But the delicate nature of the institution and the impossibility of preserving credit during an investigation has made it an almost invariable custom to apply supervisory authority in this summary manner. It is a heavy responsibility to be exercised with disinterestedness and restraint, but in the light of the history and customs of banking we cannot say it is unconstitutional”. Fahey v. Mallonee, supra, 250-254.
We can see no justification for a different rule in the case of a state bank than was applied in the Fahey case to a Federal Savings and Loan Association. Each case deals with an institution charged with a public interest; each provides for a later hearing at which objections may be made. We are convinced that the same considerations which prompted the regulation in the Fahey case are also present in this case and require the same result. We hold that the MFIA in furtherance of the regulation of banks and banking may constitutionally provide for the ex parte appointment of a receiver upon the application of the commissioner of banking. For other cases allowing ex parte appointment see: Granader v. Public Bank (CA 6, 1969), 417 F2d 75; Greater Delaware Valley Federal Savings and Loan Association v. Federal Home Loan Bank Board (CA 3, 1958), 262 F2d 371; Title Guaranty & Surety Company v. Idaho (1916), 240 US 136 (36 S Ct 345, 60 L Ed 566); Tuller v. Wayne Circuit Judge (1928), 243 Mich 239.
Appellants next contend that even if the appointment is valid, the ex parte sale of assets to Commonwealth is violative of dne process. Again appellants rely on the dne process argument and we reiterate that exigent circumstances such as the impending, catastrophic failure of a large state bank may modify the usual requirements of due process.
With respect to the sale of the assets of a state bank, the MFIA provides in part:
“The receiver, under the direction of the commission, shall take possession of the books, records, and assets of every description of such bank, collect all debts, dues, and claims belonging to it, and, upon the order of a court of competent jurisdiction may sell or compound any or all bad or doubtful debts, and, on a like order, may sell any or all the real and personal property of such bank, on such terms as the court shall direct; * * * ”. MCLA § 487.116 (Stat Ann 1957 Rev § 23.869) (Emphasis added.)
This language clearly encompasses an order to sell ex parte. Dugger v. Cox (1938), 110 F2d 834. Within hours after its appointment, the FDIC submitted to the circuit court for its approval “Agreement B” which provided for the sale of Public’s assets to Commonwealth. This agreement had been approved by the directors of both banks, but had not been submitted to the stockholders due to a problem with the proxy statement. Appellants now claim that the court’s approval of Agreement B without notifying them violated due process. This claim is without merit.
In Minichello v. Saxon (MD Pa, 1967), 266 F Supp 279, a sale of the assets of a national hank with only director approval was upheld. The National Banking Act provides that the comptroller of currency may waive shareholder approval of the sale of the assets of a national bank where he determines that an “emergency” exists and may proceed with only the approval of the directors. The court there determined that an emergency exists when imminent danger of insolvency requires prompt action to safeguard the value of the assets. That case permits action similar to that now claimed to be unconstitutional even without a finding of insolvency. The justification is the protection of the public:
“It would appear further that section 181 which requires the purchasing bank to assume the deposit liabilities of the selling bank was designed to permit a troubled bank, heading towards a possible insolvency and being in the midst of an emergency, to move swiftly through its directors, to sell its assets to another bank which would give the selling bank’s depositors one hundred per cent protection on all deposits, regardless of size”. Minichello v. Saxon, supra, 286.
The parallel between the Minichello case and this one is obvious. On October 11, 1966, the Public Bank was found to be insolvent. This situation constituted a grave emergency since, inter alia, there were over ten million dollars in uninsured deposits. Swift action was required to protect the creditors and depositors of Public. Commonwealth’s offer to assume all liabilities afforded this protection, but the offer to purchase was conditioned upon Public’s continued normal operation. The probable result of notice of the receivership proceedings would be a “run” on the hank thus dashing any hope of consummating a sale to Commonwealth. It is not contended that the terms of the sale were unfair to Public, nor is it contended that anyone had made a better offer. Further, the circuit court provided for a subsequent hearing at which objections to the sale could he made; this hearing extended over approximately 42 hearing days giving all parties ample opportunity to present their positions. In light of the history and tradition of hank regulation, reason and logic as well as judicial precedent dictate that due process does not require notice when such is likely to precipitate a run on a major hank. Indeed, the giving of notice in such cases would defeat the very purpose of notice, i.e., to safeguard the interests of all parties. We hold that the proceedings of October 11 and 12 were not constitutionally infirm for the reasons urged by appellants. On the contrary, they were the only feasible means of handling a potentially disastrous hank failure.
Finally, defendants assert several procedural errors allegedly in violation of designated state and local court rules as basis for appellate relief. We have affirmed the finding of the trial court that Public Bank was insolvent October 11, 1966, and we have found no constitutional infirmity in the sale of Public’s assets to Commonwealth. These determinations necessarily influence our review of the procedural errors presented by these appeals. In addition, we find the following peculiarly applicable to these appeals:
“Rules of practice and procedure are exactly that. They should create no rights and should he thought of as indicating the way in which justice should be administered. They should give direction to the process of administering justice but their application should not become a fetish to the extent that justice in an individual case is not done. There is a need for guides and standards. They must be followed but they must always be thought of as guides and standards to the means of achieving justice, not the end of justice itself”. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 15, Committee Notes.
“While this Court should and does give due regard to its own rules, the promulgation thereof cannot shackle the powers of this Court to do that which ought to be done if otherwise within the powers of the Court.” St. John v. Nichols (1951), 331 Mich 148, 159. Adopted by the Court of Appeals in Guastello v. Citizens Mutual Insurance Company (1968), 11 Mich App 120, 137.
Except for the effect on these proceedings of the disqualification of Judge Burdick under G-CR 1963, 405, we perceive no purpose to be served by a detailed discussion of the several procedural errors complained of. Assuming the errors, our prior determinations in this opinion and the facts of this case preclude a holding that any or all of such errors constitute a basis for reversal.
Judge Burdick was not disqualified when he found Public Bank insolvent nor when he appointed a receiver for the insolvent bank. His technical disqualification arose when he appointed a law firm, of which his son-in-law was a member, as one of two legal representatives for the receiver. There is no claim that the son-in-law had anything to do with this litigation. Thereafter, Judge Burdick approved the sale of Public’s assets to Commonwealth according to an agreement already approved by Public’s board of directors. To hold that the taint of disqualification was sufficient to overturn what amounted to no more than judicial approval of Public’s prior agreement would be absurd. We find no error or defect in these proceedings which affects the substantial rights of defendants. GrCR 1963, 13.
Affirmed.
It is noted that a director of Public was affiliated with one of these sources.
MCLA § 487.115 (Stat Ann 1957 Rev § 23.868).
Appellants suggest that the decision in Insurance Commissioner v. American Life Ins. Co. (1939), 290 Mich 33, decided subsequent to the enactment of the MFIA, requires this Court to accept the definition of bank insolvency as set forth in the cases cited by the appellants. We disagree. The issue presented in American Life Insurance relates to the insolvency of an insurance company and a determination of that issue based upon the insurance code, not the MFIA. The reference by the court to the definition of bank insolvency, as defined in Greene v. Ancient Order of Gleaners (1934), 267 Mich 488, is merely obiter dictum.
Rehearing denied (1949), 177 F2d 514.
PA 1929, No 66, § 62 (CL 1929, § 11959).
Under federal law, 12 USCA §1821 (e), FDIC is compelled to accept the appointment as receiver if a bank has been closed on account of its inability to meet the demands of its depositors.
MCLA 1970 Cum Supp §487.551 (Stat Ann 1970 Cum Supp § 23.710 [251]).
12 USCA § 1811 et seq.
MCLA § 487.1 et seq. (Stat Ann 1957 Rev § 23.711 et seq.).
24 CFR 1943 Supp § 206.1(2).
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Per Curiam.
Appellant Gerald Hershberger is an attorney who has been practicing law ont of his home in the City of Troy. He desired to construct a second building on the property (variously referred to as an addition and a new house) in which to carry on his law practice. No building permit was obtained prior to construction and the city issued a stop work order and commenced an action against the appellant seeking injunctive relief to enforce the city’s zoning ordinances. As a result of this action, construction of the building was found to be illegal and was also determined a nuisance per se for not complying with the city’s zoning ordinances. A mandatory injunction was issued requiring construction to be stopped and that the building be torn down within 90 days. The judgment in that case was stayed pending appeal.
Subsequent to appellant’s appeal from the mandatory injunction he filed an application for a building permit for residential use of the building. The City of Troy denied this permit, alleging that the issue was res judicata,, and the trial judge agreed, granting its motion for a summary judgment. Appellant also filed an appeal from that judgment.
In the trial of the cause below the circuit judge found that the subject building was illegally constructed without benefit of a building permit and contrary to the zoning ordinance of the City of Troy; that the zoning ordinance was constitutional and bore a direct relationship to the protection of the health, safety, and welfare of the general public; that the City of Troy did not discriminate against appellant in the enforcement of the zoning ordinance ; and that the zoning ordinance is not confiscatory, arbitrary, or unreasonable as applied to the appellant’s premises. Appellant, inter alia, alleges that these findings hy the circuit judge were in error and therefore it was improper to declare the building a nuisance per se and order its demolition. Appellant’s allegations are devoid of merit.
It appears plain from the briefs and records that before the attempted construction of the building in question the appellant’s use of his house as a law office was a nonconforming use. In 1965 he apparently attempted to obtain a building permit to expand his office space, such application being denied as an attempted expansion of a nonconforming use. Construction on the building which has been ordered destroyed was begun without a building permit and was clearly a violation of the city’s zoning ordinance. With these facts in mind the action brought by the city to have it torn down was reasonable and the trial judge’s rulings were proper.
Appellant also alleges in substance that he was discriminated against by the city because he was not given a variance and because no objection has been made to other business uses in the City of Troy. It appears that this allegation also is devoid of merit. The appellant at the time of trial had not applied for a building permit nor a variance for the present structure. (In 1965 he apparently had applied for a building permit and it was denied as an expansion of a nonconforming use.) All the other business owners in the area had applied for and had been granted variances or their businesses were in operation before the city’s zoning ordinance was passed. Upon these facts we hold that the appellant was clearly not discriminated against.
After appellant’s building was ordered torn down, and pending a decision on appeal from that order, appellant applied for a residential building permit for the same building. The city refused on the basis that the issue was res judicata and on appeal to the circuit court the oral motion of the City of Troy for summary judgment was granted.
Appellant next filed a motion for a peremptory order in this Court which was denied. We then consolidated the cases for hearing and decision.
With regard to the second action brought by appellant, this Court in Knibbe v. City of Warren (1966), 2 Mich App 241, 244 stated the rule here applicable:
“ ‘It is a well-settled general principle, that the judgment of a court of competent jurisdiction directly upon the point, is, as a plea, a bar, or as evidence conclusive, between the same parties, or their privies, upon the same matter directly in question in another court, and that no matter once litigated and determined, by proper authority, shall a second time be brought in controversy between the same parties or their privies. [Citing cases.] Such has ever been the rule, and although the object and the subject matter of the two suits or proceedings be different, yet the judgment of a Court of competent jurisdiction upon a particular matter, fact or point, once litigated and determined, is conclusive between the parties, or their privies.’ ” [Emphasis in the original.]
Appellant concedes the validity of the above rule, but asserts that it is not applicable where the prior case has been appealed. The rule in Michigan is that a judgment pending on appeal is deemed res judicata. 14 Michigan Law & Practice, Judgment, § 176, p 620. Only in a case where the second appeal itself prevents the prior judgment from being operative is the res judicata effect of the prior judgment inoperative. McHugh v. Trinity Bldg. Co. (1931), 254 Mich 202. The instant case does not come with in that narrow exception. Appellants having failed to state a claim upon which relief could be granted in the second case, the motion for summary judgment was properly granted. GOB 1963, 117.2.
For the reasons stated above, the decisions of the court below in both cases are affirmed.
Affirmed.
There were two appellants, but throughout this opinion the singular is used to refer to the active appellant, Mr. Hershberger. | [
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Holbrook, P. J.
Defendant was convicted in the circuit court for Ottawa County before a jury of distributing a lewd, obscene, indecent and filthy article in a weekly college newspaper of which he was the editor, contrary to MCLA § 750.343a (Stat Ann 1970 Cum Supp § 28.575 [1]).
Defendant was sentenced to pay costs of $100 and, after denial of his motion for a new trial, has appealed to this Court.
The statute under which defendant was convicted and the test to be applied to determine obscenity is stated as follows:
“Any person who knowingly either sells, lends, gives away, distributes, shows or transmutes or offers either to sell, lend, give away, distribute, show or transmute, or has in his possession with intent either to sell, lend, give away, distribute, show or transmute, or advertise in any manner, or who otherwise knowingly offers for either loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy or indecent, sadistic or masochistic book, magazine, pamphlet, newspaper, story paper, writing, paper, phonograph record, picture, drawing, photograph, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of an indecent character which may or may not require mechanical or other means to be transmuted into auditory, visual or sensory representations of such character, shall be guilty of a misdemeanor, and upon conviction shall be punished by imprisonment in the county jail for not more than 1 year or by a fine of not more than $1,000, or by both such fine and imprisonment.” (Emphasis supplied.) MCLA § 750.343a (Stat Ann 1970 Cum Supp § 28.575[1]).
“The test to be applied in eases under section 343a of this act shall not be whether sexual desires or sexually improper thoughts would be aroused in those comprising a particular segment of the community, the young, the immature or the highly prudish, or would leave another segment, the scientific or highly educated or the so-called worldly wise and sophisticated, indifferent and unmoved. But such test shall be the effect of the book, picture or other subject to complaint considered as a whole, not upon any particular class, but upon all those whom it is likely to reach, that is, its impact upon the average person in the community. The book, picture or other subject of complaint must be judged as a whole in its entire context, not by considering detached or separate portions only, and by the standards of common conscience of the community of the contemporary period of the violation charged.” MCLA § 750.343b (Stat Ann 1970 Cum Supp § 28.575 [2]).
There is no question as to the fact that the defendant was the editor and caused to be distributed the newspaper and the article in question, “A Typical Day in the Life of J. Oswald Jones.”
Defendant raises two issues on appeal which we restate as follows:
1. Whether the criminal obscenity statute permits the selection of one story from the challenged material, a newspaper, and the submission of that one story to the jury apart from the newspaper as a whole?
2. Was the story, “A Typical Day in the Life of J. Oswald Jones”, obscene in the constitutional sense?
Defendant does not contest the fact that the statute fully complies with the constitutional re quirements as set forth in Roth v. United States (1957), 354 US 476 (77 S Ct 1304, 1 L Ed 2d 1498).
I
The newspaper as a whole consists of four pages. The writing involved as charged in this offense appears on the last page and is entitled “A Typical Day in the Life of J. Oswald Jones” (J. Oswald Jones, an autobiography) by James Wasserman. In addition to this article, on the last page are three poems and an advertisement of one of the theatres. The story is complete in itself, does not refer to any other part of the newspaper and we conclude that under the language of the statute that the story in question was a “writing” complete in itself and is not saved from prosecution because of other material printed in the newspaper which may not be objectionable.
II
No objections have been made to the instructions of the court to the jury and therefore we consider the matter properly submitted for determination. In Roth v. United States, supra, the law on obscenity is thoroughly considered and is applicable to the case herein. Obscenity is not protected by the First Amendment to our Federal Constitution. A reiteration of the story in question in this opinion would not be of benefit to the decision nor to those who might read it. Suffice it to say that we agree with the trial judge in his ruling on the motion for a new trial wherein he stated:
“In the opinion of the court there was ample room for the decision of the jury on the facts.”
In the case of Memoirs v. Massachusetts (1966), 383 US 413 (86 S Ct 975, 16 L Ed 2d 1), obscenity was defined as follows at p 418:
“We defined obscenity in Roth in the following terms: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’ 354 US, at 489 (77 S Ct at 1311, 1 L Ed 2d at 1509). Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.”
After reading the story, “A Typical Day in the Life of J. Oswald Jones”, we are constrained to rule that the trial judge was correct and that there was ample evidence presented to the jury for them to determine the defendant guilty of the offense charged.
Affirmed.
Munro, J., concurred. | [
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Per Curiam.
The people move to affirm (GCR 1963, 817.5 [3]) defendant’s October 29, 1969 conviction, on plea of guilty, of larceny from the person, contrary to MCLA §750.357 (Stat Ann 1954 Rev § 28.589), and the six to ten year sentence imposed on him November 21, 1969.
Defendant’s sole contention on appeal is that the court did not sufficiently inquire into the nature of defendant’s acts in order to ascertain the truth of the plea. Specifically, defendant argues that the court’s examination of defendant did not establish defendant’s felonious intent.
Before accepting a plea of guilty, the court is not necessarily required to advise the defendant of all of the elements of the offense, People v. Melvin (1969), 18 Mich App 652, nor is it necessary that the court elicit from defendant a narration of all of the elements of the crime. People v. Bartlett (1969), 17 Mich App 205. It is sufficient if the court satisfies itself from the record that there is a factual basis for the plea.
Our examination of the record in this case convinces us of the truthfulness of the plea.
It is manifest that the question sought to be reviewed, upon which decision of the cause depends, is so unsubstantial as to need no argument or formal submission.
Motion to affirm is granted. | [
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Per Curiam.
Defendant was found guilty by a jury of robbery armed and sentenced to a term of 5 to 15 years in prison. Four issues are raised by defendant in this appeal.
The defendant’s first contention is that he was unduly restricted in the scope and degree of cross-examination of the complaining witness, and was thereby restricted in his attempt to discredit that witness. It is the well-established rule in this state that the scope and degree of cross-examination into collateral subjects and areas is within the sound discretion of the trial court. People v. Harry Fleish (1948), 321 Mich 443; People v. Weems (1969), 19 Mich App 553. In the instant case, the record clearly shows the trial court’s willingness to allow the defendant a broad scope in his collateral attack upon the witness’s credibility. The trial court did, however, find that at times the areas encompassed by the questions were too far removed from present considerations; and at those points, the trial court restricted the defendant’s cross-examination. The record indicates that the trial court used sound discretion in limiting the scope of the cross-examination.
The second contention is that the' in-court identification of the defendant by the victim was tainted by the use of a “mug shot” by the police during the investigation. No objection was made to the in-court identification and there is nothing in the record to indicate that the police improperly used the photographs. This assignment of error is without merit.
The third contention is that the prosecutor made a prejudicial comment in his closing argument. The record indicates that the comment was a proper inference drawn from the evidence before the jury. In any event, there was no objection to the prosecutor’s comment at the trial level; therefore, the question is not properly raised for the first time on appeal. People v. Montgomery (1970), 22 Mich App 87.
The last contention is that the trial court erred by instructing the jury as to the failure of the defendant to take the stand. The instruction given by the trial court was favorable to the defendant. The trial court may on its own motion give a favorable instruction with reference to the defendant’s right to not take the stand. People v. Waters (1969), 16 Mich App 33. The instruction given by the trial court was proper; therefore, the denial of a motion for mistrial, based upon that instruction, was proper.
Affirmed.
MCLA § 750.529 (Stat Ann 1962 Rev § 28.797). | [
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J. H. Gillis, P. J.
These three cases were consolidated on appeal on this Court’s motion. They deal with related issues which call upon this Court to determine whether the defendants in publishing the material involved in this litigation violated Michigan’s obscenity statute and to determine whether the statute as sought to be applied against the defendants conflicts with the restrictions on state action imposed by the First and Fourteenth Amendments to the Federal Constitution. In No 6401, in addition to the Federal challenge, the defendants assert that the Michigan obscenity statute violates the Michigan Constitution of 1963, art 1, §§ 5 and 17.
Our obscenity statute proscribes the publication of “any obscene, lewd, lascivious, filthy or indecent, sadistic or masochistic” material. MCLA § 750.343a (Stat Ann 1970 Cum Supp § 28.575[1]). We have no difficulty or hesitation in branding as obscene, within the meaning of this statute, the material which the defendants are charged with publishing in these three cases. The words and pictures of the material, taken as a whole, have a strong tendency to arouse lustful thoughts and sexual desires in the average person in the community and the material is offensive to the common conscience of the community. These are not borderline publications and analysis of the material here would serve no useful purpose. Were it not for the constitutional questions presented, we would affirm the convictions in all three cases without further discussion.
Defendants have failed to articulate an argument to support their due process claim under the Mich igan Constitution. Nor do we see any merit to their position. For example, defendants assert in support of their due process claim that MCLA § 750.343b (Stat Ann 1970 Cum Supp § 28.575[2]) “is not couched in terms laid down by Roth.” Yet the statute is, almost verbatim, the jury instruction approved in Roth v. United States (and Alberts v. California) (1957), 354 US 476 (77 S Ct 1304, 1 L Ed 2d 1498).
Just as language contained in a statute or court opinion is not necessarily appropriate for use in a jury instruction, cf. In re Wood Estate (1965), 374 Mich 278, the language of a jury instruction proper under the specific facts of one case does not neces sarily become appropriate for use in a statute. Section 343b does not qualify as a model of legislative draftsmanship, but it certainly is not void for any reasons stated in Roth or advanced by defendants.
In No 6401, defendants argue that the obscenity statute is void for vagueness. This legislation was adopted in reaction to Butler v. Michigan (1957), 352 US 380 (77 S Ct 524, 1 L Ed 2d 412), which declared Michigan’s former obscenity statute unconstitutional, and, as we have noted, Roth-Alberts, supra. The legislature did not attempt to define obscenity in either the former or the present statute. This is in the tradition of the common law which leaves obscenity, like fraud, due care, and other concepts difficult to define, to be delineated by the courts on a case-by-case basis. Roth fully supports this practice.
“Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. The Constitution does not require impossible standards; all that is required is that the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark boundaries sufficiently distinct for judges and juries fairly to administer the law. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.” Roth v. United States, supra, at 491, 492 (77 S Ct at 1312, 1313, 1 L Ed 2d at 1510, 1511). [Citations and interior quotation marks omitted.]
Finally, defendants contend — and this is the only point that requires extended treatment — that Michigan’s obscenity statute offends their right of free speech as guaranteed to them by the First and Fourteenth Amendments of the United States Constitution. Any discussion of this subject must start with Roth-Alberts. The dispositive question there was “whether obscenity is utterance within the area of protected speech and press.” Roth v. United States, supra, at 481 (77 S Ct at 1307, 1 L Ed 2d at 1505). In holding that obscenity was not so protected, the Court said:
“[I]mplicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all the 48 states, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956.” Roth v. United States, supra, at 484, 485 (77 S Ct at 1309, 1 L Ed 2d at 1507).
Roth-Alberts dealt with two cases, one an appeal from a conviction of violating a Federal obscenity statute, and the other an appeal from a conviction under a state obscenity statute. No issue was presented in either case concerning the obscenity of the material before the Court. Nonetheless, the Court undertook to define obscenity.
“Obscene material is material which deals with sex in a manner appealing to prurient interest.” Roth v. United States, supra, at 487 (77 S Ct at 1310, 1 L Ed 2d at 1508).
With hindsight sharpened by the experience that state and Federal courts have had with this problem in the 13 years since Roth-Alberts, we believe that in defining obscenity there, the Supreme Court made two fundamental errors — errors which have contributed to, if not caused, the disharmony among the justices of the Supreme Court ever since.
The first error was the attempt to define obscenity at all. Resolution of the two cases before it did not require the Court to offer a definition and, in giving the definition that it did, the Court failed to distinguish between Both, a Federal prosecution, and Alberts, a state prosecution.
The Court failed to pay attention to the provisions of the two obscenity statutes involved. Despite the differences in language, the Court seemed to think that its definition of obscenity applied in both cases. In the Federal prosecution, the Court could interpret' the statute any way it wanted to, whatever the wisdom of the situation required, but it had no right to so distort the meaning of the state statute before it. See the separate opinion of Justice Harlan in Roth-Alberts, supra, at 496-508 (77 S Ct at 1315-1321, 1 L Ed 2d at 1513-1520), concurring in part and dissenting in part.
The primary obligation to define obscenity in a state prosecution rests with the state, either through its legislature or its courts. The only function of the Supreme Court in this area is to determine whether that definition is, in the circumstances of the case before it, consistent with the defendant’s rights to due process and free speech. Justice Harlan stated it well in his dissenting opinion in Memoirs v. Massachusetts (1966), 383 US 413, 458 (86 S Ct 975, 997, 16 L Ed 2d 1, 28):
“State obscenity laws present problems of quite a different order. The varying conditions across the country, the range of views on the need and reasons for curbing obscenity, and the traditions of local self-governments in matters of public welfare all favor a far more flexible attitude in defining the bounds for the States. From my standpoint, the Fourteenth Amendment requires of a State only that it apply criteria rationally related to the accepted notion of obscenity and that it reach results not wholly out of step with current American standards. As to criteria, it should be adequate if the court or jury considers such elements as offensiveness, pruriency, social value and the like. The latitude which I believe the States deserve cautions against any federally imposed formula listing the exclusive ingredients of obscenity and fixing their proportions” (Emphasis supplied.)
In Both-Alberts and the ensuing obscenity decisions of the Supreme Court, a majority of the justices recognize the right of the states to regulate and prohibit the publication of obscene materials, but, at the same time, most of them would require that the right to regulate obscenity be exercised within the framework of a Federal definition of obscenity. In our view the two principles are mutually exclusive. In attempting to reconcile them the Court set itself an impossible task which has resulted in the babble of opinions emanating from that Court over the past dozen years.
We do not mean to say that the state obscenity regulations are or should be free of any federal control, but we do believe that the state’s definition of obscenity must be accepted by the Federal courts and a Federal court’s sole function is to determine whether, in its application, the obscenity statute treads upon any legitimate constitutional interests of the defendant on trial.
The second fundamental error in the Court’s approach was its focus upon the material involved rather than the defendant on trial. It is the right of the defendant to publish, rather than the right of the material to be published, which should have been examined by the Court. But the Court attempted to define obscenity in an abstract manner without reference to the motives of the publisher. This flaw in the reasoning of the Court was pointed out in the separate concurring opinion of Chief Justice Warren:
“It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the material is, of course, relevant as an attribute of the defendant’s conduct, but the materials are thus placed in context from which they draw color and character.” 354 US at 495 (77 S Ct at 1314, 1315, 1 L Ed 2d at 1513).
Indeed, it was only on the basis of the publisher’s state of mind that the Supreme Court was able to affirm the obscenity conviction in Ginzburg v. United States (1966), 383 US 463, 474, 475 (86 S Ct 942, 949, 16 L Ed 2d 31, 40):
“The fact that each of these publications was created or exploited entirely on the basis of its appeal to prurient interests strengthens the conclusion that the transactions here were sales of illicit merchandise, not sales of constitutionally protected matter.”
Jacobellis v. Ohio (1964), 378 US 184 (84 S Ct 1676, 12 L Ed 2d 793); Memoirs v. Massachusetts, supra; Ginzburg v. United States, supra; and Redrup v. New York (1967), 386 US 767 (87 S Ct 1414, 18 L Ed 2d 515), rehearing denied (1967), 388 US 924 (87 S Ct 2091, 18 L Ed 2d 1377), taken together with the dozens of per curiam reversals by the Supreme Court relying solely upon Bedrup, have led some to assume — quite incorrectly — that the Supreme Court has adopted a stringent three-pronged constitutional restriction on the right of a state to regulate obscenity. For example, the people’s brief here states that the rule set down by the United States Supreme Court to determine the question of obscenity is: (1) the dominant theme of the material taken as a whole appeals to a prurient interest in sex, (2) it is utterly without redeeming social value, and (3) it is patently offensive because it affronts the contemporary community standards. This test was apparently taken from one of the opinions in Memoirs v. Massachusetts, supra, hut that opinion was signed by only three justices of the Supreme Court.
We relied upon the same opinion to promulgate a similar rule in People v. Billingsley (1969), 20 Mich App 10. There, while we recognized that no constitutional test of obscenity has been enunciated by the Supreme Court since Both, we followed Luros v. United States (CA 8, 1968), 389 F2d 200, 205, where the Court said:
“[T]here is specific indication that a majority of the Supreme Court adopts standards ‘not dissimilar’ to banning only ‘hard-core’ pornography.”
The writer of this opinion reluctantly concurred in the result in Billingsley because he felt bound to do so by the decisions of the United States Supreme Court. Upon a closer reading of these cases and their divergent opinions, he now confesses that he was wrong.
The Supreme Court has not yet devised a rule of law in this area approved by a majority of the justices so that it could be considered a decision of the Court binding upon all lower Federal and state courts. The Court frankly acknowledged its division in Redrup in a brief per curiam opinion summarizing the individual views of the justices. We view Redrup and its progeny simply as ad hoc decisions — a coalition of the divergent views of a majority of the justices that First and Fourteenth Amendment rights had been violated in a particular case. In these cases no rationale of decision has commanded the support of five justices; the individual views of the justices cannot be relied upon as stare decisis.
“It is unnecessary to state the reasons [for and against] because the Court is divided on it, and, consequently, no principle is settled.” The Antelope: The Vice-Consuls of Spain and Portugal, Libellants (1825), 23 US (10 Wheat) 66, 126 (6 L Ed 268, 283).
“No attempt will be made to analyze [the cases] or to decide on their application to the case before us, because the judges are divided respecting it. Consequently, the principles of law which have been argued cannot be settled * * * .” Etting v. Bank of United States (1826), 24 US (11 Wheat) 59, 78 (6 L Ed 419, 423).
In the absence of any definitive ruling by the United States Supreme Court, we propose a test today to determine the free speech right of a defendant in an obscenity trial. The test is this: Given that the published material is obscene within the meaning of a state statute, not void for vagueness, the publisher of the material loses any claim to protection under the First and Fourteenth Amendments if his primary intent in publishing the material was to appeal to the recipient’s prurient interest in sex.
We think such a test is consistent with the expressed philosophy of a majority of the justices of the Supreme Court who have wrestled with the obscenity-free speech problem during the past 13 years.
Specific intent of the defendant would thus become a factual question for determination by the jury under appropriate instructions from the court. As in any specific-intent criminal prosecution, the intent of the defendant need not be proven directly but can be inferred from his conduct, the nature of the material involved, and the setting in which it was published.
Had the test which we announced today been used by the Supreme Court in Ginzburg, it would have allowed the Court there to reach its result without the tortured logic it was required to use under the divers definitions of obscenity proposed from time to time by the several justices. Pandering, by itself, would not transform material outside the definition of our obscenity statute into material within the definition but it would, of itself, be sufficient to sustain a finding by a jury that the defendant’s primary purpose was to appeal to the prurient interest of the reader.
The material itself might be of controlling evidentiary force in determining the question of intent. It would not have to be hard-core pornography. A nudist magazine, featuring photographs of devotees practicing their recreation, might not, without more, be of sufficient probative force to establish the seller’s intent. However, if the magazine contains many pictures which tend to emphasize the genitalia by the posings of the subjects; the accompanying text is either totally unrelated to the photographs or is full of double-meaning sentences and phrases; and there is proof of the publisher’s knowledge of the nature of the material, this would be sufficient evidence to sustain a finding of his primary intent to appeal to the prurient interests of the reader. Similarly, the so-called art magazines with nude forms posed in a manner to emphasize repetitiously the reproductive organs, with models posed in a series of 10 to 15 photographs, commencing fully clothed and ending fully unclothed — a pictorial striptease, so to speak — would be sufficient to sustain a finding by a jury that the publisher’s intent was to arouse the reader’s prurient interest in sex rather than to furnish him with instructions in the human anatomy useful for pursuit of art. The fact that the material was substantially overpriced considering the quality of the printing or the writing, or its literary worth or artistic value would be a factor which could be presented to the jury as bearing on the question of intent.
The setting in which the material is published would be relevant on the question of the defendant’s intent. For example, a medical text book minutely describing in words and photographs the reproductive organs of a man and a woman or a handbook on sexual techniques with explicit drawings or photographs, designed for the use of married couples or marriage counselors and psychiatrists to assist their patients would not be obscene if sold for such a purpose. If, however, such material had been commercially exploited to the general public by a book store operator and the jury found, under appropriate instructions and upon sufficient evidence, that the operator of the book store in doing so intended to appeal to the prurient interests of the buyers rather than to any legitimate need for medical information, then in such circumstances he would lose his protection under the First and Fourteenth Amendments and could be convicted.
Defendants urge, with the support of several lower federal court decisions, that material must be utterly without redeeming social value before it can be branded as obscene. We would normally accord great weight to the decisions of the lower Federal courts in the area of Federal constitutional law, but they are not binding on us, particularly in view of the unsettled nature of the law of obscenity. Cf. Schueler v. Weintrob (1960), 360 Mich 621, 633, 634. We reject such a rule as being unsound. It would create a loophole large enough to allow passage of a truckload of pornography as the smut peddlers have already discovered. The argument was refuted to our satisfaction in Justice Clark’s dissenting opinion in Memoirs v. Massachusetts, supra, at 441-443 (86 S Ct at 989, 990, 16 L Ed 2d at 18-20):
“While there is no majority opinion in this case, there are three Justices who import a new test into that laid down in [Roth], namely, that ‘[a] book cannot be proscribed unless it is found to be utterly without redeeming social value.’ I agree with my Brother White that such a condition rejects the basic holding of Roth and gives the smut artist free rein to carry on his dirty business. My vote in that case — which was the deciding one for the majority opinion — was cast solely because the Court declared the test of obscenity to be: ‘whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’ I understand that test to include only two constitutional requirements: (1) the book must be judged as a whole, not by its parts; and (2) it must be judged in terms of its appeal to the prurient interest of the average person, applying contemporary community standards. Indeed, obscenity was denoted in Roth as having ‘such slight social value as a step to truth that any benefit that may be derived * * * is clearly outweighed by the social interest in order and morality * * * .’ Moreover, in no subsequent decision of this Court has any ‘utterly without redeeming social value’ test been suggested, much less expounded. * * # The first reference to such a test was made by my Brother Brennan in [Jacobellis] seven years after Roth. In an opinion joined only by Justice Goldberg, * * * he proceeded to add: ‘We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is “utterly without redeeming social importance.” ’ ” (Citations omitted.)
Neither the First nor the Fourteenth Amendments in our view prohibits a state from punishing the publication of books and pictures where the primary purpose of the publisher is to appeal to the prurient interest of the recipient. Staying with the example of the medical text book, it has an obvious social value and the constitution would not allow its suppression by the state. But we perceive no social value in allowing such a book to be published solely for the purpose of appealing to the prurient interest of the reader. Likewise, we see no constitutional objection to a state statute which makes criminal the publication of such a book with such intent.
In such an instance, the state is suppressing not the book but antisocial conduct connected with the book. The constitution does not place books beyond all control of the states. If the pages of a book are lit intentionally to set fire to a building, the act may be punished as arson. If those same pages are published for the primary purpose of arousing lustful thoughts, the act may be punished as obscenity. In the latter case, we are talking of a book qua book. But this is not a difference in which we perceive a constitutional distinction.
It is the view of Justice Black and Justice Douglas that the First Amendment, made obligatory on the states by the Fourteenth Amendment, has a “broad sweep” which practically denies the states any power to regulate obscenity. In Roth v. United States, supra, at 508 (77 S Ct at 1321, 1 L Ed 2d at 1520), their dissent said:
“When we sustain these convictions, we make the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader. # * # By these standards punishment is inflicted for thoughts provoked, not for overt acts nor antisocial conduct.”
Under our decision today, what is punished is not the prurient thoughts provoked by the material but the intention of the defendant to provoke such thoughts and his exploitation of the provocative nature of the material.
We are required by the Michigan law to judge the material “by the standards of common conscience of the community of the contemporary period of the violation charged.” MCLA § 750.343b, supra. Defendants argue that this refers to a national standard and not a local standard. To this end they were allowed to introduce evidence that the material upon which the prosecution was based was sold in other states without sanction.
We believe, as the lower court did, that the legislature was referring to a local community standard. Such a standard is appropriate and consistent with the constitution. This is the view of Chief Justice Warren and Justice Clark in their opinion in Jacobellis, supra.
“It is my belief that when the Court said in Both that obscenity is to be defined by reference to ‘community standards’, it meant community standards— not a national standard, as is sometimes argued. I believe that there is no provable ‘national standard’, and perhaps there should be none. At all events this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one. It is said that such a ‘community’ approach may well result in material being proscribed as obscene in one community but not in another, and, in all probability, that is true. But com munities throughout the Nation are in fact diverse, and it must he remembered that, in cases such as this one, the Court is confronted with the task of reconciling conflicting rights of the diverse communities within our society and of individuals.” 378 US at 200, 201 (84 S Ct at 1685, 12 L Ed 2d at 805).
Since the jury is the ultimate judge of the facts in a case, to require them to determine what the national standard is would be to saddle them with an impossible task. A jury in Petoskey would know the standards of the Petoskey community, but, even if each member were well traveled, it would have a hard time in defining a national standard taking into consideration the alleged permissiveness of Las Vegas and the alleged puritanism of Boston.
