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Montgomery, J.
The original bill in this case was filed by complainant as executrix and sole devisee of Archibald Campau, deceased, to obtain a construction of the will of Archibald Campau; the complainant’s claim being that, by the terms of the will, she was given an absolute and indefeasible estate in all of testator’s property. The bill set out, among other things, that certain of the defendants had denied this claim of the complainant, and had “harassed and annoyed your oratrix in various ways in regard to said property, and compelled her to file a bill in chancery, which resulted in a decree in her favor, after she had paid them a large sum of money;” and that they thereupon quitclaimed to complainant the premises in question in that suit.
The answer sets up that, before the will was admitted to probate, a contest was filed by certain of the defendants, which was withdrawn on complainant’s agreeing to deed to contestants certain of the real estate belonging to the estate of Archibald Campau, which agreement is averred to have been put in writing and signed by the parties. It is further averred that complainant then refused to make said deeds, and brought a suit in chancery to have said agreement set aside; that, before the chancery suit was brought on for trial, complainant agreed with defendants that, if the defendants would give her a life lease of the property there in cofitroversy, she would pay the defendants the sum of $1,000 each, and execute good and sufficient deeds of the property to the defendants, and#vould dismiss the suit in chancery ; that the moneys were paid to the defendants, and the defendants stood ready to, and did, sign a paper which they were informed was a life lease of the property to the complainant and an agreement on her part that they were the owners of the land subject to her life estate; but that said complainant did-not dismiss said suit in chancery, but fraudulently and wrongfully took a decree in said suit. The answer denies that defendants ever knowingly made and signed a quitclaim deed of the property to complainant, and avers that, if there be such a paper writing bearing their signatures, it is not their deed, and is a fraud upon their rights, and was obtained by fraud, false representations, and misstatements of facts.
A demurrer to this cross-bill was overruled. A replication was thereupon filed, and the case came on for hearing upon testimony to be taken in open court. Upon this hearing the probate proceedings were introduced, and the chancery decree in the former case, which, in terms, declared the contract set up in the answer in this case null and void, and that it entitled the defendants to no right, title, or interest in the premises described. It further declared the title to the property there in controversy to be in Catherine Campau, as against said defendants, and each of them, and, specifically, that neither of said defendants, under said contracts or agreements, had any right, title, or interest, either jointly or severally, in the same. The defendants offered testimony to support the averments of their cross-bill, and the court excluded it. The case is brought here for review.
The question to be determined is whether the refusal to receive the testimony offered by the defendants prejudiced their rights in any way, or, more properly, whether it could have worked a prejudice to their rights, as, in such case, an actual prejudice need not be affirmatively shown, but it should appear affirmatively that no injury could result to defendants through this unusual course having been adopted.
The theory of the answer in the nature of a cross-bill apparently is that this controversy over the construction of the will was compromised by the parties, and that the complainant has refused to carry out the terms of the compromise. If there had been no previous adjudication of this question, these two propositions, if established by evidence, might constitute a defense. But, unfortunately for defendants, the answer goes further than this, and sets up that the question of this contract and the rights under it were settled by a decree; and the decree introduced at the hearing so shows. It would appear, then, that, whatever the testimony offered might be, the defendants could not avail themselves of it while the decree Stands. The circuit judge was of the opinion that the decree could not be impeached collaterally, nor'attacked by an answer in the nature of a cross-bill. In this view we concur. Chancery Buie No. 27 is explicit on this point. It provides that no bill of review, or other hill in the nature of a hill of review, shall be filed without special leave of the court first obtained. This practice was not followed in this case, and the proposed defense is no more than an attempt to impeach the first decree in a collateral proceeding. No prejudice could result to the defendants from excluding the testimony offered.
No other point is discussed in appellants’ brief, from which we assume that the construction given by the learned circuit judge to the will in question is not assailed.
The decree will be affirmed, with costs.
Hooker, C. J., and Grant, J., concurred. Moore and Long, JJ., did not sit. | [
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Grant, J.
(after stating the facts). It is contended that the method of giving security for costs adopted by the relators was not in compliance with the law. We concur in this contention. Counsel cite several authorities to the effect that, where a party signs and delivers an instrument in blank, authorizing a party to fill it in after signing, he is estopped to deny its validity, and the instrument is therefore binding. This rule of law is not disputed. That, however, is not the question to be determined. The question is, Are bonds in criminal cases, signed in blank by a surety, and left with the officer of the law to fill in and use as he sees fit, after the alleged offender is arrested, a compliance with the statute providing that no warrant shall issue ‘ ‘ unless security for costs shall have been filed with said justice?” If this be the law, then any officer, judicial or otherwise, required to take bonds in specific cases, can induce some one to sign a lot of blank bonds as surety, keep them in his office, and, whenever occasion requires, take one out, fill in the date and amount, and file it where the law requires. This is a novel proposition, and one we have never heard advanced before, where officers of the law are required to take bonds. If this be the law, then justices of the peace can keep a lot of blank bonds, signed by sureties, to be used in cases of appeal from them to the circuit courts, and use them years after they are signed. So, also, can the circuit judges of the State, for convenience, keep a lot of such bonds on hand, to be used in taking appeals from their decisions and judgments to the Supreme Court. The statement of the proposition is sufficient to condemn it. Such a procedure is contrary to public policy. The statute clearly contemplates that the bondsmen shall come before the justice in each case; that a bond, with such sureties as he may require and approve, shall then and there be executed and filed with him, before the warrant issues. The custom of relators is a clear evasion of the statute.
In their reports to the prosecuting attorney, the relators made a statement of their own fees, but did not state the fees of the officers making the arrests. It is claimed on behalf of relators that this is not necessary, under the statute. Section 1062, 1 Comp. Laws, provides that in this report the justice shall, among other things, give “an itemized statement of the officers’ and court fees and how the same were disbursed, if paid to such justice.” Counsel insist that this itemized statement is required only when the fees are paid to the justice by the party arrested. The reason for this is based upon the fact that there is no comma in the sentence after the word “fees.” They admit that the contention of the prosecuting attorney would be correct if a comma were there inserted. We do not think this a fair construction. It is of more importance that the reports contain the officers’ and the court fees where they are not paid than where they are. ' If the offender is found guilty and pays the costs, the public is not interested, only so far as it may desire to see that even a prisoner is justly treated, and that no more costs are collected from him than the law allows. We think it plain that the statute requires a statement of the fees of both the officer and the justice. The blanks furnished to relators on which to make these returns have columns for the statement of the officers’ expenses, as well as for the court expenses. The reports are fatally defective in this respect. A failure to comply with the statute result^ in a forfeiture of fees. Sunderlin v. Board of Sup’rs of Ionia Co., 119 Mich. 535 (78 N. W. 651).
It also appears from the admissions of the relators themselves that they did not comply with section §927, 2 Comp. Laws, which makes it the duty of justices of the peace, when offenders of this character are brought before them, to examine their dockets, and to ascertain from the officers, if they can, whether the person brought before them has been previously convicted. If he has, the law requires that he shall be proceeded against in the manner provided by section 5924, 2 Comp. Laws, for a second or third offense. The statute provides that for a third and all subsequent convictions, the offenders being so charged, the punishment shall be imprisonment not less than six months, nor more than two years. It is quite evident that these relators ignored this important statute, which, if enforced, would undoubtedly do much to prevent drunkenness, and the various disorderly acts which are made criminal under section 5923.
The judgment of the circuit court is reversed, and a judgment entered in this court for respondent.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Hooker, C. J.
These are companion cases, and were heard as one. The two complainants were the infant daughters of George Walterhouse, deceased. Frank was his son, and Sylvia E. Walton, the next friend of the complainants, was the widow of George Walterhouse. The complainants allege that on March 16, 1895, George Walterhouse executed a deed, in which he conveyed to Myrtle 20 acres of land, and to Charlotte 40 acres; that the same was acknowledged before a magistrate named Bates, to whom it was given, with directions to deliver it after the grantor’s death. He died on April 14, 1896. The deed was subject to a life estate in his widow, created at the same time by another paper, also left with Bates. The bills charge that the deed was delivered to the widow after the death of her husband, and that it came to the possession of the complainants’ brother Frank, who was-incensed at the disposition of the property, and destroyed or concealed it. The bills pray for its restoration. Counsel for defendants raise three questions: (1) That there-was no valid delivery of the deed; (2) that, if any one destroyed the deed, it was Frank’s mother, and not himself ; (3) that the evidence is not sufficient to show that a. deed was made.
Taking these questions in the inverse order, we may say that we have no doubt of the soundness of the grantor’s, mind. The secondary evidence of the contents of the deed is somewhat indefinite' and technically incomplete, but it maybe helped by the application of the maxim, “Omnia prcesumuntur in odium spoliatoris. ” See In re Lambie’s Estate, 97 Mich. 55 (56 N. W. 225). This involves the second question, and leads us to say at this point that we-find Frank Walter ho use responsible for the destruction or suppression of the deed.
It remains to discuss the question of delivery. It is contended by the defendants that, if the deed was made at all, it, ‘with other papers, was given by the grantor to Bates, the scrivener, with instructions that if he, the grantor, should get up again, and want the papers, he should have them, and, if he died, they were to be given to his wife. This is said to have been, in substance, a delivery,subject, to the right of recall; a deposit with Bates, to be delivered after the grantor’s death, not unconditionally, but if the grantor should not direct otherwise. It is contended by the defendants that this is not a valid delivery in escrow, and that it conveyed no title. Complainants’ counsel con tend, on the other hand, that under the rule as it exists in this State there was a continuing delivery, which became valid and related back when the grantor died without exercising the reserved right to recall the deed; and the case of Thatcher v. Wardens, etc., of St. Andrew’s Church, 37 Mich. 264, is cited as the first enunciation of that doctrine in this State.
The only testimony which tends to show the directions given by the intestate to Bates was the stenographic minutes of testimony given by Bates in a replevin case between Sylvia E. Walton and Frank Walterhouse over some property presumably claimed by the former under one of the papers confided to Bates’ care. Neither of the minors was a party, nor was Elmer Walterhouse. Elmer did not object to the introduction of this testimony, but counsel for the minors did object, and, as they had no opportunity for cross-examination on the trial of the replevin case, not being parties, the testimony offered was not admissible, under the general rules applicable in such cases, unless the fact that their next friend was a party in interest in that suit affects the question. • She is but a nominal party here, and the rights of the minors are not affected by the fact that she was a party to the former case, and in fact called Bates as a witness for herself. See 1 Greenl. Ev. (16th Ed.) §§ 163, 163a, and Appendix 2, § 164; Jones, Ev. § 341. The complainants insist that this testimony of Bates should be disregarded, and that there is no evidence in the case of any reservation of a right to recall the deed, and that there is evidence in the case from which a valid delivery in escrow may be inferred; and that, even if there were not; the fact that the deed was delivered to the widow raises a presumption of a valid delivery, and imposes upon the defendants the burden of proof.
The learned circuit judge, who saw and heard the witnesses, was of the opinion that there was testimony tending to show something more than a mere leaving of these papers with Bates as agent for the intestate, and that it justified the inference that they were given to him with a view to a final disposition of this property, and not subject to recall. In this we concur, and think that the conduct of all the parties was consistent with that understanding. It therefore becomes unimportant to discuss the legal question growing out of the alleged reservation by the intestate of the right to recall the deed.
The land conveyed consisted of 60 acres, and the circuit judge found that the 40-acre parcel, conveyed to Charlotte, was a homestead, and that the deed was void to the extent of a legal homestead, but valid as to the excess, if the value exceeded $1,500. He entered a decree restoring the deed, and provided for a reference to set off a homestead from Charlotte’s parcel. The defendants do not complain of this portion of the decree, and complainants have not appealed.
The decree of the circuit court is affirmed, with costs of this court against defendants personally, except the minor defendants, Myrtle and Charlotte, in the respective cases.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Long, J.
The bill in this case was filed to enjoin the execution of a writ of replevin by which it was sought by ¿he defendant to take and remove two steam boilers sold to Harry L. Schellenberg, the husband of complainant, on a title contract, and placed in the basements of two dwelling houses. These dwelling houses are owned by Harry L. Schellenberg and his wife as by an estate in entirety, as husband and wife. It appears that the husband bought these boilers to put in the buildings for heating purposes, the defendant reserving the title to itself by the contract until the boilers were paid for. Payment being refused, replevin suits were brought for the two boilers against Schellenberg and his wife and the tenants in the buildings. On the trial of the replevin suits, the defendant in the present case had judgment against Schellenberg for the return of the property, the judgment not passing against the wife or the tenants. . It is stated in the present bill that, when these boilers were sold to Harry L. Schellenberg, the defendant knew they were to be attached to the dwellings in a permanent way, and saw the plans of construction of said buildings, and of the heating apparatus to be placed therein; that the complainant believes the defendant will attempt to remove the boilers, and asks that it be enjoined from removing or attempting to remove the same.
The defendant demurred to the bill on the grounds:
1. That it does not show jurisdiction in a court of chancery.
2. That complainant has not by said bill stated a case which entitles her to the relief prayed.
3. That the bill does not show on its face that the complainant has any such interest in the subject-matter of the suit as entitles her to file it.
4. That the question as to whether the boilers can be treated as fixtures is a matter not within the jurisdiction of a court of chancery, and whether they can be taken on execution in replevin is a matter which can only be determined in a court at law.
5. That it appears by the bill that the constable is a necessary party, as it appears he was proceeding to take the boilers under process in his hands, and remove them from the buildings.
6. That it does not appear by the bill that the amount in controversy exceeds $100.
This demurrer was sustained in the court below, and the bill dismissed. Complainant appeals.
We think the court was not in error in sustaining this demurrer. The title of the real estate is in the husband and wife jointly, who hold it by the entirety. The boilers were purchased by the husband, and placed in the buildings, under a contract reserving title to the defendant company. The wife was not a party to this contract, and the boilers never became fixtures in the buildings. There was no unity of title in this property and the real estate. It does not matter that the bill alleges that the boilers became attached and became a part of the real estate. The statements in the bill are sufficient to show that they never attached to the ' real estate, and never became fixtures.
In Adams v. Lee, 31 Mich. 440, the title to the real estate was in one Kaufman. Machinery was put into the .building on the real estate. There was no unity of title and ownership of the land and the machinery. Referring to the want of unity of title as affecting the question of fixtures, it was said:
‘ ‘ To constitute a fixture, there must not only be physical annexation in some form to the realty, but there must be unity of title, so that a conveyance of the realty would, of necessity, convey the fixture also. When the ownership of the land is in one person, and of the thing affixed to it is in another, and in its nature is capable of severance without injury to the former, the latter cannot, in contemplation of law, become a part of the former, but must neces- • sarily remain distinct property, to be used and dealt with as personal estate only. And the fact that the owner of the thing affixed to the freehold has also an undivided interest in the latter cannot render the former a fixture when the interests are different in extent. A thing cannot, as to an undivided interest therein, be real estate, and, as to another undivided interest, be personalty. It must be the one thing or the other.”
See, also, upon this question: Robertson v. Corsett, 39 Mich. 777; Scudder v. Anderson, 54 Mich. 122 (19 N. W. 775); Kerr v. Kingsbury, 39 Mich. 150 (33 Am. Rep. 362); Lansing Iron & Engine Works v. Walker, 91 Mich. 409 (51 N. W. 1061, 30 Am. St. Rep. 488); Lansing Iron & Engine Works v. Wilbur, 111 Mich. 413 (69 N. W. 667).
It is also quite apparent from the statements in the bill that these boilers put in the basements for heating purposes could be detached from the buildings without material injury to the boilers or the buildings; but, in addition to this, they were sold to the husband, the defendant reserving title to itself. These circumstances show that it was the intention- of the .parties that the boilers were to remain personalty, and not to become, by annexation, a part of the realty. Robertson v. Corsett, 39 Mich. 777. It was said in Manwaring v. Jenison, 61 Mich. 117 (27 N. W. 903):
“The permanency of the attachment and its character in law, do not depend so much upon the degree of physical force with which the thing is attached, or the manner and means of its attachment, as upon the motives and intention of the party in attaching it. If the intention is that the articles attached shall not by annexation become a part of the freehold, as a general rule they will not. The exception is where the subject or mode of annexation is such as that the attributes of personal property cannot be predicated of the thing in controversy; as when the property cannot be removed without practically destroying it, or when it, or part of it, is essential to the support of that to which it is attached.”
The bill does not exhibit such a state of affairs.
We think no other questions in this case need be discussed. A judgment for the return of the property has been awarded to the defendant. Simply because the complainant is an owner by the entirety of the real estate would give her no interest in the retention of the property placed thereon which would entitle her to defeat the defendant’s possession.
The order sustaining the demurrer must be affirmed, with costs.
The other Justices concurred. | [
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Van Valkenburg, J.
The Court of Appeals granted leave to appeal and consolidated both of the above cases on the basis of the common issue concerning the propriety of orders granting new trials in each case.
Both lawsuits were originally heard and decided by Honorable Michael Carland, sitting in the 35th circuit composed of Shiawassee and Livingston Counties. Later the latter county was split off to form the 44th circuit, and Honorable Paul R. Ma hinske was elected to serve as judge of the newly-created 44th circuit.
The first issue to be decided may be worded as follows:
Does a successor judge in a newly-divided circuit have jurisdiction to grant a new trial in a case heard by the predecessor judge who now sits in the neighboring circuitf
It is unnecessary to review the Constitution, rules and statutes in order to answer this question. Insurance Co. v. Circuit Judge (1890), 79 Mich 241, 243, provides the solution:
“There is no law which disqualifies a judge from rehearing a motion or cause which has been passed upon by another judge sitting in the same court. It is true that some judges have declined to review the action of another judge as a matter of taste or delicacy, but not on the ground that they have no authority to do so to the same extent the judge who presided could exercise; and in some cases it may be absolutely necessary for a circuit judge to take such action.”
While we hold that it was proper and legal for the learned trial judge to have acted in these cases, we do not recommend such a procedure. It seems to us that it would have been far better if he had disqualified himself and thereupon allowed Judge Carland to have been assigned for the purpose of hearing the motions. This is the plan frequently followed by successor judges and more nearly meet the requirements of GrCK, 1963, 529.2.
Parlove v. Klein
It is now necessary to consider the issues raised in the individual cases. Parlove v. Klein arose out of an action of ejectment, with the defense of adverse possession being interposed. The facts are comparatively simple. The parties own adjoining lots, the strip of land in question being part of the lot purchased by plaintiffs in 1949. Defendants, on the other hand, purchased their land in July of 1941, or about 20 years prior to the beginning of the action of ejectment.
At the original trial, defendants asserted that they held title by adverse possession by reason of their occupancy of the land for the statutory period. To buttress their assertion, defendants produced evidence that the disputed strip lay on their side of the fence separating the two properties, that the fence was built in 1947, and that the fence replaced a row of wooden posts that had been in place since 1941 or before. Defendants further offered proofs to the effect that an electric light pole had been at the end of the fence line since 1939.
Plaintiffs, on the other hand, denied that the fence had been erected in 1947, and asserted that the light pole had been moved from its original location and the fence was thereafter erected with the pole at its end.
Judge Garland, after hearing the testimony, determined that the light pole had been in its present location at the end of the fence since 1939, such determination being based, at least in part, upon the fact that a metal tag with the date 1939 was affixed to the pole. Judge Garland went on to hold in his opinion that:
“the court is convinced overwhelmingly that the defendants have been in possession of the disputed strip of land since 1941.”
Plaintiffs, in their motion for new trial, asserted that they had newly-discovered evidence. One of the items presented was a photograph showing a 1946 Ford and no fence. The other item was a letter from Detroit Edison to the effect that the metal tag affixed to light poles indicated only the age of the pole and did not indicate the date at which the pole was placed in a given location.
The issue to he decided is thus:
Did these items constitute a sufficient basis upon which to grant a new trial based on newly-discovered evidence¶
"We now turn to the rules of qualifications which must be considered in order to grant a new trial on the basis of newly-discovered evidence. The rule, recognized for many years, is that there must be a showing that: (1) the evidence and not merely its materiality is newly discovered; (2) the evidence is not cumulative; (3) it is such as to render a different result probable on retrial; (4) the party could not, with reasonable diligence, have discovered and produced it at the trial. Pociopa v. Olson (1968), 13 Mich App 324; Canfield v. City of Jackson (1897), 112 Mich 120; Graham v. Inskeep (1967), 5 Mich App 514; GCR 1963, 527.1(6).
First, there is serious doubt as to whether or not the photograph would be admissible in evidence. There was no proof as to when it was taken and there would be a question as to what it represents. At trial defendants offered two exhibits showing the relative position of the fence and utility pole to the defendant’s house. This so-called newly-discovered photograph shows neither the house nor the utility pole. Therefore, the site depicted cannot be verified.
At any rate, prior testimony showed that 1947 was the year in which a new fence was built to replace the old one; and therefore, this evidence, even if admissible, would be merely cumulative and would not likely affect the result.
"With regard to the letter from Detroit Edison, since the question of the movement of the light pole was fully explored at the trial, the letter at best would be cumulative. Further, it is noted that the information contained in the letter could have been obtained at the time of the trial, if plaintiffs had exercised reasonable diligence.
Willey v. Partridge
We now turn our attention to Willey v. Partridge. This was a will contest. A judgment in 1966 holding the will valid was affirmed by this Court in a rather exhaustive opinion. In re Willey Estate (1967), 9 Mich App 245. However, in 1969, the plaintiffs filed a motion for a new trial and sought to have the judgment set aside on the basis of an alleged fraud on the court. The fraud alleged is that a narcotics record book, containing a record of the drug being administered to the testatrix at the time of the writing of the will, was withheld by the defendant in the face of a subpoena duces tecum and is now still in the possession of the said defendant. During the trial, she stated that she did not know the whereabouts of the record book.
The issue to be decided:
Is the evidence of fraud on the court sufficient to justify the order of a new trial?
Plaintiffs moved to have the prior judgment set aside because of the alleged “fraud on the court”, and sought a new trial. While generally a motion to relieve a party from a final judgment based upon an allegation of fraud must be brought within one year after the judgent was entered, that temporal limitation does not apply when “fraud upon the court” is involved.
Plaintiffs’ motion alleged that defendants made statements to disinterested parties subsequent to the trial to the effect that she had had in her possession at the time of trial the narcotics record book which was the subject of the subpoena duces tecum. These allegations were supported by affidavits. Defendant denied all the allegations and submitted an affidavit to that effect.
The trial court, after hearing arguments by counsel but not holding an evidentiary hearing, set aside the prior judgment and ordered a new trial. This was improper. The proof required to sustain a motion to set aside a judgment because of alleged fraud is of the highest order. As stated in 3 Honigman & Hawkins, Michigan Court Eules Annotated (2d ed), p 185:
“The courts understandably look with scepticism upon a dissatisfied suitor’s claim of fraud and insist upon strict factual proof. If the application for relief is not supported by competent evidence of specific facts, general allegations of fraud will be of no avail. Except for extraordinary circumstances, the courts understandably will not look favorably upon an allegation of fraud which calls, in effect, for nothing more than relitigation of issues and testimony previously presented and passed upon.”
See also Karasek v. Trust & Savings Bank (1933), 262 Mich 636.
It is thus apparent that where, as here, there are conflicting allegations and affidavits as to the ques tion of whether there was “fraud upon the court”, the trial court must conduct an evidentiary hearing to determine whether such fraud existed. Only upon a full evidentiary hearing could the contested question of “fraud upon the court” be meaningfully determined.
Normally, we would set aside the grant of a new trial and allow the trial court, upon proper motion of the parties, to resolve the question at issue by means of a full evidentiary hearing. In the instant ease, however, we see little reason for expending court time on such an evidentiary hearing. Even if the trial court were to determine, after a full evidentiary hearing, that defendant did, in fact, have the narcotics book, such a finding would not justify granting a new trial..
G-CB. 1963, 529.1, provides, in part:
“no error or defect * * * in anything done or omitted * * * by any of the parties is ground for granting a new trial or 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 clear import of the rule is to forestall the upsetting of judgments because of errors which did not affect the result. Such is the situation in the instant case. Assuming arguendo that defendant had the narcotics book in her possession at the time of trial, and assuming that her refusal to produce the book in the face of the subpoena duces tecum was “fraud upon the court”, plaintiffs still would not be entitled to a new trial, as they were in no way prejudiced or harmed by the nonavailability of the narcotics book.
At the trial, plaintiffs’ theory of attack upon the validity of the will was one of undue influence. They also asserted that the testatrix had not intended to exercise her power of appointment. Plaintiffs did not argue or attempt to prove that the testatrix was without testamentary capacity; and they made no mention, either by argument or testimony, that the testatrix lacked testamentary capacity because of the use of narcotic drugs at the time of the execution of the will.
Since the requested narcotic logbook would have been beneficial only if their theory had been lack of testamentary capacity because of the use of drugs, and since the plaintiffs, at the close of proofs, clearly indicated that they conceded that the testatrix had the necessary testamentary capacity to execute the will, it is clear that any error which resulted from the alleged wrongdoing on the part of defendant in no way prejudiced plaintiffs’ case or deprived them of substantial justice. Therefore, even if the alleged “fraud on the court” was proven, such fraud would not be a sufficient basis on which a new trial could be granted to plaintiffs.
In light of the determination set forth above, we express no opinion as to whether the alleged fraud and perjury occurred, whether such fraud and perjury can be characterized as “fraud on the court”, whether a new trial can be ordered after setting aside a judgment pursuant to GrCR 1963, 528.3, or whether a new trial can be ordered to determine the validity of a will after the estate has been distributed.
Plaintiffs have had a jury determination on the merits of their claim, have now twice had review by this Court and have consumed untold time in the preparation and argument of motions before this Court and the trial court. Although it is never easy to admit that one’s cause is not meritorious, there comes a time when continual attempts to relitigate a lost cause should cease. We only hope that plaintiffs realize their time has come.
The rule is well established that a decision on a motion for a new trial is addressed to the sound discretion of the trial court. Benmark v. Steffen (1968), 9 Mich App 416; Grist v. The Upjohn Company (1969), 16 Mich App 452.
There can he no question that a motion for new trial is a matter within the discretion of a successor judge. GCR 1963, 531. However, it would seem expedient, when the successor judge chooses to hear the motion for new trial, as happened here, rather than disqualify himself and allow the original trial judge, who is then sitting in an adjoining circuit, to he assigned for the purpose of hearing the motion, that the scope of the successor judge’s review should he tempered by judicial restraint.
Although the temptation is always present, perhaps unintentionally, to review the entire matter, as was done herein, under these circumstances the successor judge should narrow the scope of his review and limit his inquiry entirely to the new evidence which is presented.
Accordingly, we conclude that the decisions reached in both cases were erroneous.
The orders by which new trials were granted are hereby set aside and the original judgments reinstated. Costs to defendants.
All concurred.
See GOR 1963, 528.3. See also the author’s comment with regard to GCR 1963, 528.3 at 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 184, where it is stated:
“Thus if the fraud, misrepresentation, or other misconduct of an adverse party can be characterized as ‘fraud upon the court,’ relief can be given without reference to the one year time limitation.” | [
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Sharpe, J.
National Bank of Detroit petitions for a writ of mandamus to compel tbe State land office board to issue a deed to it of certain lands located in tbe city of Detroit.
Tbe facts have been stipulated and in substance are as follows: On May 3, 1938, the State of Michigan purchased at the annual tax sale held pursuant to the provisions of Act No. 206, Pub. Acts 1893, as amended, 1 Comp. Laws 1929, § 3389 et seq., as amended, the following described premises:
“Lots 14, 15 and 16 of plat of subdivision of the Walter Crane farm, private claim 39 according to the plat thereof as recorded in liber 5 on page 29 of plats, and more particularly known as the northwest corner of West Jefferson and Junction avenues, known as 5600 West Jefferson ave., located in the city of Detroit, Wayne county, Michigan.”
On November 3, 1939, the State of Michigan acquired title to said premises in fee simple absolute and the State of Michigan received a quitclaim deed from the auditor general of the State of Michigan covering the said premises, which deed was dated November 29, 1939, and was recorded July 3, 1940. The premises were withheld from the auction sale of 1940, held by the State land office board under the provisions of Act No. 155, Pub. Acts 1937, as amended, at the request of the city of Detroit. The taxes on the premises were not redeemed or paid by the' municipality and on March 21, 1941, ,the premises were offered at the auction sale- held by the board. Petitioner was the high bidder at the sale. The amount of petitioner’s bid, $5,260, was sufficient under the statute and was paid to the board in cash within 24 hours of the time the bid was made. Petitioner received the usual certificate of purchase.
Thereafter, on April 18, 1941, respondent Paramount Investment Company made application to the State land office board tq “meet” the high bid, paid the board one-tenth of the amount of petitioner’s bid, and requested a land contract.
At the time of the May, 1938, tax sale, Paramount Investment Company had no interest whatsoever in the premises. On March 20,1941, being the day before the above-described auction sale, the investment company entered into an agreement with the agents of Charles T. Tittmann and Lillian Winter-halter, who were owners of record of said premises at the time of the tax sale of May, 1938, whereby the investment company should receive from Tittmann and Winterhalter quitclaim deeds to be executed after the auction sale to be held on March 21, 1941. On April 3, 1941, the investment company paid $3,000, which included agent’s commission, to Tittmann and Winterhalter and quitclaim deeds were executed and delivered to the company.
Prior to the institution of this proceeding, the State land office board notified petitioner and Paramount Investment Company it had determined that the investment company was an “owner” of the property entitled, under Act No. 155, Pub. Acts 1937, as amended, to meet the highest bid, and as such would receive a land contract after 20 days. The injunction of this court restraining respondent, State land office board, from conveying the premises was issued before further action by the board; and no conveyance of the premises has been made. Neither petitioner nor Paramount Investment Company has requested or received a return of the moneys paid by them to the board.
On May 26,1941, petitioner instituted proceedings in this court seeking a writ of mandamus; and on June 3, 1941, this court issued its order directing respondents to show cause to the court why a peremptory writ of mandamus should not be issued to compel the execution and delivery by respondent State land office board of the deed demanded by petitioner.
Subsequent to the signing of the stipulation of facts, the Paramount Investment Company peti tioned this court to strike from the stipulation of facts the following sentence: ‘ ‘ Subsequently, within 24 hours of said bid, plaintiff, National Bank of Detroit, made payment in cash of the amount of $5,260 to the State land office board.”
Upon the filing of the above petition, we directed that the matter be referred to the circuit court of Wayne county to make a finding ,of facts as to this issue. The hearing was held before a circuit court commissioner who made the following finding of facts:
That on March 21, 1941, the National Bank of Detroit drew a draft on itself in the amount of $5,410 payable to “Tax Bidding Service,” signed by an officer of the National Bank of Detroit authorized to draw such drafts; that on the same day, at approximately 1:30 p.m., the National Bank of Detroit, through its agent, Paul P. Sukenik, made a bid of $5,260 for the premises involved here at the auction of the State land office board; that Paul P. Sukenik on that day, at 2:30 p.m., made payment to the board for that property by depositing with its cashier the draft of the National Bank of Detroit in the amount of $5,410, indorsed by Sukenik, and received from the cashier of the board a certificate of purchase certifying that the National Bank of Detroit had bid in the described lands and “deposited in cash with this board the full purchase price thereof;” that the difference between the bid price of these lands and the draft was applied by Sukenik on other lands bid in at the board at that time; that the board accepted the draft of the bank as cash, along with other drafts, cashier’s checks, money orders and certified checks and deposited the same the following morning in the Detroit Bank, their financial agent; that the depositary of the board, the Detroit Bank, honored the draft of the National Bank of Detroit on March 22, 1941, and that the draft was later honored by the National Bank of Detroit; and that if, on March 22, 1941, the board had demanded cash in exchange for the draft of the National Bank of Detroit, on its deposit of the draft in the Detroit Bank, the Detroit Bank would have made cash available on the morning of March 22, 1941'.
We must first determine whether the finding of facts of the circuit court commissioner modifies the stipulation of facts. It is urged by petitioner that the defendant Paramount Investment Company is bound by the agreed stipulation of facts; and that petitioner complied with the provisions of the statute relative to the payment of cash within 24 hours of the hid.
The legislature in 1899 amended Act No. 20, § 3, Pub. Acts 1842, by Act No. 228, Pub. Acts 1899, which is now 1 Comp. Laws 1929, § 339 (Stat. Ann. § 3.661), which provides:
“Whenever any check or bank draft shall be tendered for the payment of any debt, taxes or other obligation due to the State or to any municipality therein, such check or draft shall operate as a payment made on the date said check or draft was received and accepted by the receiving officer, if it shall be paid on presentation without deduction for exchange or cost of collection: Provided, however, That no receiving officer shall be required to receive in payment of any debt, taxes or other obligation collectible or receivable by him any tender other than gold or silver coin of the United States, United States treasury notes, gold certificates, silver certificates, or national bank notes.”
In Backus v. Killmaster, 162 Mich. 594, we held that a post-office money order was sufficient to re deem from a tax sale. "We there said: “It is a matter of common knowledge that the transmission of money by post-office order is lawful, customary, and safe.”
In C. N. Ray Corporation v. Williams, 255 Mich. 564, we held:
“Where check given for taxes was deposited in bank by city treasurer, credited to his account, and charged to drawer’s account, in which there was sufficient funds to pay it, it was paid (1 Comp. Laws 1929, § 339').” (syllabus)
In Bingham v. County of Montcalm, 251 Mich. 651, we said :
“As stated by the trial court, the term ‘cash’ is a term of broad and not restricted import. A certificate of deposit properly indorsed in blank, payable on presentation, is readily converted into cash, and is commonly treated as such in business transactions. In Glines v. Bank, 132 Mich. 638, 643, it is said:
“ ‘Checks are deposited as cash, pass current as cash, the amount thereof paid out by the bank as cash, and the same check is often used to liquidate several debts. Oftentimes the holder of a check obtains cash for it from a bank instead of depositing it.’ ”
From the authorities cited the term “cash” is not limited to legal tender and it is our opinion that petitioner has sufficiently complied with the intent and meaning of the statute by making payment by draft. It follows that the stipulation as signed is binding upon all interested parties.
It is urged by Paramount Investment Company that it had on April 18, 1941, the “right to match” the “highest bid” made at the auction sale.
The applicable part of Act No. 155, § 7, Pub. Acts 1937, as amended by Act No. 244, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 3723-7, Stat. Ann. 1940 Cum. Supp. §7.957), is as follows:
“Any person who, at the time of the tax sale, had any interest in any parcel of land so sold, shall have the right for a period of 30 days after such public sale as in this section provided, to meet the highest bid. * * * In the event that no such bid is met as herein provided, the said highest bidder shall be entitled to receive a quitclaim deed.”
In Stickler v. State Land Office Board, 297 Mich. 271, we held that purchasers at the county treasurer’s sale for delinquent tax for- a year subsequent to the year for which -sale to the State had been made had no interest in the property at the time the State made its purchase and were not entitled to meet the high bid at the auction sale of State lands pursuant to Act No. 155, § 7, Pub. Acts 1937, as amended by Act No. 244, Pub. Acts 1939. And in Bedford Union Schools, Dist. No. 1, v. State Land Office Board, 297 Mich. 535, we held that the right to meet the highest bid at the scavenger sale is limited to parties having an interest in the land sold at the tax sale when the State bid in the property.
In view of the above authorities, it follows that the Paramount Investment Company, having no interest in the premises on May 3, 1938, had no right to match the bid as provided in section 7 of the above act. But respondent investment company claims the right to match the bid under Act No. 363, Pub. Acts 1941. Petitioner urges that its right to a deed arose March 21,1941, nearly three months prior to the time the above act went into effect; that on March 21, 1941, it had a right which could not be taken from it without due process of law; and that if the above act is to be given retroactive effect, it will impair the obligation of a contract.
On June 19, 1941, Act No. 363, Pub. Acts 1941, amending Act No. 155, Pub. Acts 1937, as amended by Acts Nos. 29, 244, and 329, Pub. Acts 1939, became effective. It added section 5a (Stat. Ann. 1941 Cum. Supp. § 7.955 [1]) which provides in part as follows:
“All executory contracts and conveyances heretofore executed and delivered by the board or department to heirs, devisees, grantees, successors, or assigns of persons who at the time of the tax sale had any interest in the land described in such contracts or conveyances are hereby ratified, confirmed and declared to be valid in so far as the assignability of the privileges accorded to former owners is concerned. All devises, conveyances, or assignments of such privileges heretofore made at any time prior to the expiration of the 30-day period during which bids may be met by former owners under the provisions of sections 6 and 7 hereof, if made in compliance with the laws of this State relating to devises, conveyances or transfers of interests in land, are hereby declared to be valid and to have devised, conveyed, assigned and transferred such privileges to the devisees, assignees or grantees therein named, and all exercise of such privileges by such devisees, assignees or grantees is hereby declared valid and to have vested in such devisees, assignees or grantees the right to receive from the board or department, as the case may be, a contract or conveyance of the land therein described, subject to the provisions of this act: Provided, however, That such devisees, assignees or grantees, have not surrendered their certificates of purchase and received or thereby become entitled to receive a refund of their purchase moneys or down payments.”
In our opinion the rights of petitioner as a bona fide bidder on March 21, 1941, must be considered in determining whether the above amendment is retroactive. Petitioner made its bid under Act No. 155, § 7, Pub. Acts 1937, as amended by Act No. 244, Pub. Acts 1939, which provided:
“Under rules and regulations of the board, the several parcels of land appearing on such lists shall be offered for sale separately at the office of the respective county treasurers to the highest bidder at said sale. * * # Any person who, at the time of the tax sale, had any interest in any parcel of land so sold, shall have the right for a period of thirty days after such public sale as in this section provided, to meet the highest bid. * * * In the event that no such bid is met as herein provided, the said highest bidder shall be entitled to receive a quitclaim deed * * * covering the parcel of land so purchased, executed on behalf of the State of Michigan by the board, with the seal of the board attached.”
On March 21, 1941, petitioner in reliance upon the provisions of the statute paid in cash the sum of $5,260. This payment was made subject to one condition, namely, that the owner, having priority, could match the bid within 30 days. The offer of the State land office board was accepted by petitioner. Upon failure of the owner, having priority, to match the bid within the prescribed time, petitioner .became entitled to a deed of the premises and it became the duty of the State land office board to execute and deliver to petitioner such deed. It follows that Act No. 363, Pub. Acts 1941, has no application to property sold by the State land office board to which the purchaser became entitled to a deed prior to the effective date of the act.
The further question of whether petitioner is entitled to the remedy of a writ of mandamus is raised. The law upon this subject is well stated in Chemical Bank & Trust Co. v. County of Oakland, 264 Mich. 673, 678, 679, where the court quoted with approval the language from People, ex rel. Township of LaGrange, v. State Treasurer, 24 Mich. 468, 477:
“ ‘In cases where the right is clear and specific, and public officers or tribunals refuse to comply with their duty, a writ of mandamus issues for the very purpose, as declared by Lord Mansfield, of enforcing specific relief. It is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of this writ. Where none but specific relief will do justice, specific relief should be granted if practicable. And where a right is single and specific it usually is practicable.’ ”
See, also, Hench v. State Plumbing Board, 289 Mich. 108.
In the case at bar, the only adequate relief that petitioner can have is a deed of the premises; and mandamus is an appropriate remedy.
Petitioner is entitled to a deed of the premises in question, and, if necessary, the writ will issue. Petitioner may recover costs against Paramount Investment Company.
Chandler, C. J., and Boyles, North, Starr, Wiest, Butzel, and Bushnell, JJ., concurred.
This act also amended section 7, supra.—Reporter. | [
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] |
Moore, J.
Charles Baase prior to October 29, 1915, was in the employ of the Banner Coal Company. The Employers’ Liability Assurance Corporation, Limited, is the insurance company carrying the risk of said coal company. On the date mentioned claimant sustained an injury while in the course of his employment. This injury was duly reported by thg employer to the insurance company, which in turn reported the accident to the industrial accident board. After the injury claimant was treated by various doctors. On December 17, 1916, claimant made his first claim in writing for compensation. On December 23, 1916, he filed the regular “Notice to Employer of Claim for Injury.” The claim was heard before an arbitration committee on April 27, 1917, and an award made that claimant was entitled to receive and recover from defendants the sum of $7.14 per week for the period of his disability. This award upon appeal was affirmed by the full board. The case is brought here by certiorari.
Appellants claim:
1. That the present disability of claimant is not due to the injury of October 29, 1915, and the decision of the board to that effect is based entirely on conjecture and not supported by any competent evidence.
2. That no claim for compensation with respect to the alleged injury was made within six months after the occurrence of the same, and there was no evidence whatsoever of any physical or mental incapacity on the part of claimant which would extend the statutory period.
A determination of the second claim will make it unnecessary to discuss the other.
Sections 15 to 18 of part 2 of the workmen’s compensation act (2 Comp. Laws 1915, §§ 5445-5448) had the attention of this court in Armstrong v. Pickle Co., 197 Mich. 334; Podkastelnea v. Railroad Co., 198 Mich. 321; Cooke v. Furnace Co., 200 Mich. 192; Dane v. Traction Co., 200 Mich. 612; and Kalucki v. Foundry Co., 200 Mich. 604. In the last three cases opinions were handed down in March, 1918. It is there determined that the claim for compensation must be made within six months of the time of the injury. It is the contention of claimant that though he did not make a claim in writing within six months that he did so in fact. This claim is based upon his testimony, reading as follows:
“Q. About that time or shortly after, did you have a conversation with Mr. Carmichael?
“A. I did.
“Q. What position did he hold with the Banner Coal Company?-
“A. So far as I know he was manager. * * *
“Q. When was this conversation with Mr. Carmichael ^
“A. About February 16, 1916.
“Q. Did you explain to him fully what your injury was?
“A. I stated that my injury bothered me, and I was sore, and I really had to quit. * * *
“Q. What was Mr. Carmichael doing at that time?
“A. Mr. Carmichael was back of the bar, in what they call the office, párt, in the front part of the saloon.
“Q. What did you say to him? .
“A. I was standing there talking to him, one thing and another and I spoke about my money.
“Q. What money?
“A. Money that I supposed that I had coming.
“Q. For work?
“A. Yes, sir.
“Q. And what else?
“A. I spoke to him about my lungs and about working out there, and about one thing and another, and I told him that my lungs bothered me so much out there in the mine that I would have to quit.
“Q. You talked generally about the mine and the conditions of the mine and your condition?
“A. Yes; and I told him that I would have to make a claim for compensation, if I didn’t get along better.
“Q. And what did he say about that?
“A. It went from one thing to another, general conversation. I don’t remember what he did say.
“Q. That was practically all that you said?
“A. Yes, and a general conversation.”
Mr. Carmichael admits he might have had a conversation with the claimant at the time and place mentioned, though he says he does not remember that he had, but says if a claim for compensation had been made it would have been reported, and that there was no report made of a claim. Counsel cite, in support' of the contention that a sufficient claim was made, Luckie v. Merry, 3 K. B. Div. (1915) 83, and Gailey v. Manufacturing Co., 98 Kan. 53 (157 Pac. 431). A reference to the cases will show they are not controlling.
It is not necessary to quote here section 15, part 2 of the act (2 Comp. Laws 1915, § 5445), but its language is not ambiguous. Giving the claimant’s testimony the most favorable construction possible, it amounts to a statement that he. would have to make a claim if he did not get better. We think this is not a compliance with the requirements of the act.
The award is set aside.
Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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North, J.
Plaintiff, as administrator of the estate of Fred H. Tighe, deceased, brought suit on an alleged lost promissory note for $8,400 which plaintiff claims defendant gave to its decedent November 23, 1920, the note being payable one year after date. Defendant pleaded the general issue and made sworn denial of execution and delivery of the note. The jury found for plaintiff, judgment was entered accordingly, and defendant has appealed.
The appeal is based wholly upon claimed error committed by the court in receiving certain exhibits in evidence. Admissibility of these exhibits must be determined in the light of other facts disclosed by the record. Decedent and defendant were brothers, decedent being about two years defendant’s junior. They had been in the furniture manufacturing business together for many years prior to 1914, when they disposed of the same. From 1920 to 1925 they lived together in defendant’s home at Plymouth, Michigan. Beginning about 1916 each of the brothers traded in stocks with various brokerage houses in Detroit. The defendant and his wife had a joint commercial account in the Plymouth Savings Bank; and from 1920 on plaintiff’s decedent and his wife had authority to draw checks on defendant’s joint account, and did draw numerous checks on that account, especially during the winter months of each year while defendant and his wife were residing in California.
On November 23,1920, decedent and his‘wife gave a mortgage for $8,400 to Eobert O. Mimmack, payable one year from date with interest at the rate of seven per cent, per annum, payable semi-annually, the mortgage covering a house owned by the mortgagors. The consideration was 100 shares of New York Central Eailroad stock delivered by Mr. Mimmack either to defendant or to plaintiff’s decedent. It is claimed by plaintiff that this stock was obtained for defendant’s benefit and was credited, to his brokerage account on the books of E. W. Wagner & Co., a Chicago brokerage house having a branch office in Detroit, with which branch office each of the brothers traded frequently. It is plaintiff’s claim that defendant gave the lost note to decedent in adjustment of the above transaction as between themselves. Mr. Fred Tighe died January 30, 1925; and on August 12, 1926, this suit was commenced to recover on the alleged note.
At the trial Mary C. Tighe, widow of plaintiff’s decedent, testified to the execution of the mortgage above mentioned, and, further, that on the same day her husband displayed to her the note on which this suit is brought, saying: “Here is Ed’s note for the $8,400. ’ ’ She also testified that on several occasions after her husband’s death she mentioned the note to the defendant, informed him that she could not find it among her husband’s papers, and finally defendant, at least inferentially, admitted the note had been executed but claimed that his brother Fred had destroyed it. This testimony was denied by defendant, who asserted that he had never executed or delivered the alleged note.
As bearing upon the controverted issue as to whether or not the Mimmack New York Central stock was secured as a marginal protection for the benefit of-defendant’s brokerage account with E. W. Wagner & Co., plaintiff offered and the court received in evidence the following exhibits:
(1) Exhibit A, a stock register sheet kept in the Chicago office of E. W. Wagner & Co.
(2) Exhibits 16 to 19 inclusive, which were loose leaves from the ledger accounts kept in the same office purporting to show the state of defendant’s account during the period covered.
(3) Exhibits 55 to 60 inclusive, the same being bank ledger sheets of the Plymouth United Savings Bank showing the state of defendant’s bank account during the period covered by this controversy.
(1) Exhibit A was the broker’s loose leaf ledger record of the New York Central stock received by it from various customers. From this, record it appeared that on November 16,1920, E. W. Wagner & Co. received from E. H. Tighe 100 shares of New York Central stock which stood in the name of Bobert O. Mimmack. This item was the only part of the exhibit received in evidence by the trial judge. If the entry was competent it was evidence in support of plaintiff’s, claim that the Mimmack mortgage transaction was for defendant’s benefit. Objection to Exhibit A was urged on the ground that the entry was not made in the presence of defendant, that it was a mere entry of a single transaction, not a book account or an account of defendant, that it was not an original entry or made by one having personal knowledge of the transaction, and on various other grounds. The Chicago office manager of E. W. Wagner & Co., a witness for plaintiff, testified that the New York Central stock certificate was received in the mail by the Chicago office, that the witness had actual possession of the certificate, that he personally supervised the book entry of its receipt, and that the record was an original entry of such receipt. It conclusively appears that no one in the Chicago office had any personal knowledge of the transaction in the Detroit branch. Yet this entry purported to sustain plaintiff’s claim that the Detroit broker received this certificate of New York Central stock from defendant or at least for the benefit of defendant’s account. That was the controverted issue on this phase of the case. The ledger entry made by strangers in the Chicago office was clearly incompetent.
The trial judge seems to have held Exhibit A admissible on the theory that its contents were brought to defendant’s attention by statements of his account sent him from the Chicago office, and that the correctness of the entry was not thereafter .challenged by defendant. The reasoning does not apply to the facts in this case because this entry at the time was in no way adverse to defendant’s interest. If it was erroneous it was so because it gave defendant’s account credit for an item which in fact should have been credited to his brother’s account. Therefore, the presumption does not arise, even if it otherwise would, that he would have denied the correctness of the entry if it were false in fact.
“The test of admissibility is found in whether the circumstances are such that in the ordinary practice of mankind the party receiving the letter would have answered it if he did not acquiesce in the statements contained therein.” 22 C. J. p. 326.
That the jurors gave this exhibit serious consideration and were influenced by it is quite clearly indicated by the fact that during the course of their deliberations they asked to have it submitted to them for inspection, and this request was granted. In a case as close as this on the controverted controlling facts, we think the receipt of Exhibit A in evidence constituted reversible error.
(2) Exhibits 16 to 19 inclusive were loose leaves from the ledger accounts kept in the Chicago brokerage office purporting to show the state of defendant’s account at the time of the entries. The difficulty is these exhibits did not cover or relate in any way to defendant’s business with the brokerage agency during November, 1920, the month in which the transaction giving rise to this suit was alleged to have occurred; nor do these exhibits contain any entry relating to the 100 shares of the New York Central stock. They were wholly irrelevant and immaterial to the controverted issues. Since there is to be reversal on other grounds we need not determine whether this ruling of itself constituted reversible error.
(3) Exhibits 55 to 60, inclusive, were bank ledger sheets of the Plymouth United Savings Bank, which purported to show the state of defendant’s bank account during the period in controversy. In offering these ledger entries plaintiff’s purpose was to prove that on five occasions substantially on the date semi-annual interest in the amount of $294 fell due on the Mimmack mortgage a check for that exact amount on defendant’s account was paid by the bank. This plaintiff urged tended to prove that its decedent gave the Mimmack mortgage for defendant’s benefit, and, further, that this is the transaction which was adjusted between the brothers by defendant giving decedent the alleged lost note. Plaintiff had given defendant notice to produce his canceled checks; but defendant denied possession of the checks or that they had been received by him from the bank. There was testimony that the bank made monthly statements to depositors which reflected the items in their respective ledger accounts. An assistant cashier, a witness for plaintiff, testified relative to the ledger accounts:
“I know of my own knowledge that these are the true records of the bank regularly kept in the course of business, that they show all the transactions in reference to this account during the periods you have mentioned.”
In objecting to these exhibits it is pointed out by defendant that the proof does not disclose by whom the checks were signed, or to whom they were payable, and that the record does disclose there were three other persons possessed of the right to draw checks on defendant’s account. These circumstances, we think, only go to the weight of the testimony and not to its admissibility. The rather striking coincidence in the dates and amounts of these items as related to interest payments due on the Mimmack mortgage clearly gives the entries evidentiary force. This ruling of'the trial court was correct.
The judgment of the circuit court is reversed, and a new trial ordered.
Clark, C. J., and McDonald, Potter, Sharpe, Bead, "Wiest, and Butzel, JJ., concurred. | [
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] |
McDonald, J.
This is an action to recover dam- • ages for injuries sustained by the plaintiff in a collision between his. automobile and, the defendants ’ street car. On the trial at the conclusion of the plaintiff’s case, the court rendered a decision in favor of the defendants on the ground that plaintiff was guilty of contributory negligence as :a matter of law. Judgment was entered in favor of the defendants. The plaintiff has appealed.
The accident occurred at about 8:30 o ’clock in the evening of December 11, 1928. It was dark. The plaintiff was driving a Ford car toward the city of Detroit on the Grand River road on which at that time there was a street car track extending from Detroit to Farmington. As he arrived at or near the Eight Mile road it was necessary to cross the track. He says that before doing so he slowed his speed to about three miles an hour, looked, and listened but did not see or hear a street car approaching; that he proceeded to cross, and almost immediately was struck by a street car; that the street car carried no lights and did not sound its gong or whistle as it approached the crossing. The defendants offered no proof. The plaintiff’s testimony leaves no doubt as to their negligence, but the trial court held that, in view of the physical facts established by his testimony, the plaintiff did not make the observations which he says he made and which the law requires him to make before attempting to cross a railway track; and that therefore he was guilty of negligence which precluded his recovery.
We have held in many similar cases that the testimony of a plaintiff who says he looked before crossing a railway track and saw no train or car approaching, does not raise an issue of fact if such testimony is contrary to the physical facts. If the train or car is in plain sight and he says he looked and did not see it, he is held not to have looked at all or to have looked inattentively. In the present case the plaintiff testified that when he was about 30 feet from the crossing he began to slow up and look for traffic; that there was nothing to interfere with his view; that he looked up and down the track and could see no street cars approaching; that he looked again when he was about six feet from the track, saw that it was clear and proceeded to cross.
“Q. When you drove on the track, how far was the street car from you?
“A. I could not tell you that, because just as I got my front wheels on the track, I saw the yellow paint on the car, just a second before it hit. * * *
“Q. How many feet was it away from you?
“A. Well, sir, it could not have been over three feet from me when I saw the yellow paint on the car.
“Q. How dark was it that night?
“A. It was quite a dark night, not overly dark.”
There is no evidence as to the speed of the car, but it was shown that it was unlighted. How far away it was when plaintiff made his observations before attempting to cross the track cannot be defi-' nitely determined. But as bearing on the question of whether he looked, or how attentively he looked, it is a significant- fact that he did not see it until it was three feet from him, and at that time the front wheels of his automobile were just entering the track. In this connection the language of Justice Butzel in Richman v. Railway Co., 254 Mich. 607, is applicable:
“Notwithstanding the fact that plaintiff claims that the locomotive of the south-bound train on the middle railroad track bore no headlight, and that he looked both north and south before he crossed the track, the very fact that the locomotive bore down upon him almost immediately upon his reaching the track, and struck the front part of his automobile, shows that he would have seen the oncoming train had he looked properly.”
Though the street car was unlighted, it must have been in sight of the plaintiff before it got within three feet of him; and he would have seen it if he had looked properly.
We think the court did not err in holding that his testimony did not raise an issue of fact.
The judgment is affirmed, with costs to the defendants;
Clark, C. J.', and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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McDonald, J.
Dr. Fred C. Warnshuis of Grand Rapids, Michigan, carried automobile insurance with the plaintiff company. His automobile was damaged while being driven by Hammond Babb, an employee of the defendant Grand Rapids Garages, Inc. He made a claim under his policy. Settlement was made by the plaintiff who then became subrogated to his rights. Defendants denied liability for the. damages and hence this suit.
The testimony shows that Dr. Warnshuis requested the Grand Rapids Garages to furnish him a man to drive his car from Grand Rapids to Manistee and return. The defendant Babb was selected for that purpose. It was a service for hire. He made the trip to Manistee in safety, but, on his return, the automobile ran off the road and was badly damaged. The record does not show the cause of the accident. The theory of the plaintiff’s case is that Dr. Warnshuis and the Grand Rapids Garages entered into a contract of bailment whereby the doctor delivered possession of his automobile, in good condition, to be driven from Grand Rapids to Manistee and back and returned to him in as good condition as when it was received by the Grand Rapids Garages; that it was returned in a damaged condition; and that these facts establish a prima facie case of negligence against the Grand Rapids Garages under 1 Comp. Laws 1929, §§4796-4800. This theory made no favorable appeal to the trial court, and he directed a verdict against the plaintiff.
The evidence does not show a bailment. The doctor did not deliver his car to the defendant Grand Rapids Garages. The contract was that the defendant should send a driver to the Bronson garage, where the car was stored, drive it to Manistee with Mrs. Warnshuis and her brother, and return it to the Bronson garage. The contract was not as plaintiff claims — to transport the car to Manistee. All the defendant was required to do was to furnish a chauffeur. It was a contract for the personal service of a servant. There was no bailment about it, and, as there was no bailment, the statute relied on by the plaintiff has no application. The facts established did not make a prima facie case of negligence against the Grand Rapids Garages; and, as there was no showing of negligence on the part of the driver of the car, the court correctly directed a verdict as to both of them. ■ The judgment is affirmed, with costs to the defendants.
Clark, C. J., and Potter, Sharpe, North, Pead, "Wiest, and Butzel, JJ., concurred. | [
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Butzel, J.
On June 16, 1925, Slater Construction Company, as lessor and owner, leased lot 17, Comstock & Paddock’s Addition to city of Pontiac,, to Roy L. Francis, as lessee, for a term of five years, at a rental of $100 per month. The premises were to be used as an oil station. Francis assigned the lease to the Tiger Oil Company, a corporation in which he, his son, and his attorney owned the capital stock of $24,000; $1,040 of this amount was paid in cash and the balance in property, which included the lease at a valuation of $2,000. On July 20, 1927, the Slater Construction Company leased an adjoining lot to Francis at $125 per month. Although the lease ran to Francis, it was considered as belonging to the Tiger Oil Company. It provided that it and the former lease might, on due notice, be renewed for a period of five years from June 10, 1930, at a rental of $400 per month for both lots. In June, 1927, the Tiger Oil Company opened another oil station in Pontiac under a lease from one Esch. It also purchased on land contract a parcel of property for a car washing station. The Tiger Oil Company, on July 9, 1927, borrowed $4,400 from David Hammond, giving as security a chattel mortgage on all fixtures, equipment, supplies, stock on hand, and after-acquired property, at its various stations. On June 27, 1928, $1,600 still remained unpaid on the mortgage. The Tiger Oil Company prospered for but a brief period. In the first year of its business, it showed a deficit of $6,312.14. It seemed to fare better in 1927, and through auditors, who took the figures of an appraisal company, who in turn were advised by Francis, an entry was made on the books showing the valuation of the leasehold to be $62,871.28. This figure was arrived at by attempting to capitalize the profits that the company anticipated making during the remaining years of the term, at $15,000 per year. As a matter of fact, no such profits were ever made; the business was an unprofitable venture. The account did show a profit of $11,298.50 for the year 1927, but in the operating statement for the year, it is not shown whether $6,123.59 due for gasoline taxes was charged against profit or not. This sum was not paid and appears in the liabilities at the end of the year. On December 31, 1927, the company had $212.32 cash on hand and other current assets of $6,474i07. The current liabilities amounted to $24,070.07. This included a bank overdraft of $841.62 and unpaid gasoline taxes amounting to $6,123.59. The balance sheet of April 30, 1928, shows a net operating loss of $4,984 for the four months. This does not include $1,360.37 lost through the sale of the property on which the station for washing cars was located. The sales showed a very substantial increase during 1928, and reached 143,667 gallons in June, but immediately declined, so that the sales in August were only 46,005 gallons. The fact that the company did a cut-rate oil and gas business, it is claimed, accounts for the large amount of its sales for a period. Towards the end of August, the company owed the State of Michigan $17,589.36 for gasoline taxes, which, with penalties, amounted to over $25,000. Slater claims that there was a default in the payment of rent. The company had received notice of cancellation of the Esch lease. It was unable to purchase gasoline and oil in order to continue, and the business had come to a standstill. Francis and the other owners regarded their stock as worthless, and transferred it without consideration to a party by the name of Marshall, who turned it over to others.
The litigation in the present case arises out of transactions that took place on or about August 15, 1928, and shortly thereafter. Slater, one of the owners of the properties, with whom all the dealings were had, testified to the following facts: He made an examination of the condition of the property, and, on finding that it was not being operated by any one, took possession. The attorney for Ernest L. Wellman, doing business as the Wellman Oil Company, the plaintiff herein, had spoken to him about the lease, and informed him that Wellman had a large claim against Francis. Slater told the attorney the lease was in default and that he intended to cancel it. The attorney told him not to, as Wellman had spoken of taking over the property. Slater then offered it to him first for $350 or $400, but the offer was not accepted. Slater further testified that he made a new lease to one David Holbrook, but a day or two before doing so, he called up plaintiff’s office and again asked if it would put up $400 or $500 for a lease, and a Mr. Campbell, in charge of plaintiff’s office, said that it would not, as it did not have any money. It was after the refusal of plaintiff to take the lease that a new one was made with Holbrook for a $300 consideration. Slater further testified that three or four men, some of whom had assignments, were after the lease, but he refused to honor the assignments and stated that he was going to cancel and wipe out the old lease and make a new one. Before giving a new lease, Slater demanded a cancellation of the old lease. Such a document, signed by the Tiger Oil Company by “A. Marshall, President, sole owners of all capital stock of above-named corporation,” and by Roy L. Francis, was delivered to Slater on August 21, 1928. On the following day, the Slater Construction Company, in consideration of the sum of $300 paid to it, made the new lease to Holbrook, who on September 5, 1928, assigned it to the Quality Oil Company, another corporation that had just been organized for the purpose of carrying on an oil business and with a capital of $5,000, of which $2,200 was paid in. The new lease was fór a term of one year and nine and one-half months, the balance of the term under the old lease, at $225 per month, with the privilege of an extension for a further term of five years at $400 per month, as provided in the old lease. It contained a clause requiring lessee to save lessor harmless from all claims or liabilities arising out of the old lease, and to pay all legal expenses for any litigation resulting therefrom. Slater testified that this clause was inserted because he feared that some difficulty might arise through claims of the State on account of the unpaid gasoline taxes. The organization of the Quality Oil Company was brought about through Holbrook or his brother. It obtained a retail gasoline dealer’s license and spent a large sum of money on the premises. The Hammond chattel mortgage was foreclosed, and the personal property was bid in and sold to one Robert Savage, who transferred it to the Quality Oil Company. We are in accord with the opinion of the trial judge in holding that the foreclosure sale was regular. He also found that the personal property covered by the mortgage was of little or no value at the present time. Plaintiff has not appealed from this decision of the trial judge, so that we need only discuss the transfer of the lease.
The Quality Oil Company, in order to secure purchases of oil from the Fisher Industries, gave it a-chattel mortgage on its assets for $5,000. The Fisher Industries desired to acquire the property of the Quality Oil Company, and agreed to pay $15,000 for it. From this sum there was deducted almost $4,000 due from the Quality Oil Company to the Fisher Industries, and the balance was paid in monthly instalments to the stockholders of Quality Oil Company, the transfer being effected through transfers of shares of stock and not of assets. The following year the Quality Oil Company, with its new stockholders, secured a new 10-year lease from the Slater Construction Company. Between $7,500 and $10,000 was spent on improvements, a large bank balance was carried, and the business flourished. On September 18, 1928, the Wellman Oil Company, which had two opportunities to purchase the lease from the Slater Construction Company for a small amount, sued out a writ- of attachment against the Tiger Oil Company. The sheriff levied on the former equipment of the Tiger Oil Company and also on the leasehold interest under the Slater lease. Subsequently, it obtained a judgment for $7,055.15 against the Tiger Oil Company for gasoline and oil furnished the latter company. Ernest Wellman, who does business under the name of Wellman Oil Company, on April 8, 1929, filed a bill of complaint, in the instant case, in aid of the attachment against the Tiger Oil Company, Slater Construction Company, Quality Oil Company, David Hammond, and other individuals who were parties to the various transactions. Plaintiff claims that the Hammond mortgage was a fraud on the creditors, and that the new lease given by the Slater Construction Company was a continuation of the old lease and by a subterfuge made to appear as if it were a new one. We have already discussed the mortgage and the disposal of the personal property.
We agree that the surrendering of the old lease and the giving of a new one created an atmosphere that at first glance seems unfavorable to defendants. It is elementary that an insolvent corporation may not give away its assets in fraud of its creditors, and that a leasehold may be a valuable asset. Whether it has any value or not, and the existence or absence of fraud must be determined by the varying facts in each case. We are not satisfied that there was either actual or constructive fraud in the present case. The lease had proven to he valueless, a possible liability and not an asset. The Tiger Oil Company was insolvent. It owed the State of Michigan a very large sum of money and was liable to severe penalties; it was hopelessly in debt; it had neither capital, merchandise, or credit with which to continue business; its business had come to a standstill. A large gallonage had been sold at the station at cut-rate prices, but evidently at a loss. There was nothing furtive or secret about the manner in which the new lease was made. Plaintiff knew about the condition and twice refused an opportunity to obtain it at a very small cost. It had been offered to others. One Schlee, who had been president and manager of a large oil company that operated 125 oil stations, five of which were in Pontiac, had made a very careful examination of the property and had been asked by Francis to take it over, and had received the same offer from him that Marshall accepted. Schlee stated that the property was of no value to his company as a gasoline station. The first lease had less than two years to run, with a privilege of a five-year extension at a higher rental. An officer of the- Quality Oil Company, who conducted the negotiations for the purchase of stock for the Fisher Industries, testified that the property was not considered of any value for a gasoline station, but that it was purchased for the sale of fuel oil; that the Fisher Industries were the largest distributors of fuel oil for domestic purposes in Detroit and contemplated using the property ultimately for the sale of fuel oil. Although the new lease was traded in and considered of value very shortly after it was given, it required a period of operation to demonstrate that the station could be made profitable. In a stipulation of additional facts, filed in the case, it was agreed that in the year following a successful operation of the property a profit in excess of plaintiff’s claim had been realized through the use of the leasehold property. This may have been entirely due to the initiative, enterprise, and additional capital furnished by the new lessee. Slater Construction Company had difficulties in collecting its rent from an insolvent tenant. It had a right to make a new lease with a solvent one. It did it openly, and after giving plaintiff the first opportunity to secure the lease.
After a careful reading of the record, we are constrained to hold that there was no fraud shown, and the bill of complaint is dismissed, with costs to defendant.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
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Potter, J.
.Plaintiff, claiming to have a valid chattel mortgage on one black and white cow seven years old, one red and white cow eight years old, two red cows nine and ten years old, eight pigs, and one black and white heifer calf, sued defendant for the wrongful taking and conversion of the same. There was judgment for defendant. A motion by plaintiff for a new trial was made and denied, and plaintiff appeals. Plaintiff was the owner of a farm situated in Bay county, and sold the same on land contract August 29,1927, to Walentine Stoinski and Frank S. Stoinski and Joseph' Stoinski for $3,000, payable $100 on the delivery of the contract and the remaining $2,900 payable at the rate of $300 a year on December 1, 1928, and yearly thereafter. The purchasers were to pay the taxes on the premises and to improve the buildings to the extent of $400 within one year from date of the contract. Walentine Stoinski also executed promissory notes and chattel mortgages to plaintiff as follows:
February 10, 1928, a promissory note of $247.18 secured by a chattel mortgage covering one black and white cow seven years old, one red and white cow eight years old, two red cows nine and ten years old, and a black and white heifer calf three months old. This chattel mortgage was filed February 10, 1928, and contained a clause as follows:
“This mortgage to stand as security for all notes held by said second party against them this date. Also to stand as security for any and all notes it may hold against them from time to time, so long as this mortgage remains in force. Intent being that they may want renewals or more funds from time to time and this mortgage given for larger amount to secure such renewals and further advances. Indebtedness to be shown by the promissory notes held by said bank against said first party.”