Assuming a national standard, each well-tried obscenity case would devote at least a week just to the question of community standards. It would require expert witnesses from the four corners of the nation. The burden of such a trial would be as onerous to the defendant as to the state.
Citing Pennekamp v. Florida (1946), 328 US 331 (66 S Ct 1029, 90 L Ed 1295), Justice Brennan argued in Jacobellis, supra, that a local community standard test would mean that “the constitutional limits of free expression in the Nation would vary with state lines.” 378 US at 194, 195 (84 S Ct at 1682, 12 L Ed 2d at 802). Implicit in his position is that no state may regulate obscenity more strictly than another. Yet Justice Brennan in Roth clearly recognized the right of the state to regulate obscenity. Does this not imply that one state may choose to adopt more stringent regulations than another?
Pennekamp has no application here. Under the test we announced today, the limits of free expression would not vary from state to state. First Amend ment protection would be lost by every person wbo published material with the primary purpose of appealing to the recipient’s prurient interest in sex. In every state, this would be true. But one state’s decision to condemn such unprotected activity would not be repugnant to the constitution simply because other states might choose to ignore such conduct or regulate it less severely.
We are one nation indivisible but it does not follow that we have one society homogenized. The constitution explicitly recognizes the sovereignty of the states in most areas. It is for the states to decide whether abortion should be tolerated or to what extent gambling shall be suppressed. Similarly, it is the state’s right to determine how permissive it shall be in the area of publications which, designed to appeal to prurient interests in sex, are outside the protection of the First Amendment. The constitution does not require Michigan to enlarge its permissiveness to that of another state any more than it would require us to be more restrictive because other states choose to follow that course. We see no difference constitutionally between the states acting with variety in this area through differing legislation and their acting with variety through the application of differing local community standards.
Justice Brennan also argued that if publication of a book results in a conviction in one state, it would have a chilling effect on publication of that book in another state because “sellers and exhibitors would be reluctant to risk criminal conviction in testing the variation between the two places.” 378 US at 194 (84 S Ct at 1681, 12 L Ed 2d at 801). The argument is not appealing to us. Aside from the fact that there seems to be little reluctance on the part of book store operators to invite litigation in this area, it seems to us that applying local standards gives the prospective publisher an opportunity to determine more certainly whether his publication is within or without those standards because a local standard is patently more easily ascertainable than the elusive concept of a national standard.
Just to approach uniformity in this area would require not only the application of a national standard but passage of a national obscenity law. Most states have adopted the Uniform Commercial Code and other uniform laws designed to relieve the problems interstate businessmen and interstate travelers face because of varying state laws. But state sovereignty being what it is, nothing in the constitution requires such state action. "We see no reason why the states should adopt a Uniform Obscenity Law to accommodate the interstate smut peddlers.
Even this would not achieve the uniformity Justice Brennan argued for in Jacobellis, as Justice Brennan pointed out in his opinion in Roth.
“It is argued that because juries may reach different conclusions as to the same material, the statutes must be held to be insufficiently precise to satisfy due process requirements. But, it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system.” 354 US at 492, fn 30 (77 S Ct at 1313, 1 L Ed 2d at 1511).
The test we announce today, making the defendant’s right of free speech depend upon the intent with which he speaks, is fully consistent with decisions of the United States Supreme Court dealing •with the related problems of the extent to which the right of free speech bars actions for defamation in State courts. In New York Times Co. v. Sullivan (1964), 376 US 254 (84 S Ct 710, 11 L Ed 2d 686, 95 ALR2d 1412), and the ensuing defamation suits that reached the Supreme Court, the Court did not undertake to alter the concepts of defamation developed through the years by the state courts. Nor did the Court in any instance examine the nature of the defamatory material to determine whether the utterance was protected free speech. The Court relied upon a state-of-mind test which essentially postulated that if the defamatory utterance was made with malice, it was not protected free speech.
“Calculated falsehood falls into that class of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” Garrison v. Louisiana (1964), 379 US 64, 75 (85 S Ct 209, 216, 13 L Ed 2d 125, 133).
We see no difference constitutionally between the calculated falsehood and the calculated appeal to prurient interest. Neither is a communication of ideas entitled to constitutional protection.
In the defamation cases, the Court requires that the public figure establish the malice of the defendant with “convincing clarity.” Sullivan, supra, 376 US at 286, 287 (84 S Ct at 729, 730, 11 L Ed 2d at 710, 711). This is to prevent a jury from finding malice where there is none simply because the defendant has been expressing views unpopular in the local area. By similar reasoning, the intent of the publisher to appeal to the prurient interest of the recipient must be established with convincing clarity in any civil proceedings brought under the Michigan obscenity statute. In a criminal prosecution, of course, the intent of the defendant would have to be established beyond a reasonable doubt.
There is more than ample evidence in the records below to support a finding that defendants’ primary purpose in publishing the material was to appeal to the prurient interest of the recipient. In each case the trial judge made a specific finding to that effect.
We have had some reservations about affirming these convictions on the basis of a constitutional test enunciated after trial. On careful consideration, however, we find nothing unfair to the defendants in this procedure. The issue of pandering was clearly before tbe court in each case and both sides introduced evidence on the proposition and it was argued to the court. We could affirm the convictions solely on the basis of Ginzburg, as the trial courts indicated that they had done.
Finding no error, we affirm the judgments below.
All concurred.
Throughout this opinion we use the word publish to mean sale distribution, or other dealings in obscene material which are forbidden by the statute.
§ 5; “Every 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 or of the press.”
§ 17: “No person shall be * * * deprived of life, liberty or property, without due process of law.”
“The test to be applied in cases under section 343a of this aet shall not be whether sexual desires or sexually improper thoughts would be aroused in those comprising a particular segment of the community, the young, the immature or the highly prudish, or would leave another segment, the scientific or highly educated or the so-called worldly wise and sophisticated, indifferent and unmoved. But such test shall be the effect of the book, picture or other subject to complaint considered as a whole, not upon any particular class, but upon all those whom it is likely to reach, that is, its impact upon the average person in the community. The book, picture or other subject of complaint must be judged as a whole in its entire context, not by considering detached or separate portions only, and by the standards of common conscience of the community of the contemporary period of the violation charged.” MCLA § 750.343b(Stat Ann 1970 Cum Supp § 28.575[2]).
“ ‘The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so-called worldly wise and sophisticated indifferent and unmoved * * * .
“ ‘The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reaeh. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards.’ ” Roth v. United States, supra, 354 US at 490 (77 S Ct at 1312, 1 L Ed 2d at 1510).
“[T]his Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material in volved is constitutionally protected.” Jacobellis v. Ohio (1964), 378 US 184, 190 (84 S Ct 1676, 1679, 12 L Ed 2d 793, 799).
For example, in Billingsley, we said that Memoirs, supra, held “that Massachusetts could not ban the sale of the sexual diary ‘Fanny Sill’.” But three of the justices who voted for reversal of the conviction in Memoirs specifically disclaimed any such holding:
“It does not necessarily follow from this reversal that a determination that Memoirs [Fanny Sill] is obscene in the constitutional sense would be improper under all circumstances.” Memoirs v. Massachusetts, supra, at 420 (86 S Ct at 978, 16 L Ed 2d at 6).
. The ultimate judicial power of the United States resides in the Supreme Court. Every lower court looks to it for guidance in Federal matters. When it cannot give such guidance because of the division of the justices on a particular subject, the Court should decline to review eases in that area until the justices can agree on an opinion of the Court. Certainly the Supreme Court has a more important function in our jurisprudence than to review the dreary material of a smut peddler and the factual circumstances of its publication for the sole purpose of issuing its decision on a “for this case only” basis. The Court lends itself “to an unjustifiable intrusion upon the time of [the] court.” Conway v. California Adult Authority (1969), 396 US 107, 110 (90 S Ct 312, 314, 24 L Ed 2d 295, 298).
An even greater mischief is pointed out by Chief Justice Burger in his dissenting opinion in Walker v. Ohio (1970), 398 US 434 (90 S Ct 1884, 26 L Ed 2d 385) : “I find no justification, constitutional or otherwise, for this Court’s assuming the role of a supreme and unreviewable board of censorship for the 50 states, subjectively judging each piece of material brought before it without regard to the findings or conclusions of other courts, state or federal. That is not one of the purposes for which this Court was established.”
The examples in this paragraph are all from the record before us.
We do not decide whether such books published in such circumstances would come within the ambit of the Michigan Obscenity Statute as it now reads. All we are saying is that Michigan has the power to make criminal the publication of such books with such intent. As we have already noted, amendments to the Michigan statute were adopted in the wake of Butler v. Michigan (1957), 352 US 380 (77 S Ct 524, 1 L Ed 2d 412), and Both-Alberts, supra. They probably do not exercise the full right and power of the state to regulate obscenity. We needn’t decide the exact limits of the statute because the publications here are nowhere near its outer limits.
Examples abound in the exhibits before this Court of an attempt to commingle material which has no value except as an appeal to the prurient interest with material which has no logical relationship, but has some social value. One of the magazines before this Court has an obvious appeal to the prurient interest of homosexuals containing page after page of photographs of nude young men which greatly emphasize the sexual organs. Not a single line of text accompanies these photographs. In one photograph the sex organ is framed by a portion of the railing on a porch through which the picture had been made and the balance of the body is all but obscured, thus rendering the picture useless to an art student studying anatomy. About every tenth page contains a line drawing of a nude attributed to Michelangelo, Matisse, or some other great master. Obviously the producer of the magazine has carefully followed the guidelines contained in some of the opinions of the Supreme Court justices. Under their test the magazine could not be deemed obscene because it does contain, in two or three pages out of 40 or 50, material of some social value.
Another exhibit, a so-called girlie magazine, with an obvious appeal to the prurient interests of males with more orthodox tastes in sex has offered its readers an ingenious recipe for a hot dog sauce which can be prepared simply by mixing ketchup and mustard. This recipe is offered along with 30 photographs of nudes lounging around a swimming pool. Culinary equipment is to be seen in only two small black and white photographs of middle-aged nudes who appear in no other pictures. Seven pages of nudes later is a double-page full color picture of a nude and fully exposed girl. The relationship of this picture to the text is not pointed out.
Some of the material contains in small print a disclaimer of an intent to appeal to the prurient interest of the reader. It is said that the magazine is intended only for use by art students, serious devotees of nudism and so forth. While such disclaimers might be used by the defendant'as evidence of his lack of intent to appeal to the prurient interest of the recipient, such disclaimer of itself would not necessarily bar prosecution, if the state could prove the requisite intent, notwithstanding the contrary disclaimer.
In Memoirs v. Massachusetts, supra, Justice Douglas said it is yet to be proven “that erotica produce antisocial sexual conduct.” 383 US at 431 (86 S Ct at 984, 16 L Ed 2d at 13). Whether he is correct or not, it is the function of the legislature and not Justice Douglas or any other judge to make such a judgment. He cites ministers, sociologists, and other authorities to support his propo sition. May we not assume that the legislature of Michigan consulted similar authorities before it determined to ban obscenity?
The point of footnote 10 to Justice Douglas’ opinion seems to be that from such books the young can learn what life is all about. “ * * * They will learn what is in the world and in its people.” Applied to the exhibits in this ease, the idea is absurd. In one, for example, the “novel” describes one day in the life of a French businessman. Upon awakening, he had intercourse with the maid; before noon he had intercourse with each of three secretaries; after lunch ditto with his mistress and with his mistress’ neighbor; after dinner with a pick-up in a cabaret; and finally at home that night, to end the story on a high moral level, he forced his attentions on his wife against her will. How will this book teach “what is in the world and in its people”?
Defendant Bloss is an example. We are aware of seven eases in which he was directly involved, including the three cases now before us. He pressed one case to the United States Supreme Court.
In People v. Billingsley (1969), 20 Mich App 10, 17, we said: “The constitutional right to communicate ideas would be unduly limited if the state could take upon itself the right to prohibit the use of certain words, however offensive and odious they may be, to communicate those ideas.” We do not retreat from this holding in Billingsley. If the intent of the publisher is to communicate an idea, then he has a right to communicate that idea under the constitution in any language he chooses.
In No 6399, Judge Letts said: “It is the honest opinion of the court that the writing materials therein, not having authors’ names nor bibliography, or footnoted in any way, would indicate it is there for one specific purpose only, that is for the purpose of breaking up the dominant theme in an attempt to move inside the legal holdings about appealing to the prurient interest, and in the opinion of the court this failed to do so.”
In No 6400, Judge Letts found: “It would seem to me that the main thrust of the entire operation of the Capri complex, if you call it that, is toward commercialization of sex, which is pandering. It is done in the Capri Theatre with the advertising there in the lobby and the trailers, as testified to here in open court, pointing out that this material may be purchased at the Capri Book Store, at such and such address. It is the feeling of this court that if the Supreme Court in Ginzburg can set forth that the purveying of sex in books, such as the ten that we have before us, is not necessarily just obscene but, as their decision indicated, it was pandering, then this court, which is a lesser court, can follow suit, after having made the determination based upon the testimony.”
In No 6401, Judge Snow found: “There was evidence the defendants’ publications were originated or sold as stock in trade of the business of pandering, that is, the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.” | [
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] |
Levin, P. J.
Plaintiff, Donald E. Howard, a police officer, was injured when he tripped on a bolt protruding from the surface of an abandoned concrete bridge on which he was walking late at night in the course of his duties. He fell from the bridge into a desiccated creek, landing on his back.
The defendant, City of Melvindale, appeals a judgment on a jury verdict in favor of the Howards asserting that the bolt protruded only two inches and that under the “two inch” rule the city is not subject to liability for failing to correct this condidition. Additionally, the city contends that medical testimony that an aspect of Howard’s back condition was “possibly” caused by the fall is too uncertain to permit jury consideration.
The Howards cross-appeal claiming that the trial judge erred in disallowing their motion under G-CR 1963, 313.3 seeking an order requiring the city to pay their reasonable expenses in making proofs required because of the city’s refusal to admit the truth of matters stated in a request for admissions. We affirm.
I.
Howard and another police officer were on a routine patrol near the Laurence street bridge in the city of Melvindale. Howard’s suspicions were aroused by a parked car on the opposite side of the bridge and he proceeded to cross the bridge. Steel posts had been erected at each end of the bridge to prevent vehicular traffic from entering, but it continued to be used as a pedestrian crossing.
At one time there were side rails on the bridge, but they were no longer in place. Howard testified that he tripped on a bolt or bolts, l inch in diameter and protruding two inches above the surface of the bridge. The bolts were originally used to hold a side rail in place and were three or four inches from the edge of the bridge.
In a long line of decisions the Michigan Supreme Court has held that a municipality is not subject to liability for negligence because of a discontinuity in a sidewalk of two inches or less. The two-inch rule had its origin in a judicial belief that the public authority could not be expected to construct or maintain a perfectly smooth walkway and, therefore, negligence should not be predicated upon relatively minor variations in a walking surface. The rule was applied in a case where the defect was in a metal grating which was a part of the sidewalk. However, neither the bolt upon which Howard tripped nor the railing which it held in place were designed to be walked upon. The trial judge did not err in refusing to extend the two-inch rule, which concerns only variations in walking surfaces, to relieve the city from liability for the protruding bolts and correctly submitted to the jury the question whether the bridge was reasonably safe for public travel.
II.
Nor did the judge err in his rulings concerning the plaintiffs’ expert medical testimony. The plaintiff suffered two fractures in the accident. He also had a disc space narrowing in the vertebrae of his back, but it was unclear whether this was caused by the fall or was attributable to normal degenerative processes.
The treating physician testified that he “doubted” that the disc space narrowing was caused by the accident and he “thought” that it existed before the accident. He added, however, that “it may be related, but I don’t know” and that it “could possibly have happened in the accident.” The defendant’s medical witnesses were of the opinion that the disc space narrowing was not related to the accident.
The defendant relies on Brininstool v. Michigan U. R. Co. (1909), 157 Mich 172, 180, where the Court declared:
“It is the generally accepted rule that to entitle a plaintiff to recover damages presently for apprehended future consequences of an injury, there must be such a degree of probability of such consequences as to amount to reasonable certainty that they will result from the original injury.”
Brimnstool, thus, dealt with the possible consequences of a known injury. This case concerns known consequences with two possible causes: one, the accident-related fractures; and the other, the disc space narrowing, only possibly accident related.
The Brimnstool rule was considered by the Supreme Court in Gilson v. Bronkhorst (1958), 353 Mich 148. In that case a nine-year-old girl had suffered a serious leg fracture in an automobile accident and the question there again was whether the judge erred in submitting her claim for future pain and disability. The medical testimony was that “sometimes” partial disabilities of the kind that she had “may stay on permanently.” The Court ruled that even though “no one can tell with fair accuracy whether the definite fact of partial disability, known at present, will correct itself” (emphasis supplied), that without regard to the “presence or absence of a professional opinion attesting permanent injury” there was sufficient evidence to submit the child’s claim for- future pain and disability. In this case of Howard, there is also ample evidence of “the definite fact of partial disability, known at present.”
In Yates v. Wenk (1961), 363 Mich 311, the question, as here, was whether there was a causal connection between the accident and the condition of which the plaintiff was complaining. One of the plaintiff’s doctors testified that there was “a possible relation” between the accident and the plaintiff’s complaint. There was, indeed, in that case other medical testimony that the accident caused the plaintiff’s condition or was the “most probable cause” of the condition, but the defendant asserted that the trial judge erred in allowing the jury to hear the “possible relation” testimony over objection and in refusing to strike it. The Supreme Court faced the issue squarely and declared that even in the absence of the other medical testimony (p 315) “evidence cast in terms of possibility or probability should be admitted subject to protective instruction by the trial judge in his charge to the jury.”
In Prince v. Lott (1963), 369 Mich 606, the question again was whether the plaintiff’s condition was caused by the injury. A physician testified that the condition “could have been caused” by the injury and that the duration of the condition was indefinite. The Court rejected the assertion that the proofs did not meet the Brininstool-Gilson “adequacy test” and declared (pp 609, 610):
“Plaintiff’s testimony as to his physical condition and suffering during the 2 years leading up to trial and then still continuing, and the medical testimony that his condition could be permanent were sufficient to permit the jury, under the proper instructions which were given, to find for plaintiff on those elements of damage.”
The injured plaintiff’s testimonv was also relied on in Magda v. Johns (1964), 374 Mich 14, to establish the necessary causal connection between the accident and the complained of condition. In that case the plaintiff did not introduce anv medical testimonv in support of his claim that his back condition was caused by the accident rather than, as claimed bv the defendant, by normal degeneration due to advancing age and a lifetime of strenuous phvsical labor. Nevertheless, said the Court, the plaintiff could make out his allegation of (p 20) “traumatically caused disability by that which, since release of Langworthy v. Township of Green (1888), 88 Mich 207, 214, has come to be known as ‘before and after’ lay testimony.” The Court concluded (p 21): “the lay testimony which the jury had a right to believe, conjoined with the * # * honest acknowledgment [of the medical witness called by the defendant] that the collision possibly may have ‘triggered,’ prior to ultimate natural sufferance thereof, the disability of which plaintiff complains and seems to be suffering” was sufficient to support the jury verdict for the plaintiff. (Emphasis supplied.)
In the present case there was ample “before and after” testimony supporting Howard’s claim that both his back pain and the restriction of his activity followed his fall off the bridge.
It is thus apparent that if Howard had not suffered the fractures, if the only apparent cause of his “after” pain and the restriction on his activity was the disc space narrowing, then, under the rule of Magda v. Johns and the earlier cases, the medical testimony that the fall could possibly have caused the disc space narrowing, coupled with Howard’s “before and after” testimony, would have been sufficient to entitle him to have submitted to the jury the disc space narrowing evidence and his claim based on that evidence. We conclude that Howard is not under a heavier burden of proof because he suffered fractures and, therefore, the possibility that his “after” pain and reduction of activity is attributable solely to the fractures cannot be excluded.
Here, unlike Kaminski v. Grand Trunk W. R. Co. (1956), 347 Mich 417, and Poledna v. Bendix Aviation Corporation (1960), 360 Mich 129, where the Court considered the standard of proof required where there are alternative theories of causation, there was evidence that Howard’s back complaints were attributable to injuries suffered in the fall from the bridge and, thus, that his damages were caused by the city’s tortious acts. It has been observed that the certainty requirement “will be relaxed where the fact of damage has been established and the question to be decided is the extent of that damage”. 2 Harper and James, Law of Torts, § 25.3, p 1306. (Emphasis by authors.)
“The law does not require impossibilities; and can not, therefore, require a higher degree of certainty than the nature of the case admits.” Allison v. Chandler (1863), 11 Mich 542, 555.
On the principle that where a litigant can show he has been damaged, but his damages cannot be measured with certainty, that it is better that he recover more than he is entitled to than less, the rule in Michigan is that the risk of the uncertainty is cast upon the wrongdoer, not the injured party. Routsaw v. McClain (1961), 365 Mich 167, 171.
III.
On their cross-appeal the Howards contend that the judge erred when he refused to enter an order under GCR 1963, 313.3 requiring the city to reimburse them for their reasonable expenses in proving facts denied by the city when it responded to a request by the Howards for admissions under GCR 1963, 312.
Rule 313.3 provides that if a party served with a request for admissions denies the truth of the matter concerning which an admission is requested and the party requesting the admission proves it to he true, an order shall be made requiring the denying party to pay to the requesting party his reasonable expenses in making such proof unless the court finds that the admission sought is of no substantial importance or “there were good reasons for the denial”.
One of the issues in the case was whether the defendant city had any responsibility for the condition of the bridge, and that turned on whether the bridge had been dedicated to the public.
The roadway over the bridge had emanated from Laurence street. The Howards requested an admission that a plat, showing Laurence as a dedicated street, had been accepted by the city and that no ordinance or resolution had been adopted by the city vacating Laurence and that no notice had been published of a proposed vacation of Laurence. In response, the city admitted that the bridge was in the city and that Laurence had been dedicated, but denied that the bridge was an extension or a part of Laurence and asserted that the bridge was never dedicated and that the plat did not show either the bridge or the creek crossed by the bridge.
The motion for expenses filed by the Howards asked that they be recompensed for all the expenses they incurred by reason of the city’s refusal to admit the “dedication, acceptance, ownership and control of the Laurence Street bridge”. The motion thus asked for reimbursement of expenses incurred in proving facts in addition to those covered by the request for admissions. The city was not asked to admit that the bridge itself had been dedicated and that such dedication had not been vacated. The pertinent requests were that the plat had been accepted and that Laurence street had not been vacated. The judge did not err in refusing to order the city to reimburse the Howards for the entire expense of proving that the bridge had been dedicated and that such dedication had not been vacated. The record does not provide a basis for determining the portion of the claimed expense incurred in proving the acceptance of the plat and that Laurence street had not been vacated.
Affirmed. No costs, neither party having prevailed in full.
All concurred.
See Bigelow v. City of Kalamazoo (1893), 97 Mich 121; Northrup v. City of Pontiac (1909), 159 Mich 250; Harris v. City of Detroit (1962), 367 Mich 526; Ingram v. City of Saginaw (1968), 380 Mich 547. The eases speak of the “2-ineh rule” as meaning both “2 inches or less” and “less than 2 inches”; our disposition of this ease does not require a complete review of the cases on that micro-issue.
In Harris, Mr. Justice Adams, in a dissenting opinion signed by two other justices, reviewed the history of the two-inch rule and urged that it be overruled; see, also, separate opinions of Mr. Justices O’Hara and T. M. Kavastagh in Ingram v. City of Saginaw to like effect. However, a sitting majority of the Court has not as yet been mustered to do so and it remains the law in this state.
The early cases concerned defects in sidewalks constructed of wooden planks. Bigelow v. City of Kalamazoo, supra; Weisse v. City of Detroit (1895), 105 Mich 482; Yotter v. City of Detroit (1895), 107 Mich 4. The rule was later applied to cement sidewalks. Jackson v. City of Lansing (1899), 121 Mich 279.
We add that we do not intend to intimate an opinion as to whether the two-inch rule applies in a ease where, as here, the deviation is in the surface of a bridge which is used as a walkway.
See Northrup v. City of Pontiac, supra. See, also, Baker v. City of Detroit (1911), 166 Mich 597 (water shutoff box); Biby v. City of Wichita (1940), 151 Kan 981 (101 P2d 919), (steel plate which was part of a drain gutter); Harrison v. City of Pittsburgh (1945), 353 Pa 22 (44 A2d 273) (manhole cover); Padley, et al v. Village of Lodi (1940), 233 Wis 661 (290 NW 136), (water main shutoff box); Bleiman v. City of Chicago (1942), 314 Ill App 471 (41 NE2d 973), (steel plates which were part of a walkway).
We do not mean to be understood as saying that a bolt designed to hold down a grating or other device which is part of the walking surface of a sidewalk would be within the two-inch rule in a ease where the grating or other device was no longer in place; that question is not now before us. Cf. Cornell v. City of Ypsilanti (1920), 212 Mich 540, 547.
The Howards were entitled during their case in chief to present the entire story regarding Donald Howard’s back condition, the unfavorable as well as the favorable, lest the city on cross-examination or rebuttal undermine the veracity of Howard’s presentation.
In the quoted ease the trial judge charged the jury that it might allow damages only for future consequences “which it is reasonably certain he will suffer in the future that is the natural and proximate result of the injury.” The jury was similarly instructed in the present case,
Similarly, see Konieczka v. Mt. Clemens Metal Products Co. (1960), 360 Mich 500, 504.
See, also, Sarzynski v. Stern (1968), 13 Mich App 158, where, after consideration of Gilson, Brininstool, and Yates, our Court held that it was not error to allow the jury to award damages for permanent injury on medical testimony that there was “a very definite possibility of a progressing degree, something that is increasing, of what I called yesterday ‘traumatic arthritis’.” See, also, Agee v. Williams (1969), 17 Mich App 417, 426; Bilicki v. W. T. Grant Co. (1969), 382 Mich 319, 325.
The Howards contend, in their brief filed in our Court, that by failing to admit, the city in effect denied that the plat was accepted and that Laurence had not been vacated, thereby forcing the Howards to prove both the acceptance of the plat and the non-vacation of Laurence.
Actually, under Buie 312, the effect of a failure to deny specifically is that the matter is taken as admitted: “Each of the matters of which an admission has been requested shall he deemed admitted unless * * * the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested” or a statement of why he cannot admit or deny, or a statement of written objections. GCB 1963, 312. (Emphasis supplied.)
GCB 1963, 312 and 313 are based on Fed Bules Civ Proc, 36(a), 37(c). Some courts have held that a requesting party is not entitled to expenses where the response is equivocal or otherwise inadequate because such a response is not a specific denial and hence, under the rule, is deemed an admission Southern Railway Co. v. Crosby (CA 4, 1953), 201 F2d 878; Riordan v. Ferguson (CA 2, 1945), 147 F2d 983, 986 fn; Hunter v. Erie Railroad Company (1956), 43 NJ Super 226 (128 A2d 304), with the result that the requesting party need not have proved the matter equivocally or inadequately answered because it was taken as admitted West Kentucky Coal Co. v. Walling (CA 6, 1946), 153 F2d 582; Water Hammer Arrester Corporation v. Tower (CA 7, 1949), 171 F2d 877. Such holdings are in accord with the express language of rule 313, which literally provides for reimbursement of the expenses of proving the truth of the matter only where the responding party “serves a sworn denial.”
Such holdings have been criticized as unduly rigid. Finman, The Bequest for Admissions in Federal Civil Procedure, 71 Yale LJ 371, 430-433 (1962). But what is lost in flexibility at the post-trial _ stage in the awarding of expenses is an advantage at the pretrial phase. If equivocal answers are treated as automatic admissions, there will be fewer equivocal answers and the purpose of rules 312 and 313 may be realized with less judicial effort.
The Federal decisions are, however, far from consistent. Equivocal and inadequate answers have in other cases been held to be denials. Bluff Creek Oil Company v. Green (CA 5, 1958), 257 F2d 83 (issue was whether a summary judgment should have been granted); Bertha Building Corporation v. National Theatres Corp. (EDNY, 1954), 15 FRD 339 (inadequate answer). Cf. Hartley & Parker, Inc. v. Florida Beverage Corporation (CA 5, 1965), 348 F2d 161 (unverified denial cannot be relied upon as an admission after the trial evidence is closed). And there is dictum that the remedy for an equivocal response is a motion for an allowance of the expenses of proving the truth of the matter. Bluff Creek Oil Company v. Green, supra; Bertha Building Corporation v. National Theatres Corp., supra.
The Federal rules have recently been amended to permit a party requesting admissions to move for a determination of the sufficiency of the answers or objections so that he can know before the trial whether the court will treat an equivocal or inadequate response as an admission or a denial, and to authorize the awarding of expenses of proof where the answering party has not admitted the truth of the matter proved at trial (formerly, as previously mentioned, the rule expressly provided for the awarding of expenses only if the matter had been denied). See Fed Rules Civ Proe, 36(a), 37(c), as amended effective July 1, 1970, and accompanying committee comment reprinted 48 FRD 487, 530, et seq. Before these amendments, the Federal courts were sharply divided as to whether a motion to test the sufficiency of an answer was permissible. See 2A Barron and Holtzoff, Federal Practice and Procedure, § 837, p 521; 4 Moore’s Federal Practice, § 36.07, p 2756.
A. eourt of general jurisdiction enjoys the power to do many things not expressly covered by a court rule. (See Hunter v. Erie Railroad Company, supra; Developments in the Law-Discovery, 74 Harv L Rev 940, 969 (1961). Cf. Guastello v. Citizens Mutual Insurance Company (1968), 11 Mich App 120, 137.) Surely a circuit court may entertain and rule upon the sufficiency and effect of answers to requests for admissions before the trial itself.
In this case if the Howards had brought such a motion the apparent misunderstanding as to what was being asked and the intent of the answers made and the effect of an express admission might have been cleared up. Where the response is equivocal, frequently more will be gained by attenipting to obtain clarification and resolution before the trial than can be achieved in a post-trial contest concerning the bona fides of an opposing party’s responses. Further, if a motion testing the sufficiency of an equivocal answer is filed this would facilitate the post-trial appraisal of the justification offered for refusing to admit. Indeed, without clarification before trial, a court may tend to conclude that the refusal to admit was not improper. See United States v. Classified Parking System (CA 5, 1954), 213 F2d 631; McHugh v. Reserve Mining Company (ND Ohio, 1961), 27 FRD 505, 507. | [
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T. M. Burns, P. J.
Defendant, Fred Smith, was convicted, upon bis plea of guilty, of assault with intent to do great bodily harm less than the crime of murder, MCLA § 750.84 (Stat Ann 1962 Rev § 28.279), and sentenced to imprisonment for one and one-half to ten years.
From the record below it is difficult to understand the events that transpired before the assault with which defendant is charged. Apparently, however, the defendant and his wife had had an argument. She called the police who apparently found it necessary to protect defendant’s wife from him. In response to the police protection of his wife, defendant took his three year old stepson to a bridge and informed the police that if they didn’t bring his wife and baby to him, he would drop his stepson, Lawrence Dunn, off a bridge into the river.
While defendant had the child out on the bridge over the St. Joseph River, he held the child on his arm, with his arm resting upon the rail of the bridge, and reiterated his intention to drop the child into the river if his wife and baby were not brought to him.
The police brought defendant’s wife and baby to him. When he then attempted to leave the bridge, the police seized him, and rescued the child.
At the arraignment the trial judge questioned defendant concerning what transpired on the bridge as follows:
“The Court: Do I understand then that you had this child on the bridge?
* * *
“Defendant: Yes.
“The Court: Now, how old is this Lawrence Dunn?
“Defendant: Three.
“The Court: Three years old. Now, how did you hold this child anyway, did you hold him over the water or the rail, or what?
“Defendant: I was leaning up against the rail and I had him-sitting on my arm.
“The Court: Leaning up against the rail by the river ?
“Defendant: Yes, I had him sitting on my arm.
# # #
“The Court: About four feet high. And was the child above this rail?
“Defendant: He was sitting on the rail. I had my arm laying upon the rail and he was sitting on my arm.
“The Court: In other words, you had the child actually up on this rail?
“Defendant: And laying on my arm.
# # *
“The Court: Now, how long did you have the child sitting up there?
“Defendant: About ten minutes.
“The Court: And did I understand that — I don’t know whether this is what Mr. Keller [defendant’s counsel] had mentioned or whether you mentioned, that you told the police that you’d throw the child in the river.
“Defendant: I told him I’d drop him in if they didn’t bring her and the baby on.”
The defendant appeared for sentencing and when asked by the court stated that he had nothing to say.
A motion was made, after sentencing, to vacate defendant’s plea, which motion was denied. From that denial, defendant appeals.
Did the court below commit reversible error in accepting defendant’s guilty plea because the judge did not elicit from defendant stifficient facts with reference to “intent” to support a conviction for the crime of assault with intent to do great bodily harm less than the crime of murderf
Defendant alleges that he qualified his plea of guilty insofar as having the necessary intent to commit the crime charged and that, therefore, his plea should not have been accepted by the court.
Plaintiff: states that defendant waived the reading of the information, was represented and advised by counsel who explained the instant charge, and that, therefore, he was informed of the crime charged and its elements. In addition, the court further explained in detail the elements of the crime charged to the defendant during the arraignment.
Furthermore, it is clear from defendant’s own words that defendant threatened to throw the child into the river, had the present means and ability to carry out this threat, and did not abandon his intent until the police brought his wife and baby to him.
Moreover, People v. Lilley (1880), 43 Mich 521, cited by defendant for the proposition that by starting to leave the bridge after the police brought his wife and baby to him he had voluntarily abandoned his intent is not on point with the case at bar. In People v. Lilley, unlike the present situation, the defendant abandoned his intent before he was close enough to the victim to actually carry out an assault. Therefore, the Lilley case is completely distinguishable from the case now before us.
So also is the recent opinion of this Court in People v. Primeau (1970), 24 Mich App 235, wherein we found that there was nothing from which a necessary element of the crime charged, intent, could be inferred. Here, there is ample objective indication of the intent of the defendant appearing from the record. "We consider that this case is essentially the same as People v. Wade (1970), 24 Mich App 518. Therefore, we affirm for the reasons given in Wade, supra.
Affirmed.
All concurred. | [
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O’Hara, J.
Defendant’s application for delayed appeal having been granted, we are urged to set aside a guilty plea entered by defendant on September 11,1967, to a charge of manslaughter.
Defendant, in her motion for new trial and on appeal, argues that the guilty plea must be vacated because the trial court failed to make sufficient inquiry into the possible theory of self-defense.
Defendant was represented by counsel at all stages of the proceedings below. Self-defense, how ever, was not raised until the motion for new trial. An examination of the records of both the guilty plea and the preliminary examination indicates that the deceased, defendant’s husband, was shot three or four times. There was also testimony at the preliminary examination that would indicate that the defendant had made previous threats to resort to the use of a gun to resolve their differences.
The questioning of the defendant at the time of the plea provided adequate factual basis for its acceptance. The testimony at the preliminary examination indicates that the defendant might well have been found guilty upon trial, even if self-defense were raised. People v. Bartlett (1969), 17 Mich App 205; People v. Carlisle (1969), 19 Mich App 680. Where the accused is represented by adequate counsel, the trial court need not make exhaustive examination as to possible defenses, even if the testimony of the accused gives some indication that such a defense might be raised at trial. People v. Spencer (1970), 23 Mich App 56.
Under the circumstances here, we do not find that a miscarriage of justice has occurred. People v. Stearns (1968), 380 Mich 704.
Affirmed.
All concurred.
MCLA § 750.321 (Stat Ann 1954 Rev § 28.553). | [
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PER CURIAM.
Plaintiff appeals by right an order dismissing this child custody case. The issues raised on appeal relate to a previous order wherein the trial court declined to exercise jurisdiction over the instant case. We vacate those orders and remand for further proceedings consistent with this opinion.
This case arises out of a custody dispute involving KC, who was bom to plaintiff and defendant on June 11, 2003. The parties were never married, but plaintiff and defendant executed an affidavit of parentage on June 13, 2003, listed plaintiffs name on KC’s birth certificate, and continuously held out KC as plaintiffs daughter. KC “lived jointly between” plaintiff and defendant until 2009, when defendant was incarcerated. After defendant’s release, KC remained in Detroit, Michigan, until 2011, when she moved to Ohio with defendant. Between 2011 and 2013, KC moved from Ohio to Georgia and back to Ohio with defendant, but she visited plaintiff in Michigan during the summer and school breaks. It appears that the trial court dismissed this case on the basis of its conclusion that Michigan did not have jurisdiction, and, even if did, Michigan constituted an inconvenient forum.
Plaintiff first argues on appeal that the trial court abused its discretion when it failed to exercise jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq. We agree, but only to the extent that we conclude that the trial court failed to fully consider whether it had jurisdiction under the UCCJEA.
Absent a factual dispute, this Court reviews de novo, as a question of law, whether a trial court has jurisdiction under the UCCJEA. Foster v Wolkowitz, 486 Mich 356, 362; 785 NW2d 59 (2010). But even if a court may exercise jurisdiction under the UCCJEA, the decision do so is “ ‘within the discretion of the trial court, and [will] not be reversed absent an abuse of that discretion.’ ” Nash v Salter, 280 Mich App 104, 108; 760 NW2d 612 (2008) (citation omitted). “Generally, an appellate court should defer to the trial court’s judgment, and if the trial court’s decision results in an outcome within the range of principled outcomes, it has not abused its discretion.” Jamil v Jahan, 280 Mich App 92, 100; 760 NW2d 266 (2008). Additionally, “[t]he clear legal error standard applies where the trial court errs in its choice, interpretation, or application of the existing law.” Foskett v Foskett, 247 Mich App 1, 4-5; 634 NW2d 363 (2001). This Court reviews issues of statutory construction de novo. Nash, 280 Mich App at 108.
The UCCJEA “prescribes the powers and duties of the court in a child-custody proceeding involving [Michigan] and a proceeding or party outside of this state . . . .” Fisher v Belcher, 269 Mich App 247, 260; 713 NW2d 6 (2005) (citation and quotation marks omitted). Because it is undisputed that defendant resides outside Michigan, this case requires the interpretation and application of the UCCJEA. This Court previously summarized rules of statutory interpretation in a case in which it interpreted the jurisdictional provisions of the UCCJEA:
The primary goal of statutory interpretation is to give effect to the intent of the Legislature. This determination is accomplished by examining the plain language of the statute itself. If the statutory language is unambiguous, appellate courts presume that the Legislature intended the meaning plainly expressed and further judicial construction is neither permitted nor required. Under the plain-meaning rule, courts must give the ordinary and accepted meaning to the mandatory word “shall” and the permissive word “may” unless to do so would frustrate the legislative intent as evidenced by other statutory language or by reading the statute as a whole. [Atchison v Atchison, 256 Mich App 531, 535; 664 NW2d 249 (2003) (citations omitted).]
MCL 722.1201(1) is the “exclusive jurisdictional basis for making a child-custody determination by a court of this state.” MCL 722.1201(2). MCL 722.1201(1) provides:
Except as otherwise provided in [MCL 722.1204] [which concerns temporary emergency jurisdiction], a court of this state has jurisdiction to make an initial child-custody determination only in the following situations:
(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
(b) A court of another state does not have jurisdiction under subdivision (a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under [MCL 722.1207 or 722.1208], and the court finds both of the following:
(i) The child and the child’s parents, or the child and at least 1 parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(ii) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
(c) All courts having jurisdiction under subdivision (a) or (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under [MCL 722.1207 or 722.1208],
(d) No court of another state would have jurisdiction under subdivision (a), (b), or (c).
Additionally, “[p]hysical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child-custody determination.” MCL 722.1201(3).
At the final hearing held in the trial court, the trial court appeared to conclude that it did not have jurisdiction over the case on the sole basis that Michigan was not KC’s “home state” as defined in MCL 722.1102(g). Likewise, as both parties agree, it is evident that the trial court could not exercise jurisdiction over this case under MCL 722.1201(1)(a), because Michigan was not the home state of KC on the date of the commencement of the proceeding or within six months before the commencement of the action. “Home state” is defined as follows:
[T]he state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child-custody proceeding.... A period of temporary absence of a parent or person acting as a parent is included as part of the period. [MCL 722.1102(g).]
“Commencement” is defined as “the filing of the first pleading in a proceeding.” MCL 722.1102(e). The complaint, which was the first pleading filed in this child custody proceeding, was filed on August 19, 2013, so the relevant six-month period is from February 19 to August 19, 2013. According to the residency timelines provided in the pleadings and briefs submitted by both parties and defendant’s statements on the record at the hearing, KC resided in Michigan until 2011 and resided in either Ohio or Georgia at least between December 2011 and June 2013, although the parties dispute the dates on which defendant and KC moved from state to state. Likewise, both parties acknowledge that KC was physically present in Michigan when plaintiff filed his complaint on August 19, 2013. Because KC did not live in Michigan for at least six consecutive months before the filing of the complaint on August 19, 2013, and Michigan was not KC’s home state within six months before the filing of the complaint, the trial court could not exercise jurisdiction over the case under MCL 722.1201(l)(a). See Nash, 280 Mich at 110-111.
The trial court, however, failed to consider whether it had jurisdiction over the case under any of the other jurisdiction provisions of MCL 722.1201(1) — despite the fact that plaintiff argued in the trial court that the court should exercise jurisdiction under MCL 722.1201(1)(b) or MCL 722.1201(1)(d). Although this Court may review de novo whether a trial court has jurisdiction under the UCCJEA when there are no factual disputes, Foster, 486 Mich at 362, the parties dispute (1) the length of time during which KC lived in Ohio and Georgia, (2) the state with which KC has the strongest relationship, and (3) the state in which the most evidence regarding KC is located.
Nevertheless, despite the conflicting dates, it appears that neither Ohio nor Georgia could exercise “home state” jurisdiction under MCL 722.1201(1)(a). According to the timelines provided by the parties, KC had not resided in Ohio for at least six consecutive months immediately before the complaint was filed and had not resided in Ohio for a consecutive six-month period that ended within the six months before the complaint was filed. Additionally, even if we were to assume that KC did, in fact, live in Georgia for six consecutive months, it is undisputed that neither defendant nor KC continued to live in Georgia after April 2013. The fact that neither Ohio nor Georgia (or any other state) could exercise home state jurisdiction under MCL 722.1201(1)(a) would fulfill the first part of MCL 722.1201(1)(b). But despite the fact that the first part of MCL 722.1201(1)(b) appears to be satisfied, the trial court did not consider any evidence regarding the factors that compose the second part of MCL 722.1201(1)(b), i.e., whether under Subparagraph (i) KC and plaintiff had a “significant connection” with Michigan other than mere presence and whether under Subparagraph (ii) substantial evidence is available in Michigan concerning KC’s care, protection, training, and personal relationships. Instead, it appears that the trial court only considered where defendant and KC had lived and defendant’s ties to Ohio in making its determination. Additionally, the record does not include any evidence — apart from the parties’ conclusory assertions in their briefs — regarding whether plaintiff and KC have a significant connection with Michigan and whether more evidence is available in Michigan, as opposed to Ohio or Georgia, concerning KC. See MCL 722.1201(1)(b)(i) and (ii). In fact, given this Court’s construction of “significant connection,” i.e., “where one parent resides in the state, maintains a meaningful relationship with the child, and, in maintaining the relationship, exercises parenting time in the state,” White v Harrison-White, 280 Mich App 383, 394; 760 NW2d 691 (2008), and the parties’ characterization of plaintiff’s relationship with KC, which included an ongoing relationship and parenting time in Michigan, it appears that it would have been especially important for the trial court to consider additional evidence and determine whether it could exercise jurisdiction under MCL 722.1201(1)(b). Unfortunately, given the limited evidence in the record regarding the factors under MCL 722.1201(1)(b), this Court is unable to review de novo whether Michigan could have jurisdiction under that subsection.
Additionally, by focusing solely on residency, the trial court failed to consider whether defendant and KC have a significant connection with Ohio or Georgia other than mere presence and whether substantial evidence is available in either state regarding KC’s care, protection, training, and personal relationships. As a result, the trial court failed to consider whether Ohio or Georgia may have jurisdiction under MCL 722.1201(1)(b), and, as a result, failed to determine whether Michigan could exercise jurisdiction under MCL 722.1201(1)(d). Because the lower court record lacks evidence concerning both factors under MCL 722.1201(1)(b) with regard to Ohio and Georgia, this Court is also unable to determine whether the trial court could exercise jurisdiction under MCL 722.1201(1)(d). Consequently, the trial court erroneously applied the jurisdictional provisions of the UCCJEA when it failed to consider whether it could exercise jurisdiction under MCL 722.1201(1)(b) and (d). See Foskett, 247 Mich App at 4-5.
Because there are factual disputes regarding KC’s residency and there is insufficient evidence in the lower court record for this Court to review de novo whether a Michigan court may exercise jurisdiction over the instant case under MCL 722.1201(1)(b) or (d), we remand this case pursuant to MCE 7.216(A)(5) so that the trial court may take additional evidence and determine whether Michigan may exercise jurisdiction under MCL 722.1201(1)(b) or (d). If the trial court concludes that it has jurisdiction over the case, it is within the discretion of the court to determine whether to exercise that jurisdiction. Nash, 280 Mich App at 108.
Next, plaintiff argues that the trial court abused its discretion when it declined to exercise jurisdiction over the case on the basis of its finding that Michigan is an inconvenient forum. Plaintiff asserts that the court should have taken testimony from both parties regarding the disputed facts and should not have relied on an ex parte communication from defendant. We agree, but on the basis that the trial court failed to comply with MCL 722.1207. We review issues of statutory construction de novo and a court’s decision to decline to exercise jurisdiction for an abuse of discretion. Nash, 280 Mich App at 108.
MCL 722.1207 expressly addresses the circumstances under which a trial court may decline to exercise its jurisdiction under the UCCJEA on the basis of a finding that the state is an inconvenient forum and the procedures that the trial court must follow in doing so. MCL 722.1207 provides, in relevant part:
(1) A court of this state that has jurisdiction under this act to make a child-custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the motion of a party, the court’s own motion, or the request of another court.
(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including all of the following:
(a) . Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
(b) The length of time the child has resided outside this state.
(c) The distance between the court in this state and the court in the state that would assume jurisdiction.
(d) The parties’ relative financial circumstances.
(e) An agreement by the parties as to which state should assume jurisdiction.
(f) The nature and location of the evidence required to resolve the pending litigation, including the child’s testimony.
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
(h) The familiarity of the court of each state with the facts and issues of the pending litigation. [Emphasis added.]
At the hearing, the trial court first appeared to conclude that it did not have jurisdiction over this case. If the trial court did, in fact, conclude that it did not have jurisdiction, it could not subsequently decline to exercise jurisdiction that it did not possess. See MCL 722.1207(1) (“A court of this state that has jurisdiction under this act to make a child-custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.”) (emphasis added).
Assuming, however, that the trial court concluded that Michigan is an inconvenient forum even if it did have jurisdiction over the case, we note that the record contains no indication that the trial court considered all the factors requisite under MCL 722.1207(2). Instead, the trial court only provided the following reasoning:
It would be foolish to have jurisdiction here when the child lives with mom in Ohio. She has been married, remarried for two years and her husband has a job there. And even if I had jurisdiction and she filed a change of domicile [,] I would likely grant it, so it would be foolish for me to take jurisdiction of a case I don’t — I’ve not had.
I don’t think Michigan is the home state, and based on MCL 722.1102(G)[,] which defines home state, and then I find that this is an inconvenient forum for these parties to litigate any further issues regarding this child, so I’m not going to take jurisdiction. And if dad wants to change his parenting time or anything else],] he needs to file an action in Ohio in the county that this child lives in, okay.
The trial court should have acknowledged evidence already in the record or requested additional information as it considered each factor under MCL 722.1207(2). For example, the parties’ pleadings and a stamp on plaintiffs complaint indicate that a previous case between the parties related to child support and custody was filed, and ultimately dismissed, in the Wayne Circuit Court and assigned to the trial court judge who presided over the instant case, which suggests that the trial court should have considered its familiarity with the facts of the instant case pursuant to MCL 722.1207(2)(h). Further, the lower court record received on appeal includes no information — apart from the conclusory assertions in the parties’ briefs regarding jurisdiction and an e-mail that purportedly contains a “diary” entry that KC wrote on a Kindle device — regarding the various factors listed in MCL 722.1207(2). From the record, it is evident that the trial court determined that Michigan was an inconvenient forum without sufficient evidence regarding the relevant factors and without considering all the relevant factors.
Moreover, MCL 722.1207(2) provides that the court “shall allow the parties to submit information,” but it does not appear that the trial court did so before it determined that Michigan was an inconvenient forum. Additionally, MCL 722.1207(3) states:
If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child-custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
Therefore, even if the trial court had properly concluded that Michigan was an inconvenient forum, it erred by dismissing the case instead of staying the proceeding in accordance with the procedure mandated in MCL 722.1207(3).
A trial court abuses its discretion when it misinterprets or misapplies the law. Bynum v ESAB Group, Inc, mi Mich 280, 283; 651 NW2d 383 (2002). Because the trial court failed to determine whether it has jurisdiction under MCL 722.1201(1)(b) or MCL 722.1201(1)(d) — which was necessary for it to conclude whether it did, in fact, have jurisdiction before it could decline to exercise that jurisdiction, MCL 722.1207(1) — and subsequently failed to consider each of the relevant factors as required under MCL 722.1207(2), the trial court abused its discretion when it declined to exercise jurisdiction over the case on the basis of its finding that Michigan is an inconvenient forum.
There are no published Michigan cases that directly address a trial court’s failure to make explicit findings under MCL 722.1207. But in general, the remedy for a failure to make proper findings of fact under the Child Custody Act (CCA), MCL 722.21 et seq., is to remand the case to the trial court for a reevaluation of the relevant factors. See Rittershaus v Rittershaus, 273 Mich App 462, 475-476; 730 NW2d 262 (2007) (remanding the case after the trial court made no factual findings regarding the best-interest factors delineated in the CCA and denied the defendant’s motion to change custody with no explanation). We conclude that the same standard should apply to a trial court’s failure to make factual findings under MCL 722.1207(2) before it concludes that it is an inconve nient forum. Accordingly, on remand, the trial court must take additional evidence and consider each factor under MCL 722.1207(2).
Finally, plaintiff argues that the trial court’s orders should be reversed because it relied on an ex parte communication from defendant. We disagree.
“Generally, to preserve an issue for appellate review, the issue must be raised before and decided by the trial court.” Detroit Leasing Co v Detroit, 269 Mich App 233, 237; 713 NW2d 269 (2005). Plaintiff did not object to the trial court’s consideration of the ex parte communication, a statement of residency that defendant faxed to the trial court. Therefore, this issue is not preserved for appeal. Unpreserved claims are reviewed for plain error, which “occurs at the trial court level if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, meaning it affected the outcome of the lower court proceedings.” Duray Dev, LLC v Perrin, 288 Mich App 143, 150; 792 NW2d 749 (2010).
We note that plaintiff has failed to cite any caselaw in his brief on appeal regarding the applicable standard to review this issue, and he has not supported with authority his assertion that the trial court’s orders must be reversed because of the ex parte communication. An appellant may not merely announce a position then leave it to this Court to discover and rationalize the basis for the appellant’s claims; nor may an appellant give an issue only cursory treatment with little or no citation of authority. McIntosh v McIntosh, 282 Mich App 471, 485; 768 NW2d 325 (2009). Further, “[t]his Court will not search for authority to sustain or reject a party’s position.” Phillips v Deihm, 213 Mich App 389, 401; 541 NW2d 566 (1995). Consequently, we find that plaintiff has abandoned this argument. Moreover, were there any error, it would be harmless.
In Grievance Administrator v Lopatin, 462 Mich 235, 262-263; 612 NW2d 120 (2000), our Supreme Court discussed the danger of ex parte communications:
“Ex parte communications deprive the absent party of the right to respond and be heard. They suggest bias or partiality on the part of the judge. Ex parte conversations or correspondence can be misleading; the information given to the judge ‘may be incomplete or inaccurate, the problem can be incorrectly stated.’ At the very least, participation in ex parte communications will expose the judge to one-sided argumentation, which carries the attendant risk of an erroneous ruling on the law or facts. At worst, ex parte communication is an invitation to improper influence if not outright corruption.” [Quoting Shaman, Lubet & Alfini, Judicial Conduct and Ethics (3d ed), § 5.01, pp 159-160.][ ]
The hearing transcript indicates that the trial court was not aware that counsel for the parties had not received a copy of the statement of residency that defendant personally faxed to the trial court. But, even assuming that the trial court erred by considering the ex parte communication, the record contains no indication that plaintiff was prejudiced by the trial court’s consideration of the document. The trial court acknowledged that it had received a statement of residency by fax at the beginning of the hearing, and when the court realized that neither attorney had received a copy of the document, the court immediately had copies provided to counsel. The trial court also asked defendant to “corroborate that document” on the record. Defendant did, in fact, verify and explain her timeline of KC’s residency since June 2011, but she was not under oath when she did so. While defendant was confirming the timeline, plaintiffs counsel stated on the record that based on school records, she disputed the amount of time that defendant claimed that she and KC lived in Georgia. It is apparent that plaintiff had the opportunity to challenge information in the ex parte communication and, in fact, disputed its accuracy. Likewise, it appears that the risks of incomplete or inaccurate information and one-sided argumentation identified by the Michigan Supreme Court in Lopatin were cured by the parties’ discussion on the record during the hearing regarding the facts in the document. See Lopatin, 462 Mich at 262-263.
Further, MCR 2.613(A) provides the following with regard to harmless errors: “[A]n error or defect in anything done or omitted by the court... is not ground for . . . vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.” Given that plaintiff had an opportunity to challenge, and actually did challenge, the information in the ex parte communication, we find no indication that the trial court’s consideration of the document was inconsistent with substantial justice. Therefore, because the trial court’s consideration of the ex parte communication did not constitute a plain error that affected plaintiffs substantial rights, and was instead harmless error, we will not reverse or otherwise modify on that basis the orders entered in this case. Id.; see also Duray, 288 Mich App at 150.
We vacate the trial court’s orders declining jurisdiction and dismissing the case. We remand for further proceedings consistent with this opinion. We do not retain jurisdiction. As the prevailing party, plaintiff may tax costs pursuant to MCR 7.219.
MARKEY, P.J., and OWENS and GLEICHER, JJ., concurred.
We note that the trial court could not have jurisdiction under MCL 722.1201(1)(c), given that both parties acknowledge that no other custody proceeding regarding KC has been initiated in another state, so no other state has already declined to exercise jurisdiction over this case in favor of Michigan.
The Code of Judicial Conduct, Canon 3(A)(4), also provides guidance for the judiciary regarding ex parte communications. | [
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PER CURIAM.
In this interlocutory appeal, the prosecution appeals by leave granted an order entered by the Washtenaw Circuit Court denying plaintiff s application for leave to appeal a district court order which granted defendant’s motion for a specific jury instruction. We reverse and remand.
The basic facts of this case are not in dispute. On June 5, 2013, as Michael John Bly used a pedestrian crosswalk to walk across Church Street in Ann Arbor, defendant made a left-hand turn onto Church Street and struck Bly with his vehicle. As a result of the collision, Bly suffered head trauma that left him permanently disabled. Defendant was charged under MCL 257.601d(2) with the misdemeanor offense of committing a moving violation causing serious impairment of a body function to another person.
Before trial, defendant moved the district court for a jury instruction requiring the prosecution to prove, as an element of the charged offense, that defendant was negligent in the operation of his vehicle. The prosecution argued, in contrast, that to prove the charge of committing a moving violation causing serious impairment of a body function, the applicable jury instruction, M Crim JI 15.19, required the prosecution to prove only that (1) defendant committed a moving violation, and (2) defendant’s operation of the vehicle caused serious impairment of a body function to another person. According to the prosecution, M Crim JI 15.19 accurately stated the law and there was no requirement that the prosecution also prove that defendant was negligent in his actions. The district court granted defendant’s motion, citing People v Tombs, 472 Mich 446; 697 NW2d 494 (2005), and reasoning that the Legislature did not expressly indicate an intention to dispense with negligence as an element of the offense.
The Washtenaw Circuit Court denied the prosecution’s application for leave to appeal the district court’s order. We granted the prosecution’s application for leave to appeal the Washtenaw Circuit Court’s denial of its application. In addition to the issue whether negligence is an element of the offense of committing a moving violation causing serious impairment of a body function, this Court directed the parties to address two issues: “(1) if negligence is not an element of committing a moving violation causing serious impairment of a body function, MCL 257.601d(2), then what, if any, mens rea is required for conviction of this offense; and (2) if no mens rea is required, is the statute constitutional?” People v Pace, unpublished order of the Court of Appeals, entered October 7, 2014 (Docket No. 322808).
On appeal, the prosecution contends that MCL 257.601d encompasses a preexisting negligence component such that the district court’s requirement of proof of negligence as a separate, distinct element was superfluous and contrary to legislative intent. Alterna tively, the prosecution contends that the statute is a constitutional, strict liability offense. We conclude that the Legislature’s intention to make MCL 257.60Id a strict liability offense is implicit.
Matters of statutory construction are questions of law, which this Court reviews de novo. People v Williams, 491 Mich 164, 169; 814 NW2d 270 (2012). Determining the elements of a crime is also a question of law that we review de novo. People v Holtschlag, 471 Mich 1, 4-5; 684 NW2d 730 (2004).
MCL 257.601d(2) provides:
A person who commits a moving violation that causes serious impairment of a body function to another person is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.
MCL 257.601d(4) states:
As used in this section, “moving violation” means an act or omission prohibited under this act or a local ordinance substantially corresponding to this act that involves the operation of a motor vehicle, and for which a fine may be assessed.
Thus, MCL 257.601d(2) clearly requires the prosecutor to prove that (1) a moving violation was committed, (2) another person suffered serious impairment of a body function, and (3) there was a causal link between the injury and the moving violation, i.e., factual and proximate causation. See M Crim JI 15.19. The statutory provision is silent with regard to fault or intent. However, “the failure to include a fault element in the statute does not end our inquiry. Where the statute does not include language expressly requiring fault as an element, this Court must focus on whether the Legislature nevertheless intended to require fault as a predi cate to guilt.” People v Adams, 262 Mich App 89, 93; 683 NW2d 729 (2004).
In Tombs, 472 Mich at 453, our Supreme Court noted that the United States Supreme Court begins its analysis of “whether a criminal intent element should be read into a statute . . . with the proposition that criminal offenses that do not require a criminal intent are disfavored.” See Morissette v United States, 342 US 246; 72 S Ct 240; 96 L Ed 2d 288 (1952). “The Court will infer the presence of the element unless a statute contains an express or implied indication that the legislative body wanted to dispense with it. Moreover, the Court has expressly held that the presumption in favor of a criminal intent or mens rea requirement applies to each element of a statutory crime.” Id. at 454-455, citing Morissette and its progeny. The Tombs Court expressly applied the precedent in Morissette and its progeny to the case before it. Id. at 456. According to Tombs, if there were no mens rea element in a criminal offense, “[a] statute could punish otherwise innocent conduct.” Id. at 458.
However, as Chief Justice COOLEY early observed in People v Roby, 52 Mich 577, 579; 18 NW 365 (1884):
I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence; and there are many other cases where mere neglect may be highly criminal. Many statutes which are in the nature of police regulations .. . impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.
Our Supreme Court still recognizes that there are circumstances where the lack of criminal intent does not preclude a criminal prosecution. In Holtschlag, 471 Mich at 17, our Supreme Court noted that a conviction of involuntary manslaughter “requires that the defendant acted with a mens rea of culpable negligence” when the homicide occurs during the commission of a lawful act. Citing People v Townsend, 214 Mich 267, 273-274; 183 NW177 (1921), and its discussion regarding the proofs necessary to demonstrate the “unlawful-act” and “lawful-act” theories of involuntary manslaughter, the Holtschlag Court noted:
[I]f the defendant committed an unlawful act that resulted in death, it is sufficient to allege the commission of the unlawful act and the resulting death; whereas, if the defendant committed a lawful act resulting in death, the prosecutor must specifically allege the manner in which the defendant’s actions were grossly or culpably negligent. That is, under Townsend, lawful-act manslaughter requires that the defendant acted with a mens rea of culpable negligence; whereas unlawful-act manslaughter does not require that the defendant acted with a specific mens rea — all that is required is that the defendant committed the unlawful act. [Holtschlag, 471 Mich at 17.]
Thus, as observed in Holtschlag, under some circumstances, the fact that a defendant committed an unlawful act is sufficient to form the basis of a criminal charge, even where a specific mens rea is absent.
This Court also noted in People v Janes, 302 Mich App 34, 42; 836 NW2d 883 (2013), “that the Legislature can constitutionally enact offenses that impose criminal liability without regard to fault” and that “whether the Legislature intended to enact [such an] offense is generally a matter of statutory interpretation.” These offenses, called strict liability offenses, are ones “in which the prosecution need only prove beyond a reasonable doubt that the defendant committed the prohibited act, regardless of the defendant’s intent and regardless of what the defendant actually knew or did not know.” Id. at 41-42 (quotation marks omitted). “[T]he distinction between a strict-liability crime and a general-intent crime is that, for a general-intent crime, the people must prove that the defendant purposefully or voluntarily performed the wrongful act, whereas, for a strict-liability crime, the people merely need to prove that the defendant performed the wrongful act, irrespective of whether he intended to perform it.” People v Lardie, 452 Mich 231, 241; 551 NW2d 656 (1996), overruled in part on other grounds by People v Schaefer, 473 Mich 418; 703 NW2d 774 (2005).
In Morissette, 342 US 246, the United States Supreme Court discussed the origin of criminal offense charges that disregard any intent. Citing the industrial revolution, increased traffic, the congestion of cities, and the wide distribution of goods, the Morissette Court noted that as dangers increased so did duties and regulations and that lawmakers sought to make the duties and regulations more effective by imposing criminal sanctions in some cases. Id. at 252-255. These “public welfare offenses” do not necessarily “result in [a] direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize.” Morissette, 342 US at 255-256.
[W]hatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. [Id. at 256.]
The purpose of imposing criminal penalties for conduct not involving any criminal intent is “to require a degree of diligence for the protection of the public which shall render violation impossible.” Id. at 257 (quotation marks and citation omitted). Examples of strict liability offenses include narcotics laws, traffic laws, adulterated food or drug laws, criminal nuisances, and liquor control laws. People v Nasir, 255 Mich App 38, 42; 662 NW2d 29 (2003).
“Courts in this country have almost universally held that traffic violations are strict liability offenses, in which the motorist’s negligence or lack of intent to commit the infraction is irrelevant.” People v Jones, 132 Mich App 368, 370; 347 NW2d 235 (1984). For example, in Stanley v Turner, 6 F3d 399 (CA 6, 1993), the United States Court of Appeals for the Sixth Circuit addressed an Ohio statute defining involuntary manslaughter as causing death during the commission of a misdemeanor driving offense, without a separate mens rea requirement. The Sixth Circuit noted that:
[W]here a criminal statute prohibits and punishes conduct not innocent or innocuous in itself, the criminal intent element may be dispensed with if the criminal statute is designed for the protection of the public health and safety and if it has no common law background that included a particular criminal intent. Because citizens are presumed to know the ordinary traffic safety laws and that violating them is dangerous and wrong, Ohio’s involuntary manslaughter statute, as applied in this case, is based on the obviously wrongful and blameworthy conduct of violating traffic safety laws. [Id. at 404.]
As the Court in Stanley recognized, public welfare statutes, such as those regulating traffic, that dispense with the requirement of mens rea on the basis that citizens are presumed to know the ordinary traffic safety laws and that violating them is dangerous, do not offend due process. Id. at 404-405.
Based on the above reasoning and the Legislature’s use of the term “moving violation” without any reference to mens rea, we can infer that the Legislature intended to dispense with the criminal intent element of committing a moving violation causing serious impairment of a body function, and that it intended to make such a violation a strict liability offense. “[T]he Legislature is presumed to know of and legislate in harmony with existing laws.” People v Cash, 419 Mich 230, 241; 351 NW2d 822 (1984) (quotation marks and citation omitted). MCL 257.60M is a public welfare statute — it imposes criminal penalties on a person who endangers the public, regardless of intent, by committing a moving violation causing serious impairment of a body function to another person. “[I]t is the motorist’s duty in the use and operation of his automobile to exercise ordinary and reasonable care and caution, that is, that degree of care and caution which an ordinarily careful and prudent person would exercise under the same or similar circumstances.” Zarzecki v Hatch, 347 Mich 138, 141; 79 NW2d 605 (1956). The commission of a moving violation indicates that the motorist failed to exercise the requisite care and caution, regardless of intent, and as previously indicated, the violation of a traffic law is typically a strict liability offense. Nasir, 255 Mich App at 42. Thus, MCL 257.601d is a strict liability offense.
Because the Legislature implicitly intended to make MCL 257.60M a strict liability offense, the prosecution is required to prove only that (1) defendant committed a moving violation, (2) another person suffered serious impairment of a body function, and (3) there exists a causal link between the injury and the moving violation, i.e., factual and proximate causation. The prosecution is not required to prove that defendant operated his vehicle in a negligent manner, and the trial court erred by so concluding.
After reaching the conclusion that the prosecution is not required to prove negligence, we next consider whether MCL 257.601d is constitutional. Constitutional questions are reviewed de novo by this Court. People v Conat, 238 Mich App 134, 144; 605 NW2d 49 (1999).
“[T]he United States Supreme Court has recognized as a general matter that the constitution does not preclude the enactment of even strict liability criminal statutes.” People v Quinn, 440 Mich 178, 185; 487 NW2d 194 (1992), citing Lambert v California, 355 US 225; 78 S Ct 240; 2 L Ed 2d 228 (1957). See also Janes, 302 Mich App at 42, citing Quinn, 440 Mich at 188 (“Our Supreme Court has recognized that the Legislature can constitutionally enact offenses that impose criminal liability without regard to fault.”). This is especially the case with public welfare regulations. There does not appear to be a well-settled test for determining when a strict liability crime offends due process. However, this Court has previously acknowledged that “ ‘[t]he elimination of the element of criminal intent does not violate the due process clause where (1) the penalty is relatively small, and (2) [the] conviction does not gravely besmirch.’ ” People v Olson, 181 Mich App 348, 352; 448 NW2d 845 (1989), quoting United States v Wulff, 758 F 2d 1121, 1125 (CA 6, 1985). See also Lardie, 452 Mich at 255 (noting that “the penalties for public-welfare strict-liability crimes generally are relatively small and do no grave damage to an offender’s reputation”) (quotation marks and citations omitted).
There is no question that the Legislature had the constitutional authority to enact MCL 257.601d as a strict liability offense concerning public welfare. Lambert, 355 US at 228; Quinn, 440 Mich at 188; Janes, 302 Mich App at 42. We are satisfied that imposing strict liability for the offense of committing a moving violation causing serious impairment of a body function does not offend due process. First, the offense is a misdemeanor; that is, despite the severe harm that such an offense inflicts on the victim, it is punishable only by imprisonment for not more than 93 days, or a fine of not more than $500, or both. The penalty is thus relatively small. See People v Adams, 262 Mich App 89, 98-99; 683 NW2d 729 (2004) (upholding the strict liability crime of failing to pay child support despite a potential four-year term of imprisonment). Second, because the crime is a misdemeanor only, it is far less likely to “besmirch” the defendant. Cf. Wulff, 758 F 2d at 1125 (“[A] felony conviction irreparably damages one’s reputation . . . .”). Thus, we conclude that it does not offend due process to hold individuals strictly liable for committing moving violations that cause serious impairment of a body function to another individual.
In sum, MCL 257.601d imposes strict liability on a motorist who commits a moving violation causing serious impairment of a body function to another person, when the moving violation is the factual and proximate cause of the injury, and MCL 257.60M is constitutional. The prosecution is not required to prove that defendant operated his vehicle in a negligent manner, and the trial court erred by so concluding.
Reversed and remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction.
Wilder, P.J., and Servitto and Stephens, JJ., concurred.
This conclusion is also supported by the legislative history. We recognize “that legislative [bill] analyses are ‘generally unpersuasive tool[s] of statutory construction’ ” and “do not necessarily represent the views of any individual legislator.” Kinder Morgan Mich, LLC v City of Jackson, 277 Mich App 159, 170; 744 NW2d 184 (2007) (citation omitted; second alteration in original). However, the analyses “do have probative value in certain, limited circumstances.” Id.
MCL 257.601d was added to the Michigan Vehicle Code by 2008 PA 463, effective October 31, 2010. At the same time MCL 257.601d was added, the offenses of negligent homicide, MCL 750.325, and felonious driving, MCL 257.626c, were repealed. The legislative bill analyses, attached to the prosecution’s brief, suggest that the changes were made in response to concerns by legislators that
[t]he current standard for determining whether a person is guilty of negligent homicide or felonious driving is ambiguous, based on whether the person operated the vehicle in a careless, reckless or negligent manner. The language prescribing those offenses is antiquated and based on common law notions of negligence. Applying those concepts to criminal law creates some uncertainty about what constitutes a violation, leading to inconsistent enforcement of the law. For example, a driver who loses control of a car on an icy overpass and is involved in a fatal accident could have foreseen the possibility that the bridge might be icy, and therefore could be charged with negligent homicide, although most people would not consider that to be appropriate in such a case. The bill would remove that ambiguity, and instead enact prohibitions under which a person would not be guilty of a criminal offense unless a moving violation had occurred. This would reduce inconsistencies in the application of the law and clarify proscribed conduct. [Senate Legislative Analysis, SB 104, August 5, 2008, available at <http://www.legislature.mi.gov/documents/2007-2008/ billanalysis/Senate/pdf/2007-SFA-0104-B.pdf> (accessed March 26, 2015) [http://perma.cc/9M4M-JY5T].]
By enacting MCL 257.601d and repealing the felonious driving and negligent homicide statutes, the Legislature sought to erase uncertainty about what conduct was punishable by focusing solely on whether a motorist committed a moving violation, instead of determining whether the motorist’s conduct was careless, reckless, or negligent. | [
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PER CURIAM.
Plaintiff appeals as of right the trial court’s order awarding defendant sole physical and legal custody of the parties’ son, JM. We affirm.
I. FACTUAL BACKGROUND
Plaintiff and defendant married in 2002, and JM was born three years later. A little more than a year after JM was born the parties separated, but they did not finally divorce until 2012. Custody issues arose during the pendency of the divorce proceedings and resumed within months of the entry of a divorce judgment. In addition to the multiple motions for a show-cause hearing filed with the court, the parties were also involved in several Children’s Protective Services (CPS) investigations instigated by plaintiff. CPS found each report to be unsubstantiated. In 2013, a petition to change custody was filed in conjunction with a motion to show cause. The trial court conducted an evidentiary hearing on the custody petition that spanned four months and included seven days of testimony and argument. At the close of those proceedings, the court entered an order granting defendant sole legal and physical custody of JM and granting plaintiff unsupervised visitation with a standard visitation schedule. After an acrimonious initial visitation between JM and plaintiff, the court modified its order on May 22,2014, to require that plaintiff’s visitation be supervised unless a psychological evaluation recommended otherwise. It is that order that plaintiff appeals.
II. standard of review
We review a trial court’s fact-finding to determine if it is against the great weight of the evidence. Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). Atrial court’s determination on the issue of custody is reviewed for an abuse of discretion. Shulick v Richards, 273 Mich App 320, 323; 729 NW2d 533 (2006). In child custody cases, an abuse of discretion occurs if “ ‘the result [is] so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’ ” Id. at 324 (citation omitted).
Plaintiff asks this Court to reconsider our decision in Shulick, in which we determined that this articulation of the “abuse of discretion” standard remained the proper standard in child custody cases in light of the Supreme Court’s decision in Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006), that a different articulation, the “principled outcomes” standard, was the “default abuse of discretion standard.” Shulick, 273 Mich App at 323-325. We decline. This Court’s definition of “abuse of discretion” derives from the Supreme Court’s ruling in another child custody case, Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). Shulick, 273 Mich App at 324-325. While Maldonado articulated a general “default” definition of “abuse of discretion,” it was Spalding that addressed the term within the specific context of child custody. “A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals . . . .” MCR 7.215(J)(1).
In Fletcher v Fletcher, 447 Mich 871, 879-880; 526 NW2d 889 (1994), the Supreme Court stated that because the Legislature used the word “palpable” in the Child Custody Act, MCL 722.21 et seq., the same word the Court had used in Spalding, it must have meant to adopt the definition of “abuse of discretion” articulated in Spalding. This Court is bound to follow the precedent of the Supreme Court. See State Treasurer v Sprague, 284 Mich App 235, 242; 772 NW2d 452 (2009).
III. ANALYSIS
A. THE TRIAL COURT’S CUSTODY DETERMINATION
Plaintiff argues that the trial court’s custody determination was erroneous for numerous reasons. She argues that the court erred by failing to consider the reasonable preference of the child. She asserts that the court erred by both deciding custody before the completion of her psychological evaluation and using her failure to obtain such an evaluation as evidence in the court’s custody decision. Finally, she contends that the court was biased against her.