April 6, 1928, Stoinski gave another note to plaintiff of $222.69 secured by a chattel mortgage filed April 7, 1928. July 21, 1928, Stoinski gave plaintiff another note of $387.52 containing a chattel mortgage clause covering red cow nine years, black cow seven years, red cow ten years, red and white cow seven years, two white pigs, black and white heifer eight months .old. It was given to renew the promissory note of $222.69 secured by chattel mortgage and for further advances. The chattel mortgage to secure the note of $222.69 was not discharged. The record does not show what this chattel mortgage covered. The $387.52 chattel mortgage note was not filed or recorded. August 27, 1928, Stoinski gave a promissory note for $25.50 secured by a chattel mortgage covering eight hogs four months old. This chattel mortgage was recorded September 20, 1928. There was raised on the farm in 1928 some sugar beets which were harvested and sold and from which plaintiff received $223 which it claims it applied on the amount due on the land contract to it. It had no chattel mortgage on the sugar beets. Plaintiff also received $250 from the sale of hay and other personal property on the farm, and it claims it applied this $250 on the promissory note of $387.52. Defendant, September 21 and September 22, 1928, bought the property sued for and converted it to his own use. Defendant contends the $223 received from sugar beets and the $250 should have been applied on the chattel mortgage covering the stock purchased by him, and that he is entitled to have it so apply, and, if so applied, the chattel mortgage covering said personal property purchased by defendant was paid, and he is not liable in this suit.
The land contract given by Stoinski to plaintiff was foreclosed for the full amount due thereon, and the amount received from the sale of. the sugar beets on the farm in 1928- was not credited on the land contract. In view of this situation, plaintiff should give credit for it upon the amount owed by the mortgagors, who were purchasers of the farm on land contract, and this amount, if there was no other indebtedness, would apply to reduce the amount due upon the chattel mortgages in question.
The chattel mortgage of February 10, 1928, of $247.18, provided in apt language that it was given to secure, not only the amount $247.18, but also any renewals of - said notes or any further loans evidenced by promissory notes held by plaintiff against the mortgagor which- might thereafter accrue. In the absence of fraud, a provision in a chattel mortgage that it is to secure indebtedness subsequently contracted and accruing between the parties is valid: King v. Hubbell, 42 Mich. 597; Hyde v. Shank, 77 Mich. 517; Rosenthal v. Bishop, 98 Mich. 527; Crockett v. Bearce, 104 Mich. 257; 11 C. J. p. 474; and it would certainly be valid for the purpose of covering renewal notes. Molsons Bank v. Berman, 224 Mich. 606 (35 A. L. R. 1289); Stram v. Jackson, 248 Mich. 171. This chattel mortgage of $247.18, containing the clause above quoted, stood as security, not only for the payment of $247.18, but for the payment of the note of $387.52, together with the interest thereon. The later note of $25.50 was secured by an additional chattel mortgage covering eight hogs, so the entire amount of the indebtedness, outside of that accruing on the land contract, in issue here from Stoinski to plaintiff of $247.18, $387.52, and $25.50 was secured by chattel mortgages.
There was evidence the amount secured by plaintiff from the sale of the sugar beets on the farm, upon which it did not have a chattel mortgage, was applied on the land contract. If not so applied, defendant would be entitled to have it credited on Stoinski’s indebtedness. If no credit was given for it upon the land contract, and no other indebtedness existed, it should be credited on the chattel mortgage indebtedness.
The bank had a-right to apply the payments made to it as it saw fit, in the absence of any direction from Stoinski or anyone holding under him, as to the manner such payments were to be applied. The question of application of payments was considered in Shelden v. Bennett, 44 Mich. 634; Blair v. Carpenter, 75 Mich. 167; People v. Grant, 139 Mich. 26; Harper v. Concrete Publishing Co., 166 Mich. 429; Van Sceiver v. King, 176 Mich. 605; Mauro v. Davie, 236 Mich. 309, and many other cases.
“A debtor owing two or more debts to a creditor, to whom he makes a payment, has a right to direct to which debt it shall be applied, but, in the absence of any such direction, the creditor may apply the payment to whichever debt he pleases.” Blair v. Carpenter, supra.
“The rule is familiar that a debtor may elect to which of two or more debts his payments shall apply. If he does not so elect, the creditor may elect. ” Van Sceiver v. King, supra.
“The law relating to the application of payments is well settled in this State. The debtor may direct the application before or at the time the payment is made. If he does not, the creditor may apply it as he pleases, either at the time the payment is made or afterwards, if before any controversy arises concerning it. ’ ’ Mauro v. Davie, supra.
This, like many other rules, is subject to exceptions. Where payments have been made and no aplication has been made or directed by either party, the court will apply such payments as justice and equity may require. Van Sceiver v. King, supra.
“In the absence of direction on the part of the debtor or application by the creditor, if the credit merely appears in the general account and there be no evidence of an understanding to the contrary, the credit will be applied to the debits in the order of time in which the debits occur.” Mauro v. Davie, supra.
So far as the application of the money derived by plaintiff from the sale of the personal property upon the farm, it had a right to apply it as it saw fit upon the indebtedness of Stoinski to it.
It is claimed defendant was a bona fide purchaser for value. Kindred questions have been discussed in this State in many eases. There is no . serious dispute about the rule. To be a bona fide purchaser, defendant must have purchased the personal property in question for value in good faith and without notice either actual or constructive. Longwell v. Day, 1 Mich. N. P. 286; First Nat. Bank v. Shue, 119 Mich. 560; Peters v. Cartier, 80 Mich. 124 (20 Am. St. Rep. 508); Molsons Bank v. Wolf, 224 Mich. 526; 8 C. J. p. 1146; Words and Phrases, Title, “Bona fide Purchaser,” 3 Bouvier’s Law Dictionary (3d Rev.), p. 2772.
- The filing of the chattel mortgage in question was notice, and defendant could not be a bona fide purchaser for value without notice. Of course, if defendant had been a bona fide purchaser for value without notice, demand would have'been necessary to change his rightful possession into a wrongful possession, but, not being a boña fide purchaser without notice, no demand was necessary before instituting suit.
This disposes of the principal questions raised by the appeal. The other questions are not likely to arise on a new trial. Judgment reversed, with costs, and new trial ordered.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Btttzel, JJ., concurred. | [
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] |
Per Curiam.
This case is a companion of Fetters v. Wittmer Oil & Gas Properties, ante, 310, and is controlled thereby.
Affirmed accordingly, with costs to appellee. | [
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] |
Butzel, J.,
Leon Swiatkowski, plaintiff, brought suit against Stanley Kroll, also known as Stanley King, defendant herein, for dissolution of an- alleged partnership, an accounting and other relief. Victoria Kroll, wife of the defendant, was joined as a codefendant to reach her interest in real estate and other partnership assets. Plaintiff is the stepfather of the defendant. The parties are of foreign extraction and seem not too well educated. The record indicates that some of the testimony may be the result of forgetfulness or outright perjury. The testimony was conflicting, but after seeing and hearing the parties and examining the exhibits, the court found that there was a partnership, to which real estate and other assets belonged, and granted plaintiff the relief prayed for.
Plaintiff for 31 years was steadily employed at the Ford Motor Company and in later years the defendant worked at Chrysler’s. Their hours of employment were staggered, plaintiff completing his day’s work at 2 p. m., and defendant beginning his at 3 p. m. During their time off, they opened and operated a gas station at the northwest corner of Van Dyke and, the Eight Mile Road, Baseline, Michigan, the real estate herein involved and hereinafter referred to. The business evidently was profitable for a time. Codefendant also assisted. In January, 1943, the business closed and the assets were sold for $200. In September, 1943, the business was reopened on a profitable basis. Plaintiff claims that the business was reopened by himself and defendant as equal copartners, while defendants assert that this is untrue, and that the defendants were the sole owners of the business, and plaintiff worked for them, his compensation being 50% of the profits. No written agreements were entered into, no partnership certificate filed, no books kept, no commercial bank account opened, and with the exception of a few memoranda made on a calendar at times and then destroyed, no account was kept by them or any of them. The only written evidence before the court consisted of the sales tax records filed with the Michigan department of revenue and some income tax returns of not too explanatory a nature. There are records of purchases from the suppliers of gasoline, et cetera, and the markup on sales to rétail customers at the station may be ascertainable.
When the station reopened in 1943, it was the plaintiff who negotiated for the purchase of the real estate and who paid as a deposit on the purchase price the sum of $200, which he claims came from his own funds, but which the defendant claims he gave plaintiff for the very purpose of making the deposit. The purchase price was $10,000 and the additional $9,800 was paid by the defendant. Plaintiff claims that in addition to the $200, he paid the further sum of $1,800 to the defendant and it was agreed that the balance of $3,000 towards the plaintiff’s one-half share would be regarded as a loan by the defendant, to be repaid later. The title was taken in the name of the defendant. Plaintiff claims that defendant agreed to deed him a one-half- inter est in the property on the receipt of the $3,000 which defendant had advanced for the plaintiff. A few days after the purchase of the property, defendant leased it to Standard Oil Company, which in turn gave him a 1-year lease. The lease was renewed from year to year. At one time defendant paid $500 from his own funds for a tank for the station. Plaintiff claims that he paid $500 from his own funds at the time for gasoline for the tank. The taxes were paid from the receipts of the. business. The relationship continued until 1949 when this suit was commenced. A divorce suit was pending at the time of the hearing in the instant case between plaintiff’s wife, mother of the defendant, and the plaintiff. Possibly this was a cause of the business difficulties.
. The sales tax returns each year after 1943, when the station was reopened, show that it was run solely in plaintiff’s name, although he does not claim sole ownership. One exhibit consisting of a photostatic copy of an application for renewal of a sales tax license describes the business as a partnership, naming both plaintiff and defendant as partners. In the application for a new sales tax license made by defendant in 1943, after the purchase of the property, defendant states in his own handwriting “we were closed.” In a letter to the department of revenue in September, 1943, asking for sales tax forms and the sticker for the window and giving business address as that of plaintiff, defendant also wrote, “I reopened the gas station again on September 14, 1943,” defendant signing plaintiff’s sole name and the address of the station. On other documents, co-defendant signed plaintiff’s name. Defendant attempted to explain away these obvious inconsistencies with his defense by stating that as .plaintiff planned .to purchase the business later, his name alone was used in the documents to the State. The trial judge was not impressed by the explanation. It would serve no useful purpose to further detail the testimony or the recital in certain income tax returns. Notwithstanding some testimony or deductions therefrom in defendant’s favor, the testimony preponderates in plaintiff’s favor. The only questions raised on appeal are the claims that the linaings of the judge were against the great and overwhelming weight of the evidence and that the evidence did not prove a partnership as claimed. We find no merit in either of these claims.
Plaintiff has not cross-appealed. He, however, contends in his brief that the trial court erred in finding that he still owed $3,000 to the defendant. He claims that the undistributed profits due him from 1939 to 1943 were more than sufficient to have paid the $3,000 as well as an additional amount. Even if the claim has any merit, we find none in the present record. Plaintiff waited over 6 years before asserting his claim. It comes too late for further consideration.
Plaintiff devotes considerable space in his brief to show that if the property was purchased by the partners as partnership property and plaintiff paid part of the consideration, it became partnership property and that the partner in whose name the title was placed is trustee for the partners. Williams v. Shelden, 61 Mich 311; Murray v. Keeley Institute of Western Michigan, 190 Mich 295. As defendant-does not deny this statement of the law, it requires no further consideration.
The sole question of law that appellants raise, as applied to the facts, is that the photo static copies of records of the sales tax and use tax division of the Michigan department of revenue should have been excluded as confidential communications under CL 1948, § 205.70, as amended by PA 1949, No 272 (Stat Arm 1950 Rev § 7.541), part of which provides that:
“Unless in accordance with, a judicial order, or as shall be required in proper administration of this act, no member of the department, or agent or employee thereof, or former member, agent or employee, shall divulge any facts or information obtained in connection with the administration of this act.”
The exhibits were introduced in response to a subpoena dieces tecum. The only objection made at the hearing was that the exhibits were irrelevant, incompetent and immaterial to prove a partnership. The new objection, now raised for the first time, even if it had any merit, comes too late to require further discussion.
The decree of the trial court is affirmed, with costs to plaintiff.
Reid, C. J., and Boyles, North, Dethmers, Carr, Btjshnell, and Sharpe, JJ., concurred. | [
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Reid, C. J.
Each of the plaintiffs instituted suit separately against the Great Lakes Greyhound Lines, Inc. (hereinafter called the bus line), and Edward W. Mohr, Jr., jointly and severally.. The 3 suits were by consent consolidated on the trial and again on appeal.
Plaintiffs were passengers on a bus of the defendant bus line, being driven northeasterly on Gratiot avenue toward Mt. Clemens, at about 11 p.m. on May 5, 1947. Plaintiffs claim that the driver of the bus was negligent in stopping the bus too suddenly, thus pitching plaintiffs forward and causing each plaintiff personal injuries.
Plaintiffs further claim defendant Mohr was driving alongside of the bus for about 2 miles while-endeavoring to get the attention of the bus driver and cause the bus driver to stop the bus so that a passenger in Mohr’s automobile could board the bus, and failing to accomplish that purpose, on nearing the intersection of Quinn road and Gratiot avenue, that defendant Mohr “cut in” ahead' of the bus for the purpose of compelling the bus driver to stop the bus.
The trial court, after lengthy deliberation on the part of the jury, directed a verdict in favor of defendant bus line and declared a mistrial as to defendant Mohr. All 3 plaintiffs took an appeal.
Between 1 and 2 feet of distance separated the bus and Mohr’s automobile when the bus came to a stop.
Among other things, the bus driver testified that if he had not stopped the bus suddenly, it would have collided with Mohr’s car.
Plaintiffs claim that there is testimony that would warrant a finding by the jury that the bus driver came to a stop, at the place where he did stop, because that was the regular stop for the bus and there were patrons of the bus line waiting there to board the bus, and because if he had proceeded further, the bus would have stopped in the intersection of Quinn road and Gratiot, and plaintiffs seek on this appeal to draw an inference of negligence on the part of the driver of the bus in not making a slow deceleration for a regular stop. Such claim is contrary to the recitals of plaintiffs’ declarations, which recite that the sudden stop .was caused by Mohr’s “cutting in” and not merely a delayed determination to stop at the Quinn road intersection. Plaintiffs are bound by their declarations.
The defendant bus line claims that Mohr’s “cutting-in” was the cause of the sudden stop.
The court was correct in holding that under the testimony recited in this record, the sudden stop was made necessary by defendant Mohr’s “cutting in”' and such stop, under the circumstances as disclosed by the testimony, was not negligent, for which reason we affirm the order dismissing the case as to defendant bus line. See Ottinqer v. Detroit United Railway, 166 Mich 106 (34 LRA NS 225, 3 NCCA 323, Ann Cas 1912D 578). Great and perhaps fatal injuries could have been caused but for the sudden stop. The bus driver was confronted with a sudden emergency through no fault of his own.
Plaintiffs further claim error in the substance and form of directing the verdict as to defendant bus line.
The court, in the presence of all 12 jurors, in disposing of a motion for a directed verdict at the close of plaintiffs’ cases, announced his ruling as to the defendant bus line, “It is my duty to direct you, and I will direct you when the case is finished, to find a verdict in favor of - the defendant Great Lakes Greyhound Lines, Incorporated.” Defendant Mohr then put in his proofs (omitted from the record) and the court charged the jury, and the jury retired to ■deliberate on their verdict. On Friday, September 30, 1949, at 2 p.m., the- jury returned to the courtroom, answered the roll-call and retired for further -deliberations and afterward it was announced they were excused until Monday at lO.a.m., whereupon the following proceedings took place:
“Juror No 10 (Marylyn Klein): I have an objection also. It is the holiday and I would prefer to come back on Tuesday, but if there is no other course—
“The Court: All of these jurors, all of you, have "been here and you have finished your term at 12:30 and we are holding you over as a hold-over jury. Now, I can’t excuse one of the jurors without the consent of both attorneys, Mr. Willans and the other side, and he is not here, as you understand. Now, you see the complications?
“Juror No 10: Yes.
“The Court: I think you ought to appear here and finish out your term, Monday morning.
“All right, excused until Monday.”
On Monday, October 3, 1949, juror Marylyn Klein was absent because that day was Yom Kippur, a Jewish holiday, and she declined to serve. She was excused, a verdict for defendant bus line was directed in the presence of the remaining 11 jurors, and a mistrial was declared as to defendant Mohr.
Plaintiff claims the religious scruples of juror Klein were disregarded, in violation of State and Federal Constitutions. We consider her rights were not invaded. When the full nature of her objection to service was made known to the court, the court excused her; she was not required to come into court to serve against her objection.
The court had authority to enter upon the record a verdict in the absence of one or all 12 jurors after having announced such direction in the presence of all 12 jurors. We are not ruling as to what the effect would have been 'if the court had not announced the direction in the presence of all 12 jurors. For comments on the function of a jury as to a directed verdict, see Johnston v. Cornelius, 193 Mich 115, in which case we say at page 126,
“If the court had the right to direct the verdict and did direct it, the jury had no duty to perform in the matter.”
No error was committed by the trial court.
No appeal was taken from the order of the circuit court declaring a mistrial as to defendant Mohr. The judgment in favor of defendant bus line is affirmed, with costs to defendant bus line.
Boyles, North, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred. | [
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Sharpe, J.
This is a suit for specific performance of a claimed oral contract to convey real estate or in the alternative a money decree for improvements made on the land.
By stipulation of counsel for both parties, it was agreed that the court, in the event it should determine no parole contract existed, might consider whether or not plaintiff’s proofs were sufficient to establish an implied contract to pay for the improvements made to the - premises.
Plaintiff and wife were residents of Jackson, Michigan, and came to Lansing and entered into some arrangements with Albert. E. Bambrick for the construction of a home which was later to be sold and the profits, if any, were to be equally divided between plaintiff and Albert. E. Bambrick. It also appears that subsequently other Arrangements were made whereby a house was to be built and occupied by all 3 parties. At the time these arrangements were entered into Albert E. Bambrick was of advanced years and nearly blind. He died, in September, 1948.
It is the claim of plaintiff that he was induced to move to Lansing in 1945 and lived in the home of Albert E. Bambrick; that Albert E. Bambrick owned a lot in the city of Lansing upon which the parties agreed to build a house; that Albert E. Bambrick would furnish the finances and plaintiff would look after the construction of the house; that while the house was in the process of construction on or about September 20, 1946, the parties modified their original agreement and provided plaintiff , would use his own funds to complete the home and Albert E. Bambrick would be repaid all sums of money that he had in said home; and upon the payment of such money Albert E. Bambrick agreed to deed said property to plaintiff; that said home was completed at a cost to plaintiff of $7,500; that Albert E. Bambrick had invested the sum of $2,300 in said home; that although often requested to execute the deed to the property, Bambrick never did so; and that upon his' death his son and daughter take the position that plaintiff has no money in said property and served notice on plaintiff to vacate said property.
It is the claim of defendants that Albert E. Bambrick did not induce plaintiff to move to Lansing and they assert that the construction of the dwelling was commenced by Albert E. Bambrick as his sole and private enterprise and for his sole profit; that the entire cost of constructing the dwelling was borne by Albert E. Bambrick; and that plaintiff has no interest in said dwelling. Defendants filed a cross bill in which they asked to be restored to possession of the dwelling; that the court determine the adequate rental value of said premises from the date of decedent’s death; and that they be granted a decree for such rental value of the premises.
. The cause came on for trial and subsequently the trial court entered a decree denying specific performance, but granted plaintiff the sum of $5,000 for the reasonable value of the improvements made to the property.
The trial court filed an opinion from which we quote:
“From an analysis of the testimony it is clear that the agreement as originally entered into was abandoned and a new one entered into. It also seems clear from the testimony that by the terms of. this latter agreement the plaintiff and his wife were to eventually have the new house as their own and that Mr. Bambrick, the decedent, was to be paid by them what he had in the property. However, it is not certain and clear from the testimony that the minds of the parties ever met upon the value of Mr. Barn-brick’s interest or when he was to be paid. Plaintiff has testified that the value is $2,300, but the decedent owned the lot upon which the house was built, and the court does not understand from the testimony that the lot was included in the $2,300 figure. The testimony to the effect that this amount was a loan to plaintiff indicates that the value of the lot was not included therein. Thus it appears to the court, as before stated, that the minds of the parties never met upon a precise amount. This court has no authority to set the value of the lot, and therefore, for that reason, if for no other, is unable to decree specific performance. See Rodstrom v. Strum, 302 Mich 609.
“This court by virtue of its having assumed jurisdiction, is of the opinion that it may retain it for the purpose of determining on an equitable basis the amount, if any, to which the plaintiff is entitled for the improvement and the amount, if any, for which the defendants are entitled for rent. If the plaintiff put money and labor into the erection of the house he is entitled to reimbursement therefor. The fact that the decedent stood by while the house was being built would estop the defendants from taking any other position.
“The difficulty here lies in determining what the plaintiff put in. It is clear and undisputed that he put in a considerable amount of labor, but the value thereof is not certain. After having seen and heard him testify and after considering his conduct in connection with the disclosure of the dependent's assets and the manner in which they had been handled by him and the kindness and consideration which they apparently had shown the decedent, the plaintiff’s testimony becomes quité • convincing. However, there are other circumstances shown which tend to cast some doubt upon whether all of the funds which went through plaintiff’s checking account and into the house were his.
“As the court sees this case in the light of all the testimony and circumstances, it does not appear that the value of the improvements which may have been contributed by the plaintiff or the amount of money he may have put therein is susceptible of exact mathematical calculation. Rather it appears that this is a situation in which the court must use its judgment and thereby determine a figure which to it seems fair and reasonable under all the facts and circumstances. Thus in line with that idea and after having considered the matter of rent, the court feels that plaintiff should receive the sum of $5,000 and be permitted to remain in the house rent free for 30 days after receipt of the above mentioned sum.”
Plaintiff appeals and urges that full performance having been given him which was acquiesced in and encouraged by decedent, plaintiff is entitled to - specific performance of the alleged oral contract.
In Steketee v. Steketee, 317 Mich 100, 105, we had occasion to announce a rule governing the granting of specific performance of an oral agreement. We there said:
“In order that courts may specifically enforce an oral agreement to convey property, plaintiff must establish by clear, statisfactorv and convincing proof the terms of such agreement.”
In Daugherty v. Poppen, 316 Mich 430, we said:
“The burden of proof was on plaintiff; to establish by clear and satisfactory evidence, first, that the contract was made as claimed by him, and, second, that there were such acts of performance on his part, under the contract, as fairly entitled him to the remedy of specific performance.”
In the case at bar it is undisputed that decedent was the owner of the lot upon which the dwelling was erected. It is also undisputed that plaintiff and decedent entered into some agreement relative to the erection of the dwelling whereby decedent was to advance certain moneys and plaintiff was to supervise and render some labor in its erection; and that later this agreement was modified to the extent that plaintiff was to advance his money to the completion of the house. The trial court found that the minds of the parties never met upon the value of decedent’s interest or when it was to be paid. In our examination of the record we find conflicting testimony upon this issue.
In McDonald v. Scheifler, 323 Mich 117, 125, we said:
“We have repeatedly said that the trial judge who sees and hears the parties and their witnesses is ordinarily in a better position to determine the credibility of, and the weight to b. accorded, their testimony than we who read the record and do not see the witnesses, but in chancery cases we are not relieved of the responsibility of reviewing all the evidence and coming to our own conclusion as to what should be done in each cause. In doing so we are not unmindful that the testimony of witnesses must be viewed with greát caution, scrutinized closely, and weighed and tested in the light of all circumstances disclosed by the record.”
Our examination of the record convinces us that plaintiff did not establish by clear and convincing-proof the terms of the agreement .and in that respect we affirm the finding of the trial court.
Plaintiff also urges that the trial court failed to apply a legal standard in determining- the value of the improvements made on the lot. It appears that a stipulation was entered into to the effect that if specific performance was denied, the court could determine the value of the improvements. This is a chancery case and the court having- jurisdiction of the parties and the issues involved may retain it in order to determine the equitable value of the improvements made by plaintiff. The court determined that plaintiff was entitled to the sum of $5,000 for the improvements made.
In Acker v. Weadel, 236 Mich 374, 381, we said:
“The plaintiffs having invoked equity against those in possession of the land opened the way for the latter to have their rights determined upon equitable principles, under which compensation may be awarded for improvements mistakenly made upon the lands in good faith and enhancing its value to the owner’s substantial benefit. That, however, is not to be measured by the cost of such claimed improvements but by the resulting increased value of the property,”
Plaintiff urges that the house enhanced the value of the land by $12,750 and that he owed decedent’s estate the sum of $2,300, leaving the value of improvements in the amount of $10,450 for which he claims judgment. It was stipulated that checks aggregating $6,571.02 were drawn by plaintiff against a checking account standing in the name of plaintiff in the American State Bank of Lansing over a period commencing May 7, 1946, and ending January 31, 1947, and that the checks were .for payments of materials and services rendered by third parties in the construction of the dwelling house. We áre in accord with the trial court in his finding of fact that the value of the improvement or the amount of money contributed by plaintiff is not susceptible of exact mathematical calculation. There is a lack of testimony as to the number of hours of labor put into the building of the home. Nor is there an accurate account of the amount of money expended from plaintiff’s personal resources. In our opinion the trial court arrived at a fairly accurate estimate in determining that plaintiff’s investment was the amount of $5,000. We have repeatedly held that when the testimony is conflicting, the findings of the trial court will be upheld in the absence of a definite showing that a contrary result should have been reached. See Lau v. Lau, 304 Mich 218. In our opinion the record is not convincing that a different result should have been arrived at.
The decree is affirmed, with costs to defendants.
Reid, C. J., and Boyles, North, Dethmers, Btjtzel, Carr, and Bushnell, JJ., concurred. | [
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] |
Btxshnell, J.
Plaintiff Moe Hammons agrees with the statement of facts of the workmen’s compensation commission.
“Defendant’s business is, primarily, that of growing apples and cherries, a portion of which are sold on the premises. The plaintiff’s job involved picking apples and placing them in crates, and it is conceded that while so engaged he suffered an injury to his left leg on October 15,1949.”
Defendant Herman Franzblau, doing business as Geddes Fruit Farm, would add to this statement that the commission also found, as a matter of fact, that appellee’s “enterprise required fertilizing and tilling of the soil and -attention to' the growing produce thereof.”
The parties agree that the question for decision is:
“Were the plaintiff and defendant subject to the workmen’s compensation act?”
The commission, held that plaintiff was a “farm laborer,” and that since his employer “had not assumed liability for compensation and benefits imposed by this act through the purchase and acceptance of a valid compensation insurance policy on or before plaintiff’s injury, the defendant was not subject to the workmen’s compensation law on Octo ber 15, 1949.” The award of the deputy commissioner denying compensation was affirmed.
In 1937, part 7, relating to occupational diseases, was added to the workmen’s compensation law. Section 13 thereof (CL 1948, § 417.13 [Stat Ann § 17.230' (2)]) contains tills language:
“This act shall not apply to any employer or employee in agricultural industry or in the nursery or orchard business, or to any labor incidental to farming, including repairs on buildings and other property in connection therewith.”
When the act became compulsory in 1943, section 2a was added to part 1 (CL 1948, § 411.2a, as amended by PA 1949, No 238 [Stat Ann 1950 Rev §17.142(1)']):
“This act excepting section 1 hereof shall not apply to employers who regularly employ less than 4 employees at 1 time - nor to domestic servants or farm laborers.”
Subsequent language provides how such employers may come under the act if they desire.
The primary question for decision is the meaning of the words “farm laborer” as used in section 2a of part 1.
Those Michigan cases which deal with a similar, question are of little aid in our determination here because of their wholly different fact'situations. See Shafer v. Parke, Davis & Co., 192 Mich 577; Roush v. Heffelbower, 225 Mich 664 (35 ALR 196); Carroll v. General Necessities Corporation, 233 Mich 541; and Harper v. Lowe, 272 Mich 331. See, also, cases annotated in 13 ALR 955 and 140 ALR 401.
. It is well established that words of a statute are to be g”iven their ordinary meaning unless it appears from context or otherwise in the statute that a different sense was intended. People v. Labbe, 202 Mich 513, and Lucier v. Pansy Hosiery Co., Inc., 286 Mich 585. There is nothing in this statute to indicate that the legislature intended that section 13 of part 7 should have any limiting effect on the normal meaning of the words “farm laborers” in section 2a, part 1.
Horovitz says in “Injury and Death Under Workmen’s Compensation Laws” (1944), at page 219: A' farm “implies some tillage of the soil under natural conditions.” It is common knowledge that in this fruit-producing State of ours it is impossible to operate a fruit orchard without tilling the soil. See Twin Falls Bank & Trust Co. v. Weinberg, 44 Idaho 332 (257 P 31, 54 ALR 1527). We agree with the commissions conclusion on its review in this respect.
Since the picking of apples constitutes the harvesting of a crop produced from the soil, it is farm labor in the ordinary sense of the word.
The order of the commission is affirmed, with costs to appellee.
Reid, C. J., and Boyles, North, Dethmers, Carr, and Sharpe, JJ., concurred. Butzel, J., did not sit. | [
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North, J.
The 317 defendant-claimants, whose-rights to unemployment compensation aré herein involved, were full-time hourly employees of the General Motors Corporation in its plants located in the-Saginaw-Bay City area. The corporation’s 1948 annual inventory, pursuant to posted notices, was taken during the week ending December 25th. During that week there ivas one day’s employment for 77 of these-claimants, but no employment for 240 of them. All of claimants returned to work on Monday, December 27th, when normal production and employment were resumed. On December 30,1948, payday, each claimant was paid his regular wages for 8 hours straight time as and for his Christmas “holiday pay,” pursuant to sections 138 to 143, inclusive, of an agreement dated May 29, 1948, between the corporation and the UAW-CIO, as bargaining agent for claimants. Section 86 of that agreement provided for double-time payment to employees who work on Christmas days. Bight to full unemployment compensation for the week of the inventory layoff is sought by 240 of the claimants, but resisted by the employer corporation. The sole question presented is:
“Did claimants earn remuneration with respect to the week ending December 25,1948, within the meaning of section 27 (c-1) of the Michigan unemployment compensation act by virtue of having received ‘holiday pay’ pursuant to sections 138 through 143 of the agreement between General Motors Corporation and the UAW-CIO dated May 29, 1948.”
The referee and the appeal board held that with respect to the week ending December 25, 1948, these claimants earnéd no remuneration within the meaning of the statutory provisions, notwithstanding they received “holiday pay” for December 25th, included in the pay each received December 30, 1948; such payment being in accord with the agreement of May 29, 1948, entered into between the corporation and the UAW-CIO as claimants’ bargaining agent.
In accord with statutory procedure the controversy finally reached the circuit court of Ingham county, which reversed the decision of the appeal board of the Michigan unemployment compensation commission. The circuit court held that by receipt of “holiday pay” for December 25, 1948, the claimants herein did receive to that'extent remuneration ■during the week ending December 25,1948. We quote the following from the opinion of the circuit judge:
“Was the decision of the appeal board contrary to law in holding that claimants did not earn remuneration with respect to the week ending December .25, 1948, by virtue of receiving holiday pay for December 25, 1948, pursuant to the holiday pay section of the 1948 agreement. * * *
“First, it seems to this court that the remuneration the claimants received from the Corporation was for meeting the eligibility rules under the contract, which in part at least require personal services and hence it amounts to remuneration within the * '* * (statutory) definition.
“Next then we come to the query, When did the ■claimants earn the remuneration. While they performed the services to earn it in part by working the last scheduled work day before the holiday and the first .scheduled work day after the holiday and at other times and in other ways, nevertheless by agreement they have designated that it was earned for December 25th. The parties are bound by the agreement, which is clear and unambiguous in this respect.
“In this court’s opinion * * * this case is confined to and controlled by the contract we have before us, and it in effect says that the remuneration is for Christmas day.”
In reaching the foregoing conclusion the circuit judge noted the following statutory provisions embodied in the unemployment compensation act, CL 1948, § 421.1 et seq. (Stat Ann 1947 Cum Supp § 17.-■501 et seq.):
“Sec. 27. (c — 1) * * * Each eligible individual shall be paid his full weekly benefit rate with respect to the week in which he has earned no remuneration or remuneration equal to less than i his primary weekly benefit rate, or shall be paid £ his full weekly benefit rate with respect to the week in which he has. earned remuneration equal to at least \ but less than his primary weekly benefit rate.” CL 1948, § 421.27 (Stat Ann 1947 Cum Supp § 17.529).
“Sec. 48a. * * * An individual shall be deemed ‘unemployed’ with respect to any week during which he performs no services and with respect to which no remuneration is payable to him, or with respect to-any week of less than full-time work if the remuneration payable to him is less than his primary weekly benefit rate.” CL 1948, § 421.48a (Stat Ann 1947 Cum Supp § 17.552 [1]).
“Sec. 44. ‘Remuneration’ means all compensation paid for personal services, including commissions- and bonuses and the cash value of all compensation payable in any medium other than cash.” CL 1948, § 421.44 (Stat Ann 1947 Cum Supp § 17.548).
As was held by the circuit judge, the agreement of May, 1948, is a factor which must be considered in reaching decision in the instant ease. In part and insofar as is pertinent to decision herein, this agreement between the corporation and certain of its employees, including claimants herein, acting through their bargaining agent, ILAW-CIO, under the heading “holiday pay” provides (emphasis supplied):
“Hereafter, hourly rated employees shall be paid for * * * Christmas day holidays (and certain other holidays) providing they meet all of the following eligibility rules, unless otherwise provided herein (which eligibility as before noted is admitted as to these claimants). * * *
“Employees with the necessary seniority who have been íídd off in a reduction of force, or who have gone on sick leave during the work week prior to or during the week in which the holiday falls shall receive pay for such holiday. * * *
“Employees eligible under these provisions shall receive eight hours’ pay at their regular straight time hourly rate (subject to certain exceptions and provisions not here material). * * *
“Employees whose work is in necessary continuous 7-day operations as covered by paragraph (87) of the national agreement shall receive holiday pay in the event the holiday falls on one of their regularly scheduled days off, and they meet the other eligibility requirements of this procedure for paid holiday time.
“In applying this procedure, when any of the above-enumerated holidays fall on Sunday and the day following is observed as the holiday by the State or Federal government, it shall be paid as such holiday.”
Decision herein will turn upon whether the “holiday pay” provided for in the May, 1948, agreement and received by claimants, constitutes “remuneration” earned for services with respect to the week ending December 25,1948. The claimant-employees’ contention is that, notwithstanding they received “holiday pay” for Christmas day, 1948, nonetheless during that week they (excepting the 77 who had one day’s employment) earned no compensation for personal services; and that under section 27(c-l) of the statute above quoted each of these claimants is entitled to be paid “his full weekly benefit rate” for the week ending December 25, 1948. In making this contention appellant and claimants take the position that the pay received by the claimants for the 1948 Christmas day was not earned “remuneration” or wages which accrued to the claimants during the particular week in question, and that such pay should be excluded in determining unemployment benefits due the respective claimants. If, as appellant and defendant-claimants contend, “holiday pay” received by the claimants was not “remuneration” earned with respect to the week in question, the 77 employees who worked 1 day are entitled to | the full weekly benefit rate in determining their right to unemployment compensation, and the 240 claimants are entitled to the full weekly benefit rate. But on the contrary, if such “holiday pay” was “remuneration” for services of claimants with respect to said week, the 240 defendant-claimants, under section 27 (c-1), above quoted, are entitled to only J of the “full weekly benefit rate” provided in the unemployment compensation act; and the other 77 claimants who worked one day during said week and received pay therefor and also the “holiday pay” would not, under the cited section, be qualified to receive any unemployment compensation.
We are in accord with the holding of the circuit judge to the effect that “holiday pay” received by claimants under their contract pertaining to their' employment must be held to be “remuneration” (part of their earnings or wages) for services rendered the employer; and that such “remuneration” was with respect to the employment of claimants during the week ending December 25, 1948.
Payment of the holiday money received by the employees under their contract is provided for under the heading “holiday pay,” and uniformly designated in the agreement as “pay.” Pay for what? Obviously as an “emolument” or compensation for the duties and relation the employees assumed incident to their employment. Under the circumstances of' the instant case, the employees are not only required to perform actual personal services on regular work days, but they must hold themselves in readiness to report for work not only on the days of regular employment but also on holidays on notice by their employer.
And further, under the contract involved in the instant case, to be qualified for “holiday pay” the employees, if work were available, had to be ready, to work both on the work day next before and the work day next after the holiday. Hence, eligibility to unemployment compensation required some service “with respect to the week” of the holiday as provided in the May, 1948, contract upon which claimants rely. This conclusion is justified by the following provision of eligibility included in the contract:
“The employee must have worked the last scheduled work day prior to and the next scheduled work day after such holiday within the employee’s scheduled work week.”
If prior to the day next preceding the holiday an employee’s death occurred, or if he were lawfully severed from his employment, obviously “holiday pay” would not be payable to him or his estate. Hence it seems quite -clear that money, received as “holiday pay” is an emolument received by the employee incident to his status as such during the week of the particular holiday for which pay is received.
We do not think, as appellant and claimants assert, that it is essential that actual personal services should be rendered by the employee to justify the conclusion that “holiday pay” is an emolument earned during the holiday week. As used in the contract the expression “pay” does not under all circumstances imply that the money so received by an employee is for personal services actually rendered. For example, under the heading “call-in pay” the contract provides: “Any employee called to work or permitted to come to work without having been properly notified that there will be no work, shall receive a minimum of 4 hours’ pay at the regular hourly rate.”
The precise issue herein presented has not previously been passed upon by this Court; but at least somewhat in the same field of the. law we note the following decisions from other jurisdictions. While the issue adjudicated by the United States supreme court in Social Security Board v. Nierotko, 327 US 358 (66 S Ct 637, 90 L ed 718, 162 ALR 1445), is not identical with that in the instant case, and was governed by Federal law, it definitely has to do with a related phase of the law and we deem that decision in harmony with our conclusion herein. The Federal case involved the question of whether the pay an employee would have earned during the period he was unlawfully severed by his employer from his employment, and which as “back pay” the employer was subsequently required to pay the employee, who during the period involved rendered no actual personal services, should be held to be “wages.” In holding such “back pay” was in law “wages,” in its opinion the United States supreme court said:
“An employee under the social security act is not specifically defined but the individual to whom the act’s benefits are to be paid is one receiving ‘wages’ for ‘employment’ in accordance with section 210(c) and employment is service by an ‘employee’ to an ‘employer.’ * •#
“While the legislative history of the social security act and its amendments or the language of the enactments themselves does not specifically deal with whether or not ‘back pay’ under the labor act is to be treated as wages under the social security act, we think it plain that an individual, who is an employee under the labor act and whq receives ‘back pay’ for a period of time during which he was wrongfully separated from his job, is entitled to have that award of back pay treated as wages under the social security act definitions which define wages as ‘remuneration for employment’ and employment as ‘any service * * * performed * * * by an employee for his employer. * * * Surely the ‘back pay’ is ‘remuneration.’ * * *
“We think that ‘service’ as used by Congress in this definitive phrase means not only work actually done but the entire employer-employee relationship for which compensation is paid to the employee by the employer.”
'A footnote here appended to the court’s opinion reads: “For example the social security board’s regulations No. 3 in considering ‘wages’ treats vacation allowances as wages. 26 CFR, 1940 Supp, 402.227 (b).” In the United States suéneme court opinion from which wé have just above quoted, the court affirmed the decision in Nierotko v. Social Security Board (CCA), 149 F2d 273, in which the circuit court of appeals said:
“Wages are not,- however, always earned by the expenditure of physical or mental effort on the part of the employee'. This the board recognizes when it includes within the term ‘wages,’ vacation pay, sick and disability pay, pay while on State national guard duty, retainer fees to consultants, et cetera. * * Instances may be multiplied where wages are paid not for current effort but in consideration of an employer’s command of the employee’s time, and wages are no less earned when an employee ■holds himself in readiness to perform, than when he .actually performs.”
In a concurring opinion in the United States supreme court case from which we have above quoted, Mr. Justice.Frankfurter said:
“The decisions of this court leave no doubt that a man’s.time may, as a matter of law, be in the service of another though he be inactive. E. g., Armour & Co. v. Wantock, 323 US 126 (65 S Ct 165, 89 L ed 118). This is, practically speaking, the ordinary situation of employment in a ‘stand-by’ capacity. United States v. Local 807, 315 US 521, 535 (62 S Ct 642, 86 L ed 1004). The basis of a back-pay order * * * is. precisely that. * * * Since such compensation is in fact paid as wages, it is a plain dis regard of the law * * * not to include such payments among the employees’ wages.”
In re B. H. Gladding Co., 120 F 709, the allowance of a claim in a bankruptcy proceedings was under consideration by the court. Section 64b of the bankruptcy act gave priority to “ ‘wages due to workmen * * # which have been earned within 3 months before the date of the commencement of .(bankruptcy) proceedings.’” The court held that 2-weeks’ vacation pay to an employee was wages earned during the period covered by the vacation and within the priority. The court said:
“To attempt distinctions between wages due which are earned and wages due which are not earned, by an inquiry into the amount of work done by the wage earner, would be entirely impractical. If we disallow claims for a week’s vacation, we must also disallow claims for half days when stores are closed, and for days and hours when there is nothing to do. Wages are ‘earned,’ * * * so long as a bona fide contract of hiring exists, and the clerk or servant continues in the master’s employment and does all that he is required to do. * * * By continuing the relation of employer and employee during a dull season, the employer holds his working force in readiness for the active season. The relation of thé employer and employed is as strictly a business relation as it is during the working season, and there is full legal consideration for the master’s promise to pay wages during this period.”
In arriving at our conclusion herein we have been mindful of the reasons assigned in the briefs in behalf of appellant and defendant-claimants in support of the contention that receipt of “holiday pay” by the employees did not constitute “remuneration” to the employees with respect to the week ending December 25, 1948. Among such reasons it is urged that since “holiday pay” is treated in the May, 1948, agreement under a separate heading and wholly apart from the provisions in the contract headed “wages,” it follows that “holiday pay” is not “wages” or “remuneration” for services. At most this is only an inference based .upon the manner in which the very numerous provisions of the May, 1948, agreement are embodied therein. To the same extent and in a similar manner other provisions of the contract which are akin to compensation received by the employees are treated wholly and apart from the heading of “wages.” This is true, for example, of pay received by the employees for overtime, and for pay received by them for services rendered on holidays, but it could scarcely be said that such compensation to the employee is not “wages” merely because it is not included under the heading “wages” in the contract. "We are not in accord with the contention, just above noted, of appellant and claimant-employees. Instead, It seems obvious that the provisions'- for “holiday pay” in the agreement are under a separate heading for orderliness and clarity of the provisions of the contract, which is very much in detail and covers over 90 pages of the closely-printed pamphlet inserted in the record.
Contrary to the various arguments presented by appellant and claimant-employees, which we have carefully considered, we are of the opinion that the circuit judge arrived at the right result. The judgment entered in the circuit court is affirmed, with costs to plaintiff.
Reid, C. J., and Boyles, Dethmers, Carr, Bushnell, and Sharpe, JJ., concurred.
Butjzel, J., did not sit.
CL 1948, §.421.27(e-1) (Stat Ann 1947 Cum Supp § 17.529 [c-1]).
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Btttzel, J.
Olga Sonenfeld (now Weber) obtained a divorce decree from ber husband Philip Sonenfeld on February 9,1939, on grounds of desertion. He did not contest the case. They are the parents of one child, Robert, born May 5, 1931. At a hearing the wife testified that she wanted nothing from her husband, that she was in business, and insisted that she could support both herself and the child. From the testimony it appears that the parties had agreed that Mrs. Sonenfeld would ask for no support. The court, however, properly decreed that Philip Sonenfeld pay $7 each week to the wife for the support of the minor child until May 5, 1948, when the child would attain the age of 17 years. Both parties remarried, the boy remaining at all times in the sole custody of his mother.
On October 5, 1950, 2 years and 5 months after the child had become 17, and more than 11 years after the divorce decree, contempt proceedings were instituted by the wife to compel the husband to pay the sum of $3,374 as accrued alimony for the support of the child. It was alleged that the husband had paid nothing under the decree. The husband petitioned for modification of the original decree so as to provide for a cancellation of the accrued alimony.
At the hearing in the contempt proceedings, the testimony was in conflict as to the events immediately following the divorce. The wife testified that she told the husband that she had been awarded alimony and asked him on 10 or 15 different occasions for money. She admitted, however, that she never asked him after 1940 and never instituted legal proceedings to compel him to pay. The husband never paid anything to the wife, although on rare occasions he gave a trifling sum to the boy. The husband testified that he was’not even informed- that his wife had received her divorce until 5 or 6 months after the fact when he was told hy mutual friends, and that .he was never asked for money by his wife.
While the trial, court did not pass on the question, it may have possibly felt that the wife was estopped from claiming the accrued alimony by her long inaction under our very recent decision of Chipman v. Chipman, 308 Mich 578, a case somewhat similar to the instant one. By her own admission the wife has not asked the husband for money for 10 years, never used the court process in an attempt to compel him to pay although the husband has worked at the same factory in Detroit for some 30 years, and the wife was at all times cognizant of his whereabouts. The son is self-supporting and there is no longer any necessity for the wife to support him. It seems probable, after so many years, that the husband was correct in claiming that it was the intention of the wife not to look to him for money to support the child. In the Chipman Case, supra, we said:
“Plaintiff certainly was dilatory in her efforts to collect the alimony from year to year. Her failure • for a period of nearly 15 years to use reasonable efforts to obtain payment through the means provided by law lends credence to defendant’s claim that she agreed not to collect it if he would agree not to visit the child. Apparently she elected to support the child herself rather than to compel defendant to contribute the decreed alimony for his support.”
See, also Barnaby v. Barnaby, 290 Mich 335.
The husband testified at the hearing on the order to show cause that he is now without property and is dependent upon his weekly earnings for livelihood, although this is supplemented to a certain extent by his present wife’s earnings.
However, the trial court held that the son was entitled to the arrears, saying that there was “no indication of any ground of estoppel which ought to operate as against the rights of the child.” The husband was adjudged guilty of contempt and was ordered to pay $10 each week through the office of the friend of the court. The friend of the court was appointed trustee for Robert Sonenfeld and was to turn over to him the accumulated payments when he reached the age of 21 years. Thereafter he was to receive the weekly payments as they were made. The petition for modification of the alimony provision of the divorce decree and for the cancellation of the accrued alimony was denied and this appeal taken. During the pendency of this appeal the husband has been.paying $10 each week into the office of the friend of the court.
Discussing the problem of back alimony in Renn v. Renn, 318 Mich 230, we said, at page 236:
“These payments on the arrears properly belong to the plaintiff (wife) inasmuch as defendant’s default in respect thereto necessitated plaintiff’s paying the cost of the child’s maintenance out of her own income.”
In Maslen v. Anderson, 163 Mich 477, we held:
“Our statutes give the court power to grant alimony to the wife for support of herself and minor children, and to give a lien against the property of the husband to secure the payment of same; but they do not give the court power to decree the payment of any sum to the children upon their reaching majority, or to create a lien to secure the payment thereof. In fact, our courts of chancery in divorce cases have no power to decree that any sum be paid direct to the children, even during their minority.”
As the child is not legally entitled to the accrued alimony,' the order of the court must be set aside.
Plaintiff has neither cross-appealed nor filed a brief in this Court.
A decree will be entered in this Court, reversing the order of the trial court and remanding the case in order that the payments now held by the friend of the court be returned to the defendant. No costs.
Reid, C. J., and Boyles, North, Dethmers, Carr, Bushnell, and Sharpe, JJ., concurred. | [
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Butzel, J.
The Metropolitan Funeral System Association, a Michigan corporation, and plaintiff herein, sought to enjoin David Forbes, insurance commissioner of the State of Michigan, and Stephen J. Roth, attorney general of the State of Michigan, from enforcing the provisions of PA 1949, No 257 (CL 1948, § 522.32a [Stat Ann 1949 Cum Supp §24.295 (1)]), this act being an amendment to part 3, ch 2 of the insurance code, CL 1948, § 501.1 el seq. (Stat Ann § 24.1 el seq.), on the grounds that the amendment violated the provisions of both the State and Federal Constitutions. From an order denying the relief sought, this appeal has been taken.
PA 1949, No 257, provides:
“(a) It shall be unlawful for any life or accident insurance company, corporation, or association licensed to do business in this State to own, manage, supervise, operate or maintain a mortuary or undertaking establishment, or to permit its officers, agents or employees to own or maintain any such funeral or undertaking establishment.
“(b) It shall be unlawful for any life insurance, sick or funeral benefit company, or any company, corporation or association engaged in a similar business to contract or agree with any funeral director, undertaker or mortuary to the effect that such funeral director, undertaker, or mortuary shall conduct the funeral of any person insured by such company, corporation or association.
“(c) It shall be unlawful for any funeral director, undertaker, or mortuary, or any agent, officer or employee thereof to be licensed as agent, solicitor or salesman for any life insurance company, corporation or association doing business in this State.
“(d) It shall be unlawful to designate any funeral establishment, funeral director or any person interested in or connected with any funeral establishment or director as the beneficiary in any policy of life or accident insurance whereby the said beneficiary shall, in return for all or part of the proceeds of such policy of insurance, furnish funeral services or merchandise in connection therewith.
“(e) It shall he unlawful for any life or accident, or sick or funeral benefit company, or any person, company, corporation or association, to offer or furnish goods or services or anything but money to its assureds or to his or her heirs, representatives, attorneys, relatives, associates or assigns in any connection with, or by way of encumbrance, assignment, payment, settlement, satisfaction, discharge or release of any insurance policy: Provided, That this subsection shall not prohibit any company, corporation or association from furnishing medical, surgical or hospital service.
“(f) Any person violating any of the provisions of this act shall he deemed guilty of a misdemeanor, and each violation thereof shall be a separate offense and upon conviction shall be punished by a fine not exceeding $1,000 or by imprisonment for not more than 6 months, or both such fine and imprisonment within the discretion of the courts.”
The plaintiff was organized in 1936 and after passing through various stages became a cooperative assessment insurance company as provided in CL 1948, § 523A.8 (Stat Ann 1949 Cum Supp §24.312 [18]). It has in force some 41,000 funeral benefit policies having a maturity value of over $10,000,000. They provide that on the death of the insured the association will furnish a funeral or pay the beneficiary, at his option, $250 in cash. These policies had been approved by the commissioner of insurance, and there is no question that they were valid prior to the passage of Act No 257, supra. If the act is constitutional, the plaintiff will be forced to sever all connections of every kind between the insurance and the mortuary businesses, the burial option in the policies will be outlawed and void, and plaintiff must pay $250 to the beneficiaries of the policyholders upon the death of the insured.
The policy issued by plaintiff sets forth in detail the various items and services to be furnished by plaintiff for a complete funeral and burial, without designating their quality. The policy is an “industrial” one, with a weekly premium provided for, and undoubtedly reaches people of low incomes who are inexperienced in business. The surviving beneficiary, with strained emotions caused by the very recent death in the family, is unable to tell whether the funeral services are worth $250 and he can easily be imposed upon to pay large additional amounts for a more elaborate funeral than provided for in the policy. Suffice it to say that the legislature in its discretion and in the exercise of its police power has condemned and forbidden the practice by Act No 257, supra. As was said in Daniel v. Family Security Life Insurance Company, 336 US 220 (69 S Ct 550, 93 L ed 632, 10 ALR2d 945):
“We cannot say that South Carolina is not entitled to call the funeral insurance business an evil. Nor can we say that the statute has no relation to the elimination of those evils. There our inquiry must stop.”
The plaintiff first claims that the act violates the provisions of article 5, § 21, of the Constitution of 1908, which provides:
“No law shall embrace more than one object, which shall be expressed in its title.”
The insurance code is entitled:
“An act to revise, consolidate and classify the laws of the State of Michigan relating to the insurance and surety business; to regulate the incorporation of domestic insurance and surety companies and associations and the admission of foreign companies'; to provide their rights, powers and immunities and to prescribe the conditions on which corporations organized or existing under this act may exercise their powers.”
It is argued that subsection (a) of Act No 257, supra, regulates the ownership and operation of mortuary and undertaking establishments, and subsection (b) restricts the rights of funeral directors, et cetera, to engage in the insurance business. Therefore it is claimed that the title to the act does not express its object, and that there are 2 objects embraced within a single law, i.e., the regulation of both the insurance and the mortuary businesses.
Notwithstanding the fact that any mortuary business in which plaintiff may be interested is indirectly affected, it is clear that Act No 257, supra, is merely a regulation of the insurance business and not of the mortuary business. The evil sought to be proscribed lies in the interplay of 2 essentially different businesses, and the opportunity presented to the insurance company and its agents by constant contacts and by the close relationship between the 2’establishments to overreach and improperly influence the beneficiaries of the deceased. The fact that mortuaries may be affected does not invalidate the act, nor was it necessary for the legislature to express this facet of the legislation in the title to the insurance code.
“Only the general object and not all the details and incidents of a statute need be indicated in the title.” (Citing cases.) People v. Sowall, 279 Mich 261.
In Regents of University of Michigan v. Pray, 264 Mich 693, we said:
“Being a codification, the statute necessarily embodies various and some\yhat diversified provisions of the drain law. But as against objections here raised, we do not find that the act violates article 5, § 21, of the Constitution, in that it embraces more than one object or because the title is deficient in that it is not sufficiently broad to cover the provisions of the act. Title to a codification statute can scarcely be expected to embody reference to every detail of the act. Such is not the constitutional requirement. If the title fairly apprises legislators and the public generally of the act as a whole, such title is sufficient. Vernor v. Secretary of State, 179 Mich 157 (Ann Cas 1915D 128). If the title is adequate, and the statute contains only that which is germane to its general purposes, it does not offend article 5, § 21, of the State Constitution.”
The title to the insurance code indicates that the code contains the laws which prescribe the conditions under which, insurance companies may operate. This is sufficiently broad to include the provisions of Public Act No 257, and we must conclude that article 5, § 21, has not been violated.
The plaintiff next claims that the amendment is unconstitutionally discriminative and denies the plaintiff equal protection of the laws in violation of the 14th amendment to United States Constitution, for section (a) prohibits a life or accident insurance company from being interested in a mortuary, et cetera, but permits sick or funeral benefit associations to do so; and section (c) makes it unlawful for a funeral director to be licensed as an agent of any life insurance company, but does not make it unlaw ful for a funeral director to represent a sick or funeral benefit company.'
“The fundamental rule of classification for the purpose of legislation is that it shall not be arbitrary; and it is not reviewable unless palpably arbitrary and unreasonable.” Baker v. State Land Office Board, 294 Mich 587, 602.
Plaintiff relies on People, ex rel. Attorney General, v. Sperry & Hutchinson Co., 197 Mich 532 (LRA1918A 797). In that case we-discussed the validity of an act prohibiting the use of trading stamps, which were given as a premium with retail sales. The act recited that the use of trading stamps was contrary to public policy. The act then exempted retail dealers from the prohibition, leaving it in effect only toward the intermediate companies which issued the stamps. "We felt that the classification was unreasonable, even if the prohibition of trading stamps was a valid exercise of the police power, because legislation which exempted retail dealers did nothing toward curing the evil, but was, rather, an indirect method of protecting one business class from another without justification.
However, there is ample justification for the present distinction. Life insurance companies are influenced by the profit motive and are apt to succumb to many of the evils that arise therefrom. Funeral benefit associations, however, are groups formed to help their own kind, and the danger of overreaching or exploitation is not present. CL 1948, § 450.132 (Stat Ann § 21.133). There was no attempt to show that the legislature had acted in an arbitrary or unreasonable manner, or that the distinction arises out of anything more than the inherent difference between life insurance companies and funeral benefit associations, nor would such an attempt have been successful. The statute is neither arbitrary nor un reasonable. See Daniel v. Family Security Life Insurance Company, supra; Lake Shore Coach Lines, Inc., v. Secretary of State, 327 Mich 146, and the extensive discussion contained therein.
Even if there were some strained grounds for plaintiff’s claim that the statute is not all embracing, that of itself would not affect the constitutionality of the act. As we said in Kelley v. Judge of Recorder’s Court of Detroit, 239 Mich 204, at page 215 (53 ALR 273) (quoting from Whitney v. California, 274 US 357 [47 S Ct 641, 71 L ed 1095]):
“A State may properly direct its legislation, against what it deems an existing evil without covering the whole field of possible abuses. * * * The statute must be presumed -to be aimed at an evil where experience shows it to be most felt, and to-be deemed by the legislature coextensive' with the practical need; and is not to be overthrown merely because other instances may be suggested to which also it might have been applied; that being a matter for the legislature to determine unless the case is very clear. # * * And it is not open to objection unless the classification is so lacking in any adequate or reasonable basis as to preclude the assumption that it was made in the exercise of the legislative-judgment and discretion.”
The plaintiff next contends that Act No 257 impairs the obligations of its contracts both with its insureds and with its employees; that vested rights are being destroyed; and that both the State and Federal Constitutions prohibit the impairment of the obligation of contract. Ramey v. Public, Service Commission, 296 Mich 449, is relied upon.
It has long been settled that all businesses are conducted subject to the dominant police power of the State, and that private contracts are also subject to the exercise of that power. As we said as early
as 1854 in the case of People v. Hawley, 3 Mich 330, 342:
“In the exercise of its police power a State has the full power to prohibit, under penalties, the exercise of any trade or employment which is found to be hazardous or injurious to its citizens and1 destructive to the best interests of society, without providing compensation to those upon whom the prohibition operates.
“The same principle applies to the position assumed by the defendant in reference to this contract.’ The law does not operate directly on the contract,- and is therefore not within the prohibitions of the Constitution of the United States, or of this State. Indeed, the defendant stands in a very singular attitude. . By similar means, any man might forestall legislation, and fasten upon any community the endurance of the presence of the most decidedly hazardous occupation for an indefinite number of years.”
In Keefe v. Oakland County Brain Commissioner, 306 Mich 503, we held that:
“The rule that existing laws are read into contracts, in order to ■ establish the obligations between the parties, is subject, however, to the well-known reservation of the essential attributes of the sovereign power, and this reservation must also be read into contracts as a postulate of the legal order. Baker v. State Land Office Board, 294 Mich 587. As stated by the Chief Justice in Home Building & Loan Association v. Blaisdell, 290 US 398, 437 (54 S Ct 231, 78 L ed 413, 88 ALR 1481):
“ ‘The economic interests of the State may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts.’ ”
See Home Building & Loan Association v. Blaisdell, 290 US 398 (54 S Ct 231, 78 L ed 413, 88 ALR 1481), for a scholarly discussion of the entire subject. See, also, 12 Am Jur, Constitutional Law, § 421, for an extensive citation of Federal and local authorities.
The legislature, acting within the limits of its power, has enacted legislation which will lead to the termination of the employment contracts between the' plaintiff and many of its employees. It has also modified the plaintiff’s insurance contracts to the extent that money alone can he paid to the beneficiaries thereunder. The legislature passed corrective legislation to prevent an evil. That many contracts were altered or made unenforceable is of no consequence for no constitutional inhibition has been violated.
Plaintiff claims that Act No 257, supra, is retroactive as affecting existing contracts. The State always has the right, in the lawful exercise of its police power, to proscribe contracts that have been declared illegal. Baker v. State Land Office Board, supra; P.eople v. Hawley, supra.
Plaintiff finally claims that the act imposes.criminal penalties without fault, for if an agent of the insurance’ company becomes associated with a mortuary, without the knowledge of the insurance company, the insurance company shall be guilty of a criminal offense. The statute does not so read. Permission is required. It is difficult to conceive how one can permit a violation of Act No 257, supra, so as to make himself criminally liable without direct or indirect knowledge of what he was doing.
The order of the lower court is affirmed. No costs, a public question being involved.
Reid, C. J., and Boyles, North, Dethmers, Carr, Bushnell, and Sharpe, JJ., concurred.
In footnote No 3 in tlie Daniel Case, supra, part of the deliberations of tlie South Carolina senate committee are referred to, and the evils sought to be abolished are denounced. The provisions of the South Carolina act are quite similar, in many respects, to Act No 257, supra. | [
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Reid, C. J.
Plaintiff filed a petition for a modification of a decree of divorce so as to require the estate of defendant to pay plaintiff a lump sum as representing property lost to plaintiff by defendant’s default. From dismissal of her petition, plaintiff appeals.
A final decree of divorce herein was entered, September 18, 1919. No alimony was awarded bnt the decree provided for lump sum awards of $1,500 cash, transfer of 2 life insurance policies, and that defendant invest $8,500 in a residence which would be income producing, to be placed in the joint names of plaintiff and the minor sons of the parties.
Defendant paid the $1,500 and transferred the 2 ■ policies and with the court’s subsequent approval expressed in á formal order, as a fulfilment of the requirements of the decree, defendant bought a 4-f amply fiat in Hamtramck for $13,000, with credit to plaintiff of $8,500, leaving her to pay a balance (secured by a mortgage) of $4,500. Plaintiff did not pay the mortgage nor the interest thereon. Defendant to avert foreclosure obligated himself on a new mortgage for $5,800 as refinancing. Plaintiff again failed to pay any instalments of principal and taxes and on September 27, 1927, the mortgage amounted to $6,148 and there were unpaid taxes of $800.
• On September 27, 1927, the plaintiff and defendant (now deceased) entered into a stipulation and agreement in writing, signed by the parties and witnessed by the same attorneys for plaintiff who ,now represent her, reciting among other things that the agreement was “for the purpose of finally settling all present and future claims for alimony or any other claims on the part of the first party [plaintiff herein].” Under the agreement, defendant was to make payments of principal of the mortgage on the premises in question while plaintiff wife was not in default in payment' of taxes and assessments. The mortgage became in default and on foreclosure the ■mortgagee obtained a sheriff’s deed, November 2, 1931. Plaintiff in her petition does not allege that she carried out her part of the agreement to pay ; taxes and assessments but alleges that through defendant’s default the foreclosure took place, al though apparently she had rentals from the 4-family flat for many years.
In 1941, suit was begun by plaintiff against defendant Albion Winogrocld, no declaration was filed, and the suit' was dismissed for want of prosécution in 1942, with which exception no proceeding after the sheriff’s deed was begun by plaintiff against defendant until the filing of the instant petition, October 5, 1948, which petition alleges that defendant died August 7, 1948, intestate, and claims the benefit of suggestion of record of his death and prays that the administratrix of his estate, his wife, and heirs-at-law, be admitted to defend against her petition..
The defendant’s ' widow (and administratrix) moved to. dismiss the petition (a) because the court was without jurisdiction in the matter, not having-reserved the alimony question for future determination; (b) because plaintiff’s claim is barred by the statute of limitations; and (c) because plaintiff is guilty of gross laches.
The original decree of divorce did not reserve alimony for future consideration but awarded lump sums to plaintiff, and the amended decree of September 27,1927, recognized and confirmed the agreement of the parties that the lump sums were in lieu of alimony.
“Where a gross or lump sum in money or in property is awarded as alimony to the wife, the power of the court is at an end and there then is no power to modify it later.” Kutchai v. Kutchai, 233 Mich 569, 575.
Several decisions of this Court may be cited to similar effect.
“A provision in a decree of divorce in lieu of dower or on a property settlement is final and cannot be modified or altered except for such cause as any other final decree may be reviewed.” Gmelin v. Gmelin (syllabus 3), 324 Mich 590.
We consider as laches the inaction of plaintiff for 16 years after loss of title to bring this petition, during which period the opposite party, the defendant in this case, died and the benefit of his testimony as to what the real situation was, is lost to his estate, particularly in view of. the fact that plaintiff failed to show compliance by her with the covenants in said agreement on her part required to be performed.
As applied to the instant case, laches may be said to be such neglect to assert a right as, taken in conjunction with lapse of time more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. See 30 CJS, § 112, p 521.
We agree with the finding of the trial court of want of jurisdiction to change the decree and also laches on the part of plaintiff. Its decree dismissing the petition is affirmed. The administratrix of the estate of Albion Winogrocki, deceased, having appeared and filed a brief, she is awarded costs.
Boyles, North, Dethmers, Butzel, and Carr, JJ., concurred. Bushnell and Sharpe, JJ., concurred' in the result. | [
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] |
Sharpe, J.
Plaintiff,- Henry Coffman; seeks a writ of mandamus to compel the defendant State board of examiners in optometry to permit him to take an examination in optometry.
Plaintiff shows that he is a* citizen of the United States, a- resident of'Wayne county,'Michigan, a graduate of Cass Technical High School of Detroit and has served 7 years in the army and navy of the United States. He also shows that he is a graduate of Monroe College of Optometry of Chicago, Illinois, under an accelerated course of instruction; that he passed the Illinois State Board in Optometry examination and was issued a certificate by the State of Illinois in 1947.
Plaintiff was denied an opportunity to take the Michigan examination in optometry for the reason that the Monroe College of Optometry did not teach a 2-year course in optometry and is not an accredited optometry college.
One of the sections of the statute in controversy here, CL 1948, § 338.253 (Stat Ann § 14.643), provides in part:
“After May first, 1925, the applicant shall be at least 21 jmars of age, of good moral character, who is a graduate of an optometric school or college rated as class A or class B by the international, association of,boards of examiners in optometry, teaching optometry and giving a course of at least 2 years of 6 months each.' The said board herein provided for is hereby empowered to fix from time to time, the number of hours of actual clinical instruction and recitation necessary to constitute a year’s attendance course at an optometric school or college, to comply with the requirements herein stated.” ■
By virtue'of CL 1948, § 338.251 (Stat Ann § 14.641), the board of examiners in optometry is authorized to make rules and regulations governing the practice of optometry and such other rules' as may be necessary to carry out the provisions of the act. By virtue of the above act the board adopted the following rule: .
“Applicants for examination must be 21 years of age, of good moral character and"must be possessed of an education equal to a 4 years’ high school course, Michigan standard, and be a graduate in optometry of a university, school or college approved by the Michigan State board of optometry, giving a course of at least 4 years.” Michigan Administrative Code 1944, p 477. . '
It also appears that the above rule was approved by the attorney general on .October 24,1944. It is to be noted that the rule adopted by the board raises the statutory minimum from 2 years of 6 months each to “a university, school or college approved by the Michigan State Board of Optometry, giving a course of at least 4. years.” It is conceded that the Monroe College of Optometry did not give a course of study in optometry of at least 4 years nor was it approved by the Michigan board of optometry.
On February 1, 1951, the attorney general ruled that the provision of CL 1948, §-388.253, requiring applicant for examination to have -graduated from optometric school or college rated as class A or class B by the international association of boards.of examiners in optometry is void as attempted delegation of legislative power to a nongovernmental body, but held that the excision of the ultra vires phrase would not affect the validity of the remainder of the act. Both plaintiff and defendants accept the ruling of the attorney general, at least the issue referred to in the opinion is not argued. The opinion states: '
“The legislative power of this State is vested in the legislature and in the people by Constitution 1908, art 5. The legislature is prohibited by the Constitution from delegating legislative powers to non-Michigan governmental agencies (Minor Walton Bean Company v. Unemployment Compensation Commission, 308 Mich 636, 654, 655; Colony Town Club v. Unemployment Compensation Commission, 301 Mich 107, 113-114) or to private individuals or associations (People, ex rel. Shumway, v. Bennett, 29 Mich 451 [18 Am Rep 107] ; Senate of Happy Home Clubs of America v. Alpena County Supervisors, 99 Mich 117 [23 LRA 144]; In re Petition of Hawkins to Vacate Alley, 244 Mich 681, 684; People v. Hall, 290 Mich 15, 29-32). * * *
“The excision of the ultra vires phrase will not affect the validity of the remainder of the act. See CL 1948, § 338.260 note (Stat Ann 1949 Cum Supp § 14.651); PA 1945, No 267, § 4 (Stat Ann 1949 Cum Supp §2.354); CL 1948, §8.5 (Stat Ann 1949 Cum Supp § 2.216); Evans Products Company v. State Board of Escheats, 307 Mich 506, 549.”
We are in accord with such opinion and hold that the legislature could not delegate to the international association of boards of examiners in optometry the rating of optometric schools or colleges as required under the act.
In view of our holding the statute would read: .
“The applicant shall be at least 21 years of age, of good moral character, who is a graduate of an optometric school or college teaching optometry and giving a course of at least 2 years of 6 months each. The said board herein provided for is hereby empowered to fix from time to time, the number of hours of actual clinical instruction and recitation necessary to constitute a year’s attendance course at an optometric school or college, to comply with the requirements herein stated.”
See CL 1948, § 8.5 (Stat Ann 1949 Cum Supp § 2.216); People v. McMurchy, 249 Mich 147.
There is no question but that the legislature, acting under- its police power, has the power and authority to prescribe minimum requirements for those who seek to’become optometrists. When the legis lature provided that an applicant shall be a graduate of an optometric school giving a course of at least 2 years of 6 months each, it did not intend a calendar 3^ear of 365 days, but that the school year should be at least 6 months devoted to the study of optometry. It is a well known fact that many students have accelerated the time required to complete a prescribed course by attending summer school and thus been able to graduate before the usual time of graduation.
The right to allow an administrative agency to adopt rules and regulations to effectuate the purposes of the legislation is well recognized. See United States v. Grimaud, 220 US 506 (31 S Ct 480, 55 L ed 563); People v. Soule, 238 Mich 130; and Sherlock v. Stuart, 96 Mich 193 (21 LRA 580).
In Salowitz v. State Board of Registration in Medicine, 285 Mich 214, we said:
“In exercising supervision over the health of several millions broad discretionary powers must necessarily be granted, and it is only when that discretion is abused that the courts will interfere.”
In Ranke v. Corporation & Securities Commission, 317 Mich 304, we quoted and adopted the following:
“In California Drive-In Restaurant Association v. Clark, 22 Cal2d 287, 302 (140 Pac2d 657, 147 ALR 1028), that court said:
“ ‘It is true that an administrative agency may not, under the guise of its rule-making power, abridge or enlarge its authority or exceed the powers given to it by the statute, the source of its power. * * * However, “the authority of an administrative board ¡pr officer, * * * to adopt'reasonable rules and ■regulations which are deemed necessary to the due land efficient exercise of the powers expressly granted cannot be questioned. This authority is implied Ifrom the power granted.” ’ ”
In 42 'Am Jur; § 26, p 316 et seq., it is stated:
“Administrative boards, commissions, and officers have no common-law powers. Their powers are limited by the statutes creating them to those conferred, expressly or by necessary or fair implication. * * * In determining whether a board or commission has a certain power, the authority given should be liberally construed in light of the purposes for which it was created and that which is incidentally necessary to a full exposition of .the legislative intent, should be upheld as being germane to the law. * * * Implication of necessary powers may be especially appropriate in the field of internal administration.. However, powers should not be extended by implication beyond what may be necessary for their just and reasonable execution.”
In Roberts Tobacco Co. v. Department of Revenue, 322 Mich 519, we said:
“The rule is firmly established that the legislature-may authorize the adoption by. an administrative agency, charged with the administration of the provisions of a statute, of rules and regulations to carry out the purpose of the legislature as expressed by it. In Argo Oil Corporation v. Atwood, 274 Mich 47, it was said:
“ ‘It is too well settled to need the citation of supporting authorities that the legislature, within limits defined in the law, may confer authority on an administrative officer or board to make rules as to-details, to find facts, and to exercise some discretion, in the administration of a statute.’
“See, also, Warnshuis v. State Board of Registration in Medicine, 285 Mich 699; Toole v. Michigan State Board of Dentistry, 306 Mich 527; Ranke v. Corporation & Securities Commission, 317 Mich 304.”
"While the function of setting professional school standards and rating the schools accordingly was expressly intrusted to the international association of boards of examiners in optometry by tbe legislature, which for reasons heretofore mentioned we hold unconstitutional, yet it does indicate legislative intention to set up minimum standards as a guide to the board. It does not follow that the board cannot, within reason, adopt higher standards than the minimum set up in the legislation. We have examined the rule adopted by the board and conclude that it has a proper relationship to the legislative act. The rule does not deprive plaintiff of any personal property rights. His right to practice optometry is a privilege granted by the State and is subject to the statutory law and the reasonable and proper rules of the board. The record does not support plaintiff’s claim that his qualifications are such as to compel defendant board to permit him to take the examination. See Toan v. McGinn, 271 Mich 28.
We find no arbitrary abuse of discretion on the part of the board calling for redress. The writ of mandamus is denied, but without- costs as a public -question is involved.
Beid, G. J., and Boyles, North, Dethmers, Btjtzel, Carr, and Bushnell, JJ., concurred. | [
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] |
Wiest, J.
In 1893, a tri-county drain, about 13 miles long, was established and constructed along a natural watercourse, at a cost of $26,000, including highway bridges. Rights therein became vested and have never been divested. In November, 1929, drain commissioners of the three counties laid out, with approval of the commissioner of agriculture, a drainage district and ordered a new drain to be constructed over the course of the existing drain, but extending the upper end thereof about four miles and the lower end a short distance, without vacating the existing drain or giving consideration to vested rights therein. The proposed new drain will not materially deepen or widen the old one and will not afford abutting proprietors on the old drain any new benefits, and will flood proprietors below the lower end thereof and occasion the construction of new highway bridges. The expense will amount to nearly $300,000.
Plaintiffs, by the bill herein, seek restraint of the proposed drain. The bill was dismissed.
Defendants assert authority under section 1, chap. 16, Act No. 318, Pub. Acts 1929 (1 Comp. Laws 1929, § 4966). That section reads:
“Any drain which has ceased to be of public utility and is no longer necessary within the meaning of the act, may be declared to be abandoned and vacated, if in the opinion of the commissioner, or drainage board, having jurisdiction of such drain it is no longer necessary and has ceased to be of public utility. No action, however, shall be so taken, except upon a petition therefor, which petition shall be subject to the provisions relating to petitioners for county or inter-county drains, as the case may be, and upon five days’ notice thereof, by posting only as provided for the letting in the first instance: Provided, That private rights of persons acquired by reason of the establishment and construction of such drain shall not be interfered with, or in any way be impaired thereby. If it be contemplated to construct a new drain on or near the line of an existing drain so as to make the existing drain unnecessary, it shall not be necessary to vacate such existing drain until the new drain is constructed and ready for service.”
The section, with the exception of the last provision, has been upon the statute books many years, was amended in 19'29 by adding thereto the provision relative to the construction of a new drain on or. near the line of an existing drain.
Two questions are presented:
“1. Had the drainage board jurisdiction to locate a new drain on the line of an old established drain without first vacating the old drain1?
“2. Should the proposed drain be restrained because of claimed insufficient outlet?”
All plaintiffs are interested in the first question, and only a few in the second. If the first question is answered in the negative, then all plaintiffs are rightfully in court, for review in such case is not limited to certiorari.
The new drain will disturb the old drain but slightly, and the whole purpose thereof could be adequately attained under the statutes relating to widening, deepening, extending, and cleaning out established drains. Assessments, however, for benefits in such case would manifestly be different, for lower proprietors would not be made to help pay for the upper extension.
Final order had been made at the time the injunction herein was issued.
The deputy commissioner of agriculture testified:
“Cleaning out the old Mill Creek drain, if it was cleaned out properly, would have the same effect that this will.”
In laying out the new drain the existence of the old drain was wholly ignored, for the new proceed-, ing makes no reference to the existing drain, except retention of the name.
The civil engineer who designed the new drain testified:
“Q. So that as a matter of practical construction along the part of this improvement which corresponds with the improvement made in 1893, is the construction any different than if it were a widening and cleaning out of that old improvement?
“A. It might be if it were merely a widening and not deepening. It would, of course, give us a dif ■ferent grad© on the deepening or changing the grade.
“ Q. Would the work be any different if this were under the proceedings to widen, extend and deepen and so forth?
“A. No, the work would be the same.”
The old drain has a bottom width of 33 feet over its entire length, and is approximately the same depth as the proposed new drain, and it is intended to utilize the old drain in construction of the new. This will require little more, if anything, than cleaning out the old drain.
It is stated in the brief of counsel for defendants that:
“No additional land is to be drained by the new improvement and no new water will be brought down into Mill Creek.
“It is not claimed that the proposed drain will bring a quart of water into Mill Creek other than was drained there in a state of nature, or at least by the old drain.”
Counsel for defendants also say:
“This court has never held that a drain commissioner or board could not lay a new drain over the course of an old one without vacating the old.
“In discussing this question, it must be borne in mind that this is not a- case where there is an attempt to destroy the old drain. This drain does not destroy the old drain; it does not vacate it; but it utilizes it to its fullest extent.”
This court has held that a township drain commissioner has no jurisdiction to locate a township drain upon the line of a county drain, unless the county drain has been legally vacated. Zabel v. Harshman, 68 Mich. 273; Tomlin v. Newcomb, 70 Mich. 358.
In White v. Palmer, 233 Mich. 32, it was said:
‘ ‘ Of course, a new drain cannot be located on the line of another drain until that drain has been either vacated or abandoned (Tomlin v. Newcomb, 70 Mich. 358, 362), unless the old drain is recognized by the proceedings for the new drain.”
Giving the name of the old drain to the new one is not recognition of the old. We find no recognition of the old drain in the proceedings establishing the new one. The old drain has not been abandoned; it is an active, existing drain, serving the purpose for which it was constructed, and, if cleaning out is needed, the law points the only way for accomplishing such end. Establishing a new drain over an existing, active drain, which has not ceased to be 'of public utility and is as necessary as when located and constructed, is not authorized by statute, and, without express authorization, cannot be done. Such an existing drain cannot be vacated. It may be utilized in proceedings to extend, widen, or deepen, for the statute so provides, but under claim of such need, no new drain may be laid out over it. The law provides funds for the repair of existing drains and recognizes vested rights in the use and maintenance thereof. The proceeding before us is to establish a new drain and in. no respect can it be likened to one in recognition of the existing drain.
The proceedings taken were without jurisdiction and not saved by the mentioned amendment to the drain law in 1929. The amendment, if given the effect invoked by defendants, renders the section, to which it is annexed, contradictory and repugnant in its terms.
Clearly, the legislature did not intend to repeal any part of the re-enacted section, nor should we hold that the amendment nullifies any part of the section, unless no other course is open. The amendment relates, of course, to the subject-matter of the section. This subject, plainly expressed, has reference to drains which have ceased to be of public utility and are no longer necessary. Such drains, and such only, may be abandoned and vacated. If a drain is not a subsisting and serviceable one, and, therefore, has been abandoned in fact, and a new drain is necessary, then, under the amendment, the abandoned drain need not be vacated until after construction of the new drain. This construction, it is true, leaves the act still somewhat contradictory. But it is such construction, or elimination of the amendment, for certainly it was never intended to authorize construction of a new drain on the line of an existing, serviceable drain, neither abandoned nor vacated. A contrary holding would nullify other positive provisions relative to lengthening, widening, deepening, and cleaning out existing drains, and authorize a new drain, in any case, over the line of an existing, serviceable drain, with the expense of survey, releases or condemnations, and assessments, without, as here admitted, any benefit to abutting proprietors having vested .rights in an existing drain.
The whole proceeding was without jurisdiction and void.
The decree in the circuit is reversed, and a decree will be entered in this court, permanently enjoining construction of the proposed drain.
Plaintiffs will recover costs.
McDonald, Sharpe, Fead, and Butzel, JJ., concurred with Wiest, J. Clark, C. J., and Potter and North, JJ., concurred in the result. | [
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] |
Wiest, J.
The bill in this case was filed to enforce a mechanic’s lien for labor and materials furnished in building an expensive residence and garages for defendants Bisdon. Defendant bank is a mortgagee and need not be further mentioned. The parties entered into written contract, with later written modification, and plaintiff claims and charges for many extras ordered by defendants in writing and also verbally. Defendants questioned many of the alleged verbal changes and set up an itemized list of defects, inclusive of poor workmanship and unsuitable material. The circuit judge found there was due plaintiff the sum of $322.16, and directed foreclosure. In reaching such amount the court cast an account between the parties, but without itemization, and found plaintiff had credits amounting to $7,754.36, and charged plaintiff with payments amounting to $3,028.65, and found the amount required to repair, replace, and make over defects to be the sum of $4,403.55.
Upon appeal plaintiff urges greater credits for extras and no allowance to defendants for claimed defects. The original contract called for a one-story garage, built to stand an added story if ever desired. In order to carry out this contract plaintiff ordered steel joists at a cost of $65, but, before delivery, the parties agreed upon a change to a two-story garage at additional cost, and the steel joists were useless. The cost of the agreed change was considerable, and plaintiff may not now add thereto the expense of the joists rendered useless by his subsequent written agreement. The item for $58 for pilaster piers, made necessary by change in plan and construction under subsequent contract, cannot be charged as an extra. The charge of $16 for labor and material for interior trim in the bathroom over the garage is disallowed.
The charge of $23.80 for steel window sash in garage and room above should have been included in the new contract -or at least agreed upon by the parties. It is disallowed.
Many other small items are scheduled and were considered by the trial judge. They have been examined and are now mentioned and disposed of as follows:
Carpenter and labor in moving and restating playhouse $11.25, allowed; foundation and footing material for playhouse $22, allowed. Many changes were made in the playhouse at the verbal request of Mrs. Risdon without discussion of cost, and the following items are allowed: Additional windows, $29.75; metal rods on roof, $6; installing switch from house to playhouse, $10; extra cost of plaster over wood ceiling in playhouse, $7. Extra cost of cement driveway’caused by enlargement and change of location, $71.68, is allowed';1 additional fence on rear lot and extra sodding, $106.58, is allowed; increase in size of terrace, $17.85, is allowed; removing extra dirt and regrading slope, $10, is disallowed; removing plaster above fireplace mantel and replastering, $4.88, is allowed; installing additional milk cabinet, $9.50, is disallowed; arranging storage space on third floor, $24.25, is allowed.
The contract called for “white tile in kitchen, full height of walls on all exposed portions,” and “stove recessed with drop ceiling of tile over same.” The stove was not recessed but placed with a tile hood over it, and plaintiff claims that this made extra carpenter work for which he charged $15, and the tile and placement thereof cost $265. The testimony on the last charge is not at all satisfactory. Plaintiff let the tiling of the whole house to a third party under a bid of $2,135, which was rebated to $1,900, and none of the rebate was allocated by plaintiff to tiling the hood, and, inasmuch as the contract required a drop ceiling of tile over the recessed stove, and this was changed and the cost thereof released, it should have reduced the charge for the extra tiling, if any. The $15 charge for carpenter work is allowed, and a reasonable charge for the additional tiling, being incapable of measurement under plaintiff’s proofs, must be disallowed.
We find no agreement under which plaintiff can recover any extra expense for glazed tile with various inserts, colored to work out a pattern in the vestibule. Plaintiff asked Mrs. Risdon to pick out the vestibule tile and she did so. If she selected tile more expensive than the contract called for, then was the,, time for plaintiff to either object or ask for an agreement. Mrs. Risdon did not agree to any extra charges for the tile. This item is disallowed. This ruling applies to the item of $55, for more ex pensive tile in the front bathroom, and charges for special design in library windows, $36; special leaded glass in front vestibule closet window, $4, and special glass in door, vestibule to hall, $4.
It appears that plaintiff, before entering into contract with reference to the matters just mentioned, had not procured bids from dealers in glass. At the time of installation he had received a bid for the glass selected by Mrs. Bisdon. The testimony oii this subject does not convince us that defendants should pay these charges, and they are disallowed.
Two dollars and fifty cents for installing recess for telephone box is disallowed; $11.25 for extra shelves in clothes closet is disallowed; $2.50 charged for labor in installing “Olive-Knuckle butts” on a door is allowed; $5 for extra molding forming a paneling in the bedrooms is allowed; $60 for decorating additional plaster ornament, selected by defendants, is allowed. A credit for the mentioned allowed items amounts to $393.74, and to this we add the sum of $347.28 for changes, either admitted or not seriously questioned.
Defendants contend that changes, if any, claimed to have been verbally authorized cannot be allowed because of the following provision in the contract:
“It is agreed that all changes, which may add to the cost of the proposed residence, shall be agreed upon in writing prior to commencement and shall be added to the final payment due under this contract. An estimate of the cost is to be furnished for these extra items.”
This was a wise provision, if lived up to, but did not prevent the parties thereto from dealing otherwise by mutual consent. It does, however, place upon plaintiff the burden of establishing by convincing evidence that changes charged for and not an thorized in writing were in fact authorized by verbal agreement, inclusive of full understanding of call for payment thereof. The circuit judge so held.
We do not have presented here the question of title in defendants by entireties, and, therefore, express no view upon need of a writing in such a case.
We now come to defective workmanship and material claimed by defendants. Upon this the circuit judge stated in an opinion:
“Altogether the defendants will have expended in this home on Cambridge road, exclusive of furnishings, upwards of $60,000.
“During the trial both sides insisted that the court make a personal inspection of the premises.
“Before going to look the premises over a detailed statement was taken as to defects claimed by the defendants and testified to by Mrs. Risdon.
“These were examined in their order and carefully checked, and it is the opinion of the court that the complaints she makes as to material and workmanship are not in the least exaggerated.
“Wherever one looks in and about the house there is evidence of slighted and poor workmanship and materials and an apparent disposition to cheapen the construction beyond reason.
“An enumeration of the various things plainly evident of which complaint is made would unduly lengthen this opinion. It must be found from the evidence that the defendants are clearly justified in their various claimed items of damage. * * *
“Defendants offered testimony as to the amount required to repair, replace and make over defects: It is my opinion that the estimates are fair and reasonable. ’ ’
The issue upon this subject, as usual, called for opinion testimony, and there was a wide variance between estimates given. The circuit judge, with such testimony in mind, at the request of counsel, visited and viewed the premises, and we have not the benefit of such view. The damages assessed on account of defective workmanship and material are within the evidence, and we accept the findings made on this issue.
The account will then stand, balance due on the contract price $3,007.03; items admitted by defendants’ answer or established by the proofs $254.95, and other items established $347.28, to which we add $393.74, for contested items established by the proofs, and other undisputed items, making a total of $8,730.18. Against which we charge payments amounting to $3,028.65, and $4,403.55, for defective material and workmanship, making a total of $7,432.20 and leaving a balance due plaintiff of $1,297.98.
We find that amount due plaintiff, and the decree will be modified to conform with such finding, and, as modified, affirmed. Plaintiff will recover costs of this court.
Clark, C. J., and McDonald, Potter, Sharpe, North, and Butzel, JJ., concurred. Fead, J., did not sit. | [
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North, J.
In July, 1921, the Hudson Lumber Company, a Michigan corporation, through its directors, filed a petition for dissolution. About 90 days later three permanent receivers were appointed. The matter continued in the court until June, 1929, when the so-called second and third accounts of the receivers were allowed subject to exceptions being filed within a time limited. - Appellants herein, being creditors, filed exceptions to the accounts. After a prolonged hearing in court, the receivers’ accounts were modified and allowed. The objecting creditors have appealed. The issue is solely one of fact.
The record is unnecessarily voluminous, and much of the detail must be omitted in our recital of the facts. Appellants charge the receivers with bad faith in selling for less than its alleged market value, a contract interest in 17 acres of land on "Warren avenue in Detroit. The claim asserted is that this transaction was a fraud upon the creditors, and that it diminished the corporation’s assets by upwards of $90,000.
At the time of filing the petition for dissolution, William E. Hudson, Benjamin F. Hudson, and Norman W. Fox were the directors of the Hudson Lumber Company. They owned all of its stock., The •corporation was organized in 1913 for the purpose of carrying on a retail lumber business. For a number of years it prospered in a rather remarkable degree. It was incident to developing its third yard that the company, in November, 1919, entered into a contract for the purchase of 20 acres of land adjacént to Warren avenue for $126,000. At the time the receivers were appointed, $108,000 remained unpaid on the contract price. The receivers later planned a sale to Scranton Trevor of three acres on which the Hudson Lumber Company had developed a lumber yard. This sale, if completed, would result in reducing the unpaid portion of the contract price to substantially $62,000. But it could not be consummated without the approval of the vendors in the underlying land contract, who were then insisting upon some satisfactory arrangement also being made as to the balance of this contract, which was badly in default. The land was located rather far out and in an undeveloped locality. It was not readily marketable. At the time it was purchased, the Hudson company was doing a gross business of nearly a million dollars per year. In the following year (1920), as a witness testified: “The lumber business broke and conditions were in horrible shape.” An unfortunate combination of circumstances, including the overstocking of its yards, placed the Hudson company in a badly embarrassed position financially.
Various efforts to obtain financial relief were made, but without success. Incident to this activity, Benjamin F. Hudson, who was the financial man of the corporation, worked out a plan with the Standard Mortgage & Investment Company by which it was expected financial assistance would be given to the Hudson company which would relieve it from its embarrassed condition. The Standard company was supposed to have large financial resources. Without reciting details, the plan contemplated was that the three directors of the Hudson Lumber Company purchase a controlling interest in the common stock of the Standard Mortgage & Investment Company, and by so doing it was expected the Hudson com pany would be able to meet its obligations with funds to be obtained through the Standard company. Incident to their stock purchase, which resulted in an indebtedness of $280,000, these three directors pledged to the Standard company all their holdings in the Hudson company. About a year after the Hudson brothers and their brother-in-law, Mr. Fox, obtained the controlling interest in the Standard company (June, 1921), the vendee’s interest of the Hudson'company in 17 acres of the Warren avenue land contract was transferred to the Standard company for substantially the same amount as was unpaid on the purchase price. This was accomplished by canceling the original contract and executing a, new contract in which the Standard company was vendee. The details were arranged agreeably to the vendors in the contract, who thereupon consented to the above-mentioned sale of the three acres to Scranton Trevor and also withdrew their claims against the receivership. Upon proper petition by the receivers, the transaction was approved by the court. Within approximately a year following the transfer to the Standard company, two sales of parcels from the 17 acres, one of four acres and another of three acres, were consummated. These two parcels sold for an amount nearly equal to the unpaid portion of the contract price of the whole 17 acres. In July, 1926, about four years after the Standard company took over the contract, it sold the remaining 10 acres for substantially $100,000. As noted above, the Hudson company directors had .become heavily obligated to the Standard company incident to their purchase of its stock, some of which was purchased from individuals. and some from the treasury. Some time subsequent to their purchase of the stock in the Standard company, it seems to have been arranged that any profit derived by that company incident to the resale of the 17 acres should be credited upon the indebtedness of the Hudson brothers and their brother-in-law, Mr. Fox, to the company. This arrangement was confirmed at a meeting of the board of directors of the Standard company December 31, 1925. Appellants contend that this understanding was a part of the original transaction by which the receivers transferred to the Standard company the 17-acre land contract; but appellees assert that it was a subsequent arrangement by means of which the Hudsons were induced to turn over additional property to the Standard company, or perhaps to improve the appearance of the books of account of the Standard company. The record on the point is not at all satisfactory, but we are unable to find that it sustains appellants’ contention. In any event, the purchase of the interest in the Standard company by these three men finally proved to be extremely disastrous, resulting in the Hudsons losing everything they had, including their homesteads.
It should be noted that along with Mr. William R. Hudson, one of the other permanent receivers appointed by the court, Mr. Ivo S. Faurote, was a representative of the First National Bank, which was the largest creditor of the Hudson company, and the other receiver, Mr. Seymour S. Rutherford, was a Detroit wholesale lumberman and also a large creditor of the Hudson company. The complaining creditors seek to hold the receivers personally liable on the ground that they acted in bad faith in disposing of the Hudson company’s interest in the 17 acres in the manner above outlined. On the other hand, the receivers claim that the whole transaction was consummated in the utmost good faith. They point out that the original claim of the vendors under this land contract, together with another obligation held by them against the Hudson company in excess of $10,000, constituted more than 40 per cent, of the claims filed in the receivership. Because of this situation, when the first 10 per cent, liquidation dividend was paid to the creditors of the Hudson company, the vendors on this land contract received $10,928.10. The receivers felt that this situation worked an injustice to the Hudson company and its other creditors. Comparatively early in the proceeding one of the receivers referred to this land contractas the company’s “white elephant.” Confronted with this situation, the receivers petitioned the court for leave to dispose of the Hudson company’s interest in the land contract. Permission was given, and the subsequent real estate transactions from time to time were submitted to the court and approved.
While there are many facts and circumstances having a bearing upon the question of the good faith or bad faith with which the receivers acted, a careful consideration of the record convinces us that good faith is established. If the transaction consummated with the Standard company was a fraud upon or disadvantage to the complaining creditors, it was likewise a fraud upon and a disadvantage to the First National Bank, in whose behalf Mr. Faurote was interested, and also of the rights of the other receiver, Mr. Butherford, who was a large creditor of the Hudson company. Viewed in retrospect, it may now be said that the receivers erred in judgment by disposing of the Hudson company’s interest in the 17-acre parcel. But good faith or bad faith on their part must be determined in the light of the situation then confronting them. The Hudson com pany was badly in default in its payments on the contract. The vendors served notice on the receivers of intention to take advantage of an acceleration clause, in which event the full purchase price became due and payable forthwith. Even prior to the receivership, creditors of the Hudson company were threatening bankruptcy proceedings. As noted above, before the sale by the receivers of any portion of the original 20 acres, the claims filed by the vendors represented more than 40 per cent, of the Hudson company’s liabilities. That the receivers were in good faith attempting to relieve this situation is quite conclusively indicated by the fact that a further 30 per cent, liquidation dividend was paid to the Hudson company creditors within a few days after the land contract was disposed of and the vendors had waived their right to participate in future dividends. There is direct conflict in the testimony as to the market value of this property; but unquestionably it varied much from time to time as local conditions changed. The record discloses that the receivers made every reasonable effort to make an advantageous disposition of the property. It may also be noted that many, if not all, of the now complaining creditors had notice through the, attorney who then represented them of the court proceeding taken incident to the sale. The record does not even raise a suspicion as to the good faith with which Mr. Faurote and Mr. Rutherford acted in this matter: As to Mr. William R. Hudson, we think he too acted in good faith and in the hope, ill-founded though it was, that the Hudson company’s creditors would be paid in full, and that through assistance to be obtained from the Standard Mortgage & Investment Company something could be salvaged from the lumber company wreck. The true reason for consummating the sale of the 17 acres appears in the order of the circuit judge made June 28,1922, which reads:
“And it appearing to the court now here from said petition that the granting of the authority prayed for will lessen the indebtedness of the estate and facilitate the liquidation thereof, and that the same is necessary to effectuate the sale heretofore authorized from the receivers to Scranton Trevor by previous order of this court entered April 13, 1922,” * * #
The trial judge in disposing of the matter now under review said:
“It is my conclusion that the receivers acted in good faith in connection with the Theisen transaction (Warren avenue contract). * * * There had been and was still a lull in the real estate market; there was no demand for industrial sites. The property had been purchased from the Theisens at a high price. While in the light of subsequent developments a better price could have possibly been obtained for the property later, it appears that the rer ceivers did everything in their power to make a sale of this property before the transaction with the Standard Mortgage & Investment Company, but without success. The objecting creditors were advised through their then counsel of the various steps taken by the receivers and made no objection until the report was filed. ’ ’
We think the trial judge was clearly justified in overruling the contention of the objecting creditors. His order as entered in the circuit court in chancery is affirmed, with costs to appellees.
Clark, C. J., and McDonald, Potter,' Sharpe, Head, Wiest, and Butzel, JJ., concurred. | [
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North, J.
(for reversal). After verdict for plaintiff, the trial judge, on defendant’s motion, entered judgment non obstante. The sole question presented on plaintiff’s appeal is whether in so doing error was committed. Plaintiff’s ward, Beatrice Boyle, hereinafter called the plaintiff, was injured while riding as a guest in the automobile driven by defendant. If there was testimony tending to support plaintiff’s claim that defendant was guilty of gross negligence or of wanton or wilful misconduct, which caused her injury, entry of judgment non obstante was erroneous. In passing upon the question presented, the testimony must he considered most favorable to plaintiff. Thus viewed, the testimony shows that, about nine o’clock in the evening of October 30, 1929, defendant was driving a Chevrolet coach in a southerly direction on U. S. 2. A young lady occupied the front seat with defendant, while plaintiff and another young man companion were in the rear seat. Defendant met a car “that had very blinding lights,” so blinding, he testified, that “I couldn’t see where I was driving after I got up close to the car.” As these automobiles approached each other they were going 35 to 45 miles per hour. Defendant testified “I was driving about 45 miles an hour; I was in a hurry to get to the party.” After defendant got within 40 feet of the approaching vehicle he could not see where he was going. He testified the glare of the lights of the passing car was about the worst he had ever seen, and another witness who was passed by the same vehicle testified that on account of the glare he stopped at the side of the road, and that he was blinded by the passing lights for 60 seconds. As the approaching* car neared defendant, it swerved somewhat in his direction, and he thereupon turned his car to the right so that its right-hand wheels left the pavement and were running in the gravel; and he testified that he was afraid at that time to apply his brakes for fear he would go into the ditch, obviously because of the rate of speed at which he was then driving. He had four-wheel brakes, and could have stopped the car had he applied them. He had seen the other car approaching when it was nearly a half a mile away, and noticed it had bright lights, but he' continued his speed at the rate of 35 or 40 miles per hour until the approaching lights became so bright that defendant could not see the side of the road. He testified, “I' had my foot on the brakes all during that time; and after he got past there were a few seconds that I was blinded by the lights, and it was during that time that I hit the post and turned over.” The post referred to was a mail box standard erected in the highway. There is testimony that plaintiff’s car ran 120 feet after passing the other car before striking this post; that it then went into the ditch, overturned, and injured plaintiff, that defendant did not “slacken (his speed) at all,” that his car left the surface of the road and swayed back and forth several times. Further, that as defendant approached the point of accident, he was driving with one hand, and that his right hand rested on his companion’s knee. In 'the light of the foregoing and from other like testimony in the record, we think it cannot be said, as a matter of law, that there was no proof of gross negligence or of wanton or wilful misconduct sufficient to sustain recovery by plaintiff under the so-called guest act (1 Comp. Laws 1929, §4648). The terms gross negligence and wilful and wanton misconduct have no different meaning than that ascribed to them prior to the enactment of the above-cited statute. In Gibbard v. Cursan, 225 Mich. 311, Mr. Justice Clark, speaking for the court, said:
“If one wilfully injures another, or if his conduct in doing the injury is so wanton or reckless that it amounts to the same thing, he is guilty of more than negligence. The act is characterized by wilfulness, rather than by inadvertence, it transcends negligence — is different in kind. ’ ’
Defendant’s claim that his failure to apply his brakes or in any way slacken the speed of his car was due to his fear that in so doing he might cause his automobile to leave the road and go into the, ditch, may or may not have been believed by the jury. Surely if it was not believed, it could hardly be questioned that defendant’s failure to in any manner slacken the speed of his car was negligence of the grossest sort, and constituted wilful and wanton misconduct on his part. The law imputes intention to do harm where there is a reckless disregard for the safety of others. See note 69 L. R. A. 516. For cases arising out of somewhat similar circumstances and involving the question of gross negligence and wilful misconduct, see Rog v. Eltis, 269 Mass. 466 (169 N. E. 413); Blood v. Adams, 269 Mass. 480 (169 N. E. 412); Kirby v. Keating, 271 Mass. 390 (171 N. E. 671).
Appellee urges that the swerving of the approaching car in his direction when about 40 feet away resulted in its lights becoming more blinding to bim; and thereby he was confronted with a sudden and unexpected' danger, and that, therefore, his subsequent acts cannot be held to constitute gross negligence or wilful and wanton misconduct. This would depend upon whether the jury believed defendant’s testimony as to the lights becoming suddenly more blinding, and also upon whether defendant’s perilous position was produced by his own negligence. Walker v. Rebeuhr, 255 Mich. 204. An issue of fact still remained.
If responsibility cannot attach for so-called gross negligence except the one charged is guilty of wilful misconduct, then the judgment entered in the circuit court must be affirmed; but it is submitted that such is not the law. In the opinion of Mr. Justice Fead in Finkler v. Zimmer, ante, 336, it is emphasized that:
“It (gross negligence) must be characterized by wantonness at least. But I wish to avoid concurring in the view that, to be liable, a defendant must have had the intention to hurt someone and that liability cannot be predicated on a negligent act which is wantonly reckless rather than malicious.”
Clearly there is some testimony in this record of defendant’s being “wantonly reckless” in his disregard of the safety of plaintiff and the other occupants of his automobile. The jury passed upon the sufficiency of this testimony. A very recent and well-considered case, so similar in facts and questions involved that it cannot be distinguished, is reported in Siesseger v. Puth, 213 Iowa, 164 (239 N. W. 46). The Iowa guest statute permits recovery if the damage to the guest is caused by the ‘ ‘ reckless operation” of the motor vehicle; and it was,there held to have been a question of fact. In another Iowa case decided a few days after the Siesseger Case, it is said:
“This action is founded upon recklessness, which means more than negligence. It means proceeding without heed of, or concern for, consequences. See Siesseger v. Puth, 213 Iowa, 164 (239 N. W. 46). In order for conduct to be reckless within the meaning of the law, it must be such as to manifest a heedless disregard for or indifference to the rights of others.” Neessen v. Armstrong, 213 Iowa, 378 (239 N. W. 56).
We think the circuit judge was in error in holding that there was no testimony supporting the verdict of the jury finding defendant guilty of gross negligence or wilful and wanton misconduct and in entering judgment for defendant non obstante veredicto. The judgment thus entered should be set aside, and the case remanded, with direction to enter judgment on the verdict as rendered. Appellant should have costs.
McDonald, Potter, and Wiest, JJ., concurred with North, J.
Clark, C. J. (for affirmance). I am not in accord with opinion of Mr. Justice North. The decision of the trial judge granting defendant’s motion for judgment non obstante correctly disposes of the case:
“The accident happened upon a busy paved highway, about nine o ’clock in the evening, between Gladstone and Escanaba. Four young people were on their way to a dance and were in a hurry. One girl sat in the front seat with the defendant. The injured girl and a young man sat in the rear seat. The automobile was a coach, new, and in good order. They were driving at a speed of 35 to 40 miles per hour. No one objected to the speed. They met many cars. There is no evidence that they passed any cars going in the -direction in which they were traveling. It is not disputed that the driver was keeping a proper lookout ahead, and it appears that he and other occupants of the car saw approaching, and some distance away, a car with a very bright headlight, so bright that, as it came close, the injured girl pulled her coat collar up around her head because of the glare. The driver testified that he could see the edge of the road until, suddenly, when the other car was near him, it seemed to swerve in his direction, and he was blinded momentarily, and that to avoid a collision he immediately swung to the right far enough to put his right wheels on the shoulder of the road. The injured girl confirms the swing to the right and no one disputes the sudden momentary blinding of the entire party. The auto traveled a short distance, variously estimated at from 50 to 120 feet, when it struck a mail box post, which ditched the auto and caused it to overturn and injure the girl.
“The girl testified that the defendant drove all the way with only one hand on the wheel, and with the other hand on the knee of the girl who sat with him. Defendant positively denies this. Her evidence loses its force entirely as applied to the time of the accident, when we consider that the young woman was sitting all the while in the back seat of the automobile, and that, when the bright lights struck the auto, she put her coat collar over her head. Taken all together there is possibly some evidence which might sustain a verdict based upon ordinary negligence. Even this is doubtful. The auto was new and in good order, the lights were properly used, the defendant was a driver of 10 years’ experience, and the road was paved. In the light of present day practices, considering the time, the place, and the conditions, the speed was not excessive. The emergency was one that arises suddenly and is a common and frequent hazard of night driving. "Whether to stop or keep going for safety was a matter for instant judgment and decision. There is nothing in the evidence that tends to show that the defendant failed to do anything that a reasonably careful and prudent man might have done, or that he did anything that such a man might not have done. But Act No. 19, Pub. Acts 1929 (1 Comp. Laws 1929, § 4648), was then in force. It was necessary for the plaintiff to show facts from which a jury would be warranted in finding, either from the direct evidence or from fair inferences therefrom, that at the time the injuries were sustained, the injured person was not only a passenger in the automobile but that her injuries were occasioned by the gross negligence or wilful and wanton misconduct of the defendant. One who rides as a guest in an automobile, since the act of 1929 became effective, assumes the risk of all ordinary hazards and negligence. If, when so riding, he is injured, it is only when the injuries are occasioned by the gross negligence or wilful and wanton misconduct of the driver, that he can recover damages from his host.
“I cannot see that the evidence here shows any gross negligence or wilful and wanton misconduct, as these terms have been repeatedly defined by our Supreme Court.”
Judgment is affirmed.
Sharpe, Fead, and Btjtzel, JJ., concurred with Clark, C. J. | [
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] |
Clark, C. J.
Plaintiffs purchased land incumbered by recorded mortgage. The mortgage purported to secure a series of notes in the total sum of $3,600, and a second series in the total sum of nearly $800. Before recording, the mortgagee presented the mortgage to the county treasurer, and, upon payment of $18, mortgage tax of 50 cents for each $100 (1 Comp. Laws 1929, § 3641), the treasurer indorsed upon the mortgage his certificate that the amount secured by the mortgage was $3,600, and that he had received $18 in full for tax thereon.
Plaintiffs, alleging’ that they are charged by the record with constructive notice of an incumbrance of $3,600, and no more, filed bill to be relieved of mortgage of record in excess of that amount, and had decree. Defendant has appealed.
Because of difference in statutes, cases cited from other jurisdictions are not in point. Our statute, 1 Comp. Laws 1929, § 3642, provides in part:
“The tax imposed by this act shall be paid to and collected by the treasurer of the county where such mortgage is first presented for record, in the manner following: Before said mortgage is received by the register of deeds for recording it shall be presented to the county treasurer who shall as one of his official duties compute and collect the taxes due thereon as provided by this act, and shall certify on said mortgage the amount secured thereby and the amount of taxes received by him. Said certificate shall be recorded by the register of deeds as a part of the record of said mortgage.”
It is true that the statute is a revenue measure, but it contains other features to make itself effective. To coerce payment, privilege of recording is denied until tax is paid, and to prevent evasion and to secure payment in full, constructive notice by recording* is limited to amount on which tax is paid, and this latter conclusion is indicated by requirement that treasurer shall certify amount secured by the mortgage and that certificate must be recorded with mortgage.
We are not concerned here with contract relations between parties to the mortgage, nor with actual notice, -but solely with constructive notice.
It is urged that one ought not to be prejudiced by error of treasurer in making computation. It is most improbable that one seeking to pay all that he ought to pay will be refused. In that improbable event, he has his remedy. The failure here is chargeable to the mortgagee, not to the treasurer.
Another question is attempted, but it was decided correctly by the trial judge and calls for no discussion.
Affirmed.
McDonald, Potter, Sharpe, North, Fead, Wiest. and Butzel, JJ., concurred. | [
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] |
Blair Moody, Jr., J.
Preface
The issuance of this opinion was held pending the release of Richmond Newspapers, Inc v Virginia, 448 US 555; 100 S Ct 2814; 65 L Ed 2d 973 (1980). In Richmond, the United States Supreme Court held that the right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendments of the United States Constitution. The result in this case is consistent with the result reached in Richmond and could now be predicated upon the holding in Richmond.
In the instant case, the parties perfunctorily raised First-Amendment arguments. Our analysis consists of an alternate ground for decision to that contained in Richmond and is primarily based upon the common law.
Introduction
The underlying issue before this Court is whether and upon what rationale a trial judge may exclude the public, including the press, from attendance at a criminal trial upon the affirmative waiver by defendant of the right to a public trial. Specifically in this case the question is: Did the trial judge act properly in issuing the order of exclusion?
On the basis of common law and § 1420 of the Revised Judicature Act, we conclude that the public may not be excluded from a criminal trial without first giving full and fair consideration to the public’s interests in maintaining an open proceeding. This conclusion is required even if the defendant waives his right to a public trial with the consent of the prosecutor.
Facts
A high school English teacher, a department head, was charged with criminal sexual conduct in the second degree under MCL 750.520c; MSA 28.788(3). The conduct charged allegedly occurred with a 14-year-old student in the school building during school hours.
Following the preliminary examination, on November 16, 1977, the trial judge, upon stipulation of counsel, issued an order suppressing all pretrial publicity in the case.
Trial was scheduled to begin on February 3, 1978. On that day, just prior to the selection of a jury, a proceeding was held in chambers. Counsel for the teacher made a motion that the trial be closed to the public, giving the following as reasons:
"It is the defendant’s position that this should be a closed trial and not a public one because of the possible impact on the community as a whole in terms of influencing cases of this kind; the possibility of influencing youngsters, teenagers in terms of bringing these kind [sic] of charges up against their teachers as a way of getting back at them. And, if publicized, this trial would influence youngsters not only towards authority figures themselves, but especially towards the teaching profession.
"Also, we are concerned that [the teacher] * * * has a recognized status in the community and a public trial would do nothing but ruin that reputation.”
The prosecution made no objection to this request. Without providing an open hearing or stating reasons, the trial court issued an order excluding the public from the courtroom.
On February 6, 1978, the Detroit Free Press and Susan Brown, the reporter assigned by the Free Press to the trial, filed a complaint for superintending control and a motion for immediate consideration with the Court of Appeals. Before the Court of Appeals could act, on February 7, 1978, the trial was concluded, with the jury returning a verdict of not guilty.
Recognizing that the conclusion of the trial rendered the application for superintending control moot, the Court of Appeals treated the application as one for leave to appeal and granted leave. The Free Press then filed an application with this Court for leave to appeal from the Court of Appeals prior to decision by that Court. On May 1, 1978, we granted leave to appeal. 402 Mich 926 (1978).
Discussion
At first blush, it appears that this Court’s hold ing in Detroit Free Press v Macomb Circuit Judge, 405 Mich 544; 275 NW2d 482 (1979), would be dispositive of the issue raised in the instant case. In Macomb Circuit Judge, which was a case remarkably similar to the case at bar, we opined: "The parties may not, by their mere agreement, empower a judge to exclude the public and press”. Macomb Circuit Judge, supra, 549. Our decision in that case rested upon § 1420 of the RJA, which reads:
"The sittings of every court within this state shall be public except that a court may, for good cause shown, exclude from the courtroom other witnesses in the case when they are not testifying and may, in actions involving scandal or immorality, exclude all minors from the courtroom unless the minor is a party or witness. This section shall not apply to cases involving national security.” (Emphasis added.) MCL 600.1420; MSA 27A.1420.
While we think that our narrow, statutorily based holding in Macomb Circuit Judge is equally applicable here, respondent maintains that § 1420 is inapposite.
Respondent asserts that the language of the Sixth Amendment of the United States Constitution, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”, and the language of Article 1, § 20, Michigan Constitution of 1963, "In every criminal prosecution, the accused shall have the right to a speedy and public trial”, vests the right to a public trial in the accused and the accused alone. Thus, the right to public trial could be affirmatively waived as can other substantive rights enjoyed by the accused. We disagree.
I
Common-Law Origins of the Right to Public Trial
Although the exact origin of the tradition of holding trials in public is unknown, it is clear that the tradition has existed for a long time and enjoyed a favored position in the English common-law courts. One of the first commentators to note the fact that trials in England were held publicly was Sir Thomas Smith in his book De República Anglorum, published in 1583. Smith commented:
"Evidences of writinges be shewed [to the jury], witnesses be sworne, and heard before them not after the fashion of the civill law but openly, that not only the xii, the Judges, the parties and as many as be present may heare what ech witnesse doeth say.
"All the rest is doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so manie as will or can come so neare as to heare it.”
A later commentator, Sir Matthew Hale, writing in 1670, not only lauded the fact that trials were held publicly but also gave substantive reasons for the desirability of such a practice:
"Ninthly, the excellency of this Open course of evidence to the jury, in presence of the judge, jury, parties and counsel, and even of the adverse witnesses, appears in these particulars.
"1st, That it is openly, and not in private before a commissioner or two, and a couple of clerks; where, oftentimes witnesses will deliver that, which they will be ashamed to testify publicly.”
It is clear that at the time Smith and Hale were writing, the right to a public trial was one which inhered in the public and was not a right enjoyed by the accused. While the public was encouraged and often required to attend trials, the accused possessed few substantive rights and could hardly be said to benefit from a public trial. One historian noted:
"(1) The prisoner was kept in confinement more or less secret till his trial, and could not prepare for his defence. He was examined, and his examination was taken down.
"(2) He had no notice beforehand of the evidence against him, and was compelled to defend himself as well as he could when the evidence, written or oral, was produced on his trial. He had no counsel either before or at the trial.
"(5) It does not appear that the prisoner was allowed to call witnesses on his own behalf; but it matters little whether he was or not; as he had no means of ascer tabling what evidence they would give, or of procuring their attendance. In later times they were not examined on oath, if they were called.”
Various reasons have been given as to why the English courts developed a system of holding trials in public. Although there is no entirely satisfactory explanation, one of the commonly accepted reasons for this practice was the distrust of secret trials fostered by the abuses of the Spanish Inquisition, the English Court of Star Chamber and the French monarchy’s lettre de cachet.
The common-law system of open and public trials was hailed by the early English commentators. Both Blackstone and Wigmore viewed the "open forum” as a natural check on possible abuse of judicial power. They also emphasized that public trials could enlighten the public about their government and enhance respect for judicial remedies. But, as Jeremy Bentham declared, the most resounding theme was the important role that publicity could have in insuring fairness and preventing abuse:
"Without publicity, all other checks are insufficient: in comparison with publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks — as cloaks in reality, as checks only in appearance.”
Publicity, Bentham declared, "is the soul of justice”.
II
The Public Trial Concept: The American Development
The "open court-open trial” concept developed early in the American system of jurisprudence. One of the earliest expressions of the public trial right is found in the "Frame of Government of Pennsylvania of 1682”, a document signed by William Penn. The document proclaimed the following guarantees:
"V. That all courts shall be open, and justice shall neither be sold, denied nor delayed.
"VI. That, in all courts all persons of all persuasions may freely appear in their own way, and according to their own manner, and there personally plead their own cause themselves; or, if unable, by their friends.”
The Colonies fully adopted the concept of conducting criminal trials in public. There is no evidence to suggest that Colonial courts recognized that an accused may require that his trial be private.
At the first Congress of the United States, James Madison proposed to the drafters of the Bill of Rights that a provision be included providing for public trials. This proposal was codified in the Sixth Amendment guarantee that 'Tn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”. Following the Federal model, all states recognize the right to public trial either by constitutional provision, statute or judicial interpretation.
Although the language of the Sixth Amendment public trial guarantee may seem clear and unambiguous, interpretative problems have arisen regarding the dimensions of the right. Courts have wrestled with problems such as the extent an accused can invoke the right of public trial; whether the right is one which belongs to the accused alone or is one which the accused shares coextensively with any or all of the public who choose to attend a trial; and what limitations, if any, a court can impose on public attendance at a trial. Resolution of these problems has been difficult and on occasion has produced contrary results.
From a literal standpoint, the Sixth Amendment provides the right to a public trial to "the accused”. Based on this provision, the United States Supreme Court decision in In re Oliver, 333 US 257; 68 S Ct 499; 92 L Ed 682 (1948), makes clear that the trial and conviction of an accused in secret, even in a contempt proceeding, will be grounds for reversal. The Oliver Court recognized that our public trial guarantee "has its roots in our English common law heritage”. Citing both the Sixth Amendment and the due process clause of the Fourteenth Amendment, the Supreme Court held:
"In view of this nation’s historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment’s guarantee that no one shall be deprived of his liberty without due process of law means at least that an accused cannot be thus [in the secrecy of the judge’s chambers] sentenced to prison.” Oliver, supra, 273.
Amplifying the Oliver decision, the United States Court of Appeals in United States v Kobli, 172 F2d 919, 923 (CA 3, 1949), declared:
"[T]he Sixth Amendment precludes the general indiscriminate exclusion of the public from the trial of a criminal case in a federal court over the objection of the defendant * * *.”
Emphasizing the importance of the constitutional right involved, the Kobli court opined that an accused who was denied the right to a public trial need not show any actual prejudice to obtain a reversal of the conviction. The court said:
" '[Violation of the constitutional right necessarily implies prejudice, and more than that need not appear. Furthermore, it would be difficult, if not impossible, in such cases for a defendant to point to any definite, personal injury. To require him to do so would impair or destroy the safeguard.’ ” Kobli, supra, 921.
The Sixth Amendment public trial guarantee, however, does not vest absolute rights in the accused. While the accused has the right to demand a public trial to insure fairness and to prevent judicial abuse, the accused possesses no corresponding right to compel a private trial. Singer v United States, 380 US 24, 35; 85 S Ct 783; 13 L Ed 2d 630 (1965).
In Singer, the Court rejected the argument that since the accused possessed the constitutional right to a jury trial, he had an absolute right to demand a bench trial. In that case the Court reviewed the English common-law and Colonial practice. It was concluded that history failed to establish an independent right in the accused to be tried by a judge alone. Thus, the accused was not empowered by the Sixth Amendment to compel the opposite of what he was specifically guaranteed by the Constitution. "The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right. For example, although a defendant can, under some circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial.” Singer, supra, 34-35.
Similar reasoning was applied by the Singer Court involving other Sixth Amendment rights. It was reasoned that although the accused "can waive his right to be tried in the State and district where the crime was committed, he cannot in all cases compel transfer of the case to another district”. Singer, supra, 35. Also, while he "can waive his right to be confronted by the witnesses against him”, he cannot compel the prosecutor "to try the case by stipulation”. Id.
Furthermore, in a different context, the Sixth Amendment has been held to implicate interests beyond those of the accused. In Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), with respect to the right to a speedy trial, the Court held:
"In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separately from, and at times in opposition to, the interests of the accused.” Barker, supra, 519.
It is thus clear that our English heritage, Colonial American tradition and recent constitutional case interpretations provide no basis on which to predicate a constitutional right in favor of an accused to close a criminal trial by simply waiving his right to a public trial. Furthermore, a careful study of common-law tradition reveals that the public-trial concept developed primarily for the benefit of the public. It is basic to a free and open society that public access to trials be maintained. The societal interests served by this principle are separate from and at times may be in opposition to the interests of the accused. The accused, therefore, cannot waive his right to a public trial in absolute derogation of the public interest.
The interests of society in having access to criminal trials usually are compatible with the interests of an accused. Yet, this by no means diminishes the interest the public has in seeing that justice is administered openly and publicly. A New York Federal District Court in United States v Lopez, 328 F Supp 1077, 1087 (ED NY, 1971), poignantly elucidated the important societal interests that are protected by the public-trial guarantee:
"The public has an independent right to be present to see that justice is fairly done. It is important that our citizens be free to observe court proceedings to insure a sense of confidence in the judicial process. Conducting trials behind closed doors might engender an apprehension and distrust of the legal system which would, in the end, destroy its ability to peacefully settle disputes.”
Additionally, because a criminal prosecution is brought in the very name of the people, the public has a substantial interest in seeing that its concerns are adequately represented. The Kentucky Court of Appeals has noted:
"It is insisted by some the right to public trial is solely for the benefit of the criminal defendant and if he has no objection to a closed trial then the public should not be permitted to object. This contention overlooks the fact that the public is a party to all criminal proceedings. The proceeding is prosecuted in the name of the public. In our opinion there is nothing that better protects the rights of the public than their presence in proceedings where these rights are on trial.” Johnson v Simpson, 433 SW2d 644, 646 (Ky, 1968).
Further, since one of the purposes of the public trial guarantee is the protection against perjury, the public has an equally important interest in assuring that criminal prosecutions are decided on truthful and complete records. Certainly, the defendant would prefer an open proceeding to insure that perjured testimony is not brought against him. But the presence of the public also insures that no favoritism is afforded the defendant and protects against perjury by the defendant and his witnesses. It extends assurance that the appearance of justice is maintained. United States v Cianfrani, 573 F2d 835, 852-853 (CA 3, 1978).
In addition, the public’s concern extends to the actions of its legal officers, the judge and prosecutor. In Michigan these officials are elected, which adds a dimension to the societal interests involved. The performance of essential responsibilities by these officials during criminal trials should be open to public evaluation.
Although an accused has no right to trial closure, in rare specific circumstances, limitations have been placed upon public access to criminal proceedings. Although there is support for the proposition that the court has a duty to provide facilities for a reasonable number of the public, Estes v Texas, 381 US 532, 584; 85 S Ct 1628; 14 L Ed 2d 543 (1965) (Warren, C.J., concurring), it is generally agreed that the size of the courtroom may justifiably limit attendance. Note, The Right to a Public Trial in Criminal Cases, 41 NYU L Rev 1138, 1144 (1966). Likewise, in the interest of fairness, a court can exclude from the courtroom members of the public who are creating physical disturbances or causing potentially dangerous situations. E W Scripps Co v Fulton, 100 Ohio App 157, 169; 125 NE2d 896 (1955). And, also, in the name of what is termed "public health or morals”, courts have allowed exclusion of minors in trials involving sexual matters. Kobli, supra, 922.
The limitations imposed are few in number and, for the most part, are required to effectuate the essential dignity and the integrity of the trial process. Craig v Harney, 331 US 367, 377; 67 S Ct 1249; 91 L Ed 1546 (1947); People v Greeson, 230 Mich 124, 147; 203 NW 141 (1925). In those rare instances where this integrity is compromised by the creation of a "zoo atmosphere”, the result may be reversal of a criminal conviction. Sheppard v Maxwell, 384 US 333; 86 S Ct 1507; 16 L Ed 2d 600 (1966); Estes, supra. In those cases it was determined that the media severely intruded upon court decorum. And on the few occasions where extensive publicity mandated reversal in favor of a defendant, media coverage gave inordinately wide dissemination of critical information at crucial times. Rideau v Louisiana, 373 US 723; 83 S Ct 1417; 10 L Ed 2d 663 (1963); Irvin v Dowd, 366 US 717; 81 S Ct 1639; 6 L Ed 2d 751 (1961); Sheppard v Maxwell, supra.
During this past year the Supreme Court, in a 5-to-4 split opinion, held that the public has no affirmative constitutional right of access to a criminal pretrial proceeding. Gannett Co, Inc v DePasquale, 443 US 368; 99 S Ct 2898; 61 L Ed 2d 608 (1979). The Court reasoned that publicity concerning pretrial suppression hearings poses special risks of unfairness because potential jurors may be informed of inculpatory information inadmissible at trial. In the instant case, however, we are dealing with closure of the trial itself.
Ill
Our tracing of the historical development of the public trial concept causes us to reject the contention of respondent in this case. While in its inception at common law the public trial right was established for the benefit of the public alone, it later developed to include protections for the accused. These protections or benefits conferred by the Sixth Amendment and Article 1, §20, of the Michigan Constitution include freedom from judi cial or prosecutorial oppression, freedom from perjured testimony, and an assurance of basic fairness because transactions occur openly and publicly.
But in providing these protections to the accused, there was no intent to denigrate the interests of the public which are at the root of the public-trial guarantee. The very public itself has a substantial interest in assuring that justice is openly and fairly meted out in its name. The public must also be confident that its judicial representatives do not abuse the power which the public confers upon them.
While it is obvious that there are practical limitations on the ability of large numbers of the public to attend a trial, this should by no means inhibit the public’s interest in being informed. In this regard, the public must depend upon a vigorous press to keep it advised, as Justice White has noted:
"In the first place, in a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring him in convenient form the facts of those operations. * * * With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.” Cox Broadcasting Corp v Cohn, 420 US 469, 491-492; 95 S Ct 1029; 43 L Ed 2d 328 (1975).
Thus, the press, as a segment of the public, acts to assist the whole public in guaranteeing the openness and integrity of the trial process.
The trial participants, including the judge, may not necessarily appreciate or fully recognize the fundamental societal interests. Upon occasion the tactics of a defendant and prosecutor may coincide to demand closure. Perhaps due to indifference or mere timidity one party may accede by stipulation to a request by the other to hold a secret trial. Who, then, may truly stand to protect the people’s interest to know? We are convinced that this principle, deeply rooted in the common law, may be asserted by members of the public when deemed necessary.
We have concluded that an accused has no right to exclude the public from a trial by affirmative waiver. However, we further recognize, under extraordinary circumstances to preserve the due process right of a fair trial, an accused may request that the public’s access to a trial be limited or temporarily denied. Upon such rare occasion, the court must exercise its discretion in balancing competing interests. The judge must always carefully balance the fundamental common-law principle of open trials with the specific unusual circumstance that allegedly endangers a fair trial.
An accused who seeks closure has the heavy burden to show by a substantial probability that prejudicial error denying the accused a fair trial will result from proceeding in public. In addition, it must be shown by a substantial probability that closure will be effective in dealing with the danger and no alternatives to closure exist that would protect the fair trial right.
The accused here would, in effect, limit the public’s ability to attend and participate in the trial process. Not only would this limitation befall the public in general but also the press in particular. We find such limitation untenable. We are not unaware that one wrongfully accused can suffer acute embarrassment and damage to reputation through the trial process. However, because it is not only the accused who has interests in the tried process, any limitation on the public’s right to attend a trial must adhere to a standard that there is a substantial probability that prejudicial error denying the accused a fair trial will result.
Furthermore, in Michigan, this common-law principle of public access to trials has been codified by legislative pronouncement. It is the policy of this state, with certain specific exceptions, that "[t]he sittings of every court within this state shall be public”. This clear legislative declaration is fully compatible with the constitutional rights expressed in the Sixth Amendment and Article 1, § 20 of the Michigan Constitution. It also may be accommodated with due process rights requiring a fair trial.
In this case, the accused made no showing of substantial probability that prejudicial error denying the accused a fair trial would result if the trial were to proceed in public. There was no full and fair consideration given to the public’s interests in maintaining an open proceeding by the court prior to ordering the trial closed. Therefore, the order entered by the trial court excluding the public from attending the trial is reversed. No costs, a public question.
Kavanagh, Williams, and Fitzgerald, JJ., concurred with Blair Moody, Jr., J.
MCL 600.1420; MSA 27A.1420.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
We note that Article 1, § 20, Michigan Constitution of 1963 contains language similar to that of the Sixth Amendment:
"In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than 12 jurors in all courts not of record; to be informed of the nature of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to have the assistance of counsel for his defense; to have an appeal as a matter of right; and in courts of record, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.”
During the pendency of this case, the United States Supreme Court issued its opinion in Gannett Co, Inc v DePasquale, 443 US 368; 99 S Ct 2898; 61 L Ed 2d 608 (1979). That case involved whether members of the press and public have a constitutional right of access to attend criminal pretrial hearings.
Although the lead opinion of Mr. Justice Stewart could be read to apply to trials as well as pretrial exclusionary proceedings, Chief Justice Burger’s concurring opinion clearly recognized a distinction. The Chief Justice stated:
"By definition a hearing on a motion before trial to suppress evidence is not a trial; it is a pretrial hearing.
"At common law there was a very different presumption for proceedings which preceded the trial.” Gannett, 394 (Burger, C.J., concurring).
In making his point the Chief Justice quoted an old English case, Daubney v Cooper, 5 Manning & Ryland 314 (KB, 1829), where the distinction was drawn between trials and pretrial proceedings:
“[Counsel continued] 'Lord Tenterden there says, "This being only a preliminary inquiry and not a trial, makes, in my mind, all the difference.’”
"Parke, J. [interrupting] 'The decision in Cox v Coleridge [1 Barnewall & Cresswell 37; 107 Eng Rep 15 (KB, 1822)] turned upon its being a case of preliminary inquiry.’ Id., at 316-318 (emphasis in original).
"In sum, at common law, the courts recognized that the timing of a proceeding was likely to be critical.” (Footnote omitted.) Gannett, 395 (Burger, C.J., concurring).
The issue in the instant case involves the exclusion of the public from the trial itself.
After this opinion was completed, but before publication, this issue was addressed by the United States Supreme Court in Richmond Newspapers, Inc v Virginia, 448 US 555; 100 S Ct 2814; 65 L Ed 2d 973 (1980). The United States Supreme Court held that the right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendments of the United States Constitution.
It is well recognized that although an accused has the right to a jury trial, such right may be waived. People v Stoeckl, 347 Mich 1; 78 NW2d 640 (1956).
However, it has been also recognized that absolute deference need not be accorded an accused’s waiver of his right to trial by jury. In Singer v United States, 380 US 24; 85 S Ct 783; 13 L Ed 2d 630 (1965), the Court rejected the contention that an accused had an absolute right to waive his jury trial right and to be tried by a judge alone. The Court held that the grant of a bench trial to an accused may be conditioned upon the consent of the judge and prosecutor.
It is also well settled that Sixth Amendment rights may implicate interests beyond those of the accused. In Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), the Court found that a societal interest in providing a speedy trial existed separately from and potentially in opposition to the interests of the accused.
Smith, Sir Thomas, De Republica Anglorum (Alston, ed. Cambridge: University Press, 1906), Book 2, ch 15, p 79; ch 23, p 101.
Hale, History of the Common Law of England (Runnington, 6th ed), ch 12, p 345.
Note, The Right to a Public Trial in Criminal Cases, 41 NYU L Rev 1138 (1966).
I Stephen, Sir James Fitzjames, A History of the Criminal Law of England (London: MacMillan, 1883), p 350.
Radin, The Right to a Public Trial, 6 Temple L Quarterly 381, 389 (1932). The ecclesiastical courts of Great Britain incorporated many of the abuses attributed to the Inquisition. In these courts, the preliminary examination of the accused, the questioning of witnesses, and the trial of the accused were conducted in secret.
There is some conflict among the authorities as to whether the English Star Chamber proceedings were actually held in secret. It is known, however, that accused persons brought before the Star Chamber were often grilled in private and tortured, and were not allowed to assert common-law rules of criminal procedure in their behalf. Washburn, The Court of Star Chamber, 12 American L Rev 21, 25-31 (1877); Radin, The Right to a Public Trial, 6 Temple L Quarterly 381, 386-388 (1932).
The French lettre de cachet consisted of an order by the monarch which allowed the indefinite imprisonment or exile of a particular person without that person being given the opportunity to defend himself. See In re Oliver, 333 US 257, 269 fn 23; 68 S Ct 499; 92 L Ed 682 (1948).
3 Blackstone, Commentaries, ch 23; 6 Wigmore, Evidence (Chadbourn rev), § 1834.
Bentham, Rationale of Judicial Evidence, 6 The Works of Jeremy Bentham (Bowring, ed. Edinburgh: William Tait, 1843), p 355.
Bentham, Treatise on Judicial Evidence (1825), p 67.
The foregoing citations relating to the common-law development of public trials are selected reflections from a number of prominent scholars. The researcher may find similar analyses from legal writers compiled both in the majority and dissenting opinions of Gannett, supra.
5 Thorpe, American Charters, Constitutions and Organic Laws, 1492-1908 (Washington, DC: United States Government • Printing Office, 1909), p 3060. A further example of the adoption of the public trial concept is found in The Charter or the Fundamental Laws of West New Jersey agreed upon in 1676. A provision of Chapter XXIII reads:
"That in all publick courts of justice for tryals of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such tryals as shall be there had or passed, that justice may not be done in a comer nor in any covert manner, being intended and resolved, by the help of the Lord, and by these our Concessions and Fundamentals, that all and every person and persons inhabiting the said Province, shall, as far as in us lies, be free from oppression and slavery.” 5 Thorpe, p 2551.
Note, The Right to a Public Trial in Criminal Cases, 41 NYU L Rev 1138, 1140 (1966). See also Fenner & Koley, The Rights of the Press and the Closed Court Criminal Proceeding, 57 Neb L Rev 442 (1978); Note, Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 Harv L Rev 1899 (1978).
The right of an accused to demand a public trial has long been recognized as a fundamental right in Michigan jurisprudence. As early as 1879, the Court, In the Matter of Way, 41 Mich 299, 303; 1 NW 1021 (1879), stated without reservation:
"It is a fundamental rule of law and justice that prisoners shall have a fair and public trial, with every protection against oppressive and irregular action.”
See also, People v Micalizzi, 223 Mich 580; 194 NW 540 (1923); People v Yeager, 113 Mich 228; 71 NW 491 (1897); People v Murray, 89 Mich 276, 284; 50 NW 995 (1891).
Tanksley v United States, 145 F2d 58, 59 (CA 9, 1944); Davis v United States, 247 F 394, 398-399 (CA 8, 1917); People v Micalizzi, supra, 584-585; People v Yeager, supra, 230; People v Murray, supra, 290.