1. REASONABLE PREFERENCE OF THE CHILD
Plaintiffs first claim of error is that the trial court failed to consider JM’s reasonable preference because it did not interview him. Plaintiff asks this Court to hold that the recent case of Kubicki v Sharpe, 306 Mich App 525; 858 NW2d 57 (2014), requires that a trial court conduct an interview of the child in all but the most extraordinary of circumstances. In Kubicki, the Court stated, “Kegardless whether the parties wished for an interview, the court was affirmatively required to consider the child’s preference.” Id. at 544-545. In the instant case, the trial court declined to interview the child. In doing so, the court stated:
The reasonable preference of the child if the Court considers the child to be of sufficient age to express a preference. [JM] turned nine during these proceedings. Neither party asked that he be interviewed. He suffers from anxiety and adjustment disorder and has been subjected to various evaluations and counseling appointments. There is a concern he struggles with ADHD. He has been exposed to inappropriate and inaccurate information and there are concerns which I will expand on later that [JM] has been coached. It is unlikely even if he were interviewed that he would be able to express a reasonable preference ....
Kubicki did not announce a new legal mandate that every child over a certain age be interviewed to ascertain a reasonable preference. Following a long line of cases, Kubicki highlighted the standing principle that a court may not abrogate its responsibility to consider each of the enumerated best-interest child custody factors on the basis of a stipulation of the adults in a case. The right to have a reasonable preference considered attaches to the best interests of the child, not to the rights of the contestants in the custody battle. The term “reasonable preference” has been defined by this Court as a standard that “exclude [s] those preferences that are arbitrary or inherently indefensible.” Pierron v Pierron, 282 Mich App 222, 259; 765 NW2d 345 (2009), affd by and quoted in Pierron, 486 Mich at 92. The Child Custody Act requires that the court consider the reasonable preference of the child, if one exists. MCL 722.23(i). A preliminary question is always whether the child has the capacity to form a reasonable preference and, if so, whether the child has actually formed a preference. A child over the age of six is presumed to be capable of forming a reasonable preference. Bowers v Bowers, 190 Mich App 51, 55-56; 475 NW2d 394 (1991). Undoubtedly, “an expression of preference by an intelligent, unbiased child might be the determining factor in deciding what the ‘best interests’ of the child are.” In re Custody of James B, 66 Mich App 133, 134; 238 NW2d 550 (1975); see also Lewis v Lewis, 73 Mich App 563, 566; 252 NW2d 237 (1977), and Bowers, 190 Mich App at 56. However, no court has ruled that every child over the age of six actually has the capacity to form a preference. Just as adults may lack the capacity to give competent testimony because of infirmity, disability, or other circumstances, so may a child’s presumed capacity be compromised by circumstances peculiar to that child’s life. Additionally, an interview is merely one avenue from which to adduce a child’s capacity to form a preference and the preference itself, and not the sine qua non from which that determination must be made. Trial judges, learned in the law, are not necessarily the best persons to approach a child on this issue. Just as a protocol has been developed for interviewing child assault victims, this issue might well be best addressed with the development of an evidence-based protocol for interviewers seeking to ascertain a child’s preference for custody. Additionally, it is not uncommon for children in the midst of family reorganization to be under the care of trained mental health care professionals from whom the trial court can seek input on many of the best-interest factors, including preference.
In this case the trial court did not interview JM, but did make an implicit fact-finding that this particular child could not formulate or express a reasonable preference, one that was not based on the inherently indefensible basis of coaching and emotional distress. In making this fact-finding, the court had before it a record that included JM’s diagnosis of both depressive disorder and ADHD. Additionally, the record contained evidence of four unsubstantiated CPS complaints, testimony from therapists who opined that JM was being coached, and a traumatic visitation exchange that JM perceived to be a kidnapping. Additionally, more than one witness also testified that plaintiff voiced concerns and criticisms of defendant in the child’s presence. Accordingly, the court found that while JM was of sufficient age to be able to form and express a preference, his fragile emotional state, coupled with significant efforts to influence his preference, rendered him unable at the time to form a reasonable preference. Clearly, the court fulfilled its statutory duty. The court’s fact-finding was supported by the record and is affirmed.
2. PSYCHOLOGICAL EVALUATION
Next, plaintiff argues that the trial court abused its discretion by reaching a custody decision without considering her psychological evaluation. We disagree. Our decision in McIntosh v McIntosh, 282 Mich App 471, 472; 768 NW2d 325 (2009), makes it clear that the failure to consider a psychological evaluation cannot be the sole basis for overturning a trial court’s decision on custody. In McIntosh, this Court held that psychological evaluations “are but one piece of evidence amongst many, and are not by themselves dispositive in determining custody . . . .” Id. We explained that “psychological evaluations are not conclusive on any one issue or child custody factor” and that “[t]he ultimate resolution of any child custody dispute rests with the trial court.” Id. at 475. Moreover, in evaluating the child custody factors, the trial court may consider the relative weight of the factors and is not required to give them equal weight. Sinicropi v Mazurek, 273 Mich App 149, 184; 729 NW2d 256 (2006).
3. FAILURE TO ABIDE BY COURT ORDERS
Plaintiff also argues that the trial court erred by considering her repeated failure to abide by court orders to obtain a psychological evaluation. The trial court determined that plaintiffs inability to have a psychological evaluation as ordered weighed against her on two best-interest factors: Factor (g), MCL 722.23(g) (mental and physical health of the parties) and Factor (I), MCL 722.23® (any other factor relevant to the dispute). The trial court erred in its evaluation of these two factors according to our holding in Adams v Adams, 100 Mich App 1,13; 298 NW2d 871 (1980) (“Disputes regarding visitation and contempt are not a proper basis for changing custody.”). However, the error is harmless. Four other factors favored defendant without any indication of error in their consideration, and none favored plaintiff. In order for plaintiff to show that she should have been awarded custody, it is not only necessary for her to show that the trial court erred in its consideration of some of the factors that favored defendant, but also that some of the factors favored her. See Dempsey v Dempsey, 409 Mich 495, 498-499; 296 NW2d 813 (1980).
4. BIAS
Plaintiff also argues that the trial court treated her unfairly by precluding hearsay testimony from her witnesses, but not from defendant’s witnesses. In support of this argument, plaintiff cites several instances in which the court allowed defendant to testify about out-of-court statements by plaintiff that she erroneously refers to as inadmissible hearsay. These statements were not hearsay. MRE 801(d)(2). She also relies on a single instance in which the trial court allowed defendant to testify about a statement JM made that was hearsay. Even assuming that admission of this statement was erroneous, plaintiff has not shown that the actions of the trial court rose to a level of bias.
B. THE TRIAL COURT’S PARENTING-TIME DETERMINATION
“Parenting time shall be granted in accordance with the best interests of the child.” MCL 722.27a(l). A trial court should grant parenting time “in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.” Id. The following factors may be considered:
(a) The existence of any special circumstances or needs of the child.
(b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.
(c) The reasonable likelihood of abuse or neglect of the child during parenting time.
(d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
(e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
(g) Whether a parent has frequently failed to exercise reasonable parenting time.
(h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. . ..
(i) Any other relevant factors. [MCL 722.27a(6)J
“Orders concerning parenting time must be affirmed on appeal unless the trial court’s findings were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue.” Shade v Wright, 291 Mich App 17, 20-21; 805 NW2d 1 (2010) (quotation marks and citation omitted). The trial court must consider the best interests of the child even if it does not explicitly address the statutory factors. Id. at 31-32. The parenting-time order here was changed after an emergency hearing and only a week after the court’s initial ruling granting unsupervised visitation. While the trial court did not explicitly go through all the factors in MCL 722.27a(6), it did state that it had reviewed and considered them.
The trial court was reasonably concerned about the status of JM’s mental and emotional health when around plaintiff. In addition to the dense record that the court had from the protracted custody hearing, the court received testimony at the emergency hearing regarding plaintiffs behavior since JM had moved to defendant’s home. Plaintiff admitted sending texts to defendant threatening to terminate all insurance for the benefit of JM. Plaintiff also admitted sending a letter to JM telling him that defendant’s home was a temporary place for him. There was evidence that plaintiff told the wife of JM’s coach that defendant had physically abused JM, similar to her four previous claims of abuse to CPS. The court stated, “[P]laintiff cannot separate her own emotional distress and anxiety from her son’s, cannot act in a manner that’s in his best interest, at this time, and is, clearly, trying to undermine the defendant as a parent.” The record supports this conclusion. The trial court’s grant of parenting time was in accordance with JM’s best interests.
Affirmed.
Ronayne Krause, P.J., and K. F. Kelly and Stephens, JJ., concurred.
Section 8 of the Child Custody Act, MCL 722.28, states:
To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal 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.
See Foskett v Foskett, 247 Mich App 1, 9; 634 NW2d 363 (2001); Bowers v Bowers, 190 Mich App 51, 54-55; 475 NW2d 394 (1991); Daniels v Daniels, 165 Mich App 726, 730; 418 NW2d 924 (1988); Arndt v Kasem, 135 Mich App 252, 255; 353 NW2d 497 (1984); Speers v Speers, 108 Mich App 543, 545; 310 NW2d 455 (1981); Dowd v Dowd, 97 Mich App 276, 278-279; 293 NW2d 797 (1980); Troxler v Troxler, 87 Mich App 520, 523; 274 NW2d 835 (1978). | [
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PER CURIAM.
Plaintiff, Beckett-Buffum Agency, Inc., appeals as of right the trial court’s order granting defendant Allied Property & Casualty Insurance Company’s motion for summary disposition under MCR 2.116(0(10). Because plaintiff submitted fewer than 25 applications for insurance during the relevant time period, defendant could cancel plaintiffs Agency Agreement under MCL 500.1209(2)(e), and therefore, we affirm.
On January 7, 2010, plaintiff entered into an Independent Agency Agreement with defendant under which plaintiff was to serve as an agency for defendant in the insurance industry. On December 6, 2011, defendant sent plaintiff a letter terminating the Agency Agreement based on plaintiffs lack of production. In particular, under MCL 500.1209(2)(e) of the Insurance Code, MCL 500.100 et seq., an insurer may terminate an insurance producer’s authority to represent the insurer with respect to automobile insurance or home insurance, when the insurance producer submits “less than 25 applications for home insurance and automobile insurance within the immediately preceding 12-month period.”
In response to its termination, plaintiff filed this action, alleging that defendant breached its contractual and statutory duties to plaintiff when it terminated the Agency Agreement because plaintiff had submitted to defendant 29 applications for insurance policies in the applicable 12-month period. After the close of discovery, defendant moved for summary disposition under MCR 2.116(0(10). Defendant argued, in relevant part, that 6 of the 29 policies were policy renewals, not applications, meaning that plaintiff had not reached the statutory threshold of 25 applications, and termination was therefore appropriate. The trial court granted defendant’s motion on this basis, and plaintiff now appeals as of right.
On appeal, plaintiff argues that the trial court erred by granting summary disposition to defendant because plaintiff submitted more than 25 applications to defendant within the relevant 12-month time period. Specifically, consistently with its arguments in the trial court, plaintiff maintains that the disputed 6 renewals of lapsed policies should be counted as “applications for home insurance and automobile insurance” within the meaning of MCL 500.1209(2)(e). If these 6 renewals constitute applications, the parties agree that plaintiff submitted more than 25 applications in the relevant 12-month period.
We review de novo a trial court’s grant of summary disposition. Comerica Bank v Cohen, 291 MichApp 40, 45; 805 NW2d 544 (2010). “A motion under MCR 2.116(0(10) tests the factual sufficiency of the complaint” and is properly granted as a matter of law when there is no “genuine issue regarding any material fact.” Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004) (quotation marks and citation omitted). When reviewing a motion for summary disposi tion under MCR 2.116(C)(10), we consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party. Id. “There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
In this case, whether the six policy renewals credited to plaintiff constitute applications involves a question of statutory interpretation. We review de novo issues of statutory interpretation. Hoffman v Boonsiri, 290 Mich App 34, 39; 801 NW2d 385 (2010). “The primary goal of statutory interpretation is to give effect to the Legislature’s intent,” and it is well-recognized that “[t]he words of a statute provide the most reliable evidence of its intentf.]” Klooster v City of Charlevoix, 488 Mich 289, 296; 795 NW2d 578 (2011) (quotation marks and citations omitted). Consequently, we focus on the statute’s plain language. Id. “Unless statutorily defined, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used.” Krohn v Home-Owners Ins Co, 490 Mich 145, 156; 802 NW2d 281 (2011). A dictionary may be consulted to determine a word’s common and ordinary meaning. Id. “When the language is clear and unambiguous, we will apply the statute as written and judicial construction is not permitted.” Driver v Naini, 490 Mich 239, 247; 802 NW2d 311 (2011).
The relevant statutory language at issue in this case provides:
(2) As a condition of maintaining its authority to transact insurance in this state, an insurer transacting automobile insurance or home insurance in this state shall not cancel an insurance producer’s contract or otherwise terminate an insurance producer’s authority to represent the insurer with respect to automobile insurance or home insurance, except for 1 or more of the following reasons:
* *
(e) Submission of less than 25 applications for home insurance and automobile insurance within the immediately preceding 12-month period. [MCL 500.1209(2)(e) (emphasis added).]
At its most basic in this context, an “application” is a “request” or “petition.” Merriam-Webster’s Collegiate Dictionary (2014). “Submission” in this context indicates “an act of submitting something (as for consideration or inspection) [.]” Id. “Submitting” means “presenting] or proposing] to another for review, consideration, or decision[.]” Id. And finally, the term “insurance” generally denotes “coverage by contract whereby one party undertakes to indemnify or guarantee another against loss by a specified contingency or peril [.]” Id. Thus, MCL 500.1209(2)(e) plainly envisions that to continue its Agency Agreement, an insurance producer would present for the insurer’s consideration requests for insurance contracts providing home and automobile coverage.
Contrary to plaintiffs argument, the statute does not contemplate renewal of existing policies or the reinstatement of lapsed policies as “applications.” That is, when an insurance contract is renewed, a request for coverage has been previously made and granted, and the renewal is “merely a continuation or extension of the original contract.” See 2 Couch, Insurance, 3d, § 29:35, p 68. Indeed, an initial request for insurance typically involves a written application to the insurer, while such a document is not necessarily required for a mere renewal of a policy. See, e.g., MCL 500.3037(1) and (6). Likewise, there is a distinction between a request for an insurance policy and the reinstatement of a lapsed policy. When a lapsed policy is subsequently reinstated, the reinstatement “is not a new contract of insurance, nor is it the issuance of a policy of insurance; but rather it is a contract by virtue of which the policy already issued, under the conditions prescribed therein, is revived or restored after its lapse.” New York Life Ins Co v Buchberg, 249 Mich 317, 321; 228 NW 770 (1930). Therefore, renewal of an existing policy or reinstatement of a lapsed policy is not in actuality a request for an insurance policy because such a policy already exists. We are, in short, persuaded that the reference to “applications for home insurance and automobile insurance” does not encompass subsequent efforts to extend or revive previously existing coverage. See Black’s Law Dictionary (6th ed) (defining “application” in the context of insurance as “[t]he preliminary request, declaration, or statement made by a party applying for an insurance policy)” (emphasis added).
Consistently with this conclusion, defendant produced, as support for its motion for summary disposition, an affidavit from Jessica Zaugg, an underwriting director for defendant. Zaugg averred that defendant does not consider either the renewal of policies or the reissuance of lapsed or cancelled policies to be applica tions for insurance. According to Zaugg, defendant does not perform the same underwriting practices for the renewal of policies or the reissuance of policies as it does for new applications, and generally, an insured does not have to submit a signed application before a policy is renewed or reissued. Moreover, for each of the six renewed policies at issue, Zaugg indicated that the policyholders originally applied for and received coverage before the time period at issue. Zaugg further explained that each of the renewed policies had the same policy numbers as the insureds’ original policies and that “a signed application was not submitted by or on behalf of’ the insureds before the policies were reissued. Plaintiff likewise concedes that the 6 policies at issue were merely renewals or reinstatements of previously existing coverage. Consequently, viewing the record in the light most favorable to plaintiff, it is clear that plaintiff did not submit 25 applications during the 12 months immediately preceding defendant’s termination of plaintiffs Agency Agreement, and thus, termination was proper under MCL 500.1209(2)(e).
Because defendant was statutorily permitted to terminate the Agency Agreement if plaintiff submitted “less than 25 applications for home insurance and automobile insurance within the immediately preceding 12-month period,” MCL 500.1209(2)(e), plaintiffs claim that defendant breached its statutory duties to plaintiff when it terminated the Agency Agreement fails. Further, the Agency Agreement permitted defendant to terminate the contract at any time by 90 days’ written notice, and there is no dispute that defendant complied with this procedure. Therefore, plaintiffs claim that defendant breached its contractual duties to plaintiff when it terminated the Agency Agreement also fails. As such, the trial court properly granted defendant’s motion for summary disposition under MCR 2.116(0(10).
Affirmed.
Hoekstra, P.J., and O’Connell and Murray, JJ., concurred.
As used in MCL 500.1209(2)(e), “home insurance” and “automobile insurance” mean specifically the home and automobile insurance contemplated by MCL 500.2103(3) and MCL 500.2102(2) respectively. See MCL 500.1209(5).
We note, however, that in some cases, an application or request for insurance may be made orally. See MCL 500.2122(1). | [
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Moore, J.
Plaintiff brought suit on the following note:
“$570.00. Woodland, Mich., Nov. 7th, 1893.
“On or before Nov. 7th, 1894, after date, I promise to pay to the order of P. F. Hilbert, at Exchange Bank, Woodland, Mich., five hundred seventy dollars, with interest at seven per cent, until paid, value received; interest payable annually. The indorsers, signers, sureties, and guarantors severally waive presentment for payment, protest, and notice of protest, and notice of nonpayment of this note, and diligence in bringing suit against any party to this note, and agree that time of payment may be extended without notice or .other consent, and without affecting their liability.
“Due Nov. 7, 1894.
[Signed] “Albert Barry.”
On the back of the note was the following guaranty of payment:
“Woodland, Mich., Nov. 19,1894.
“For value received, I hereby guarantee payment of the within note, and waive demand and notice of protest on same when due.
[Signed] “Woodland Roller Mill Co., Limtd.,
“F. F. H., Secty.”
Also the following indorsement of ■ payment:
“July 5, 1894. Reed, seventy dollars.
“W. R.' M. Co.,
“F. F. Hilbert.”
By direction of the court, the jury returned a verdict in favor of the plaintiff. Defendant appeals.
It is defendant’s claim that he, with plaintiff and 10 others, formed a copartnership association, under chapter 79, 1 How. Stat., to engage in the milling business; that the association contracted debts which, under the law, it could not make; that it was represented to him that his share of the debts was the amount of this note, and that by the giving of it he would be released from liability on said indebtedness; that a receipt was given him, purporting to release him; that afterwards the association expired by limitation, and a new company was organized; that the property was turned over to it, instead of paying with it the debts of the old company; that by the terms of 1 How. Stat. § 2366, he, as a member of the association, would not be liable to pay any of the debts of the association, as he had paid up the full amount of his subscription ; that no consideration passed for the giving of the note in controversy; that Mr. Hilbert knew all the facts, and the court should have directed a verdict in favor of the defendant.
The defendant was not sworn as a witness, nor did he produce any witnesses. An inspection of the record shows that, prior to giving the note in controversy, the association had contracted debts, and had given its notes, for several thousand dollars, and that the defendant, with others, had guaranteed the payment of these notes. They were discounted, and the funds used by the association. Prior to the giving of the note in question, Mr. Barry desired to sell his stock, free from any liability; and, at his request, the amount of the debts of the association was ascertained, which amount included notes the payment of which he had guaranteed; and the share that should be borne by his stock was agreed upon, and the note was at that time given for that amount, and a receipt was given him, purporting to discharge him from any liability for the debts upon the payment of the note then given. A resolution was adopted at his request, allowing him to transfer his stock, and he did transfer it. The plaintiff' testified that the note was made' payable to his order because he -was to furnish the money tc the association to pay the amount that Mr. Barry was to pay of the debts of the company, and that Mr. Barry understood this; that plaintiff after-wards did advance the money, just as he had agreed with the association and Mr. Barry that he would do; and that Mr. Barry agreed to pay the note. This testimony was corroborated in many particulars by Mr. Hough, and is not contradicted by the defendant or any one else. We think the circuit judge very properly directed a verdict in favor of the plaintiff.
Judgment is affirmed.
The other Justices concurred. | [
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Long, C. J.
The defendant began business in Grand Bapids in the summer of 1892, and on August 22d of that year issued to William T. Lamoreaux 10 shares of its capital stock1, of the par value of $1,000. In October following he opened an account with, and became indebted to, the defendant, continuing indebted to it up to the time of his death, November 10, 1895. That indebtedness at all times exceeded the sum of $2,000, and 'was evidenced by his promissory notes. At the time of his death he was indebted in large sums, both as maker and indorser of notes, "and of this sum $5,000 was past due and unpaid. He was also indebted to the bank to the amount of $6,000, which had not yet matured. On January 29, 1895, he borrowed from the Michigan Trust Company $1,000, making an assignment to it of his certificate of stock in the defendant bank, and delivering it, and also making a collateral agreement, containing a power to sell said stock if the note given to secure the loan of $1,000, or any renewal, was not paid within 10 days after it became due. The note of that date was renewed August 1st, payable 6 months after date, with 7 per cent, interest. This last note, when it matured, was not paid, and, after waiting the time speci-. fied in the agreement, the plaintiff advertised the stock for sale according to the terms of the pledge, and sold the same to Henry D. Walbridge for $900. The defendant, it appears, had no knowledge or notice that the Michigan Trust Company had or claimed any interest in the shares of stock, as pledgee or otherwise, until December 10,1895. This was a month after Lamoreaux’s death. In January and July of that year dividends upon these shares were paid to Mr, Lamoreaux by the defendant. On December 9,1895, the Michigan Trust Company gave notice to the bank that it was the owner of the shares of stock. It was stated in that notice that the plaintiff held the stock as collateral to the note of Lamoreaux for $1,000, dated August 1, 1895, due six months after date, with interest at 7 per cent, per annum, and it was further stated: “It becomes apparent to us that we shall have to look to this stock for the payment of the note.” On the next day the defendant bank wrote the plaintiff that its letter was received, and recited: “At the date on which said notice was received by this bank, the said W. T. Lamoreaux was a debtor to this bank, both as principal and as an indorser, on paper overdue.” The defendant thereafter refused to recognize the rights of any person in this stock certificate by reason of such transfer, because Lamoreaux, at the time demand for'transfer was made, was indebted to the defendant on an obligation that was due and unpaid, although it appears that such indebtedness was not due and unpaid at the time of the transfer of the stock to the Michigan Trust Company. This action was brought to recover the value of the stock certificate. On the trial the court directed verdict and judgment for the defendant.
The plaintiff contends that the transfer and delivery of the stock to it by Lamoreaux on January 29,1895, created a lien prior to any lien which the defendant afterwards obtained under the statute, and relies upon the following provisions of 1 Howell’s Annotated Statutes: Section 4866:
_ “Whenever the capital stock of any such corporation is divided into shares, and certificates thereof are issued, such shares may be transferred by indorsement and delivery of the certificates thereof, such indorsement being by the signature of the proprietor, or his attorney or legal representative; but such transfer shall not be valid, except between the parties thereto, until the same shall have been so entered on the books of the corporation as to show the names of the parties by and to whom transferred, the number and designation of the shares, and the date of the transfer.”
Section 4901 provides:
“Any person holding stock in any such corporation may have the same transferred upon the books of such agency within this State, upon the same terms, conditions, and restrictions as is provided by law, or the rules of such corporation, for such transfer at the principal office of such corporation, wherever it may be situated.”
It is contended that, under these provisions of the statute, the property in the shares of stock passed to the plaintiff, by the delivery of the certificate and proper indorsement thereon, without the formality of a transfer on the books of the defendant bank, and that the defendant had no right in this stock, because, at the time of the transfer to plaintiff, it had no lien upon the stock, there being no indebtedness to the bank by Lamoreaux which was matured and unpaid. On the other hand, it is contended by counsel for defendant that the transfer to the plaintiff was not effectual, except as between the parties thereto, and could not be made effectual, under the provisions of the statute, to transfer title, until such transfer was entered upon the books of the corporation,' and that, at the time the defendant bank had notice of the transfer to the plaintiff, the indebtedness of Lamoreaux to the bank had matured and was unpaid, and it was not then bound to make the transfer upon the books of the bank, as its lien had then attached. Counsel cite 3 How. Stat. § 3208aS, as follows:
“The shares of stock of such bank shall be deemed personal property, and shall be transferred on the books of the bank in such manner as the by-laws thereof may direct; but no transfer of stock shall be valid against a bank so long as the registered holder thereof shall be liable as principal debtor, surety, or otherwise to the bank for any debt which shall be due and unpaid, nor in such case shall any dividend, interest, or profits be paid on such stock so long as such liabilities continue, but all such dividends, interest, or profits shall be retained by the bank, and applied to the discharge of such liabilities; and no stock shall be transferred on the books of any bank without the consent of the board of directors, where the registered holder thereof is in debt to the bank for any matured and unpaid obligations.”
It is unnecessary, in the present case, to determine what were the rights of the Michigan Trust Company at the time the certificate of stock was transferred to it in January, 1895. It is claimed that, had the plaintiff at that time demanded a transfer to it from the bank upon its books, the bank would have been obliged to make such transfer; but that question we do not determine. Instead of the demand being made by the plaintiff to have the transfer made upon the books of the bank before the indebtedness from Lamoreaux to the latter had matured, the plaintiff waited from January to the 9th of December following before making such demand. In the meantime the bank had from time to time given Lamoreaux credit, taking and renewing his promissory notes, when, on the 9th of December, a part at least, and enough to cover the amount of this certificate, had matured and remained unpaid. It is evident that, under these statutes, at that time, the bank was not compelled to make the transfer of this certificate upon its books. The bank was in a position at least to assert a lien upon the certificate whenever the indebtedness matured and remained unpaid. We think this statute can have no other interpretation. The statute in relation to the transfer (section,4866) contains the express provision that “the transfer shall not be valid, except between the parties thereto, until the same shall have been so entered on the books of the corporation.” It is evident that this provision is intended exclusively for the benefit of the bank.
In Reese v. Bank, 14 Md. 271 (74 Am. Dec. 536), one of the debts owing to the pledgee arose September 27, 1854, which was prior to the time when the indebtedness to the bank arose and for which it claimed a lien accrued; but no notice thereof seems to have been given to the bank until demand for transfer on the books was made. The assignee of the shares demanded the transfer of the bank, but refused to pay the debt owed the bank by the stockholder. The assignee afterwards made a second demand. It appeared that other notes of the stockholder had by that time become due and payable, and the bank refused to make the transfer until all the notes then due and payable were first paid and discharged. The statute provided:
“The shares of the capital stock of the corporation shall be transferable on the books of the corporation only, according to such rules as shall be established by the president and directors; but all debts actually due and payable to the corporation by a stockholder requesting a transfer must be satisfied before such á transfer shall be made, unless the president and directors shall direct to the contrary.”
It was held that, under this statute, the assignee of the stock had no right to demand a transfer upon the books of the corporation until he had paid and discharged all the debts of the stockholder which had become due and payable at the time of the second demand.
In Union Bank v. Laird, 2 Wheat. 390, the same principle was stated. There the act of incorporation provided :
“The shares of the capital stock at anytime owned by any individual stockholder shall be transferable only on the books of the bank, according to such rules as may, conformably to law, be established in that behalf by the president and directors; but all debts actually due and payable to the bank (days of grace for payment being passed) by a stockholder requesting a transfer must be. satisfied before such transfer shall be made, unless the president and directors shall direct to the contrary.”
The certificate was issued to one Patton on March 26,, 1811. It was for 50 shares of stock; and on that day he delivered it to the defendant, Laird, to secure him against his indorsement, and on the 10th of July he executed to Laird a power of attorney authorizing him to make a transfer of his stock, and on August 22d he executed a deed of assignment to Laird of his stock. It appears that he became indebted to the bank on July 17, 1811, and the bank, when requested by Laird to make the transfer, declined to do so. The court said:
“No person, therefore, can acquire a legal title to any shares, except under a regular transfer, according to the rules of the bank; and if any person takes an equitable assignment, it must be subject to the rights of the bank under the act of incorporation, of which he is bound to take notice. The president and directors of the bank expressly deny that they have waived, or ever intended to waive, the right of the bank to the lien, for debts due to the bank, by the form of the certificate, and that they ever directed any transfer to be made to Patton which should stipulate to the contrary. Under such circumstances, it must be held that the shares are responsible for the debts due to the bank.”
This rule is supported in National Bank v. Watsontown Bank, 105 U. S. 217. We think this is the general rule, and is upheld by the great weight of authority, and that it is in conformity, also, with the English doctrine. All that we need to decide in the present case is that, the demand not having been made upon the defendant bank until the debt of Lamoreaux to the bank had matured and was unpaid, the defendant bank was in a position to refuse to transfer upon its books the certificate of stock which had theretofore been pledged to the plaintiff, as we think it was the intent of the statute under such circumstances to give the bank issuing the stock priority of lien.
The judgment of the court below must be affirmed.
Grant, Hooker, and Moore, JJ., concurred. Montgomery, J., did not sit. | [
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Blair Moody, Jr., J.
These appeals, consolidated for the purpose of argument and decision, present the following issue for resolution:
"[A]re no-fault insurance benefits to be paid to the surviving dependent(s) of a deceased uninsured motorist?” 405 Mich 826-827 (1979).
We hold that in all three cases the surviving dependents are not entitled to be paid no-fault benefits. The decisions of the Court of Appeals are therefore affirmed.
Facts
Belcher
Marie Belcher is the mother of Stacy Belcher, now deceased. On August 21, 1976, Stacy Belcher was involved in a motor vehicle accident and suffered injuries resulting in his death. No other vehicles were involved in the collision. At the time of the accident, Stacy Belcher was operating a vehicle owned by and registered to him. The security required by MCL 500.3101(1); MSA 24.13101Í1) for the vehicle was not in effect when the accident occurred.
Marie Belcher made application to the Assigned Claims Facility of the Michigan Department of State for no-fault survivors’ benefits. The application was forwarded to appellee Aetna Casualty and Surety Company (hereinafter Aetna) for investigation and handling. Following denial of her claim by Aetna, Mrs. Belcher instituted suit, as the surviving dependent of her son, to recover no-fault survivors’ benefits. An order granting Aetna’s motion for summary judgment was entered on September 23, 1977. The Court of Appeals (with one member of the panel dissenting) affirmed the decision of the trial court. 83 Mich App 207; 268 NW2d 349 (1978). Leave to appeal was granted by this Court on February 6, 1979. 405 Mich 826.
Hamilton
Appellants are the widow and minor children of Rufus Hamilton. Rufus Hamilton died of injuries sustained when the vehicle he was operating struck a utility pole. At the time of the accident, the security required by MCL 500.3101(1); MSA 24.13101(1) was not in effect as to this vehicle which was owned by and registered to Rufus Hamilton.
Mrs. Hamilton made application to the Assigned Claims Facility for no-fault survivors’ benefits for herself and the minor children. The claim, which was referred to appellee Aetna, was eventually denied by the company.
Mrs. Hamilton instituted suit to compel pay ment of such benefits. An order granting Aetna’s motion for summary judgment was entered May 26, 1977, on the ground that plaintiffs complaint failed to state a valid claim for relief. GCR 1963, 117.2(1). In an unpublished per curiam opinion dated August 23, 1978, the Court of Appeals (with one member of the panel dissenting) affirmed the trial court’s decision, adopting the rationale of the Court of Appeals majority in Belcher, supra. This Court granted appellant’s application for leave to appeal on February 6, 1979. 405 Mich 827.
Shaffer
Lily Shaffer is the widow of Ralph Shaffer. Ralph Shaffer died instantaneously of injuries suffered when the vehicle he owned and was operating collided with a second vehicle, owned and operated by Robert Gustafson. The requisite security was not in effect as to Mr. Shaffer’s vehicle at the time of the accident. The other vehicle involved in the collision was insured under a no-fault policy issued by appellee Riverside Insurance Company (hereinafter Riverside).
Mrs. Shaffer, as widow and surviving dependent of Ralph Shaffer, applied to Riverside for payment of no-fault survivors’ benefits. Following a denial of her claim, Mrs. Shaffer brought suit to recover such benefits from Riverside. An order granting summary judgment in favor of the insurer, pursuant to GCR 1963, 117.2(1), was entered on October 21, 1977. In an unpublished per curiam opinion dated June 22, 1978, the Court of Appeals affirmed the trial court’s order. Leave to appeal was granted by this Court on February 6, 1979. 405 Mich 827.
I
Enactment of the Michigan no-fault insurance act signalled a major departure from prior methods of obtaining reparation for injuries suffered in motor vehicle accidents. The Legislature modified the prior tort-based system of reparation by creating a comprehensive scheme of compensation designed to provide sure and speedy recovery of certain economic losses resulting from motor vehicle accidents. Under this system, losses are recovered without regard to the injured person’s fault or negligence. MCL 500.3105(2); MSA 24.13105(2). The act contemplates that in a majority of cases, specific recognized losses suffered as a result of motor vehicle accidents will be compensated for by a person’s own insurer. MCL 500.3114(1); MSA 24.13114(1).
Owners and registrants of motor vehicles required to be registered in Michigan must maintain security for payment of benefits under personal protection insurance, property protection insurance and residual liability insurance. MCL 500.3101(1); MSA 24.13101(1). The Legislature has thus designated owners and registrants of such vehicles as the group responsible for contributing to the insurance scheme from which no-fault benefits are payable. To ensure that this segment of the driving public obtain the requisite security the Legislature enacted the following measures:
(1) Owners and registrants of a motor vehicle for which security is required to be in effect who operate the vehicle without insurance are deemed guilty of a misdemeanor. MCL 500.3102(2); MSA 24.13102(2).
(2) Other persons who operate a motor vehicle with knowledge that the owner or registrant of the vehicle has not obtained the requisite security are deemed guilty of a misdemeanor. MCL 500.3102(2); MSA 24.13102(2).
(3) Persons required to maintain security and who fail to do so have no immunity from tort liability. Such persons are exposed to potential liability for all damages to which an injured victim may be entitled. MCL 500.3135; MSA 24.13135.
(4) An insurer who is obliged to pay personal protection insurance benefits may be able to recover the amounts paid from owners and registrants of uninsured motor vehicles or from their estates. MCL 500.3177; MSA 24.13177.
(5) The act excludes the payment of personal protection insurance benefits under certain circumstances. MCL 500.3113; MSA 24.13113.
The instant cases present the question of whether MCL 500.3113(b); MSA 24.13113(b) operates to exclude the payment of personal protection insurance survivors’ benefits to the surviving dependents of an owner of an uninsured vehicle who is injured and dies of injuries sustained in a motor vehicle accident when the uninsured vehicle was involved in the accident. A review of the act as a whole leads us to conclude that § 3113(b), as drafted, indicates that the Legislature intended to exclude the payment of benefits to these survivors.
II
The threshold question to be resolved where a person makes a claim for no-fault benefits is whether the injury upon which the claim is based is the type of injury which the act is designed to compensate. Focus must be placed upon the injury. The nature of the injury and the circumstances under which it was suffered dictate whether no-fault insurance may operate as a source of recovery for losses flowing from the injury.
In cases where payment of benefits under personal protection insurance is sought, MCL 500.3105(1); MSA 24.13105(1) provides:
"Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.”
Under § 3105(1), personal protection insurance is deemed to apply to an injury where the injury satisfies the following criteria: The injury must be accidental as defined in MCL 500.3105(4); MSA 24.13105(4). The injury must be a bodily injury. Bodily injury includes death which results from the injury. MCL 500.3105(3); MSA 24.13105(3). Finally, the accidental bodily injury must arise out of the ownership, operation, maintenance or use of a motor vehicle.
The circumstances present in each of the instant cases satisfy the criteria necessary to support the conclusion that accidental bodily injury arose from the operation of a motor vehicle. In each case death resulted from accidental injuries sustained during the operation of a motor vehicle. However, determining that an injury is of a type for which personal protection insurance benefits are payable does not, in any practical sense, end the inquiry. The concluding phrase of § 3105(1) states "subject to the provisions of this chapter.” In order to resolve the questions of what types of losses are compensated, what persons are entitled to be compensated and what insurers are liable to pay benefits for such losses, reference to other sections of the act is necessary.
Ill
The act operates to compensate only a limited class of persons for economic losses sustained as a result of motor vehicle accidents. Under personal protection insurance, benefits are made payable only to injured persons or surviving dependents of the injured person. MCL 500.3112; MSA 24.13112 provides in part:
"Personal protection insurance benefits are payable to or for the benefit of an injured person or, in case of his death, to or for the benefit of his dependents.”