Commenting on the right of the public to attend a criminal proceeding, Chief Justice Warren in his concurring opinion in Estes v Texas, 381 US 532, 584; 85 S Ct 1628; 14 L Ed 2d 543 (1965), declared:
"[A] trial is public, in the constitutional sense, when a courtroom has facilities for a reasonable number of the public to observe the proceedings, which facilities are not so small as to render the openness negligible and not so large as to distract the trial participants from their proper function, when the public is free to use those facilities, and when all those who attend the trial are free to report what they observed at the proceedings.”
Although limiting the opinion to the issue presented regarding a pretrial proceeding, the lead opinion of Justice Stewart couched its reasoning in terms of a trial. Stewart opined that members of the public do not have an enforceable right to a public trial that can be asserted independently of the parties in litigation.
However, the concurrence of Chief Justice Burger specifically limited its analysis to relate to pretrial proceedings. Also, Justice Powell’s concurring opinion explicitly stated that a news reporter "had an interest protected by the First and Fourteenth Amendments in being present at the pretrial suppression hearing”. Gannett, 397 (Powell, J., concurring).
Significantly, the lead opinion found the actions of the trial judge “were consistent with any right of access the petitioner may have had under the First and Fourteenth Amendments”. Gannett, 392-393 (Stewart, J.). The Court recognized with approval that the trial judge in open court, after the filing of briefs, balanced the rights of the press and the public against the defendant’s right to a fair trial.
In United States v American Radiator & Standard Sanitary Corp, 274 F Supp 790 (WD Pa, 1967), defendants asserted that damage to their business reputation would result from any publicity concerning anti-trust charges pending against them. Damage to business reputation was rejected as an insufficient ground to support defendants’ request that the public and press be excluded from pretrial hearings.
Compare Gannett, 440 (Blackmun, J., dissenting):
"[A]n accused who seeks closure [is required] to establish that it is strictly and inescapably necessary in order to protect the fair trial guarantee.”
See also American Radiator, supra, where the defendants’ request to exclude the public from pretrial hearings was denied. Defendants made an insufficient demonstration that publicity would prejudice obtaining an impartial jury at trial.
In Phoenix Newspapers, Inc v Jennings, 107 Ariz 557, 560; 490 P2d 563 (1971), an order excluding the public and press from a pretrial hearing, upon defendant’s request, was held to be erroneous. The standard for ordering exclusion of the public was stated as follows:
"If circumstances exist which establish a clear and present danger that the judicial process will be subverted by an open hearing, appropriate action should be taken by a court to preserve judicial integrity. * * * Clear and present danger means that the substantive evil must be extremely serious and the degree of imminence extremely high.” (Citations omitted.) (Emphasis added.)
In State v White, 97 Ariz 196, 198; 398 P2d 903 (1965), the court held that the trial judge acted properly in partially complying with defendant’s motion to exclude all spectators from the trial, stating:
"[H]ere defendant is claiming he has a right to a secret trial. We find no merit in such an argument. The community is deeply interested in the right to observe the administration of justice and we feel the presence of its members at a public trial is as basic as that of a defendant. This in no way, however, deprives the trial court, in its sound discretion, to make reasonable exclusion orders consistent with the rights of the accused in a proper ease in the interest of public morals or safety.” (Emphasis added.)
The Court in Commercial Printing Co v Lee, 262 Ark 87, 95; 553 SW2d 270 (1977), held that the trial court erred by excluding the public during voir dire of the jury, pursuant to defendant’s request:
"|T|t would require unusual circumstances for this right [public’s right to attend a criminal trial] to be held subordinate to the contention of a defendant that he is prejudiced by a public trial (or any part thereof).” (Emphasis added.)
In State v Marshall, 166 Conn 593, 598; 353 A2d 756 (1974), the trial court’s refusal of defendant’s request to exclude a news reporter from a portion of the trial was held proper. The court explained:
"Nor do we believe that the defendant had an absolute right to exclude the newspaper reporter from the trial. As the United States Supreme Court observed in Craig v Harney, 331 US 367, 374; 67 S Ct 1249; 91 L Ed 1546 [1947]: 'A trial is a public event. What transpires in the court room is public property. * * * There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.’ ”
In State ex rel Gore Newspapers Co v Tyson, 313 So 2d 777, 782 (Fla Dist Ct App, 1975), the exclusion of the public and press from civil proceedings, pursuant to the request of both parties, was held to have been improper. The Court opined:
"The inherent power of the court to control the conduct of its own proceedings is not limited to criminal proceedings although most of the pronouncements regarding the exercise of this power have been made in criminal cases. A civil litigant is no less entitled to a fair and an impartial trial than a defendant in a criminal case; and where necessary, the court in furtherance of the litigants’ right to a fair trial may exclude the public and press in circumstances not unlike those found in criminal proceedings — but then only for the most cogent reasons.’’ (Emphasis changed.)
Finally, in Gannett Pacific Corp v Richardson, 59 Hawaii 224, 233; 580 P2d 49 (1978), the court set forth the following test for evaluating a defendant’s request to exclude the public from the preliminary examination:
"We think, therefore, while reaffirming this jurisdiction’s policy of openness in judicial proceedings, that traditional notions of fair play and impartial justice require that where the presiding judge, upon motion of the defendant for closure, determines that certain evidence sought to be introduced may be inadmissible at trial on the issue of guilt or innocence, but is admissible at a preliminary hearing on the question of probable cause, and further finds that there is a substantial likelihood that an open hearing as to that part of the proceedings would interfere with the defendant’s right to a fair trial by an impartial jury, a departure from this policy will be justified.” (Emphasis added.)
In People v Murray, supra, this Court noted that the predecessor to MCL 600.1420; MSA 27A.1420, had been in force since 1846. In rejecting a claim that under the statute certain members of the public could be excluded from the trial over defendant’s objection, the Court stated:
"Who is to decide who are the friends of the accused? The law makes no such test, but allows all citizens freely to attend upon any trial, whether civil or criminal. Instances have been referred to by Judge Cooley in his work upon Constitutional Limitations, 5th ed, at page 380 (star page 312), where, under certain circumstances, it might be proper to exclude a certain portion of the community from attending trials which would tend to degrade public morals, or would shock public decency, in which he says that at least the young should be excluded. There can be no objection to this, so long as citizens of the State who have arrived at the years of discretion and manhood are permitted to enter freely.” (Emphasis added.) Murray, supra, 291. | [
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Williams, J.
(for reversal). This is a case of first impression in this Court. Generally, it involves whether 17 prosecutor’s investigators employed in the Oakland County Prosecutor’s Department and represented by a separate collective bargaining unit therein may initiate compulsory, binding "public police and fire department” interest arbitration proceedings pursuant to 1969 PA 312. MCL 423.231 et seq.; MSA 17.455(31) et seq. (act or Act 312).
The Legislature, seeking to avoid the peril to public safety, order and welfare caused by "public police and fire department” critical-service work stoppages, enacted Act 312. The express purposes, objects, and mechanics of the act are codified in §§ 1, 2(1) and 3 respectively:
"Sec. 1. It is the public policy of this state that in public police and fíre departments, where the right of employees to strike is by law prohibited, it is requisite to the high morale of such employees and the efficient operation of such departments to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes, * * *.” MCL 423.231; MSA 17.455(31). (Emphasis supplied.)
"Sec. 2. (1) Public police and £re departments means any department of a city, county, village, or township having employees engaged as policemen, or in fire fighting or subject to the hazards thereof, emergency medical service personnel employed by a police or fire department, or an emergency telephone operator employed by a police or fire department.” MCL 423.232(1); MSA 17.455(32)(1). (Emphasis supplied.)
"Sec. 3. Whenever in the course of mediation of a public police or ñre department employee’s dispute * * * [an impasse is reached], the employees or employer may initiate binding arbitration proceedings * * MCL 423.233; MSA 17.455(33). (Emphasis supplied.)
In essence, pursuant to § 3 either "the employees or employer” of a §2(1) public police or fire "department * * * having employees engaged as policemen, * * * or subject to the hazards thereof’, may initiate binding interest arbitration proceedings to resolve a "public police or fire department employee’s dispute” where, as stated in § 1, "it is requisite to the high morale of such employees and the efficient operation of such departments” for averting critical-service work stoppages.
While the act as a whole was obviously engineered to avert critical-service work stoppages arising from the nonresolution of a "public police * * * department employee’s dispute”, the act is inherently ambiguous regarding eligibility to invoke its intended coverage. Although §§ 1, 2(1) and 3 each refer to a "public police or fire department” as the object of the act’s dispute resolution coverage, this object admits of three differing interpretations. These interpretations depend on whether one concentrates on (1) the literal status of the interested municipal department/employer, (2) the critical-service status of the complaining employee, or (3) the critical-service status of both guided by the legislative intent underlying the act as a whole.
The first interpretation concentrates sole attention on the status of the interested department/ employer and emerges from a literal reading of §2(1) alone. As such, regardless of the critical-service employment status of the particular complainant employee, if the interested department/ employer is a literal §2(1) county department having somewhere within its ranks more than one employee engaged subject to the hazards of police work, both itself and all of its employees may invoke the act as a statutorily-defined "public police department” employer or employee. The sole requisite for invocation of the act under this interpretation is a finding that the interested department of municipal government — whatever its principal function or charter, be it a city administrative department, a county library, or a township sanitation department-engage more than one employee in either police work or in a capacity subject to the hazards thereof. Literal satisfaction of the § 2(1) scope provision alone is thought sufficient to activate the entire Act 312 statutory scheme in favor of all departmental employees’ disputes; further, no reference is made to whether operation of the act in favor of this interested department/employer as well as each of its employees would effectuate the act’s manifest intent to avert critical-service work stoppages. This interpretation has been argued and rejected in dicta by at least two Court of Appeals panels.
The second interpretation focuses solely on the critical-service employment status of the complaining employee forwarding the dispute. As such, regardless of the critical-service nature of the interested municipal department/employer, if the complainant is found to be a county department employee subject to the hazards of police work pursuant to the literal terms of § 2(1), that party will be considered a §3 "public police * * * department employee” whose dispute may be resolved through initiation of Act 312 proceedings. Under this interpretation, literal satisfaction of the § 2(1) scope criterion that the complainant be subject to the hazards of police work is thought to engage the totality of inquiry without the necessity of considering whether invocation of the act’s proceedings to resolve that party’s dispute would effectuate the act’s manifest intent as a whole. This narrow interpretive analysis was employed by both the MERC and the Court of Appeals to hold the dispute of the instant prosecutor’s investigators subject to Act 312 arbitration; other panels of our Court of Appeals and the MERC, as well as the Attorney General have likewise pursued this singular interpretive analysis to resolve similar eligibility questions.
The third interpretation converges on the critical-service status of both the complainant employee and the interested department/employer. In accordance with this interpretation, it is only when both critical-service elements are satisfied that the act’s § 1 purpose and policy will be effectuated, i.e., to resolve a "public police * * * department employee’s dispute”, where "it is requisite to the high morale of such employees and the efficient operation of such departments” for averting critical-service work stoppages. Under this dual, whole-act interpretation, two premises must be satisfied. First, the particular complainant employee must be subject to the hazards of police work; it is not enough that the interested department/employer merely employ at least two persons engaged in that capacity who are not complainants. Second, the interested department/employer must be a critical-service county department engaging such complainant employees and haying as its principal function the promotion of the public safety, order and welfare so that a work stoppage in that department would threaten community safety; again, it is not enough that the interested department/employer merely employ at least two persons who fulfill the first premise whether or not complainants. Only when both premises are fulfilled may the benefits of Act 312’s "alternate, expeditious, effective and binding procedure for the resolution of a ["public police * * * department employee’s dispute”]” be initiated by the critical-service complainant, because it is "requisite to the high morale of such employees and the efficient operation of such departments”. Unlike its distinct interpretive counterparts, this third mode of interpretive analysis employs both the literal § 2(1) scope provision and the § 1 purpose provision in determining whether the championed dispute is embraced by the act’s intended coverage.
We are persuaded that the third mode of dual analysis is the appropriate one for ascertaining whether the instant prosecutor’s investigators may initiate Act 312 proceedings to resolve their dispute as critical-service "public police * * * department” employees. Applying that dual, third mode of interpretive analysis to the facts of this case, it emerges that although these investigators are subject to the hazards of police work and although the Oakland County Prosecutor’s Department is literally a county department engaging such employees, we are unpersuaded that the Oakland County Prosecutor’s Department constitutes an intended "public police department” so that allowing either itself or its investigators to resolve their dispute pursuant to Act 312 will effectuate the whole act’s intent as either (1) "requisite to the high morale of [the Oakland County Prosecutor’s Department] employees” or (2) requisite to "the efficient operation of [the Oakland County Prosecutor’s Department]” or (3) necessary for averting critical-service strikes which would likely impede the public safety, order and welfare. While the prosecutor’s investigators as well as the Oakland County Prosecutor’s Department each literally satisfy the requirements of the § 2(1) scope provision, invocation of the act to resolve their dispute is not embraced by the act’s paramount intent expressed in § 1 and discerned from case law since the Oakland County Prosecutor’s Department does not constitute an intended critical-service "public police department”.
For these reasons, we hold that the instant dispute is not subject to Act 312 coverage. As this Court early stated in Common Council of Detroit v Rush, 82 Mich 532, 542; 46 NW 951 (1890):
"[A] thing which is within the spirit of a statute is within the statute, although not within the letter; and a thing within the letter is not within the statute, unless within the intention.”
Accordingly, we reverse both the MERC and the Court of Appeals.
I. Facts
Appellee Metropolitan Council 23, American Federation of State, County and Municipal Employees, AFL-CIO, is the labor representative for a separate bargaining unit of 17 prosecutor’s investigators employed by the Oakland County Prosecutor’s Department as authorized by MCL 49.31; MSA 5.791. In April, 1977, appellee and appellant Oakland County reached an impasse in their negotiations to establish a labor contract. Appellee thereupon sought submission of the dispute to MERC for compulsory interest arbitration as "employees” of a "public police * * * department”. MCL 423.233; MSA 17.455(33). Appellant challenged this request on the ground that the complaining prosecutor’s investigators did not come within the act’s § 2(1) statutory purview as "policemen, * * * or subject to the hazards thereof’. MCL 423.232(1); MSA 17.455(32X1).
On October 6, 1977, MERC conducted a hearing to determine whether the prosecutor’s investigators could properly invoke the Act 312 arbitral mechanism. Two witnesses — prosecutor’s investigators — testified on behalf of appellee; appellant presented no witnesses.
At the hearing it was developed that the 17 prosecutor’s investigators were assigned to four divisions of the Oakland County Prosecutor’s Department as follows: Organized Crime Strike Force, 7; Criminal Investigation, 5; Welfare Fraud, 4; and Consumer Fraud, 1. As their title implies, the principal function of these individuals involved surveillance and investigation necessary to assist the County Prosecutor and his Assistants in the prosecution of criminal activity in Oakland County; their function did not include the per se prevention of criminal activity at its inception. All four divisions were supervised by a Chief Criminal Investigator, a former police officer and detective, who reported to the Prosecutor.
Of the 17 investigators, 15 had prior police experience and, at the time of the hearing, were deputized by the Oakland County Sheriff; their deputization was subsequently withdrawn effective July, 1978. The two remaining nondeputized investigators who did not share prior police experience were described as engaged in duties substantially similar to those of their deputized colleagues.
Testimony was elicited that the investigators were required to carry a weapon by oral directive of their division supervisor; this was not required by departmental regulation of the Oakland County Prosecutor. On occasion, the investigators had found it necessary to employ their weapons. Certain investigators had suffered non-weapon-related injury in the execution of their investigatory functions.
It was related that although the specific investigative tasks of the prosecutor’s investigators varied from division to division, as a result of their investigations they made arrests, booked and "mugged” prisoners and prepared arrest reports. Indeed, one witness testified that in the first nine months of 1977, the investigators had effected approximately 190 arrests during their investigations of various completed criminal offenses. Although they were wholly under the aegis of the Oakland County Prosecutor’s Department, it was reported not to be uncommon for the prosecutor’s investigators to cooperate with both state and local police detectives.
Although appellant presented no witnesses, it countered in its opening argument that since the investigators were primarily engaged in the performance of investigative duties collateral to prosecution rather than enforcement, were not subject to the daily encounters of front-line police officers, and did not function in a manner "critical” to the maintenance of public order and safety, they could not properly be characterized as "policemen * * * or subject to the hazards thereof’.
On the basis of the record, as well as the parties’ briefs, 'on March 8, 1978 the MERC issued its decision and order favorable to the investigators as being within the § 2(1) scope of Act 312, stating:
"On the basis of this record, we find that the duties of the Oakland County Prosecutor’s Investigators go beyond the information-gathering process and directly involve them in law enforcement. See Oakland County Sheriffs Dep’t, [1977] MERC Lab Op 843. Although they do not carry the title of 'police officer,’ we find that the record supports the conclusion that they are clearly subject to the hazards of police work and thus within the scope of Act 312.” Oakland County (Prosecutor’s Investigators), 1978 MERC Lab Op 328, 331-332. (Emphasis supplied.)
On April 16, 1979, the Court of Appeals affirmed the MERC ruling as supported by competent, material and substantial evidence on the whole record. In the Matter of the Petition of Metropolitan Council 23, AFSCME, 89 Mich App 564, 569-573; 280 NW2d 600 (1979). The Court of Appeals opined that MERC had "applied the correct statutory standard in its decision below [i.e., "the sole statutory precondition for invoking Act 312, other than employment by a municipal or county department, is that the employees be ‘either police officers or subject to the hazards of police officers’”]”, id., 570, and held that "the evidence adduced at the MERC hearing substantially supports MERC’s conclusion that the investigators are subject to the same hazards confronting police officers and may invoke compulsory arbitration under Act 312”, id., 572-573 (emphasis supplied).
We granted leave to appeal on July 19, 1979. 406 Mich 1011 (1979). Oral argument was heard on January 10,1980.
II. Principles of Statutory Construction: The Whole Act
From the litigant’s viewpoint in statutory litigation of this type, the practical inquiry is usually framed in the basic determination of a particular provision’s, clause’s or word’s meaning. Unremarkably, to satisfactorily fulfill that inquiry one must proceed in the same manner one would in considering any other composition — construe the object of inquiry with reference to the leading idea or purpose of the whole instrument. Indeed, much like any other literary composition, a statute is enacted as a whole rather than in parts or sections and is animated by one general purpose and intent. Consequently, each part or section must be considered in connection with every other part or section and the meaning ascribed to any one sec tion arrived at after due consideration of the act as a whole so as to produce, if possible, a harmonious and consistent enactment as a whole. Grand Rapids v Crocker, 219 Mich 178, 182-184; 189 NW 221 (1922). Sometimes, it is possible to construe an act by dividing it by a process of etymological dissection, apply to each word, clause or provision thus separated from its context some particular meaning given by lexicographers, and then rigidly reconstruct the instrument upon the basis of those intrinsic meanings. More often, however, an act must be construed as a whole, and the particular effect to be attached to any word, clause or provision determined from the context of the whole act, the nature of the treated subject matter, and the purpose or intention of the body which promulgated the act.
While it is axiomatic that this Court must enforce clear and unambiguous statutory provisions as written, Nordman v Calhoun, 332 Mich 460, 465; 51 NW2d 906 (1952); Ypsilanti Police Officers Ass’n v Eastern Michigan University, 62 Mich App 87, 92; 233 NW2d 497 (1975), it is equally true that "[w]hat is 'plain and unambiguous’ often depends on one’s frame of reference”. Shiffer v Board of Education of Gibraltar School Dist, 393 Mich 190, 194; 224 NW2d 255 (1974). The whole act provides this proper "frame of reference” in cases of statutory construction: "A statutory provision that is in dispute must be read in light of the general purpose of the act and in conjunction with the pertinent provisions thereof.” Romeo Homes, Inc v Comm’r of Revenue, 361 Mich 128, 135; 105 NW2d 186 (1960).
It is equally axiomatic, therefore, that "the intention of the Legislature, when discovered, must prevail, any existing rule of construction to the contrary”. Michigan Central R Co v Michigan, 148 Mich 151, 156; 111 NW 735 (1907). Neither clinical construction nor the letter of the statute nor its rhetorical framework should be permitted to defeat the act’s purpose and intent as gathered from consideration of the whole act. As eloquently stated by Justice Grant in Common Council of Detroit v Rush, 82 Mich 532, 542; 46 NW 951 (1890): "[A] thing which is within the spirit of a statute is within the statute, although not within the letter; and a thing within the letter is not within the statute, unless within the intention.” This principle was more recently stated in Aikens v Dep’t of Conservation, 387 Mich 495, 499; 198 NW2d 304 (1972): "It is well settled that the proper construction of any statute is for the court. The purpose of the court in interpreting a statute is to give effect to the legislative intent. If there is a conflict, the spirit and purpose of the statute should prevail over its strict letter.” (Citations omitted.)
In such instances of conflict, courts "are authorized to collect the intention of the Legislature from the occasion and necessity of the law — from the mischief felt, and the objects and remedy in view; and the intention is to be taken, or presumed, according to what is consonant to reason and good discretion”. Sibley v Smith, 2 Mich 486, 492 (1853). " 'Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it’ ” so that those unintended ends are avoided. Elba Twp v Gratiot County, 287 Mich 372, 394; 283 NW 615 (1939). This fundamental rule of statutory construction was recently reaffirmed in Salas v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976), where it was remarked: "[Departure from the literal construction of a statute is justified when such construction would produce an absurd and unjust result and would be clearly inconsistent with the purposes and policies of the act in question.”
III. The Legislative Intent of Act 312
Since §§ 1, 2(1) and 3 evidence an inherent ambiguity respecting "public police department” eligibility to invoke the act’s benefits for resolving a "public police * * * department employee’s dispute”, resort must be made to a determination of the act’s underlying intent. Once this intent is discerned, that ambiguity must be resolved in such a manner as to effectuate the Legislature’s intendment.
In response to a February, 1967 Report of the Governor’s Advisory Committee on Public Employee Relations, Act 312 was enacted in 1969 as an experiment designed to relieve the tension involved in the "limited area” of "police and fire fighters” labor disputes. Dearborn Fire Fighters Union Local No 412, IAFF v Dearborn, 394 Mich 229, 279, fn 5; 231 NW2d 226 (1975) (opinion of Coleman, J.). As stated in § 14, MCL 423.244; MSA 17.455(44), Act 312 was enacted as supplemental to the public employment relations act (PERA) which prohibits strikes by all public employees but, significantly, does not provide for binding arbitration of their interest disputes. MCL 423.201 et seq.; MSA 17.455(1) et seq.
As a consequence of the fact that illegal strikes in the public sector nonetheless resulted from negotiation impasses, Act 312 was enacted "to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes ["in public police and fire departments, where the right of employees to strike is by law prohibited”]”, MCL 423.231; MSA 17.455(31). The availability of the act’s "alternate * * * and binding procedure” was legislatively deemed necessary to effectuate the "public .policy of this state that in public police and fire departments, * * * it is requisite to the high morale of such employees and the efficient operation of such departments”. MCL 423.231; MSA 17.455(31).
Although as originally enacted §2 merely defined "[p]ublic police and fire departments” to include "[county department] employees engaged as policemen, * * * or subject to the hazards thereof’, 1969 PA 312, it was subsequently amended in both 1976 and 1977 to embrace "emergency medical service personnel employed by a police or fire department [1976 PA 203], or an emergency telephone operator employed by a police or fire department [1977 PA 303]”, MCL 423.232(1); MSA 17.455(32)(1); expressly excluded from the act’s scope by the former amendment were persons employed by a private, contracting emergency medical service company as well as emergency service personnel "whose duties are solely of an administrative or supporting nature”. MCL 423.232(3); MSA 17.455(32X3). In the analysis of 1976 House Bill 5371 prepared by the Analysis Section of the House of Representatives Committee on Labor which considered the emergency medical service personnel amendment, it emerges that this legislative modification was addressed to the position of the City of Detroit that "since [civilian] EMS personnel were not engaged in actual police or fire work” they could not invoke the act’s provisions. In the Analysis Section summary of the "argument against” the inclusion of such parties, it was remarked by the Analysis Section that "[t]he intent of Act 312 is to ensure against a strike by employees whose service is unique and essential, and EMS personnel do not fit this criteria [sic]” The thrust of the "argument for” their inclusion was succinctly stated:
"The obvious intent of the Legislature was to forestall any serious disruption of ["municipal police and fire departments”], not only of a particular group of employees within the department. * * * The service [emergency medical service personnel] provide is as valuable to the public as that provided by other fire or police department employees, and a disruptive labor dispute among these employees would be just as detrimental to the public welfare as a strike by policemen or firemen. These employees need and deserve the protection of the act.”
Comparing the practical impact of the PERA and Act 312 supplementary concepts, now-Chief Justice Coleman summarized the raison d’étre of the compulsory interest arbitration scheme in the following terms:
"PERA procedurally requires the parties to meet at the bargaining table and confer in good faith with an open mind and a sincere desire to reach an agreement. It does not mandate agreement. If the parties fail to agree on one or more mandatory subjects, an 'impasse’ situation is reached and the employer may take unilateral action on an issue consistent with its final offer to the employees’ representative. The duty to bargain is then suspended until there is a change in the surrounding conditions or circumstances.
"In the private sector 'impasse’ often results in a strike. The employees refuse to accept the unilateral conditions imposed by the employer and withhold their services as a bargaining weapon. In the public sector strikes are prohibited but nevertheless occur. If the public employees do strike, the public employer may resort to the courts in order to return the labor situation to the status quo. By the time that court relief is obtained, however, the public may well have been left for a long period without the services and protection of the striking employees.
"When policemen engage in a strike, the community becomes immediately endangered by the withdrawal of their services. Likewise, our case law has often focused on the fact that fire fighters have a distinct and crucial employment relationship with a public employer.
"The Legislature, with knowledge of the vital character of police and fire services and with reference to the specific recommendations of the Governor’s Advisory Committee on Public Employee Relations (February, 1967) moved to foreclose strikes to police officers and fire fighters by enacting 1969 PA 312.” Dearborn, supra, 278-279 (footnotes omitted).
In Dearborn, supra, four members of this Court had occasion to assess the constitutional propriety of Act 312. In this pursuit, the purpose as well as legislative intent underlying the act’s provisions were variously described by three Justices.
As quoted above, Justice Coleman discerned that the Legislature promulgated Act 312 "with knowledge of the vital character of police and fire services”, id., 279, including the characteristic that "[w]hen policemen engage in a strike, the community becomes immediately endangered by the withdrawal of their services”. Id.
Implicitly distinguishing Act 312 compulsory binding interest arbitration from PERA grievance arbitration, Justice Levin cast the former in terms of "a new concept designed to avoid the disastrous economic and social consequences of labor strife” and having as "its underlying rationale: the preservation and advancement of the public interest”. Id., 255. "It is the public interest which justifies governmental intervention and governmental imposition of a resolution upon the parties so that the flow of essential goods and services may continue and the economy and government can function in an orderly and productive manner.” Id., 255. Justice Levin summarized the legislative intent animating Act 312 as follows:
"The challenged act represents a legislative attempt to prevent the dire consequences of strikes or work stoppages by certain public employees — policemen and firemen.” Id., 247.
As characterized by Justice Williams: "Compulsory [interest] arbitration is a practical response to the impasse experienced from time to time in collective bargaining where the public welfare cannot endure the impact of a work stoppage while awaiting the resolution of problems through normal negotiations”. Id., 292-293. The principal advantage of the Act 312 arbitration scheme was described by Justice Williams as providing a "successful and effective labor management tool that has prevented costly work stoppages which could produce crisis situations”. Id., 323.
These various formulations of the legislative intent underlying Act 312 were tersely expressed by our Court of Appeals in Lincoln Park Detention Officers v Lincoln Park, 76 Mich App 358, 364-365; 256 NW2d 593 (1977), where it was held that a voluntary association of two detention officers employed in the county police department were outside "of the Legislature’s intended scope of the act” since their coverage would not effectuate the intent that "[w]ork stoppages by certain public employees, e.g., police officers and fire fighters, can threaten the safety of the entire community, Dear- born * * *, supra, at 247, 279, 293, and these statutes aim at preventing such work stoppages”. See Metropolitan Council 23 v Center Line, 78 Mich App 281, 284; 259 NW2d 460 (1977). See also Oakland County Sheriff's Dep't, 1977 MERC Lab Op 843, 847 ("Act 312, * * * was enacted in order to prevent strikes in the most vital areas of public safety.”).
Thus, although variously described, it is evident that Act 312 was legislatively intended to provide an alternate, binding procedure for the resolution of interest disputes in critical-service municipal police and fire departments as well as the aversion of otherwise proscribed critical-service strikes which, because of the vital, unique and essential character of police and fire services, would likely cause an imminent, serious threat to the public order, safety and welfare as well as undermine the high morale and efficient operation of the departments.
IV. Discussion
Guided by the manifest intent of Act 312 to avert critical-service work stoppages and the statutory maxims that "a thing within the letter is not within the statute, unless within the intention”, Common Council of Detroit, supra, 542, and "departure from the literal construction of a statute is justified when such construction would produce an absurd and unjust result and would be clearly inconsistent with the purposes and policies of the act in question”, Salas, supra, 109, we are now prepared to assess the three interpretations set forth to determine whether a "public police * * * department employee’s dispute” is presented on the facts of this case.
A. Status of the Interested Department/Employer
Section 2(1) provides in pertinent part that "[p]ublic police * * * departments means any department of a * * *, county, * * * having employees engaged as policemen, * * * or subject to the hazards thereof’. Guided by a literal reading of § 2(1) alone, the first interpretation concentrates sole attention on the status of the interested department/employer. If the interested department/ employer is (i) a department, (ii) of a county, (iii) having somewhere within its ranks, not limited to the particular complaining employee, (iv) more than one employee engaged subject to the hazards of police work, then, pursuant to § 3, either "the employees or employer may initiate binding arbitration proceedings” to resolve "a public police * * * department employee’s dispute”.
By the literal terms of § 2(1), fulfillment of the four composite elements is thought sufficient under this first, literal interpretation to activate the Act 312 statutory scheme in favor of all departmental employees’ disputes provided more than one county department employee is engaged in a capacity subject to the hazards of police work. This is so regardless of either the interested department’s/employer’s principal function or charter— e.g., city administrative department, county library, township sanitation department — or the complaining employee’s station — e.g., janitor, cook, clerical. Confined by this literal interpretation of § 2(1), no reference is made to whether operation of the act in favor of either this interested department/employer or each of its employees would effectuate the act’s manifest intent to avert critical-service work stoppage although literally presented with a §2(1) "public police * * * department”.
Theoretically, therefore, if a county library employed two individuals somewhere within its ranks in a capacity subject to the hazards of police work, and a library receptionist sought Act 312 resolution of an interest dispute with the library employer, the act’s "alternate, expeditious, effective and binding procedure for the resolution of disputes” would become available to the receptionist as a § 3 "public police * *• * department employee”. As stated in § 1, permitting that receptionist to initiate Act 312 proceedings would arguably be "requisite to the high morale of such [county library] employees and the efficient operation of such [county library] departments” for averting critical-service work stoppages.
Although the literal terms of §2(1) would require us to conclude that the theoretical county library is a "public police department” subject to Act 312 coverage because of its literal status, we are unpersuaded that the Legislature intended such an absurd result. Two panels of our Court of Appeals have rejected similar interpretations in dicta.
We are likewise unpersuaded that the Legislature intended these prosecutor’s investigators’ dispute to be resolved in accordance with the Act 312 mechanism. Literally, although these investigators are subject to the hazards of police work and are engaged in such capacity by a county department, we feel that submission of their dispute to Act 312 arbitration would not effectuate the general legislative intent to avert critical-service work stoppages. Reading the act as a whole and guided by the act’s manifest intent, we must conclude that, much like the example of the theoretical county library employing two persons subject to the haz ards of police work and the theoretical library receptionist, to permit the investigators’ dispute to achieve Act 312 status solely because the Oakland County Prosecutor’s Department literally fulfills the four elements of § 2(1) would be neither consonant with the legislative intent nor sound reason. Where, as here, " 'the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it,”’ so that those unintended ends are avoided. Elba Twp, supra, 394. "[A] thing within the letter is not within the statute, unless within the intention.” Common Council of Detroit, supra, 542.
"[Departure from the literal construction of a statute is justified when such construction would produce an absurd and unjust result and would be clearly inconsistent with the purposes and policies of the act in question.” Salas, supra, 109. We do not perceive that the Legislature intended compulsory interest arbitration in favor of the Oakland County Prosecutor’s Department to constitute "a practical response to the impasse experienced from time to time in collective bargaining where the public welfare cannot endure the impact of a work stoppage while awaiting the resolution of problems through normal negotiations”. Dearborn, supra, 292-293 (opinion of Williams, J.).
B. Critical-Service Status of the Complaining Employee
Also reading § 2(1) alone, the second interpretation focuses sole attention on the critical-service status of the complaining employee. Under this interpretation, regardless of the critical-service nature of the interested municipal department/ employer, if the complainant constitutes more than one (i) county (ii) department (iii) employee (iv) subject to the hazards of police work, then that particular complainant will be considered a §3 "public police * * * department employee” whose dispute may be resolved through initiation of Act 312 proceedings. Literal satisfaction of the §2(1) scope criterion that the county department employee be subject to the hazards of police work is thought to engage the totality of inquiry without the necessity of considering whether invocation of the act’s proceedings to resolve that party’s dispute would effectuate the whole act’s intent to avert critical-service work stoppages.
Under this interpretation, the two individuals employed by the hypothetical county library in a capacity subject to the hazards of police work could invoke the act’s significant benefits as being "requisite to the high morale of such [county library] employees and the efficient operation of such [county library] departments” for averting critical-service work stoppages. Sole emphasis is placed on the complaining employees’ situation regardless of the interested department’s/employer’s principal function or character.
It is evident that the parties, the MERC and the Court of Appeals have each adopted this interpretation to determine whether these prosecutor’s investigators may invoke the benefits of Act 312 to resolve their dispute by solely concentrating on the perceived polestar whether the investigators are within the act’s § 2(1) literal scope as "subject to the hazards [of county department employees engaged as police officers]”. That the parties and instant lower tribunals have exclusively devoted their energies to this single interpretive pursuit is borne out by the parties’ testimony and argu ments, MERC’s express holding that "[although [these prosecutor’s investigators] do not carry the title of 'police officer’, * * * they are clearly subject to the hazards of police work and thus within the scope of Act 312”, Oakland County, supra, 331-332, and the Court of Appeals ruling in affirmance that MERC "applied the correct statutory standard in its decision below [i.e., "the sole statutory precondition for invoking Act 312 other than employment by a municipal or county department, is that the employees be 'either police officers or subject to the hazards of police officers’ ”]”, Petition of Metropolitan Council 23, supra, 570.
The occasion of such narrow analytic focus is certainly not surprising since it has likewise been employed by others — including other Court of Appeals panels, the MERC and the Attorney General —in seeking to answer whether similarly situated complainants may invoke Act 312.
As succinctly stated in Detroit v General Foods Corp, 39 Mich App 180, 190; 197 NW2d 315 (1972):
"When a court reviews an administrative tribunal decision, it reviews the original record to determine if the decision is supported by competent, material and substantial evidence, and will overturn a decision only when such decision is contrary to law, or is not supported by the necessary competent, material and substantial evidence.” (Emphasis in original.) See Const 1963, art 6, §28; MCL 24.306, subds (d) and (f); MSA 3.560(206), subds (d) and (f). See also MCL 423.23(2)(e); MSA 17.454(25)(2)(e), MCL 423.242; MSA 17.455(42).
In reviewing the MERC finding in. this matter that the prosecutor’s investigators "are clearly subject to the hazards of police work and thus within the scope of Act 312”, Oakland County, supra, 331-332, the Court of Appeals stated that it would "not reverse MERC’s decision if it is supported by competent, material and substantial evidence on the whole record”. Petition of Metropolitan Council 23, supra, 571. After reviewing the whole record, the panel held that "the evidence adduced at the MERC hearing substantially supports MERC’s conclusion that the investigators are subject to the same hazards confronting police officers and may invoke compulsory arbitration under Act 312”. Id., 572-573. This conclusion apparently proceeded from the panel’s notion that "the sole statutory precondition for invoking Act 312, other than employment by a municipal or county department, is that the employees be 'either police officers or subject to the hazards of police officers.’ ” Id., 570.
We agree in part and disagree in part with the rulings of both the MERC and the Court of Appeals.
Cognizant of our limited standard of review of administrative factual findings summarized in General Foods Corp, supra, as to the limited factual finding that these investigators are "subject to the hazards [of police work]”, we agree that this ruling is supported by competent, material and substantial evidence on the whole record. Guided by this facet of our restrictive standard of review, we afford due deference to administrative expertise and decline to "invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views”. Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974).
Beyond this factual ruling, however, we hold that both the MERC and the Court of Appeals erred as a matter of law in permitting these investigators to initiate Act 312 proceedings simply because they are county department employees subject to the hazards of police work. Both tribunals erred in merely addressing whether six isolated words found in the § 2(1) scope provision had been literally satisfied without any consideration given to the harmonious and consistent effectuation of the legislative intent underlying the act as a whole to avert critical-service work stoppages. Fulfillment of these six isolated words is not, as the Court of Appeals apparently thought, "the sole statutory precondition for invoking Act 312”. Petition of Metropolitan Council 23, supra, 570.
Rather than engaging the totality of inquiry, we regard these literal terms of § 2(1) as merely providing an isolated benchmark for ascertaining whether a complainant comes within the act’s literal scope as distinguished from its conditio sine qua non — the act’s intendment. Conditio praecedens adimpleri debet priusquam sequatur effectus. To terminate inquiry at the isolated juncture of these six words blinks the reality that Act 312 must be considered as a whole. The particular effect to be attached to the finding that a complainant is subject to the hazards of police work must be derived from the whole act, the nature of the treated subject matter, and the purpose or intention of the promulgating body so as to ultimately effectuate the manifest legislative intent and to avoid unintended, absurd or unjust results. Guided by these time-honored notions of statutory construction, we must conclude that in disregarding the legislative intent of the act as a whole, the lower tribunals chose to exalt form over substance, defying the maxim that "a thing within the letter is not within the statute, unless within the inten tion”. Common Council of Detroit, supra, 542. As in the example of the two county library complainants, permitting these investigators’ dispute to achieve Act 312 status simply because they are Oakland County Prosecutor’s Department employees subject to the hazards of police work would be neither consonant with sound reason nor good judgment in effectuating the legislative intent to avert critical-service work stoppages.
Act 312 was legislatively intended to provide an alternate, expeditious, effective and binding procedure for the resolution of interest disputes and the aversion of otherwise proscribed critical-service strikes which, because of the vital, unique and essential character of police and fire services, would likely cause an imminent, serious threat to the public order, safety and welfare as well as undermine the high morale and efficient operation of the subject departments. Because of the noncritical-service nature of the Oakland County Prosecutor’s Department, we are unpersuaded that permitting these 17 prosecutor’s investigators to invoke the supplemental provisions of Act 312 would effectuate this legislative intent in either any of its specifics or as a whole although the investigators are arguably subject to the hazards of county department employees engaged as police.
We cannot perceive that invoking Act 312 to resolve this dispute would be either "requisite to the high morale of [the Oakland County Prosecutor’s Office] employees” or requisite to "the efficient operation of [the Oakland County Prosecutor’s Office]”. Like any other public employee of this state, these prosecutor’s investigators are proscribed from striking by the supplementary dictates of PERA. Thus, they may resort to its provisions for labor dispute protections in general with out the necessity of invoking Act 312’s "alternate expeditious, effective and binding procedure for the resolution of disputes”. Because of the principal function of the Oakland County Prosecutor’s Department, even if these prosecutor’s investigators were to evade PERA and engage in an illegal strike upon the occasion of an impasse, we are unpersuaded that, prior to the obtainment of court relief pursuant to PERA, such illegal activity would invade the public order, safety and welfare and endanger the community in a manner even similar to that contemplated by Act 312. Given the Prosecutor’s Department’s practical duties, permitting these prosecutor’s investigators to invoke the benefits of Act 312 would neither "prevent the dire consequences of strikes or work stoppages by certain public employees”, Dearborn, supra, 247 (opinion of Levin, J.), nor engage "a practical response to the impasse experienced from time to time in collective bargaining where the public welfare cannot endure the impact of a work stoppage while awaiting the resolution of problems through normal negotiations”, Dearborn, supra, 292-293 (opinion of Williams, J.). Furthermore, unlike the successful argument for inclusion of emergency medical service personnel in § 2(1), we cannot perceive that "[t]he service [these 17 Oakland County Prosecutor’s Department investigators] provide is as valuable to the public as that provided by other fire or police department employees, and a disruptive labor dispute among these employees would be just as detrimental to the public welfare as a strike by policemen or firemen”. Analysis of 1976 House Bill 5371, supra. Neither clinical construction nor the letter of the statute nor its rhetorical framework should be permitted to defeat the act’s manifest intent and purpose gathered from consideration of the act as a whole.
C. Critical-Service Status of Both the Interested Department Employer and the Complaining Employee
As we have just discussed, it is only when both the complaining employee and the interested department/employer enjoy critical-service status that invocation of Act 312 will effectuate its purpose and policy, i.e., to resolve a "public police * * * department employee’s dispute” where "it is requisite to the high morale of such employees and the efficient operation of such departments” for averting critical-service work stoppages.
Under this dual, whole-act interpretation, two premises must be satisfied. First, the particular complainant employee must be subject to the hazards of police work; it is not enough that the interested department/employer merely employ at least two persons engaged in that capacity who are not complainants. Second, the interested department/employer must be a critical-service county department engaging such complainant employees and having as its principal function the promotion of the public safety, order and welfare so that a work stoppage in that department would threaten community safety; again, it is not enough that the interested department/employer merely employ at least two persons who fulfill the first premise whether or not complainants. Only when both premises are fulfilled may the benefits of Act 312’s "alternate, expeditious, effective and binding procedure for the resolution of [a "public police * * * department employee’s dispute”]” be initiated by the critical-service complainant, because it is "requisite to the high morale of such employees and the efficient operation of such departments”. Unlike its distinct interpretive counterparts, this third mode of interpretive analysis employs both the literal § 2(1) scope provision and the § 1 purpose provision in determining whether the dispute is embraced by the act’s intended coverage.
We are persuaded that the third mode of dual analysis is the appropriate one for ascertaining whether the instant prosecutor’s investigators may initiate Act 312 proceedings to resolve their dispute as critical-service "public police * * * department” employees. Applying that dual third mode of interpretive analysis to the facts of this case, it emerges that although these investigators are subject to the hazards of police work and although the Oakland County Prosecutor’s Department is literally a county department engaging such employees, we are unpersuaded that the Oakland County Prosecutor’s Department constitutes an intended "public police department” such that allowing either itself or its investigators to resolve their dispute pursuant to Act 312 will effectuate the whole act’s intent as either (1) "requisite to the high morale of [the Oakland County Prosecutor’s Department] employees” or (2) requisite "to the efficient operation of [the Oakland County Prosecutor’s Department]” or (3) necessary for averting critical-service strikes which would likely impede the public safety, order and welfare. While the prosecutor’s investigators as well as the Oakland County Prosecutor’s Department each literally satisfy the requirements of the § 2(1) scope provision, invocation of the act to resolve their dispute is not embraced by the act’s paramount intent expressed in § 1 and discerned from case law since the Oakland County Prosecutor’s Department does not constitute an intended critical-service "public police department”.
V. Conclusion
Guided by the standard of review for assessing administrative action, we uphold the MERC factual finding that the instant complainants are "subject to the hazards [of county department employees engaged as police officers]” as supported by competent, material and substantial evidence on the whole record, but hold that both tribunals erred as a matter of law in ruling that these complainants may invoke Act 312 as having fulfilled "the sole statutory precondition for invoking Act 312, * * * that the employees be 'either police officers or subject to the hazards of police officers’ Petition of Metropolitan Council 23, supra, 570. Guided by time-honored principles of statutory construction, and construing the act as a whole so as to effectuate its manifest intent as codified in § 1 and discerned from case law, we hold that permitting these investigators to invoke the act would be contrary to the legislative intent and would arguably lead to absurd and unjust results for which there is an otherwise acceptable and supplementary remedy, PERA. As remarked in Common Council of Detroit, supra, 542, "[A] thing within the letter is not within the statute, unless within the intention.” Accordingly, we reverse both the MERC and the Court of Appeals. No costs, a public question being involved.
Coleman, C.J., and Fitzgerald, J., concurred with Williams, J.
In Lincoln Park Detention Officers v Lincoln Park, 76 Mich App 358; 256 NW2d 593 (1977), a voluntary association of two detention officers employed by the Lincoln Park Police Department was held to be outside of the §2(1) scope of Act 312 because not comprised of "policemen * * * or subject to the hazards thereof’. Proceeding from the determination that Act 312 was legislatively forged to prevent work stoppages by certain public employees which would threaten community safety, the Court of Appeals remarked:
"Although it can be argued that a strike by noncritical police department employees could burden police officers with nonemergency duties, thereby adversely aifecting the operation of the entire department and possibl[y] causing indirect harm to the public due to weaker patrols or overworked officers, we do not think that the act was meant to be so all-encompassing. Work stoppages by almost any group of public employees could theoretically cause an extra burden on the police department. For example, a strike by street and highway personnel could cause defective traffic lights to become unreported and force some police officers to shift to traffic directing duties thereby weakening other sections of the police force.” Id., 365.
A similar argument was posited and rejected in dicta by another panel in Ypsilanti Police Officers Ass’n v Eastern Michigan University, 62 Mich App 87; 233 NW2d 497 (1975), with respect to the relationship of Ypsilanti Police Department officers and campus police of the University.
Oakland County (Prosecutor’s Investigators), 1978 MERC Lab Op 328, 331-332.
In the Matter of the Petition of Metropolitan Council 23, AFSCME, 89 Mich App 564, 562-573; 280 NW2d 600 (1979).
In Lincoln Park Detention Officers v Lincoln Park, 76 Mich App 358, 365-366; 256 NW2d 593 (1977), a voluntary association of two detention officers employed by the Lincoln Park Police Department were held to be outside of the §2(1) scope of Act 312 because not "policemen * * * or subject to the hazards thereof’. More recently, however, in Local No 214, Teamsters v Detroit, 91 Mich App 273; 283 NW2d 722 (1979), another panel held guards of the Detroit House of Correction employed by the City of Detroit to be within the §2(1) scope of Act 312.
The MERC has likewise centered its attention on § 2(1) in determin ing Act 312 eligibility. In Oakland County Sheriff’s Dep’t, 1977 MERC Lab Op 843, 848-849, the MERC held clerk III, department clerk, account clerk, typist I and II, police communication agent, first cook, second cook, police para-professional and maintenance laborer "non-police classifications” engaged by the Oakland County Sheriff’s Department outside the scope of § 2(1) "policemen * * * or subject to the hazards thereof’. Similarly, in an unpublished opinion of the Attorney General (No 5154, April 21, 1977), fire fighting personnel employed by the Wayne County Road Commission at the Wayne County Metropolitan Airport were opined to be "fire fighters” as defined by §2(1).
Compare Ypsilanti Police Officers Ass’n v Eastern Michigan University, 62 Mich App 87; 233 NW2d 497 (1975), where the Court of Appeals ruled in a similar vein that Eastern Michigan University, which employed commissioned police officers with a close nexus to Washtenaw County Sheriff’s Department, was not a § 2(1) department of a "city, county, village or township” and therefore its employees could not invoke Act 312. Focus again remained on § 2(1).
That section provides as follows:
"Sec. 1. In each county of the state of Michigan, the board of supervisors of such counties, at their regular annual meeting, may, by resolution authorize the appointment by the prosecuting attorney of said county of as many assistant prosecuting attorneys as said board of supervisors shall deem necessary, and shall in addition authorize the appointment by said prosecuting attorney, of such investigating officers, clerks, stenographers and other clerical employes as said board of supervisors shall deem necessary.” MCL 49.31; MSA 5.791.
At the MERC hearing, two Oakland County prosecutor’s investigators testified with respect to the nature of their employment. The first witness, Donald Corey, had been employed by the Oakland County Prosecutor’s Department for approximately two and one-half years as a prosecutor’s investigator for the Organized Crime Strike Force. Prior to his term with the Prosecutor, Mr. Corey had served 13 years as a police officer in Bloomfield Township. The other witness, Robert Michael, had been a prosecutor’s investigator for approximately two and one-half years and was assigned to the Criminal Investigation Division of the Oakland County Prosecutor’s Department. Previously, Mr. Michael had served as a deputy patrolman with the Oakland County Sheriff’s Department for approximately five and one-half years. Appellant presented no witnesses but did offer an opening argument. Both parties stipulated to the filing of briefs in lieu of closing argument.
We granted leave to appeal on July 19, 1979 and "directed [the parties] to include among the issues to be briefed (1) whether the Oakland County Prosecutor’s investigators are 'policemen * * * or subject to the hazards thereof within the meaning of § 2 of 1969 PA 312, and (2) whether 1969 PA 312 unconstitutionally provides for appointment of arbitrators who lack political accountability”. 406 Mich 1011 (1979). Because the act’s constitutionality has been recently resolved in Detroit v Detroit Police Officers Ass’n, 408 Mich 410; 294 NW2d 68 (1980), we will necessarily restrict our inquiry to the first issue in general.
See footnote 1, supra, and accompanying text.
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Levin, J.
The defendants appeal an order of the trial court denying their motion filed under GCB, 1963, 528 for relief from a default judgment. We affirm.
The defendants mortgaged two parcels of real estate, a restaurant and their home, to plaintiff Community Savings and Loan Association to secure repayment of a $40,000 indebtedness. They defaulted in paying required installments of principal and interest.
Community Savings acquired the fee to the restaurant by purchase at a mechanic’s lien foreclosure sale, subject to a right of the defendants to redeem from the sale. Thereafter, but before expiration of such redemption right, the plaintiffs commenced this action on May 16, 1966, to foreclose the mortgage on both parcels.
The defendants were personally served on May 18, 1966. Their default for failure to answer was filed on September 9, 1966, and a default judgment was entered on July 7, 1967, determining that the amount of the defendants’ indebtedness to Community Savings was $44,370.89.
At a mortgage foreclosure sale on August 31, 1967, the defendants’ home was sold for $8,000 to plaintiff, Sylvania Savings Bank Company, suc cessor by merger to Community Savings. Tbe defendants were notified of the filing of the circuit court commissioners’ report of sale, which determined that there was a deficiency of $36,902.45, and that they could file objections within ten days; they made no response. The sale was confirmed September 18, 1967.
The defendants did not redeem from the mechanic’s lien foreclosure sale of the restaurant, and the bank did not proceed with the foreclosure of its mortgage on the restaurant. The bank expended, after acquiring the restaurant, over $5,000 on improvements, maintenance, taxes, and insurance. On November 3, 1967, i.e., after the confirmation of the mortgage foreclosure sale of the defendant’s home, the bank sold the restaurant to a third person for an amount not disclosed on the record.
Shortly before the expiration of the defendants’ equity of redemption in their home they filed, on February 13, 1968, a motion for relief from the July 7, 1967 default judgment.
The motion alleged that on June 26, 1966, the date that Community Savings acquired fee title to the restaurant (see footnote 1), its value exceeded the sum of (1) the amount of defendants’ indebtedness secured by the mortgage and (2) the cost incurred by Community Savings in acquiring the fee through the mechanic’s lien foreclosure sale. This allegation is not supported either by affidavit or by evidence.
During oral argument in our Court we were advised by Community Savings’ attorney that it sold the restaurant for a price between $40,000 and $50,000. If the sales price was, say, $45,000, and one adds to that figure the $8,000 bid at the mortgage foreclosure sale of the defendants’ home, the total amount realized by the bank was $53,000. The defendants’ indebtedness to the bank, as determined by the default judgment, was $44,307.89; the sum of that amount and the amount for which the mechanic’s lien foreclosure sale was confirmed to the bank, $4,904.73, and the $5,000 expended for improvements, maintenance, taxes, and insurance before the sale of the restaurant in November, 1967, is $54,215.62 — $1,215.62 more than the $53,000 postulated as realized by the bank from the sale of the restaurant and the mortgage foreclosure sale of the home.
The defendants contend that their indebtedness to Community Savings was discharged by merger of the fee interest and the mortgagee’s interest in the restaurant. They claim the merger occurred either when Community Savings acquired the fee upon expiration of the mechanic’s lien foreclosure redemption period or when, after confirmation of the mortgage foreclosure sale of the home, the restaurant was sold free of the mortgage. They assert that it was, therefore, a fraud to have taken a default mortgage foreclosure judgment against them for the entire indebtedness or to sell the home pursuant to that judgment, and that in all events it was a fraud not to credit against the indebtedness the excess of the value or sales price of the restaurant over the cost of acquiring the fee.
When a mortgagee acquires fee title to the mortgaged property he frequently has no further reason to keep alive the lien of the mortgage. In such event the lien may merge into the fee and extinguish the debt. But whether this occurs depends fundamentally on the mortgagee’s intention. If it is in his interest to preserve his lien separately from the fee, it will ordinarily be concluded that he did not intend to merge the lien into the fee.
In this case, when Community Savings acquired the fee to the restaurant in 1966 it was encumbered by a second mortgage for $11,000. If the lien of the first mortgage in favor of Community Savings merged into the fee then the second mortgage would have become a first lien. It was, therefore, contrary to the interest of Community Savings to eliminate the priority of its first mortgage by merger; and it may safely be concluded that Community Savings did not intend to merge its fee and security interests. It is not claimed that there are other relevant facts which would support a finding that in 1966 Community Savings intended to merge its mortgage and fee interests. No doubt, when it sold the restaurant to a third person in November, 1967 it conveyed the property free of the lien of the mortgage executed by the defendants ; but by then the mortgage on the defendants’ home had been foreclosed and the sale confirmed.
At the time the default judgment was entered, the price that would be realized upon a sale of the restaurant was unknown, and it did not become known until the restaurant was sold, which occurred after the confirmation of the mortgage foreclosure sale of the home. The defendants’ argument, therefore, of necessity narrows down to a claim that the fraud was in failing to credit the value, as distinguished from the sale price, of the restaurant.
Even if the bank should have allowed the claimed credit, there is no concrete evidence of the value of the restaurant at the time the default judgment was entered. The only evidence is such as we can extrapolate from the facts that a $40,000 mortgage loan was given by a bank, the subsequent failure of the restaurant business, our knowledge that creditors, particularly banks, do not ordinarily retain property such as this for a longer time than needed to effect disposition, and the sales price which we were told was realized when the property was sold in November, 1967. Based on the foregoing, we have no reason to conclude that the value of the restaurant at the time the default judgment was entered was large enough so that, if the defendants were entitled to a credit based on that value, the default judgment would have been reduced to an amount less than the $8,000 bid for the defendants’ home.
Paragraph 7 of the motion for relief from judgment asserts that the plaintiffs’ agents represented that they would cooperate with the defendants in their efforts to sell the restaurant and that is why they did not answer or appear. This allegation is not supported by an affidavit or by evidence, nor was a hearing sought at which evidence in support of this allegation could be introduced. The trial judge found that the defendants did not claim that the bank committed “a deliberate fraud upon the court.” We were advised during oral argument that no such claim is now made.
GrCB, 1963, 528.3 provides that a motion for relief from judgment on the ground of “fraud (whether heretofore denominated intrinsic or extrinsic)” shall be filed “within a reasonable time, and * * * not more than 1 year after the judgment * * * was entered”.
The motion in this case was filed within one year of the entry of the default judgment. Putting aside the questions whether it was filed “within a reasonable time” and whether the conduct of the bank complained of constituted fraud, we note, as did the trial judge, the failure of the defendants to demonstrate either g*ood cause or that they have a meritorious defense. GrCR 1963, 520.4 provides:
“For good cause shown the court may set aside an entry of default, and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 528. * * * A proceeding to set aside default or a default judgment, except when grounded on want of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.”
The requirements that a defendant who asks that a default judgment be set aside demonstrate both good cause and that he has a meritorious defense have been deemed applicable in cases where relief was sought on grounds set forth in rule 528.3. We have recently observed that good cause has been thought to include (1) a substantial defect or irregularity in the proceedings upon which the default was based, (2) a reasonable excuse for failure to comply, with the requirements which created the default, or (3) some other reason showing that manifest injustice would result from permitting the default to stand.
No claim is made that there was a substantial defect or irregularity in these proceedings or that there was any reasonable excuse for the defendants’ failure to appear and defend in this action.
No affidavit of merits was filed and, upon our review of the sketchy record and the facts adduced during oral argument, we could not properly conclude that a manifest injustice would result from permitting the default judgment to stand or that the defendants have a meritorious defense. A trial judge enjoys a considerable measure of discretion in ruling on a motion to set aside, or seeking relief from, a default judgment. Claims that judgments have been obtained by fraud should be strongly supported ; in this case there is no such support.
Affirmed. Costs to plaintiffs.
All concurred.
The defendants were indebted to a contractor who commenced an action to foreclose a mechanic’s lien on the restaurant. A judgment was entered determining that the mechanic’s lien was superior to the mortgage held by Community Savings and ordering that a foreclosure sale be held. On February 11, 1966 the contractor assigned the judgment and lien to Community Savings for the sum of $4,100. A judicial foreclosure sale was held on April 26, 1966 and the sale was confirmed to Community Savings for the sum of $4,904.73. On June 26, 1966, a redemption period specified in the court’s order expired and title to the restaurant vested in Community Savings.
On July 25, 1967 Community Savings merged with Sylvania Savings and, on the same date, assigned both the default judgment and the mortgage to Sylvania Savings.
See footnote 9.
We were advised that the actual expenditures for improvements, maintenance, taxes and insurance substantially exceeded $5,000, and that additional sums were expended for brokerage and legal fees in connection with the sale of the restaurant.
See First National Bank of Utica v. Ramm (1932), 256 Mich 573, 575; Beal v. Alschuler (1936), 277 Mich 66, 68, 69; Bugden v. Bailey (1937), 279 Mich 12, 15; Ponstein v. Van Dyk (1937), 282 Mich 350, 352, 353; Shedd v. Krushinski (1941), 298 Mich 160, 166, 167.
See, generally, 5 Tiffany, Real Property (3d ed), §§ 1479, 1480, pp 503-506; 37 Am Jur, Mortgages, § 785, p 190. See, also, Anno: Merger, as to other than intervening lienor, on purchase of paramount mortgage by owner of fee, 46 ALR 322.
The second mortgage was in favor of Sylvania Savings and was additional security for a chattel mortgage loan on personal property in the restaurant. Community Savings did not merge with Sylvania Savings until July 1967, over a year after Community Savings acquired the fee to the restaurant.
Beal v. Alschuler, supra; Budgen v. Bailey, supra; Overland-Wolf, Inc. v. Koory (1968), 183 Neb 611 (162 NW2d 889); 5 Tiffany, Real Property (3d ed), § 1481, pp 509, 510, fn 40.
See 5 Tiffany, Real Property (3d ed), § 1484, pp 518, 519. Compare Ames v. Miller (1902), 65 Neb 204 (91 NW 250, 253), with Peterborough Savings Bank v. Pierce (1898), 54 Neb 712 (75 NW 20, 22), and Merchant’s Trust Co. v. Davis (1930), 49 Idaho 494 (290 P 383, 386).
Our disposition of this ease makes it unnecessary to consider whether a judgment for a deficiency may be obtained where less than all the land subject to the mortgage is judicially sold or the power of a court of equity when determining the amount of a deficiency judgment to credit the value of the mortgagor’s equity of redemption in the unsold property. See MCLA § 600.3150 (Stat Ann 1962 Rev §27A.3150); 59 CJS, Mortgages, §§ 778, p 1474; 782, p 1481; 398, p 562; 519, p 848; 37 Am Jur, Mortgages, §§ 859, 866, pp 235 et seq., 244 et seq.
The record does not show whether a separate deficiency judgment was entered. The defendants have not asked for any relief from the deficiency determined in the commissioner’s report of sale. We were told by both plaintiffs’ and defendants’ attorneys that the deficiency is not collectible.
It has been said that a court of equity may set aside a judgment on the ground of fraud only where the fraud is extrinsic to the matter tried in the original action, i.e., when its effect is to prevent the unsuccessful party from having a trial or from presenting his case fully. 3 Pomeroy, Equity Jurisprudence (5th ed), § 919b, pp 608, 609; 46 Am Jur 2d, Judgments, § 825, p 980. But relief will not be granted for fraud which is deemed intrinsic, that is, where the fraud pertains to an issue that was or could have been litigated in the original action, e.g., perjury and the concealment of a defense. 3 Pomeroy, Equity Jurisprudence (5th ed), § 919a, pp 606-608; 46 Am Jur 2d, Judgments, § 826, pp 982, 983; § 834, p 989.
The rule is based on the need to end litigation. Ear too many judgments would be subject to attack if a judgment could be reopened upon a claim that an erroneous result was reached and that a fraud was committed because the party who obtained the judgment failed to testify fully and accurately or to disclose to his adversary a possible defense. 3 Pomeroy, Equity Jurisprudence (5th ed), § 919b, p 610; 46 Am Jur 2d, Judgments, § 835, p 990. The extrinsic-intrinsic fraud distinction has been recognized in Michigan cases. See Fawcett v. Atherton (1941), 298 Mich 362; Columbia Casualty Co. v. Klettke (1932), 259 Mich 564; Steele v. Culver (1909), 157 Mich 344.
It has also been said, however, that this limitation applies only in equitable actions for relief from judgments and that upon direct application in the proceeding where the judgment was entered a judgment may be set aside on grounds which would have to be considered intrinsic fraud. See 3 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), authors’ comments, p 184. Supporting authority can be found in decisions of the Michigan Supreme Court setting aside divorce decrees. Allen v. Allen (1954), 341 Mich 543; Lantinga v. Lantinga (1947), 318 Mich 78. Contrast Curtis v. Curtis (1930), 250 Mich 105, 109.
In all events, rule 528 expressly provides that it does not limit the power of a court to set aside a judgment for “fraud upon the court.” Rule 528 is borrowed from Rule 60 of the Federal Rules of Civil Procedure; the advisory committee comment to Rule 60 cites as an illustration of a fraud upon the court the factual situation in Hazel-Atlas Glass Co. v. Hartford Empire Co. (1944) 322 US 238 (64 S Ct 997, 88 L Ed 1250). See, also, Allen v. Allen, supra, p 549; Linn v. Linn (1955), 341 Mich 668, 676; DeHaan v. DeHaan (1957), 348 Mich 199, 200, 201.
But, as one respected authority has pointed out, whenever a judgment has been obtained by fraud, the fraud can be regarded as perpetrated upon the court as well as upon the injured party. 3 Pomeroy, Equity Jurisprudence (5th ed), § 919a, pp 603, 604. If the policy underlying the extrinsic-intrinsic fraud distinction can be avoided by characterizing a fraud that the court finds particularly distasteful as a fraud on the court, then the entire matter becomes subjective and is left at large for courts to do as they think appropriate in particular cases. See, generally, Restatement of Judgments, ch 5, topic 2, § 117 et seq., p 565 et seq.
Rules 520 and 528 are based on Rules 55 and 60, respectively, of the Federal Rules of Civil Procedure; our Rule 528.3 follows Federal Rule 60(b) verbatim. The Federal courts have consistently refused to entertain a motion for relief from a default judgment under Rule 60(b) except upon a showing of a meritorious defense. Rutland Transit Company v. Chicago Tunnel Terminal Company (CA 7, 1956), 233 F2d 655, 657; Consolidated Masonry & Fireproofing, Inc. v. Wagman Construction Corporation (CA 4, 1967), 383 F2d 249, 251, 252; Federal Enterprises, Inc. v. Frank Allbritten Motors, Inc. (WD Mo, 1954), 16 FRD 109, 112, 113; Trueblood v. Grayson Shops of Tennessee, Inc. (ED Va, 1963), 32 FRD 190, 196, 197; Bowles v. Branick (WD Mo, 1946), 66 F Supp 557, 558; United States v. Sipler (MD Pa, 1951), 94 F Supp 987, 988; Assmann v. Fleming (CA 8, 1947), 159 F2d 332, 336; United States v. $3,216.59 In United States Currency (D SC, 1967), 41 FRD 433, 434. See, also, Koen v. Beardsley (CA 10, 1933), 63 F2d 595, 597.
See, also, Rhodes v. Rhodes (1966), 3 Mich App 396; Home Life Insurance Company v. Cohen (1936), 278 Mich 169, 172.
Wayne Creamery v. Suyak (1968), 10 Mich App 41, is distinguishable; there the complaint did not inform the defendant of the true nature of the claim upon which the judgment was entered.
See Miranda v. Kersten (1970), 24 Mich App 681.
Rhodes v. Rhodes (1966), 3 Mich App 396, 403; Hartman v. Roberts-Walby Enterprises, Inc. (1969), 17 Mich App 724, 729; Crew v. Zabowsky (1959), 357 Mich 606, 609.
Ford v. Kossaras (1966), 3 Mich App 321, 325; Presque Isle Bank v. Kowalski (1967), 6 Mich App 266, 271; Wendel v. Swanberg (1969), 17 Mich App 235, 238.
3 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), authors’ comments, p 185.
See Stradley v. Pailthorp, Acting Circuit Judge (1893), 96 Mich 287, 290; Jewell v. Jewell (1959), 358 Mich 1, 3; Denby v. Ellis (1928), 245 Mich 124, 128. | [
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Per Curiam.
Defendant was tried by the court without a jury and convicted of forging a security agreement and promissory note contrary to MCLA § 750.248 (Stat Ann 1970 Cum Supp § 28.445). He was sentenced and he appeals.
The appeal alleges twelve errors as the basis for relief. We have reviewed each allegation of error, the facts and law pertaining thereto, and we find no reversible error.
Affirmed. | [
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O’Hara, J.
On July 11, 1967, a police officer purchased a small, newspaper-wrapped package from defendant Albert White. The contents of the package were subsequently analyzed and identified as marijuana. Defendant was charged with, and subsequently convicted by a jury, of selling narcotics without a license in violation of MCLA § 335.152 (Stat Ann 1957 Rev §18.1122).
The arrest of defendant and the bringing of formal charges did not take place until 72 days following the date of the first purchase.
During the trial the arresting officer was asked on cross-examination if he had seen defendant after the initial sale. The officer testified that he saw defendant when he went to purchase additional marijuana. Pursuing this line of questioning on redirect examination, the prosecutor elicited the fact that the officer had made a subsequent purchase.
On appeal defendant raises five issues. He contends that it was error for the trial court to allow the introduction of evidence of an alleged subsequent sale of narcotics. Defendant further contends that even if the evidence was admissible, the trial court failed to give a limiting instruction.
The introduction of evidence of the subsequent sale, while admitted to show the officer’s ability to identify defendant, served to demonstrate a common scheme or plan. This type of evidence is admissible pursuant to the provisions of MCLA § 768.27 (Stat Ann 1954 Rev § 28.1050). With respect to defendant’s second contention, when evidence of a similar act is introduced for the purpose of showing a scheme, plan or system, a limiting instruction need not be given unless requested. People v. Anderson (1968), 13 Mich App 247; People v. Mauch (1970), 23 Mich App 723; People v. Stevens (1970) 25 Mich App 181. Defendant failed to request a limiting in struction and there was no reversible error on the part of the trial court.
Defendant further contends on appeal that he was denied due process because of the 72-day delay between the date of the offense and the arrest. “There is no constitutional right to be arrested.” Hoffa v. United States (1966), 385 US 293, 310 (87 S Ct 408, 17 L Ed 2d 374). Defendant must show specific prejudicial effect of the delay. In People v. Hernandez (1969), 15 Mich App 141, a 42-day delay was found to be prejudicial because evidence was lost and defendant, an illiterate, could not remember the circumstances surrounding the alleged offense. In the present case, defendant has failed to show how he was prejudiced. The delay was caused by a desire on the part of the police to continue investigations in drug traffic. Finding no prejudice the delay was harmless.
Defendant also contends that the 20-year mandatory minimum sentence for selling narcotics is a cruel and unusual punishment. MCLA § 335.152 (Stat Ann 1957 Rev § 18.1122).
It is hardly a novel judicial pronouncement to call attention decisionally to the fact that we are a nation and a state of divided governmental responsibility. Whatever our personal feelings may be toward the wisdom of a 20-year minimum sentence for the sale of pot or grass, or whatever the current designation for proscribed marijuana is, we cannot repeal a legislative enactment under the guise of judicial enforcement of the constitutional prohibition against cruel and unusual punishment. It has been held, times without number, that the length of the sentence does not make the sentence cruel or unusual in the constitutional sense. A sentence within the statutory limit cannot be considered cruel and un usual punishment. People v. Welch (1970), 25 Mich App 694.
The two final issues raised by defendant relate to the identification of the marijuana as the prohibited portion of the plant. MCLA § 335.152 exempts certain portions of the plant. Defendant contends that the prosecution failed to show that the substance was non-exempt and that the trial court failed to properly instruct the jury on this issue. The prosecution introduced evidence showing that the substance was marijuana. The prosecution is not required to prove that the particular marijuana does not fall within one of the statutory exceptions. The element of the offense is proof of what the substance is, not what it is not.
We laid this issue to rest (we thought) in People v. Nelson White (1970), 26 Mich App 35. It is a viable defense, if proved, that the substance in question, though marijuana, is identifiable as being one of the excepted portions of the plant, or one of the excepted compounds or derivatives of the excepted portions. It is the defendant’s responsibility to prove the exception. By statute and by case law, proof of the exception is not part of the corpus delicti of the offense and no burden of the prosecution to prove.
None of the issues advanced by defendant constitutes reversible error.
Affirmed.
All concurred.
MCLA § 767.48 (Stat Ann 1954 Rev § 28.988). | [
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] |
Per Curiam.
Defendants pled guilty to the crime of assault with intent to commit robbery armed, after first being charged with the crime of robbery armed. The people have filed a motion to affirm pursuant to GCR 1963, 817.5(3).
A review of the briefs and records in this cause makes it manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Accordingly, the motion to affirm is granted.
MCLA § 750.89 (Stat Ann 1962 Rev § 28.284).
MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). | [
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R. B. Burns, J.
On September 14, 1956, defendants allegedly sold marijuana to two members of the Detroit Police Department. They were arrested on October 5, 1956, and tried the following month. They were found guilty by a jury and each was sentenced to 20 to 30 years imprisonment.
Both defendants raise four like grounds for appeal, and Contreras raises two additional grounds.
Both defendants claim the State failed to prove that they did not have a license and, therefore, their convictions cannot be sustained. They claim the statute under which they were convicted applies to “any person not having a license,” and that one of the elements of the crime being the failure to have a license, it was the prosecutor’s duty to prove each element of the crime.
The same argument was made in People v. Maurice Thomas (1970), 26 Mich App 160.
In the Thomas case we decided that People v. Baker (1952), 332 Mich 320, held that under the authority of MCLA § 767.48 (Stat Ann 1954 Rev § 28.988) it was unnecessary for the people to prove negative allegations contained in the statute. If the defendant wished to defend by showing that he had a license, it was incumbent upon him to produce evidence tending to show that fact.
Next, defendants argue that although the prosecution introduced evidence that the substance sold was marijuana (cannabis sativa), they did not prove that the substance sold was not from the exempt part of the plant.
MCLA § 335.151(2) (f) (Stat Ann 1970 Cum Supp § 18.1121 [2] [f]) reads as follows:
“All parts of the plant Cannabis Sativa. The term ‘Cannabis’ as used in this act shall include all parts of the plant Cannabis Sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from seeds of such plant, other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks, except the resin extracted therefrom, fibre, oil, or cake, or the sterilized seed of such plant which is incapable of germination. This definition is to include marihuana and all allied plants of the cannabis family which are habit forming.”
People v. Nelson White (1970), 26 Mich App 35 rejected this argument and held it was not incumbent upon the People to prove that the marijuana allegedly sold was non-exempt marijuana.
Defendants also claim that the statute imposing a minimum penalty of 20 years imprisonment for such a conviction results in cruel and unjust punishment. It has been stated many times that appellate courts do not have supervisory control over punishments within the statutory limits.
Marijuana is classified as a narcotic under the statute. If there is to be any relaxation in the penalty for those offenses dealing with marijuana, rather than any other narcotic drugs, this change is for the legislature and not the courts.
Defendants also claim their rights were violated because of the delay between the act of selling the drug (September 14, 1956) and the time of arrest (October 5, 1956). They cite People v. Hernandez (1968), 15 Mich App 141. The instant case is not similar to Hernandez. The defendants were arrested in a much shorter time, the chief witnesses against them were police officers, and both defendants spoke English. The delay occurred because the officers did not want to jeopardize their infiltration into other narcotic activities in the area. The defendants were not prejudiced by the delay.
Defendant Contreras claims the court erred by allowing testimony concerning hypodermic marks on his arms. He claims this was evidence of other crimes and inadmissible. People v. Askar (1967), 8 Mich App 95. Askar is inappropriate. Hypodermic marks by themselves would not be evidence of a crime.
Contrary to defendant Contreras’ claim that the verdict was against the weight of the evidence, there was sufficient evidence entered during the trial for the jury to find him guilty.
Affirmed.
All concurred.
MCLA § 335.152 (Stat Ann 1957 Rev §18.1122).
We are not unmindful of the line of cases, beginning with People v. Autry (1967), 7 Mich App 480 and including People v. Schrader (1968), 10 Mich App 211; People v. Kelsch (1969), 16 Mich App 244; and People v. Baker (1969), 19 Mich App 480. These cases hold that proof of lack of a license to carry a concealed weapon is part of the corpus delicti of the crime and thus a burden of the state. PA 1968, No 299, added MCLA § 776.20 (Stat Ann 1970 Cum Supp § 28.1274[1]), placing the burden of establishing any exception, excuse, proviso, or exemption in such prosecutions on the defendant. Thus, these cases have no longer any application to the case at bar. | [
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R. B. Burns, P. J.
Defendant was convicted by a jury of the crimes of abortion and conspiracy to commit abortion. His claim of appeal raises five questions for the Court’s consideration.
1) Did the trial court err in refusing defendant’s request for a jury instruction to the effect that in order to find the defendant guilty they must find there was a living being within the uterus of the complainant at the time of the alleged act of abortion?
MCLA §750.14 (Stat Ann 1962 Rev § 28.204) states:
“Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in the ease the death of such pregnant woman he thereby produced, the offense shall he deemed manslaughter.
“In any prosecution under this section, it shall not he necessary for the prosecution to prove that no such necessity existed.”
The word “pregnant” is not defined in the statute. In other jurisdictions whose statutes read “pregnant woman” the Courts have held that the viability of the fetus need not he proved. See 16 ALR2d 949, § 3, p 951. The medical testimony in this case was that a woman could be pregnant with a dead fetus. The important factor is intent. There was testimony from which the jury could find that defendant intended to procure a miscarriage on the complaining witness. The defendant’s requested instruction was properly denied.
2) Did the trial court err in refusing to grant defendant’s pretrial motion to conduct a “Walker” type hearing to determine whether the out-of-court photographic identification of defendant by complainant was so tainted and colored by impermissibly suggestive procedures as to vitiate her in-court identification?
Defendant cites United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149); Gilbert v. California (1967), 388 US 263 (87 S Ct 1951, 18 L Ed 2d 1178); and Simmons v. United States (1968), 390 US 377 (88 S Ct 967, 19 L Ed 2d 1247) in support of his contention that he was entitled to a hearing to determine the circumstances of the photographic identification by complainant. We are not persuaded that Wade and Gilbert, dealing with the right to counsel at lineups, are applicable. In Simmons, the Supreme Court recognized the hazards of misidentification, but said:
“The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential error. We are unwilling* to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”
The decision to grant such a hearing was within the discretion of the trial court. Although we would encourage that such discretion be freely exercised in favor of a defendant, we cannot say, after a thorough review of the facts and circumstances of this case, that the trial court abused its discretion. Defendant’s motion was properly denied.
3) Did the trial court err in refusing defendant’s request to order the prosecution to furnish defense counsel the police officer’s notes of complainant’s statements or interviews?
The notes in question were notes which an officer had taken on a yellow legal pad in his initial interviews with the complaining witness. Defendant’s request for these notes at trial was denied hy the trial court on the basis that they were the private and personal notes of the policeman. Defendant contends he was entitled to inspect these notes under the authority of People v. Dellabonda (1933), 265 Mich 486 and People v. Jessie Lee Johnson (1967), 8 Mich App 462, and he was thus deprived of an effective opportunity to cross-examine both complainant and the officer.
While Dellabonda and Johnson say that inspection of police reports should be allowed for purposes of impeachment, those cases dealt with reports and notes already turned over to higher authorities in the official line of communication. It should be noted that defense counsel was furnished at the preliminary examination, with a 23J page stenographic copy of the statement of the complaining witness taken in the prosecutor’s office and, at trial, was given the official police reports. The Courts in other jurisdictions are divided on this question. See Anno: 7 ALR3d 181. However, there is no reason to refuse a defendant notes at trial if they are a substantial transcription of the complaining witness’s own words or if the officer has refreshed his recollection with the notes and based his testimony on them. If, however, they are mere fragmentary jottings of the officer’s own interpretation or a privilege is asserted, then the notes need not be produced. The trial judge should have at least examined the notes and exercised his discretion whether to allow their use for impeachment purposes. We think such a rule would comply with the rationale of Dellabonda, supra, “One of the elementary principles of cross-examination is that the party having the right to cross-examine has a right to draw out from the witness and lay before the jury anything tending or which may tend to * * * elucidate the testimony or affect the credibility of the witness.” We, thus, remand to the circuit court to examine the notes in question and to take any further action its determination shall require.
4) Did the trial court err in denying defendant’s motion for a mistrial at the conclusion of the testimony of Charlotte Bitker. The motion contended that Bitker was not called to give any testimony against defendant but merely to recite to the jury that she had been charged with defendant and others on an information for this crime, knew the defendant, and had pled guilty, all to the prejudice of defendant.
Defendant contends that Miss Bitker’s testimony was prejudicial because she was called to establish guilt by association and not to show defendant committed the crime in issue. The reason she was called was to show the existence of the abortion conspiracy before defendant became involved in it. If the jury believed the complainant’s testimony that defendant committed an abortion on her, then Miss Bitker’s testimony regarding the prior abortion attempts was relevant to show a conspiracy. See People v. Newsome (1966), 3 Mich App 541 and People v. Fred W. Thomas (1967), 7 Mich App 519. There was no error in allowing this testimony.
5) Did the trial court err in not declaring a mistrial upon defendant’s motion when the prosecutor in his closing argument to the jury referred to a photograph of defendant identified by the complainant as being in á “mug file”. Defendant claims that this was an impermissible comment on defendant’s criminal record which had not been put in issue.
While the remark was undesirable, we do not find that the trial court’s instructions to the jury to disregard the remark were insufficient to correct the possible prejudice to defendant. We must presume the jury heeded those instructions.
The case is remanded to the trial court for an evidentiary hearing to determine whether the police officer’s notes are mere fragmentary jottings of the officer’s interpretation of the facts, or whether the notes are a substantial transcription of the complainant’s own words and were used hy the officer to refresh his memory before testifying. If the trial judge determines that the notes are mere fragmentary jottings of the police officer’s interpretations and not used to refresh his memory, the conviction is affirmed. However, if the notes are a substantial transcription of the complainant’s words, used by the officer to refresh his memory, and there is any prejudicial conflict between the notes and the testimony, the trial judge will grant the defendant a new trial.
Fitzgerald, J., concurred.
People v. Walker (On Rehearing, 1965), 374 Mich 331. | [
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O’Hara, J.
Plaintiff, ancillary administrator of the estate of Elizabeth Vassel, was granted summary judgment below on a claim arising out of a promissory note. Defendants appeal as of right.
In 1964, defendants purchased a restaurant business from plaintiff’s decedent. The purchase price was $30,000; defendants paid $8,300 in cash, executed a-promissory note for the balance and gave a security interest in the restaurant and fixtures.
The note promised payments of $250 per month. We can establish from the record that defendants defaulted on the note some time in 1966 when the unpaid balance was $18,824.35. At that time, plaintiff’s decedent and defendants agreed to sell the restaurant business to a third party for $10,350. Plaintiff’s decedent credited that amount to the unpaid balance due on the note and a memorandum agreement was executed which reduced the monthly payments to $150 per month.
Defendants again defaulted, leaving a principal balance due of $6,974.35. Summary judgment was granted below to plaintiff in that amount.
Contrary to defendants’ claim, we do not agree that the sale of the business to the third party extinguished the plaintiff’s right to sue on the note. It was not intended as a foreclosure sale of secured collateral under MCLA § 440.9504 (Stat Ann 1964 Rev § 19.9504). Even were it a foreclosure sale it would not necessarily impair the right to hold defendants for the deficiency on the note. MCLA § 440.9504(2) (Stat Ann 1964 Rev § 19.9504[2]).
Defendant Milton Agelastos admitted that he and plaintiff’s decedent agreed to sell their interests to the third party. Furthermore, defendants admitted in their pleadings that immediately after the sale there remained an outstanding indebtedness on the note. It is apparent from these admissions that the parties contemplated that in return for defendants’ sale of their interest, plaintiff’s decedent would give a credit of $10,350 on the note and reduce the monthly installments thereon. The result is a partial novation to the extent of $10,350 received from the third party. See Ceabuske v. Smolarz (1924), 229 Mich 100.
The remaining issue is whether plaintiff was entitled to judgment in the full amount of the unpaid balance of the note, or whether recovery was limited to the amount of installments in default at judgment.
The note executed by defendants contained an acceleration clause which gave the holder, upon default of monthly payments, the option to mature the entire balance due. Defendants do not contest the validity of that clause, but argue that the memorandum agreement (which contained no such clause) constituted a new undertaking, independent from the prior obligation. We disagree.
The memorandum agreement was not a new negotiable note. A holder of a negotiable instrument must be able to determine the amount payable from the instrument itself. It must be payable in a sum certain in money. MCLA § 440.3106 (Stat Ann 1964 Rev § 19.3106). This agreement, by its terms, did not specify the amount payable, but required reference to the prior promissory note to determine the balance due. It is clear from the record that the memorandum only modified the time for payment and amount of monthly installments. It, in effect, created a new contract between the parties; the note and extension agreement constituting one contract. Buckman v. Hill Military Academy (1948), 182 Ore 621, 189 P2d 575. The other terms of the note not modified by the extention agreement, and specifically the provisions of the acceleration clause, were still in effect. Earhart v. Robinson (Tex Civ App, 1919), 215 SW 973; Hasman v. Canman (1933), 136 Cal App 91 (28 P2d 372).
The trial judge was correct in ruling that no genuine issue of material fact existed and defendants had not raised a valid defense.
Affirmed.
All concurred. | [
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Per Curiam.
Aleo Construction Corporation appeals from the decision of the trial court sitting without a jury that it is liable to O’Brien for Bradley’s judgment against him. The case arose out of the construction of the Carriage Green Apartments in Kalamazoo. Aleo had contracted with O’Brien for the painting work on the complex for $27,700 or $210 per unit. O’Brien subsequently subcontracted the work to Bradley at the same price. Bradley immediately began work by the spraying process which the trial court found the original contracting parties had contemplated, and he was paid by Aleo for work done during May and June of 1966. He continued painting until August 8, 1966, when an Aleo representative indicated the work must be done by the rolling method to be satisfactory to Aleo. Since snch a process was considerably more expensive, Bradley refused to employ it without a modification of the contract price. Aleo discharged him and engaged another painter to finish the project.
Bradley filed suit in 1967 against O’Brien for $14,809.77 in compensation for work completed under the contract and authorized extras. O’Brien in turn sued Aleo, alleging that if Bradley obtained a judgment against him, Aleo was liable to him for the amount of such judgment. After a two-day trial, the trial court found Aleo was estopped from denying liability by the fact it had allowed plaintiff to continue his work despite Alco’s alleged dissatisfaction with it. The trial court found estoppel applicable where Alco’s superintendent was present daily while work was being done, did nothing to defeat Bradley’s expectation of being paid for the work he was doing, and asked Bradley to continue the painting despite defects in the drywall construction pointed out by Bradley and O’Brien. The trial court granted judgments as requested by Bradley and O’Brien, crediting Aleo with $6,669 paid in May and June.
After reviewing the transcript, we find that the trial court’s findings of fact were not clearly erroneous. GCR 1963, 517.1; McCarron v. Upper Peninsula Hauling Association (1968), 13 Mich App 168; Weeks v. Conservation Department (1968), 9 Mich App 429. In addition, we can find no error in the trial court’s having applied the law of equitable estoppel to the facts it found. Schliess v. City of Grand Rapids (1902), 131 Mich 52; Morgan v. Plotkin (1922) 219 Mich 265; City of St. Clair Shores v. L & L Construction Company, Inc. (1961), 363 Mich 518.
The trial court did make two errors in the computation of damages, however. First, while there is testimony hy Bradley that the $291.47 charged for painting eight and one-half windows not contemplated in the contract was orally authorized hy O’Brien, there is no evidence that Aleo ever agreed to this item. Since the burden of proof was on the third-party plaintiff to establish oral agreements with Aleo, this item should not have been allowed as against Alco. Banwell v. Risdon (1932), 258 Mich 274, 278; Bishop Electric, Inc., v. Simpson (1967), 7 Mich App 391.
Secondly, Bradley and O’Brien testified that although there was no charge included in the contract for painting common areas, it was contemplated that $10 of the $210 per unit price would he allocated for these items. Included in the damages was $860 for painting common areas, although Bradley and O’Brien had already charged the allocable $10 in 44 completed units, to-wit: $440, and a portion of the $10 in fixing the charges for work done in uncompleted areas, to-wit: $111.85. Thus to the extent of $551.85, which constitutes a double charge for the common areas, the judgment must be corrected. The correct award under the evidence presented below is $7,588.92 for Bradley against O’Brien and $7,297.45 for O’Brien against Aleo.
Judgment of the trial court is affirmed with the foregoing corrections. Costs to appellees. | [
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Per Curiam.
This case is submitted on the people’s motion to affirm. Defendant has appealed from his conviction, upon a plea of guilty, of the charge of larceny from a person. MCLA § 750.357 (Stat Ann 1954 Rev § 28.589). Defendant, with benefit of counsel, tendered his plea on May 16, 1969, in Detroit Recorder’s Court. On appeal, he claims the trial judge erred in failing to specifically obtain a waiver of three constitutional rights: the right to trial by jury; the privilege against self-incrimination; and the right to confront his accusers. He relies on Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274).
Since we definitively determined the single issue defendant now raises in People v. Taylor (1970), 23 Mich App 595, there is manifestly no need for further consideration of defendant’s appeal. Motion to affirm is granted. | [
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Per Curiam.
The people have moved to affirm defendant’s April 14, 1969, conviction by plea of guilty to attempted larceny in a building in violation of MCLA § 750.92 (Stat Ann 1962 Rev § 28.287) and MCLA § 750.360 (Stat Ann 1954 Rev § 28.592). GCR 1963, 817.5(3).
An examination of defendant’s brief and the record makes it manifest that the questions sought to be reviewed on which decision of the cause depends are so unsubstantial as to need no argument or formal submission.
Motion to affirm is granted. | [
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O’Hara, J.
Defendant appeals from his conviction after jury trial upon a charge of robbery unarmed. MCLA § 750.530 (Stat Ann 1954 Rev § 28.798). The victims testified at trial that they were lured to the scene of the crime with a promise of sexual relations. To say the least, their confidence in the promisors was ill-founded. Once there, they were set upon by six men and one woman and relieved of what money they possessed without the quid pro quo. Defendant was identified as one of the six men involved.
On appeal, defendant questions only the propriety of the prosecutor’s opening and closing statements to the jury, isolating eight different portions which allegedly operated to deprive him of his right to a fair trial. Plaintiff argues that defendant failed to object during trial to any of the statements, and consequently the issue is not preserved for review. This general principle of appellate practice is inapplicable, however, if the prosecutor’s statements result in a miscarriage of justice. People v. Ignofo (1946), 315 Mich 626, 634; People v. David Smith (1968), 16 Mich App 198, 201.
We have examined the record with care. No particular value to the trial bench or the bar would result from setting out the challenged excerpts verbatim. They fell within the permissible limits of vigorous prosecution. There is no suggestion of a miscarriage of justice in the verdict. The trial judge carefully instructed the jury concerning the differences between evidence and argument.
“You may consider the statements and arguments of the lawyers, but not as being either the evidence or law for this case.”
We find no error. Affirmed.
All concurred. | [
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McGregor, J.
The defendants herein were tried together and found guilty of assault with intent to rob, being armed. CL 1948, § 750.89 (Stat Ann 1962 Rev §28.284). The defendants appeal their convictions.
Testimony established that the offense charged was committed. Defendants Pritchett and Ringo were identified as the two armed participants, while the third defendant was identified as a person who, shortly before the commission of the offense, bought a package of cigarettes and then left the store where the robbery occurred.
After defendant Smith was arrested, he made a statement to police which, after a Walker hearing, was introduced as evidence against defendant Smith.
Defendant Smith, on appeal, contends that the trial court erroneously characterized his statement to the police as an “admission”, which gave the impression to the jury that the defendant had admitted guilt. Although the court once did refer to defendant’s statement as an admission, no objection was made and this failure to object precludes raising the issue on appeal. Furthermore, a reading of the trial transcript, which shows the context in which the word admission was used, indicates that the word contained no inference that the court had concluded that the defendant admitted guilt.
Defendants Pritchett and Eingo claim they were denied their right of confrontation of the witnesses, as secured by the 6th Amendment and made applicable to the states. Pointer v. Texas (1965), 380 US 400 (85 S Ct 1065, 13 L Ed 2d 923). During the trial, defendant Smith’s statement, which defendants Pritchett and Eingo claim inculpated them, was introduced in evidence against Smith. Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476), held that the admission of a non-testifying codefendant’s statement implicating a defendant at a joint trial constituted a denial of the right to confrontation when there is no effective way to cross-examine the codefendant regarding the statement.
Smith’s statement did not inculpate the other co-defendants. The trial court properly made deletions in Smith’s statement of all reference to the names of any codefendants. In fact, the statement does not show that there were any other persons involved in the commission of the crime and in no way served to implicate the other defendants. People v. Patton (1968), 15 Mich App 198, 201; Bailey v. United States (CA 10, 1969) 410 F2d 1209; United States v. Gregg (CA 7, 1969), 414 F2d 943.
At the close of the people’s proofs and in the presence of the jury, the court made the following inquiry:
“All right, we will take them in the order they are sitting. Does the defendant Ringo have any defense ?”
Defendant Ringo now contends that, inasmuch as he did not testify at the trial (although the other two defendants, Smith and Pritchett, took the witness stand in their own behalf), this inquiry by the court constituted an adverse comment as to his failure to testify. Griffin v. California (1965), 380 US 609 (85 S Ct 1229, 14 L Ed 2d 106). The people contend that the record indicates the question was asked merely to determine whether Ringo proposed to present any testimony.
At no time did defense counsel offer any objection to this inquiry, although defendant’s trial attorney had, contemporaneously with this inquiry, objected to another matter and asked the court to excuse the jury. After reviewing the record and considering the time and context in which the statement was made, coupled with the fact that the trial judge properly charged the jury regarding the people’s burden of proof, the presumption of innocence, and defendant’s privilege to remain silent, we conclude that there was no reversible error committed. See People v. Hider (1968), 12 Mich App 526; see also People v. Waters (1969), 16 Mich App 33.
The final error alleged by Ringo and Pritchett was not raised at trial and cannot now be reviewed, in the absence of a miscarriage of justice.
Convictions affirmed.
All concurred.
People v. Walker (On Rehearing, 1965), 374 Mich 331. (As to voluntariness of defendant’s statement.) | [
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GADOLA, J.
This case involves plaintiff Terrance D. Trahey’s challenge to the water and sewer rates established by the city of Inkster (the city), commencing July 1, 2012. Plaintiff also challenged a bill he received for water and sewer services in July 2012 for $6,903.64 after the city installed a new water meter at plaintiffs home and determined that the new meter had a higher reading than the outside meter used to determine plaintiffs prior billings.
In Docket No. 320161, the city appeals as of right a January 23, 2014 judgment, entered following a bench trial. As part of that judgment, the court reduced water and sewer rates for the period beginning July 1, 2012, to the date of the judgment; required that residents be refunded, through a credit to be applied to future water and sewer bills, the difference between the amount owed given the reduced rates and the amount they had paid; and held that the city was estopped from collecting the amount billed to plaintiff for the usage determined from the inside meter in July 2012. In Docket No. 324564, the city appeals, by delayed leave granted, two postjudgment orders entered in response to plaintiffs motion to show cause why the city was not complying with the January 23, 2014 judgment. In an order dated June 4, 2014, the trial court determined that the city was not in compliance with the January 23, 2014 judgment and ordered the city to follow the terms of the judgment. In an order dated June 16, 2014, the trial court determined that each of the 8,425 water and sewer accounts at issue should be credited $303.78 by June 27, 2014, based on a total credit amount of $2,559,321.63. In Docket No. 320161, we reverse the portion of the trial court’s January 23, 2014 judgment reducing the city’s water and sewer rates, but remand for further proceedings on the issue of plaintiffs July 2012 water and sewer bill. In Docket No. 324564, we vacate the trial court’s June 4 and June 16, 2014 postjudgment orders in their entirety.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed the complaint in this case in February 2013. Plaintiff brought the case as a class action, but it was never certified as a class action. Plaintiffs second amended complaint alleged that the city’s decision to raise the combined water and sewer rate to $14.64 per unit of water usage violated certain provisions of both the Headlee Amendment, Const 1963, art 9, §§ 25 and 31, and § 14.3 of the Inkster Charter, which requires just and reasonable rates. Plaintiff also alleged that the Inkster City Council was grossly negligent by voting to purchase new “smart” water meters without first researching the health concerns and technical problems associated with the meters. Plaintiff asserted that the old metering system consisted of an inside meter connected to an outside meter, which a city employee could read without entering the business or residential property. He alleged that the city was unjustly enriched by charging businesses and residential customers for differences between the inside and outside readings after the new meters were installed or, alternatively, by using the newly established rate of $14.64 to calculate the charge.
When plaintiff filed his second amended complaint, the trial court also granted plaintiffs request for a preliminary injunction, which precluded the city from shutting off water and sewer services for business and residential customers as long as the customers paid their quarterly water bills at a rate of $12.73 per unit. In June 2013, the trial court granted the city’s motion for summary disposition with respect to plaintiffs claim that the water and sewer rate violated the Headlee Amendment, but denied summary disposition with respect to plaintiffs claims under the Inkster Charter and for unjust enrichment. Plaintiff then filed a third amended complaint asserting only claims based on the Inkster Charter and the theory of unjust enrichment.
At the bench trial, the city’s counsel advised the court that if it determined the city’s water and sewer rates were unreasonable, any reduction to the rates would be credited to all residents, regardless of whether the case was certified as a class action. Evidence presented at trial established that the city had entered into a consent agreement with the state of Michigan under former 2011 PA 4 before raising the combined water and sewer rate to $14.64, effective July 1, 2012. As part of the consent agreement, the city adopted a deficit elimination plan (DEP) for various accounts, including the account associated with the water and sewer department. Testimony revealed that $5.36 of the $14.64 per unit combined water and sewer rate was intended to pay down debt.
The trial court determined that, as a result of past improper borrowing between the city’s various funds, at least some of the water and sewer department’s debt was not attributable to past water and sewer costs. The court concluded that the debt component of the water and sewer rate should therefore be reduced by 50% under a theory of unjust enrichment, which would reduce the water and sewer rate of $14.64 by $2.68 per unit. After plaintiffs counsel informed the court that the water and sewer rates had again increased effective July 1, 2013, the trial court determined that the debt component of that rate should also be reduced by 50% and refunded to the city’s residents.
With respect to plaintiffs claim regarding his July 2012 water bill, the trial court determined that the city was equitably estopped from collecting any charge for past unpaid water usage because when plaintiff purchased his home in 2011, he received information that the title company handling the closing for the sale found no outstanding water bill with the city. Therefore, the trial court determined that the city would be unjustly enriched if it was allowed to collect for the past unpaid usage from plaintiff.
On January 23, 2014, the trial court entered a judgment requiring the city to refund residents the difference between the amount owed given the rates set by the court and the amount the residents had paid over the relevant 16-month period through a water and sewer credit. The court also ordered the city to issue plaintiff a $3,389.14 credit to his water and sewer account for the improper July 2012 water bill. The city appealed the court’s judgment in Docket No. 320161.
In April 2014, while the city’s appeal was pending before this Court, plaintiff filed a motion to show cause, contending that the city was not in compliance with the January 23, 2014 judgment. At a hearing on June 2, 2014, the city’s counsel informed the trial court that the city had credited plaintiffs water and sewer account in May 2014 for the entire amount awarded in the judgment. However, the court found that the city was not in compliance with the other aspects of the judgment. On June 4, 2014, the court ordered the city to issue the appropriate credits to the city’s residents in light of the reduced water and sewer rates previously ordered by the court. The court also ordered the city’s treasurer to address the city’s failure to pay attorney fees and costs to plaintiffs counsel pursuant to a separate January 23, 2014 order. On June 16, 2014, the court ordered the city to credit each of the 8,425 water and sewer accounts at issue $303.78, based on a total credit amount of $2,559,321.63.
II. MOOTNESS
As a preliminary matter, plaintiff argues that the city’s appeal of the January 23, 2014 judgment is moot because the city complied with the terms of the trial court’s June 16, 2014 order, thereby satisfying the terms of the January 2014 judgment. Plaintiff adds that, with respect to the city’s appeal in Docket No. 324564, the city’s challenge to the portion of the judgment resolving his responsibility for his July 2012 water bill is also moot because the city credited the appropriate amount before the trial court entered the June 4 and June 16, 2014 orders. The city concedes that it made the credits required by the June 16, 2014 order, but argues that this appeal is not moot because the credits were made involuntarily.
An issue is moot when “an event occurs that renders it impossible for a reviewing court to grant relief.” B P 7 v State Lottery Bureau, 231 Mich App 356, 359; 586 NW2d 117 (1998). A voluntary satisfaction of a judgment may render a case moot. Horowitz v Rott, 235 Mich 369, 372; 209 NW 131 (1926). If, however, the judgment is involuntarily satisfied, the appeal is not moot. See Becker v Halliday, 218 Mich App 576, 578-580; 554 NW2d 67 (1996); see also Kusmierz v Schmitt, 268 Mich App 731, 740 n 3; 708 NW2d 151 (2005) , rev’d in part on other grounds 477 Mich 934 (2006) . Generally, “payment or performance following the invocation or threatened exercise of a court’s contempt power should not be regarded as voluntary or as constituting a waiver of the right to challenge the court’s order.” Indus Lease-Back Corp v Romulus Twp, 23 Mich App 449, 452; 178 NW2d 819 (1970).
In this case, the city filed its appeal from the court’s January 23, 2014 judgment before the trial court entered the June 2014 postjudgment orders requiring compliance with the judgment. This Court denied the city’s motion for a stay pending the appeal of that judgment. Trahey v City of Inkster, unpublished order of the Court of Appeals, entered April 16, 2014 (Docket No. 320161), and the city’s motion for reconsideration of that order was denied shortly before the trial court entered the June 16, 2014 order, Trahey v City of Inkster, unpublished order of the Court of Appeals, entered June 12, 2014 (Docket No. 320161).
The trial court’s June 16, 2014 order effectively modified the January 23, 2014 judgment by requiring the city to apply a uniform credit of $303.78 to each water and sewer account by June 27, 2014, rather than a credit computed based on the actual units of water usage or any provision for the credit to be applied pro rata over a 16-month period. The city’s “form and content” approval of the June 16, 2014 order, combined with the parties’ agreement on appeal that the requisite credits were made, might signal that the city agreed to the modified remedy for the trial court’s determination that the city’s water and sewer rates were unreasonable. However, it does not signal the city’s agreement with the trial court’s finding of unreasonableness or its decision that residents were entitled to refunds. Ahrenberg Mech Contracting, Inc v Howlett, 451 Mich 74, 77-78; 545 NW2d 4 (1996) (holding that when there is no indication that a party’s approval of an order’s form and content signals the party’s agreement with the order, it is not appropriate to treat the order as an unappealable consent order). Therefore, the city’s approval of the form and content of the June 16, 2014 order does not render this appeal moot. Further, considering that the modified remedy and its satisfaction occurred only after plaintiff sought to invoke the trial court’s contempt power, the city’s compelled satisfaction of the June 16, 2014 order does not render moot its challenge to the trial court’s finding of reasonableness.
We reach this same conclusion with respect to the city’s challenge to the trial court’s decision to estop the city from collecting water and sewer charges from plaintiff, considering the record evidence that the city did not apply a credit to plaintiffs water and sewer account until after this Court denied the city’s motion for a stay and after plaintiff filed his motion to show cause. The city’s action in applying the credit under these circumstances cannot be considered voluntary or as otherwise waiving the right to challenge the January 23, 2014 judgment. See Indus Lease-Back Corp, 23 Mich App at 452.
III. STANDARD OP REVIEW
This Court reviews a trial court’s factual findings in a bench trial for clear error, and reviews its conclusions of law de novo. Chelsea Investment Group LLC v City of Chelsea, 288 Mich App 239, 250; 792 NW2d 781 (2010). “A finding is clearly erroneous if there is no evidentiary support for it or if this Court is left with a definite and firm conviction that a mistake has been made.” Id. at 251. To the extent that our review requires the interpretation of a statute, our review is also de novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). The interpretation of a city charter provision is reviewed de novo. Barrow v Detroit Election Comm, 301 Mich App 404, 411; 836 NW2d 498 (2013).
A trial court’s application of equitable doctrines is also reviewed de novo. Knight v Northpointe Bank, 300 Mich App 109, 113; 832 NW2d 439 (2013). Unjust enrichment is an equitable doctrine. Morris Pumps v Centerline Piping, Inc, 273 Mich App 187, 193; 729 NW2d 898 (2006). But, whether a specific party has been unjustly enriched generally involves a question of fact. Id.
IV. WATER AND SEWER RATES
The city first challenges the trial court’s finding that its water and sewer rates were unreasonable under § 14.3 of the Inkster Charter, which provides the following:
The council shall have the power to fix from time to time such just and reasonable rates and other charges as may be deemed advisable for supplying the inhabitants of the city and others with such public utility services as the city may provide. There shall be no discrimination in such rates within any classification of users thereof, nor shall free service be permitted. Higher rates may be charged for service outside the corporate limits of the city.
The Inkster Charter does not provide any standards for determining “just and reasonable rates.” “The determination of ‘reasonableness’ is generally considered by courts to be a question of fact.” City of Novi v Detroit, 433 Mich 414, 431; 446 NW2d 118 (1989). Michigan courts have long recognized the principle that municipal utility rates are presumptively reasonable. Id. at 428. This presumption exists because “[c]ourts of law are ill-equipped to deal with the complex, technical processes required to evaluate the various cost factors and various methods of weighing those factors required in rate-making.” Id. at 430. However, the presumption of reasonableness may be overcome by a proper showing of evidence. Jackson Co v City of Jackson, 302 Mich App 90, 109; 836 NW2d 903 (2013). The burden of proof is on the plaintiff to show that any given rate or ratemaking practice is unreasonable. City of Novi, 433 Mich at 432-433.
To begin, the trial court clearly misconstrued the facts and law in ordering the city to reduce its combined water and sewer rate by 50% of the debt component of the rate. The trial court determined that this portion of the city’s water and sewer rate was unreasonable because it was not really attributable to debt for water and sewer expenses. The trial court based its decision on information contained in a March 1, 2012 report from the Governor’s financial review team, which indicated that improper interfund transfers had occurred between several of the city’s departments. The trial court stated that it could not determine what portion of the water and sewer department’s debt was attributable to improper interfund transfers and asserted that state accountants could not determine how much money was borrowed between city departments. Nonetheless, the court settled on reducing the water and sewer rates by 50% of the debt component of the rates. The court reasoned, “I think all you can do is try to get a reasonable amount of what would be attributable to non water and sewage debt and then subtract that amount from $14.64.”
Absent clear evidence of illegal or improper expenses included in a municipal utility’s rates, a court has no authority to disregard the presumption that the rate is reasonable. See Jackson Co, 302 Mich App at 109. In this case, the trial court openly acknowledged that it could not specifically identify what amount, if any, of the water and sewer rate accounted for expenses unrelated to water and sewer. Our review of the March 1, 2012 report of the financial review team relied on by the trial court reveals that the court’s conclusions were unfounded. The report does not contain a determination that a portion of the water and sewer department’s debt was attributable to expendi tures for purposes other than water and sewer, nor did the financial review team analyze any of the water and sewer rates.
The March 1, 2012 report summarized a preliminary review conducted by the Michigan Department of Treasury. One of the summarized matters addressed the city’s use of a pooled bank account to manage cash. The summary contained a table indicating that the water and sewer department had a negative cash balance as of September 30, 2011. Although the report stated that it could not be determined “which fund owed another” because the cash was pooled, the report indicated that “it could be presumed that each negative balance had drawn a proportional amount from each fund with a positive balance.” In other words, the report indicated that the water and sewer department was a borrower of restricted funds from other departments, not a lender of funds to other departments. We find no evidentiary support for the trial court’s finding that a part of the debt component of the water and sewer rate was attributable to debt for expenses unrelated to water and sewer, let alone that the amount owed for unrelated expenses was $2.68 per unit. The trial court clearly erred by finding the city’s water and sewer rate was unreasonable on these grounds.
Alternatively, plaintiff argues that the water and sewer rate was unreasonable because it was not based on the actual costs of service because a portion of the rate covered debt for past, rather than current, expenses. In essence, plaintiff is arguing that the city engaged in impermissible retroactive ratemaking. Plaintiff also cites MCL 123.141(3), which provides that “[t]he retail rate charged to the inhabitants of a city, village, township, or authority which is a contrac tual customer as provided by subsection (2) shall not exceed the actual cost of providing the service.”
MCL 123.141 does not alter the general standard of reasonableness applied by courts when reviewing utility rates. City of Novi, 433 Mich at 431-432. Because of the difficulties inherent in ratemaking and the limitations on judicial review, the phrase “actual cost of providing the service” as used in the statute does not mean exactly equal to the actual costs of providing the service. Id. at 431. Accordingly, while a utility fee must be reasonably proportionate to the direct and indirect costs of providing the service for which the fee is charged, mathematic precision is not required. Jackson Co, 302 Mich App at 109.
We disagree with plaintiff that the portion of the water and sewer rate accounting for debt was not part of the city’s actual cost of providing water and sewer services. Although ratemaking is a prospective operation, Mich Bell Tel Co v Pub Serv Comm, 315 Mich 533, 547; 24 NW2d 200 (1946), past expenses and costs may be taken into account when determining a new utility rate, In re Application of Consumers Energy Co for Rate Increase, 291 Mich App 106, 113-114; 804 NW2d 574 (2010). When a rate structure is wrong and causes a loss, the rate may be raised so that the loss will not continue. Id. at 113. Timely payment of the water and sewer department’s debt was necessary for its continued operation, and therefore constituted part of the actual cost of providing the service. Plaintiff has not provided evidence showing that the method chosen by the city to maintain its operations and repay its debts was unreasonable, and absent evidence of impropriety, we will not independently scrutinize the municipal ratemaking methods employed by the city. See City of Novi, 433 Mich at 429.
We also disagree that inclusion of the debt component in the city’s water and sewer rates constituted retroactive ratemaking. “[Retroactive ratemaking does not occur if only future rates are affected, with no adjustment to previously set rates.” In re Application of Mich Consol Gas Co to Increase Rates, 293 Mich App 360, 366; 810 NW2d 123 (2011), citing Attorney General v Pub Serv Comm, 262 Mich App 649, 655, 658; 686 NW2d 804 (2004). Previously established water and sewer rates were not adjusted in this case, and inclusion of the debt component was necessary for the continued operation of the city’s water and sewer department. Plaintiff has not shown that the water and sewer rates were unreasonable or unlawful. Therefore, we reverse the trial court’s determination regarding the rates and remand for entry of a judgment of no cause of action in favor of the city with respect to plaintiffs claim that the water and sewer rates violated the Inkster Charter.
In light of our decision, we also reverse the trial court’s unjust enrichment finding, which was predicated on the court’s erroneous evaluation of the water and sewer rates. In addition, we need not address the city’s arguments concerning statutory preemption and the separation-of-powers doctrine, or the city’s challenge to the trial court’s decision under a proposed arbitrary and capricious standard. It is also unnecessary to address the city’s challenge to the trial court’s pretrial ruling denying its motion for summary disposition with regard to the reasonableness of the water and sewer rates under the Inkster Charter. Lastly, because the city’s original water and sewer rates were reasonable, we vacate the June 4, 2014 postjudgment order requiring the city to follow the terms of the January 23, 2014 judgment by adjusting water and sewer rates and crediting the difference to all customers’ accounts, and we vacate the June 16, 2014 post-judgment order, which imposed an amended remedy requiring the city to credit each of the 8,425 water and sewer accounts at issue $303.78.
V. PLAINTIFF’S JULY 2012 BILL
The city also challenges the trial court’s determination that the city was unjustly enriched by requiring plaintiff to pay for water and sewer charges based on the reading of the interior water meter at his home in July 2012. The trial court applied the doctrine of unjust enrichment after concluding that the city should be equitably estopped from collecting the amount billed to plaintiff in July 2012, which was based on a difference in the reading between his old meter and the new smart meter inside his home. The trial court reasoned that plaintiff would not have purchased the home in 2011 if the city had properly reported the outstanding utility bill.
Initially, the trial court erred insofar as it held that plaintiff could avoid paying for past utility services received under the doctrine of equitable estoppel. “Equitable estoppel arises where a party, by representations, admissions, or silence intentionally or negligently induces another party to believe facts, the other party justifiably relies and acts on that belief, and the other party will be prejudiced if the first party is allowed to deny the existence of those facts.” Soltis v First of America Bank-Muskegon, 203 Mich App 435, 444; 513 NW2d 148 (1994). “Arguments based on equitable estoppel to avoid payment for public utility services received have been consistently rejected.” Sigal v Detroit, 140 Mich App 39, 42; 362 NW2d 886 (1985). In Sigal, the plaintiff purchased an interest in an apartment building after inspecting past water bills that indicated the building’s account was current and revealed quarterly water bills of between $500 and $700. Id. at 40. Shortly after the purchase, the plaintiff received a water bill for $3,441.98 and discovered that the meter had not been read in three years. Id. This Court held that the plaintiff could not rely on equitable estoppel to avoid liability for payment of water consumed because a “city must charge consumers within each rate classification according to an equal rate” for provided services. Id. at 44. Rather, the Court noted, “[u]nder appropriate circumstances, plaintiffs might have a claim against the seller for fraud or have a meritorious claim for rescission of the contract based on a mutual mistake.” Id. at 45.
In this case, just as in Sigal, the Inkster Charter precludes provision of free water and sewer services and prohibits rate discrimination. Accordingly, the trial court erred when it ruled that plaintiff could avoid payment of previously received services under the doctrine of equitable estoppel. However, on the record before us, insufficient evidence demonstrates that plaintiff actually received the utility services for which he was charged. At the bench trial, City Treasurer Mark Stuhldreher testified that after the city installed a new smart water meter in plaintiffs home in 2012, the city took a reading of usage calculated by the new meter versus the old meter and determined that “there was a difference between those two numbers . . . .” The city then created an estimate based on the difference between the two meters and generated a bill of $6,903.64. When asked to describe why the old meter produced a lower reading, Stuhldreher explained, “As time goes by, the older meters began to breakdown. They run slow.” There is no evidence in the record indicating that plaintiffs old water meter ran at the same slower speed throughout its lifetime, or even during the period for which the city calculated plaintiffs past utility service usage. Further, as the trial court noted below, plaintiffs water bill does not indicate what period of time is covered by the charge. Although a municipal utility may permissibly charge for past utility services provided to its customers, in this case, we believe a remand is necessary for the city to provide sufficient evidence that plaintiff actually received the services for which he was charged. On remand, if the utility can prove that plaintiff actually received unpaid water and sewer services, it may charge for those services using the rates in effect at the time the usage occurred.
In Docket No. 320161, we reverse the trial court’s judgment with respect to water and sewer rates, but remand for further proceedings consistent with this opinion on the issue of plaintiffs July 2012 bill. In Docket No. 324564, we vacate the trial court’s June 4 and June 16, 2014 postjudgment orders in their entirety. We do not retain jurisdiction.
OWENS, P.J., and Saad, J., concurred with GADOLA, J.
According to City Treasurer Mark Stuhldreher, the Inkster City Council later reduced plaintiffs bill to reflect the rate in effect on June 30, 2011, rather than the rate in effect at the time of the 2012 meter reading.
This Court’s order granting the application in Docket No. 324564 states, in part, the following:
Defendant requests that this Court “grant leave and address in one proceeding all issues relating to its rate increase” and raised no substantive legal issues in this application. Therefore, this appeal is limited to the issues raised in the claim of appeal in Docket No. 320161, Terrance D Trahey v City of Inkster, and no additional substantive legal issues may be raised. [Trahey v City of Inkster, unpublished order of the Court of Appeals, entered December 29, 2014 (Docket No. 324564).]
The consent agreement specified that in the event 2011 PA 4 was repealed or rendered ineffective, the agreement would “continue in full force and effect under any successor statute providing for consent agreements or similar forms of agreement.” 2011 PA 4 was suspended in August 2012. Pontiac Police & Fire Retiree Prefunded Group Health & Ins Trust v City of Pontiac No 1, 309 Mich App 590, 601-602; 873 NW2d 121 (2015). At a subsequent general election in November 2012, the electors rejected 2011 PA 4. As a result, the Local Government Fiscal Responsibility Act, 1990 PA 72, was revived. Martin v Murray, 309 Mich App 37, 41-42; 867 NW2d 444 (2015). The revived act, 1990 PA 72, was later repealed and replaced by the Local Financial Stability and Choice Act, 2012 PA 436, MCL 141.1541 et seq., effective March 28, 2013. Pontiac Police & Fire, 309 Mich App at 602.
MCL 123.141(2) exempts a water department that is not a contractual customer of another water department and that serves less than 1% of the state population from the cost-based requirements of MCL 123.141(2). See Oneida Charter Twp v City of Grand Ledge, 485 Mich 859 (2009).
We conclude that the burden of proving past receipt of utility services by a customer is appropriately placed on the municipal utility in light of the fact that the utility holds all the evidence concerning its customers’ past service usage. In our estimation, placing the burden of proof on a customer to demonstrate nonusage would create an insurmountable evidentiary barrier and would preclude appropriate accountability on the part of the utility. | [
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PER CURIAM.
In this defamation per se case, plaintiff appeals by right the trial court’s grant of summary disposition in favor of defendants pursuant to MCR 2.116(C)(8). Plaintiff alleged that defendant Raymond Torrez was an agent of defendant Admiral Petroleum Company and falsely reported to the police that plaintiff had stolen gasoline from a gasoline station on four occasions. Plaintiff alleges that the reports were made with knowledge that they were untrue or with reckless disregard for the truth. No factual development took place; the trial court concluded that the statements were subject to an absolute privilege and could not be the basis of a defamation claim. We affirm.
A trial court’s decision on a motion for summary disposition is reviewed de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion brought under MCR 2.116(C)(8) should be granted only when the complaint is so legally deficient that recovery would be impossible even if all well-pleaded facts were true and construed in the light most favorable to the non-moving party. Id. at 119. The applicability of a privilege is a question of law that is also reviewed de novo. Oesterle v Wallace, 272 Mich App 260, 263; 725 NW2d 470 (2006).
A claim of defamation requires proof of the following elements:
(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication. [Mitan v Campbell, 474 Mich 21, 24; 706 NW2d 420 (2005).]
At issue in the present case is the second element, specifically whether statements made to the police regarding criminal activity are absolutely privileged and therefore immune from suit for defamation.
The privilege asserted here had its genesis in Shinglemeyer v Wright, 124 Mich 230; 82 NW 887 (1900). In that case, the defendant’s bicycle was stolen, and he reported to the police that he believed the plaintiff had stolen it and the plaintiff was of unsavory character; on that basis, the plaintiff was arrested but subsequently released when it was established that she had not in fact stolen the bicycle. Id. at 231-238. The plaintiff commenced suit against the defendant for, in relevant part, slander, premised on the defendant’s statement to the police officer. Id. at 231. Our Supreme Court held that the trial court should not have admitted the defendant’s statements to the police because the statements
were privileged communications. They were introduced and admitted for the purpose of showing malice. The trial judge was in doubt as to their competency, but finally admitted them. Privileged communications cannot be used for that purpose. Defendant’s property was stolen, and it was not only his privilege and right, but his duty, to give to the detectives, who, in this case, were specially appointed for the purpose, all information he had, and, if he had suspicions of any person, to state who the person was, and the reasons for suspecting him. Such communications are made in the strictest confidence, and are as sacred, in the eye of the law, as the communications between client and lawyer, or patient and physician. To be evidence of malice, these communications must in themselves have been malicious, and would, therefore, form the basis themselves for an action for slander. If this be the law, no person would be safe from prosecution in communicating to police officers, whose duty it is to examine into the case and hunt for the criminal, his suspicions, or statements which might tend to implicate a person. Public policy forbids the adoption of such a rule. These detectives were under legal, as well as moral, obligations to keep these communications secret. They were not made for publication, and the officers had no right to divulge them to others. It is very doubtful if these detectives could be compelled to disclose in court such privileged communications. Such officers, especially in large cities, are entitled to know from the citizen against whom a crime has been committed all his suspicions and knowledge, both in regard to the person suspected, and also in regard to his character and habits. The defendant did not make these statements for repetition. He made them for the exclusive use and benefit of the trusted and sworn officers of the law. They should have been forever locked in their breasts, and never disclosed; otherwise, few persons would dare to disclose to an officer the name of a suspect, or anything they had learned about his character. [Shinglemeyer, 124 Mich at 239-240.]
Consequently, persons who make statements to the police when reporting crimes or assisting the police in investigating crimes enjoy a privilege in those statements against the police divulging them for any purpose other than law enforcement. Accordingly, those statements may not be used to sustain a defamation claim.
Plaintiff disputes the continued validity of any such absolute privilege. Shinglemeyer, however, has never been overruled. Furthermore, our Supreme Court has repeatedly cited it for this exact proposition: that reports of crimes or of information about crimes to the police are absolutely privileged. People v Pratt, 133 Mich 125, 133-135; 94 NW 752 (1903) (GRANT, J., dissenting); Flynn v Boglarsky, 164 Mich 513, 517; 129 NW 674 (1911); Wells v Toogood, 165 Mich 677, 679-680; 131 NW 124 (1911); Powers v Vaughan, 312 Mich 297, 305-306; 20 NW2d 196 (1945); Simpson v Burton, 328 Mich 557, 562-563; 44 NW2d 178 (1950). In the latter case, our Supreme Court additionally emphasized that the privilege attached even if the reporting party made the report maliciously. Simpson, 328 Mich at 562.
Furthermore, the important principles underlying the decision in Shinglemeyer remain just as valid today as they were at the turn of the last century: we could not reliably have practical law enforcement if crime victims, or those with knowledge of crimes, were forced to risk a lawsuit upon reporting what they know or what they suffered. The law is not blind to the fact that such reports are occasionally maliciously fictitious: it is a crime to lie to a police officer about an ongoing investigation, MCL 750.479c, or to make an intentionally false report to the police, MCL 750.411a. As noted, the Shinglemeyer privilege would not insulate a person against an investigation or charge for such crimes. Consequently, false reports may not be made with impunity. We further disagree with plaintiffs contention that any meaningful difference exists between statements made to the police that commence an investigation, as opposed to statements to the police during an ongoing investigation.
The simple fact is that Shinglemeyer created an absolute privilege that arises in the context of a defamation claim and covers any report of criminal activity to law enforcement personnel, and Shinglemeyer remains the law. Plaintiffs reliance on unpublished opinions of this Court is misplaced; such opinions may be of persuasive interest but have no binding authority, and the Court of Appeals has no authority to overturn precedent from our Supreme Court. The fact that this Court in Hall v Pizza Hut of America, Inc, 153 Mich App 609, 619-620; 396 NW2d 809 (1986), raised the hypothetical possibility that there would remain a qualified privilege if no absolute privilege exists has no bearing on the actual law. Plaintiffs reliance on Supreme Court cases that do not discuss the privilege at issue is likewise misplaced. If the privilege set forth in Shinglemeyer is to be abrogated in any way, our Legislature must enact a statute on point, or our Supreme Court must abrogate the Shinglemeyer privilege. We have been unable to discover any indication that either manner of abrogation has occurred. Accordingly, the trial court correctly granted summary disposition in favor of defendants and correctly denied plaintiffs motion for reconsideration. We decline to address the issue any further.
Affirmed.
Ronayne Krause, P.J., and Murphy and Servitto, JJ., concurred. | [
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PER CURIAM.
Michigan Environmental Council (MEC) appeals by right from an order of the Michigan Public Service Commission (PSC) granting the application filed by Detroit Edison Company (Edison) to implement a power supply cost recovery (PSCR) plan in its rate schedules for the 2012 metered jurisdictional sales of electricity, and for approval of its five-year forecast. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case concerns MEC’s challenge to Edison’s reduced-emission fuel (REF) project. This project involves applying chemical additives to coal to produce REF. Edison maintains that the use of REF results in reduced sulfur dioxide, mercury, and possibly nitrous oxide emissions, and thus reduced emission expenses. Edison proposed to sell at book cost a portion of its coal inventory to affiliated unregulated fuels companies Belle River Fuels Company (BRFC) and the St. Clair Fuels Company (SCFC). The coal would be chemically treated at those plants and then sold back to Edison.
The PSC considered the REF project in an earlier case but did not grant Edison permission to implement the project at that time, concluding that it needed more information on the efficacy of the methods for reducing emissions. The PSC also required Edison to demonstrate that the REF project was a reasonable and prudent method of achieving maximum emission reduction at minimum cost, and that the REF project complied with the PSC’s “Code of Conduct.”
On September 30, 2011, Edison filed an application requesting authority to implement a PSCR plan in its rates schedules for the 2012 metered jurisdictional sales of electricity. The application indicated that Edison intended to move forward with implementation of its REF project, but represented that the decision would have no impact on the requested maximum PSCR factor for 2012.
The proposal for decision issued by the administrative law judge (ALJ) assigned to the case recommended that Edison be denied permission to implement the REF project; however, contrary to the ALJ’s recommendation, the PSC approved the REF project, stating as follows:
The Commission finds that Detroit Edison’s REF project should be approved and that it complies with the Code of Conduct and the Guidelines. The Commission reviewed the company’s testimony and Exhibits A-21 through A-23 and finds that Detroit Edison, in compliance with the directive in the December 6 order [in Case No. U-16434], provided the Commission with sufficient additional information to evaluate the reasonableness and prudence of the REF project.
The Commission believes that the REF project is a reasonable means of attaining maximum emission reductions for minimum cost. As explained by Detroit Edison, at [Edison’s St. Clair Power Plant and its Belle River Power Plant], PSCR customers will receive a reduction in annual working capital expense through the sale, at market price, of a portion of the company’s coal inventory to its affiliated fuels companies. The affiliated fuels companies will treat the coal with REF adder and then resell the treated coal to Detroit Edison. The cost of the REF adder will be offset by a corresponding savings in PSCR emissions allowance expense, resulting in a net cost of zero or less to PSCR customers. At [Edison’s Monroe Power Plant], Detroit Edison receives a coal fee rate from the affiliated fuels company, reducing the cost of every ton of coal treated with REF adder that is consumed, which translates into a credit for the company’s PSCR customers.
In response to the ALJ’s finding that Detroit Edison did not provide any of the actual contracts between the company and its affiliated fuels companies for consideration, the Commission agrees with Detroit Edison that [1982 PA 304 (Act 304), MCL 460.6j et seq.] only requires a description of all relevant major contracts, but does not require admission of the actual contracts. In addition, the Commission agrees with Detroit Edison and the Staff that the company’s eligibility for the tax credits and the potential for the affiliated fuels companies to profit from the REF project is irrelevant to an Act 304 proceeding. As explained by Detroit Edison, Act 304 does not permit “the Commission to include third party expenses or revenues related to coal or any other fuel supply into Act 304 review and ratemaking.” Detroit Edison’s replies to exceptions, p. 27. As a result, the Commission may not consider whether the tax credits may be used to offset fuel costs.
The Commission disagrees with the Attorney General that REF costs should be treated as O&M costs. As explained by Detroit Edison, MCL 460.6j(13)(d) refers to “fuel movement that occurs after the utility receives the fuel at the power plant.” Detroit Edison’s replies to exceptions, p. 21. The Commission finds that all of the coal processing costs take place before the coal is delivered to the company.
Based on the evidence presented in Exhibits A-21 and A-23, the Commission finds that the REF project complies with the Code of Conduct. There is structural separation between the company and its affiliated fuels companies; they do not engage in joint advertising, marketing, or other promotional activities related to the provision of the fuels processing service; and there is no preferential treatment for or subsidization of the affiliated fuels companies by Detroit Edison.
The Commission finds that Detroit Edison has complied with Section III.C of the Code of Conduct. As discussed previously, the record supports that Detroit Edison purchases coal from a third party at market price, then sells the coal at the same market price to its affiliated fuels companies. The cost of the coal for the affiliated fuels companies is Detroit Edison’s booked cost, or its fully allocated embedded cost. Therefore, both the market cost and the fully allocated embedded cost is higher than the other, compensation to Detroit Edison by the affiliated fuels companies complies with Section III.C of the Code of Conduct.
When the affiliates resell the treated coal to Detroit Edison, it is for the same market price the affiliated fuels companies paid to the company (or in this case, the fully allocated embedded cost), plus the cost of REF adder. The price of the treated coal is offset by a corresponding savings in PSCR emissions allowance expense, resulting in zero cost for the treated coal. Under Section III.C of the Code of Conduct, compensation to the affiliated fuels companies by Detroit Edison for the treated coal must be the lower of market price or 10% over fully allocated embedded cost. Because market price and the fully alio cated embedded cost are the same in this case, the Commission finds that market price is lower than 10% over the fully allocated embedded cost. By paying the affiliated fuels companies market price for the treated coal, Detroit Edison has complied with Section III.C of the Code of Conduct.
The Commission agrees with Detroit Edison that the company did not violate the pre-sale notification requirements of the Guidelines with the sale of its coal inventory. As stated by Detroit Edison, the pre-sale notification requirement was intended to provide the Commission with notice of intent to sell significant utility plant property, and not the routine sales involved here. The Commission finds that Detroit Edison’s sale of its coal inventory is not utility plant property, but is part of the utility’s day-to-day business.
Based on the testimony and evidence provided by Detroit Edison, the Commission finds credible Detroit Edison’s claim that it investigated REF arrangements with the two other licensees, CERT and A.J. Gallagher, but that [DTE Energy Services] offered Detroit Edison the best deal. Detroit Edison provided substantial testimony about the price of REF adder at other licensees’ facilities and provided ample evidence that Detroit Edison’s customers would have paid more had the company contracted with these other companies. [In re Detroit Edison’s Application for a 2012 PSCR Plan, order of the Public Service Commission, entered June 28, 2013 (Case No. U-16892), pp 31-34.]
The PSC approved Edison’s application for a PSCR plan for Edison’s 2012 metered jurisdictional electric sales and the REF project. This appeal followed.
II. STANDARD OF REVIEW
The standard of review for PSC orders is narrow and well defined. Under MCL 462.25, all rates, fares, charges, classification and joint rates, regulations, practices, and services prescribed by the PSC are presumed, prima facie, to be lawful and reasonable. See Mich Consol Gas Co v Pub Serv Comm, 389 Mich 624, 635-636; 209 NW2d 210 (1973). A party aggrieved by an order of the PSC has the burden of proving by clear and convincing evidence that the order is unlawful or -unreasonable. MCL 462.26(8). To establish that a PSC order is unlawful, the appellant must show that the PSC failed to follow a mandatory statute or abused its discretion in the exercise of its judgment. See In re MCI Telecom Complaint, 460 Mich 396, 427; 596 NW2d 164 (1999). An order is unreasonable if it is not supported by the evidence. See Attorney General v Pub Serv Comm, 269 Mich App 473, 479; 713 NW2d 290 (2006).
A final order of the PSC must be authorized by law and be supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; Attorney General v Pub Serv Comm, 165 Mich App 230, 235; 418 NW2d 660 (1987).
This Court gives due deference to the PSC’s administrative expertise, and is not to substitute its judgment for that of the PSC. Attorney General v Pub Serv Comm No 2, 237 Mich App 82, 88; 602 NW2d 225 (1999). We give deference to the PSC’s interpretation of its own Code of Conduct; however, we apply principles of statutory construction in our review of that code and its statutory underpinnings. See In re Complaint of Consumers Energy Co, 255 Mich App 496, 503-504; 660 NW2d 785 (2003). If the language of a statute is vague or obscure, the PSC’s construction serves as an aid to determining legislative intent, and will be given weight if it does not conflict with the language of the statute or the purpose of the Legislature. However, the construction given to a statute or the PSC’s Code of Conduct by the PSC is not binding on us. See In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 103-109; 754 NW2d 259 (2008). Whether the PSC exceeded the scope of its authority is a question of law that we review de novo. In re Complaint of Pelland Against Ameritech Mich, 254 Mich App 675, 682; 658 NW2d 849 (2003).
III. CODE OF CONDUCT
On appeal, MEC argues that the PSC erred by finding that Edison’s REF project complied with the Code of Conduct. We disagree.
The purpose of the PSC’s Code of Conduct is to “promote fair competition by establishing measures to prevent cross-subsidization, information sharing, and preferential treatment between the regulated and unregulated operations of electric utilities, alternative electric suppliers, and their affiliates.” Code of Conduct, preface.
Section II of the Code of Conduct, entitled “Separation,” provides in part:
An electric utility or alternative electric supplier that offers, itself or through its affiliates, both regulated and unregulated services shall do so with the structural or functional separation needed to prevent cross-subsidization, information sharing, and preferential treatment between the regulated and unregulated services. This includes, but is not limited to, the following:
B. An electric utility’s or alternative electric supplier’s regulated services shall not subsidize in any manner, directly or indirectly, the unregulated business of its affiliates or other separate entities.
Section III of the Code of Conduct, entitled “Discrimination,” provides in part:
An electric utility or alternative supplier that offers, itself or through its affiliates, both regulated and unregulated services shall not unduly discriminate in favor of or against any party, including its affiliates. This includes, but is not limited to, the following:
*
C. If an electric utility or alternative electric supplier offering regulated service in Michigan provides services, products, or property to any affiliate or other entity within the corporate structure, compensation shall be based upon the higher of fully allocated embedded cost or market price. If an affiliate or other entity within the corporate structure provides services, products, or property to an electric utility or alternative electric supplier offering regulated service in Michigan, compensation for services and supplies shall be at the lower of market price or 10% over fully allocated embedded cost and transfers of assets shall be based upon the lower of fully allocated embedded cost or market price.
MEC argues that (1) Edison’s sale of coal to the fuels companies, and the repurchase of treated coal at the same price from them, violates the Code of Conduct in that the sale subsidizes the fuels companies because the companies are able to receive favorable tax treatment as a result of the transactions and (2) Edison’s sale of the coal at the fully allocated embedded cost and repurchase of the coal at the same price violates the pricing provision of the Code of Conduct.
MEC cites no authority to support its arguments. An appellant’s failure to properly address the merits of an argument constitutes the abandonment of an issue. Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 626-627; 750 NW2d 228 (2008). At any rate, we find that MEC’s argument is without merit. The Code of Conduct prohibits acts that result in cross-subsidization and preferential treatment between a regulated utility and an unregulated affiliate. Code of Conduct, preface. A “subsidy” is defined as “any grant or contribution of money.” Random House Webster’s College Dictionary (1997), p 1284. Nothing in the code prevents an unregulated affiliate from making a profit from a project with a regulated utility. The fuels companies gained tax benefits from selling treated coal to Edison. The undisputed evidence showed that Edison could not have obtained those same tax benefits. There is no evidence establishing that, had Edison done business with an unaffiliated company rather than with its affiliates, that company would not have also obtained the same tax benefits. Edison did not give or grant money to the fuels companies, and did not subsidize the companies in any indirect way.
In addition, MEC presents no evidence to support its assertion that Edison’s sale of coal to the fuels companies at the fully allocated embedded cost, which is the same as the market price at which Edison bought the coal, and Edison’s repurchase of the coal from the fuels companies at the same price, violates the pricing provisions of the Code of Conduct. MEC asserts that the value added to the coal from the treatment by the fuels companies should have factored into the repurchase price, but does not indicate how that could have been done or if Edison could have done so effectively without violating § III(C) of the Code of Conduct.