An injured person is defined in MCL 500.3109(2); MSA 24.13109(2) as a natural person suffering accidental bodily injury. The term dependent is nowhere specifically defined in the act. However, MCL 500.3108; MSA 24.13108, which defines a survivor’s loss, indicates that a dependent is a person who was receiving support and services from the deceased injured person prior to his death. A conclusive presumption that certain persons are dependents of the deceased injured party is created by MCL 500.3110; MSA 24.13110. Under this section, in cases where the presumption does not operate, dependency is determined according to the facts existing at the time of death.
Furthermore, the act is not designed to provide compensation for all economic losses suffered as a result of an automobile accident injury. Under personal protection insurance, the act recognizes certain losses suffered by the injured person and seeks, to a limited extent, to compensate for them. MCL 500.3107; MSA 24.13107 makes personal protection insurance benefits payable for the injured person’s losses which include expense of medical care and services, funeral and burial expense, work loss and replacement service loss. Dollar and time limitations are placed upon the amount of benefits payable for such losses. Section 3107 defines an injured person’s recoverable loss as follows:
"(a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery or rehabilitation. Allowable expenses within personal protection insurance coverage shall not include charges for a hospital room in excess of a reasonable and customary charge for semiprivate accommodations except when the injured person requires special or intensive care, or charges for funeral and burial expenses in excess of $1,000.00.
"(b) Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured and expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or of his dependent. Work loss does not include any loss after the date on which the injured person dies. Because the benefits received from personal protection insurance for loss of income are not taxable income, the benefits payable for such loss of income shall be reduced 15% unless the claimant presents to the insurer in support of his claim reasonable proof of a lower value of the income tax advantage in his case, in which case the lower value shall apply. The benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed $1,000.00, which maximum shall apply pro rata to any lesser period of work loss. The maximum shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner but any change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of change in the maximum.”
The act also recognizes economic losses suffered by the surviving dependents of a deceased injured person and seeks to a limited extent to recompense them for their losses. MCL 500.3108; MSA 24.13108 makes personal protection insurance benefits payable for survivors’ loss. Survivors’ loss includes a dependent’s loss of the deceased’s support and services. Such loss is defined in MCL 500.3108(1); MSA 24.13108(1) as:
"[A] survivor’s loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of the deceased’s death would have received for support during their dependency from the deceased if the deceased had not suffered the accidental bodily injury causing death and expenses * * * reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their beneñt if the deceased had not suffered the injury causing death.” (Emphasis added.)
Appellants have pointed to the differences in benefits payable under § 3107 and § 3108 in support of their argument that a survivor’s entitlement to benefits is completely separate and distinct from, and nondependent upon, the entitlement to benefits of the injured person had he lived. We cannot completely agree with appellants’ proposition.
A review of these sections does reveal certain designed differences. Personal protection insurance benefits are payable to two separate recipient categories: an "injured person” or "his dependents”. MCL 500.3112; MSA 24.13112. An injured person is eligible to receive benefits payable under § 3107. Surviving dependents are eligible to receive benefits payable under §3108. Further, the recipient of benefits paid under either § 3107 or § 3108 is recognized as the person who suffered the economic loss for which the benefit compensates. An injured person is considered to have suffered economic losses such as work loss, medical expense loss and replacement service loss. Surviving dependents are deemed to have suffered economic losses such as loss of the deceased’s support and services.
Another difference exists in that the losses suffered by each group commence and end at different times. An injured person’s work loss does not accrue after his death whereas a surviving dependent’s losses do not begin to accrue until after the injured person’s death. Finally, benefits payable for economic losses suffered by an injured person cannot be equated in all respects with benefits payable for survivors’ losses. For example, benefits paid to an injured person for loss of income do not in all circumstances equal benefits paid to surviving dependents for loss of support which the deceased had provided to his or her dependents.
While these differences exist, they do not form a basis for concluding that a survivor’s right to benefits is completely separate and distinct from, and nondependent on, the right of an injured person to claim benefits had he survived. As well as revealing certain differences, a review of § 3107 and §3108 discloses that statutory connections exist between the losses compensated for under these sections and the persons suffering such losses.
Under either § 3107 or § 3108 benefits are payable only where an accidental bodily injury has occurred as described in § 3105. Further, before a claim for survivors’ benefits under § 3108 may be made, the injury must have resulted in death. Thus, a survivor’s claim to benefits depends in part upon the occurrence of a specific type of injury to another person, the deceased.
In addition, persons who are potential recipients of survivors’ benefits must have had a certain relationship with the injured person prior to his death. Benefits for survivors’ loss are payable only where the deceased had contributed things of tangible economic value to the dependent’s support or where the deceased had performed services for his dependents during the injured person’s lifetime.
As we have seen, benefits paid for loss of work-related income cannot always be equated with benefits paid for loss of support. In some cases, an injured person would not have contributed all of his work-related income to the support of his dependents. In other cases, dependents may have received amounts for support which exceeded the amount of an injured person’s work-related income.
However, survivors’ benefits paid for loss of support may fairly be regarded as a partial substitute for work-loss benefits which were or would have been paid to the injured person during his lifetime. A survivor’s loss of support does not accrue until after the injured person’s death. Prior to the injured person’s death, any loss of support a dependent suffers as a result of the injury is neither recognized nor expressly compensated for by the act. Rather, benefits are paid to the injured person for loss of work-related income. The Legislature could have fairly contemplated that in most instances the injured person would use a portion of his work-loss benefit to provide support for his dependents. Benefits paid for a survivor’s loss of support can thus be regarded as a close substitute for funds likely to have been received out of the work-loss benefit which would have been paid to the injured person had he survived.
In sum, § 3107 and § 3108 set forth the nature and extent of losses for which personal protection insurance benefits are payable. These sections further identify categories of persons eligible to claim benefits for their losses.
Section 3108, standing alone, cannot be construed to entitle surviving dependents to recovery of no-fault benefits in all circumstances. However, if the threshold requirements as to the nature of the injury are met as set forth in § 3105(1), and if survivors’ loss has been suffered by persons considered to be surviving dependents under § 3108 and § 3110, then the survivors are entitled to claim benefits under the act unless excluded or unless the act provides no source of recovery.
IV
In all three cases the lower courts concluded, based upon differing theories, that since the deceased injured person would not have been entitled to claim benefits had he lived, his surviving dependents were likewise not entitled to claim benefits from any source. In Belcher and Hamilton, the Court of Appeals held that MCL 500.3113(b); MSA 24.13113(b) excluded survivors from entitlement to claim benefits from the Assigned Claims Fund. In Shaffer, the Court of Appeals reasoned that the deceased injured party, had he survived, could not have received benefits from the insurer of the other vehicle involved in the collision under MCL 500.3114; MSA 24.13114 or under MCL 500.3115; MSA 24.13115. The Court concluded that the widow of the deceased injured party also could not claim benefits from defendant Riverside under § 3114 or § 3115.
The Belcher and Hamilton cases involve injuries resulting from single-vehicle accidents where the injured person was operating an uninsured vehicle owned by and registered to him. The survivors in these cases seek payment of survivors’ loss benefits from the Assigned Claims Facility. MCL 500.3172; MSA 24.13172 provides:
"A person entitled to claim because of accidental bodily injury arising out of the * * * operation * * * of a motor vehicle * * * may obtain personal protection insurance benefits through an assigned claims plan if no personal protection insurance is applicable to the injury.” (Emphasis added.)
In these cases, before recovery of benefits may be obtained through an assigned claims plan, it must be determined that no personal protection insurance is "applicable to the injury”. The only sections of the act which indicate whether a specific insurance source is obligated to pay benefits on account of an injury are § 3114 and § 3115. Therefore, a review of these sections must be made to determine whether any personal protection insurance is applicable to the injury.
Section 3114 and § 3115 constitute both enti tlement provisions and priority provisions in certain respects. They are entitlement provisions in the sense that they are the only sections where persons are given the right to claim personal protection insurance benefits from a specific insurer. They are priority provisions in that they define the circumstances in which a particular insurance source is liable to provide personal protection insurance benefits. In most situations, where an injured person is insured or where an injured person’s family member is insured under a no-fault insurance policy, the injured person seeks benefits from his own insurer. MCL 500.3114(1); MSA 24.13114(1); Underhill v Safeco Ins Co, 407 Mich 175, 191; 284 NW2d 463 (1979). In situations where § 3114(1) does not operate, the determination as to which insurer, if any, is liable to pay personal protection insurance benefits is made by considering the circumstances in which the injury occurred. In these instances, the relationship between the injured person and motor vehicles involved in the accident determines which insurance source is liable for the payment of benefits.
In all three of the instant cases, since the deceased injured person was not insured nor were any of his family members insured under a no-fault insurance policy, § 3114(1) does not apply. Rather, § 3114(4) applies because the deceased injured persons were occupants of motor vehicles at the time their injuries were suffered. Under § 3114(4) personal protection insurance benefits may he recovered from insurers of owners or operators of the occupied vehicle. Since the deceased injured persons owned the vehicles they were operating at the time of the accident and because the occupied vehicles were uninsured, there is no insurance from which recovery may be had under §3114(4). There being no insurance applicable to the injury, personal protection insurance benefits may be obtained through an assigned claims plan unless the claimant is excluded by the act from seeking benefits.
V
Appellants have argued that their entitlement to benefits arises separately and is distinct from the deceased injured person’s entitlement to benefits had he survived. We cannot agree. Nowhere in the act are survivors given an express entitlement to claim benefits from any particular insurance source. Section 3114 and § 3115 are the only provisions where a right to claim benefits from a specific insurer is set forth. Read literally, these sections would permit only the injured person to collect benefits from designated insurers. Such a construction would, of course, lead to an anomalous result. Although a survivor’s loss is recognized by the act in § 3108 and benefits are made payable to surviving dependents under § 3112, no claim for survivors’ benefits could be enforced against any specific insurer.
The Legislature clearly intended that surviving dependents recover certain losses in the event the injured person dies from his injuries; To effectuate this intent and to provide survivors with a source of recovery, it is necessary to infer from the language of § 3114 and § 3115 that where an injured person is given the right to recover benefits from a specific insurer, his surviving dependents have the same right of recovery for their losses. In this way, a survivor’s entitlement to benefits may be said to be derivative of or dependent upon the deceased injured person’s entitlement to benefits had he survived.
Thus, the crucial question presented in all three cases is whether MCL 500.3113(b); MSA 24.13113(b) operates to exclude these survivors from claiming personal protection insurance benefits from any source.
MCL 500.3113(b); MSA 24.13113(b) provides:
"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 involved in the accident with respect to which the security required by subsections (3) and (4) of section 3101 was not in effect.”
Appellants concede that had the deceased injured persons survived their injuries, the injured persons in all three cases would have been disqualified from seeking benefits by virtue of § 3113(b). In the Belcher and Hamilton cases, had the deceased injured person survived, he would not have qualified for benefits under an assigned claims plan. MCL 500.3173; MSA 24.13173. In the Shaffer case, had the deceased injured person survived, he could not have qualified to receive benefits from appellee Riverside because of the § 3113(b) exclusion. Further, no benefits could have been obtained through an assigned claims plan in Shaffer by virtue of MCL 500.3173; MSA 24.13173.
The survivors contend, however, that under a proper construction of § 3113(b), only the person described in subsection (b) of § 3113 should be excluded, namely, an owner or registrant of an uninsured vehicle involved in the accident who sustains accidental bodily injuries. This contention must fail for several reasons.
Appellants contend that the term "person”, used both in the introductory clause of § 3113 and in subsection (b), should be narrowly construed to include only the individual injured person within its meaning. In subsection (b) it is clear that the term "person” refers to an individual who was the owner or registrant of an uninsured vehicle involved in the accident. In subsection (b) the term "person” also refers to an owner or registrant of such a vehicle involved in the accident who suffers accidental bodily injury. This construction necessarily follows since a survivor cannot suffer accidental bodily injury but merely suffers economic loss as a result of such an injury.
The meaning of the term "person” as it is used in the introductory clause is not so clear. The term "person” is not used consistently throughout the act. For example, an "injured person” is defined in § 3109(2) as a person suffering accidental bodily injury. The term "injured person” is used in § 3107 and § 3107a in describing benefits payable to a person who survives his injuries. Section 3108, in describing benefits payable for survivors’ loss, uses the term "dependents”. Yet, under §3110(1), certain "persons” are conclusively presumed to be dependents. Under § 3114 and § 3115 the term "person suffering accidental bodily injury” must be construed to include persons who are survivors in order to give survivors a source of recovery for their losses. In subsection (b) of §3113 the term "person” means an injured person who owns an uninsured vehicle involved in the accident. A "person” is guilty of a misdemeanor if he operates a motor vehicle with knowledge that the owner or registrant has failed to insure it under §3102(2). The examples are myriad. It is apparent that the term "person” must be construed in the exact context in which it is used to ascertain its precise meaning. The meaning of the term "person” as used in the introductory clause of § 3113 becomes clear following an examination of other key terms used in the clause.
"Personal protection insurance benefits” is another key phrase used in § 3113’s introductory clause. This term is nowhere expressly defined in the act. However, a review of the act indicates that personal protection insurance benefits are payable for losses defined in § 3107 and § 3108. Benefits payable for survivors’ loss under § 3108 are merely one form of "personal protection insurance benefits” and are therefore included within this term.
The introductory clause of § 3113 further states:
"A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury (Emphasis added.)
Benefits are payable only where an accidental bodily injury has occurred. MCL 500.3105; MSA 24.13105. Accidental bodily injury includes death resulting therefrom. MCL 500.3105(3); MSA 24.13105(3). Personal protection insurance benefits are paid to an injured person where he survives his accidental bodily injury. Benefits are paid to survivors for accidental bodily injury where death results.
It thus follows that the introductory clause of § 3113 must be read as: "A person is not entitled to be paid [survivors’ loss] benefits for [death] if at the time of the accident any of the following circumstances existed.”
This construction is buttressed by the fact that subsection (b) of § 3113 constitutes one of three "circumstances” where personal protection insurance benefits are not payable. In § 3114, subds (2) through (4), and § 3115(1) the source of recovery for an injured person’s benefits or survivors’ benefits is determined by the "circumstances” in which the injury occurred. The circumstances are defined by the relationship between the person suffering bodily injury and vehicles involved in the accident. Section 3113(b) similarly describes situations where benefits are not payable with reference to the circumstances in which the injury was suffered.
Furthermore, the construction of § 3113(b) advocated by these survivors leads to anomalous results. Persons who own vehicles, operate them without the compulsory insurance, and are injured in motor vehicle accidents, would not be entitled to claim benefits for losses flowing from the accident. However, if such a person dies from his injuries, his dependents would be able to recover benefits for losses resulting from the accident. Since benefits paid for survivors’ loss can be considered at least a partial substitute for benefits paid or payable to an injured person who survives, such a result does not seem consonant with the structure of the act.
Insurance is made compulsory under the act, in part, to ensure that all persons injured in most automobile accidents have a source of recovery for at least a portion of their economic losses. Under the first-party system, recovery of all allowable losses, including survivors’ loss, generally is sought from one’s own insurer. Owners and registrants of motor vehicles required to be registered in Michigan are expected to contribute to the fund out of which no-fault benefits are payable.
Section 3113(b) represents a policy decision by the Legislature to exclude the payment of no-fault benefits in situations where the injury upon which the claim to benefits is based is suffered by a person whose uninsured vehicle is involved in the accident. As drafted, § 3113(b) excludes payment of benefits for survivors’ loss in these situations as well.
Accordingly, we hold that survivors’ loss benefits may not be recovered where the claim is based upon the accidental bodily injury resulting in death suffered by an owner or registrant of a vehicle for which the requisite security was not in effect at the time of the accident where the uninsured vehicle is involved in the accident. The decisions of the Court of Appeals are therefore affirmed.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, and Ryan, JJ., concurred with Blair Moody, Jr., J.
MCL 500.3101(1); MSA 24.13101(1) provides:
"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 be in effect continuously during the period of registration of the motor vehicle.”
Mrs. Belcher offered the following explanation for her .son’s uninsured status:
"On July 16, 1976, a forged certificate of no-fault insurance was issued to Stacy Allen Belcher listing Progressive Insurance Company, Policy No. BPRO-5960 as the insurance company and was purportedly signed by James Schmitt. In reliance upon said certificate of insurance, deceased registered and operated his vehicle.
"On August 21, 1976, Stacy Belcher was involved in a one car automobile accident which resulted in his death. Not realizing at the time that the aforesaid certificate of insurance was a forgery, plaintiff, Marie Belcher, mother of the decedent, Stacy Belcher, filed a claim for survivor’s benefits with Progressive Insurance Company. In the course of investigating the aforesaid claim, the forgery was discovered and an investigation commenced by the Michigan Commissioner of Insurance.” Memorandum in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment, p 2.
The Assigned Claims Facility was organized by the Michigan Secretary of State pursuant to MCL 500.3171; MSA 24.13171 which provides:
"The secretary of state shall organize and maintain an assigned claims facility and plan. A self-insurer and insurer writing insurance as provided by this chapter in this state shall participate in the assigned claims plan. Costs incurred in the operation of the facility and the plan shall be allocated fairly among insurers and self-insurers. The secretary of state shall promulgate rules to implement the facility and plan in accordance with and subject to Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Compiled Laws of 1948.”
In her complaint, Mrs. Belcher alleges she was a dependent of her son at the time of his death. As this case involves review of a grant of summary judgment based on GCR 1963, 117.2(1), all well-pleaded allegations in the complaint are accepted as true.
Since Mrs. Belcher is not within the class of persons conclusively presumed to be dependent under MCL 500.3110(i); MSA 24.13110(1), she would eventually have to establish her dependency in accordance with MCL 500.3110(2); MSA 24.13110(2) to perfect her claim for survivors’ benefits.
The order of summary judgment does not specify which subsection of GCR 1963, 117.2 authorized the grant of summary judgment. Presumably, the order is based upon GCR 1963, 117.2(1), the ground for relief asserted in Aetna’s motion for summary judgment.
In the agreed statement of facts filed by the parties, it is indicated that a wrongful death claim advanced by Mr. Shaffer’s estate against Robert Gustafson was settled without litigation.
1972 PA 294.
MCL 500.3105, 500.3107, 500.3108; MSA 24.13105, 24.13107, 24.13108.
MCL 500.3121; MSA 24.13121.
MCL 500.3131; MSA 24.13131.
MCL 500.3113; MSA 24.13113 provides as follows:
"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:
"(a) The person was using a motor vehicle which he had taken unlawfully, unless he reasonably believed that he was entitled to take and use the vehicle.
"(b) The person was the owner or registrant of a motor vehicle involved in the accident with respect to which the security required by subsections (3) and (4) of section 3101 was not in effect.
"(c) The person was not a resident of this state, was an occupant of a motor vehicle not registered in this state and was not insured by an insurer which has filed a certification in compliance with section 3163.”
2 MCL 500.3105(4); MSA 24.13105(4) defines accidental bodily injury as follows:
"Bodily injury is accidental as to a person claiming personal protection insurance benefits unless suffered intentionally by the injured person or caused intentionally by the claimant. Even though a person knows that bodily injury is substantially certain to be caused by his act or omission, he does not cause or suffer injury intentionally if he acts or refrains from acting for the purpose of averting injury to property or to any person including himself.”
MCL 500.3105(3); MSA 24.13105(3) provides:
"Bodily injury includes death resulting therefrom and damage to or loss of a person’s prosthetic devices in connection with the injury.”
Motor vehicle is defined in MCL 500.3101(2); MSA 24.13101(2) as follows:
" 'Motor vehicle’ as used in this chapter, except for section 3103, 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, but does not include 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.”
MCL 500.3109(2); MSA 24.13109(2) provides:
"An injured person is a natural person suffering accidental bodily injury.”
MCL 500.3110; MSA 24.13110 provides:
"(1) The following persons are conclusively presumed to be dependents of a deceased person:
"(a) A wife is dependent on a husband with whom she lives at the time of his death.
"(b) A husband is dependent on a wife with whom he lives at the time of her death.
"(c) A child while under the age of 18 years, or over that age but physically or mentally incapacitated from earning, is dependent on the parent with whom he lives or from whom he receives support regularly at the time of the death of the parent.
"(2) In all other cases, questions of dependency and the extent of dependency shall be determined in accordance with the facts as they exist at the time of death.
"(3) The dependency of a surviving spouse terminates upon death or remarriage. The dependency of any other person terminates upon the death of the person and continues only so long as the person is under the age of 18 years, physically or mentally incapacitated from earning, or engaged full time in a formal program of academic or vocational education or training.
"(4) Personal protection insurance benefits payable for accidental bodily injury accrue not when the injury occurs but as the allowable expense, work loss or survivors’ loss is incurred.”
MCL 500.3108; MSA 24.13108 was amended by 1978 PA 459. At the time the injuries were sustained in all three cases § 3108 provided as follows:
"Personal protection insurance benefits are payable for a survivors’ loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death. The benefits payable for survivors’ loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 and is not payable beyond the first 3 years after the date of the accident.”
In addition to receiving benefits under § 3108, surviving dependents also receive benefits normally paid to the injured person in situations where such benefits accrued to the injured person but were not paid prior to his death. See MCL 500.3112(a); MSA 24.13112(a).
See also MCL 500.3116(2); MSA 24.13116(2) which provides in part:
"A recovery by an injured person or his or her estate for loss suffered by the person shall not be subtracted in calculating benefits due a dependent after the death and a recovery by a dependent for loss suffered by the dependent after the death shall not be subtracted in calculating benefits due the injured person.”
MCL 500.3114; MSA 24.13114 provides in its entirety as follows:
"(1) Except as provided in subsections (2) and (3), a personal protection insurance policy applies to accidental bodily injury to the person named in the policy, his spouse, and a relative of either domiciled in the same household. When personal protection insurance benefits are payable to or for the benefit of an injured person under his own policy and would also be payable under the policy of his spouse, relative, or relative’s spouse, the injured person’s insurer shall pay all of the benefits and shall not be entitled to recoupment from the other insurer.
"(2) A person suffering accidental bodily injury while an operator or a passenger of a motor vehicle operated in the business of transporting passengers shall receive the personal protection insurance benefits to which the person is entitled from the insurer of the motor vehicle. This subsection shall not apply to a passenger in the following, unless that passenger is not entitled to personal protection insurance benefits under any other policy:
"(a) A school bus, as defined by the department of education, providing transportation not prohibited by law.
"(b) A bus operated by a common carrier of passengers certified by the public service commission.
"(c) A bus operating under a government sponsored transportation program.
"(d) A bus operated by or providing service to a nonprofit organization.
"(e) A taxicab insured as prescribed in section 3101 or 3102.
"(3) An employee, his spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.
"(4) Except as provided in subsections (1) to (3), a person suffering accidental bodily injury while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) The insurer of the owner or registrant of the vehicle occupied.
"(b) The insurer of the operator of the vehicle occupied.”
MCL 500.3115; MSA 24.13115 provides:
"(1) Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) Insurers of owners or registrants of motor vehicles involved in the accident.
"(b) Insurers of operators of motor vehicles involved in the accident.
"(2) When 2 or more insurers are in the same order of priority to provide personal protection insurance benefits an insurer paying benefits due is entitled to partial recoupment from the other insurers in the same order of priority, together with a reasonable amount of partial recoupment of the expense of processing the claim, in order to accomplish equitable distribution of the loss among such insurers.
"(3) A limit upon the amount of personal protection insurance benefits available because of accidental bodily injury to 1 person arising from 1 motor vehicle accident shall be determined without regard to the number of policies applicable to the accident.”
See also Underhill v Safeco Ins Co, 407 Mich 175, 190, fn 10; 284 NW2d 463 (1979).
Compare Mathis v Interstate Motor Freight System, 408 Mich 164, 184-186; 289 NW2d 708 (1980), for analysis of a situation where § 3114(1) does not operate. Recovery of benefits from the insurer designated in § 3114(3) rather than the injured person’s own insurer was held proper.
In Shaffer, the surviving widow contends, inter alia, that she may claim benefits from the insurer of the other vehicle involved in the collision under the provisions of § 3115(1). This section provides that where § 3114(1) does not operate to afford benefits, an injured person who is a non-occupant of a motor vehicle may claim benefits from insurers of owners or operators of vehicles involved in the accident. Mr. Shaffer, the deceased injured person, was an occupant of a vehicle involved in the accident. Mrs. Shaffer, as a survivor, may not qualify as a "person suffering accidental bodily injury while not an occupant of a motor vehicle” within the meaning of § 3115(1).
For example, § 3114(1) provides in part:
"[A] personal protection insurance policy applies to accidental bodily injury to the person named in the policy.” (Emphasis added.)
Section 3114(2) provides in part:
"A person suffering accidental bodily injury while an operator or a passenger of a motor vehicle operated in the business of transporting passengers shall receive * * * personal protection insurance beneñts.” (Emphasis added.)
Section 3114(3) states in pertinent part:
"An employee, his spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury * * * shall receive personal protection insurance beneñts.” (Emphasis added.)
Section 3114(4) provides in part:
"[A] person suffering accidental bodily injury while an occupant of a motor vehicle shall claim personal protection insurance beneñts.” (Emphasis added.)
Section 3115(1), which applies to injuries to non-occupants, is similarly phrased.
A person suffering "accidental bodily injury” necessarily refers to an injured person. An injured person is defined in § 3109(2) as "a natural person suffering accidental bodily injury”.
Under such a literal construction another equally undesirable result would involve allowing all survivors to claim benefits under an assigned claims plan since no insurance would be applicable to pay benefits under § 3114 or § 3115. This result would be especially absurd in cases where the deceased injured party was insured under a no-fault policy. The act contemplates that benefits will usually be paid by the injured person’s own insurer for all recoverable losses resulting from the injury.
Thus, phrases used throughout §3114 and §3115 such as "a person suffering accidental bodily injury” "shall claim” or "shall receive” should be construed to mean "a person suffering accidental bodily injury or his or her survivors” "shall claim” or "shall receive” personal protection insurance benefits. This construction is further supported in that the definition of bodily injury includes death. MCL 500.3105(3); MSA 24.13105(3).
If persons are excluded from claiming benefits under § 3113, no benefits may be recovered through an assigned claims plan. MCL 500.3173; MSA 24.13173 provides:
"A person who because of a limitation or exclusion in sections 3105 to 3116 is disqualified from receiving personal protection insurance benefits under a policy otherwise applying to his accidental bodily injury is also disqualified from receiving benefits under the assigned claims plan.”
The "circumstances” described in subsection (a) and (c) of § 3113 where personal protection insurance benefits may not be recovered involve situations where:
"(a) The person was using a motor vehicle which he had taken unlawfully, unless he reasonably believed that he was entitled to take and use the vehicle.
"(c) The person was not a resident of this state, was an occupant of a motor vehicle not registered in this state and was not insured by an insurer which has filed a certification in compliance with section 3163.”
The Legislature could have expressed a clearer intent to limit the operation of § 3113 to exclude only injured persons who owned uninsured vehicles involved in the accident by substituting the phrase "injured person” in place of the word "person” in § 3113. The introductory clause would then have read: "An injured person is not entitled to be paid personal protection insurance benefits”.
The Legislature could have more clearly indicated its intent not to bar recovery of survivors’ loss benefits under § 3113(b) by substituting the phrase "personal protection insurance benefits payable for § 3107 losses” in place of "personal protection insurance benefits”. The introductory clause of § 3113 would then have read in part: "An injured person is not entitled to be paid personal protection insurance benefits payable for § 3107 losses”.
We intimate no opinion on the issue of whether benefits are recoverable in situations where a certificate of insurance which is in force at the time of the accident is later determined to he "invalid” (e.g., a forgery). This situation was alluded to in the Belcher case. However, the question was not preserved for appellate review since it was never properly placed at issue in the trial court.
Appellants have contended that MCL 500.3177; MSA 24.13177 indicates a legislative intent that survivors of an uninsured motorist are entitled to collect benefits in the circumstances presented by the instant cases. We disagree. Section 3177 provides in relevant part:
"An insurer obligated to pay personal protection insurance beneñts for accidental bodily injury to a person occupying an uninsured motor vehicle or to the spouse or relative resident in the household of the owner or registrant of an uninsured motor vehicle may recover such benefits paid * * * from the owner * * * of the uninsured motor vehicle.” (Emphasis added.)
This subrogation provision contemplates the payment of benefits to persons based upon an accidental bodily injury suffered by the spouse or relative of an owner of an uninsured vehicle. The insurer paying such benefits is entitled to recover amounts paid from the owner of an uninsured vehicle or his estate in situations where the owner of the uninsured vehicle was primarily responsible for providing such benefits. The terms "spouse” and "relative resident” are used in § 3114(1) and do not necessarily indicate the same group of persons designated as surviving dependents under § 3110.
The very narrow nature of the exclusion set forth in § 3113(b) is to be emphasized. The exclusion operates only where the uninsured vehicle is involved in the accident. Therefore, in situations where an owner of an uninsured vehicle is injured as either an occupant or non-occupant of a vehicle where his uninsured vehicle is not involved in the accident, the injured person or his survivors may claim benefits from an insurer designated in § 3114 or § 3115 or through an assigned claims plan. | [
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Holbrook, P. J.
This is an appeal from grant of summary judgment for defendant, Massachusetts Mutual Life Insurance Company, a foreign corporation doing business in this state, and from denial of a similar motion filed by plaintiff. Both motions were filed pursuant to G-CR 1963,117.2(3). Involved herein is the question of the extent of defendant insurer’s monetary liability on a group life insurance plan, under which a policy was issued to Shellcast, Inc., of Shelby, Michigan, as policyholder, providing insurance coverage to Shellcast’s employees. Plaintiff, Sandra Freeman, widow of Terry L. Freeman, commenced this action in Muskegon County Circuit Court for benefits allegedly due from defendant under the policy in question.
Plaintiff’s decedent was employed at Shellcast, Inc., and was enrolled in the group insurance plan. The plan, which was in full force and effect at the time of decedent’s accidental death, October 7, 1966, provided coverage for employees, such as decedent, including life insurance and accidental death and dismemberment benefits. The “group policy” is not a part of the record on appeal. There is no indication from the record as to whether the group policy was ever seen by Shellcast’s employees, aside from plaintiff’s claim that the group policy was retained in Shellcast’s files and that the only evidence of the insurance coverage seen by employees of Shellcast was a “certificate” issued to each employee upon enrollment in the group plan. Defendant, claiming to be without knowledge as to whether the employees saw the group policy, states that it did furnish such a policy as well as employee certificates to the policyholder, Shellcast, Inc.
Plaintiff’s decedent’s certificate of insurance coverage, which is a part of the record, was issued to him effective July 22, 1966, and provided $5,000 life insurance and $5,000 accidental death coverage. The record contains affidavits of plaintiff and decedent’s mother which reveal that in August, 1966, plaintiff and decedent discussed their family protection plans and determined that the amount of decedent’s coverage issued by defendant and through Shellcast, Inc., as disclosed by the certificate, when coupled with plaintiff’s own life insurance coverage, was sufficient; and that decedent, in September 1966, had informed his mother, upon inquiry by her, that it was not his present intention to purchase more life insurance in view of his coverage provided by the $10,000 policy at Shellcast, Inc.
Defendant asserts that, due to a clerical error in plaintiff’s decedent’s certificate, the amount of insurance coverage actually afforded him pursuant to the group insurance plan, as apparently specified in the schedule contained in the group policy, was inaccurately stated in the certificate and that, in accord with his employment status, plaintiff’s decedent was entitled to only $4,000, rather than $10,-000, in total benefits. The claimed error in the certificate was allegedly brought to defendant’s attention by Shellcast, Inc., on September 6, 1966. The plaintiff’s decedent, however, was never notified of the certificate error, nor was a new corrected certificate issued to him. The record indicates that no changes were made in the group policy or in the employee certificate from the date of issuance of the group policy, August 4,1965, to the date of plaintiff’s decedent’s death.
Plaintiff seeks recovery of benefits from defendant in the amount of $10,000, as specified in decedent’s certificate of insurance. Defendant has admitted liability to plaintiff of $4,000, but has refused to pay the full amount specified in the certificate.
The issue to be determined is as follows:
Did the trial court commit error in granting defendant’s motion for summary judgment, pursuant to which it was determined, as a matter of law, that defendant’s obligation to plaintiff under the policy in question would be discharged by the payment to plaintiff of $4,000¶
Plaintiff’s original complaint alleges in substance that, pursuant to the terms of the contract of insurance executed between defendant insurer and plaintiff’s decedent’s employer, Shellcast, Inc., plaintiff is entitled to benefits in the total amount of $10,000 ($5,000 life insurance and $5,000 accidental death and dismemberment benefits). This contention is based upon CL 1948, § 500.4438 (Stat Ann 1957 Rev § 24.14438) which states in part:
“There shall be a provision that the company will issue to the employer for delivery to the employe, whose life is insured under such policy, an individual certificate setting forth a statement as to the insurance protection to which he is entitled, * * * .” (Emphasis supplied.)
Plaintiff’s amended complaint alleges (1) detrimental reliance, in that plaintiff and decedent, in reliance upon the representations contained in his em ployee certificate, did not obtain additional life insurance, so that defendant is equitably estopped to deny that the terms of the certificate control the amount of insurance provided by the group policy; and (2) fraud and deceit, based on the contention that defendant, after acquiring knowledge of the certificate error, having had sufficient time to inform decedent that it would pay only $4,000 to his widow in the event he met with accidental death, and with knowledge that the certificate would be relied upon by those claiming an insurable interest in decedent’s life, “recklessly, carelessly and negligently failed to inform Terry Freeman that the statements made in the employee’s certificate were false, and that it would not honor the terms of the employee’s certificate”, whereby injury was sustained by plaintiff. See Rose v. Wertheimer (1968), 11 Mich App 401, 404.
Defendant, in answer to plaintiff’s original complaint, denied liability in the amount of $10,000, averring that the group insurance policy issued to Shellcast, Inc., specified liability totalling $4,000, statements in the employee certificate to the contrary notwithstanding. No answer to plaintiff’s amended complaint was filed by defendant. On appeal, defendant maintains that, under an employer’s group life insurance policy, where an insurance certificate given to the insured employee fails to state the correct amount of coverage, the insurer’s liability is controlled by the contents of the “group policy” rather than by the certificate. In support of this contention defendant cites OL 1948, § 500.4434 (Stat Ann 1957 Rev § 24.14434) which states in part:
“There shall be a provision that the policy, the application of the employer and the individual ap plicants, if any, of the employes insured, shall constitute the entire contract between the parties.”
Defendant also cites several Michigan cases for the proposition that, while an employee’s certificate is not a part of the contract of insurance between employee and insurer, Germain v. Aetna Life Insurance Co. (1938), 285 Mich 318; Chrysler Corporation v. Hardwick (1941), 299 Mich 696; General American Life Ins. Co. v. Wojciechowski (1946), 314 Mich 275, the provisions of the master policy are a part of the contract and may be invoked by a beneficiary under the certificate issued to the insured employee, Rothermel v. Aetna Life Ins. Co. (1936), 275 Mich 425; Rusanda v. Aetna Life Insurance Company of Hartford, Conn. (1937), 280 Mich 563.
Further, defendant maintains that, in regard to plaintiff’s allegations of detrimental reliance and fraud and deceit, as set forth in her amended complaint filed on the date set for hearing of the parties’ motions for summary judgment, plaintiff is not entitled to recovery; that, on the basis of Ruddock v. Detroit Life Insurance Co. (1920), 209 Mich 638, Henne v. Glens Falls Insurance Co. (1929), 245 Mich 378, and Munro v. Boston Insurance Company (1963), 370 Mich 604, the doctrine of estoppel is not applicable where forfeiture is not an issue and contest is over expansion of the terms of the policy; that plaintiff failed to allege that a material misrepresentation by defendant to decedent was made with the intention that plaintiff act in reliance upon it, in accord with the definition of actionable fraud as set forth in Rose v. Wertheimer, supra; and that, in any event, defendant’s misrepresentation was unintentional.
The circuit court considered plaintiff’s original and amended complaints and granted defendant’s motion for summary judgment as to both., holding that, on the basis of Germain v. Aetna Life Insurance Co., supra, the employee’s certificate cannot be relied on to establish any contractual rights; that the error in the certificate and the failure of defendant to correct the error prior to the death of plaintiff’s decedent did not constitute such negligence as would entitle the court to reform the contract between the parties and enlarge the benefits called for in the master policy; and that no intentional fraud or deceit had been practiced upon plaintiff which would merit recovery of the additional $6,000 specified in the certificate.
The Germain case, and other cases cited by defendant and heretofore referred to, have expressly held, in factual contexts differing from the facts of the case at hand, that the certificate issued to an employee is not a part of the contract of insurance.
We note that the employee certificate issued to plaintiff’s decedent is a detailed document consisting of 50 pages and containing all of the parts of an actual policy of insurance. The certificate contains the following statement on its cover:
“This certificate is * # * evidence of the employee’s insurance under the Group Policy. All matters pertaining to such insurance are subject to the terms and conditions of said Group Policy.
“The amount(s) of Insurance for which the employee shall be insured shall be in accordance with the Schedule of Insurance contained herein and any changes in such amount(s) shall be in accordance with the terms of the Group Policy”.
On the next page of the certificate, under the heading “Schedule of Insurance”, and preceding the statement of benefits to which the insured is entitled, there appears the following statement:
“Subject to all of the provisions of this certificate, the employee named is insured for the benefits specified herein”.
The confusing phraseology of the certificate, as evidenced by the foregoing provisions, would appear to justify reliance by the certificate holder upon the terms embodied there, in view of the rule that the language chosen by the insurer in an insurance policy must be given a construction most favorable to the insured. Hilburn v. Citizens’ Mutual Automobile Insurance Company (1954), 339 Mich 494. The interpretation of a certificate of insurance prepared by the insurer and issued to the insured must necessarily be governed by the same rule of construction.
Plaintiff’s claim that the master policy, in possession of the policyholder, Shellcast, Inc., was never seen by the employees, including plaintiff’s decedent, and that plaintiff and decedent relied upon the specific statement in the terms of the certificate showing the amount of coverage which was in decedent’s possession, raises a question of fact as to reliance which should not have been disposed of summarily. Ayers v. Genter (1962), 367 Mich 675; Renfroe v. Higgins Rack Coating & Manufacturing Company, Inc. (1969), 17 Mich App 259. The circuit court stated in its opinion:
“There is nothing in the record * * * to indicate that the deceased was aware of the fact that his certificate obviously contained a typographical error.”
A similar question arose in the case of Hetchler v. American Life Insurance Co. (1934), 266 Mich 608, where the insurance company made a mistake in the computation of extended insurance. The policy properly construed would have required a denial of relief to the plaintiff. The insurance company notified the insured by letter of the extended insurance based upon the improper computation. The Court there stated at p 613 as follows:
“The sole question on appeal is whether the company is estopped from denying its liability under the circumstances.
“ ‘It is a familiar rule of law that an estoppel arises when one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe' certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.’ Kole v. Lampen (1916), 191 Mich 156.
“The fact that the representations of the company here relied upon were not made fraudulently, but were due solely to a mistake in computation, does not operate to prevent the raising of an estoppel. It is commonly held that although the party making the representations was ignorant or mistaken as to the real facts, if he was in such a position that he ought to have known them, ignorance or mistake will not prevent an estoppel. 2 Pomeroy’s Equity Jurisprudence (4th ed), § 809, p 1660; 10 RCL, p 695; Westerman v. Corder [1912], 86 Kan 239 (119 P 868, 39 LRA [NS] 500; Ann Cas 1913 C, 60); Ward v. Cameron (Tex Civ App, 1903), 76 SW 240. In the instant case defendant had all the facts and figures before it from the time of the first letter to the insured until his death, almost six years later. Under the circumstances, the error was the result of defendant’s own negligence, and knowledge of the real facts must be imputed to the company.”
Defendant here claims that it made a similar mistake in its certificate to plaintiff’s decedent by inserting that plaintiff’s decedent was entitled to $5,000 life insurance and $5,000 accidental death benefits under the master policy. It is possible that premiums on the group life insurance plan in question were, in fact, paid to defendant insurer in an amount which would have entitled plaintiff’s decedent, in any event, to the coverage specified in his certificate of insurance, i.e., $10,000.
We further find that plaintiff’s allegation of fraud constitutes an issue of fact for the jury to determine and, therefore, should not have been determined by the trial judge as a matter of law. The law in this state is that a cause of action can be maintained for fraud even without proof of scienter. That is, a mistake of fact, even though made in good faith, will permit the party who relied upon the statement to recover, because “the defendant, in consideration of what he did receive, understood that he should make good any loss caused plaintiff by relying upon the false representation”. Aldrich v. Scribner (1908), 154 Mich 23, 31; Kroninger v. Anast (1962), 367 Mich 478; Irwin v. Carlton (1963), 369 Mich 92.
We also observe that if, in fact, the error as to insurance coverage as specified in the certificate issued to plaintiff’s decedent was the result of negligence on the part of defendant, the following statement in 9 Callaghan’s Michigan Civil Jurisprudence, Estoppel, § 25, p 31 is applicable:
“Where one of two innocent parties must suffer a loss occasioned by the negligence of one of them, the loss must rest on the one who caused it, however honest his intentions may have been”.
The question of negligence on the part of defendant is, likewise, one of fact. Ingram v. Henry (1964), 373 Mich 453, 457.
Summary judgment is not a substitute for fact-finding and the proceedings in connection therewith are not a substitute for trial. Tobin v. General Motors Corporation (1969), 17 Mich App 475.
Having determined that the circuit court committed error in granting defendant’s motion for summary judgment, we reverse and remand this case for a trial on the merits.
Costs to plaintiff.
All concurred. | [
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Churchill, J.
George Grimmett was convicted by jury trial of assaulting John Knbon with intent to commit the crime of murder and is now serving a life sentence. The undisputed evidence disclosed that three men entered Shaker’s Market, a small Detroit store, on December 22, 1968, with the apparent intent to commit robbery armed. One of the men had in his hand a .22 caliber revolver and told Kubon, a customer in the store, to turn around. Kubon did so and was rewarded for his compliance with a bullet in the back.
As one claim of error on appeal, defendant asserts that there was insufficient evidence to support a jury finding that he participated in the crime. Four witnesses identified him as the man with the gun. Subsequent to the shooting, the gun, which was identified by ballistics testimony as the gun used in the crime, was traced to Grimmett. A girl friend of Grimmett testified that Grimmett told her that he, Grimmett, had shot someone at a grocery store on Canfield, the street where the store was located. Grimmett testified and denied participation in the crime. He explained that another person had given him the gun after the shooting. The evidence was ample to warrant the jury’s finding of Grimmett’s guilt beyond a reasonable doubt.
Defendant now claims that he did not have effective and competent trial counsel. Far from being a sham or farce, defendant’s trial was a vigorously contested adversary proceeding. There was nothing that trial counsel did or failed to do which supports defendant’s claim. See People v. Crawford (1969), 16 Mich App 92, and People v. Higginbotham (1970), 21 Mich App 489.
The people called Clarence Johnson as a witness. He testified that at one time he had the gnn in his possession and that it had disappeared from under his pillow. On cross-examination Johnson denied that he had sold the gun to Jimmie Lee and repeated his testimony that it had simply disappeared from under his pillow. On redirect examination Mr. LaBret, assistant prosecuting attorney, asked: “Mr. Johnson, isn’t it true that you, in fact, gave this gun to George Grimmett, isn’t that truel” The defense attorney objected, saying: “Your Honor, this is a prosecution witness. I don’t know what Mr. LaBret is doing”. The court said: “Well, I think under the circumstances, this is proper redirect examination”.
On appeal defendant claims that the court improperly permitted the prosecution to lead its witness and also that the question was outside the scope of proper redirect examination. The objection was ambiguous. Viewed with hindsight, we conclude that defense counsel was objecting to a leading question and the court, misunderstanding the objection, ruled on it as it went to scope. The question was leading and the objection might better have been sustained. The witness, however, in response to the leading question did not follow the lead. To the contrary, he related the same story as to how he lost possession of the gun. There was other evidence that Grimmett obtained possession of the gun. Under these circumstances the error was not prejudicial.
The gun was obtained by the police from Jimmie Lee. Jimmie Lee was called by the people and testified that he purchased the gun from Grimmett two days after the shooting. Defendant claims on appeal that the trial court erred in overruling defendant’s objection to' Lee’s testimony concerning the conversation that occurred between Lee and Grimmett at the time Lee purchased the gun. Defendant raises both relevancy and hearsay objections to this evidence. As in People v. Higgins (1901), 127 Mich 291, the fact that Grimmett owned and carried the revolver was pertinent. Technically, the evidence of the conversation was not offered to prove the truth of the matter asserted and was not hearsay. It was, rather, evidence of an act, part of which was verbal. This distinction is not significant here, however, because if hearsay, it would fall under the admissions exception. The court did not err in overruling the objection to the conversation.
On direct examination of defendant, after development of defendant’s testimonial version of the sale of the gun to Jimmie Lee, (from which it did not appear that Lee’s aunt was present at the sale the record continues as follows:
“Q. (By defense counsel). All right. Did Jimmie Lee’s aunt ever talk to you in the presence of Jimmie Lee about the gun?
“A. Yes, she did.
“Q. And what was that conversation?
“The Court: That’s hearsay.
“The Assistant Prosecuting Attorney: Well—
“Q. (By defense counsel). Did you, in fact, ever return the twenty dollars to Jimmie Lee?”
It must be inferred that the conversation with the aunt occurred after completion of the sale and transfer of the gun by Grimmett to Jimmie Lee and that the conversation was not a part of the transaction. The trial court obviously concluded that defendant wanted to bring out the conversation as proof of matters asserted by the aunt or by him, or by both. We uphold his conclusion that evidence of the conversation would be objectionable hearsay. Certainly the trial judge has the authority to exclude objectionable evidence on his own motion. He interfered very little with the conduct of trial by counsel. There was no error here.
Finally, defendant claims right to relief by reason of matters related to the timing of his prosecution and by reason of the relation of this case to another case. The calendar of significant events is as follows :
December 22, 1966 Shaker Aubrey and John Kubon shot at Shaker’s Market — Aubrey died,
December 27, 1966 complaint against Grimmett and others for murder of Aubrey
January 22, 1968 jury trial in murder case commenced
January 24, 1968 mistrial in murder trial by reason of confusion over degree of murder charged
July 30, 1968 complaint against Grimmett and others in this case
December 17, 1968 jury trial in this case commenced
December 20, 1968 jury verdict of guilty
October 4, 1969 jury trial in retrial of murder case commenced, resulting in conviction of Grimmett of manslaughter in connection with Aubrey’s death
The dates of other steps and proceedings in the prosecution of each case are not set forth because it is apparent from a careful study of each recorders court file that the people proceeded with all reasonable diligence, once prosecutions were commenced, to complete the prosecution of each case. It is equally apparent that the people had all necessary information at their disposal to commence both prosecutions at the same time had they elected to do so, and it may be reasonably inferred from the records that commencement of prosecution of this case more than six months after the mistrial in the murder case was prompted by misgivings about the possible effect of the murder mistrial on the right to try defendant and others in a subsequent trial for the murder of Aubrey.
Under these circumstances was there a right, in addition to the right to a speedy trial in both prosecutions, to speedy commencement of prosecutions? The people take the negative position, asserting that the defendant’s only right concerning the timing of the commencement of the prosecution is set forth hy the applicable statute of limitations. The necessary preparation for each trial would have been virtually the same and defendant demonstrates no prejudice in having a fair trial by reason of the delay. The original prosecution was still pending and he did not move for a joint trial of both prosecutions. The second prosecution was completed before the first. We hold that there was no violation of his constitutional or statutory rights to speedy trial nor was there a failure of due process. 21 Am Jur 2d, Criminal Law, § 248, p 283.
In a supplemental brief, the defendant claims the right to a reversal of his conviction by authority of Ashe v. Swenson (1970), 397 US 436 (90 S Ct 1189, 25 L Ed 2d 469). Ashe v. Swenson deals with double jeopardy and collateral estoppel in the multiple prosecution situation, but it could have no application to Grimmett in this case where he was tried and convicted before his conviction of manslaughter. The situation would not be changed even if the January 1968 murder trial was jeopardy, because the mistrial there was not based on findings inconsistent with his guilt in this case.
His conviction is affirmed.
All concurred.
MCLA § 750.83 (Stat Ann 1962 Rev § 28.278).
MCLA § 767.24 (Stat Ann 1954 Rev § 28.964).
Eor the type of situation in which delay in prosecution may be a violation of constitutional rights, see People v. Hryciuk (1967), 36 Ill 2d 500 (224 NE2d 250), where a 14-year delay in a murder prosecution was deliberate and calculated, and prejudice was demonstrated. | [
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] |
J. H. Gillis, P. J.
This is an action on an oral contract for the sale of Christmas trees. Plaintiff Birkner, a grower and wholesaler of scotch pines, sued to recover an unpaid purchase price due on the contract. Defendant Purdon, a lot-retailer, counterclaimed, alleging that the trees delivered did not meet contract requirements and were of inferior quality. The case was tried by the court sitting without a jury. From a judgment awarding defendant his counterclaim, plaintiff appeals.
At trial, defendant testified that he had ordered “Number One” trees — a designation generally used in the field of Christmas tree sales. .Harry Hartjen, an experienced wholesaler and retailer of Christmas trees, testified that such a tree is over 5-1/2 feet in height, with 3 good sides, a conical shape, and a satisfactory top (one without crows’ nests). A Number One tree is also free from holes or gaps.
When the trees were delivered to defendant’s retail lots, defendant was of the opinion that they were not of the specified quality. He was assured by plaintiff, however, on several occasions that the trees delivered were good, saleable trees. And, because of his relative inexperience, defendant decided to retain the trees and attempt to sell them. Defendant is a teacher by profession with little experience in grading and selling Christmas trees. Plaintiff, on the other hand, is a wholesaler with 32 years of experience.
Defendant’s retail lots were, according to the testimony of Hartjen, ideally located for tree sales: “The best Christmas tree lot location I have ever seen”. Defendant’s business records established that he incurred large expenses in an attempt to sell the trees in question, but to no avail. Of 3,555 trees delivered defendant was able to sell only 627. It was defendant’s claim that the poor sales were attributable to the inferior quality of the trees.
The trial court found that the contract required the delivery of Number One trees — “meaning a common description of something which is quite good”. This finding is not challenged on appeal. Both parties agree that the contract excluded defective or inferior trees. The court also found the contract had been breached in that the trees delivered did not conform to contract requirements.
Contrary to plaintiff’s first contention, competent record evidence supports the trial court’s finding that the trees delivered did not conform to the parties’ agreement. The manager of defendant’s retail lots testified:
“Generally, the shape of them were, unlike the, well, the cone shape of a Christmas tree. They were very bushy and wide all the way up. The shape of them was to me very bad, as a consumer and as the manager in the lot.
# # #
“They had, some of them had a lot of crooks in the trunks, they might jet up in two places on the top, and basic flaws in the trees, holes in the trees where there would be not three sides good and there would only be two sides good on the tree”.
Inspection Certificates of the United States Department of Agriculture also tended to show that the trees delivered were not of good quality. At defendant’s request, an inspection of the trees was made by Department of Agriculture officials. The Inspection Certificates showed that a large percentage of the trees failed to meet U.S. Number One standards because of barron lower whorls, curved stems, crows’ nests, and multiple leaders or stems. These certificates were relevant; they tended to show that the trees delivered were defective or inferior. Plaintiff contends, however, that the cer tificates were incompetent as hearsay and that it was error to admit them as evidence.
We hold that the inspection certificates were admissible as business records under MCLA § 600.2146 (Stat Ann 1962 Rev §27A.2146). Although the applicability of this statute to Inspection Certificates under the Agricultural Marketing Act of 1946, as amended, (7 USC §§ 1621 et seq.) has not been determined by a Michigan court, the exact question has been decided by the Supreme Court of Massachusetts, under a business entries statute similar to Michigan’s.
In Sawyer & Company v. Southern Pacific Company (1968), 354 Mass 481 (238 NE2d 357), United States Department of Agriculture Inspection Certificates were admitted at trial to prove the condition of cantaloupes. On appeal, the admission was held proper:
“We are of the opinion that the certificates were admissible as business records * # #
* * #
“The certificates were made by Federal inspectors in the regular course of the business of the Department of Agriculture.
“ ‘The operations of the instrumentalities of government constitute “business” within the meaning of the statute, and this is true of the operations of state and county agencies as well as those of the federal government.’ ” 354 Mass 482-484 (238 NE 2d 359, 360).
The certificates in question were also competent by virtue of the Michigan Seal of Quality Act, MCLA § 289.631 et seq. (Stat Ann 1967 Rev § 12.93 et seq.). Section 13 of the Act provides in part:
“The certificate and all federal certificates relative to the condition of quality of the products shall be prima facie evidence in all courts of the state of the facts required to be stated therein.”
We conclude there was sufficient competent evidence from which the trial judge could find plaintiff was obliged to supply good salable trees and in fact delivered trees of inferior quality. These findings are not, on the record, clearly erroneous. G-CR 1963, 517.1.
Plaintiff next contends that defendant failed to reject the trees in a timely manner, thus waiving any claim of nonconformity. Defendant received the first of five shipments of trees on November 24, 1967. On December 21, 1967, immediately after obtaining the results of the USD A inspection and consulting with his attorney, defendant sent plaintiff a telegram revoking his acceptance of the trees.
UCC 2-608, MCLA §440.2608 (Stat Ann 1964 Rev § 19.2608) provides in part:
“(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it.
# # #
“(b) [W]ithout discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
“(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it”.
There was testimony tending to show that immediate discovery of the defects was difficult because of the time required for the trees to open up after being flattened in transit; that on several occasions defendant had been expressly assured by plaintiff that the trees delivered were of good quality; that, because of the slow build-up of the selling season, it was difficult to judge the merchantability of the trees until the weekend of the 17th; and, finally, that defendant’s relative inexperience limited his appreciation of the defects. In light of these circumstances, the question of defendant’s alleged delay was one of fact for resolution by the trier. Cf. Hubbardston Lumber Company v. Bates (1875), 31 Mich 158; Gridley v. Globe Tobacco Company (1888), 71 Mich 528. The trial judge found that defendant had revoked his acceptance within a reasonable time under all the circumstances. We find no error.
Nor are we persuaded that the method utilized by the trial judge in assessing damages, including damages for lost profits, was improper. Plaintiff’s contentions on this point are answered by this Court’s opinion in Gongola v. Yaksich (1966), 3 Mich App 676.
Affirmed. Costs to defendant.
All concurred. | [
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] |
Per Curiam.
Petitioner appeals from the decision of the Ingham County Circuit Court on February 13, 1969, affirming his dismissal from state employment through Civil Service Commission procedures.
At issue is petitioner’s dismissal from employment by the Vocational Rehabilitation Division of the Department of Education on December 8, 1966, effective January 7, 1967, after petitioner had received two consecutive unsatisfactory service ratings. In his December 8 rating, petitioner was apprised of the reasons for his dismissal. Pursuant to Civil Service Commission rules, the Department of Education referred his appeal to the Civil Service Hearing Board. A hearing before this board was held January 11, 1967, at which petitioner was represented by two attorneys. On February 3, 1967, in substance, the hearing board upheld petitioner’s dismissal because the evidence showed that his performance was inadequate over a considerable period of time; that he had received fair notice of his deficiencies, but had still not performed acceptably, and there would be no effective change in his performance if given a further period of probation.
Petitioner appealed to the Civil Service Commission. A hearing was held on April 11,1967, at which time the commission affirmed the finding of the hearing board and recommended that an effort be made to find petitioner other employment outside of the Vocational Rehabilitation Division. On May 11, 1967, petitioner sought review in circuit court. The court affirmed the decision of the commission. On March 6,1969, Viculin moved for a rehearing. Additional argument was held, and on April 30, 1969, the court again affirmed Viculin’s dismissal from state employment.
Petitioner alleges a failure by the commission to safeguard his procedural rights and other errors during the course of his administrative and judicial proceedings. Our review of the record reveals compliance by the commission with all the requisites of due process before administrative tribunals established by the Supreme Court in Hanson v. State Board of Registration (1931), 253 Mich 601.
We also cannot agree that petitioner is entitled to a de novo trial in appeal to the circuit court. Any attempt by a circuit court to have a hearing de novo to substitute its judgment for that of the Civil Service Commission in discharge of its administrative functions would he error. Bischoff v. County of Wayne (1948), 320 Mich 376, 393.
Affirmed. | [
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Per Curiam.
Defendant Jimmy Ray Price was found guilty by a jury of murder in the first degree contrary to MCLA §750.316 (Stat Ann 1954 Rev §28.548), and sentenced to life imprisonment. Defendant filed a motion for new trial, supported by affidavits, asserting that the search warrant issued to permit the search for and seizure of the murder weapon, a rifle, did not include the term “rifle” when served and that newly-discovered evidence had been found supporting defendant’s claim of innocence.
The motion was denied below. The trial court was satisfied from the affidavits by the stenographer who typed the search warrant and the police officer who sought the warrant that the word “rifle” was in the search warrant, when it was signed by the issuing magistrate. Further, the court believed that the alleged new evidence could have been discovered on or before the date of trial.
The granting of a motion for new trial on the basis of newly-discovered evidence is a matter within the sound discretion of the trial court. Relief from denial of such a motion will not be granted unless there is a clear showing of abuse of discretion by the trial court. People v. Hill (1970), 21 Mich App 178. We have reviewed the action taken below and find that the trial court’s denial of the motion was fully supported by the affidavits before it and by the rules governing newly-discovered evidence. (See, generally, People v. LoPresto [1967], 9 Mich App 318, 324.) There was no abuse of discretion.
Affirmed. | [
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Per Curiam.
The people seek an order of superintending control to review a May 28, 1970 order of the trial court in these causes which (1) granted defendants’ motions for leave to file delayed motions for new trial, and (2) granted motions for discovery of certain jury commission records. The people assert that we have jurisdiction to grant the relief requested, citing People v. Price (1970), 23 Mich App 663, decided May 22, 1970. The people have misread Price.
This appeal from the above-cited orders, not in the course of the common law, must be viewed as an appeal in the nature of certiorari. See Jackson v. People (1860), 9 Mich 111, 117, 118. Certiorari is one of the writs superseded by orders of superintending control, GCR 1963, 711.3, but the scope of our review by order of superintending control in circumstances such that certiorari previously would have issued is identical with the scope of our review by that common-law writ. Thus, our review in this case is confined to questions of law. Scallen v. State Health Commissioner (1965), 376 Mich 64, 71; Drouillard v. City of Roseville (1967), 9 Mich App 239, 243; Indian Village Manor Co. v. Detroit (1967), 5 Mich App 679, 685. The scqpe of review upon such an appeal “is limited to determining if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law”. In re Fredericks (1938), 285 Mich 262, 267.
As stated in Price, 23 Mich App 663, 666, “MCLA § 770.12 (Stat Ann 1954 Rev § 28.1109), enacted in derogation of the common-law rule barring any and all appeals by the people in criminal cases, permits review at the instance of the people by a writ of error (modernly, an appeal), but only under certain narrow circumstances.”
The fact that the state may not appeal in a criminal case does not preclude the issuance of a writ of certiorari (superintending control) by an appellate court in favor of the state in a criminal case to determine whether an inferior tribunal is acting without jurisdiction, or in excess of jurisdiction. People v. Price, supra. See also, State v. Coleman (1937), 58 RI 6 (190 A 791, 109 ALR 787 [and annotation] ).
Faced with the extraordinary fact situation presented in the Price case, this Court said (p 668): “We therefore inquire into the jurisdiction of the Recorder’s Court to entertain a question on habeas corpus in the first place: that is, whether habeas corpus was a proper and available method for review of the error claimed by defendant”. (Emphasis supplied.) The Court concluded (p 671):
“Thus, we conclude that for purposes of habeas corpus the Recorder’s Court had jurisdiction to convict the defendant and that habeas corpus, after conviction and sentence, was consequently an improper method of review.” (Emphasis supplied.)
Price properly and narrowly holds that a trial judge cannot utilize the writ of habeas corpus in order to review the conviction of a defendant; or, put another way, a trial court judge, not being possessed of the power of appellate jurisdiction, cannot abuse legal process in order to vest him with such jurisdiction.
From this it can be seen that Price is merely another use of an ancient remedy, which may not be used by the people in the place of appeal. It does not, as argued by the people, call upon the Court of Appeals to exercise a general power of superintending control in the entire area left uncovered and precluded by statute.
As early as 1930, a unanimous Supreme Court stated in People v. Ballots, 252 Mich 282, that without statutory authorization the people cannot review criminal cases. This precedent has never been reversed.
Additionally, the Michigan Legislature has refused to extend the present scope of review allowed to the people, despite the recent introduction of several bills to broaden appeals by the people.
We wish to repeat so that all may hear, that appeals by the people require leave and are restricted by and limited to the provisions of CL 1948, § 770.12 (Stat Ann 1954 Rev § 28.1109). See City of Portage v. Timmerman (1968), 11 Mich App 498; People v. Harry James Smith (1969), 16 Mich App 606; People v. Abess (1969), 17 Mich App 617; People v. Price (1970), 23 Mich App 663.
In these two cases the complaints for superintending control reveal that Robert Mason was regularly convicted by a Recorder’s Court jury, Judge John P. O’Hara presiding, of burning a dwelling house, and that Eddie Rogers was convicted by a Recorder’s Court jury and sentenced by Recorder’s Court Judge George W. Crockett, Jr., and that Judge Crockett is the successor judge to Judge O’Hara. They further reveal that both Mason and Rogers have had delayed motions for new trial denied by Judge Crockett. Judge Crockett undoubtedly had and has jurisdiction to proceed in these matters. The only questions for our consideration, then, are whether or not in granting these orders for leave to file delayed motions for new trial and for discovery of jury commission records Judge Crockett exceeded that jurisdiction and whether he proceeded in accordance with the law.
We think that it is clearly within the authority of a trial judge to grant such orders, and that the people in their complaints for superintending control, briefs in support, and motions for emergency consideration, do not really argue that such orders constitute a total abuse of discretion. Rather, they argue the ultimate, but at this point in the proceed ing irrelevant, question, whether the defendant waived any challenge to the array of the jury panel before the jury was sworn. It will be time enough to consider this question when it is properly presented to the Court in a proper appeal.
The complaint for superintending control is treated as an application for leave to appeal, and is dismissed for lack of jurisdiction. | [
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] |
Saad, J.
I. PROCEDURAL HISTORY
This is the third time we have addressed this case on appeal. Our Court originally adjudicated this alleged Whistleblowers’ Protection Act (WPA) claim in 2011, and our opinion reversed the jury award in Whitman’s favor. We held that the Michigan Supreme Court’s decision in Shallal barred Whitman from claiming protection under the WPA, because he admitted that his motivation for asserting his entitlement to accumulated, unused sick-leave pay under a city ordinance was entirely personal and selfish. We reasoned that, under Shallal, Whitman’s private motivations for asserting defendants’ noncompliance with the city ordinance disqualified him from WPA protections, because he did not act as a whistleblower under the meaning of the WPA. We dismissed his case on this narrow ground, and further held in a footnote that “overwhelming evidence of plaintiffs misconduct in office . . . more than justified the mayor’s decision not to reappoint plaintiff as police chief.”
The Michigan Supreme Court reversed, and disavowed what we thought was the principle articulated in Shallal on the dispositive nature of Whitman’s private motivations. It remanded the case and instructed us to address “all remaining issues on which [we] did not formally rule, including whether the causation element of the [WPA] has been met.”
Because our narrow 2011 ruling regarding Whitman’s private motivation meant that we did not look at the larger — and, to our minds, more important— question of whether Whitman’s conduct objectively promoted the public interest, we addressed and decided this issue on remand in 2014. We held that the purpose of the WPA is to advance the public interest, and thus the statute protects only those plaintiffs whose actions, irrespective of their personal motivations, objectively advance the public interest. And because Whitman’s conduct ran contrary to the public interest, rather than advancing the public interest, we held that Whitman was not protected by the WPA.
We further held, once again, but with fuller explanation, that Whitman’s alleged whistleblowing activity was clearly not the reason the mayor refused to renew his four-year term as chief of police. Instead, the mayor’s refusal to renew Whitman’s four-year political appointment was a direct result of Whitman’s misconduct during his previous term — misconduct that only came to the mayor’s knowledge during his postelection review of his team of political appointees. It was this review, and the information it revealed, that motivated the mayor to refuse to reappoint Whitman to another four-year term as chief of police.
The day after we issued our second decision on appeal, the Michigan Supreme Court issued Wurtz v Beecher Metro Dist, which held that WPA protections do not apply to “job applicants and prospective employees.” Then, on November 19, 2014, the Michigan Supreme Court vacated our 2014 decision and asked us to review our ruling in light of Wurtz. After our review of Wurtz, we conclude that Whitman’s claim must be dismissed under the holding and reasoning in that case.
Therefore, we now hold that Whitman’s claim must be dismissed for any one or combination of the following reasons: (1) Wurtz requires its dismissal, (2) objectively, Whitman’s conduct did not advance the public interest, but instead, it ran contrary to the public interest, and (3) the mayor’s refusal to reappoint Whitman, a political appointee, to another four-year term as police chief was because of Whitman’s misconduct in office, not the whistleblowing activity that allegedly took place long before his four-year term as chief had ended.
II. STANDARD OF REVIEW
A trial court’s ruling on a motion for judgment notwithstanding the verdict (JNOV) is reviewed de novo on appeal. Garg v Macomb Co Community Mental Health Servs, 472 Mich 263, 272; 696 NW2d 646 (2005). “When reviewing the denial of a motion for JNOV, the appellate court views the evidence and all legitimate inferences therefrom in the light most favorable to the nonmoving party to determine if a party was entitled to judgment as a matter of law.” Genna v Jackson, 286 Mich App 413, 417; 781 NW2d 124 (2009).
III. ANALYSIS
A. PLAINTIFF IS NOT ENTITLED TO WPA PROTECTION
1. DEFENDANTS’ALLEGED WPA VIOLATION OCCURRED AFTER THE CONCLUSION OF PLAINTIFF’S TENURE AS POLICE CHIEF
a. LEGAL STANDARDS
MCL 15.362, the provision of the WPA under which plaintiff brought suit, states:
An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.
In Wurtz, the Michigan Supreme Court clarified that these protections do not apply to job applicants and prospective employees, because a job applicant or prospective employee cannot be “discharged, threatened, or otherwise discriminated against regarding his or her compensation, terms, conditions, location, or privileges of employment” — only a current employee can suffer such mistreatment. In other words, the WPA applies to an employer’s improper actions regarding an individual’s protected conduct only when the conduct occurs during the course of his employment.
Accordingly, when it adjudicates a claim under the WPA, Wurtz emphasizes the plaintiffs employment status at the time the alleged WPA violation occurred. If a defendant committed the alleged WPA violation during the course of a plaintiff’s employment, the plaintiff’s claim may proceed. If the defendant committed the alleged WPA violation when the plaintiff was not employed by the defendant, or when the plaintiff was a job applicant or prospective employee, the plaintiffs claim must fail. Under Wurtz, this classification — employed versus not employed (as a job applicant, prospective employee, or former employee) — is the only classification a court may use to assess whether the WPA provides protection to a plaintiff. For purposes of this determination, it is inconsequential whether the plaintiff was an at-will employee, contract employee, or just-cause employee — the plaintiff is protected by the WPA only if the alleged WPA violation occurred during the course of his employment.
The Michigan Supreme Court applied these principles to Wurtz, a contract employee who worked for a local water and sewage district under a fixed term. Wurtz wished to continue in his position after termination of his contract term, but the district declined to renew his contract. Wurtz then sued the district and alleged that it violated the WPA when it refused to renew his contract, because it supposedly did so in retaliation for actions he took during his employment. The Michigan Supreme Court rejected Wurtz’s claim because the WPA violation he claimed the district committed — its decision to not renew his contract— occurred after the conclusion of his contract term, when Wurtz was a job applicant or prospective employee. Stated another way, because the WPA violation alleged by Wurtz did not take place during the course of his employment, Wurtz had no claim against the district under the WPA.
In sum, Wurtz holds that when a plaintiff alleges that a defendant violated the WPA, a court must assess the claim by ascertaining whether the alleged WPA violation occurred during the course of the plaintiffs employment with the defendant. If the plaintiff was employed at the time of the alleged WPA violation, the plaintiffs case may proceed. If the plaintiff was not employed at the time of the alleged WPA violation, or was a job applicant or prospective employee at the time of the alleged WPA violation, the plaintiffs case must fail. The plaintiffs classification while he was employed — i.e., as a contract, at-will, or just-cause employee — is irrelevant to the court’s determination. The court’s focus must be on whether the plaintiff, regardless of his classification, was employed by the defendant at the time the alleged WPA violation occurred.
b. application
The charter of the city of Burton provides that:
[t]he Mayor shall appoint all administrative officers of the city, except the City Attorney and City Auditor. The Mayor’s appointments shall be subject to approval by an affirmative vote of four or more members of the Council. The Council shall act within thirty (30) days from the date of submission upon any appointments submitted by the Mayor for approval. [Burton Charter § 4.5(g), available at <http://www.mml.org/resources/information/charter/pdF 68.pdf> (accessed June 30, 2015) [http://perma.cc/ U654-49A8].]
The chief of police is among the city’s administrative officers. Burton Charter § 6.1(a). Most administrative officers, including the chief of police,
shall be appointed by the Mayor subject to the approval of the Council, and shall serve at the pleasure of the Mayor for indefinte [sic] terms, except that the Mayor shall reaffirm or appoint those administrative officers and other appointive officers provided in this charter within thirty (30) days from his election, and give Council notice of same. [Burton Charter § 6.2(b).]
Accordingly, for the chief of police to continue his employment after a mayoral election, he must be reappointed or reaffirmed to the position by the mayor, within 30 days of the mayor’s election. This reappointment mechanism effectively means that a chief of police serves a four-year term, albeit “at the pleasure of the Mayor.”
Here, Whitman alleges that he engaged in protected activity under the WPA — his purported whistleblowing regarding the city’s initial refusal to compensate him for unused sick leave — during the course of his four- year appointment as police chief. He says that the mayor retaliated against him for this whistleblowing, in violation of the WPA, when the mayor declined to reappoint him as police chief after the mayor’s reelection in November 2007.
Under the express holding of Wurtz, Whitman may not bring a claim under the WPA. Like Wurtz, Whitman alleges that defendants violated the WPA after the conclusion of his employment — i.e., after the conclusion of his four-year appointment as police chief. He does not claim that he was “subject to a specific adverse employment action enumerated by the WPA” during the course of his employment. As a candidate for reappointment to the office of police chief, Whitman was essentially a job applicant. His suit is premised on an alleged WPA violation committed by defendants after the termination of his four-year term as police chief.
Accordingly, Whitman, as a political appointee seeking reappointment, was not subject to the protections of the WPA at the time of the alleged WPA violation. Thus, his suit under the WPA has no merit. We therefore reverse the trial court’s denial of defendants’ request for JNOV.
2. PLAINTIFF DID NOT OB JECTIVELY ADVANCE THE PUBLIC INTEREST
Whitman is not entitled to protection under the WPA for an additional reason: his conduct, as an objective matter, did not advance the public interest. Because the WPA protects those who protect the public interest by blowing the whistle on illegality, and because laws in general are an expression of public policy for the benefit of the public, there is typically no question that reporting a violation of law advances the public interest. But this is not always true, and is certainly not true here.
In this case, Whitman’s actions are unquestionably and objectively contrary to the public interest. That is, regardless of his personal motivation, Whitman’s whistleblowing effort sought enforcement of a law that harmed, not advanced, the public interest.
The law in question, Burton Ordinance 68-25C, § 8(1) (“68-C”), is not a law that protects the public interest. Rather, it is an ordinance that reads much like a standard, garden-variety collective-bargaining provision for wages and benefits. It is simply a recitation that sets forth the wages and benefits for administrative, nonunionized employees of the city of Burton. In many workplaces, an employee must use sick days or vacation days, or lose them. But under some collective-bargaining agreements and employment policies, employees may accumulate these days and then get paid for all days not used. This perk is generally found in collective-bargaining agreements for unionized employees. But here, this benefit — along with a statement of wages and matters like dental insurance — was codified in 68-C.
The waiver of the benefit contained in 68-C, which plaintiff characterizes as a violation of law, has its origins in a severe financial crisis that afflicted the city of Burton in the early 2000s. During this time period, the city’s department heads — who obviously benefited from 68-C — voted as a group not only to take a wage freeze, but to forgo the perk of payment for accumulated leave time to avoid harmful layoffs and reduced services to the public. In other words, the administrative team’s waiver of the perk contained in the ordinance was an illustration of shared sacrifice by the nonunionized department heads to advance the public interest of the citizens of the city of Burton at the employees’ expense.
Only one department head objected to this public-spirited waiver of the perk — Whitman, then the chief of police. He demanded his money as set forth in the ordinance, which he received after the mayor acted on the advice of outside legal counsel. This is the “law” plaintiff (mis)uses to assert a claim under the WPA.
We say “misuses” advisedly because the WPA is designed to ferret out violations of law that injure the public, especially when applied to public-sector defendants. If government officials, who are bound to serve the public, violate laws designed to protect the public from corruption, pollution, and the like, then employees who, at their own risk, blow the whistle on such illegality, necessarily serve the public interest. This is precisely why the WPA grants such employees protection from reprisal. The law in question here was not a law to protect the public, but rather was a simple listing of wages, benefits, and various perks. The very public servants who benefited financially from the ordinance made a personal sacrifice and waived their right to a perk to save the public badly needed funds, and to prevent layoffs and reduced public services. Any action contrary to the waiver was contrary to the public interest. Again, the waiver of the perk set forth in the ordinance at issue advanced the public interest. Opposition to that waiver — on which Whitman bases his suit — objectively disserved the public interest.