Further, MEC’s assertion that the PSC should have required Edison to submit the actual contracts with the fuels companies rather than simply describing the contracts is without merit. MCL 460.6j(3) states that a PSCR plan “shall describe all major contracts and power supply arrangements entered into by the utility.. . .” The PSC did not indicate that it was unable to resolve the issue without examining the actual contracts.
Finally, we reject MEC’s assertion that the PSC’s finding that Edison investigated the possibility of entering into contracts with unaffiliated companies was not supported by the evidence. Edison’s witness testified that other Edison employees had investigated the possibility of contracting with unaffiliated companies but that no such arrangements were made. The ALJ described the witness’s testimony as not credible, but the PSC found to the contrary. The PSC was entitled to accept the testimony from Edison’s witness even if the record contained evidence that contradicted that testimony. See Great Lakes Steel Div of Nat’l Steel Corp v Mich Pub Serv Comm, 130 Mich App 470, 481-482; 344 NW2d 321 (1983).
MEC obviously disagrees with the PSC’s conclusion regarding subsidization, but has offered no direct evidence to establish that Edison’s arrangement with the fuels companies violated the Code of Conduct. MEC has not established that the PSC’s order is unlawful or unreasonable. See MCL 462.26(8).
IV. FUELS COMPANIES’ TAX CREDIT REVENUE
Next, MEC argues that the PSC erred by holding that the revenue generated for the fuels companies from tax credits was irrelevant to determining whether Edison took all appropriate steps to minimize its costs. We disagree.
MCL 460.6j(6) provides:
In its final order in a power supply and cost review, the commission shall evaluate the reasonableness and prudence of the decisions underlying the power supply cost recovery plan filed by the utility pursuant to subsection (3), and shall approve, disapprove, or amend the power supply cost recovery plan accordingly. In evaluating the decisions underlying the power supply cost recovery plan, the commission shall consider the cost and availability of the electrical generation available to the utility; the cost of short-term firm purchases available to the utility; the availability of interruptible service; the ability of the utility to reduce or to eliminate any firm sales to out-of-state customers if the utility is not a multi-state utility whose firm sales are subject to other regulatory authority; whether the utility has taken all appropriate actions to minimize the cost of fuel; and other relevant factors. The commission shall approve, reject, or amend the 12 monthly power supply cost recovery factors requested by the utility in its power supply cost recovery plan. The factors shall not reflect items the commission could reasonably anticipate would be disallowed under subsection (13). The factors ordered shall be described in fixed dollar amounts per units of electricity, but may include specific amounts contingent on future events.
The PSC has only that authority granted to it by statute. Union Carbide Corp v Pub Serv Comm, 431 Mich 135, 148-150; 428 NW2d 322 (1988). The Legislature must grant authority by “clear and unmistakable” statutory language. Mich Electric Coop Ass’n v Pub Serv Comm, 267 Mich App 608, 616; 705 NW2d 709 (2005).
The gravamen of MEC’s argument is that the PSC erred by failing to consider the fact that the fuels companies received favorable tax treatment by dealing with Edison, and that Edison should have negotiated more advantageous arrangements with the fuels companies to account for the fact that the companies were able to obtain tax credits for selling treated coal to Edison. However, MEC points to no statutory authority that allows the PSC to consider another party’s tax benefits when determining whether a utility’s decisions underlying its PSCR plan were reasonable and prudent. These tax advantages were not available to Edison, and Edison had no apparent control over the amount of the credit each company would receive. In addition, MEC fails to explain how Edison could determine what amounts to account for when negotiating the contracts, i.e., how much in tax credits the fuels companies would obtain, and whether Edison could account for these amounts and still comply with § III(C) of the Code of Conduct.
The PSC had no clear authority to consider the fuels companies’ tax credits when determining whether Edison’s PSCR decisions were reasonable and prudent. Therefore, the PSC did not err by failing to consider the tax credits. The PSC’s decision was not unlawful or unreasonable. MCL 462.26(8).
Finally, MEC argues that the PSC’s order was not supported by competent, material, and substantial evidence on the whole record. We disagree. MEC waived this issue by failing to raise it before the PSC. See Shaw v Ecorse, 283 Mich App 1, 22; 770 NW2d 31 (2009). Nevertheless, we find that the issue is without merit. MEC’s argument in this regard is simply a restatement of the unpersuasive arguments that we have already rejected.
V. CONCLUSION
For the reasons stated in this opinion, we hold that the PSC’s order granting Edison’s application to implement a PSCR plan in its rate schedules for the 2012 metered jurisdictional sales of electricity and for approval of Edison’s five-year forecast is lawful and reasonable. See MCL 462.26(8).
Affirmed.
BOONSTRA, P.J., and SAAD and MURRAY, JJ., concurred.
See In re Application of Detroit Edison Company for 2011 PSCR Plan, order of the Public Service Commission, entered December 6, 2011 (Case No. U-16434).
The Legislature enacted 2000 PA 141, the Customer Choice and Electricity Reliability Act (Act 141), MCL 460.10 et seq., to further the deregulation of the electric utility industry. Detroit Edison Co v Pub Serv Comm No 1, 261 Mich App 1, 4; 680 NW2d 512 (2004), vacated in part on other grounds 472 Mich 897 (2005). Act 141 required the PSC to implement a code of conduct to be applicable to all regulated electric utilities. MCL 460.10a(4) provides:
No later than December 2, 2000, the commission shall establish a code of conduct that shall apply to all electric utilities. The code of conduct shall include, but is not limited to, measures to prevent cross-subsidization, information sharing, and preferential treatment, between a utility’s regulated and unregulated services, whether those services are provided by the utility or the utility’s affiliated entities. The code of conduct established under this subsection shall also be applicable to electric utilities and alternative electric suppliers consistent with section 10, this section, and sections 10b through lOcc.
The PSC adopted its Code of Conduct in 2001. | [
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CAVANAGH, J.
Shakeeta Simpson, as the personal representative of the estate of Antaun Simpson, appeals as of right an order granting partial summary disposi tion in favor of defendants and dismissing the wrongful-death claim brought on behalf of her decedent. We reverse.
In this wrongful-death action, it was alleged that defendants were negligent in the prenatal care and treatment of Simpson, which caused the premature birth and death of the decedent, Simpson’s nonviable fetus, Antaun, at 18.2 weeks’ gestation. In particular, Simpson suffered a miscarriage allegedly because her physician, defendant Alex Pickens, Jr., failed to perform a cerclage despite knowing that Simpson had two previous pregnancy losses as a consequence of cervical insufficiency.
Defendants filed a motion for partial summary disposition of the wrongful-death claim under MCR 2.116(C)(8) and (10), arguing that dismissal was required under MCL 600.2922a because plaintiff alleged that an omission — the failure to perform a cerclage — led to the death of the fetus. Defendants argued that, in Johnson v Pastoriza, 491 Mich 417, 436-440; 818 NW2d 279 (2012), our Supreme Court held that to state a cause of action under MCL 600.2922a, an “affirmative or positive actO” must be alleged, not merely an omission or failure to act. Further, defendants argued, “the amendment of MCL 600.2922 to reference MCL 600.2922a does not change the essential nature of the underlying claim brought under MCL 600.2922a. That is, the essential elements of a claim brought under MCL 600.2922a remain the same, including the need to establish ‘an affirmative or positive act’ to state a valid cause of action.” Accordingly, defendants argued that the wrongful-death claim should be dismissed.
Plaintiff responded, arguing that MCL 600.2922a was not applicable here because this is a wrongful-death action brought on behalf of the decedent, a nonviable fetus. The underlying theory of liability is medical malpractice, not MCL 600.2922a. A wrongful-death claim brought under MCL 600.2922 imposes liability for death caused by “wrongful act, neglect, or fault of another”; therefore, acts of omission are sufficient to state a claim and to establish liability.
The trial court agreed with defendants, holding that MCL 600.2922a must be incorporated into MCL 600.2922 because that statute refers to “death as described in 2922a . . . .” Further, the court held, an affirmative act must be alleged to state a claim under MCL 600.2922a and plaintiff only alleged that an omission occurred. Therefore, defendants were entitled to summary disposition of the wrongful-death claim.
The sole issue on appeal is whether this wrongful-death action was properly dismissed on the ground that plaintiff failed to allege that defendants committed an affirmative act as required for actions brought under MCL 600.2922a. We conclude that dismissal was improper, and reverse.
A trial court’s decision on a motion for summary disposition is reviewed de novo. Spiek v Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). It appears the trial court granted defendants’ motion under MCR 2.116(C)(8), after concluding that plaintiffs complaint failed to state a claim upon which relief could be granted. Amotion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint and may be granted only when the claim alleged is “so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.” Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992).
The resolution of this matter requires the interpretation of statutory provisions. We review issues of statutory construction de novo. Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000). The rules of statutory interpretation are well established. The primary goal is to discern the intent of the Legislature. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 205; 815 NW2d 412 (2012). The best indicator of that intent is the language of the statute, and, in determining intent, the words of the statute are given their common and ordinary meaning. Id. at 205-206. Statutory language must be read and understood in its grammatical context, and effect should be given to every phrase, clause, and word in the statute. Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999). No word should be treated as surplusage or rendered nugatory. Baker v Gen Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980). When statutory language is unambiguous, “further construction is neither required nor permitted.” Joseph, 491 Mich at 206. Only when the statutory language is ambiguous “is it proper for a court to go beyond the statutory text to ascertain legislative intent.” Whitman v City of Burton, 493 Mich 303, 312; 831 NW2d 223 (2013). A statute is not rendered ambiguous merely because reasonable minds may differ regarding its meaning. Lansing Mayor v Pub Serv Comm, 470 Mich 154, 166; 680 NW2d 840 (2004). “Rather, a provision of the law is ambiguous only if it ‘irreconcilably conflict [s]’ with another provision ... or when it is equally susceptible to more than a single meaning.” Id., quoting Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003) (alteration in original). Such a conclusion should be arrived at "only after ‘all other conventional means of [ ] interpretation’ have been applied and found wanting.” Lansing Mayor, 470 Mich at 165, quoting Klapp, 468 Mich at 474 (alteration in original).
This is a wrongful-death action brought on behalf of the deceased nonviable fetus. The death alleged is that of the nonviable fetus, and the underlying theory of liability is medical malpractice. Because it was alleged that the wrongful act, neglect, or fault of another resulted in the death of the nonviable fetus, this action had to be brought under the wrongful-death act, MCL 600.2922, which “provides the exclusive remedy under which a plaintiff may seek damages for a wrongfully caused death.” Jenkins v Patel, 471 Mich 158, 164; 684 NW2d 346 (2004); see also MCL 600.2921. “[T]he wrongful-death act is essentially a ‘filter’ through which the underlying claim may proceed.” Wesche v Mecosta Co Rd Comm, 480 Mich 75, 88; 746 NW2d 847 (2008). In other words, for example, “a wrongful death action grounded in medical malpractice is a medical malpractice action in which the plaintiff is allowed to collect damages related to the death of the decedent.” Jenkins, 471 Mich at 165-166. Therefore, statutory and common-law limitations, like the noneconomicdamages cap applicable in medical malpractice actions, apply to wrongful-death actions. Wesche, 480 Mich at 90.
The wrongful-death act, MCL 600.2922(1), provides:
Whenever the death of a person, injuries resulting in death, or death as described in section 2922a shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation that would have been liable, if death had not ensued, shall be liable to an action for damages, notwith standing the death of the person injured or death as described in section 2922a, and although the death was caused under circumstances that constitute a felony.
There is no dispute in this case that a wrongful-death action may be brought on behalf of a nonviable fetus. Before the language of the statute was amended in 2005, however, a wrongful-death action brought on behalf of a nonviable fetus was not cognizable. That was so because, before the 2005 amendment, MCL 600.2922(1) provided: “Whenever the death of a person or injuries resulting in death shall be caused . . . .” Accordingly, a wrongful-death action could not be based on the death of an embryo or nonviable fetus. See Thomas v Stubbs, 455 Mich 853 (1997); Toth v Goree, 65 Mich App 296, 304; 237 NW2d 297 (1975). In Johnson, our Supreme Court recognized that “[b]efore the 2005 amendment of the wrongful-death statute, a plaintiff could not bring an action under MCL 600.2922 for the death of a nonviable fetus.” Johnson, 491 Mich at 433.
While there is no dispute that a wrongful-death action may now be brought on behalf of a nonviable fetus, there is a dispute regarding the meaning, and operation, of the 2005 amendatory language. As amended, MCL 600.2922(1) provides, “Whenever the death of a person, injuries resulting in death, or death as described in section 2922a shall be caused . . . .” (Emphasis added to highlight the amendatory language.) Defendants argued in the trial court that, in light of the amendatory language, plaintiff brought this action under § 2922a, which must be incorporated in its entirety into § 2922. The trial court agreed with defendants, holding that MCL 600.2922a must be incorporated into MCL 600.2922. Essentially, then, the trial court concluded that MCL 600.2922(1) should be read as follows:
Whenever the death of a person, injuries resulting in death, or death as described in section 2922a [“[a] person who commits a wrongful or negligent act against a pregnant individual is liable for damages if the act results in a miscarriage or stillbirth by that individual or physical injury to or the death of the embryo or fetus”] shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation that would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or death as described in section 2922a, and although the death was caused under circumstances that constitute a felony.
We do not agree with the trial court’s interpretation.
It is clear by a plain reading of MCL 600.2922 that the amendatory language refers to another death that is actionable under the wrongful-death statute — a “death as described in section 2922a. . . .” Thus, we turn to MCL 600.2922a(l), which provides:
A person who commits a wrongful or negligent act against a pregnant individual is liable for damages if the act results in a miscarriage or stillbirth by that individual or physical injury to or the death of the embryo or fetus.
There is no ambiguity; the “death as described in section 2922a” is the death of an embryo or fetus. No other “death” is described in § 2922a. The statutory language is not equally susceptible to more than this single meaning. See Lansing Mayor, 470 Mich at 166. The amendatory language merely differentiates between the death of “a person,” as that term had been construed under MCL 600.2922, and the death of an embryo or fetus. Under the language of the 2005 amendment, the first requirement for a wrongful-death action — that there be a death — is satisfied when the death is of an embryo or fetus. And that is the extent of the effect this amendment had on the wrongful-death statute; it merely expanded the scope of actionable deaths to include the death of an embryo or fetus. The trial court’s interpretation of the amendatory language as incorporating the entirety of one statute into the other statute contravenes our longstanding rules of statutory interpretation that statutory language is to be read and understood in its grammatical context, words are to be accorded their plain and ordinary meaning, and no word should be treated as surplusage or rendered nugatory. See Joseph, 491 Mich at 206; Sun Valley Foods Co, 460 Mich at 237; Baker, 409 Mich at 665.
Neither defendants nor the trial court provided any sound legal basis for treating a wrongful-death action brought on behalf of an embryo or fetus any differently than a wrongful-death action brought on behalf of “a person.” Again, the first requirement for a wrongful-death action is a death. The second requirement is that the death “be caused by wrongful act, neglect, or fault of another. . . .” The third requirement is that the “wrongful act, neglect, or fault of another” be such that, if death had not ensued, a cause of action could have been filed against the responsible party and damages recovered from them. See MCL 600.2922. As our Supreme Court noted in O’Neill v Morse, 385 Mich 130, 133; 188 NW2d 785 (1971), the “obvious purpose” of the wrongful-death statute “is to provide an action for wrongful death whenever, if death had not ensued, there would have been an action for damages.” In other words, the action brought on behalf of the deceased is the same legal action — with all of its statutory and common-law limitations — that the deceased could have brought if the injuries the deceased sustained because of the wrongful act, neglect, or fault of another had not caused death. See Wesche, 480 Mich at 90-91; Hardy v Maxheimer, 429 Mich 422, 438-439; 416 NW2d 299 (1987). The nature and purpose of this type of action does not change because it is the death of an embryo or fetus giving rise to the wrongful-death action.
Further, contrary to defendants’ argument, a wrongful-death action brought on behalf of an embryo or fetus is not required to be construed as “brought under § 2922a” because of the amendatory language at issue. As our Supreme Court noted in Johnson, MCL 600.2922a “is separate from the wrongful-death statute ____” Johnson, 491 Mich at 422-423. While MCL 600.2922a does recognize as actionable certain prenatal injuries — miscarriage, stillbirth, and physical injury to, or the death of, an embryo or fetus — it does not require that the prenatal injuries result in death to be actionable. Therefore, for example, the “pregnant individual” and the child who suffered but survived injury-in útero may pursue statutory causes of action under MCL 600.2922a for such prenatal injuries. See, e.g., Johnson, 491 Mich at 433 n 36. However, a legal action for death or injuries resulting in death brought on behalf of a deceased person, fetus, or embryo must be brought under the wrongful-death statute, MCL 600.2922, which provides the exclusive remedy. See MCL 600.2921; Jenkins, 471 Mich at 164.
We also reject defendants’ argument that the Supreme Court’s holding in Johnson is applicable here. The circumstances in this case are clearly distinguishable. In that case, a wrongful-death action could not be brought on behalf of the deceased fetus because the injuries resulting in death occurred before the effective date of the amendatory language. Johnson, 491 Mich at 420-421. In this case, the cause of action arose after the effective date of the 2005 amendatory language so, as the Johnson Court acknowledged, “the representative of the fetus’s estate is now able to file a wrongful-death claim on the basis of the fetus’s death.” Id. at 433. In Johnson, “wrongful-death claim” was clearly distinguished from a claim brought under MCL 600.2922a. Id. at 420, 433.
In summary, Simpson brought a wrongful-death action on behalf of her decedent and it was grounded in medical malpractice. This action was not brought under MCL 600.2922a and it need not be considered a statutory cause of action brought under MCL 600.2922a. Therefore, Simpson was not required to allege that defendants committed an affirmative or positive act that caused her decedent’s death in order to state a claim under MCL 600.2922. To the contrary, under the wrongful-death statute, MCL 600.2922(1), a cause of action may be brought when death is “caused by wrongful act, neglect, or fault of another . . . .” As the Johnson Court explained, the “more expansive terms ‘neglect’ and ‘fault of another’ that [the Legislature] included in MCL 600.2922(1).. . permit liability on the basis of omissions.” Johnson, 491 Mich at 437. In this case, the alleged “omission” that caused the decedent’s death was the failure to perform a cerclage; therefore, plaintiff stated a valid cause of action under MCL 600.2922. Accordingly, the trial court’s order granting defendants’ motion for partial summary disposition of this wrongful-death action is reversed.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Meter, P.J., and Wilder, J., concurred with Cavanagh, J.
Shakeeta Simpson brought claims on her own behalf, but those individual claims were dismissed by stipulated order and are not subject to this appeal.
Modified on other grounds by Mich Federation of Teachers & Sch Related Personnel v Univ of Mich, 481 Mich 657 (2008).
MCL 600.2922(1) was amended by 2005 PA 270, which took effect on December 19, 2005.
See MCL 600.2922(1), as amended by 2000 PA 56.
We note that the death of either an embryo or nonviable fetus is generally considered a “miscarriage,” and a “stillbirth” is “the birth of a dead fetus].]” Merriam-Webster’s Collegiate Dictionary (11th ed).
See McClain v Univ of Mich Bd of Regents, 256 Mich App 492, 495; 665 NW2d 484 (2003) (“[A]n action for wrongful death .. . cannot be brought on behalf of a nonviable fetus, because a nonviable fetus is not a “person” within the meaning of the wrongful-death act.”).
Although a wrongful-death action could not be filed on behalf of an embryo or nonviable fetus before the 2005 amendment of MCL 600.2922(1), a wrongful-death action could be filed on behalf of a viable fetus for prenatal injuries that caused death. See O’Neill v Morse, 385 Mich 130, 132, 139; 188 NW2d 785 (1971); Jarvis v Providence Hosp, 178 Mich App 586, 590-591; 444 NW2d 236 (1989).
Because the statutory language is not ambiguous, we may not go beyond the statutory text and consider legislative history; the intent is clear. See Whitman, 493 Mich at 312.
We note that before MCL 600.2922a was enacted, a common-law negligence action could be brought on behalf of a surviving child who sustained injuries in utero during pregnancy. Womack v Buchhorn, 384 Mich 718, 719, 725; 187 NW2d 218 (1971). | [
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Lonó, C. J.
On October 9, 1896, relator commenced suit against Edward Frohlich, doing business as the Edward Frohlich Glass Company, before a justice of the peace in the city of Detroit. On the return day both parties appeared by their attorneys. The action was in assumpsit, and the defendant pleaded the general issue with notice of set-off and recoupment. On the trial the relator had verdict and judgment for $3?.19 damages, and $2 costs. This judgment was rendered on November 21, 1896, and on November 24th the defendant applied to the respondent for an order allowing an appeal to the circuit court, tendering an appeal bond. An order was made granting the appeal, and a return made to the circuit court on December 12th following. No notice was given to the relator or its attorneys.of the application for the order of appeal. The appeal having come to the attention of the relator, it "moved the court to set the same aside. This motion being denied, it presented a petition to this court asking a mandamus to compel the respondent to set aside the order.
The respondent has made a return to the order to show cause issued by this court, and accompanies his return with an affidavit made by the defendant in the case, which was presented to him at the time the order for the appeal was made. .That affidavit sets out, in substance, the commencement of the suit in justice’s court, the trial of it, and the rendition of the judgment against the defendant, and avers that “the judgment is most unlawful and unjust, and a wrong to your petitioner.” The affidavit is made by Edward Frohlich, and recites—■
“That J. P. Scranton, at the head of the J. P. Scranton Lumber Company, instructed this deponent that all merchandise sold by deponent to the Casket & Shell Company, of which said Scranton was treasurer, would be paid by said Scranton Lumber Company; that deponent from time to time sold certain merchandise to said Casket & Shell Company, and the payment therefor was received from the Scranton Lumber Company; that said J. P. Scranton was treasurer of both the Scranton Lumber Company and the Casket & Shell Company; that the attorney, one Trevor, was the general manager of the Casket & Shell Company, and director in the other, and both concerns were under the same management; that both institutions are now insolvent, and there is now a balance due petitioner of $5.85, instead of your petitioner being in debt $37.19, as rendered by the court; that the said Casket & Shell Company had no credit whatever with the deponent, and it was only upon the understanding and agreement made with the J. P. Scranton Lumber Company that all merchandise sold to the Casket & Shell Company would be paid by the Scranton Lumber Company that said sales were made; that said sales so made were adopted and ratified by the Scranton Lumber Company, and paid, to the amount of about $53, and a balance of $37.19, for which judgment was rendered, said J. P. Scranton Lumber Company repudiates and refuses to pay, and which deponent avers and maintains is part of its contract made and had between them, and that said judgment is unjust to deponent. ”
The affiant then asks that an appeal be allowed. The respondent returns that—
“Upon presentation to me of the annexed affidavit of Edward Frohlich, and upon reading the same, it became apparent to me, and I was of the opinion, that injustice had been done to said Edward Frohlich Glass Company, and an unjust judgment rendered therein. I did, in pursuance of section 10, Act No. 460, Local Acts 1895, appertaining to justices’ courts of Detroit, and in pursuance of the discretion therein vested in the court, and construing the act that no notice being required, it being sufficient and satisfactory to the court that justice required that said appeal be granted to petitioner, I caused an order to be entered to that effect.”
Section 10 of the act referred to provides:
“No appeal shall be taken from any judgment of any justice of the peace in said city of Detroit, except in the following cases:
“First. When said justice shall disallow any claim in favor of any plaintiff or defendant in any cause in said justices’ courts, in whole or in part,' to the amount of $50.
“ Second. When such justice shall render a judgment to the amount of $50, exclusive of costs,—in either of which cases the party aggrieved may appeal.
“ Third. Appeals may be authorized by the circuit court of the county of Wayne when the party making the appeal has been prevented from making a defense upon the merits of the cause in which such appeal is taken by circumstances not under his control, and such appeal may also be authorized when justice requires that such appeal should be authorized; and, in all cases where the party against whom such appeal is sought has appeared in said justices’ courts by an attorney or agent, it will be sufficient to serve such attorney or agent with the notices of all subsequent proceedings in such cause, and all orders made therein by said circuit court may be served on said attorney or agent, and such service shall have the same effect as though made on the party against whom such appeal is taken.”
It is contended by counsel for relator that the respondent had no power to allow the appeal, for the reasons (1) that no notice of the motion or affidavit upon which the hearing was had which culminated in the order aforesaid was served upon the plaintiff or its attorney, as provided by law; (2) that said plaintiff was not present nor represented at said hearing, nor did said plaintiff or its attorney have any knowledge or reason to believe that said hearing was to be had, nor did said plaintiff or its attorney know of said hearing or order until the same had been had. It is not contended that the defendant was prevented from making a defense upon the merits before the justice, and the sole ground upon which the appeal is asked is that justice requires that said appeal should be authorized.
We are of the opinion that, under the third subdivision of section 10 of the act referred to, parties making application for an appeal must give notice to the opposite party by serving upon him, his attorney or agent, the petition and grounds of the motion, and the affidavit upon which the- same is based; and that such opposite party shall have an opportunity to be heard before the circuit court before such appeal is allowed. That subdivision provides for such notice. While it does not provide for the length of time to be contained in the notice, we think the time is governed by the circuit court rules pertaining to special motions.
We think the court below was in error in granting leave to appeal, without notice to the opposite party and an opportunity to be heard. The writ of mandamus must be granted as prayed.
The other Justices concurred. | [
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Moore, J.
The complainant filed a bill to quiet title to 40 acres of land which he claims to own. His title is obtained through a tax deed. Nearly all the questions involved in this case were considered and determined in the case of Muirhead v. Sands, ante, 487. The only other question necessary to discuss grows out of the following facts: The auditor general filed his petition for a decree' for a sale of the land in controversy, and in the. petition notice was given that a hearing wodld be had before the circuit court for the county of Kalkaska on the third Tuesday of January, 1892. No appearance was made, and no notice of contest was filed in the case. The court was opened on the third Tuesday of January, and on the same day was adjourned until the 22d day of March, at which date court was opened, and was doubtless adjourned the same day, sine die, though the court journal does not contain an entry of adjournment. No formal order was made continuing the case from day to day, or over the term, and on the first day of the April term, a decree was entered in the case.
Section 59, Act No. 195, Pub. Acts 1889, under which this proceeding was had, provides:
“If, from any cause, the hearing on said petition is not had on the day fixed in the notice therefor, the same shall stand continued from day to day during the 'term, without the entry of any order of continuance, until disposed of. * * * If, from any cause, no decree shall be made on such petition as to the taxes therein named, or any part thereof, the auditor general shall, as soon as practicable, file a new petition for decree and sale, and proceedings thereon shall be the same and a decree and sale made as herein provided.”
It is the claim of defendants that, when the January term adjourned without day, the court lost jurisdiction to make a decree in the case, until a new petition was filed by the auditor general. The cases were continued from day to day, without the entry of any order of continuance, simply by virtue of the statute. But the statute does not provide for such a continuance beyond the term. In the absence of any formal order continuing the case until the subsequent term, we think the court lost jurisdiction until a new petition was filed.
Decree is reversed, and bill dismissed.
The other Justices concurred. | [
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] |
Long, C. J.
On October 31, 1894, an epidemic of smallpox broke out in the village of St. Johns, and the board of health, being the trustees of the village, increased the pay of its health officer, Dr. Henry Palmer, one of its members, by a further sum of $10 a day. Dr. Palmer performed the duties of health officer, with this increased compensation, for 69 days, during the prevalence of the smallpox. The village audited, and presented to the board of supervisors for allowance, a bill of expenses incident to the epidemic, amounting to $2,810.48. This bill included among its items $690 as salary to its health officer, and $150 paid him as compensation in attending certain indigent persons, and being all the indigent patients he attended. These services as physician were rendered during the time he .was receiving additional compensation as health officer. The board of supervisors allowed and paid the whole bill, except the $690 to the health officer. This it refused to pay, and the village filed a petition for a mandamus in the circuit court for Clinton county to compel its payment. After a hearing in that court, the writ was issued against the board, directing the payment of this item. The case was heard on petition and answer, and the following stipulation of facts made:
“It is hereby stipulated that the only questions to be decided in this case are whether the fact that the health officer was a member of the board of health of the village of St. Johns prevents a recovery by the village; and, second, whether the fact that the services for which the bill in question was rendered were performed by the health officer of said village, as health officer, in preventing the spread of the smallpox, and in taking measures for the safety of the inhabitants during the epidemic of smallpox, prevents a recovery by the village. It is admitted that; at the outset of the epidemic, an agreement was entered into between Dr. Henry Palmer, the health officer, and the board of health of said village, by which said health officer was to receive at least $10 a day over and above his annual salary of $100 while employed about the smallpox epidemic, and as much more as they should agree upon later. It is also admitted that the bill in question is a reasonable one for the services performed, and that those persons who were sick with smallpox during said epidemic, and their parents, and all others liable for their support, were unable to pay the same, or any part thereof. It is also admitted that the sum of $690 was allowed by said board of health to said health officer for said services, and paid by said village for services in and about said epidemic, as health officer, and that this sum was over and above the annual salary of $100 paid to said health officer. The object of this stipulation is not to set forth all the facts, but to limit the issues in the case to the two questions first stated in this stipulation, and thus prevent the framing and trial of issues of fact.”
The case comes into this court by writ of certiorari to review the findings of the court below.
Counsel-for the board of supervisors contend that the board of health cannot fix the compensation of one of its members, and thus bind the county for the payment of the amount so fixed, and cite Kennedy v. Gies, 25 Mich. 83, and Farnsworth v. Supervisors of Kalkaska Co., 56 Mich. 640. We think those cases not controlling in the present controversy. Dr. Palmer was a member of the board, but there is nothing in the record to show that he took any part in the proceedings to fix his compensation ; and the stipulation itself recites that the services had been performed, and that the bill charged was a reasonable one. In Farnsworth v. Supervisors of Kalkaska Co., supra, it was said: “Whether it was competent for the board of health to employ its own members, and then fix conclusively the compensation to be made by the county, is a question of no little importance ; but we do not enter upon it here, it being unnecessary to do so.” We should doubt the power of the board of health to fix conclusively the amount of the claim of Dr. Palmer, did it appear that he took part, as a member of the board, in fixing his own compensation, and the board of supervisors were contesting the claim upon the ground that the amount fixed was excessive. But the case presents no such feature. It is stipulated that the charges are reasonable for the services performed, and that the persons who were sick with the smallpox, and all others liable for their support, were unable to pay the same, or any part thereof.
We think that the second contention of counsel cannot be sustained. Section 16816, 3 How. Stat., prescribes the duties of the health officer in case of an epidemic of smallpox, etc., or other communicable disease dangerous to the public health, in cities, townships, and villages. Section 1681ci provides:
“In the fulfillment of the requirements of this act, the health officer, unless other provision shall have been made in accordance with law, shall be entitled to receive, from the township, city, or village of which he is the health officer, compensation at the rate of not less than two dollars per day,” etc.
The contention of the board of supervisors is that these sections place the burden of payment of the health officer upon the township, city, or village. These sections, however, must be construed with sections 1647, 1648, 1 How. Stat. Section 1647 provides:
‘ ‘ When any person coming from abroad, or residing in any township within this State, shall be infected, or shall lately before have been infected, with the smallpox, or other sickness dangerous to the public health, the board of health of the township where such person may be shall make effectual provision, in the manner in which they shall judge best, for the safety of the inhabitants, by removing such sick or infected person to a separate house, if it can be done without danger to his health, and by providing nurses and other assistance and necessaries, which shall be at the charge of the person himself, his parents, or other person who may be liable for his support, if able; otherwise, at the charge of the county to which he belongs.”
Section 1648 provides:
“If any such infected person cannot be removed without danger to his health, the board of health shall make provision for him, as directed in the preceding section, in the house in which he may be, and in such case they may cause the persons in the neighborhood to be removed, and may take such other measures as they may deem necessáry for the safety of the inhabitants.”
Section 1681, 1 How. Stat., imposes the same duties upon the boards of health of cities and villages as are imposed by sections 1647,1648,1 How. Stat., upon boards of health of townships. These sections make it the duty of boards of health to prevent the spread of the disease, and to do whatever such boards may deem necessary for the safety of the inhabitants. The services rendered by Dr. Palmer were in the line of this duty. Prior to the epidemic his salary had been fixed at $100 per annum. When the epidemic commenced, the board of health of the village directed him to prevent, so far as possible, its spread, and to take care of those infected. For these services he was to be paid the sum of $10 per day, over and above the amount of his salary. This expense was rendered necessary by reason of the epidemic, and, we think, is a charge which the county became liable to pay, under the provisions of sections 1647, 1648. While the boards of health of townships, cities, and villages are required to fix and pay for the ordinary services of the health officer, yet it is apparent that it was the intent of the legislature, by the various provisions of the statute, to cast the burden upon the county for extraordinary services rendered to prevent the spread of contagious diseases, and for the Gare of indigent persons afflicted with such disease. City of Clinton v. County of Clinton, 61 Iowa, 205.
We think the court below was not in error in directing payment of this bill by the board of supervisors. The order so made will be affirmed.
The other Justices concurred. | [
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] |
Montgomery, J.
Complainant filed a bill for an accounting. The bill sets out a contract between Alexander Rodgers and defendant, which recites that Alexander Rodgers and defendant were the owners of,various letters patent, relating to log-turning and log-rolling machines, and that, by assignments from Rodgers to , Torrent, all these patents had become vested in defendant. By the terms of the contract Torrent agreed to prosecute for, adjust, settle, and collect for infringements upon any of these patents, and to keep a correct account of his doings and transactions, and to render an' account of the same once in six months, and, at that time, to divide the amount of collections from every source, whether in money, evidences of debt, or securities.. Rodgers agreed, on his part, during the lifetime of the patents, to manufacture or cause to be manufactured, in a proper manner, the machines covered by the letters patent, and to sell and dispose of the same at prices to be agreed upon, and to properly advertise the machines, and make the sale thereof as extensive as he should be able, using his best judgment in the matter. He likewise undertook to keep a correct and detailed account-of machines sold, and to make settlements every six months, retaining the cost of manufacture and 10 per cent, profit on manufacture, and divide the balance of the proceeds equally between the parties. The bill further avers that about the 1st of September, 1890, defendant rendered an account to Alexander Rodgers of $5,485.07, upon which he paid Rodgers $1,500, but that since that time he has collected large amounts, but has rendered no account. The bill alleges that on the 21st of September, 1893, Alexander Rodgers, for a valuable consideration, assigned and transferred to complainant the said contract, together with all his right, title, and interest therein, with full authority to have, receive, sue for, and collect the same; that demand has been made upon Torrent for an accounting, which has been refused. The bill prays for an accounting.
The defendant interposed a general demurrer, and assigns as a ground of demurrer the claim that the contract between Alexander Rodgers and defendant was not assignable. The demurrer does not allege a nonjoinder of parties, but is general, as before stated. Nor does it appear that any such ground of demurrer was urged below. In the brief of defendant’s counsel it is stated: “ It is not a case of nonjoinder of the proper parties to the bill. On the contrary, the bill is filed by an interloper, in whose favor there can be no equities. ” After the demurrer was overruled in the court below, the complainant, availing himself of the privilege granted by rule, amended his bill by making Alexander Rodgers a party. We need not determine, therefore, whether Alexander Rodgers was a necessary party, as any objection on that ground had been obviated before the objection was urged by defendant. Indeed, as before stated, no such objection has yet been urged. The single question is whether complainant, by the assignment averred, obtained such a right to the avails of this contract, so far as executed, as entitled him to maintain this bill. If it be conceded, as we think it should be, that defendant could not be required to rely upon the complainant to perform that part of the contract which remains executory, and which Alexander Rodgers undertook to perform, the fact still remains that certain sums of money were to grow due, under the contract, to Alexander Rodgers, at stated intervals, which he was, at these times, entitled to receive. The right to demand and receive these moneys, we think, is assignable. See Perkins v. Butler Co., 44 Neb. 110; Bates v. Lumber Co., 56 Minn. 14. It is one thing to say that a party may not be required to assume contract relations with another, and to rely upon such other to perform stipulations made with a third person, and another thing to hold that the right to recover money under a contract performed in whole or in part shall not be subject to assignment.
The decree will be affirmed, with costs, and the cause remanded.
The other Justices concurred. | [
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] |
Montgomery, J.
Relator was removed from the police force of ’the city of Saginaw December 15, 1894. Subsequently proceedings were instituted by which he was reinstated. Wilkinson v. Saginaw Police Com’rs, 107 Mich. 394. He thereupon made an application to the circuit court for mandamus to require the common council to audit and pay his account for salary up to the present time. It was held, on his application for reinstatement, that the board had the power to remove summarily, but that it had not proceeded under that power. The return made to the circuit court shows that relator has not performed the services of policeman from the time of his removal, in December, 1894, and that, during most of this time, he has been absent from the State, and has acquiesced in the order removing him. The return further shows that there was no fund against which the common council could issue an order for the payment of relator. This would furnish a sufficient ground for refusing mandamus; but, as the question of whether relator is entitled to receive compensation for services since the date of his removal is the meritorious question in the case, we think it proper to dispose of it.
The general rule, undoubtedly, is that where an officer has been prevented, through no fault of his own, from performing the duties of his office, he is entitled to recover his salary during the interim, and it has been held also that in such case he cannot be compelled, in an action to recover his unpaid salary, to account for wages earned in other and different employment. See Fitzsimmons v. City of Brooklyn, 102 N. Y. 536 (55 Am. Rep. 835). This rule rests upon the ground that the emoluments of the office belong to the officer as an incident of his office; that he is entitled to its full amount, not by force of any contract, but because the law attaches it to the office. But, while this is the general rule, we think the present case is an exception. It is equally well settled that an officer is not entitled to receive compensation for services except as it is fixed by law. Section 5 of title 11 of the charter of the city of Saginaw (Act No. 455, Local Acts 1889) provides, as to police officers, that, “for the time engaged in active service, each member so engaged shall be paid such salary as shall be recommended by the board and approved by the common council.” The intention of the charter was to confer upon the board the power of directing as to the services of each officer, and it makes active service of the member a condition to his receiving any salary whatever. We think, in view of the fact that the board had the power to remove, and that relator was only entitled to compensation for the time he was in active service, he has not shown himself entitled to receive the compensation asked.
The order of the circuit court will be affirmed.
The other Justices concurred. | [
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] |
Hooker, J.
Plaintiff, a mortgagee of the premises, took a conveyance of a farm from a grantee of the mortgagor. At the time of the transfer the grantor’s son, the defendant, lived upon the place, and plaintiff claimed that, a few days later, the plaintiff went to the farm, where a talk was had between the plaintiff and defendant. The parties disagree about the nature of this transaction. The plaintiff claims that he then contracted to allow the defendant to put in a crop of wheat for one-third of the crop, to be delivered in the half-bushel, upon the place, and defendant was to remain in the house until April 1st following. The defendant claims that nothing was said about his putting in the wheat on shares, or renting the place; that his possession was out on April 1st; and that all that was said in the conversation about the wheat was that defendant said he was going to put in 20 or 25 'acres, and plaintiff said that he must “put it in good, because he wanted to seed it down.” The defendant further asserted that, when the deed was made, as consideration therefor, the plaintiff agreed that he would allow the defendant’s father to grow 20 or 25 acres of wheat upon the place, and that this inured to defendant’s benefit.
Upon the trial, counsel for the defendant offered to prove this state of facts, but it was excluded by the court, and the plaintiff claims that it was error for the court to permit the statement to- be made. The theory upon which this testimony was excluded appears to be that such arrangement was a contradiction of the deed, and therefore its admission would have the effect of varying the deed by parol testimony, as in case of Adams v. Watkins, 103 Mich. 4-31. We think the cases are plainly distinguishable. In that case a majority of the court were of the opinion that the arrangement claimed to have been made was, in effect, a parol reservation of a growing crop. In this case there was no growing crop, and, so far as appears, the deed was intended to convey the entire title. As a consideration for such conveyance, the plaintiff agreed to allow the defendant’s father to sow and raise a crop within the year following. This was a contract, performed on one side, for an executory promise, unperformed on the other. Had the plaintiff prevented the raising of the crop, an action upon the contract for damages for its breach would have been properly brought.' But he was permitted to sow, and the defendant thereby acquired rights in the crop. It is much like a case where one says, “If you will deed me your house and lot, I will let you move into it for six months.” If, after this arrangement should be carried out by the parties, the owner should bring an action for six months’ rent, he would not be allowed to recover. In other words, the executory contract was oral, as such usually are. On the one hand, it was carried out by making the deed. On the other, the grantor was permitted to raise a crop. There was no reservation of any interest in the premises, but reliance upon a promise to permit the raising of a crop, which was a promise that the grantee might make, although he had not acquired the title. Dayton v. Dakin’s Estate, 103 Mich. 73. It would, therefore, have been proper testimony in the case.
The defendant harvested and removed the crop from the premises, claiming to own it, and the plaintiff replevied one-third of the crop, which was being threshed at the time of the issuance of the writ. The defendant was not permitted to show that he owned the wheat, as already stated, but it was left to the jury to find whether a demand was made before suit, upon the instruction that plaintiff could not recover without a previous demand. It is plain that the defendant was disputing the plaintiff’s title, by denying the contract under which plaintiff claimed a light to a share of the crop, under circumstances which showed that he had converted the entire crop to his own use. Demand, in such a case, was an idle ceremony, and was unnecessary. If plaintiff’s claim was true, the defendant had a right to the custody of his one-third only for the purpose of threshing and delivery; and when he removed it, for the purpose of preventing the plaintiff from obtaining such share, with the intention of keeping it, under a denial of plaintiff’s claim, and upon a claim of ownership, he was in a similar position to a bailee who sets up a claim of ownership against the true owner. Such a claim was inconsistent with the hypothesis that he would deliver the wheat upon demand, which rendered a demand unnecessary. Wells, Repl. §374; Cobbey, Repl. § 448, and cases cited; Byrne v. Byrne, 89 Wis. 659; Hyland v. Manufacturing Co., 92 Wis. 157; Carl v. McGonigal, 58 Mich. 567; Whitney v. McConnell, 29 Mich. 12.
"We cannot determine that the defendant was right in his contention as to ownership, or that the case did not turn upon the want of a demand, and hence must reverse the judgment. A new trial is ordered.
The other Justices concurred. | [
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] |
Moore, J.
Application for mandamus to set aside judgment. The facts upon which this application is based, so far as it is necessary to state them, are as follows: February 7, 1883, Marion Smith filed a declaration, as plaintiff, as commencement of suit against Colin Campbell, Forrest Campbell, and John M. Campbell, late partners as Colin Campbell Sons. The rule to plead, entered the same day, was entitled “Marion Smith v. Colin Campbell et al., Late Partners, etc., under the Firm Name of Colin Campbell Sons,” and read: “State of Michigan. The Circuit Court for the County of Wayne. On filing declaration, * * * it is ordered that the defendants in said cause appear and plead,” etc. The declaration was not accompanied by any copy of a note. No return was made to the declaration until February 8, 1887, when the following return was made under oath, upon a copy of the declaration, which was filed with the clerk •
“State oe Michigan,
County of Wayne,
“Albert E. French, being duly sworn, says that on the 7th day of February, 1883, he served a declaration, of which the within is a copy, on Colin Campbell, Forrest Campbell, and John M. Campbell, the defendants named in said declaration, by delivering to said defendants, in .said county of Wayne, a true copy thereof, together with a true copy of the notice to appear and plead, indorsed thereon as hereon indorsed.” (Signed and sworn to.)
Mr. French was not an officer.
The death of Colin Campbell was afterwards suggested of record, and there was a substitution of attorneys. It is claimed that these orders were made without notice to defendants. June 6, 1887, and June 11, 1887, default orders were entered. June 13, 1887, an order was made discontinuing the cause as to John M. Campbell, as executor of Colin Campbell, deceased. It is claimed that this was done without leave of court, and without notice, and without payment of costs. On the same day an entry was made in the cause, in the short book, of a judgment on default for $1,759.86, and a judgment entry was made in the journal of the court for $133.07. This journal entry was never signed by the circuit judge.
January 31, 1895, an entry was made on the short book as follows, after entitling the cause: “Amended judgment entered nunc pro tunc, as of June 13, 1887.” And on the same day an entry was made in the journal in favor of plaintiff for $1,759.86, which judgment was entered nunc pro tunc, as of date of June 13, 1887. Both of these entries were made without notice to defendants. The relator sets up in his amended petition that there was never any service of a declaration, notice, or process of any kind in the cause upon him, and that he had no knowledge of the entry of any of the rules, orders, or judgments made in said cause until long after January 31, 1895, when it was too late to remove the cause to this court by writ of error. He also sets up that he is not now, and never was, indebted to the plaintiff in any sense whatever; that, as soon as he' learned of said proceedings, he moved the court to vacate said judgments, which motion was, on the 39th of June, 1896, denied. Accompanying the petition is a copy of all the testimony taken by the stenographer at the time the several judgments were taken, in which testimony it is not made to appear that there was any liability on the part of the defendants to the plaintiff.
It is evident that, unless the writ prayed for issues, there is no way for the relator to have the proceedings reviewed. If the facts stated in his petition are true, a great injury would be done him to allow the judgment to stand against him. The proof of service does not show that a copy of the declaration and rule to plead was served upon each of the defendants. This service must be shown before default and judgment can be taken. 2 How. Stat. § 7291; Denison v. Smith, 33 Mich. 155; Johnson v. Delbridge, 35 Mich. 436; Detroit Free Press Co. v. Bagg, 78 Mich. 650; People’s Mut. Ben. Soc. v. Wayne Circuit Judge, 97 Mich. 627.
The affidavit of the relator that the declaration was not served upon him was not answered by the respondent in any way except by the return of Mr. French. It was held, in the case of Detroit Free Press Co. v. Bagg, supra, that a return of personal service made by a private person is open to contradiction by the defendant, and he is at liberty to show that no such service was made upon him. Under the showing made with reference to the service, the judgments should have been vacated.
It will not be necessary to discuss any of the other questions raised by counsel, except to say that, while the form of the entry of the rule to appear and plead is not to be commended, in view of the fact that the copy served, if any was ever served, was indorsed upon a declaration in which relator was made a party defendant, the objection taken to it by counsel is overruled.
Writ will issue as prayed.
Long, -C. J., Grant and Montgomery, JJ., concurred. | [
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] |
Grant, J.
Suit to recover $13.11 for goods sold and delivered. Plaintiff recovered verdict and judgment in justice and circuit courts.
The plea was the general.issue. In the circuit court the case was continued over one term. At the next term, the case being ready for trial, defendant asked leave to amend her plea by giving notice of the statute, of limitations. The motion was denied. This was within the discretion of the circuit court, and will not be reviewed upon appeal. Ripley v. Davis, 15 Mich. 75 (90 Am. Dec. 262).
It is urged that the evidence shows a claim barred by the statute of limitations, and that for this reason the court should have directed a verdict for the defendant. The statute can only be taken advantage of by plea. Whitworth v. Pelton, 81 Mich. 101.
It appears that plaintiff was in partnership with his brother when these goods were sold, that the firm sued the defendant, that the parties appeared, and on July 7, 1887, the justice made the following entry upon his docket: “The parties to this suit having settled the matters in issue since last adjourned day, this suit, on motion of the plaintiffs, was discontinued, with costs to the plaintiffs, taxed at $2.10.” It is insisted that this was a bar to the present suit. A discontinuance by the plaintiff is not a bar to another suit. If there was a settlement, the justice’s docket was not evidence of it. The statute does not require this entry. The justice testified that the settlement was made out of court, and he knew nothing about its terms. Tucker v. Rohrback, 13 Mich. 73; Franks v. Fecheimer, 44 Mich. 177.
The judgment is affirmed.
The other -Justices concurred. | [
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Grant, J.
(after stating the facts). It is contended that Eaton, Lyon & Co. had no insurable interest in the property. It is true that a general creditor cannot insure the property of his debtor for his own benefit without the assent of the debtor and the insurer. There is, however, no reason why a debtor may not insure his property for the benefit of his creditor.
“ It is not necessary that the assured should have either a legal or equitable interest, or, indeed, any property interest, in the subject-matter insured. It is enough if he hold such a relation to the property that its destruction by the peril insured against involves pecuniary loss for him or those for whom he acts.” 1 Wood, Eire Ins. § 281.
In Bates v. Equitable Insurance Co., 10 Wall. 33, Justice Miller used this language:
“Now, it is a'well-known and frequent thing in insurance business for a person to insure his life or his property, and either in the policy itself, or by indorsement at the time it is made, or by subsequent indorsement, to which the consent of the company is generally required, to direct the loss to be paid to some third party. And this is done in language similar, if not identical, with that used in this case. It is a mode of appointing that the loss of the party insured shall be paid by1 the company to such third person. This transaction is a very common mode of furnishing á species of security by a debtor to his creditor, who may be willing to trust to the debtor’s honesty, his skill, and success in trade, but who requires indemnity against such accidents as loss by fire or the perils of navigation. The property of the debtor at risk, being thus insured for the benefit of the creditor, gives him this indemnity.”
While the precise point now before us was not involved in that case, yet the language was not merely obiter dicta, but was the deliberate determination of the learned justice who wrote the opinion, and the other members of the court. It enunciates the principle governing this and other cases. The precise point was involved in A. Roos & Co. v. Insurance Co., 27 La. Ann. 409, and the validity of such a policy sustained. See, also, Clay Fire & Marine Ins. Co. v. Huron, etc., Manfg. Co., 31 Mich. 346, 355. There is no good reason why a party desiring to purchase goods upon credit may not insure his property for the benefit of his creditor, when the insurer agrees to such arrangement.
The judgment is affirmed.
The other Justices concurred. | [
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] |
Hooker, J.
The relator, having brought an action for slander against one Dr. Jackson, before filing a declaration therein, made an affidavit that she verily believed :
‘ ‘ That it is necessary that the testimony and deposition of said defendant be taken in pursuance of the provisions of Act No. 181 of the Public Acts of the legislature of the State of Michigan of the year 1895, to enable this deponent to plead and declare in respect to the meaning of the various statements contained in said publication, of which Exhibit A, hereto annexed, is á copy, and in respect to the matters in which it is claimed that the said plaintiff violated any of the by-laws, rules, regulations, or discipline of the said Fountain Street Baptist Church.”
This affidavit was made in reliance upon Act No. 181,' Pub. Acts 1895, and a summons was taken from one McGill, a circuit court commissioner, requiring the defendant to appear before said commissioner for examination. Before the return day, these proceedings were stayed by an order made by Judge Grove of the Kent county circuit court, pending a motion to set aside such proceedings. This motion was heard on April 20, 1896, by Judge Adsit, of the same circuit, and, the matter being taken under advisement by him, has never been decided, nor has such stay been set aside or terminated by any action of the circuit court. On June 26, 1896, the plaintiff filed her declaration, and on September 2, 1896, she began another proceeding before said commissioner, basing it upon an affidavit showing that said cause was at issue, and stating that she desired to take the deposition of the defendant, under the provisions of said act. Summons was issued, but the proceeding was declared void upon a motion before Judge Grove, and a mandamus is asked to require the vacation of such order.
Counsel for the defendant contend:
1. That the law is unconstitutional for the reason that it discriminates between suitors, and because it attempts to confer upon the judge at chambers and circuit court commissioners judicial powers beyond those which, under the Constitution, they may lawfully exercise.
2. That, if the act is constitutional, its title limits relief to discovery, which has a well-defined meaning, and is limited to such discovery as under the practice in equity might have been allowed, which excludes the right to examine the defendant in this proceeding.
3. That this proceeding was begun in violation of a stay of proceedings issued in a previous proceeding of the same kind, which is still pending.
4. That no motion to vacate the order was ever made.
This act provides that—
“In all proceedings and actions * * * the testimony of' a party * * * may be taken by deposition at the instance of the adverse party, at any time after the commencement thei’eof, and before judgment, * * * before a judge at chambers or a circuit court commissioner. * * * The attendance of the party to be examined may be compelled upon subpoena, * * * and such examination.shall be subject to the same rules as that of any other witness, but he shall not be compelled to disclose anything not relevant to the controversy. If * * * taken before issue joined on the part of the plaintiff, the notice of taking the same shall be accompanied by an affidavit * * * stating the original nature and object of the action; that discovery is sought to enable the party to plead, and the points upon which such discovery is desired; and such examination shall be limited to the discovery of the facts relevant to the points so stated, unless the court or presiding judge, or such circuit court commissioner, * * * shall, before the examination is begun, by order, further limit the subjects. * * * Such examination shall not preclude the right to another examination after issue joined, upon all the issues in the case, and the party exámining shall, in all cases, be allowed to examine upon oral interrogatories. * * * In any examination * * * the judge or commissioner * * * shall have power * * * to compel the party examined to answer all questions relevant to the issues involved, and also to compel the production, by the party examined, of books and papers relevant and pertinent to the issues, and may enforce such answers, and the production of such books and papers, by contempt proceedings. The depositions taken * * * may, at the option of the party taking the same, be used as evidence at the trial. * * * If any party * * * neglect or refuse to appear and testify, or to produce any books and papers lawfully required, * * * he may be punished as for a contempt, and his pleadings stricken out, and judgment given against him as upon default or failure to plead.”
If this act were to be given the broad construction’ for> which counsel for the relator contendía party plaintiff or defendant would have the right to examine his adversary, both before and after issue joined, upon any and every subject relevant to the case. This is an extension of the rule in equity, which required a decree of court, authorizing discovery, and settling the interrogatories to be answered, or subjects upon which the discovery was to be had. And while many of the States—especially the code States—have statutes permitting discovery in proceedings at law, most of them require an order of court and the settling of interrogatories; and in construing such statutes the trend of judicial opinion seems to be towards a denial of an unlimited right of examination, and confining it to such subjects as will enable the party requiring it to make out his own case. Under the common-law procedure act of England, which gives the right to deliver interrogatories to the opposite party as to any matter on which discovery may be sought, it was held in an opinion by Lord Campbell:
‘ ‘ That the section * * * is intended to apply to cases only where the matters inquired into would be evidence in the cause, and that it was not intended thereby to give one party the power of asking the other how he intends to shape his case^ * * * We were much pressed with the recent case of Flitcroft v. Fletcher, 11 Exch. 543. If the court there meant to decide that the defendant may always ask the plaintiff to declare on oath how he means to shape his case, we are not prepared to assent to it; and we should not feel ourselves bound, by a decision of this nature, to the same extent as where a decision can be reviewed on error, even if the case were precisely in point.” Edwards v. Wakefield, 6 El. & Bl. 468.
And in Pye v. Butterfield, 5 Best & S. 837, it is said:
“But I rest my judgment on the ground that, in suits pending in the courts of common law, the exercise of authority given by the common-law procedure act must be governed by those principles which, for a long series of years, have been recognized in courts of equity, where the law as to discovery has grown up and been matured. The legislature have invested the courts of law with this authority in order that parties might get relief without incurring the additional expense of going to a court of equity. They must be taken to have done this with full knowledge of the principles and rules according to which this subsidiary power had always been administered in courts of equity, and, as they have not expressly given larger power, they may have intended that it should be exercised with the same limitations. But, whether we ■ are fettered or left free to exercise our judicial discretion, we ought to abide by the principle on which this branch of jurisprudence has for centuries been administered in courts of equity.”
The same tendency is found in this country. In Wilson v. Webber, 2 Gray, 558, it is said that—
“The [Massachusetts] statute authorizes the filing of interrogatories for the discovery of facts and documents material to the support or defense of the suit, to be answered on oath by the adverse party. * * * The main purpose of these provisions of the practice act was to substitute, in place of the tedious, expensive, and complex process of a bill of discovery on the equity side of the court, an easy, cheap, and simple mode of interrogating an adverse party, as incident to and part of the proceedings in the cause in which the discovery was sought. It was not intended to make the parties to a cause witnesses, who might, at the pleasure of the party interrogating, be made to testify respecting the whole case; but only to give a limited right to obtain evidence from an adverse party, in analogy to the well-settled rules regulating bills of discovery in the court of chancery in England.”
The court of appeals in New York has construed in the same manner similar provisions of the Code of that State. Glenney v. Stedwell, 64 N. Y. 120, 123. Judge Eolger, speaking for the court, said:
“We find that in reporting the provisions of the Code for the examination of parties to actions, which prohibit the bringing of a bill of discovery in one action in aid of another action, the commissioners meant them to be a means of accomplishing substantially the same ends which were attained in a court of equity in the exercise of its jurisdiction to compel a discovery.”
The title to the act is:
“An act to provide for proceedings in the nature of proceedings for discovery in actions or proceedings commenced in any of the courts of record of this State, and to provide for the examination of parties to such proceedings, and to compel the production of books and papers.” Pub. Acts 1895, Act No. 181.
In view of the fact that this court has held that bills of discovery are obsolete, it is a natural inference that the legislature provided a substitute for that practice, and that it should be simplified as far as possible; and, while we may doubt the wisdom of allowing discovery without an order of the court, fixing the matter to be inquired about, the act is not to be held invalid unless it infringes the Constitution or is so crude that it cannot be given effect. We may, however, follow the cases cited, and limit the proceedings under it by the rules uniformly recognized as applying to discovery, a term having a well-defined meaning. Especially may we do this inas much as the title does not necessarily imply that it was the design to permit parties to require their adversaries to show the matters upon which they rely to meet the case made against them.
We are not able to say that the act is unconstitutional upon the ground that it discriminates between suitors, because it denies to the party who testifies the right to introduce the testimony, while it permits his adversary to do so. The object of the act, like the proceeding in equity, is to give to the moving party the benefit of information to be derived from his adversary. The testimony is in the nature of an admission, and we see no reason why it should not be made available in this way.
A more troublesome question arises in connection with those provisions which seem to confer upon the judge at chambers and the circuit court commissioner the power to determine what is relevant to the issue, and to enforce answers by proceedings for contempt. It will be noticed that the act gives the power to the commissioner to enforce compliance with the statute by proceedings for contempt, and not a remedy to the party to enforce his rights by means of contempt proceedings; thereby, in our opinion, indicating that the legislature meant that the refractory witness might be punished by such a judge or commissioner. The extent of the powers of these officers is not clearly defined, and this court has never attempted to lay down a rule by which it could be unerringly determined. It has, however, decided that, with the exception of certain things which had been lawfully done by them prior to the adoption of the present Constitution, such officers have no authority to perform acts strictly judicial. It has not been the practice for officers empowered to take testimony to attempt to do either of those things, and we have understood the consensus of opinion to be that they were beyond their power. As to contempts, there can be no question of the correctness of this view, while the constitutionality of an act authorizing such officer to decide upon questions of relevancy and exclude or admit answers is perhaps more questionable. Our Constitution has limited the powers which maybe conferred upon circuit court commissioners by vesting them with judicial powers not exceeding those of a judge at chambers. And while this court has recognized the authority of the commissioner to exercise judicial power in some instances, it seems to confine such authority to cases where such power was exercised by a judge at chambers before the adoption of the Constitution, and it has declared that the Constitution (article 6, § 16) “permitted giving to the commissioners judicial powers in a very subordinate sense only; powers of the sort that are usually denominated quasi judicial.” See Burger’s Case, 39 Mich. 204; Risser v. Hoyt, 53 Mich. 185.
Counsel for the relator cite us to the case of Shepard v. Kent Circuit Judge, 109 Mich. 606, which they say decides that the power to punish for contempt is within the authority of a judge at chambers. That case arose under chapter 278 of 2 How. Stat., which is an act providing for proceedings at law in the nature of a creditor’s bill. The act provides that, upon a satisfactory showing by affidavit, a judge or commissioner may require a person to appear before himself or a referee for examination in relation to the indebtedness of such person, etc., to the judgment debtor, etc. The validity of such act has been questioned, first in Reed v. Baker, 42 Mich. 272, where it was severely criticised. It was the basis of a proceeding in which the bill of complaint -was dismissed by this court in the case of Prescott v. Pfeiffer, 57 Mich. 23, but in that case no constitutional question appears to have been raised. Again, in the case of Lee v. Kalamazoo Circuit Judge, 101 Mich. 407, this act was considered, and it was held that it would support proceedings tó examine the judgment debtor, and to discover his assets. It has never gone further. The statute contains the following provisions, viz.: “ The judge may allow to the judgment creditor, or to any party examined, whether 'a party to the action or not, witness fees and disbursements, and a fixed sum in addition, not exceeding $30, as costs.” 2 How. Stat. § 8114. “Any of tbe proceedings authorized by this act to be had before the judge may be had before him in court, at any session of the eircuit court, or at chambers.” Id. § 8116. In the Shepard Case proceedings were taken before the circuit court (not the judge) to punish a witness for contempt, consisting of a refusal to appear before a commissioner, apparently upon a subpoena from the. commissioner. It was contended that this act did not authorize proceedings in court to punish for the contempt, but it was held that section 8115, 2 How. Stat., contemplated such action, and the power of the circuit judge at chambers does not appear to have been questioned in the case. So far as the proceedings for contempt are concerned, we might perhaps sustain the act, leaving the circuit court to deal with such proceedings, as was done in the case of Shepard v. Kent Circuit Judge.
The object of the act under discussion is to enable a party to obtain discovery of matters relevant to the issue. It as plainly attempts to deny discovery as to other matters. It names an officer supposed to possess the necessary power to determine the question, and it also undertakes to give the testimony taken the force of evidence. It makes no provision for exceptions, or review by the court of the rulings of the commissioner, as in the case of depositions. Such rulings are final, and such irrelevant matters, if admitted, may come before the jury. Rulings upon the introduction of testimony are vital to the determination of the case. They may or may not constitute error calling for its reversal,, and, where decisive of the right of the jury to.hear and act upon testimony, cannot be called quasi judicial acts. They are strictly judicial, and must be determined by an officer having judicial powers, and usually, if not necessarily, the one who is to decide the case. We must, therefore, hold that the provision permitting the judge or commissioner to pass upon the relevancy of testimony to be used upon the trial was invalid, and, as it is plain that an attempt was made to protect the party examined from improper examination, we cannot say that this provision should be eliminated, and the testimony taken with objections and exceptions, as in case of taking depositions; nor do we feel at liberty to hold that the commissioner may pass upon the question of relevancy, but that the testimony thus taken cannot be used as evidence, inasmuch as the act seems to be designed to enable parties to take testimony which may be used in the case. We are not sure that the legislature would have permitted rulings by the officers named had it supposed that they did not possess the necessary judicial qualifications for a final determination of such questions, and we think it prudent to hold the entire act invalid, leaving it to the legislature to repair any possible mischief by such legislation as may be deemed necessary.
The writ is denied.
The other Justices concurred. | [
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] |
McDonald, J.
This is an appeal from a judgment of the Wayne circuit court in favor of the plaintiff for $5,498.96.
Louis Lipson in his lifetime signed a bond to release a garnishment in a suit in which Thomas J. McAllen was the plaintiff and William Berman was the defendant. That suit was determined in favor of the plaintiff. In the meantime, the surety, Louis Lipson, had died. The plaintiff filed a claim against his estate in the probate court for the amount of his judgment. The commissioners on claims disallowed it, and filed their report on February 5, 1931. On February 24, 1931, the plaintiff filed a full notice of appeal to the circuit court. When the case came on for trial, counsel for the estate appeared specially and moved to dismiss the appeal on the ground that it was not taken in compliance with the rules relative to appeals and was not served and filed within the time prescribed. The motion was denied. The plaintiff submitted proofs in support of his claim, and the trial court entered a judgment in his favor.
It is the contention of the defendant that the circuit court acquired no jurisdiction of the appeal because it was not perfected in five days, as required by subdivision (b), § 1 of Court Rule No. 57. The rule provides that appeals from probate courts shall be perfected within 20 days from the entry of decision or judgment, and in five days from justices of the peace and from other inferior courts, officers, or tribunals. The appeal in question was perfected within 20 days from the filing of the commissioner’s report. The defendant contends that an appeal from a decision of commissioners on claims is not an appeal from a decision of the prohate court hut is from an inferior tribunal, and therefore should have been taken in five days, as required by the rule in appeals from inferior tribunals.
We agree that an appeal from a decision of commissioners on claims is not an appeal from a decision of the probate court. The statute distinguishes them. An appeal from the- commissioners cannot be taken under the statute providing for appeals from the probate court. Appeals from the probate court are given and regulated by 3 Comp. Laws 1929, § 15958, and appeals from commissioners on claims by 3 Comp. Laws 1929, § 15960, which reads as follows:
“Any executor, administrator or creditor, may appeal from the decision and report of the commissioners on claims to the circuit court for the same county, if application .for such an appeal be made in writing, filed in the probate office within twenty days after the returning of the report of the commissioners: Provided, the probate • judge may extend the time for taking such appeal as provided in section one of this chapter.”
This statute has not been superseded by the provisions of Court Rule No. 57 respecting appeals from inferior tribunals. The plaintiff perfected his appeal in time under the statute. The court did not err in refusing to dismiss it.
A further objection to the jurisdiction of the court is that the appeal was not served within the time limited by Court Rule No. 61.
This rule provides that the notice of appeal shall be served upon the appellee within the same time after it is filed as the time limited for perfecting the appeal, which, in this case, was 20 days. It was not served until ,23 days after it was filed. Failure to serve within the time prescribed is not jurisdictional. Court Rule No. 56 provides that the appeal shall be deemed perfected when the notice is filed and,
“After being duly perfected no appeal shall be dismissed without notice to the appellant, and no step taken subsequently to the perfection of the appeal shall be deemed to be jurisdictional. ’ ’
It is contended that the notice of appeal does not' comply with the requirements of Court Rule No. 59.
The rule plainly and specifically recites what a notice of appeal shall contain. Failure of attorneys to follow it is inexcusable carelessness. However, though it was imperfectly drawn, the principal defects in the notice could have been cured by amendment. It is said that it gives no reason for the appeal. The reason is sufficient if it reasonably informs the appellee of the error which the appellant intends to rely on in the court of review. In this case, the appellant attempted to give a reason, and while it is indefinitely and indirectly stated, we think that it furnishes the appellee with the necessary information. If insufficient, it could have been amended. It gave no ground for the dismissal of the appeal.
Finally, it is claimed that the proofs offered by the plaintiff do not support the judgment.
This claim is wholly without merit. It requires no discussion.
The judgment is affirmed, with costs to the plaintiff.
. Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Clark, C. J.
This ease, appealed by defendant corporation, must be reversed, the verdict for plaintiff being against the great weight of the evidence, and for another reason, which we discuss briefly, the reversal will be without new trial.
The action is on averred contracts of employment against defendant corporation and Budd, its president. In the trial court verdict in favor of Budd was directed, from which plaintiff has not appealed, so question of right to recover against Budd is foreclosed.
Plaintiff was employed by defendant corporation in 1924 at $25 per day, later changed to $700 per month, and he continued in the employment nearly five years and was paid regularly and in full until discharged. Under his pleading, he testified of a secret agreement with Budd, that while his seeming compensation should be as above stated, he was to receive an annual salary of $30,000. He claims to have made the secret agreement in 1924 for one year, and, without payment, to have renewed it in secret conferences with Budd in each of the four succeeding years.
Plaintiff testified the agreements were to be kept secret from other officers and the directors of defendant corporation, and, in effect, that he and Budd alone were to know of them. The asserted reason for such great secrecy is not here important, nor need we review the evidence further. It is considered that Budd here had authority to make in usual course of business the contract of employment which was made and which was recognized and performed by the corporation on its part.
On this record it ought not to be found that there were the secret agreements, but, assuming they were made, Budd had no power as president to enter into them on behalf of the corporation. Budd was not the corporation. It had a board of directors, which had not abdicated. Budd, it appears, could bind the corporation on employment contracts made in due and usual course of business, but the contracts here asserted were most extraordinary. If Budd could agree secretly to pay $30,000 per year, he could as well agree to pay a larger sum. If he could bind the corporation on one secret agreement, he might bind it on a greater number. The corporation might be committed to demands producing insolvency without knowledge of its managing directors. That Budd had no authority, express, inferred, or implied, to enter into such contracts, plaintiff, from the very nature of them, must have known.
The corporation is not bound on the alleged secret agreements. 4 Cook on Corporations (8th Ed.), §716; Humphrey v. Onaway-Alpena Tel. Co., 204 Mich. 97; 2 Thompson on Corporations (2d Ed.), § 1070; Cope-Swift Co. v. Schlaff Creamery Co., 223 Mich. 543; Hallenbeck v. Powers & Walker Casket Co., 117 Mich. 680; Ten Eyck v. Railroad Co., 74 Mich. 226 (3 L. R. A. 378, 16 Am. St. Rep. 633).
Reversed, without new trial, and with costs.
McDonald, Potter, Sharpe, North, Fead, "Wiest, and Bhtzel, JJ., concurred. | [
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Wiest, J.
Plaintiff was a guest riding in an auto-' mobile owned and driven by defendant. The automobile, at a railroad crossing, left the roadway and overturned. Plaintiff received injuries and had verdict and judgment. The accident occurred at the hamlet of Matchwood in Ontonagon county, in the daytime. The roadway upon which defendant was driving approached the hamlet from the west, and, at the hamlet, made a right-angle turn to the south and crossed the railroad track 35 feet distant from the south line of the westward extension of the road. The railroad crossing was planked.
Right of plaintiff to have recovery rests upon whether defendant in operating his automobile was guilty of “gross negligence or wilful and wanton misconduct.” Act No. 19, Pub. Acts 1929 (1 Comp. Laws 1929, § 4648). In this jurisdiction there is no such thing as gross negligence in the sense of great or much negligence. Union Trust Co. v. Railway Co., 239 Mich. 97 (66 A. L. R. 1515). The term “gross negligence,” as employed in this statute, does not mean something of less degree than wilful and wanton misconduct. See Oxenger v. Ward, 256 Mich. 499. Plaintiff recovered on the claim that defendant drove his automobile at such a high rate of speed that he was unable to make a sharp turn without losing control of his car, and, as a consequence, the car left the roadway and overturned.
Plaintiff testified that, before reaching the turn, he told defendant he was driving too fast, and “If you don’t cut out the speed, stop, I want to get out; ” that defendant said “he was driving a car faster than that and he make that curve,” and as the car was close to the curve he said, “Why don’t you stop while I get off?”
Defendant testified that he made the turn, and, at a railroad crossing 35 feet distant, something happened to his car and he lost control of it. After the accident it was found there was one flat tire. The fact that an accident happened was, of course, no evidence of negligence. But it is said that defendant, after having his attention called to the speed of the car, wilfully and wantonly attempted to make the turn without reducing the speed. The driver of an automobile is not at his peril required to comply with the request of a guest relative to speed, nor does noncompliance in and of itself evidence wilfulness or wantonness.
Whether a turn of the road can be made with reasonable safety at any particular speed depends, of course, upon the character and condition of the road and the skill of the driver. We cannot draw a line beyond which mere speed' in making a turn departs from negligence and becomes wilful and wanton misconduct. Conceding that defendant was negligent in making the turn at high speed, it would not constitute wilful and wanton misconduct. See Van Blaircum v. Campbell, 256 Mich. 527.
Counsel for plaintiff state that the accident occurred in the business and residential section of the hamlet, and defendant was driving in excess of 20 miles per hour,- and, therefore, violated section 5, Act No. 90, Pub. Acts 1929 (1 Comp. Laws 1929, §4697). Violation, if any, of that statute does not constitute the gross negligence or wanton and wilful misconduct requisite to maintenance of an action under the guest act.
At the close of plaintiff’s proofs, defendant moved for a directed verdict on the ground that plaintiff had not made out a case of “gross negligence or wilful and wanton misconduct.” This motion was denied and renewed at the close of all the proofs, and again denied. In a motion for new trial defendant again raised the question and insisted that plaintiff had made no case. This motion was denied.
At the most plaintiff made out a case of negligence. To recover, he was required to go beyond that and establish that he was injured by reason of the wilful and wanton misconduct of defendant. The proofs failed to make such a case. The court should have granted a new trial.
The judgment is • reversed, and a new- trial granted, with costs to defendant.
Clark, C. J., and McDonald, Potter, Sharpe, North, and Biitzel, JJ., concurred with Wiest, J. | [
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Butzel, J.
On June 21,1929, James Asposito applied for membership in the Security Benefit Association, a fraternal beneficiary society, defendant and appellant herein. It has several hundred thousand members and numerous lodges and subordinate councils throughout the United States. It has no capital stock, is not conducted for profit, has a representative form of government and ritualistic work. It is organized under the laws of Kansas, but has qualified in Michigan, 'where it maintains lodges and subordinate councils in many cities. On June 25, 1929, Asposito became a member of the Grand Rapids council of the association, and received a beneficiary certificate for $2,000, payable, in the event of his death, to his wife, Grace Asposito, plaintiff herein. He allowed the certificate to lapse, and at the end of July, 1930, was suspended for nonpayment of assessments and dues for the current month. He had taken out his original membership through one Charles Klein, a local agent of defendant. On December 31, 1930, Klein visited plaintiff’s home at her request, and, upon presentation of application for reinstatement, secured Asposito’s signature. The application contains many pertinent representations and warranties of the applicant. It states that the application is based upon the original application and medical examination submitted for membership in the association in addition to the warranties thereinafter made. Among them is the unqualified statement that the applicant is in “sound physical and mental condition,” and “a fit subject for life insurance.” Paragraph J of the blank application for reinstatement reads as follows:
“(a) Since the date of my application ... on which my present benefit certificate .. .w... issued, I have not been under the care of, or examined by, or consulted any physician or surgeon, except as follows: (Give above details of any injury or ailment, and name and address of any physician or surgeon.)
“(b) I have not undergone any surgical operation or been an inmate of any hospital, asylum or sanitarium since the date of my application ...., except as follows: ...... (Give details — when, where, what for, and results.) ”
In paragraph 6, the applicant agrees that both the answers and the statements in the former application and in the present one are full, true, and correct, and shall be held to be strict warranties, and that any untrue statement or answer in either of them shall render the certificate null and void; that they shall be considered a part of any benefit certificate issued thereon; that they, together with the constitution and laws of the association, shall constitute applicant’s contract for protection with the association.
The testimony shows that Klein wrote the answer “No,” after each section of paragraph 4 hereinbefore quoted, without asking any questions of applicant, who signed the document as prepared and presented by Klein; that applicant asked whether it would be necessary for him to be examined by a physician and Klein told him that it would not. The record does not show that any facts whatsoever in regard to applicant’s sickness were disclosed to Klein. The application was sent to the home office in Kansas, and a certificate of reinstatement was delivered to applicant on January 9, 1931. On the 5th day of the following month, he was operated upon for chronic cholecystitis, an infection of the gall bladder, from which he had been suffering for three years. He died five days later. Notwithstanding that the proofs of death filed with defendant show that the immediate cause of death was pneumonia and the contributing cause was respiratory infection, the death certificate filed with the Michigan department of health shows that the principal cause of death and related causes of importance were as follows
“Septicemia, duration 3 days; septic infarct. Rt. lung following operation, duration 4 days. Other contributory causes of importance: Chronic Cholecystitis, duration 3 years. Chronic appendicitis, duration-■ * * * Time of operation February 5, 1931. Condition for which performed, Chr. Cholecystitis. Organ or part affected chr. appendicitis.”
The proofs of death also showed that assured had his tonsils removed at the hospital on August 16, 1930.
It is also shown by the testimony that a physician attended him again in September and twice in November. In September, 1930, he went to an X-ray specialist, who examined the abdominal cavity and found “a moderate degree of cholecystitis, and that the gastro-intestinal reactions are reflex to that condition.” The record shows beyond any question that the assured was a sick man when he applied for reinstatement, and that material statements in the application for reinstatement were false. The sole question in the case is whether defendant is estopped from denying liability, or whether the fraud was waived, because its agent filied in the answer “No” to the questions in the application for reinstatement as hereinbefore indicated, without questioning assured and eliciting any information from him. We cannot overlook the fact that the application signed by assured contained the positive statement, and not in answer to any question, that he was in good physical condition, although during the previous month he had twice consulted a physician for a chronic disease three years old, and that shortly thereafter necessitated an operation, from which death ensued. The by-laws of the association, which are a part of the contract, provide that the association shall not be bound by the acceptance of assessments and dues from suspended members who are not entitled to reinstatement in accordance with the laws of the association ; that members may only be reinstated after 60 days upon filing proof of sound bodily and mental condition; that the association is not bound by knowledge of or notice to officers or members of subordinate councils, none of whom are authorized or permitted to waive any provisions of the laws of the association; and that under no circumstances may a beneficiary certificate be delivered to or assessment collected from any applicant who is not in good health.
Plaintiff refused to accept the return of the assessment paid by applicant upon reinstatement. She brought suit against defendant and recovered a verdict of $2,000, the amount of the certificate.
The trial judge, in submitting the case to the jury, stated that there was only one issue in the case; that if the jury found that the applicant truthfully answered the questions asked in the application for reinstatement, or that he was not asked them at all but that Klein answered them without asking the insured, then the plaintiff would recover; that if, on the other hand, applicant was asked the questions and he answered them untruthfully, and that as a result of such answers the defendant company issued the certificate, then plaintiff could not recover. Plaintiff make's no claim that the applicant told Klein about his condition. The only question asked by applicant was whether it would be necessary to have a medical examination, and Klein answered “No.”
The statute was invoked forbidding thé giving of testimony concerning matters equally within the knowledge of the deceased (3 Comp. Laws 1929, § 14219), and Klein was not permitted to state what the applicant told him. We need not pass upon the claim that the rule should not have been applied in a case where the beneficiary, and not the estate of the deceased, is the opposite party, for decision rests on other grounds.
We find much confusion in the statement of the law as to the liability of an insurer when false statements have been made in the application for insurance through the fault or with the connivance of the insurer’s agent. The decisions, however, rest so largely on varying facts that the ruling in one case may not be at all adaptable to the facts in another. Plaintiff relies on Brown v. Metropolitan Life Ins. Co., 65 Mich. 306; Temmink v. Metropolitan Life Ins. Co., 72 Mich. 388, and Van Houten v. Metropolitan Life Ins. Co., 110 Mich. 682, in all of which the facts differ materially from those in the instant case. Defendant, in turn, relies on American Ins. Co. v. Gilbert, 27 Mich. 429; Mudge v. I. O. F., 149 Mich. 467 (14 L. R. A. [N. S.] 279, 119 Am. St. Rep. 686); Metropolitan Life Ins. Co. v. Freedman, 159 Mich. 114 (32 L. R. A. [N. S.] 298); Kane v. Detroit Life Ins. Co., 204 Mich. 357; Bellestri-Fontana v. New York Life Ins. Co., 234 Mich. 424; and Mutual Life Ins. Co. v. Geleynse, 241 Mich. 659 (56 A. L. R. 702), in all of which the circumstances and facts differ from those presented to us in the case at bar.
The same difficulty is met in reviewing cases of other jurisdictions, where varying facts and in many instances statutes, cause what at first may seem a lack of harmony in decisions.
We are impressed with the rule as laid down in New York Life Ins. Co. v. Fletcher, 117 U. S. 519 (6 Sup. Ct. 837), where the question arose as to the effect of an agent of the insurer writing into the application statements not made by insured. The court, in denying liability on the part of the insurer, said:
“But the case as presented by the record is by no means as favorable to him as we have assumed. It was his duty to read the application he signed. He knew that upon it the policy would be issued, if issued at all. It would introduce great uncertainty in all business transactions, if a party making written proposals for a contract, with representations to induce its execution, should be allowed to show, after it had been obtained, that he did not know the contents of his proposals, and to enforce it, notwithstanding their falsity as to matters essential to its obligation and validity. Contracts could not be made, or business fairly conducted, if such a rule should prevail; and there is no reason why it should be applied merely to contracts of insurance.' There is nothing in their nature which distinguishes them in this particular from others. But here the right is asserted to prove not only that the assured did not make the statements contained in his answers, but that he never read the application, and to recover upon a contract obtained by representations admitted to be false, just as though they were true." If he had read even the printed lines of his application, he would have seen that it stipulated that the rights of the company could in no respect be affected by his verbal statements, or by those of its agent, unless the same' were reduced to writing and forwarded with his application to the home office. The company, like any other principal, could limit the authority of its agents, and thus bind all parties dealing with them with knowledge of the limitation. It must be presumed that he read the application, and was cognizant of the limitations therein expressed.”
Again in Maier v. Fidelity Mutual Life Ass’n, 24 C. C. A. 239 (78 Fed. 566), Mr. Justice Harlan, speaking for the court, said:
“It was said in argument that the company should not be permitted to take advantage of the misconduct or wrong of its own agent. But the law did not prohibit the company from taking such precautions as were reasonable and necessary to protect itself against the frauds or negligence of its agents. If the printed application used by it had not informed the applicant that he was to be responsible for the truth of his answers to questions, and if the want of truth in such answers were wholly due to the negligence, ignorance, or fraud of the soliciting agent, a different question would be presented. But here the accused was distinctly notified by the application that he was to be held as warranting the truth of his statements, ‘by whomsoever written.’ Such was the contract between the parties, and there is no reason in law or in public policy why its terms should not be respected and enforced in an action on the written contract. It is the impression with some that the courts may, in their discretion, relieve parties from the obligations of their contracts, whenever it can be seen that they have acted heedlessly or carelessly in making them. But it is too often forgotten that in giving relief, under such circumstances, to one party, the courts make and enforce a contract which the other party did not make or intend to make. As the assured stipulated that his statements, which were the foundation of the ap plication, were true, by whomsoever such statements were written, and as the contract of insurance was consummated on that basis, the court cannot, in an action upon the contract, disregard the express agreement between the parties, and hold the company liable if the statements of the assured — at least, those touching matters material to the risk— are found to be untrue. ’ ’
The rules as to estoppel and waiver should not be as strictly invoked against a fraternal beneficial association as against an insurance company with capital stock, organized for profit. In a statement found in Field v. National Council of Knights & Ladies of Security, 64 Neb. 226 (89 N. W. 773) (cited in Larkin v. Modern Woodmen of America, 163 Mich. 670), the court said:
“The doctrine of waiver, which is often appealed to to prevent forfeitures in the case of policies of insurance, has no application to the forfeitures of memberships in these orders (fraternal beneficiary societies). The laws and rules governing the different branches of such an order are in the nature of contracts among all the members, and, considering the widespread extent of these organizations, and the very great extent to which these schemes of benevolence have taken the place of life insurance, especially among the working classes, it is highly important as a principle of public policy that, in cases of this kind, their rules and regulations should be substantially upheld by the judicial courts. ’ ’
Again in Bratley v. Brotherhood of American Yeomen, 159 Minn. 14 (198 N. W. 128), the court said:
“The record forces us to the conclusion that the district deputy is an agent whose principal duty is to solicit and receive applications for membership ■which, are to be turned over to other officials who will decide whether or not the corporation will make a contract of insurance with the applicant. Certificates are issued only to members. There can be no members until they are approved by the chief medical director. No contracts of insurance are authorized except in writing and signed by certain officers. The provisions against waiver are very broad, but should well apply to a district deputy. Such deputies are not endowed with any general authority which would permit them to depart from the bylaws. We think an agent of a corporation, which has its contractual power so wisely restricted as disclosed by the by-laws of the defendant, has no power to make insurance contracts for his principal; and, if not, we conclude that he cannot effectually waive the falsehood in this application. The deputy being unauthorized to make the contract imputed to him in this transaction, his knowledge is of minor importance under the facts in this case. The agent here has much the same standing-as the agent in Louden v. Modern Brotherhood of America, 107 Minn. 12 (119 N. W. 425). * * *
“Recognizing the type of the agency of the deputy, his knowledge of the false statements would not prevent the insurer taking advantage of such statement. J ’
In Koehler v. Modern Brotherhood of America, 160 Mich. 180 (136 Am. St. Rep. 424), the laws of the fraternal order provided that an insured could not be reinstated unless he was in good health, and, as the opinion stated, assured “had no right to reinstatement for he was not in good health.” In the present case, the assured was not in good health and he had no right to reinstatement under his contract. There is every indication that he must have known of his sickness. Denying recovery does not take away any right of assured or plaintiff, as such a right never existed.
Under the facts of the particular case, we are constrained to reverse the judgment of the lower court, and remand, with directions to enter a judgment for defendant.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
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Wiest, J.
This bill was filed to impress an equitable lien upon property. Defendant Bush Lumber Company owned lots 219 and 220 in a certain subdivision. Defendants Morse wanted a home and engaged Carl Pickett to build them a house on lot 219 and to sell the same to them on land contract. By mistake of Pickett the house was built on lot 220. During the course of construction of the house Pickett needed money for material and mortgaged lot 219 to plaintiffs for $2,000, and probably used the same in the purchase of materials. Discovery of the mistake was not made until after the house was completed and the Morses had been in possession for some time. The Bush Lumber Company mortgaged lot 220 to defendants Yemens for $1,500, and they are mortgagees in good faith. Later the Bush Lumber Company sold lot 220 to Sidney Bush (not connected with the company), and he paid $1,500 and took the property, subject to the mortgage, and he is a purchaser in good faith. Such was the situation when the bill herein was filed.
The circuit judge found that the rights of the innocent mortgagees and the innocent purchaser prevented any decree for an equitable lien, but granted a money decree for tbe sum of $2,000, against the Bush Lumber Company, and adjudged that, upon payment of that sum to plaintiffs, they should discharge their mortgage on lot 219.
Plaintiffs had to admit that rights of innocent parties prevented an equitable lien upon the property, and, therefore," they asked and were granted a money decree against the Bush Lumber Company. All such rights of innocent parties existed before the filing of the bill, and the least inquiry by plaintiffs would have disclosed the futility of seeking an equitable lien. The court was in error in awarding a money decree.
As stated in Kukuk v. Martin, 331 Ill. 602 (163 N. E. 391):
“An equitable lien is the right to have property subjected in a court of equity to the payment of a claim. It is not a jus in re or a jus ad rem. It is neither a debt nor a right of property but a remedy for a debt. It is simply a right of a special nature over the property which constitutes a charge or incumbrance thereon, so that the very property itself may be proceeded against in an equitable action and either sold or sequestered under a judicial decree and its proceeds in one case, or its rents and profits in the other, applied upon the demand of the creditor in whose favor the lien exists. (Aldrich v. Ederer Co., 302 Ill. 391 [134 N. E. 726].) The remedies of equity are, as a class, specific. The doctrine of ‘equitable liens’ was introduced for the sole purpose of furnishing a ground for the specific remedies which equity confers, operating upon particular identified property, instead of the general pecuniary recoveries granted by courts of law.”
In Milam v. Milam, 138 Tenn. 686 (200 S. W. 826), it was stated:
“It has been said that the doctrine of equitable lien, in certain aspects, is not essentially different from that of the doctrine of subrogation, and, similarly, it is applied in cases where the law fails to give relief and justice would miscarry but for its declaration. The doctrine, however, does not afford a remedy without recognized bounds, nor is it ‘to be applied according to the measure of conscience of the particular chancellor any more than,’ as an illustrious law writer said ‘to the measure of his foot.’ Equity called it into being, and enforces it on the principle that a person, having gotten property of another, ought not in good conscience to retain it as a thing freed of obligation to respond.
“An equitable lien, strictly speaking, is not a jus in re, or a jus ad rem, but is the right to have the property subjected in a court of equity to the payment of the claim. It is a floating equity until action by the court is invoked. ’ ’
In a case where rights depend upon an equitable lien, and no lien can be impressed, the court cannot make a decree in personam. The whole theory of an equitable lien, as applied to the facts in this case,, is to hold the property to respond to its improvement by another than the owner. Where property, upon which the lien is sought, has passed to innocent third parties by unimpeachable conveyances of record, the court may not retain jurisdiction and enter a personal decree against the former owner.
Where no equitable lien is possible, no personal decree is permissible. The bill should have been dismissed.
The decree in the circuit is reversed, and a decree will be entered in this court, dismissing the bill, with costs to defendant Bush Lumber Company.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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Sharpe, J.
Plaintiffs filed this bill for the purpose of quieting title to a 30-acre tract of land lying west of the city of Royal Oak on the Eleven Mile road in Royal Oak township, Oakland county. All defendants except Albert Lothamer and Harry H. Simpson appear to have been disinterested and allowed the case to go by default. Lothamer answered in explanation and denial of any interest in the property, asking dismissal of plaintiffs’ bill as to him; while Simpson answered issuably, with a cross-bill asking affirmative relief by decree for specific performance of a land contract for said property running to defendant Lothamer, executed by plaintiffs and their father Joseph Range, which he claimed to have acquired. To the latter plaintiffs duly answered in denial.
In outline, it appears from record proof or is undisputed that prior to September 17, 1924, Joseph Range, then a widower, was the owner of an undivided one-half interest in these premises, while his son, Fred Range, and his daughter, Minnie M. Baker (nee Range), each owned an undivided one-quarter interest in the same. On that date, the owners, together with Alice Range, wife of Fred Range, entered into a written agreement with Lothamer for sale to him of the land in question at the agreed price of $48,750 net, with an initial payment down of $500, which he then made. Omitting the unquestioned description, it reads as follows:
“Agreement made this seventeenth day of September, 1924, between Joseph Range, a single man, Fred Range and Alice Range, his wife, and Minnie .M. Baker, hereinafter described as the sellers, and. Albert Lothamer, or assigns, of the city of Detroit, hereinafter described as the purchaser.
“Witnesseth, That the seller agrees to sell and convey, and the purchaser agrees to purchase all that lot of land, with the buildings and improvements thereon in the township of Royal Oak (description).
“The price is forty-eight thousand seven hundred fifty and no/100 ($48,750) dollars net, payable as follows: Five hundred and no/100 ($500) dollars on the signing of this agreement, the receipt of which is hereby acknowledged by me.
“Forty-eight thousand two hundred fifty and no/100 ($48,250) dollars in cash on the delivery of the deed as hereinafter provided; Five hundred and no/100 ($500) thirty (30) days from date. Balance sixty (60) days from date. Abstract to be delivered to first (second) party before second payment is made and to show merchantable title with all taxes and assessments paid except six hundred and no/100 ($600) balance on paving tax, which is assumed by party of the second part as well as State and county taxes for the year 1924.
“If there are any imperfections, in title which can be cured by a chancery proceeding instituted for the purpose of quieting title, deal will be closed notwithstanding upon the condition that $500 is placed in escrow for that purpose.
“Abstract to be brought down to date at seller’s expense.
“All deeds shall be regular full covenant warranty deeds conveying the absolute fee, subject only to incumbrances herein specified or building restrictions of record..
“Rents and interest on mortgage contract, insurance, etc., if any, are to be apportioned.
“The risk' of loss or damage to said premises by fire until the closing of the deal is assumed by the seller.
“The stipulation aforesaid are to apply to and bind the successors, heirs, executors, administrators and assigns of the respective parties.”
This contract was prepared by or under direction of the purchaser Lothamer and submitted to the sellers, who, accompanied by him, went to the office of their attorney, George B. Hartrick, at Royal Oak, to whom it was submitted and at whose instance certain corrections and insertions were made in the one proposed, including the paragraph relating to imperfections in title, after which it was signed in his office, he acting as one of the witnesses.
An abstract brought down to October 6, 1924, was delivered before the end of October to an attorney of Detroit named Rymal, claiming to act for Lothamer,. at just what date is in dispute. He seasonably examined the same and wrote an opinion as to it directed to Lothamer, in which he pointed out certain claimed errors in description and other defects in the title, suggesting they might be cured by perfecting some incomplete probate proceedings and filing a bill to quiet title.
Lothamer failed to meet the second payment of $500 when due, and on November 12, 1924, plaintiff Fred Range, accompanied by attorney Hartrick, went to the office of the Waddell, Wilcox, Rymal Company of Detroit, an incorporated real estate company of which Rymal and Waddell were members and Lothamer then an employee. He was not present but at home ill. They had an interview with Rymal in relation to the matter, and he returned then the abstract with a copy of his opinion as to it which he had prepared for Lothamer. They asked for surrender of the contract but it was not returned.
On November 22, 1924, Joseph Range died and his estate was thereafter probated in the probate court of Oakland county. The estate was not closed until June 1, 1925. Plaintiffs, being his sole heirs, were awarded his half interest in this property.
On December 2, 1924, Lothamer and his wife quit- claimed] the interest he had acquired under the contract to David M. Waddell, of the Waddell, Wilcox, Rymal Company. The deed was recorded in the office of the register of deeds of Oakland county on December 5, 1924. Waddell met with a sudden death on December 27, 1924, survived by a widow and minor son. His home was in Ferndale, Oakland county, and his estate was probated in the probate court of that county.
On March 27, 1925, his widow, Adeline M. Waddell, gave a quitclaim deed of her own interest in the property to the Waddell, Wilcox, Rymal Company and also of the interest of their minor son, David L. Waddell, as his guardian, pursuant to an order licensing her to so do granted by the circuit court of Oakland county, followed by an order confirming the sale. On the same date the Waddell, Wilcox, Rymal Company quit-claimed the same to defendant Simpson. Of scant legal significance, but as part of the written evidence, appear indorsed on the contract involved assignments of it by Lothamer to the Waddell, Wilcox, Rymal Company and by the latter to defendant Simpson. Above each indorsement appears “3-27-25.” Below them, under the date “Pontiac, Mich., Jan. 5, 1926,” is a certificate of the county treasurer of Oakland county “that the amount secured by this mortgage is $48,250 and that I have received $241 in full payment for the taxes thereon.” The oral evidence offered by the respective parties is quite voluminous and conflicting.
Plaintiffs first allege and particularly press as a fundamental error of the court its ruling that the instrument to which this litigation centers is a contract, and not an option. If the latter, the purchasers’ failure to make the second payment within the provided time would be fatal to the defense. Urging that it can fairly be so construed as a matter of law, plaintiffs claim, that the purchasers and their attorney also so construed and accepted it, admitting inability to pay as specified, which the defense denies.
It must be conceded that Rymal’s naming it an option at times when off his guard lends some color to plaintiffs’ contention. While as a witness for defendant he first deprecated the suggestion that he had ever so recognized it in thought or words, when confronted with his testimony taken at the circuit court proceedings for sale of the minor’s interest in the property, where he repeatedly designated it as an option, he was apparently stricken with an acute attack of amnesia, denied all remembrance of having been sworn in that matter or recognizing any of his testimony as read to him, and finally when asked, “Your mind is a blank on that proceeding?” he answered, “Certainly is, I don’t remember a thing that went on, except who was there; I remember who was there.” Plaintiffs also introduced some other testimony of language by Rymal and Lothamer about the time the second payment of $500 fell due tending to show they recognized it was an option and the $500 paid would be lost because subsequent payments were not met when due. Lothamer is shown to have been sick and confined to his house for several weeks in October and November, and Rymal’s version of what was said is limited to admitting that the payments could not be met when due and trying to secure easier terms. When dealing with these parties Simpson had no knowledge or notice of any admission or claim that the instrument was only an option. Be that as it may, the agreement was not surrendered and the testimony is convincing that plaintiffs subsequently recognized it as outstanding against the property. In any event, the character and terms of this written instrument could not be altered by what the parties erroneously called it, nor, Unless surrendered by operation of law, be released by parol. McEwan v. Ortman, 34 Mich. 325; Waller v. Lieberman, 214 Mich. 428; Barton v. Molin, 225 Mich. 8.
Taken- as it reads, the agreement is clearly a land: contract, as distinguished from an option. Plainly, both parties are bound by it. The sellers are obligated to sell and the purchaser to buy, which is the recognized test. Pangburn v. Sifford, 216 Mich. 153. In this instrument the sellers and purchaser are named as such, the property is legally described, the pripe, time, and terms of payment are stated. It is signed by both parties, and its concluding paragraph stipulates that its pro-visions “apply to and bind the successors, heirs, executors, administrators and assigns of the respective parties,” thus recognizing the right of the parties to assign their respective interests in the contract. Time is not specified as of the essence of the contract, it contains no provision for ipso facto forfeiture in case of default, and bare failure to make payments when due did not terminate it. Naming the date when payments fall due does not in itself make time of the essence of the contract. Conceding all said which plaintiffs claim, there was no consideration therefor, no physical surrender of possession of' the property or of the written agreement. Under it plaintiffs were entitled to retain possession of the property until final payment.
Appealing to the rule- that specific performance of a contract for conveyance of land is discretionary with chancery courts and may be denied when, after a full consideration of all the facts shown, to grant the same appears to the court inequitable or unjust, plaintiffs further contend by their brief that relief should be denied Simpson because of inequitable conduct and bad faith, charging that he is “not a bona fide purchaser,” but an- interloper and stranger to the original transaction; that he discovered “what appeared to be a plausible legal technicality” through which he sought to turn the situation to his own advantage and “force an unconscionable sale.” The trial judge, who had the advantage of hearing and seeing the parties and witnesses, with full opportunity to observe their attitude and manner of testifying, was not so impressed, but on the contrary states in his opinion:
“Plaintiffs claim that defendant Simpson is in no position now to enforce the contract and ask for specific performance thereof, because of his conduct. After listening to the testimony in the case, I am not able to find that Simpson had been guilty of misconduct. He was, it is true, anxious to buy this property at the price mentioned in the .contract, and being unable to do so directly from plaintiffs, purchased the interests of Lothamer and his assignees.”
The great weight of convincing evidence sustains that view of Simpson’s conduct in relation to this matter. He owned some land close to this property, which he frankly admits he was anxious to buy. He had tentative negotiations for that purpose with plaintiffs and their father before they contracted it to Lothamer. He went to their place, talked with and learned from them their price, and made them an offer approximating it, which they did not accept, but in the conversation told him he would yet be given another opportunity. Later he went to their place accompanied by two real estate men to resume negotiations with, the owners, and was then told by them they had already contracted to sell the property, but he could still have a chance to buy it if the contract purchasers did not come through. One of the real estate men who accompanied Simpson was seriously ill at the time of the trial and not a witness. The other, named Eaton, testified of the interview that they were told, in substance:
“Somebody had a contract on the property and that they couldn’t talk any terms of sale until that paper was in their possession; that they couldn’t make any further deal but when they got that paper they would be glad to go through with the deal with Mr. Simpson.”
Simpson thereafter kept in touch with plaintiffs, and, being reassured that he should have a chance to purchase when their title was cleared up, he suggested to Fred Range that perhaps he (Simpson) might be able to obtain the outstanding contract, and was assured they would be glad to have him do so. He then learned who was the contract purchaser and followed the matter up. He ascertained the contract had been sold and assigned by Lothamer to Waddell, located him through the city directory in the Majestic building in Detroit and ■ negotiated for purchase of the contract. Waddell died before this deal was concluded, and it was later consummated, as before related, through the Waddell, Wilcox, Rymal Company, for which it appeared Waddell had taken the assignment, and the proceeds were later taken into consideration in settlement with his administrator for Waddell’s interest in the company, the details of which are unimportant. Simpson had never met any of these parties before he found and dealt with them at arm’s length in purchasing this contract for which the testimony shows he paid $1,400. He independently obtained an abstract of the property, and they reached an agreement for his purchase of the contract in January, 1925. He then told Fred Range he had secured it and they could now close their deal, to which the latter replied that, the father having died, they must probate the estate before he could do anything. Simpson thereafter kept track of both the Range and Waddell probate proceedings, and secured his title papers for purchase of the contract in March, 1925.
When the estate of Joseph Range was closed early in June, 1925, Simpson went to see Fred Range and told him his father’s estate being closed and he (Simpson) having purchased the outstanding contract, they could now conclude their deal under it; that he had the money ready and asked him where he wanted to receive it. Fred replied he would mot accept the money, and refused to go through with the deal. The latter’s version of this interview is that Simpson came out to their place to see him, “and said he came to buy the farm, and I said' it wasn’t for sale, and he said he had purchased that agreement. I told him I did not care if he did have it. It was of no value. He said he would bring me the money, and I told him I wouldn’t take ii>, ’and then he said he would go to court with me, and I said ‘All right,’ I would go to court;” which he (Range) did by filing this bill on August 8, 1925.
The point is also urged for plaintiffs that no legal tender was ever made of the amount due on this contract which Simpson seeks by his cross-bill to enforce. It is undisputed that after his father’s death Fred Range was the authorized spokesman for plaintiffs. His admitted absolute repudiation of the contract, and refusal to accept the offered payment constitutes a complete waiver of formal legal tender. Witt v. Dersham, 146 Mich. 68; Hedrick v. Firke, 169 Mich. 549; Lackovic v. Campbell, 225 Mich. 1. Simpson testified that he then had the money to make full payment on the contract available and continued to have it ready for that purpose until the day of the trial, offering to fully perform on his part. The court took precaution to provide in its decree that the deed of the property and the amount due on the contract should be seasonably deposited with the court for delivery to the proper parties pursuant to the specific performance decreed.
The decree will stand affirmed, with costs in this court to defendant Simpson.
Fellows, Wiest, Clark, and McDonald, JJ., concurred.
Justice Steere and the late Justices Snow and Bird took no part in this decision. | [
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] |
Wiest, J.
This is a suit in, equity to foreclose a land contract. In the circuit decree passed for plaintiffs for the full contract, price, less instalments paid, with order of sale and liability of defendant for deficiency, if any. Defendant appealed.
The contract price for the premises was $25,000, of which $5,000 was made as a down payment and the remainder was to be paid in instalments of $100 per month for the first year, and $150 per month thereafter. The contract was made May 21, 1926. The bill was filed February 26, 1927, and alleged that defendant was then in default $200, and plaintiff elected to declare the entire balance on the contract due under the following accelerative provision in the contract:
* * * “and if proceedings are taken to enforce the contract in equity, after default by the purchaser, the entire amount owing hereon shall be due and payable forthwith, notwithstanding anything herein contained to the contrary.” * * *
Counsel for defendant contends that the accelerative provision is inequitable, invalid, and unenforceable. The provision is harsh, but a part of the contract, and is not outlawed by public policy nor invalid or unenforceable. It was probably unwise for defendant to so place his interest in the property at the mercy of plaintiff, but we are powerless to extend to bim anything more than commiseration.
This suit was not to forfeit the contract, but to enforce payment in accordance with its terms. Accelerative clauses are common in mortgages, and have universally been held valid; they appear in many cases of sales upon instalments and, under the negotiable instruments law (2 Comp. Laws 1915, § 6043), bring about a sum certain in case of a provision: “that
upon default in payment of any instalment or of interest the whole shall become due.”
Counsel stipulated that:
“The only question to be raised on this appeal to the Supreme Court is the validity of the so-called acceleration clause.”
We are constrained to affirm the decree, with costs to plaintiff.
Fead, C. J., and North, Fellows, . Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Wiest, J.
The bill herein was filed to cancel a mortgage executed by plaintiffs, set aside a foreclosure thereof, and restrain proceedings thereunder to obtain possession. In the circuit plaintiffs had decree and defendants appealed.
Three questions are presented.
(1) Was the mortgage procured by fraud?
(2) If so, was right to relief in equity waived by acts of plaintiffs?
(3) Was defendant State Bank of Linwood a purchaser of the mortgage in good faith ?
It is doubtful whether plaintiffs have made out a case of fraud. We need not, however, determine that question, for, if the mortgage was procured by fraud, plaintiffs, by subsequent acts, waived right to file this bill.
In August, 1921, plaintiffs owned a farm of 120 acres in Bay county, upon which they had lived for many years. They had reached an age demanding some lessening of labor, and, desiring to move to- the city of Bay City, they advertised the fact and were brought to negotiations with one John MacDonald, resulting, on August 8, 1921, in a written agreement in which MacDonald was to purchase the farm at $11,500, pay $1,200 in cash, deed a house and lot in Bay City at a value of $6,500, and transfer a land contract for 80 acres of land in Bay county at a value of $3,800. Nothing was done toward carrying out this agreement, but plaintiffs claim that, under the belief they were executing papers in pursuance thereof, they were fraudulently induced by MacDonald, on September 8, 1921, to execute a mortgage for $3,000 on the farm to Caroline MacDonald, wife of John, in part payment of the purchase price of $6,500 for the Bay City property. Within a few minutes after signing the mortgage plaintiffs "were fully aware of the fact, for they admit that Robert L. King, .an attorney and the notary who took their acknowledgment, informed them that they had mortgaged the farm, had the Bay City house on their hands, and had not sold the farm. Nine days later plaintiffs employed Mr. King to file a bill in equity against the MacDonalds, and, September 21, 1921, a bill, signed and verified by plaintiffs herein, was filed in the Bay circuit. The bill alleged fraud and deceit in procuring the mortgage, prayed for its cancellation and an injunction against its being sold or transferred. An injunction was issued but rendered inoperative because the mortgage was sold and the assignment thereof recorded. September 16, 1921, Caroline MacDonald assigned the mortgage to the Northern Investment & Finance Corporation, and the assignment was recorded an hour or so before the injunction bill was filed. No hearing of that suit was ever had, although the MacDonalds appeared and answered, denied the fraud, and set up a new agreement which we will later mention. That suit was dismissed September 17, 1923, for want of prosecution.
While that suit was pending, and on October 29, 1921, plaintiffs agreed, in writing, with the MacDonalds to purchase the Bay City property at $5,500, to pay $3,000 by the mortgage theretofore given, $500 on May 1, 1922, and $500 on or before the first day of May each year thereafter until the full price was paid. That agreement was brought about by the activities of William C. Widmer, a real estate broker who had an office in a room adjoining that of plaintiffs’ attorney. Mr. Widmer had learned of the suit, to set aside the mortgage and met Mr. MacDonald when the, latter visited plaintiffs’ attorney, and induced MacDonald to agree to reduce the price of the Bay City house to $5,500, and later explained this to plaintiffs and they agreed to be satisfied therewith. Thereupon the second agreement above mentioned was prepared by plaintiffs’ attorney, taken to their hohie, there fully explained to them, and executed. That agreement was considered and treated as an adjustment of the mortgage matter. At the time the agreement was executed plaintiffs gave their note to Widmer for $145, to pay him $125 for his services in bringing about the adjustment, and the sum of $20 to their attorney for his services. This note was later paid.
Earl E. Cameron and Grace I. Cameron brought a suit in chancery against the MacDonalds and plaintiffs to¡ foreclose a land contract under which the MacDonalds were purchasing the Bay City property. Upon sale in that foreclosure proceeding there was a surplus of $170.42, and claim was made to the surplus by Amos J. Woolfit, assignee of the MacDonalds, and he filed a petition asking that the surplus be turned over to him. Plaintiffs herein appeared in that proceeding by Hubert J. Gaffney, their attorney, set up that they had acquired all the right, title and interest of the MacDonalds in the Bay City property and claimed right to have the surplus arising from the fore'closure sale. The court awarded the surplus to plaintiffs herein April 17, 1923.
The Northern Investment & Finance Corporation was organized by Paul R. Dinsmore about the time the m.ortgage was given by plaintiffs. Plaintiffs paid the interest on the mortgage for the first year to' the assignee, the Northern Investment & Finance Corporation. In dealings between defendant State Bank of Linwood and Dinsmore this mortgage became the property of the State Bank of Linwood by assignment executed by the -Northern Investment & Finance Corporation. The State Bank of Linwood foreclosed the mortgage by advertisement and became the purchaser at the sale on April 28, 1924.
November 5, 1925, plaintiffs brought suit at law, in the Bay circuit, against the MacDonalds. The MacDonalds appeared by an attorney and that case is still pending.
Plaintiffs remained on the farm, and, knowing of the foreclosure sale, on the second day of May, 1925 {the sheriff’s deed of foreclosure having become effective), they leased the farm from the State Bank of Linwood for the season of 1925, and agreed to pay the taxes on the farm for the years 1923, 1924, and 1925, and also $300 for the use of the premises, payable $100 in cash, a note for $200 payable on or before November 1, 1925, indorsed by Lewis J. Weadock, who was then their attorney. This lease was in writing and gave plaintiffs the option to obtain a quitclaim deed of the premises at any time before January 1, 1926, upon payment of $3,650.88 and interest thereon from April 28, 1925, and the $300 rental, together with the taxes. It was also agreed therein that if plaintiffs elected not to so purchase they should deliver up the premises on or before January 1, 1926. Plaintiffs paid the $100 and gave their note, indorsed by their attorney, for $200, and later paid the note and the taxes on the farm for the years 1923 and 1924. At the expiration of the lease plaintiffs did not elect to purchase, neither did they surrender possession of the farm.
On July 16, 1926, the State Bank of Linwood commenced a summary proceeding before a circuit court commissioner to obtain possession. July 29, 1926, judgment of restitution was entered by the commissioner and later a writ of restitution was issued and was in the hands of the sheriff at the time the suit at bar was commenced in March, 1927.
Under the facts stated, plaintiffs cannot have the relief asked for and granted'in the circuit. We are of the opinion that, even if fraud were perpetrated, right to have the mortgage declared void was waived by subsequent acts of ratification, waiver, estoppel, and election.
The decree in the circuit is reversed, and a decree will be entered here dismissing the bill, with costs to defendants.
North, Fellows, Clark, McDonald, and Sharpe, JJ., concurred.
The late Chief Justice Flannigan did not sit.
The late Justice Bird took no part in this decision. | [
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] |
Potter, J.
Plaintiff, employed by the Lee Paper Company of Vicksburg, Michigan, which was insured in the Michigan Mutual Liability Company, claiming to have been injured in the course of his employment by accidentally getting quick line in his eye, presented a claim for compensation for the loss of sight of an eye. From an award of compensation by the department of labor and industry, defendants bring certiorari.
■ There is evidence that on Friday, May 6,1927, plaintiff, with other workmen, was engaged in unloading a car load of lime. It was a windy day. Some lime got in plaintiff’s eye. Prior thereto plaintiff had had no trouble with his eye. An eye specialist testified for defendants he did not know what caused the condition suffered by plaintiff. If plaintiff got unslacked lime in his eye defendants’ specialist testified it would injure it. There is testimony that the company’s physician took particles of. lime from plaintiff’s eye with tweezers. Defendants contend there was no accident and plaintiff’s condition was not the result of the injury complained of. The department of labor and industry found otherwise.. There was evidence to sustain the opinion .of the department, whose award is affirmed.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.’ | [
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] |
Wiest, J.
Defendant Burt invented an automobile joint, and the other defendants, as “informal partners” or joint adventurers, united with him in its development. Wanting eight of the planned joints made they took up the matter with the plaintiff, who operated a machine shop, and the probable expense was discussed, but not definitely fixed, and plaintiff was employed to make the joints as soon as he could, but not to the exclusion of his- other business engagements. Plaintiff started the work, and, after several months, had the job about half completed and then asked defendants to pay him on account the sum of $515.74. Defendants claimed there was no agreement to pay before completion, and, therefore, refused payment. Because the payment was not made plaintiff quit the work, brought this suit to recover for work done and material furnished and had verdict and judgment, inclusive of interest, for $1,033.30. Defendants review by writ of error.
If no time for payment was fixed by agreement, then payment was not demandable before completion of the joints, and, in such case, refusal to pay during progress of the work would not let plaintiff stop the work and recover for labor and material. Whether there was an agreement to pay before completion was a sharp-drawn question of fact and not to be taken from the jury under a holding that plaintiff was estopped by the following statement in a letter in reply to a letter from defendants:
“There may be a point of law that since we agreed to do the work accurately and that no time was stipulated for payment, that it is up to us to finish the work and then prove that it is done accurately before we are entitled to payment.”
The trial judge was not in error in leaving the question to the jury. We are requested, as was the trial judge, to grant a new trial on the ground that the verdict is against the great weight of the evidence. We cannot so hold.
As stated by Mr. Justice Fellows, in Olchefsky v. Brick Co., 240 Mich. 536:
“If we were the triers of the facts we might not find difficulty in agreeing with some or all of defendant’s contentions as to what the facts were. But this is not the measure of either our power or our duty;” citing Lewis v. Whitney, 238 Mich. 74.
Over objection plaintiff was permitted to testify:
“Well, there were a few things that we bought special for this job, that might be considered regular equipment, but we got them special for the job, such as some milling cutters, and we made some jigs and fixtures, some patterns. We also' bought a milling machine special so that we could progress with this work. Of course, the milling machine is good for other work, too, but the one that we had in the shop at the time wasn’t large enough to handle this job to advantage, so we bought another one.”
Plaintiff did not seek to hold defendants for the expense of such new machinery, and the testimony was given in explanation, in part, of the delay in making the joints. Upon such issue we can discover no harm in its admission.
Plaintiff also claimed that defendant Keller and two other defendants told him to go ahead with the work and “when you need money, ask for it.”
Upon the subject of payment the court instructed the jury that the burden of proof was on plaintiff to establish that it was a part of the contract to make payments as the work progressed, and that the work progressed with reasonable promptness and dispatch, and, if the jury found that plaintiff was entitled to payments as the work progressed and reasonable de mands were made by him and refused, and the work progressed with reasonable dispatch, then plaintiff was justified in discontinuing the work and was not precluded from' recovering damages because he did not complete the work. The court also instructed the jury:
“If at the time of the entering into of the contract for the making of the joints in question there was no agreement upon the part of the defendants to pay, make any payments as the work progressed, then in such event any conversation, if any, that might have been had after that time in which any of the defendants promised to advance some money upon the work was without consideration and not binding upon the defendants, and the plaintiff was not justified in— would not in such event be justified in discontinuing the work on the joints on account of the refusal of any such payments and in such event he had no right to demand or require payment until the work was completed.
“If the plaintiff did not proceed with the work with reasonable promptness and dispatch, the defendants had a right to abandon the contract, whether any payments were due him during the progress of the work or not.”
Counsel for defendants contends that the instruction mentioned permitted the jury to merge the original agreement with the subsequent promise mentioned and this would not have happened had the court given defendants’ request for instruction upon the subject. We think the instruction sufficiently covered the subject and was as favorable as defendants had a right to claim.
After plaintiff discontinued work on the joints defendants had joints manufactured at another shop, and at the trial sought to show the price paid therefor. The testimony was excluded. It is claimed that the price paid had some bearing on the market price. The joints were special, and clearly there was no market price, and, besides, the agreement between the parties with reference to the cost of the joints was the issue and not what had been paid in another instance. What we have just said applies to several other assignments of error. The issue of whether plaintiff proceeded with the work with reasonable promptness was one of fact for the jury.
We find no error calling for reversal, and the judgment is affirmed, with costs to plaintiff.
North, Fellows, Clark, and McDonald, JJ., concurred. Sharpe, J., did not sit.
The late Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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North, J.
The defendant was convicted of the crime of statutory rape. The only question about which there was a conflict of testimony was the age of the prosecutrix. After deliberating several hours, the jurors were called into the court room by the trial judge, and, it is claimed by the defendant, they were asked in the absence of the court stenographer why they could not agree, and were instructed to find a verdict or some of them would be dismissed from the panel. The defendant made a motion for a new trial, assigning the above circumstances in paragraph three of his motion as one of the reasons why the same should be granted. The defendant’s attorney filed his own affidavit in support of this motion, which affidavit in part is as follows:
“Deponent further says that at two different times the jury stated they could not agree and would not agree on a point of fact, viz.: the age of the complaining Witness. That when the jury came before the court the second time, they were instructed to find a verdict or some of them would be dismissed from the panel.
“Deponent further says that the verdict rendered was unfair and that the court erred in not declaring a mistrial when the only fact at issue in the case was not fairly decided by the jury.”
The motion for a new trial was denied, and in his opinion filed the circuit judge stated:
“The court did not in effect charge the jury as alleged in paragraph three of the defendant’s motion. * * * After considerable deliberation in their jury room the jury were called in by the court to ascertain whether or not it was possible for them to agree. The forelady of the jury informed the court that they were discussing in their jury deliberations the question of punishment. The jury was specifically instructed again that the matter of punishment was not a question for them to determine,” etc.
The record in this case is a practical illustration of the serious consequences which may result from the failure of a trial court to follow the statutory provision for conducting jury trials in courts of record.
“Hereafter in all jury trials in courts of record, in charging or instructing juries, the court shall instruct them only as to the law of the case; and such instructions * * * shall be taken in full by the court stenographer, or in case there be no stenographer, shall be in writing and filed in the case.” 3 Comp. Laws 1915, § 12630.
The foregoing section has been somewhat modified by section 29, chap. 8, Act. No. 175, Pub. Acts 1927; but the practice here involved has not been changed. Because of the failure to have a proper stenographic report made of the instructions given by the court or in lieu thereof having such instructions reduced to writing and filed in the case, we have before us a record in which it is charged in behalf of the defendant that statements were made to the jury which were of a highly prejudicial character! This claim in behalf of the defendant is not covered specifically enough in the opinion filed by the circuit judge to justify the conclusion that the defendant had a fair and impartial trial and that the verdict of the jury was free from coercion. It appears otherwise on the face of this record.
“The rule that an instruction on the part of the court which may coerce the jury into agreeing upon a verdict constitutes reversible error seems well established.” People v. Kasem, 230 Mich. 278.
See, also, People v. Strzempkowski, 211 Mich. 266 (10 A. L. R. 420). The fact that the record in this case was not made and preserved as provided by the statute should not be charged against the defendant nor should his liberty be jeopardized thereby.
The case is reversed and a new trial ordered.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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North, J.
Upon the death of James C. Ryan, April 12, 1923, his wife, Elizabeth Ryan, now Elizabeth Clark, became the sole owner of their homestead property located in Royal Oak, Oakland county, Michigan. In the bill of complaint this property is alleged to be of the value of $20,000. Two adult daughters, the defendant Irene Renetta McCue and Jennie O’Dell, survived James C. Ryan. A few months after their father’s demise, these daughters were informed that their mother was writing letters to their father’s brother, Thomas Ryan, who then lived in New York, and they became convinced that he was planning, by promise of marriage, to induce their mother to deed her property to him. The defendants claim that the daughters thereupon talked to their mother about this matter, and that it was finally arranged, for the purpose of safeguarding her property, that the mother would deed the homestead to the daughters, reserving a life estate to herself. The deed was executed October 5, 1923. Not only was a life estate reserved to the grantor in the deed, but on the same date the grantees executed a life lease of the property to their mother. The plaintiff denied that she understood she was deeding away 'her property, and claims that she supposed she was executing a lease to her daughter Irene for the sole purpose of enabling the latter to manage and control this property during the absence of the plain tiff on a visit to Florida, where she planned to be during the approaching winter. The plaintiff asserts she was tricked into signing the deed by her daughters and those representing them; and she brought this suit to secure a cancellation.
Before suit was instituted, the daughter Jennie O’Dell had died, and her husband and two minor daughters are made defendants because they have inherited whatever interest the deceased had in the property. A rather unusual feature of this case is the fact that the defendants do not claim to be the owners of the fee in this property in consequence of the execution of the deed in question. In their answer they state:
“These defendants now have no other intent or purpose but that said property should be preserved for the use and benefit of the plaintiff and that they are willing that the same should be conveyed in trust to some person or corporation to be appointed by this honorable court to hold and use the said property for the entire benefit and comfort of the plaintiff and they hereby offer and tender a conveyance of said property to any trustee so appointed by this court for that purpose.”
The surviving grantee, Mrs. McCue, gave the following testimony, which is undisputed:
“I recall it was put in the way it was to keep a home over her head. That was the prime reason for the whole situation. * * * It was done entirely for my mother’s sole protection.”
The trial judge held with the defendants. He determined that the fraud alleged by the plaintiff “was not committed;” and he also found that the two daughters did not acquire any beneficial interest in the property themselves “according to the intent and purposes of the parties.” It was accordingly decreed that the defendants O’Dell “shall have no beneficial interest in the property,” and, further, that the title to the property involved “is hereby declared to be held in trust by Irene Renetta McCue * * * for the use and benefit of said plaintiff.” The decree confirmed plaintiff’s life estate and further provided for a possible sale of the property under the supervision of the court, the proceeds of such sale to be used for the benefit of the plaintiff or to be reinvested under the direction of the court.
The plaintiff has appealed, claiming that the court was not justified in decreeing a trust as above outlined, and that she is entitled to have the deed canceled and set aside. Since the defendants do not claim to have a beneficial interest in the property in consequence of the execution of the deed by the plaintiff, the only question is whether the provisions of the decree relative to the trust are justified by the record. The defendants have not filed a brief in this court, and, therefore, we have not had the advantage of a presentation of their theory in this case; but their claim, as disclosed by the record, is that the only purpose they had in procuring the deed of plaintiff’s property was to save her from losing the homestead in consequence of the fraudulent designs of her deceased husband’s brother. This man had died before the bill of complaint was filed herein, and some time prior to his death the plaintiff had married her present husband. Thus, if we assume that a valid trust was created in the manner and.for the purpose alleged by the defendants, the reason and purpose for which such trust was created had wholly ceased before this bill was filed. Section 11587, 3 Comp. Laws 1915, provides as follows:
“When the purposes for which an express trust shall have been created shall have ceased, the estate of the trustee shall also cease.”
“It is a statutory, as well as elementary principle, that every trust in land ceases as soon as the purposes cease for which it is created.” Montgomery v. Merrill, 18 Mich. 338.
See, also, Steevens v. Earles, 25 Mich. 40; Taylor v. Richards, 153 Mich. 667.
The plaintiff’s mental competency is not questioned, nor does it appear that it could be successfully challenged. The trial judge expressly found her “not in any way incompetent.” From such a record it necessarily follows that the trust decreed by the trial court cannot be sustained; and since the defendants claim no other rights in this property, the deed in issue should be canceled. A decree may be taken in this court accordingly, without costs. -
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe,' JJ., concurred. | [
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Potter, J.
Summary proceedings were commenced before a circuit court commissioner by plaintiffs against defendant. Judgment was entered for plaintiffs against defendant for possession of the premises. Appeal was taken to the circuit court, where judgment was rendered for plaintiffs for the possession of the premises, against defendant and the sureties on his appeal bond for the rental -of the premises in the sum of $175 and costs.
Section 13240, 3 Comp. Laws 1915, provides for the commencement of summary proceedings to recover possession of lands, when any tenant at will or by sufferance shall hold over after the determination of his estate, by a notice to quit, as provided by law.
Section 11812, 3 Comp. Laws 1915, provides:
“All estates at will or by sufferance may be determined by either party by three months’ notice given to the other party.” * * *
Section 13244, 3 Comp. Laws 1915, provides that upon the return of the summons in summary proceedings issue shall be joined—
“and the same proceedings shall be had thereon in all respects, and the costs shall be taxed and collected in the same manner as in cases of forcible entry or detainer, and with the like effect.” * * *
Section 13237, 3 Comp. Laws 1915, provides that if defendant in forcible entry or detainer shall be convicted upon trial,, the officer who issued the warrant shall thereupon enter a judgment—
“that the plaintiff have restitution of the premises; and shall tax the costs and the expenses for the plaintiff.”
Section 13239, 3 Comp. Laws 1915, provides that in case defendant shall be found not guilty, judgment shall be entered for the defendant for his costs.
Section 13244, 3 Comp. Laws 1915, provides that upon the trial before a circuit court commissioner or upon any appeal to the circuit court, if—
“the plaintiff is entitled to the possession of said premises, in consequence of the nonpayment of any-sum of money due, either as rent or as a part or portion of the purchase money of premises, under a contract in writing for the purchase thereof, such officer, or the court, or the jury, if the case is tried by a jury, shall, in addition, ascertain and determine the amount due the said plaintiff, and such amount shall be stated in said judgment.”
In McSloy v. Ryan, 27 Mich. 110, decided before the amendment of the statute, the court, by Mr. Justice Cooley, said:
“The appeal is allowed only from the ‘determination or judgment’ of the commissioner; and the finding of the amount due, though to be stated in the judgment, is in fact no part of it.”
In Bauer v. Wasson, 66 Mich. 256, suit was commenced upon a bond, given by Wasson as principal and others as sureties, on an appeal from a circuit court commissioner. The court said:
“The object of that clause of the section was no more than to ascertain with certainty the extent of the liability of the defendant and his sureties, that they might have the opportunity to discharge such liability, and have the record evidence of such discharge, by payment, without waiting for suit to be brought upon the bond.”
The court was in error in entering a judgment against defendant and his sureties for the sum of $175.
The judgment for rent is reversed, with costs.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Sitarpe, J.
In June, 1917, the plaintiffs filed a complaint with the then Michigan railroad commission, alleging that the Michigan Central Railroad Company was insisting on the payment by them of a demurrage charge for the detention of cars while used in their yards in wholly intraplant service, in violation of the tariff rules and regulations formulated by it, and prayed for an order that it desist therefrom. Proofs were taken before the commission and the complaint dismissed on the 10th day of May, 1918. On June 7, 1918, the plaintiffs filed their bill of complaint in the Ingham circuit court to review such order, as provided for by the statute (2 Comp. Laws 1915, § 8134), and prayed for the granting of the relief asked for in their petition. Answers were filed by the commission and the railroad company. The cause came on for hearing in 1923. By stipulation the proofs submitted to the commission were treated as the record in the case. On November 5, 1923, a decree was entered, granting to the plaintiffs the relief prayed for. The appeal of defendants therefrom was submitted to this court at the October, 1927, term thereof.
The question presented involves a construction of the tariff of the railroad company. Under section 8118, 2 Comp. Laws 1915, then in force, it was the duty of the railroad company to file with the commission, and keep open for public inspection in all its depots and offices, schedules showing all rates, fares, and charges for transportation, both of passengers and property, “between different points on its own route.” * * * These schedules should contain the classification of freight,-
“and shall also state separately all terminal charges * * * and any rules or regulations which in anywise change, affect or determine any part of or the aggregate of such aforesaid rates, fares and charges or the value of the service rendered to the * * * shipper or consignee: Provided, That where local switching tariffs are in effect at a competitive point, it shall be sufficient if the schedule state that the terminal charges shall be subject to the rules of such local switching tariffs.”
No change could be made in any schedule except upon the notice therein provided for. These schedules constituted the tariff of rates.
The plaintiffs are manufacturers of and dealers in lumber and forest products in the Saginaw valley. The mills and yards of W. D. Young & Company are taken by counsel on both sides as typical of the manner in which these products are handled in them all. Logs on flat cars are hauled into this plant by the railroad company, and the cars placed at the log pond, or tank, where they are unloaded. The usual transportation service is then ended. The logs are then drawn into the mill and sawed into lumber. The empty cars are placed at the tail of the mill, where they are loaded with the freshly-sawed lumber and switched to that part of the yard where the lumber is piled for curing or storage. Cars are also used for conveying the lumber from the piles to the dry kiln and the planing mill. Twenty or more cars were so employed and remained within the yard from one day to several weeks, at the time the petition was filed.
For convenience in the consideration of the Tariff Rules discussed by counsel, they are set forth in the margin as they appear in the record. On May 3, 1915, General Rule 6 was amended by the addition to it of paragraph (b). Under this provision the railroad company claims the right to collect demurrage on cars used and detained in plaintiffs’ plants for intraplant service. It had proof tending to show that the amendment was adopted in order to secure to it reasonable compensation for the use made of its cars while in such service. It is apparent, as pointed out by the commission, that, if not able to collect demurrage under this amendment, then, in view of the free time allowed under the other rules relating thereto, no demurrage would be likely to accrue while the cars were so used.
GENERAL RULES.
(Applicable at all stations except as otherwise specifically provided for in this tariff.)
Local Movement Within Industrial Plants.
Rule 6. (a) Cars switched within the confines of any one industry or plant by this company will be subject to a charge of $1 per car for each movement.
(6) Demurrage charges as per tariff lawfully in effect will apply while the car is in the possession of the industry or plant. Time will be computed from the time the car is delivered to the industry or plant, until released, and the movement of such car within the confines of the industry or plant will not be considered a new movement of the car so far as concerns the assessment of demurrage charges.
Car Demurrage Rules and Storage Rules and Charges.
Michigan Intrastate
Applicable at Stations in the State of Michigan on Intrastate Traffic Only.
Rule 1. Cars Subject to Rules
Cars held for consignors or consignees for loading, unloading, forwarding directions, or for any other purpose, are subject to these car demurrage rules except as follows:
(Cars used in intraplant service are not included within the exceptions.)
Rule 2. Free Time Allowed.
(a) Except as hereinafter provided forty-eight hours (two days) free time will be allowed for loading and unloading on all commodities.
(Cars used in intraplant service are not included within the exceptions.)
Rule 2.
But — •
(c) Three days free time will be allowed for unloading ears with:
2. Lumber, except cargo and lightered lumber. Page 14—
Rule 6. Cars for Loading.
(6) When empty cars placed for loading on order are not used, demurrage will be charged from the first 7 a. m. after placing or tendering until release, with no time allowance.
Rule 7. Demurrage Charge.
(a) After the expiration of the free time allowed, a charge of one dollar ($1.00) per car per day, or fraction of a day, will be made until car is released. This charge is included in and is not in addition to the charges named in section (&).
Rule 12.
Traffic handled under this tariff will be subject to car demurrage and storage charges and rules as per tariffs lawfully on file with the interstate commerce commission as to interstate traffic, and with other railroad commissions as to traffic subject to their jurisdiction.
Switching Charges and Rules at Specified Points Bay City (East and West Sides), Mich.
Lumber and Forest Products
6. Lumber or forest products switched between any two locations within one lumber yard or between any two locations within the yard of a planing mill on industrial plant will be charged $1 per car for each switch movement.
Counsel for the railroad concede that the switching charge provided for in paragraph (a) of Rule 6 has no application to such service, for the reason that Special Rule 6 (applicable alike to Bay City and Saginaw) provides therefor.. But it insists that this' special rule applies only to the switching charge for cars loaded with lumber or forest products in the yards at Bay City and Saginaw; that it contains no reference to demurrage charges, and in no way relieves plaintiffs from the charges therefor in paragraph (6), while plaintiffs claim that as General Rule 6 is applicable only at stations “except as otherwise specifically provided for in this tariff,” and, as there is a provision under Special Rule 6 for the handling of lumber and forest products at Bay City and Saginaw, they are not affected by the provision therein for demurrage.
Rule 12 provides that “Traffic handled under this tariff will be ,subject to car demurrage and storage charges and rules as per tariffs.” * * * Were it
not for the provisions in Special Rule 6 relating to the handling of lumber and forest products ati Bay City and Saginaw, the several provisions relating to demurrage would be easily understood. This rule apparently contemplates the movement of cars between locations within the yard just as was done; that is, the switching of an empty car to the tail end of the mill for loading and its movement when loaded to the place for piling, etc. The demurrage charges provided for in the other rules, except that amended, relate only to cars when held for “loading and unloading.” These words have,. we think, a well-defined meaning when used in connection with the transportation of freight by railroads. Free time is allowed therefor. When a car is placed for loading at a shipper’s request, it is with an implied undertaking that it will be loaded within the time fixed by the rules, and, after it is loaded, the railroad will .be directed by a bill of lading to be issued by it, at the request of the shipper, to transfer it to some point involving a movement outside the plant or yard of the shipper. When left for unloading, there is an undertaking that the load will be removed by the consignee and the car released for further service within the time allowed by the rules therefor. In either event, if the shipper or consignee fails to perform within the time limited therefor, the charges for demurrage attach.
It seems clear to us that the use made of the cars after they had been unloaded in plaintiffs’ yards, and until they were reloaded for shipment to a point outside their yards, was not a “loading” or “unloading” within the meaning of these words as used in the provisions of the tariff relating to demurrage. Plaintiffs’ counsel urge that they become so by reason of the provisions in Special Rule 6, applicable only to the yards in Bay City and Saginaw. With this contention the trial court was in accord, and his decree was based thereon. The rule says nothing about a demurrage charge. It simply provides for a switching charge for any movement “between any two locations within one lumber yard or between any two locations within the yard of a planing mill or industrial plant.” It does not apply to cars which are brought into or taken out of the plant under load. It applied solely to those used in intraplant service not related to transportation or intended transportation.
The tariff contains no charge applicable to the use of the cars when in intraplant service, and for which this switching charge is made. To accord plaintiffs the right to the use of these cars without charge, except for switching when and where requested, would amount to a discrimination in their favor, which the law will not permit. This the railroad company seeks to avoid by its charge for demurrage provided for in the amendment. This amendment in no way modifies or changes the provision of the special rule relating to the switching charges. It but adds a provision fixing a demurrage charge in conformity with the provisions of Rule 12.
We have not overlooked what is termed the average agreement which the parties entered into relative to demurrage charges, but in our opinion it has no application to the intraplant use of the cars made by plaintiffs. It applied only to cars containing inbound and outbound shipments, those held for “loading and unloading.”