Also, whistleblowing assumes that an employee risks retaliation for uncovering the public employer’s misconduct. Here, there simply was no misconduct or illegality. The only conduct of the city employees that implicated 68-C was the department heads’ decision to waive the benefit provided by the ordinance, and Whitman’s refusal to honor that waiver. This is an employee’s insistence, plain and simple, that he get his perk — not an uncovering of corruption or illegality. And this disagreement about the legal effects of the waiver was satisfied, in Whitman’s favor, after the city sought legal counsel. Accordingly, Whitman’s citation of the ordinance was not whistleblowing. It was simply a disagreement regarding the proper interpretation of the city of Burton’s labor laws. That is, there was a disagreement about whether the administrative team could waive the perk provided by 68-C, and whether Whitman was bound by the group’s waiver. It had nothing to do with whistleblowing whatsoever.
That is why this is not the usual case. Reporting a violation of law normally constitutes conduct in the public interest. Here, to the contrary, Whitman’s actions — as an objective matter — were undoubtedly against the public interest. And defendants did not actually violate any law as violations of law have been traditionally understood in whistleblowing lawsuits— i.e., revealing public corruption or malfeasance. Defendants simply refused (at first) to grant Whitman a monetary perk he demanded because all managerial employees had waived that perk. Whitman may or may not have been entitled to his perk, but he most certainly is not entitled to claim the protection of the WPA when his conduct objectively served his interest, but harmed the public’s.
Because he was not a whistleblower under the WPA, no juror could have legally found in favor of Whitman on his WPA retaliation claim. The trial court’s denial of defendants’ request for JNOV is accordingly reversed.
B. CAUSATION
We also held in our 2011 opinion, Whitman I, that Whitman’s alleged whistleblowing activity from late 2003 to early 2004 was not the legal cause of the mayor’s decision to not reappoint him as police chief in late 2007. On closer examination of the facts pertinent to the causation issue, we are even more convinced that Whitman’s alleged whistleblowing activity lacks a causal link to the mayor’s decision. We so hold for several reasons.
1. TRUST, NOT WHISTLEBLOWING
As noted, in 2003, the mayor’s administrative team voted to voluntarily take a wage freeze and forgo the perk of accumulated sick days to save the taxpayers money, and to avoid layoffs and reduced services. This sacrifice spoke well of the mayor and his department heads. Whitman’s refusal to abide by the department heads’ agreement and subject himself to the same sacrifice raised issues of trust and caused the mayor to rightly be disappointed in Whitman. Indeed, Whitman’s “evidence” of a causal connection between his whistleblowing and the mayor’s decision many years later to not reappoint him, frames the issue in exactly this context.
A third party who attended Whitman’s June 2004 meeting with the mayor made handwritten notes of the discussion, which state: “Mayor = No Trust — 68-C (vacation) — lack of communication [,]” And the may- or’s alleged December 2007 statement to other senior police officers that he and Whitman “got off on the wrong foot” — a statement that, if made, occurred after the mayor decided not to reappoint Whitman — supposedly emphasized Whitman’s 68-C complaints as an issue of trust, in that his failure to adhere to a voluntary agreement with his colleagues betrayed that trust. In sum, it appears the mayor viewed the 68-C issue not in the context of whistleblowing, or anger at Whitman’s supposed whistleblowing, but instead as an example of how Whitman was untrustworthy. As noted, this is not a case where a “violation of law” was even remotely an issue. And it is extremely unlikely that this “lack of trust” over Whitman’s failure to honor an agreement on this specific occasion had anything to do with his subsequent dismissal, for the numerous reasons discussed below.
2. ALLEGED RETALIATION IS TEMPORALLY REMOTE FROM ALLEGED WHISTLEBLOWING
Whitman’s claim has a serious temporal problem: he alleges that he was not reappointed in late 2007 for events that took place in late 2003 and early 2004. Our courts have taken pains to stress that the length of time between an alleged whistleblowing and an adverse employment action is not dispositive on the issue of retaliation — when those two events are close in time (i.e., days, weeks, or a few months apart). If whistle-blowing and retaliation that occur close in time may not be sufficient to find causation under the WPA, then whistleblowing and retaliation that occur far apart in time certainly weigh against finding causation. See Fuhr v Hazel Park Sch Dist, 710 F3d 668, 675-676 (CA 6, 2013) (holding that in the context of a Title VII retaliation claim, a two-year gap between a plaintiffs protected activity and the claimed retaliatory act “proves fatal to [the plaintiffs] assertion that there is a causal connection”).
Here, there is an enormous temporal gap between Whitman’s alleged whistleblowing and the supposed retaliation, which belies any causal connection between the two. As noted, Whitman’s demands to receive compensation under 68-C took place in 2003 and early 2004. The mayor declined to reappoint him as police chief in November 2007 — almost four years after the supposed whistleblowing. Of course, the mayor, as the top executive officer of the city of Burton, could have terminated Whitman at any time He could have done so in March 2003, when Whitman first voiced opposition to the waiver of 68-C, or in early 2004, when he insisted on his compensation under the ordinance. In fact, the evidence demonstrates that the mayor was not concerned about Whitman’s 68-C demands at all, because he reappointed him as police chief in November 2003 — six months after Whitman’s initial complaint regarding 68-C. And again, Whitman’s term expired in November 2007, almost four years after those complaints.
It strains credulity to the breaking point to suggest, as Whitman does, that the mayor — who had the power to dismiss Whitman at any time, for any reason or no reason — was so upset with his alleged whistleblowing in late 2003 and early 2004 but allowed Whitman to continue as police chief for all of 2004, 2005, 2006, and into late 2007, and only then decided to “retaliate” against him. Indeed, when viewed in the context of the typically close working relationship between a mayor and his chief of police, and the fact that the chief of police, as a member of the mayor’s executive team, serves at the pleasure of the mayor, Whitman’s allegations take leave of reality and enter the theatre of the absurd.
3. BREAKS IN WHITMAN’S SUPPOSED CAUSAL CHAIN
The long period of time between Whitman’s supposed whistleblowing and the mayor’s decision not to reappoint him involves another aspect that is fatal to his claim: there are numerous breaks in the causal chain. Whitman’s first complaints regarding the administrative team’s waiver of 68-C in March 2003 clearly did not cause the mayor to retaliate. Indeed, the mayor reappointed Whitman as the chief of police in November of that same year. Whitman’s further attempts to secure compensation in January 2004 were addressed by the mayor, who first sought the advice of city counsel, and later, outside labor counsel. The mayor complied with that legal advice by paying Whitman almost $7,000 in additional compensation. And Whitman’s 2004 dispute with the mayor ended amicably — he remained chief for more than three years following that meeting, and by his own admission, he never heard mention of the 68-C dispute from the mayor and never was retaliated against during that time period. These intervening events — all positive developments for Whitman — raise serious doubts that his 68-C whistleblowing was a “determining factor” or “caus[e] in fact” of the mayor’s decision to not reappoint him. Matras, 424 Mich at 682.
4. WHITMAN’S MISCONDUCT LED TO ADVERSE EMPLOYMENT ACTION
In any event, Whitman has provided no evidence to refute the mayor’s stated and compelling reasons for not reappointing him — Whitman engaged in serious misconduct and misused his office. After his reelection in November 2007, the mayor reevaluated his entire administrative team pursuant to the mandates of Burton Charter § 6.2(b). During this period, he was advised of Whitman’s serious misconduct in office by officers in Whitman’s department. Among other things, these included allegations that Whitman (1) meted out inadequate discipline of subordinates who abused their power, (2) misused a city computer to exchange sexually explicit e-mail messages with a woman who was not his wife, (3) discriminated against a female officer, and (4) forged a signature on a budget memo. Command officers within the police department warned the mayor of serious morale problems created by Whitman’s abuse of power. In the face of these troubling revelations, the mayor understandably did not reappoint Whitman to this important position of public trust, and these are the reasons the mayor gave for declining to reappoint him as police chief in November 2007. To suggest that a mayor, whose chief of police works at the mayor’s pleasure, would make a reappointment decision based on an old, stale issue instead of very recent, more disturbing revelations, is simply fanciful.
Whitman made no specific effort before this Court to deny these allegations against him other than to state, self-servingly and without support, that they were “merely a pretext,” and to assert “that his personnel file demonstrate [d] that his performance as a police chief was good, that he had received numerous awards, and that there were never any disciplinary actions against him.” Whitman II, 493 Mich at 309-310. Whitman’s only proffered “evidence” of a causal connection between his supposed whistleblowing and the mayor’s decision to not reappoint him was the statement the mayor made in December 2007 — after the mayor had already made his decision, but before its public announcement — in which the mayor supposedly told senior police officers that he lacked trust in Whitman. The mayor cited as one example Whitman’s refusal to keep his word, and along with the entire administrative team, to waive his unused sick-day compensation under 68-C.
Whitman’s assertion must be weighed against the other factors in this case: (1) the mayor’s view of Whitman’s 68-C demands as a trust issue, not a retaliation issue, and certainly not whistleblowing, (2) the almost four-year interval between Whitman’s alleged whistleblowing and the purported retaliation, (3) the causal breaks in Whitman’s claim, and (4) the allegations of Whitman’s extensive misconduct. When Whitman’s assertion is weighed against these factors, the evidence is overwhelming that his so-called whistleblowing had no connection to the mayor’s decision to not reappoint him as the police chief. There is simply no way that a reasonable fact-finder, even when “view[ing] the evidence and all legitimate inferences ... in the light most favorable to the nonmoving party,” Genna, 286 Mich at 417, could find that retaliation was “one of the reasons which made a difference in determining whether or not to [discharge] the plaintiff.” Matras, 424 Mich at 682 (emphasis added; alteration in original).
IV. REPLY TO THE DISSENT
The dissent’s analysis betrays a basic misunderstanding of the nature and function of executive appointments in governmental administration. Again, the mayor of the city of Burton is required by the city charter to “reaffirm or appoint. . . administrative officers” to the city administration “within thirty (30) days from his election.” Burton Charter § 6.2(b). The city council is then required to confirm or deny the appointments “within thirty (30) days from the date of submission . . . .” Burton Charter § 4.5(g). Because the mayor is elected every four years, he is required by the city charter to reaffirm or appoint the city’s administrative officers every four years. Within that four-year span, the mayor may dismiss an administrative officer at any time. Burton Charter § 6.2(b). As a result, an administrative officer in the city of Burton has no expectation of continued employment. An administrative officer knows that his term cannot last longer than four years, because after the mayor’s election or reelection, an administrative officer must be reaffirmed to his position. And an administrative officer also knows that his term may be much shorter than four years— indeed, it may be ended at any time — because an administrative officer serves “at the pleasure of the mayor.”
Here, as we have explained in our opinion, Wurtz mandates that Whitman’s suit be dismissed. The mayor was reelected in November 2007. Upon the mayor’s reelection, Whitman’s term as police chief, which began in 2003, effectively ended. The city char ter required the mayor to reaffirm or appoint a police chief and to submit his suggestion to the city council for approval. Thus, at that stage, Whitman was merely a candidate for the position of police chief. Accordingly, Whitman cannot now use the WPA to sue the city for the mayor’s ultimate decision to not reappoint him as police chief, because the WPA does not protect job applicants or prospective employees. In other words, Whitman may not bring a WPA claim against the city of Burton for the mayor’s decision to not reappoint him to an office that, as a matter of law, he no longer held at the time.
The dissent attempts to escape this obvious outcome with irrelevant appeals to emotion (“[Whitman] was a full-time, 32V2-year employee with the city of Burton”), misstatements of fact (“Smiley removed [Whitman] ... on November 27, 2007”), and basic misinterpretations of key terms (“[Whitman] enjoyed an ‘indefinite’ term of employment [as chief of police]”).
The last of these is particularly egregious. The true, noncolloquial, definition of “indefinite” is “not definite” — i.e., “having no exact limits.” Merriam-Webster’s Collegiate Dictionary (2014). This is exactly the way in which the word is used in the city of Burton’s city charter:
All other administrative officers shall be appointed by the Mayor subject to the approval of the Council, and shall serve at the pleasure of the Mayor for indefinte [sic] terms, except that the Mayor shall reaffirm or appoint those administrative officers and other appointive officers provided in this charter within thirty (30) days from his election, and give Council notice of same. [Burton Charter § 6.2(b) (emphasis added).]
Instead of using the correct dictionary definition of “indefinite” and adhering to the broader context of the sentence in which the word is used in the city of Burton’s charter, the dissent interprets “indefinite” to mean “forever” — i.e., that Whitman had an expectation of continued employment for an unlimited period of time.
This interpretation is the exact opposite of what the word “indefinite” actually means in the context of the city charter. Again, an “indefinite” term of employment is one that is “not definite” — i.e., one that can end at any time — today, tomorrow, or any time before the conclusion of the four-year term. Accordingly, the city charter’s use of “indefinite” means that while a police chief may be employed for a full four-year term, he serves at the pleasure of the mayor and may be terminated at any time before the expiration of the four-year term. Therefore, Whitman had no basis for his expectation of continued employment. But most important to the application of Wurtz, the law of the city of Burton required Whitman to be reappointed (and approved by the city council) as the chief of police every four years, after the mayor’s reelection. Because the mayor chose not to reappoint Whitman as police chief after his term as police chief had expired, Whitman has no recourse under the WPA.
Finally, the dissent attempts to confuse matters by insinuating that we do not recognize that at-will employees are protected under the WPA. Of course we recognize the obvious proposition that an at-will employee, like any other employee, is protected under the WPA — for retaliatory actions taken against him when he is employed. Here, defendants never took retaliatory action against Whitman while he was employed as chief of police. Rather, the mayor chose to not reappoint Whitman after the mayor’s reelection in Novem ber 2007, at which time Whitman became a candidate for the (then open) position of police chief.
V. CONCLUSION
We hold that Whitman’s claim must be dismissed for any one or a combination of the following reasons: (1) Wurtz requires its dismissal, (2) objectively, Whitman’s conduct did not advance the public interest, but instead ran contrary to the public interest, and (3) the mayor’s refusal to reappoint Whitman, a political appointee, to another four-year term as police chief, was a result of Whitman’s egregious misconduct, not the alleged whistleblowing activity that took place long before his four-year term as chief had ended.
Accordingly, because no reasonable fact-finder could legally find in favor of Whitman on his claim under the WPA, we reverse the trial court’s denial of defendants’ motion for JNOV and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
O’CONNELL, P.J., concurred with SAAD, J.
A summary of the facts relevant to this opinion can be found at Whitman v City of Burton, 293 Mich App 220, 222-228; 810 NW2d 71 (2011) (Whitman I), and at Whitman v City of Burton, 493 Mich 303, 306-311; 831 NW2d 223 (2013) (Whitman II).
MCL 15.361 et seq.
Whitman I, 293 Mich App 220.
Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604; 566 NW2d 571 (1997).
Specifically, Whitman first voiced his opposition to modification of the city ordinance at issue by stating that “[m]y current life style revolves around these very things [i.e., the benefit of receiving payment for accumulated leave time] that have been negotiated for me . . . .” See Whitman I, 293 Mich App at 225.
Id. at 232 n 1.
Whitman II, 493 Mich at 306.
Id. at 321.
See Whitman v City of Burton (On Remand), 305 Mich App 16; 850 NW2d 621 (2014) (Whitman III).
Wurtz v Beecher Metro Dist, 495 Mich 242; 848 NW2d 121 (2014).
Id. at 253.
Whitman v City of Burton, 497 Mich 896 (2014) (Whitman IV).
Wurtz, 495 Mich at 253.
Id. at 251.
Id. at 253.
Id. at 252 (“[A]s gleaned from the WPA’s express language, the statute only applies to individuals who currently have the status of an ‘employee.’ ”).
Id. at 252. See also id. at 252 n 16:
We recognize that plaintiff was an employee at the time he engaged in protected activity. Significantly, however, plaintiff makes no claim that his employment contract was in any way breached or that he was subject to a specific adverse employment action enumerated by the WPA during his contract term. Rather, plaintiff maintains that because he engaged in protected activity during his contract term, he has a right under the WPA to renewal of his contract.
Id. at 253.
Of course, as the Michigan Supreme Court stated, at-will employees — like any other kind of employee — are protected under the WPA against WPA violations allegedly committed by their employer during the course of their employment. See id. at 256-257. However, at-will employees — like any other kind of employee — are not protected under the WPA against WPA violations allegedly committed by their employer after they are no longer employed. See id. at 253.
Id.
Id. at 244-245.
Id. at 246-247.
Id. at 247.
Id. at 258-259.
Id.
See id. at 253.
Mayoral elections take place every four years. Burton Charter § 4.2(b).
Wurtz, 495 Mich at 252.
As discussed in note 19 of this opinion, we recognize that if the mayor had terminated Whitman for whistleblowing activity during the course of Whitman’s four-year term as police chief, Whitman’s WPA claim might be valid. The reason Whitman’s claim is not valid is because he alleges a WPA violation committed by defendants after the conclusion of his four-year term.
Wurtz, 495 Mich at 252 n 16.
The Michigan Supreme Court did not address this aspect of the WPA in its 2013 opinion, nor did it do so in its 2014 order. Our understanding of the Supreme Court’s statement that Whitman “engaged in conduct protected under the WPA,” Whitman II, 493 Mich at 320, is that this protection is predicated on a narrow reading of the WPA — namely, one that only analyzes the relevancy of a plaintiffs personal motivations for “blowing the whistle.” Our 2011 opinion, reversed by our Supreme Corut, only addressed this discrete aspect of the WPA.
Because we did not analyze the overarching issue in our 2011 opinion — that is, whether the WPA only protects conduct that objectively advances the public interest — the Supreme Court did not address that issue in its 2013 decision. Because the Supreme Corut instructed us in its 2013 remand to consider “all remaining issues on which [we] did not formally rule,” we discussed this aspect of the WPA in the opinion issued, and vacated, in 2014, and do so again here. Id. at 321.
In any event, our Court has noted the distinction between an employee’s personal motives in reporting legal violations and reporting that actually advanced the public interest. See Phinney v Perlmutter, 222 Mich App 513, 554; 564 NW2d 532 (1997) (“In addition, whether plaintiff sought personal gain in making her reports, rather than the public good, is legally irrelevant and need not be addressed except to note that the reporting of misconduct in an agency receiving public money is in the public interest”) (emphasis added). Phinney’s holding on an unrelated matter was abrogated by Garg, 472 Mich at 290. (Garg overruled Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986), on which Phinney relied for its analysis of the continuing violations doctrine.)
See Burton Ordinance 68-25C, § 8(1) (“68-C”). As noted by the Supreme Court, “Burton’s ordinance numbering and policy regarding unused leave time have changed since the time of the trial of this case.” Whitman II, 493 Mich at 306 n 3. We agree with the Supreme Court: “[b]ecause those changes are not relevant to our analysis, this opinion refers to the ordinance numbering and language as it was introduced during trial.” Id.
Whitman I, 293 Mich App at 224.
See Whitman II, 493 Mich at 307.
Id., at 307. It appears that Whitman attended the March 2003 meeting when the department heads decided to waive 68-C, but it is unclear whether Whitman voiced an opinion on the waiver at the meeting.
Id.
“The [WPA] encourages employees to assist in law enforcement. .. with an eye toward promoting public health and safety. The underlying purpose of the [WE4] is protection of the public. The [WPA] meets this objective by protecting the whistleblowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law. Without employees who are willing to risk adverse employment consequences as a result of whistleblowing activities, the public would remain unaware of large-scale and potentially dangerous abuses.” Dolan v Continental Airlines I Continental Express, 454 Mich 373, 378-379; 563 NW2d 23 (1997) (quotation marks and citations omitted; emphasis added; alteration omitted).
Our sister states’ jurisprudence interpreting their whistleblower statutes recognize the distinction between reported legal violations that affect the public interest (which are protected) and reported legal violations that affect solely private interests (which are not protected). Though the following cases involve internal corporate disputes — as opposed to reported violations of municipal statutes — we think that the reasoning is equally relevant to this case, where the ordinance violated did not advance the public interest. See Garrity v Overland Sheepskin Co of Taos, 917 P2d 1382, 1387 (NM, 1996) (noting that “[w]hen an employee is discharged for whistleblowing, the employee must also demonstrate that his or her actions furthered the public interest rather than served primarily a private interest”); and Darrow v Integris Health, Inc, 176 P3d 1204, 1214 (Okla, 2008) (concluding that “to distinguish whistle-blowing claims that would support a viable common-law tort claim from those that would not, the public policy breached must truly impact public rather than the employer’s private or simply proprietary interests”). Cases from foreign jurisdictions are not binding, but can be persuasive authority. People v Campbell, 289 Mich App 533, 535; 798 NW2d 514 (2010).
To prevail under the WPA, Whitman must “establish a causal connection between [the] protected conduct and the adverse employment decision by demonstrating that his employer took adverse employment action because of his protected activity.” Whitman II, 493 Mich at 320. In the absence of direct evidence of retaliation (which Whitman does not present), he must show indirect evidence to demonstrate “that a causal link exists between the whistleblowing act and the employer’s adverse employment action.” Debano-Griffin v Lake Co, 493 Mich 167, 176; 828 NW2d 634 (2013). A plaintiffs presentation of indirect evidence is analyzed under “the burden-shifting framework set forth in McDonnell Douglas [Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973)].” Id. Applying this standard to retaliation claims, a plaintiff must show that his “protected activity under the WPAwas “one of the reasons which made a difference in determining whether or not to [discharge] the plaintiff.” Matras v Amoco Oil Co, 424 Mich 675, 682; 385 NW2d 586 (1986) (quotation marks and citations omitted; emphasis added; alteration in original). In other words, “[t]o establish causation, the plaintiff must show that his participation in [a protected activity] was a significant factor in the employer’s adverse employment action, not just that there was a causal link between the two.” Rymal v Baergen, 262 Mich App 274, 303; 686 NW2d 241 (2004) (quotation marks and citations omitted). Because Debano-Griffin uses the McDonnell Douglas framework, which was originally designed for employment discrimination claims, it is appropriate for the Court to use federal cases interpreting McDonnell Douglas as persuasive authority. See Radtke v Everett, 442 Mich 368, 382; 501 NW2d 155 (1993) (stating that Michigan courts may “turn to federal precedent for guidance in reaching [a] decision” about whether a plaintiff has established a valid discrimination claim).
Whitman I, 293 Mich App at 232 n 1.
Id. at 230.
Whitman II, 493 Mich at 309 (quotation marks omitted; alteration in original).
Id.
It is difficult to see how a statement the mayor allegedly made after he had already declined to reappoint Whitman could influence his decision not to reappoint Whitman.
See, for example, West v Gen Motors Corp, 469 Mich 177, 186; 665 NW2d 468 (2003) (holding that to satisfy the causation requirement under the WPA, a plaintiff “must show something more than merely a coincidence in time between protected activity and adverse employment action”); Tuttle v Metro Gov’t of Nashville, 474: F3d 307, 321 (CA 6, 2007) (stating that “[t]he law is clear that temporal proximity, standing alone, is insufficient to establish a causal connection for a retaliation claim”); and Shaw v City of Ecorse, 283 Mich App 1, 15; 770 NW2d 31 (2009) (noting that “[a] temporal connection between protected activity and an adverse employment action does not, in and of itself, establish a causal connection”).
In its opinion, the United States Court of Appeals for the Sixth Circuit noted that “[o]ur review of the law shows that multiyear gaps between the protected conduct and the first retaliatory act have been insufficient to establish the requisite causal connection.” Fuhr, 710 F3d at 676. This observation is correct; courts interpreting our sister states’ whistleblower laws and jurisprudence have made similar observations. A long time span between the alleged whistleblowing and supposed retali ation weighs against finding causation. See Blake v United American Ins Co, 37 F Supp 2d 997, 1002 (SD Ohio, 1998) (holding that alleged whistleblowing action that took place five years before plaintiffs termination was not “close enough in time ... to support a claim of retaliation”); Anderson v Meyer Broadcasting Co, 630 NW2d 46, 55 (ND, 2001) (holding that a “length/’ delay of approximately a year “between [plaintiffs] reports and her termination does not support an inference she was fired because of the protected activit/’).
Again, Burton Charter § 6.2(b) states that the chief of police serves “at the pleasure of the mayor.”
Again, Burton Charter § 6.2(b) states:
All other administrative officers shall be appointed by the Mayor subject to the approval of the Council, and shall serve at the pleasure of the Mayor for indefinte [sic] terms, except that the Mayor shall reaffirm or appoint those administrative officers and other appointive officers provided in this charter within thirty (30) days from his election, and give Council notice of same.
See Whitman II, 493 Mich at 309; Whitman I, 293 Mich App at 227. Whitman admitted at trial that he used a city computer to exchange sexually explicit messages with a woman who was not his wife.
Whitman I, 293 Mich App at 227. | [
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SAAD, P.J.
Defendant appeals his jury trial convictions of child molestation and abuse. Because defendant’s arguments lack merit, we affirm.
I. FACTS AND PROCEDURAL HISTORY
This case stems from defendant’s physical and sexual abuse of two of his daughters, AD and OD. After employees at Care House interviewed AD and OD in July 2012, the prosecution charged defendant with (1) two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a); (2) three counts of second-degree child abuse, MCL 750.136b(3); and (3) one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a). The charges related exclusively to defendant’s abuse of AD and OD.
A. DEFENDANT’S REQUEST FOR AN EXPERT WITNESS
Over a year before trial, defendant’s initial trial attorney requested the appointment of an expert witness to testify on forensic interviewing techniques used to interview victims of child molestation. The trial court awarded $1,500 in public funds to defendant for this purpose in April 2013 and suggested that defendant’s trial should be scheduled for June 2013. Defendant requested additional time to locate an expert, which the trial court permitted, and the court rescheduled trial for December 2013.
By October 2013, defendant chose to represent himself, albeit with advisory counsel. At this time, his advisory attorney told the court that defendant was in the process of finding an expert to testify on forensic interviewing techniques. Though defendant and advisory counsel promised to contact two prospective expert witnesses within the week, it is unclear whether they contacted one of the potential witnesses, and the other witness told them that he no longer testified in court. Defendant then attempted to secure Dr. Katherine Okla as his expert witness, and, on the day before trial, moved to adjourn the case until she was available to testify, which would not be until at least January 10, 2014. The prosecution objected to the motion and noted that defendant could cross-examine the forensic interviewer — who had actually interviewed AD and OD — on the subject of proper interviewing techniques.
The trial court concurred with the prosecution and denied defendant’s motion. In so doing, the trial court stated that defendant had (1) delayed trial “for a very long time,” (2) failed to explain how the lack of an expert witness would prejudice him, and (3) failed to provide sufficient information regarding Okla’s testimony— which raised the possibility that Okla would actually “testify against the interest of the defendant.”
During trial, defendant again raised the issue of procuring an expert witness to testify on forensic interviewing, and at defendant’s request, the trial court increased the public allotment for an expert witness to $2,000. Despite the trial court’s extensive accommodation of his demands, defendant failed to call Okla or any other expert in forensic interviewing.
B. TRIAL
At trial, which took place in December 2013, the jury heard testimony from five of defendant’s children, including AD and OD, defendant’s wife, a neighbor, police officers, the Care House employees who had interviewed AD and OD, and defendant himself. The testimony of these witnesses demonstrated that defendant committed multiple acts of child molestation and domestic violence over a period of years.
During the 2000s, defendant and his family lived in a two-bedroom home. Defendant is the father of six children, three daughters and three sons. After his younger son, ND, moved out of the house, defendant stopped sleeping in the marital bedroom and began to sleep on a twin bed in his daughters’ room. Defendant also bathed naked with his children, was often alone with them in the bathroom, and instructed his wife to leave the bathroom if she entered it when he was with the children. In general, defendant’s wife and children testified that defendant’s demeanor was generally unpleasant and abusive — he frequently had outbursts of anger, regularly used expletives to refer to the children in place of their names, and committed other acts of physical and sexual abuse.
OD testified that defendant touched and digitally penetrated her vagina on multiple occasions. Specifically, defendant molested her in two contexts: (1) in her bed, when he would touch her vagina, and (2) while she bathed, when he would touch and digitally penetrate her vagina. Defendant’s abuse of OD was not limited to molestation — he also physically abused her. In an apparent attempt to discipline OD for misbehaving at dinner, defendant grabbed her and threw her across the room. AD testified that defendant “flung [OD] and she landed sprawled out on the floor like maybe three or four feet away from her chair.” When AD looked at defendant “in awe” after he abused OD, defendant told her “don’t look at me like that. [OD] was ruining our dinner.” Defendant’s wife also stated that the girls relayed this incident to her, but defendant assured her that the children were “blowing [the incident] out of proportion.”
Defendant’s sexual abuse of AD was more extensive. According to AD, defendant bathed with her until she was in third grade and continued to “assist” with her baths for a year after. If AD attempted to sit away from defendant in the bathtub, defendant would lift her up and pull her toward his genitalia. In addition to this general abuse, AD told the jury of three specific episodes of molestation. Two of these took place in the bathroom: in one instance, defendant purported to instruct AD on how to properly wash her vagina, by rubbing his hand on her vagina; in the other, he punished her for “sassing back” by locking her in the bathroom and forcing her to put his penis in her mouth and lick it. After the latter molestation, defendant pushed AD out of the bathroom, which caused her to hit her head on the hallway wall.
AD also testified that defendant molested her in a fashion similar to the way in which he molested OD, by digitally penetrating her while she lay undressed in defendant’s bed. AD stated that this penetration physically hurt her and that defendant also rubbed his penis on her unclothed thighs and stomach. When AD confronted defendant about his actions, he replied, “remember daddy loves you.”
In his testimony, defendant stated that he occasionally called his children names, but denied physically or sexually abusing any of his children. Defendant’s stand-by counsel cross-examined AD, OD, and KD because the trial court barred defendant from per sonally conducting the cross-examination of these three child witnesses. It initially prohibited defendant only from cross-examining AD and OD in an order issued after a motion hearing in July 2013. Considering the testimony of AD, OD, and defendant’s wife, which had been given at defendant’s preliminary examination, the trial court found that permitting defendant to cross-examine the girls would allow him to victimize them yet again. The court also observed that defendant had previously attempted to silence his daughters by badgering them about their interview with Care House in 2010 and making incendiary remarks to his family about Care House employees. The trial court expanded its order to include KD after witnessing AD and OD’s testimony at trial, in which both girls expressed great fear of their father. During trial, defendant confronted the girls, but did not cross-examine them — instead, he wrote questions for the girls and gave the questions to his advisory attorney, who then cross-examined the girls using the questions provided by defendant.
After 10 days of proceedings, the jury convicted defendant as charged. On appeal, defendant argues that the trial court violated his constitutional rights to (1) present a defense, when the court denied his request to adjourn the trial so he could secure an expert witness, and (2) represent himself, when the court barred him from personally cross-examining AD, OD, and KD. Defendant also says that the trial court erred when it admitted evidence that he committed other acts of physical abuse separate from the charged crimes. The prosecution asks us to affirm the rulings of the trial court and defendant’s convictions.
II. STANDARD OF REVIEW
The decision whether to allow a party to add an expert witness or grant a motion for an adjournment is reviewed for an abuse of discretion, Tisbury v Armstrong, 194 Mich App 19, 20; 486 NW2d 51 (1992), as is the court’s decision whether to admit or exclude evidence, People v King, 297 Mich App 465, 472; 824 NW2d 258 (2012). An abuse of discretion occurs when the trial court’s decision is outside the range of principled outcomes. People v Duenaz, 306 Mich App 85, 90; 854 NW2d 531 (2014).
Constitutional questions are matters of law that we review de novo. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). This Court reviews a trial court’s ultimate decision regarding a limitation on cross-examination for an abuse of discretion. People v Minor, 213 Mich App 682, 684; 541 NW2d 576 (1995). We also review a trial court’s decision on a defendant’s request to represent himself for an abuse of discretion. People v Hicks, 259 Mich App 518, 521; 675 NW2d 599 (2003). Findings of fact are reviewed for clear error. People v Gaines, 306 Mich App 289, 304; 856 NW2d 222 (2014).
III. ANALYSIS
A. PRESENTATION OF A DEFENSE
A criminal defendant has a state and federal constitutional right to present a defense, which includes the right to call witnesses, but this right is not absolute. People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008). A defendant must comply with “established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Id. (citations and quotation marks omitted).
MCR 2.503 is the established rule of procedure that governs adjournments, particularly to secure the testimony of a witness. In relevant part, it states:
(B) Motion or Stipulation for Adjournment.
(1) Unless the court allows otherwise, a request for an adjournment must be by motion or stipulation made in writing or orally in open court based on good cause.
(C) Absence of Witness or Evidence.
(1) A motion to adjourn a proceeding because of the unavailability of a witness or evidence must be made as soon as possible after ascertaining the facts.
(2) An adjournment may be granted on the ground of unavailability of a witness or evidence only if the court finds that the evidence is material and that diligent efforts have been made to produce the witness or evidence.
Under Michigan law, if a defendant seeks an adjournment based on the absence of an expert witness, he must show both “good cause and diligence” in pursuit of that expert witness. People v Taylor, 159 Mich App 468, 489; 406 NW2d 859 (1987). “ ‘Good cause’ factors include whether defendant (1) asserted a constitutional right, (2) had a legitimate reason for asserting the right, (3) had been negligent, and (4) had requested previous adjournments.” People v Coy, 258 Mich App 1, 18; 669 NW2d 831 (2003) (citation and quotation marks omitted). “Even with good cause and due diligence, the trial court’s denial of a request for an adjournment... is not grounds for reversal unless the defendant demonstrates prejudice as a result of the abuse of discretion.” Id. at 18-19.
Here, defendant unconvincingly claims that the trial court deprived him of his right to present a defense when it denied his request for an adjournment to secure Okla’s testimony on forensic interviewing. Despite the fact that his first attorney raised the issue of hiring an expert witness to testify on forensic interviewing over a year before trial, defendant admits that he did not attempt to locate and secure potential expert witnesses until soon before the trial began. And despite learning that the witnesses he contacted could not testify, he did not move for an adjournment until the day before trial. At that time, Okla had not yet reviewed the record, and defendant failed to offer any proof that (1) she would testify on his behalf or (2) her expertise would be relevant or helpful to the jury. See People v Bynum, 496 Mich 610, 623-624; 852 NW2d 570 (2014).
Moreover, defendant had already caused his trial to be delayed for several months — not only so that he could secure an expert witness, but also so that defendant could file and respond to motions, obtain discovery, and request an evaluation of his competency. The trial court accommodated defendant in each of these prior instances, yet defendant continued to persist in his attempts to delay trial. Therefore, he has failed to show good cause for further delay in pursuit of an expert witness. See Taylor, 159 Mich App at 489. In fact, he was negligent, not diligent, in pursuit of an expert witness and did not make use of the generous time and monetary allotments the trial court gave him so he could secure a witness. The trial court accordingly did not violate his right to present a defense when it denied his request for an adjournment. See Yost, 278 Mich App at 379.
Were we nonetheless to assume that defendant had shown good cause and diligence in pursuit of an expert witness, the trial court’s refusal to adjourn the trial would not warrant reversal because defendant fails to show that the absence of Okla prejudiced him in any significant way. Though defendant describes in his brief on appeal the general subjects to which Okla would have testified, there is no indication that Okla’s testimony would have materially benefited defendant’s case. See Coy, 258 Mich App at 18-19.
B. MRE 611(a)
“Both federal and state law . . . guarantee a defendant the right of self-representation, although this right is subject to the trial court’s discretion.” People v Willing, 267 Mich App 208, 219; 704 NW2d 472 (2005) (citations omitted). For example, the trial court may bar a defendant’s self-representation if it finds that the defendant’s “self-representation will. . . disrupt, unduly inconvenience, and burden the court and the administration of the court’s business.” People v Russell, 471 Mich 182, 190; 684 NW2d 745 (2004).
In its management of the self-representing defendant’s cross-examination of witnesses, the trial court, as in all instances, may limit the defendant’s cross-examination to protect the witness from “harassment or undue embarrassment.” MRE 611(a). This is because “[t]he right of cross-examination ... may bow to accommodate other legitimate interests of the trial process or of society.” People v Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993). Accordingly, we find persuasive the reasoning oí People v Doolittle, unpublished opinion per curiam of the Court of Appeals, issued April 8, 2008 (Docket No. 271739), p 1, in which another panel of our Court concluded that “a trial court, in certain circumstances, may prohibit a defendant who is exercising his right to self-representation from personally questioning the victim.”
Stated another way, MRE 611(a) allows the trial court to prohibit a defendant from personally cross-examining vulnerable witnesses — particularly children who have accused the defendant of committing sexual assault. The court must balance the criminal defendant’s right to self-representation with “the State’s important interest in protecting child sexual abuse victims from further trauma.” Fields v Murray, 49 F3d 1024, 1037 (CA 4, 1995).
Here, defendant’s assertions that the trial court violated his right to self-representation are particularly unconvincing. Again, the trial court prohibited defendant, who represented himself, from personally cross-examining AD, OD, and KD. Instead, the court instructed defendant to formulate questions for his daughters, which his advisory attorney then used to cross-examine them. In no way did this decision interfere with defendant’s right to represent himself. At all times in this case, defendant maintained autonomy in presenting his defense, and was able to control the direction of the cross-examination of his daughters by writing the relevant questions for his advisory attorney. The record also demonstrates that advisory counsel conferred with defendant and received assistance from him in coordinating the exhibits during those examinations. See People v Davis, 216 Mich App 47, 56; 549 NW2d 1 (1996).
To repeat, the trial court made its decision to prohibit defendant from personally cross-examining AD and OD (who were, respectively, 12 and 9 years old at the time) after a motion hearing at which it heard considerable evidence that defendant’s personal cross-examination would cause them significant trauma and emotional stress. At defendant’s preliminary examination, AD testified that defendant repeatedly attempted to frighten her. OD broke down in tears on multiple occasions, paused for great lengths, and fell asleep on the witness stand while testifying, indicating great emotional discomfort. Furthermore, as the prosecution argued at the July 2013 motion hearing, defendant succeeded in silencing his daughters after the 2010 interview at Care House, by demanding to know what they had told the social workers and telling his daughters that the Care House employees were “scary people.” The trial court properly inferred that his interrogation during trial could have a similar intimidating effect on his daughters. The trial court’s decision to prohibit defendant from personally cross-examining KD was equally sensible. It did so after it witnessed the testimony of AD and OD at trial, in which both girls expressed great fear of their father.
Therefore, it is clear that the trial court wisely and properly prevented defendant from personally cross-examining AD, OD, and KD to stop the children from suffering “harassment or undue embarrassment.” MRE 611(a); see alsoAdamski, 198 MichApp at 138. In no way did this violate defendant’s right to self-representation because a criminal defendant has “no constitutional right to personally cross-examine the victim of his crimes.” Applegate v Commonwealth, 299 SW3d 266, 273 (Ky, 2009). Defendant’s arguments to the contrary are unsupported and without merit.
C. OTHER ACTS EVIDENCE UNDER MCL 768.27b
A trial court’s decision whether to admit or exclude evidence is reviewed for an abuse of discretion. People v King, 297 Mich App 465, 472; 824 NW2d 258 (2012). MCL 768.27b(1) provides:
Except as provided in subsection (4) [concerning acts occurring more than 10 years before the charged offense], in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other acts of domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403. [Emphasis added.]
In turn, MCL 768.27b(5)(a) defines “domestic violence” and “offense involving domestic violence” to mean
an occurrence of 1 or more of the following acts by a person that is not an act of self-defense:
(i) Causing or attempting to cause physical or mental harm to a family or household member.
(ii) Placing a family or household member in fear of physical or mental harm.
(iii) Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress.
(iv) Engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
“The language of MCL 768.27b clearly indicates that trial courts have discretion ‘to admit relevant evidence of other domestic assaults to prove any issue, even the character of the accused, if the evidence meets the standard of MKE 403.’ ” People v Cameron, 291 Mich App 599, 609; 806 NW2d 371 (2011) (citation omitted; emphasis added). This evidence “can be admitted at trial because ‘a full and complete picture of a defendant’s history. . . tend[s] to shed light on the likelihood that a given crime was committed.’ ” Id. at 610, quoting People v Pattison, 276 Mich App 613, 620; 741 NW2d 558 (2007) (alteration in original).
MRE 403, which is “used sparingly” to exclude evidence, People v Uribe, 310 Mich App 467, 472; 872 NW2d 511 (2015), provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
When it determines whether the probative value of evidence is substantially outweighed by unfair prejudice under MRE 403, a court performs a balancing test that looks to these factors, among others:
[T]he time required to present the evidence and the possibility of delay, whether the evidence is needlessly cumulative, how directly the evidence tends to prove the fact for which it is offered, how essential the fact sought to be proved is to the case, the potential for confusing or misleading the jury, and whether the fact can be proved in another manner without as many harmful collateral effects. [People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008).]
Here, defendant wrongly contends that the trial court abused its discretion when it permitted the admission of testimony from KD, CD, and ND, pursuant to MCL 768.27b, that defendant committed other acts of physical violence against them. Again, KD, CD, and ND testified that defendant physically abused them when he (1) pulled KD down the stairs, causing a rug burn, and spanked her hard on the buttocks, (2) spanked and threw CD into a wall, slapped and knocked over CD on a camping trip, and told personnel at a hospital that CD was suicidal when he actually had attempted to run away from home to escape defendant’s abuse, and (3) threw a garbage can and shovel at ND. MCL 768.27b required the trial court to admit this testimony because (1) it is relevant, (2) it describes acts of “domestic violence” under the statute, and (3) its probative value is not outweighed by the risk of unfair prejudice under MRE 403.
Each of the acts of physical violence to which KD, CD, and ND testified are relevant because they tend to make “a material fact at issue” — i.e., whether defendant physically abused AD and OD — “more probable or less probable than [the material fact] would be” without the testimony. People v Crawford, 458 Mich 376, 387; 582 NW2d 785 (1998). The testimony also involves acts of “domestic violence” under MCL 768.27b because the children described instances in which defendant either “caus [ed] or attempt [ed] to cause physical or mental harm to a family or household member” through actual physical abuse. MCL 768.27b(5)(a)(i).
Nor is the probative value of the testimony outweighed by the risk of unfair prejudice to defendant under MRE 403. The testimony is highly probative because it demonstrates defendant’s violent and aggressive tendencies, as well as his repeated history of committing physical abuse of all his children — not just AD and OD. In other words, it gave the jury “ ‘a full and complete picture of a defendant’s history [and] tend[s] to shed light on the likelihood that a given crime was committed.’ ” Cameron, 291 Mich App at 610, quoting Pattison, 276 Mich App at 620 (second alteration in original). And none of the factors that would indicate this probative value is outweighed by a danger of “unfair prejudice” — e.g., delay of defendant’s trial, a cumulative nature, a potential to mislead or confuse the jury — is present. See Blackston, 481 Mich at 462.
Accordingly, the trial court ruled properly under MCL 768.27b when it admitted the testimony of KD, CD, and ND regarding the physical violence defendant committed against them.
Affirmed.
M. J. Kelly and Shapiro, JJ., concurred with Saajd, P.J.
AD and OD were also interviewed at Care House in 2010 after AD made comments that compared male genitalia to female genitalia, and claimed that her brother, ND, had “showed me his.” No charges resulted against ND. At trial, AD told the jury that her statements actually related to defendant’s abuse, but that he effectively convinced her to blame ND for the incident. According to defendant’s wife and the forensic interviewer who spoke with AD and OD in 2012, defendant disparaged Care House employees after the 2010 interview, referring to them as “scary people,” and confronted the girls about what information they had disclosed in their conversations.
The trial court permitted the admission of defendant’s other acts of physical and sexual abuse pursuant to, respectively, MCL 768.27b and MCL 768.27a. Three of defendant’s other children, KD, CD, and ND, testified that defendant physically abused them when he (1) pulled KD down the stairs, causing a rug burn, and spanked her hard on the buttocks, (2) spanked and threw CD into a wall, slapped and knocked over CD on a camping trip, and told personnel at a hospital that CD was suicidal when he actually had attempted to run away from home to escape defendant’s abuse, and (3) threw a garbage can and shovel at ND.
Two of these children, KD and CD, also testified that defendant sexually abused them. KD stated that defendant reached inside her pajama pants and underwear and touched her buttocks cheek. CD testified that, when he was between five and nine years old, defendant would sit behind CD in the bathtub and rub his genitalia against CD’s back. CD reported these allegations to the police in 2010, which did not result in criminal charges. Though the trial court had initially ruled CD could not testify on defendant’s sexual abuse of him, because it had allegedly occurred long before the crimes with which defendant was charged, defendant opened the door to the testimony by questioning a police detective about the nature of the allegations CD made against him in 2010.
At the time of trial, AD, OD, and KD were, respectively, 12, 9, and 11 years old. CD and ND were both over 18.
Unpublished opinions are not binding, but may be persuasive. Paris Meadows, LLC v City of Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d 133 (2010). See also Fields v Murray, 49 F3d 1024, 1036-1037 (CA 4, 1995) (affirming the trial court’s denial of the defendant’s request to represent himself for the sole purpose of personally cross-examining child witnesses, whom he had molested); Partin v Commonwealth, 168 SW3d 23,27-29 (Ky, 2005) (holding that right of self-representation does not “mean that [the defendant has] a constitutional right to personally cross-examine the victim(s) of his crimes”); Applegate v Commonwealth, 299 SW3d 266, 273 (Ky, 2009) (“Even if a defendant is granted the right to cross-examine witnesses, there is no constitutional right to personally cross-examine the victim of his crimes.”). Cases from foreign jurisdictions are not binding, but may be persuasive. People v Campbell, 289 Mich App 533, 535; 798 NW2d 514 (2010).
Defendant conflates the constitutional right to confront witnesses with the right to self-representation. The trial court never prevented defendant from confronting AD, KD, and OD — it merely required defendant’s attorney to perform the cross-examination of these witnesses, as opposed to permitting defendant to question them himself. For this reason, defendant’s extensive citation of Maryland v Craig, 497 US 836; 110 S Ct 3157; 111 L Ed 2d 666 (1990) — a case in which a Maryland court had permitted a 6-year-old victim of sexual abuse to testify out of court, via closed-circuit television — is inapposite and unavailing. In the instant action, the trial court was not required to follow the procedures of Craig because it did not prohibit defendant from confronting the witnesses against him, which is the only circumstance in which Craig’s procedural mandates apply. Instead, the trial court properly managed the presentation of witnesses under MRE 611(a). Adamski, 198 Mich App at 138. Defendant cites no relevant authority to support his claim that the trial court was not permitted to take the actions that it did under this applicable rule of evidence. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims ....” Peterson Novelties, Ina v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003).
And, in any event, despite defendant’s assertions to the contrary, the trial court, in a surfeit of thoroughness and caution, essentially satisfied Craig’s procedural mandates — which it was not required to do. Again, the trial court made its decision to prohibit defendant from personally cross-examining AD and OD after it heard extensive evidence that allowing defendant to do so would traumatize AD and OD. See Craig, 497 US at 855-856; People v Rose, 289 Mich App 499, 516; 808 NW2d 301 (2010); People v Buie, 285 Mich App 401, 408-410; 775 NW2d 817 (2009).
As described in note 2 of this opinion, the court permitted KD and CD to testify that defendant committed other acts of sexual abuse against them. The trial court admitted this evidence pursuant to MCL 768.27a. Defendant does not challenge the admission of this evidence on appeal. | [
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] |
STEPHENS, J.
Plaintiffs, all residents of defendant the city of Flint, appeal as of right the order of the circuit court granting defendant’s motion for summary disposition and denying plaintiffs’ motion to amend their complaint. We reverse and remand.
I. BACKGROUND
On August 15, 2011, defendant’s finance director, Michael Townsend, sent to the city council and mayor a notice of a proposed 35% water and sewer rate increase to be effective September 6, 2011. The increase was proposed to meet a projected fiscal year deficit in the sewer fund of $14,789,666 as well as a water fund deficit of $8,078,917. The city council adopted the proposal and the mayor signed it.
Shortly thereafter, defendant was declared to be in a state of financial emergency. On November 28, 2011, Governor Rick Snyder appointed Michael Brown as defendant’s emergency manager (EM). On May 30, 2012, after he was informed by newly appointed finance director Gerald Ambrose of the financial disarray of defendant’s water and sewer funds, EM Brown created Emergency Order No. 31. Order No. 31 ratified and confirmed the water and sewer rates implemented under former finance director Townsend on September 16, 2011, and additionally raised water and sewer rates, 12.5% and 45%, respectively, effective July 1, 2012.
After the emergency order by EM Brown, plaintiffs in this suit filed a complaint seeking this Court’s original jurisdiction pursuant to Const 1963, art 9, §§ 31 and 32. The claim of error was that defendant violated the Headlee Amendment. This Court dismissed plaintiffs’ claims without a hearing, finding that the rate increases from September 2011 and those set to take place in July 2012 were “revisions of existing user fees that do not implicate the Headlee Amendment.” Kincaid v City of Flint, unpublished order of the Court of Appeals, entered June 29, 2012 (Docket No. 310221). Plaintiffs’ claims not relating to the Headlee Amendment were dismissed for lack of original jurisdiction. Id.
After the case before this Court was dismissed, plaintiff filed the instant action. The essence of this case is a claim that the rate increases in September 2011 were made contrary to defendant’s Ordinances §§ 46-52.1 and 46-57.1, and a claim that defendant had illegally pooled the monies collected for the water and sewer funds and used them to pay general obligations not related to sewer or water expenses. Plaintiffs requested that the trial court certify a class action suit against defendant by all sewer and water customers of defendant, declare that the rate increases were an illegal tax under the Headlee Amendment, and order the commingling of funds to cease. Additionally, plaintiffs asked for monetary relief in the form of a refund of the illegally collected rates and for damages caused to defendant’s residents who were left without water and sewer service.
In lieu of filing an answer, defendant moved the trial court to grant it summary disposition pursuant to MCR 2.116(C)(6), (7), and (8). However, before defendant’s motion for summary disposition was heard, plaintiffs moved the trial court for leave to amend their complaint to allege a violation of MCL 123.141(2) and (3).
Defendant responded to plaintiffs’ motion to amend their complaint by arguing that it should be denied as futile. On February 15, 2013, the trial court heard the two outstanding motions. On June 21, 2013, the trial court entered an opinion and order granting summary disposition in favor of defendant. On July 12, 2013, plaintiffs moved the trial court to reconsider its decision after which the court entered an order permitting defendant to respond to plaintiffs’ motion for reconsideration. The court denied the motion on October 14, 2013. Plaintiffs now appeal the order granting defendant summary disposition.
During the pendency of this case in the trial court, 2011 PA 4 was repealed after it was rejected by a majority of the electorate. One month later, on December 26, 2012, the Legislature approved the local finan cial stability and choice act, 2012 PA 436, effective March 28, 2013. Many of the provisions of 2012 PA 436 mirror those of 2011 PA 4.
II. STANDARDS OF REVIEW
The trial court ordered summary disposition under MCR 2.116(C)(8) and the parties base their arguments before this Court on that subsection, but our review of the record shows that the trial court went beyond the pleadings in making its decision as did both parties in making their arguments. Plaintiffs’ response to defendant’s motion for summary disposition relied on 16 exhibits. Plaintiffs also moved for summary disposition themselves and cited exhibits outside the pleadings. The analysis of this case therefore will be done under MCR 2.116(0(10). See Cuddington v United Health Servs, Inc, 298 Mich App 264, 270; 826 NW2d 519 (2012) (“[B]ecause the trial court considered documentary evidence beyond the pleadings, we construe the motion as having been granted pursuant to MCR 2.116(0(10).”).
“This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law.” Alcona Co v Wolverine Environmental Prod, Inc, 233 Mich App 238, 245; 590 NW2d 586 (1998). Amotion for summary disposition under MCR 2.116(0(10) “tests the factual sufficiency of the complaint. . . .” Joseph v Auto Club InsAss’n, 491 Mich 200, 206; 815 NW2d 412 (2012). “In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.” Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper when there is no “genuine issue regarding any material fact. . . .” Id. A party opposing a motion made under MCR 2.116(0(10) “has the burden of showing that a genuine issue of disputed fact exists.” Major v Auto Club Ins Ass’n, 185 Mich App 437, 440; 462 NW2d 771 (1990). “The opposing party may not rest upon mere allegations or denial in the pleadings, but must, by affidavit or other documentary evidence, set forth specific facts showing that there is a genuine issue for trial.” Id.
This Court also reviews issues of statutory interpretation de novo. Allen v Bloomfield Hills Sch Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008).
When interpreting a statute, we follow the established rules of statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature. The first step when interpreting a statute is to examine its plain language, which provides the most reliable evidence of [legislative] intent. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted. When an ambiguity does indeed exist, we may go beyond the statutory text to ascertain legislative intent. Effect should be given to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplusage or rendered nugatory. [People v Carrier, 309 Mich App 92, 104; 867 NW2d 463 (2015) (citations and quotation marks omitted; alteration in original).]
III. CLAIMS OF ERROR
Plaintiffs’ claims of error are three: (1) water and sewer rate increases that occurred under former fi nance director Townsend in September 2011 were not authorized by defendant’s ordinances, (2) EM Brown did not have the authority to ratify Townsend’s unauthorized increases and then further increase water and sewer rates in violation of the same ordinances, and (3) defendant wrongly deposited funds from water and sewer revenue into a single pooled cash account.
A. ORDINANCE VIOLATIONS
Plaintiffs claim that defendant violated Flint Ordinances §§ 46-52.1 and 46-57.1.
Ordinance 46-52.1 reads as follows:
(a) Every year the Director of Finance shall calculate and transmit on or before April 15, to the Mayor and City Council the new water rate schedules with a complete itemization of water system costs for all classes of customers as given in § 46-52, for the purpose of calculating all bills for the forthcoming 12 months beginning July 1 of that year. The new water rate schedules shall be published at least 30 days prior to the date of implementation.
(b) Water rates shall be reviewed annually and the water rate percentage index (WRI) as applied to the water rate schedules shall be limited to an adjustment of 8% in any year unless:
(1) Such adjustment is necessary to provide for all costs of operation, maintenance, replacement and debt service of the water supply system; or
(2) Such adjustment is necessary to comply with applicable provisions of the city’s water supply revenue bond resolutions or ordinances.
Ordinance 46-57.1 reads:
Every year the Director of Finance shall calculate and transmit on or before April 15, to the Mayor and City Council the new sewage rate schedules with a complete itemization of sewage system costs for all classes of customers as given in § 46-57, for the purpose of calculat ing all bills for the forthcoming 12 months beginning July 1 of that year. The new sewage rate schedules shall be published at least 30 days prior to the date of implementation.
Plaintiffs argue that the rate increases of September 2011 and those imposed by EM Brown failed to meet the notice and effective date requirements of the ordinances and exceeded the percentage of increase allowed under the ordinances. We agree in part.
The 35% water rate increase in September 2011 violated Ordinance 46-52.1 because it was not published and noticed at least 30 days before its implementation, and because it went into effect almost immediately after it was noticed, instead of being implemented over twelve months beginning on July 1 of the next fiscal year. The sewer rate increases were invalid for the same reasons under Ordinance 46-57.1. The sewer rates were not published and noticed 30 days before their implementation and were implemented soon after the former finance director’s recommendation instead of on July 1 of the next fiscal year.
Plaintiffs’ argument that the increases also violated Ordinance 46-52.1 by increasing the water rates above 8% is not supported by the language of the ordinance. Ordinance 46-52.1 envisions that water rate increases be limited to an adjustment of 8%, but allows for uncapped increases in the event the “adjustment is necessary to provide for all costs of operation, maintenance, replacement and debt service of the water supply system; or ... to comply with applicable provisions of the city’s water supply revenue bond resolutions or ordinances.” On August 15, 2011, former finance director Townsend sent a letter to defendant’s mayor and defendant’s city council providing justification for the amount of the increase. In that letter, Townsend stated that the water fund operated at a $3.21 million loss for fiscal year 2011 and that defendant was not meeting its state bond requirements “to maintain operating revenues greater than 125% of the amount of debt service on the bonds.” Townsend explained that the rate increases would help cover the rate increases defendant paid to Detroit as well as provide revenue to pay the Drinking Water Revolving Fund bonds. This Court has no basis on which to find those statements invalid. While the notice, publication, and implementation of the water and sewer rate increases were not authorized, the percentage of increase for the rates did not violate the ordinances.
Plaintiffs challenge EM Brown’s rate increases under Order No. 31 on the same basis as they challenged the September 2011 increases noticed by former finance director Townsend. However, EM Brown’s water and sewer rate increases of 12.5% and 45%, respectively, did not violate defendant’s Ordinances 46-52.1 and 46-57.1. On May 30, 2012, EM Brown published notice of the increases and their effective date of July 1, 2012. The order complied with the notice, publication, and implementation provisions of Ordinance 46-52.1 and Ordinance 46-57.1. Plaintiffs again argue that any increase in water rates over 8% is not authorized under Ordinance 46-52.1, but as discussed above, the language of the ordinance does not support that argument. The language of Order No. 31 established both of the exceptions in Ordinance 46-52.1 that allow for an increase in water rates greater than 8%. The order explained that defendant was required under MCL 141.121 to set water and sewer rates that were “suf ficient to cover the costs of operating the water and sewer systems” and that Townsend’s increase was insufficient to meet defendant’s obligation under state law. The order stated that additional increases were necessary “to cover the costs of operating the water and sewer systems and pay outstanding bonded indebtedness on the water system . . . .”
B. RATIFICATION AUTHORITY OF THE EMERGENCY MANAGER
EM Brown not only increased water and sewer rates with the implementation of Order No. 31, but he also “expressly ratified and confirmed” the September 16, 2011 rate increases. Whether EM Brown was granted the authority to ratify the unauthorized acts of another public official is an issue of first impression. We conclude that the Legislature did not delegate the power to ratify to an emergency manager.
The EM is a creature of the Legislature with only the power and authority granted by statute. EM Brown derived his authority from the former emergency manager law, 2011 PA 4. That authority was not as broad as defendant argues. We do not agree with defendant that 2012 PA 436, the successor statute to 2011 PA 4, authorized all the actions of the EM taken under 2011 PA 4. MCL 141.1570(1)(a) to (e) state that “[a]ll of the following actions that occurred under the former 2011 PA 4 before the effective date of [2012 PA 436]” became effective under 2012 PA 436:
(a) A determination by the state treasurer or superintendent of public instruction pursuant to a preliminary review of the existence of probable financial stress or a serious financial problem in a local government.
(b) The appointment of a review team.
(c) The findings and conclusion contained in a review team report submitted to the governor.
(d) A determination by the governor of a financial emergency in a local government.
(e) A confirmation by the governor of a financial emergency in a local government.
Actions taken under 2011 PA 4 by the State Treasurer, the appointed review team, and the Governor remained effective and were not required to be reap-proved under 2012 PA 436. MCL 141.1570(2). Notably, actions taken by the EM are not included.
We also reject defendant’s argument that an act of the EM is an act of the governor and that the EM derives power to ratify from the Governor. Former MCL 141.1519(1)(dd) and (ee) state that an EM’s authority is limited to the local level. An EM “[e]xercise[s] solely, for and on behalf of the local government, all other authority and responsibilities of the chief administrative officer and governing body concerning the adoption, amendment, and enforcement of ordinances or resolutions of the local government as provided in [specific listed acts],” and an EM “exercise[s] any power or authority of any officer, employee, department, board, commission, or other similar entity of the local government, whether elected or appointed, relating to the operation of the local government.” MCL 141.1519(l)(dd) and (ee). Thus, the EM acts only on behalf of numerous local officials. Former MCL 141.1515(10) and current MCL 141.1549(8) both provide that the Governor may delegate his duties to the Treasurer. Notably, there is no similar provision regarding the delegation of any of the Governor’s authority to the EM. Rather, the EM serves at the pleasure of the Governor. Former MCL 141.1515(5)(d); MCL 141.1549(3)(d).
The EM’s responsibilities and authority under 2011 PA 4 are listed in former statutory provisions MCL 141.1515 through MCL 141.1530. Those provisions are similarly stated in MCL 141.1549 through MCL 141.1562 under 2012 PA 436. Of all the powers granted to the EM, ratification is not one of them. Ratification, in both 2011 PA 4 and 2012 PA 436, is explicitly granted to the actions of certain persons and entities. Under 2011 PA 4, “[a] 11 proceedings and actions taken by the governor, the state treasurer, or a review team . .. are ratified and are enforceable as if the proceedings and actions were taken under this act.. ..” Former MCL 141.1512(6). 2012 PA 436 contains nearly identical language: “All proceedings and actions taken by the governor, the state treasurer, the superintendent of public instruction, the local emergency financial assistance loan board, or a review team under former 2011 PA 4,... are ratified and are enforceable as if the proceedings and actions were taken under this act. . . .” MCL 141.1544(6). The clear difference between 2011 PA 4 and 2012 PA 436 is that 2012 PA 436 adds “the superintendent of public instruction” and “the local emergency financial assistance loan board” to legislation governing management of a local government’s financial emergency. Neither 2011 PA 4 nor 2012 PA 436 authorizes the ratification action taken by the EM in this case. Further, the EM’s power to supersede local government authority does not extend to the superintendent of public instruction or the local emergency financial assistance loan board. Consequently, the Legislature did not grant the EM the power of ratification, nor did the actions of the EM taken under 2011 PA 4 survive the electors’ referendum of that act.
Absent the power of ratification, defendant urges this Court to look elsewhere for the EM’s authority to approve the unauthorized 2011 water and sewer rate increases. Defendant argues that the additional powers granted to an emergency manager in former MCL 141.1519(1)(a) authorized the EM to raise water and sewer rates notwithstanding the ordinances. Under that section,
An emergency manager may take 1 or more of the following additional actions with respect to a local government which is in receivership, notwithstanding any charter provision to the contrary:
(a) Analyze factors and circumstances contributing to the financial emergency of the local government and initiate steps to correct the condition.
We are not persuaded by this argument. MCL 141.1519(1)(a) applies in the instance in which the EM, after having analyzed the factors and circumstances contributing to the financial emergency, initiates some action to alleviate the emergency. In other words, some affirmative act is required of the EM. “The word ‘initiate’ is a synonym of the word ‘commence.’ ” Fast Air, Inc v Knight, 235 Mich App 541, 544; 599 NW2d 489 (1999), citing Black’s Law Dictionary (5th ed). In turn, the plain and ordinary meaning of the word “commence” is “to begin; start,” and “begin” is defined as “to take the first step in performing an action.” MCL 141.1519, then in effect, supported the 12.5% water and 45% sewer rate increases initiated by the EM after his appointment. Those increases were initiated after the EM was provided with information from the then-current finance director Gerald Ambrose about the operating losses of both the water and sewer systems, and the increases were implemented to correct those conditions. Under former MCL 141.1519(1)(a), the EM had authority to institute the change in rates notwithstanding any charter provision to the contrary, and the increases complied with the notice, publication, and implementation guidelines of Ordinances 46-52.1 and 46-57.1. MCL 141.1519(l)(a), however, did not support the action taken by the EM to expressly ratify and confirm the increases recommended by former finance director Townsend. In that instance, the EM did not initiate the steps to correct the condition by an affirmative act, but rather approved the steps already taken by someone else. Because the EM did not initiate those increases, MCL 141.1519(l)(a) did not apply.
In light of our analysis, we conclude that former finance director Townsend violated defendant’s Ordinances 46-52.1 and 46-57.1, by increasing water and sewer rates without first providing notice and publication to its residents 30 days before the increases took effect, and by not waiting to implement those rates until July 1 of the next fiscal year. We also conclude that EM Brown’s Order No. 31 did not rectify the violations.
The trial court’s grant of summary disposition to defendant was premised on its understanding of the EM’s authority as broad, substantial, and complete. Our decision today only highlights that authority for a closer look at the statutory boundaries of the EM’s power. Because we disagree with the trial court’s conclusion that the EM had the authority to ratify a previously unauthorized rate increase, we reverse its order granting defendant summary disposition.
C. COMMINGLING OF FUNDS
Next, this Court must consider whether the trial court properly summarily disposed of plaintiffs’ claims regarding the commingling of funds. Plaintiffs assert that defendant placed water and sewer fees from customers into a pooled cash account with other funds, that defendant used the water and sewer funds to pay its general obligations in violation of the Revenue Bond Act, and that this practice led to a deficit in the water and sewer funds which precipitated the rate increases by former finance director Townsend and EM Brown. Plaintiffs’ arguments rely entirely on the trial court’s grant of defendant’s motion for summary disposition under MCR 2.116(C)(8). Indeed, plaintiffs maintain that the trial court should not have considered the affidavit of Pamela Hill, a certified public accountant and the audit manager of defendant’s financial statements, nor should the trial court have held against plaintiffs their failure to provide any evidence to the contrary, because MCR 2.116(C)(8) requires the trial court to disregard evidence outside of the pleadings. MCR 2.116(G)(5). However, as has been discussed, defendant’s motion was granted pursuant to MCR 2.116(0(10).
Plaintiffs argue that defendant illegally commingled funds. We find no merit to this claim. The party opposing a motion made under MCR 2.116(0(10) “has the burden of showing that a genuine issue of disputed fact exists.” Major, 185 Mich App at 440. “The opposing party may not rest upon mere allegations or denial in the pleadings, but must, by affidavit or other documentary evidence, set forth specific facts showing that there is a genuine issue for trial.” Id. See also MCR 2.116(G)(4). The record reveals that defendant provided evidence, in the form of the affidavit from Hill, whose practice included auditing municipalities, that defendant’s accounting system was entirely legal and was used by several other municipalities. Plaintiffs assert that Hill’s affidavit only evidences the practice of commingling without establishing the legality of the practice.
While the trial court only mentioned the Hill affidavit in its order granting summary dismissal, it also had before it plaintiffs’ exhibits in support of their response to defendant’s motion for summary disposition, which included an affidavit from city treasurer Douglas Bingaman. Bingaman’s affidavit stated that the water and sewer funds were deposited in a single pooled cash account, but that funds which state law required to be maintained separately were excluded. The affidavit further indicated that “[t]he account is intended to have each City fund, including the water and sewer funds, end up paying only its own operating and other expenses.” Bingaman’s affidavit is evidence that defendant was following the State of Michigan’s recommendation concerning pooled cash accounts. It was also evidence that the water and sewer funds were not being used to pay the general obligations of defendant. Hill’s affidavit averred knowledge of legal accounting practices that require only certain accounts to be excluded from a municipality’s single pooled cash account and that water and sewer funds were not excluded. Hill further averred that “[e]ach participating fund’s share of the pooled cash account is accounted for as provided in the Department of Treasury’s Accounting Procedures Manual for Local Units of Government in Michigan,” meaning that the water and sewer funds were also accounted for within defendant’s pooled cash account.
In response, plaintiffs provided no evidence that defendant’s accounting system was illegal. This Court’s decision in Major quite plainly requires plaintiffs to provide some evidence that there was a disputed issue of fact. See Major, 185 Mich App at 440. This, plaintiffs did not do. As such, the trial court correctly determined that there was no genuine issue of mate rial fact for trial and properly granted summary disposition on this issue. Id.
IV. MOTION TO AMEND
Plaintiffs lastly argue that the trial court erred by denying their request to amend their complaint. We agree.
“This Court reviews grants and denials of motions for leave to amend pleadings for an abuse of discretion.” Hakari v Ski Brule Inc, 230 Mich App 352, 355; 584 NW2d 345 (1998). “There are circumstances where a trial court must decide a matter and there will be no single correct outcome; rather, there may be more than one reasonable and principled outcome. The trial court abuses its discretion when its decision falls outside this range of principled outcomes.” Pontiac Fire Fighters Union Local 376 v Pontiac, 482 Mich 1, 8; 753 NW2d 595 (2008).
“A party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an adverse party. . . .” MCR 2.118(A)(1). “Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.” MCR 2.118(A)(2). “Because a court should freely grant leave to amend a complaint when justice so requires, a motion to amend should ordinarily be denied only for particularized reasons.” Wormsbacher v Phillip R Seaver Title Co, Inc, 284 Mich App 1, 8; 772 NW2d 827 (2009). Those reasons include undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice, or futility. Miller v Chapman Contracting, All Mich 102, 105; 730 NW2d 462 (2007). Further, MCR 2.116(I)(5) states that when the trial court summarily disposes of a case under subrules (C)(8), (9), or (10), the trial court “shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified.”
The trial court’s reason for denying plaintiffs’ motion to amend their complaint was that “[t]he proposed amended complaint is in conflict with this decision.” The fact that an amended complaint would present issues at odds with the trial court’s decision does not appear to be an accepted particularized reason. “[A] court must specify its reasons for denying the motion; a failure to do so requires reversal, unless amendment would be futile.” Noyd v Claxton, Morgan, Flockhart & VanLiere, 186 Mich App 333, 340; 463 NW2d 268 (1990). Because we cannot discern on what basis the trial court denied plaintiffs’ motion to amend their complaint, we remand this issue to the trial court. On remand, the trial court is to consider the additional claims in plaintiffs’ proposed amended complaint and articulate its reasons for granting or denying the motion.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
DONOFRIO, P.J., and BORRELLO, J., concurred with Stephens, J.
It was later determined that the actual losses were $10,560,000 for the sewer fund and $3,210,000 for the water fund.
MCL 141.1545(6)(d), formerly MCL 141.1214, lists the four instances in which a financial emergency exists.
See 2011 PA 4, the local government and school district fiscal accountability act, formerly MCL 141.1501 et seq. At the time, former MCL 141.1515(4) provided the governor with the authority to appoint an emergency manager:
Upon the confirmation of a finding of a financial emergency, the governor shall declare the local government in receivership and shall appoint an emergency manager to act for and in the place and stead of the governing body and the office of chief administrative officer of the local government.
Specifically, the Headlee Amendment to the Michigan Constitution provides standing to “[a]ny taxpayer of the state” to bring suit in this Court to enforce the tax provisions of Const 1963, art 9, §§ 25 to 31. See Const 1963, art 9, § 32.
MCL 123.141(2) and (3) state:
(2) The price charged by the city to its customers shall be at a rate which is based on the actual cost of service as determined under the utility basis of rate-making. This subsection shall not remove any minimum or maximum limits imposed contractually between the city and its wholesale customers during the remaining life of the contract. This subsection shall not apply to a water system that is not a contractual customer of another water department and that serves less than 1% of the population of the state. This subsection shall take effect with the first change in wholesale or retail rate by the city or its contractual customers following the effective date of this subsection. Any city that has not adjusted rates in conformity with this subsection by April 1, 1982 shall include in the next ensuing rate period an adjustment to increase or decrease rates to wholesale or retail customers, so that each class of customer pays rates which will yield the same estimated amount of revenue as if the rate adjustment had been retroactive to April 1,1982. A city that is subject to section 5e of Act No. 279 of the Public Acts of 1909, being section 117.5e of the Michigan Compiled Laws, shall begin proceedings to determine rate changes pursuant to section 5e(b) of Act No. 279 of the Public Acts of 1909, being section 117.5e of the Michigan Compiled Laws.
(3) The retail rate charged to the inhabitants of a city, village, township, or authority which is a contractual customer as provided by subsection (2) shall not exceed the actual cost of providing the service.
The Board of State Canvassers certified the vote on November 26, 2012.1990 PA 72 came back into effect while the referendum on 2011 PA 4 was pending.
MCL 141.1541 et seq.
2012 PA 436 repealed 1990 PA 72, effective March 28, 2013.
MCL 141.121, of the Revenue Bond Act, provides in pertinent part:
(1) Rates for services furnished by a public improvement shall be fixed before the issuance of the bonds. The rates shall be sufficient to provide for all the following:
(a) The payment of the expenses of administration and operation and the expenses for the maintenance of the public improvement as may be necessary to preserve the public improvement in good repair and working order.
(b) The payment of the interest on and the principal of bonds payable from the public improvements when the bonds become due and payable.
(c) The creation of any reserve for the bonds as required in the ordinance.
(d) Other expenditures and funds for the public improvement as the ordinance may require.
(2) The rates shall be fixed and revised by the governing body of the borrower so as to produce the amount described in subsection (1). The borrower shall covenant and agree in the ordinance authorizing the issuance of the bonds and on the face of each bond to maintain at all times the rates for services furnished by the public improvement sufficient to provide for the amount described in subsection (1). Rates pledged for the payment of bonds that are fixed and established pursuant to a contract or lease shall not be subject to revision or change, except in the manner provided in the lease or contract.
Former MCL 141.1501 et seq.
2011 PA 4.
2012 PA 436.
The EM’s power is superior to and supersedes that of local government officials, employees, and entities. Former MCL 141.1519(1)(ee); MCL 141.1552(1)(ee). The EM’s power is not superior to and does not supersede the authority of the superintendent of public instruction. See e.g., MCL 141.1554(c). The EM is not an appointed member of the financial assistance loan board or review team. Former MCL 141.1212(3); MCL 141.1544(3).
Now MCL 141.1552(1)(a).
See SBC v JT Crawford, Inc, unpublished opinion per curiam of the Court of Appeals, issued November 27, 2007 (Docket No. 275334), p 5, quoting The American Heritage Dictionary of the English Language (2006). | [
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41
] |
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