The interstate commerce commission had occasion to consider a somewhat similar question in American Smelting & Refining Co. v. Railroad Co., 56 I. C. C. 195. In that case the tariff rules of the railroad had no provision for payment for the use of cars used by the complainant in intraplant service, but a charge of one dollar per car per day had been made for each car so detained. In the proceeding before the commission the complainant sought to enjoin the collection of a higher charge. The opinion is instructive on the question before us.- In denying relief it was said:
“The cars taken from defendant were not used for. the transportation of property; defendant rendered no service in connection with them in transportation or otherwise; they were used only for the individual requirements of complainant and were thereby detained from defendant’s possession and removed from ordinary service in transportation during such use. They were a part of the general equipment legally be longing to and under the control of defendant. For defendant to permit complainant to occupy and use such equipment for its own purposes, thereby withdrawing the cars to that extent from service for other shippers at rates or charges or rentals less than those charged against others for similar occupation and use, would be clearly unlawful.”
The decree appealed from is reversed and set aside, with costs to the defendants, and the order of the commission restored.
Fellows, Wiest, Clark, and McDonald, JJ., concurred.
The late Chief Justice Flannigan and the late Justices Snow and Bird took no part in this decision. | [
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North, J.
The question for determination in this litigation is whether the proof of the alleged misrepresentations is such that the relief sought should be granted. The trial court dismissed the bill of complaint, and the case has been appealed to this court.
The plaintiff purchased on separate land contracts 30 lots from the defendant company, which is a Michigan corporation engaged in the real estate business. The plaintiff claims that he was induced to contract to purchase these lots because it was represented to him that the defendant company would sell for the plaintiff any and all houses constructed upon these lots as fast as the same* were ready for occupancy, and that when the houses were sold on land contracts the defendant would discount such contracts at the rate of 30 per cent. George Frischkorn and Charles Frischkorn were active in the management of the defendant company; and the plaintiff claims that one of these men in the presence of the other made the foregoing representations, and that the same were false and fraudulent statements made for the sole purpose of “encouraging” the plaintiff to expend all his money on these properties; and, further, that this was done for the fraudulent purpose of enabling the defendant to repossess itself of these lots in consequence of plaintiff’s inability to meet accruing payments on his respective contracts of purchase. In pursuance of the arrangement claimed by the plaintiff to have been made between the parties, and in accordance with plans and specifications obtained from the defendant, the plaintiff undertook the construction of houses on six or seven of the lots, three of the houses being fully completed. Though requested to do so, the defendant failed to sell any of the houses after completion, but each of the three was sold by the plaintiff. The plaintiff then presented one or more of these contracts and asked that it be discounted by the defendant. The defendant declined to do this on the ground that real estate was moving slowly and that it was not financially able to do so.
In the meantime the plaintiff had fallen badly in arrears on the payments due on his respective land contracts, the defendant had declared forfeitures and instituted summary proceedings before a circuit court commissioner. The plaintiff sought in this, case to have the summary proceedings restrained and to have his contracts for 23 of the lots on which he had not built canceled and the defendant required, to account to him for all moneys expended incident to these 23 lots, including plaintiff’s payments ,on the purchase price thereof.
The defendant denied making the foregoing promises or representations, and also denied that it had been guilty of any fraudulent intent in its dealings with the plaintiff. Charles Frischkorn was called by the plaintiff for cross-examination under the statute, and he testified that he was present during a conversation between the plaintiff and his brother, and the witness specifically denied stating to the plaintiff that he would discount these contracts at the rate of 30 per cent., or that he took any part in the conversation. The record contains no testimony denying that George Frischkorn made such a representation to the plaintiff. But if we assume, for the purposes of this case, that the alleged misrepresentations were made, still the plaintiff has not established his right to recover. This is true because the alleged fraudulent representations in this case did not relate to an existing fact; but, instead, if made at all, they referred to the intended future conduct of the defendant relative to the subject-matter of the contract. Such misrepresentations could not be made a basis of recovery except it was proven that the defendant’s agent made the same with an actual fraudulent intent. The theory and circumstances under which there may be a recovery in this type of cases are clearly pointed out in Milwaukee Tank Works v. East Jordan Co-operative Ass’n, ante, 266. Even if we indulge in the assumption that the defendant’s representative made the alleged misrepresentations, the record is absolutely barren of any proof which would justify a court in determining that at the time of such alleged misrepresentations they were prompted by a then present intent to deceive and defraud the plaintiff.
The decree of the lower court is affirmed, with costs to the appellee.
Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. Fead, C. J., and Fellows, J., did not sit. | [
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North, J.
This suit was brought to recover damages for personal injuries sustained by the plaintiff incident to his being struck by an automobile belonging to the defendant Herbert Krohn, and which at the time was being driven by the defendant, Mrs. Bertha Krohn. The plaintiff prevailed in the circuit court, and the defendants have appealed. The accident happened in the township of Spring Lake, Ottawa county, at a point where the traffic going westerly on M-16 may proceed in a southerly direction on M-ll towards Grand Haven, or in a northerly direction on M-ll towards Muskegon. The turn in a southerly direction has been rounded off so it is made by a long sweeping curve. Where the two highways diverge in a northerly and southerly direction the concrete pavement has been widened to approximately' 150 feet. The plaintiff, a young man about 19 years old, and another young man, had ridden to this point on a truck, coming from the east. After leaving the truck they walked from the northerly side of this widened portion of the pavement in a southerly. or southeasterly direction, intending to proceed along the left-hand side of the pavement and on around the curve in a southerly direction toward Grand Haven. As they were crossing, or shortly thereafter, Mrs. Krohn approached from the east on M-16, and as she was rounding the curve at the corner the accident happened.
There is a sharp conflict in the evidence as to just how and where the plaintiff sustained his injury. The plaintiff’s own testimony, in substance, is as follows:
“When we started to cross there, there were no cars coming. I looked before we started to cross the pavement and did not see any cars coming. I did not have my arm up to my face. We were walking on the left-hand side of the pavement toward Grand Haven. We had to cross the pavement from where we were to go over to the left-hand curve. We were walking together side by side. I was walking on the left-hand side of my friend. At the time we started along the pavement towards Grand Haven there were no other automobiles being driven in either direction on the road. We looked each way and there was nothing coming when we were walking. As we walked along the pavement toward Grand Haven we did not at any time see an automobile. Saw no car coming in any direction before I was hurt. I did not hear the sound of an automobile horn, or any signal or warning of any kind. I was hit by the fender or wheel on the front of the car and I stepped back and the door handle caught hold of my arm, threw me back of the car. I did not see or hear the car at all, but my friend did and grabbed me by the arm. I had been walking on the pavement be fore I was struck five or ten minutes. I was nearly around the curve on the left-hand side of the road when I was struck. I was struck on the left-hand side. The car was between mé and the curb. After the car hit me it was near the bridge when it stopped; it went about a block and a half.”
Harry DeYoung, the plaintiff’s companion, testified to the following:
“We had gotten almost around the curve toward Grand Haven before Sudinski was struck. The accident occurred about the width of the car from 'the curb. We were walking along and I heard a kind of a noise and I looked around quick and the car was almost on top of us and I hollered ‘Jack,’ and I tried to grab for him and I was too late. He was on the pavement before I could think of it. When I turned around the car was only 12 or 15 feet from us going toward Grand Haven. The car was about a foot from the left-hand curb when it struck Sudinski. I think I heard a horn. I cannot tell exactly what part of the car struck him first. Some part of the front of the car hit him on the leg and threw him. * * * I did not see any other cars coming in either direction at that time. At the time Sudinski was struck he was looking straight ahead and walking in the direction toward Grand Haven. We were walking on the left-hand side of the road. * * * We weren’t crossing the road then; we were walking down the road toward Grand Haven. * * * The front part of the car struck him. It is not a fact that the plaintiff walked right into the side of this car. * * * We looked down the road to the east toward Grand Rapids after we got on the left-hand side but did not see any one coming, and we kept on walking on the left-hand side.”
Mrs. Krohn, the driver of the car, gave the following testimony:
“I saw both of the men as they got out of the truck. They left the truck and they started in a diagonal path toward the left-hand side. When I first saw them they were about one-half a city block away. It was about 2 o’clock in the afternoon. It was light, but it was snowing and blowing. I did not see any other cars. There wasn’t a car around. I had no difficulty in seeing the men and they were in full view and sight all the time until the plaintiff was struck. I saw the direction in which they were walking and their manner and appearance as they walked on the pavement. I think they would have to walk not quite as far as across this (court) room and in order to reach them I had to drive something like one-half a city block. I did not see them walk clear across the pavement. I cannot say just how far they got. They were about 15 or 20 feet from the curb when Mr. Sudinski was struck. He kept on walking. He did not stop, that is how he walked into the back end of the car. In order to avoid him I turned over to the left as far as I could. The fender of the car was just about at the curb. There was about four times as much unobstructed pavement behind the plaintiff as there was in front of him. He was facing the curb and walking towards the curb. I was watching the young man about to cross the road in front of my car all the time. When I was from 20 to 25 feet away from him I blew my horn. When I blew the horn the one young man stopped. The plaintiff had his coat collar clear up around his head with his hand, neither looked to the right or the left but kept right on walking. He did not look in my direction or stop. It was a cold, stormy day and I think it was blowing from the east or northeast, and as he walked across the pavement the wind would be blowing against him on the left-hand side, and that was the direction from which I was coming. I didn’t know that he hit the car until I heard something hit the back of the car and naturally I turned around and looked back and he was just getting up from the road. I was about 15 or 20 feet from the place of the accident when I stopped the ear. I didn’t slow up so as to allow him to cross or pass. I blew the horn. I thought they would wait. When I saw he didn’t stop I turned my car to the left to cut in between him and the curb. I could have stopped, and waited for him to go across the road, but I thought he would stop. He didn’t look. He showed no sign of having heard the horn.”
The testimony of Mrs. Krohn to quite an extent was corroborated by that given by Mr. Arthur Page, who seemed to be an entirely disinterested witness. A careful consideration of the record convinces us that the trial judge was fully justified in his opinion that the conflicting testimony presented issues of fact and that the case was one for the determination of the jury. It follows that the defendants’ motion for a directed verdict and also their motion for judgment notwithstanding verdict were properly denied.
One of defendants’ assignments of error is based upon the claim that their rights were prejudiced in consequence of plaintiff’s attorney making a “reference to the insurance company!’ in his argument to the jury. Just what was said by plaintiff’s counsel does not appear in the record; but the court promptly cautioned the jury to disregard the statement in deciding the case, and also covered this again in the general charge. Since the record gives us no information as to the extent or nature of the reference made, we cannot hold it to have been prejudicial error, especially in view of the prompt and definite instruction to the jury given by the circuit judge. Greenwold v. Faber, 234 Mich. 217; Sutzer v. Allen, 236 Mich. 1. It should also be noted that in this case there was a legitimate reference in the testimony to an insurance company. Plaintiff testified that Mrs. Krohn said she had insurance on her car; that the agent would be down and the insurance company would settle with the plaintiff. This conversation was denied by Mrs. Krohn; but the testimony had been taken without objection and evidently in support of a claimed admission of liability on the part of Mrs. Krohn. With such a record, it cannot be said that the reference to an insurance company in the argument of plaintiff’s counsel constituted reversible error.
Complaint is also made because the case was submitted to the jury on the theory of gross negligence or subsequent negligence as well as that of ordinary negligence. From the recital of the testimony hereinbefore made, and from what appears in other portions of the record, this appears to have been entirely proper. If the jurors accepted the plaintiff’s theory that he and his companion had gotten across the pavement and had proceeded some distance around the curve towards Grand Haven, and were walking on the left-hand side of the highway, clearly the record was such that the jurors might have found the plaintiff free from any contributory negligence and that Mrs. Krohn’s negligence was the sole and- proximate cause of plaintiff’s injury, or they might have found her guilty of more than ordinary negligence because of the wanton or reckless manner in which the defendants’ automobile was driven as it overtook and struck the plaintiff. On the other hand, even if the jurors accepted the defendants’ theory that this accident happened while plaintiff and his companion were still in the act of crossing the highway, under Mrs. Krohn’s own testimony and from other proof in the record, it may have been found that the accident happened under such circumstances that the defendants are chargeable with so-called gross negligence. There is ample testimony to support a verdict on either theory, and the case was properly so submitted.
Defendants’ counsel strenuously contend that the physical facts surrounding the accident are such that the theory of subsequent negligence could not be applied to this case. This contention is based on the assertion that the plaintiff’s contributory negligence continued up to the instant of the accident and was a direct and concurring cause thereof. But this is not a necessary or unavoidable inference from the evidence. In view of the conflicting testimony, it was a question of fact for the jury. The theory of discovered negligence has been repeatedly applied in this State to accidents which happen under circumstances that were similar in this respect. Gibbard v. Cursan, 225 Mich. 311; Halzle v. Hargreaves, 233 Mich. 234; Steele v. Stahelin, 234 Mich. 307. The defendants claim that plaintiff ran into the rear portion of the automobile. A large portion of their briefs is devoted to presenting the case on this theory. If it had been established that the accident happened in this way then, as claimed by the defendants, because of plaintiff’s contributory negligence he could not have prevailed, and the theory of subsequent negligence could not have been applied to the case. But the record conclusively discloses that the jury did not find that the plaintiff ran into the rear portion of the automobile. On this phase of the case the court charged the jury as follows:
“You are instructed that if you find under the evidence in this case the plaintiff walked directly into the side of defendants’ car, and that this act caused the injury to him, then your verdict should be no cause for action.”
Since the plaintiff did recover, it is evident that the jury found the accident was not caused by his running into the side of the machine. This renders it unnecessary to refer to many of the contentions and assertions in appellants’ brief.
The remaining assignments of error relate to the charge of the court as given to the jury, or to the refusal of the court to give requested instructions. There are 17 such assignments of error, but only one of these has been discussed in appellants’ briefs, and therefore the others will be considered as waived. In re Morse’s Estate, 170 Mich. 114; Raymond v. Insurance Co., 236 Mich. 393. It is argued in behalf of appellants that the trial court instructed the jury that concurring negligence of the plaintiff is not a bar to his right to recover. This claim is based on the following portion of the charge:
“It is a general rule of law that if a person injured by the negligence of another is himself guilty of negligence contributing to his injury he cannot recover therefor. But this rule does not apply if the negligence of the one is known to the other and he does not then use reasonable care'and caution to avoid an injury, and in this case, even should you find the plaintiff to have been negligent at the time and place in question, he can recover in this case if you. further find that Mrs. Krohn, after seeing him, and being-aware of his presence on the highway and of the manner in which he was walking thereon, did not use care and caution to avoid injury to him.”
It is said in appellants’ brief:
“Here the court charges the jury that plaintiff could recover even though he was negligent at the time and place in question and although his negligence was concurrent with that of Mrs. Krohn.”
We think the expression “at the time and place in question” was not intended to convey and did not convey to the jury the thought or meaning defendants’ counsel attribute to it. In saying “at the time and place in question,” the court clearly meant on-the occasion of the accident. In other portions of the charge the law relative to subsequent negligence was clearly stated, and we are satisfied that the jury was not misled by the language of the court above quoted. As hereinbefore indicated, the proof justified submitting this case to the jury on the theory of subsequent negligence, and the appellants have failed to point out any prejudicial error in the charge applicable to this issue.
Another portion of the charge quoted in appellants’ brief is claimed to have been an erroneous statement of the law and prejudicial. Error was not assigned as to the part of the charge so quoted and for that reason it ought not to be reviewed; but, if such were not the condition of the record, we would not be disposed to hold there was such error in this portion of the charge as to adversely affect the rights of the defendants.
We have given due consideration to each phase of the record as presented by appellants, but find no just cause for setting aside the verdict and judgment. The case is affirmed, with costs to the appellee.
Fellows, Wiest, and Sharpe, JJ., concurred. Clark and McDonald, JJ., concurred in the result.
The late Chief Justice Flannigán did not sit.
The late Justice Bird took no part in this decision. | [
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] |
North, J.
The defendants entered into a contract with the plaintiff to sell him a lot in the city of Detroit on which a four-room house is located. The total purchase price was $2,500, of which $1,500 was paid at the execution of the contract. The balance was to be paid in monthly installments of $30 each. The first monthly installment due November 1, 1924, was paid; but thereafter the plaintiff refused to make any further payments. His explanation for declining to make these payments was that the vendors ‘ orally agreed with' him, at the time of entering into this contract, that by reason of this purchase he should have the household furniture then in the dwelling. This was denied by the defendants, and upon vacating the premises they took the household goods which were substantially of the value of $100.
In June, 1925, notice of forfeiture was served on the plaintiff. Thereafter summary proceedings were instituted before a circuit court commissioner and judgment was rendered against the plaintiff herein on the 13th of August, 1925. The commissioner found there was past due and unpaid on the contract $240. The- plaintiff herein did not appear before the circuit court commissioner. A writ of restitution was issued, and on the 24th of September, 1925, the defendants herein were restored to possession of the property. Thereafter the plaintiff herein filed his bill of complaint in which he seeks to have restored to him his rights under the contract. He offers to pay the balance of the purchase price and asks that the defendants be compelled to convey the property to him.
Plaintiff’s right to relief was originally based solely upon his claim that he was not served with the summons issued by the circuit court commissioner, but there was no merit in this contention. Later an amended bill was filed wherein he sought to charge the defendants with fraud and deceit in that they had neglected and refused to inform him of the meaning of the notice of forfeiture or of the consequences of the proceeding before the circuit court commissioner. The parties to this litigation are Belgians, and none of them speak the English language fluently, although the record shows that to some extent they are conversant with the same. A careful review* of the record discloses a total failure to establish any facts or circumstances from which a confidential relation between these parties might be inferred or such as would in any way obligate the defendants to deal with the plaintiff other than an entire stranger. There is no testimony tending to show that the defendants or either of them at any time attempted to mislead or deceive the plaintiff as to his rights incident to this property or that they in any way lulled him into a feeling of security which resulted in the loss of his property. Only one conclusion can be drawn from the record, which is, that because of his claim that he was entitled to the household goods which the defendants refused to deliver to him, the plaintiff arbitrarily and persistently refused to make the payments accruing under his contract of purchase, and, further, that he entirely ignored the notice served upon him and the subsequent process from the commissioner’s court. In the circuit court'every courtesy and opportunity was extended to the plaintiff to enable him to establish some ground of relief if possible. The trial judge was unable to find any ground upon which he would be justified in relieving the plaintiff from the unfortunate circumstances with which he finds himself surrounded, and a decree was entered denying the relief sought. The record discloses no justification for questioning the circuit court commissioner’s proceedings, nor has the plaintiff established any right to equitable relief. The case is controlled by Security Investment Co. v. Meister, 214 Mich. 337.
The decree entered in the circuit court is affirmed, with costs of this court.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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83
] |
Clark, J.
Plaintiff drove a horse and buggy in the daytime on a public highway of defendant township. The road was not much traveled. A witness spoke of it as a lane. While passing over a fill between two hills the horse became frightened at a pile of rubbish on the roadside and shied. The buggy slid down the side of the fill and tipped over and plaintiff was injured. The rubbish had been placed on the roadside the same day and it is not contended that defendant was in fault in that regard. The fill or traveled portion of the road was 10 to 11 feet wide and 3 to 4 feet high, having sides of sand sloping at about 45 degrees. There were no railings or barriers. There was some testimony that the surface of the road was uneven, but we find no negligence in that respect. Plaintiff had verdict and judgment, but, on decision of a reserved motion to direct a verdict, defendant had judgment. Plaintiff brings error.
Defendant’s negligence, if any, must consist in having the traveled way too narrow and in not having railings or barriers. Of that the trial judge said in ordering judgment:
“The record does not justify the inference that the fill at the point of the accident was not in reasonable repair, or that it was not in a condition reasonably safe and convenient for public travel;” citing Canfield v. Township of Gun Plains, 175 Mich. 379.
Language used in that case is decisive of this.:
“Whether ordinary care requires the construction of a railing by the sides of a steep embankment is frequently a question for the jury (Malloy v. Township of Walker, 77 Mich. 448 [6 L. R. A. 695]); but we are of opinion that the case at bar is not one in which the jury should be permitted to infer negligence from the absence of such barriers. Nor can such an inference be drawn from the fact that the fill was only from nine to eleven feet wide. In practically every municipality in the State such fills exist. To predicate liability upon a failure to guard, by railing, a fill of only three or four feet on a level highway would, we think, impose upon municipalities a duty greater than the statute imposes.”
No other question need be discussed. We find no error.
Judgment affirmed.
North, Fellows, Wiest, and McDonald, JJ., concurred. Sharpe, J., did not sit.
Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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Clark, J.
This is a proceeding to hold defendants Malloska and Atkinson in contempt for violation of decree entered in a cause reported in 238 Mich. 216. Said defendants and others, by distributing tickets at their oil stations to patrons and perhaps others, the monthly drawing of tickets and the giving of an automobile as a prize at such drawing, were held to be conducting a lottery and were enjoined. We quote from the decree:'
“And it is further ordered, adjudged, and decreed that defendants, and each of them, be and they are hereby perpetually restrained from distributing, selling, or giving away tickets or tokens of any character, evidencing right of the holder to participate in drawing an automobile, by chance, and that an injunction may issue out of and under the seal of this court SO' enjoining defendants.”
Defendants were found guilty and were given the alternative of fine or imprisonment, and they have appealed.
The finding of the trial judge that defendants participated in what was done since they were enjoined as aforesaid is supported by undisputed evidence and must be sustained. Whether what has been done since decree constitutes a lottery as a matter of law will not be discussed. The question here is: Have defendants violated the order and command of the court?
Since decree the practice has been to distribute in quantity to the oil stations small squares of paper on which are to be written the automobile license numbers of the cars of the patrons of the stations. The station attendant has not been ordered to write such numbers on the cards. But he is permitted to do it, and in some instances it has been so done. There is evidence of handing the card to the patron and of his writing his license number thereon. These tickets showing -the license numbers are preserved at the several stations, collected once a month, and taken to a central point where the winner of the prize, an automobile, is determined by chance, by drawing, or by lot. The scheme has been advertised. The purpose of .it is to increase the volume of business at the stations, and to increase profit. In substance and legal effect this is the same scheme the continuance of which was forbidden. At best it is a .mere subterfuge. It is contempt to employ a subterfuge to evade the decree of the court. 6 R. C. L. p. 503.
Affirmed, with costs to' plaintiffs.
North, Fellows, Wiest, McDonald, and Sharpe, JJ., concurred.
Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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] |
McDonald, J.
This bill was filed to set aside a certain lease in which the plaintiff and Manly D. Caughey, her husband, are the lessors and the defendants Michaels and Klosky are lessees. Plaintiff was the sole owner of a lot on the corner of Chene street and East Grand Boulevard in the city of Detroit, Michigan. Two adjoining lots were owned by her and her husband by the entireties. In the spring of 1924, they erected an eight-story apartment building on the three lots. The building contained several stores and offices in addition to 107 apartments. In that part of the building covering the corner lot, of which the plaintiff was the sole owner, is a drug store which was leased to the defendants Michaels and Klosky, doing business as the M-K Drug Company. This lease was executed in April, 1924. It was for a period of 10 years with a rental of $275 per month, plus 10% of all medical prescription business. The lease also provided that the lessees should have the exclusive laundry rights of the building. About June 1, 1925, the laundry rights were surrendered to the lessors in order that they might rent one of their vacant stores for laundry purposes. It is the contention of the defendants Michaels and Klosky that they were induced to give up the laundry rights in return for a new lease at lower rental and for a longer term. A new lease was made. It is dated June 29, 1925, but purports to have been executed and acknowledged ' on October 7, 1925. By the terms of this lease, the rent was reduced to $225 per month plus 10% of the medical prescription business, and the term was fixed at. 10 years with the privilege of renewal for an additional 10 years. This is the lease in suit. The plaintiff says that she was tricked into signing it by her husband and defendant Michaels; that she did not read the lease but -relied on the statement of Mr. Michaels that it was a transfer of the laundry rights; that she did not know that such a lease existed until after she and her husband had sold the apartment property to the Boulevard Development Corporation. They made the sale in April, 1927, and assigned to the purchaser all leases except the lease in question. Instead of assigning this one, they assigned the original lease. At the time they made the assignment, plaintiff’s husband knew of the second lease, but she says that she had no knowledge of it. Trouble arose when the purchaser attempted to collect rents from Michaels and Klosky under the original lease. They would not pay under that lease. The Boulevard Development Corporation then began suit for damages against the plaintiff and her husband. To avoid liability in that suit the plaintiff filed this bill to set aside the lease. On the hearing, the circuit judge dismissed the bill. The plaintiff has appealed.
The issue involves a question of fact relative to the execution of this lease by the plaintiff. She admits her signature, but says that she did not know she was signing a lease; that it was represented to her that the instrument was a release of the rights of defendants Michaels and Klosky in the laundry privileges of the building; that if she had known it was a lease she would not have signed it.
In his opinion the trial court said:
“The plaintiff is a woman of unusual intelligence and business experience. She and her husband have always worked harmoniously together in the accumulation of their property. Harmonious relations still exist, notwithstanding the fraud alleged to have been practiced on her by her husband in this transaction.”
Being a woman of unusual intelligence, it is difficult to understand how the plaintiff could have signed the instrument in question without learning that it was a lease. She did not read it, but if she had merely glanced at it she would have discovered that it was a lease. It is not claimed that anything was done to prevent her from reading it or looking it over. It was on a printed lease form with the word “lease” printed on the front and back in large type. She was familiar with forms of lease and it would seem that a woman of her business experience would have recognized this as such. But a decision in this case should not rest on mere probabilities. The evidence preponderates in favor of the defendants’ claim that she executed the lease with full knowledge of its contents.' It purports to have been signed in the presence of two1 witnesses one of whom as notary took the acknowledgment of the parties. These witnesses are in the banking business. Mr. Higgins who took the acknowledgment is manager of one of the branches of the People’s State Bank. He testified that he distinctly recollected having read aloud the lease in the plaintiff’s presence and having inquired if she knew what she was signing and if it was her free act and deed. The other witness was a Mr. Fisher, assistant manager of the same bank with which Mr. Higgins was connected. In his testimony, he was unable to recall the details of the transaction, but testified to the time, the place, and the fact of the execution of the lease in his presence. In the main, the testimony of the witnesses to the lease was supported by that of defendants Michaels and Klosky. Opposed thereto is the testimony of the plaintiff and her husband, Dr.. Caughey, both of whom deny that the instrument was signed in the presence of the witnesses Higgins and Fisher, or that it was signed at the time and place testified to by them. We do not attach much, if any, credit to the testimony of Dr. Caughey. If what he says be true, he voluntarily and against his own interest as well as that' of his wife conspired with Michaels to fraudulently obtain her signature to the lease. His willingness to perpetrate a wrong upon, his wife who trusted him with her business and with whom he was living in harmony, and his delay in confessing his fraud until it was to his financial interest to do so, does not commend him favorably as a witness. On the theory that he is telling the truth, it would be difficult to account for his conduct toward his wife. The record furnishes no reason for believing that it was necessary for him to resort to trickery to secure her signature to the lease. She had implicit confidence in him. They both were financially interested in the building. He looked after her interests. It was his judgment that in view of business conditions it was advisable to make a new lease more favorable to Michaels and Klosky. He expressed his willingness to sign such a lease, and, undoubtedly, his wife would also, have signed if he had advised her to do so. It is true that there are circumstances which might be weighed against either side of this controversy. But, in our judgment, the testimony of the two disinterested witnesses who claim that the lease was executed in their presence is entitled to much credit. Both of these witnesses occupy positions of trust. It is: hardly probable that they would deliberately commit the crime of perjury in order to help Michaels and Klosky establish this lease. There is nothing in the record that would justify us in finding that they did so. In view of their testimony, we are unable to say that the plaintiff has established her allegations of fraud by a preponderance of the evidence. The circuit judge correctly disposed of the issue. No other questions require discussion.
The decree of the trial court is affirmed, with costs to the defendants Michaels and Klosky.
Fead, C. J., and North, .Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
Plaintiff recovered a judgment in tort against defendants for assaulting and beating her. An execution issued and was levied upon two parcels of real estate in which defendants have an interest. Plaintiff then filed this bill in aid of execution. After hearing the proofs the chancellor denied plaintiff relief and dismissed her bill on the grounds that the two pieces of- real estate levied upon were owned by the defendants as. tenants by the entireties with their respective husbands.
Snyder Parcel. It appears that on November 25, 1918, the 80-acre parcel was conveyed to “Charles Snyder of Allegan county, and his wife, Kassie Snyder, of the same place, jointly and not as, tenants in common.” Plaintiff, contends that this conveyance made Kassie Snyder a joint tenant, and, as the interest of a joint tenant may be subject to execution, the levy was valid. The chancellor construed the conveyance as one creating a tenancy by the entireties, and we are inclined to agree with him. As, a rule the laity speaks of a tenancy by the entireties as a joint deed, and the record shows that Mr. and Mrs. Snyder understood that they had that kind of a deed. So far as the wording of the deed is concerned it appears to be controlled by Hoyt v. Winstanley, 221 Mich. 515. The conveyance involved in that case ran to “Jasper Winstanley. and Elizabeth J. Winstanley, his wife, as joint tenants.” It was held that this conveyance created a tenancy by the entireties. Inasmuch as this conveyance, was made séveral years before the judgment was rendered or the cause of action accrued, the chancellor was right in holding that the'levy was of no force on the Snyder premises. The decree as to defendant Snyder will- be affirmed, with costs of this court.
Van Duine Parcel. This wás a 30-acre tract, and, at the time the cause of this action accrued, was owned by Mrs. Van Duine subject to life estate of her mother in 10 acres. Thereafter and before judgment, conveyances were executed which placed the title in Mrs. Van Duine and her husband as tenants by the entireties. Upon the facts it will suffice to say that we are not satisfied that these conveyances were made pursuant to an agreement ■ with her husband before they were married some 14 years before; they were evidently made to defeat the satisfaction of plaintiff’s claim ; but we are satisfied that homestead rights had attached to them, and that they were worth in excess of homestead exemptions.
The trial court reached the conclusion that a bill in aid of execution was not maintainable because the action upon which the judgment was rendered was one in tort. Language in Hill v. Bowman, 35 Mich. 191, and in other cases where the precise question here involved was not before the court is relied upon to sustain this holding. But in the later case of Schaible v. Ardner, 98 Mich. 70, Mr. Justice McGrath, who wrote for the court, pointed out that the Hill Case was decided on its facts, called attention to other cases, and said:
“The construction of the word ‘creditors’ in Hill v. Bowman is a narrow one at best, and the language employed wholly overlooks the other terms, employed in the statute, and necessarily excludes them. It is certainly difficult to comprehend why the language ‘other persons’ having lawful suits, damages, or demands, should be disregarded. Similar statutes have been construed in other States, and a consensus of the decisions is given in the text of 8 Am. & Eng. Enc. Law, 750, where it is said:
“ ‘A creditor, in this connection, is not necessarily the holder of a debt merely, as that term is generally understood; for one having a legal right to damages capable of judicial enforcement is.a creditor, within the meaning of the statutes and law upon the subject of fraudulent conveyances.’
“The authorities cited — and they are numerous— support the text.
“In the present case defendant had a demand for the taking and conversion of property upon which suit had been commenced, and upon which judgment was afterwards obtained, and we think she is clearly within the protection of the statute.”
And in section 1 of uniform fraudulent conveyance act (Act No. 310, Pub. Acts 1919 [Comp. Laws Supp. 1922, § 12003 [1]), a creditor is defined as follows:
“ ‘Creditor’ is a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent.”
In Harnau v. Haight, 209 Mich. 604, and Morse v. Roach, 229 Mich. 538, this court sustained judgment creditors’ bills upon judgment in tort, growing out of automobile accidents, although the question here involved was not raised. Upon the authority of the Schaible Case the transfers of the Van Duine parcel will be set aside and plaintiff may proceed with her levy thereon subject to homestead rights. Plaintiff will recover against defendant Van Duine costs of both courts.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Wiest, J.
We here review proceedings to establish a highway in the county of Macomb. Petitioners for the writ, and herein styled defendants, own a farm of 82 acres in the township of Clinton in that county. By action of the board of county road commissioners a highway was proposed from the south county line through the townships of Warren, Erin, and Clinton to the city of Mt. Clemens. The proposed highway cuts through defendants’ farm to a width of 120 feet and a length of 2,103.10 feet, taking 5.69 acres of land, and, if opened, will require removal of defendants’ barn and placement of farm fences.’ The county road commissioners, not being able to purchase defendants’ land wanted for the highway, applied to the circuit court for the appointment of three court commissioners to determine the necessity for the highway, need of taking land of defendants and others therefor, and to fix the compensation. The court appointed three court commissioners, two of whom resided in the city of Mt. Clemens. The court commissioners heard proofs, determined the proposed highway necessary, approved the taking of defendants’ land for such purpose, and appraised the damages to be paid as compensation to defendants at the sum of $650. Defendants filed objections to the report of the court commissioners and opposed confirmation by the court, claiming the award inadequate, the highway not necessary, and that two of the court commissioners were disqualified by statute. Defendants, upon the hearings before the court commissioners and the court, contended that the 5.69 acres of their land, taken for the highway, were worth upward of $1,200 per acre, and that it would cost between $300 and $400 to move the barn, and $500 to place fences. The State highway department has assessed defendants on account of the proposed highway the sum of $8,117.31.
Section 13, Act No. 352, Pub. Acts 1925, relates to the appointment of court commissioners and provides:
“Said commissioners shall not be residents of the township in which the property sought to be taken is situated.”
The defendants’ farm is in Clinton township. The city of Mt. Clemens is wholly within Clinton township. Two of the court commissioners were residents of the city of Mt. Clemens. Were such commissioners disqualified? The answer should serve the purpose of the statute. Such purpose is apparent, and excludes neighbors. The proposed highway is to run to the city of Mt. Clemens, the home city of two' of the court commissioners. While the two commissioners were residents of the city, that city was within the township, occupying territory from which residents could not be selected. True, the city of Mt. Clemens is a municipal entity apart from the township entity, but the intent of the statute is to exclude residents within designated territorial limits, regardless of division for municipal purposes. The proposed super highway is to reach the city of Mt. Clemens and the interest therein sought to be avoided in the selection of court’ commissioners applies with equal force to residents of the city within the geographical limits of the township and residents of the township without the city. The two court commissioners, residents of the city of Mt. Clemens, were disqualified by the statute, and all proceedings before them were futile and their determinations null and void.
The damages awarded defendants by the court commissioners were inadequate and not within the range of any evidence. We consider this subject in order to avoid like error in case other court commissioners are appointed. The proceedings here involved appear to have been taken under the provisions of Act No. 283, Pub. Acts 1909, as amended by Act No. 191, Pub. Acts 1925.
The award made by the court commissioners cannot stand. Private property may not be taken by the public without just compensation. This applies with full force to highway proceedings.
Act No. 191, Pub. Acts 1925, permits court commissioners, in determining just compensation, to take into, consideration the benefits accruing to an owner by reason of the highway. If there is no special assessment, then the owner, if awarded his damages less his benefits, obtains just compensation, but, if awarded damages less his benefits, and there is also imposed a special assessment for benefits, which he must pay in full, then just compensation is not awarded, for in such case he is twice charged with benefits. Act No. 191 serves a lawful purpose, within constitutional 'limitations, only in case of no previous or subsequent assessment for benefits.
Section 18, Act No. 352, Pub. Acts 1925, takes care of the subject of just compensation in case of a previous or subsequent special assessment for benefits. We quote the applicable parts of such section:
* * * “The benefits accruing to owners of lands by reason of laying out, altering, widening or otherwise improving any highway or of changing the line thereof, shall be taken into consideration in determining the damages to be paid to any such owner as compensation for the taking of any of his property for any such highway purpose. In each such case, the commissioner or commissioners having the matter in dharge, or the court commissioners, as the case may be, shall state such fact and the amount deducted on account thereof in the determination, or report, as the case may be; and should any special assessment be thereafter made upon such lands on account of such improvement, the owner or owners thereof shall be credited on such special assessment with the sums so deducted for benefits as aforesaid. In like manner, the court commissioners, in considering benefits, shall give to owners of lands already specially assessed on account of the improvement for which the property is being taken, credit to the amount of such special assessment, as against any allowance for benefits, in their determination of damages to be paid as compensation for such taking.”
At the time the court commissioners acted in the case at bar a special assessment, amounting to $8,117.31, had been made. The commissioners evidently deducted the benefits from the damages but failed to state the amount so as to give defendants credit therefor on the special assessment. This resulted in deducting defendants’ benefits from their compensation and leaving as well the whole special assessment for benefits to stand. Such may not be done. The quoted statute means that benefits deducted from compensation shall, to the amount so deducted, reduce, the special assessment.
Defendants’ land, taken for the highway, was worth, according to the evidence, the sum of $6,828. This does not include the expense of moving a barn from the right of way and refencing. The court commissioners awarded compensation to defendants in the sum of $650. This was increased by the court to $850*, but, for the purposes of considering the action of the commissioners, we will not take the latter figure. The award of $650, deducted from $6,828, the value of the land taken, leaves $6,178, as the amount of the benefits fixed by the commissioners. While the report of the commissioners does not give the sum deducted for benefits, and what- we have said is not to be taken as conclusive, it is near enough, under the undisputed evidence, to illustrate the injustice of the award made.
Defendants’ damages, if reduced $6,178 on account of benefits, and if they must also pay the special assessment of $8,117.31, will result in having their land taken at the sum of $650 and that they are benefited by the highway to the extent of $14,295.31. Such a result is forbidden by the Constitution and the statutes. The court commissioners should have definitely determined and specified in their report the amount of the benefits considered by them in award ing compensation and thereby have afforded defendants, who were already specially assessed, credit to such amount upon the special assessment. If the law had been followed, then, instead of making defendants stand $14,295.81 for benefits, the $6,178, if deducted on account of benefits, could be deducted from the special assessment of $8,117.31, and would leave $1,939.31, to be paid in satisfaction of the special assessment. It was the statutory duty of the court commissioners, if they considered benefits in reduction of damages, to specifically set out in their report the amount thereof in order that the sums so deducted could be set against the special assessment. Under previous law the court commissioners could not consider benefits at all in -awarding compensation, and, under present law, while they may consider benefits, whatever sum they deduct on that account from damages suffered by the landowner must be stated in their report and thereby made available in reduction of a special assessment. Anything less than this would fall short of the requirement in the Constitution that just compensation be awarded, and recognized by the legislature in Act No. 352, Pub. Acts 1925.
Defendants claim that the proposed highway starts at the city of Detroit in Wayne county, and, therefore, is not a Macomb county highway but an intercounty road and wholly under the jurisdiction of the State highway department, and, therefore, the Macomb county road commissioners acted without jurisdiction and all proceedings herein are a nullity. Defendants did not seasonably raise such an objection to the proceedings and we must decline to go back of their entry into the contest and consider objections they might have raised had they appeared earlier.
For the reasons stated we hold the appointment of .the court commissioners void and all proceedings before them, inclusive of their determination, report, and confirmation thereof in the circuit, null and void. Defendants will recover costs.
Fellows, Clark, McDonald, and Potter, JJ., concurred with Wiest, J. | [
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Clark, J.
Plaintiff had decree on its bill to enforce a mechanic’s lien, but because the lien was not given priority over a mortgage of defendant Union Trust Company it has appealed.
The premises involved were owned by Louis W. Hartleb and Regina C. Hartleb. They conveyed to Bruce Knight. Knight mortgaged the premises to Society for Savings in the sum of $3,000. He also mortgaged the premises to the Hartlebs in the sum of $1,537.75, which mortgage contained the following:
“It is understood that this mortgage is subsequent to a first mortgage of $3,000 to the Society for Savings and to a mortgage .not exceeding $3,500 to be given to take the place of said Society for Savings mortgage.”
• The deed .and the two mortgages were duly recorded on August 22, 1922.
Plaintiff began furnishing materials to Knight on October 19, 1922, and continued to do so until January 6, 1923. On January 23, 1923, a mortgage in the sum of $3,600 to take the place of the Society for Savings mortgage was given by Knight to Union Trust Company and recorded January 27, 1923. This mortgage later was assigned to Metropolitan Life Insurance Company and was assigned back to Union Trust Company before the hearing. The Society for Savings mortgage was discharged. Plaintiff contends that, under section 14804, subd. 3, 3 Comp. Laws 1915, its lien is entitled to priority over the mortgage of January 23, 1923, because the mortgage was given and recorded subsequent to the commencement of building.
Defendant Union Trust Company, the only defendant to file brief here, contends, among other things, that—
“Where one supplying materials is put upon notice before the delivery of the same of the fact that there exists or is to be created a lien prior to his own, the rights of such lien claimant are prior to and superior over the rights of the persons supplying material.”
We think defendant is right. The lien attaches to the “interest of the owner” and “to the extent of the right, title and interest of such owner * * * at the time the work was commenced or materials were begun to be furnished” * * * Comp. Laws Supp. 1922, § 14796.
In Baker v. Mather, 25 Mich. 51, it was held, quoting syllabus:
“Everybody taking a conveyance of, or a lien upon, land, takes it with constructive notice of whatever appears in the conveyances which constitute his chain of title. A second mortgagee takes: subject to a prior unrecorded mortgage expressly referred to in the deed to his mortgagor and excepted therefrom.”
And, see, Houseman v. Gerken, 231 Mich. 253.
The recital in the recorded Hartleb mortgage gave constructive notice to plaintiff that the parties in interest had agreed that the first mortgage to Society for Savings was to be replaced by another mortgage for $3,500 which was to continue to be the first lien. Plaintiff’s lien is subject to the condition of the title of which it had notice. See Union Terminal Co. v. Turner Construction Co., 159 C. C. A. 585, 247 Fed. 727 (11 A. L. R. 880); Luce v. Stott Realty Co., 201 Mich. 587; 40 C. J. p. 288.
That in any event Union Trust Company is entitled to priority for having paid off incumbrance admittedly prior to plaintiff’s lien is a question unnecessary to decision. And the record does not state the amount so paid.
That plaintiff is entitled to priority with respect to $100 of the Union Trust Mortgage, the amount' by which it exceeds the sum stated in the Hartleb mortgage, is a point not made, and it is passed.
Decree affirmed, with costs to defendant Union Trust Company.
Fead, C. J., and North, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Potter, J.
Plaintiffs, as trustees of the Northwestern Leather Company, brought suit against the Duluth, South Shore & Atlantic Railway Company, defendant, to recover the value of certain leather alleged by plaintiffs to have been shipped to the Northwestern Leather Company at Boston from Sault Ste. Marie, Michigan. The leather was loaded by plaintiffs at their tannery in Sault Ste. Marie and receipted for by the defendant’s local agent. The bill of lading contained the language “Shipper’s load and count.”
Section 21 of the bill of lading act of August 29, 1916 (39 U. S. Stat. p. 541), provides, among other things:
“The carrier may also by inserting in the bill of lading the words ‘shipper’s weight, load, and count,’ or other words of like purport indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the nonreceipt or by the misdescription of the goods described in the bill of lading.”
In Louisiana State Rice Milling Co. v. Steamship Co., 34 I. C. C. 511, it is said:
“We do not think, however, that the ‘shipper’s load and count’ provision here in question is such a limitation upon carriers’ liability as is contemplated by the prohibitions of this amendment. It does not appear that_ this rule operates to limit the liability of the carrier for the full value of the property shipped but, in its application to a claim for loss because of alleged failure to deliver the whole amount transported, has the effect of placing the burden upon the shipper who loads on his private side track to prove that the amount specified was loaded and that a less amount was taken out of the car by the consignee; whereas in the case of a receipt not so qualified the burden is upon the carrier to prove that the amount specified in the bill of lading was either not in fact loaded, or was delivered, or otherwise to settle for the full value thereof.”
When the carrier receipts for goods with full knowl edge of the amount shipped it is estopped from denying the terms and conditions of its receipt. When the language “shipper’s load and count” is inserted in the bill of lading, the carrier is not estopped, because it has not made the count. The carrier is liable for the loss of any goods actually delivered to and accepted by it for carriage.
The court charged in relation to the notation on the bills of lading “shipper’s load and count:”
“The effect of that notation upon the bill of lading is that the railroad company does not guarantee and has not counted and does not agree that the number of bundles stated upon the bill of lading are there. It is a count of the shipper, and the railroad company is not bound by that count. * * * It is incumbent upon the plaintiff to prove, by a preponderance of the evidence, the amount of leather which was put into the car and the amount which was taken out of the car by the trucking company, acting as its agent. If the same amount was taken out that was put in, then,' of course, there would be no loss. In other words, if the plaintiff has not sustained the burden of showing that more was put in than was taken out, then it has not sustained the burden of proving its case.”
There was testimony supporting plaintiff’s right of action. The case was submitted to the jury on a fair-charge, and the verdict and judgment should be affirmed, with costs.
North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Fead, C. J., did not sit. | [
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] |
Wiest, J.
John Dennis owned an auto truck. The Sinclair Lumber & Fuel Company employed him and his truck steadily for 16 weeks in delivering coal and building material at an agreed compensation per ton of coal and load of material. Mr. Dennis, in returning to the lumber yard from making a delivery, was killed at a railroad crossing.' The department of labor and industry held that Dennis was an employee of the lumber company and awarded compensation to his widow. Defendants denied liability, claiming Dennis was an independent contractor, was not an employee, and was not killed in an accident arising out of and in the course of employment. We issued our writ of certiorari on the application of defendants. Plaintiff filed two motions to dismiss the writ. Our disposition of the case renders decision of the motions unnecessary.
This is not a pioneer case. We have many times considered the principal point involved, and, while not always in agreement, the majority opinions have fully settled the rule.
The Michigan workmen’s compensation statute applies to employer and employee in the sense of such relation at common law, and not at all to the relation of an independent contractor to a job or jobs. An abstract definition of what constitutes an independent contractor is useful in the test of whether the relation in a case is such or that of an employee, but is seldom decisive, for each case has its own facts and the facts call for applicable law.
Mr. Dennis was hired, with use of his truck, to deliver coal in retail quantities to customers of the lumber and fuel company. His every act was under direction and control of the company. The coal for delivery was selected by the company, weighed under its supervision, billed by the company, and delivered in each instance under its immediate direction, and, if not paid for before or at delivery, was brought back, and, if paid for on delivery, the money was brought to the company. The same was true of building material. Mr. Dennis worked steadily for the company for 16 weeks and was paid at weekly intervals an average of about $42. At the time he was injured he was returning to the yard from making k delivery of building material. Mr. Dennis was in the course of his employment in returning to the place of his employer, even though not at the time of the accident pursuing the most direct route; there being some evidence showing road conditions justifying his course and nothing to show he was about any private affair.
An apt case illustrative of the common-law distinction between an independent contractor and an employee, under circumstances similar to those in the case at bar, is Waters v. Pioneer Fuel Co., 52 Minn. 474 (55 N. W. 52, 38 Am. St. Rep. 564). In that case the owner of a team and running gear of a wagon applied for work and had work for about three months delivering coal, was paid 35 cents per ton for delivering and received his pay each week. He was not sure of business every day, could quit at will, loaded the coal and delivered as directed, collected the money for it, procured receipts showing delivery, and returned the money and receipts to' the company. In an action by a third person against the company to recover for injuries occasioned by his negligence, held that he was an employee and not an independent contractor.
This court has held that the test of the relationship is the right to control, whether in fact exercised or not. Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385 (Ann. Cas. 1918C, 664). Mr. Dennis served the lumber and fuel company, in accord with its direction as to each load, under its right to control his movements and command his services in carrying out its business requirements, and the company had a right to dispense with the same at will without liability. Mr. Dennis was an employee and not an independent contractor. VanSimaeys v. George R. Cook Co., 201 Mich. 540; Conrad v. Cummer-Diggins Co., 224 Mich. 414; Hector v. Plumbing & Heating Co., 226 Mich. 496. The rule is quite uniformly so. Burt v. Davis-Wood Lumber Co., 157 La. 111 (102 South. 87); Hillen v. Industrial Accident Com’n, 199 Cal. 577 (250 Pac. 570); Grace Construction Co. v. Fowler, 85 Ind. App. 263 (153 N. E. 819); Fancher v. Boston Excelsior Co., 235 N. Y. 272 (139 N. E. 265).
Counsel for defendants cite Norton v. Day Coal Co., 192 Iowa, 160 (180 N. W. 905), and claim it supports the position that plaintiff’s husband was an independent contractor. It does, but is not in line with our decisions.
The claimed incompetent testimony can all be stricken out and still leave ample proof supporting the findings of the commission. Such being the case, we will not spend time in determining whether it should have been excluded.
The award is affirmed, with costs to plaintiff.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fead, C. J.
Plaintiff had judgment in garnishment. The garnishee defendants bring error.
The affidavit in garnishment was filed April 14, 192'5. The disclosure, filed April 30, 1925, states, in substance, that on November 19, 1924, the garnishee defendants entered into a contract to purchase from the principal defendant its garage business, and goods and chattels belonging thereto, for $6,000. At that time they paid $2,500 to the defendant under a written agreement that, within 72 hours, the defendant, out of such payment, would pay all its debts which might be a lien upon the property, such payment being made for the express purpose of complying with the bulk sales act (Act No. 223, Pub. Acts 1905 [2 Comp. Laws 1915, §§ 6346-6348]) before completion of the purchase. Instead of paying its debts, the defendant attempted to compromise with some of the creditors, and actually made settlement with at least one. The garnishees also executed their promissory notes for $3,500 for the balance of the purchase price, and the notes were put in escrow to be delivered to the defendant when it should furnish evidence of the payment of its debts, with a sworn statement to comply with the bulk sales act, or should deliver a clear bill of sale. Under those conditions, the garnishees took and were holding possession of the property. The transaction was not completed, as the officers of the defendant did not pay the debts, but appropriated the money to their own use. The garnishees, in negotiating with the defendant, demanded the payment of all claims against the property, demanded a list of the creditors under oath, together with a statement that the debts had been paid, as a condition of its purchase, but the conditions had not been complied with and the notes were still in escrow. The garnishees claimed to hold possession of the goods as an incident to their negotiations for the purchase, and alleged that “in order to complete the said transaction,” they had filed a bill in chancery against the defendant and secured an injunction restraining it from taking possession of the promissory notes until the provision of the bulk sales act should be complied with, and—
“that such bill of complaint is in the nature of both a bill for specific performance and an injunction bill, and that the purpose thereof is to protect not only these garnishee defendants but also all creditors of the said business; and that all creditors ard amply protected, and, for realization of their claims, out of the transaction between these garnishees and the principal defendant herein, should intervene in the said chancery proceeding and prove the amount of their claims and secure their payment therein.”
Reference is made, as part of the disclosure, to the chancery file. The disclosure sums up the claims of the garnishee defendants as follows:
“In reiteration, therefore, these garnishees show to the court that their transaction for the purchase of the said business from the principal defendant herein has never been completed; that they do¡ not owe the principal defendant anything until performance of the conditions precedent by it, that is, compliance with the bulk sales act; that they do not hold the said goods and chattels, and possession of the said business, or have control thereof, as the property of the said principal defendant, but that they hold the same merely for the protection of the said property and for enforcement of the agreement of sale by the said principal defendant to those garnishees, and that for such reasons this garnishment proceeding is unwarranted and should be dismissed without prejudice to the plaintiff for otherwise securing its claim.”
On May 12, 1925, plaintiff filed a demand for the trial of the statutory issue. On November 27, 1926, plaintiff obtained judgment against the principal defendant in the sum of $2,812.60. On November 6, 1925, the garnishees obtained a pro confesso decree against the principal defendant in their chancery suit.
The decree recites the facts at length, finds that the defendant corporation was insolvent, that the directors acted in bad faith and fraudulently misappropriated the advance payment made by the garnishees. The decree affirms the agreement of purchase and salé made between the garnishees and the defendant, declares that the $3,500 notes are the property of the defendant corporation, appoints a receiver* for the principal defendant, orders the notes turned over to the receiver, dissolves the corporation, and orders the assets paid pro rata to the creditors who may present claims, provides for the presentation of claims, orders the defendant and its officers to deliver to the receiver all assets of the corporation, including $1,900 received from the garnishees on the purchase agreement, subrogates the garnishees to the rights of such creditors as they may have paid, and declares that the garnishee defendants—
“have good title to the business and assets of the said corporation in accordance with the inventory under the agreement of purchase, and that any and all creditors of the said corporation have no other or further cl aim a against the said plaintiffs or against the business and assets included in the said agreement of purchase by the plaintiffs (garnishee defendants herein).”
On June 28, 1926, plaintiff filed a motion for the entry of judgment against the garnishees upon their disclosure. July 6th the garnishees answered, denying liability, referring to the decree of November 6, 1925, and setting up some of its terms. The motion came on to be heard before Honorable Arthur Webster, circuit judge, and was denied “but without prejudice as to what might be shown upon a statutory issue.”
The record does not show that the garnishee defendants asked judgment in their favor. In their answer to the motion they merely moved that the motion be dismissed. No judgment seems to have been .entered on the motion. The trial of the statutory issue came on for hearing before the court without a jury on December 10, 1926, and resulted in a judgment for the plaintiff in the full amount of its claim. The defendants objected to the trial on the grounds that the disclosure showed they were not indebted to the principal defendant, that the denial of the motion by Judge Webster was res adjudicate, of the garnishment issue, and that the plaintiff had not taken proceedings to require a further disclosure or examination within ten days after the filing of disclosure. They present the same contentions here.
The decision on the plaintiff’s motion for judgment was a determination of no more than that the disclosure was not, of itself, sufficient to charge the garnishee defendants with liability. The denial of the motion “without prejudice as to what might be shown upon a statutory issue,” preserved to the plaintiff whatever remedy it would have had in the way of framing and trying a statutory issue had the motion not been made. A determination without prejudice preserves the other original rights of the party, except as they are circumscribed by conditions attached to the order. 34 C. J. p. 791. Here, the order itself preserved the right to trial of the statutory issue.
It was not necessary for the plaintiff to demand further disclosure nor to propound interrogatories, in order to have a statutory issue framed.
“It is true a disclosure not showing an indebtedness to a defendant or personal property held for him does not in and of itself authorize any judgment against the garnishee. Such a disclosure, however, is but a step in the framing of the statutory issue and such issue is open to a plaintiff without the filing of interrogatories or an examination before a judge or commissioner. Hobson v. Kelly, 87 Mich. 187.” Christian v. Wayne Circuit Judge, 219 Mich. 37.
In his findings of fact, the circuit judge held that the defendant had sold the property to the garnishees. This finding was warranted by the testimony. The sale had been entirely completed, by delivery of the property and of the consideration, except in the one respect of the condition that the defendant was to pay its debts within 72 hours. Upon the breach of that condition, the garnishees were confronted with the right, and necessity, of an election of procedure. They could have affirmed the sale or rescinded it. Failure to rescind within a reasonable time would result in affirmance. Uniform sales act (3 Comp. Laws 1915, §§ 11842, 11850, 11879, 11900). There was no attempt nor intent to rescind. On the contrary, the garnishees unequivocally demonstrated their position of affirmance, long before the garnishment proceedings were instituted, by commencing suit against the sellers and retaining possession of the goods, not by way of claim of lien to secure the purchase money advanced, but in pursuance of the purchase.
“No contract of sale valid as to creditors of the seller can be entered into unless the requirements of the bulk sales act are complied with.” Albright v. Stockhill, 208 Mich. 468.
There remains to be considered the effect of the chancery suit on the rights of plaintiff. The pleadings are not in the record and the character of the suit must be gathered from the decree. As the decree was taken pro confesso, it may be presumed to represent the garnishees’ theory of it. Counsel for garnishees claim the provisions of the decree declaring dissolution of the defendant corporation and distribution of its assets among its creditors were pursuant to 3 Comp. Laws 1915, §§ 13572-13602. A reading of these sections fails to disclose authority in a creditor to petition for the dissolution of a debtor corporation except in the one instance of a corporation whose charter has expired. Nor does it appear in the record that any of the notices or other proceedings provided by the dissolution statute were had to subject the creditors to the jurisdiction of the cause.
The character and purpose of the action, as disclosed by the decree, admit of no doubt. The suit was personal, not representative, the creditors were not made parties, no notice was given them, and the object of the action was to circumvent the provisions of the bulk sales act by completing the sale upon conditions which would secure to the garnishees full reimbursement for the $2,500 they had paid on the sale in violation of the bulk sales act and would leave only the balance unpaid on the sale to recovery by the general creditors. Counsel cite no authority and advance no reason for disturbing the fundamental principle that one, not made a party to the action in the manner provided by law and who is not estopped, is not bound by the judgment.
The case might well rest here. But the character of the contract at bar prompts the further observation that parties to a sale cannot be permitted, by the form of their agreement, to evade the operation of the bulk sales act. It is conceivable that, in a hurry, a contract may be made in good faith under which a buyer may take immediate possession of goods and the seller agree to pay his debts. But a conditional agreement of sale under which the buyer pays to the Seller the whole or part of the purchase price, accompanied by delivery of the goods to the buyer and upon condition that title should not pass until the seller had paid his debts, produces a situation so anomalous as to require diligent promptness and consistent conduct in repudiation of the sale by the buyer in order to' escape liability under the act.
The judgment of the circuit court is affirmed, with costs to plaintiff against the garnishee defendants.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
Plaintiff brought this action to recover for the conversion of a stock of goods and fixtures located in a store building owned by defendant Reed in the city of Dowagiac. Reed instituted attachment proceedings in justice’s court against plaintiff’s husband, and under the writ of attachment seized the entire stock and the fixtures and later sold them on execution. The two other defendants were the officers who executed the writs. Plaintiff claims to have paid for and to have been the owner of the entire business; a portion of the stock was purchased in South Bend, Indiana, and the bill of sale therefor ran to her ar,d her husband; he, however, had executed a release to her of all his interest under the bill of sale. Plaintiff recovered a substantial judgment which defendants here review.
At the close of plaintiff’s case and again at the close of all the testimony, defendants’ counsel moved for a directed verdict on the ground that the sale by the husband to the plaintiff was not made in compliance with, the bulk sales act (2 Comp. Laws 1915, § 6346 et seq.), and hence was void. Both motions were overruled and present the first subject discussed in the briefs. The trial judge committed no error in these rulings. Plaintiff’s testimony tended to show that she bought all the property involved and herself paid the entire consideration. She claims that the release executed by her husband to her was but evidence of a right she already had and which had been clouded by the insertion of both names in the bill of sale. The bill of sale, of course, tended to show that both she and her husband were owners of that portion of the stock covered by it. As between plaintiff and her husband, the release and the transfer of the property to her was valid. Creditors of her husband could in a proper proceeding invoke the bulk sales act, although her husband transferred to her but a half interest in the property. Watkins v. Angus, 241 Mich. 690. But the sale being valid as between plaintiff’s husband and herself, defendant Reed as a creditor of the husband must'be in a position to question it before he can invoke the provisions of the bulk sales act. This court has r ecognized both garnishment proceedings and proceedings in equity as appropriate for this purpose. See Coffey v. McGahey, 181 Mich. 225 (Ann. Cas. 1916C, 923), where the matter is discussed at length. In some States attachment proceedings are recognized as appropriate, but such proceedings have not been used in this State. If attachment proceedings are appropriate, a question we do not decide, it would require valid attachment proceedings, while here the attachment proceedings were invalid and the judgment rendered in them and under which the sale was made was a nullity. The writ of attachment was dated December 2, 1926; it was returnable December 13th. .It was not served on the defendant personally; substituted service was not made until the return day, December 13th. Whether the service is personal or substituted, the writ must be served at least six days before the return day; the judgment and the execution issued thereon were void; they did not defeat plaintiff’s right of recovery in this case. Tunningly v. Butcher, 106 Mich. 85; Grand Haven Military Club v. Mulholland, 170 Mich. 592. The judgment and execution being void, no proceedings in garnishment or in equity having been brought, it is difficult to perceive what right defendants had to seize the property of the plaintiff and sell it to satisfy an indebtedness of her husband. The trial judge submitted to the jury the question of whether the husband had transferred property to his wife to defraud creditors, and charged them that if he had done so she could not recover the value of the property so transferred. This was as favorable to defendants as they were entitled to upon the facts appearing in the record.
Defendants insist that they were refused permission to show what the property sold for on the execution sale, at public auction, and assign error thereon. Evidence of what the property was sold for at public auction is admissible on the question of value, and if defendants were refused the right to make such showing the case must be reversed and a new trial granted. Davis v. Zimmerman, 40 Mich. 24; Dyer v. Rosenthal, 45 Mich. 588; Hutchinson v. Foyer, 78 Mich. 337; Harmon v. Walker, 131 Mich. 540. But we do not think the record shows that defendants were refused permission to make such showing. When defendant Reed was on the stand, he testified that he bought the stock at the execution sale; an attempt to prove what he paid for it was met by the suggestion by the court that the record would be better evidence. Later the justice of the peace in control of the docket and papers was called by the defendant and the docket and all the papers in connection with the attachment were offered and received in evidence. Among the papers so offered, and it was also separately offered and received, was Exhibit D, the execution with the return of the officer indorsed thereon, which appears in the record and which shows that the property was sold at public auction for $450. The trial judge held, and properly so, as we have pointed out, that the attachment proceedings were invalid, but nowhere in the record was the attachment proceedings or any part of them withdrawn from the case or stricken out by the court. If defendants’ counsel did not make use of this return and press the value as fixed by a public auction upon the jury, they have only themselves to blame. The appraisal was likewise in evidence and could have been used by defendants’ counsel. It was, however, of little value, in view of the testimony of the appraiser that he took the prices from some one else and his concluding testimony:
“Q. Then the prices and the totals were not your judgment?
“A. No, sir.’’
In the absence of testimony showing that the stock was cared for in the interim and that prices did not fluctuate, it was not reversible error to refuse testimony as to what the stock sold for some two months later.
We do not agree with defendants’ counsel that the verdict was against the weight of the evidence. There being no reversible error on the record, the judgment will stand affirmed.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Fellows, J.
Albert Frederick, son of plaintiff by her first husband, when a little less than 19 years of age, was in the employ of defendant. On February 8, 1927, he met his death in an accident admitted to have arisen out of and in the course of his employment. Plaintiff made claim for compensation as a dependent and was awarded a sum for partial dependency. Here it is insisted that partial dependency was not established, and that, if established, the sum awarded is not the correct sum.
Plaintiff was the only witness sworn. Her testimony tends to establish the following facts: She had two sons by her first husband, deceased and his older brother, both of whom lived with her. She had one son, a lad of seven years, by her present husband. Her husband, earned $37 a week, the oldest son $33 a week and deceased $27.50. All of them turned over their pay checks to her and she ran the home, bought and paid for the food, rent and other household expenses, bought and paid for clothing and necessities for the men folk and allowed and gave them their spending money out of the common fund. Three relatives were temporarily boarding there at $10 a week, but she says they were hearty eaters; that she made nothing on them, and but charged them the cost of the food they consumed. The testimony, if believed, tended to establish that the contributions of deceased, his brother and their stepfather were entirely consumed in the maintenance of the establishment, although something (how much is not shown) was being paid on an automobile which was being purchased for the use of the family. The credit to be given this testimony was for the commission. .The commission found, and under the proof was justified in finding, partial dependency.
In fixing the amount, the commission followed the method approved by this court in Kostamo v. Christman Co., 214 Mich. 652, and LaLonde v. Jennison Hardware Co., 219 Mich. 194. The commission fixed the annual earnings of deceased at $1,430 (see section 5441, Comp. Laws Supp. 1922; Riley v. Mason Motor Co., 199 Mich. 233); it fixed the amount annually contributed to plaintiff’s support by decedent at $208. It is the use of this figure which is most vigorously assailed as furnishing ground for reversal. Using the last-named figure resulted in an allowance of $2,036 a week, which defendant insists is too high. We must, therefore, examine the method and theory adopted by the commission as the basis of this result. Without detailing plaintiff’s testimony, it showed that deceased was furnished annually for his living and expenses $834.50 from the money he turned over to his mother; this sum deducted from his earnings left $595.50 as the amount furnished by him to the household fund. The commission, however, instead of adopting the ,sum of $834.50 as his living expenses fixed an arbitrary figure of $1,014. Whether this was'error or not we need not decide, as it produced a result more favorable to defendant than would have resulted from the use of the figures appearing in the testimony. Deducting $1,014 from $1,430 results in $416. This sum the commission divided by two, producing the figure in controversy $208. Defendant insists that the commission should have used five as the divisor upon the theory that there are five members of the family supported out of a common fund. In this contention defendant is in error. The contention overlooks the fact that there were three producers of the fund and two nonproducers. Deceased, his older brother, and their stepfather each turned into the common fund more than he drew out of it. The surplus thus produced went to support and did support the two nonproducers, the mother and the young boy, the two who made no cash contributions but who depended on the other three members of the household for their support. To find the amount contributed to the mother, the commission quite properly used two for the divisor.
The award will stand affirmed.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Clark, J.
The bill for accounting, filed by plaintiff as receiver for the People’s Coal Mining Company, a Michigan corporation, was dismissed, and. he has appealed.
The corporation was organized to take over the assets, including a coal mine, of the Albion Coal Company, a Michigan corporation, to pay its debts and to provide funds to conduct its business of mining and selling coal. We quote from its articles:
“The purpose of this corporation is to take over the assets of the Albion Coal Company and to provide sufficient working capital to properly work this property. Some of the stock issued to George W. Schneider is issued to him as trustee for the purpose of taking care of all the liabilities of the Albion Coal Company.”
The three stockholders of the former company, Fritz, Love, and Schneider, organized the later company. The assets for the purposes of incorporation were valued at $200,000. The liabilities of the Albion Company to its creditors were nearly $147,000. The total value of the assets of the old company, turned over to the new concern', exceeded the total of its debts. This cannot well be questioned on the record. The plam as to creditors, tentative at least, made by the incorporators, was to pay some of them, to issue stock in the new company’ to others, and to escrow certain claims to await developments. To meet this plan it was: thought that stock of the new company of the par value of $79,000 would be required. The new company, People’s Coal Mining Company, was organized with a capital stock of $350,000. To meet the situation above stated, the plan devised by the incorporators and approved by the Michigan securities commission was, quoting from the opinion of the trial judge:
“Two hundred thousand ($200,000) dollars of the stock of the People’s Coal Mining Company was set aside to pay for the assets of the Albion Coal Company, which were transferred to the new corporation, and which at that time constituted its sole assets. Of this two hundred thousand ($200,000) dollars capital stock one hundred and twenty-one thousand ($121,000) dollars was escrowed with the State treasurer for the evident purpose of being used later to pay for the assets of the Albion Coal Company, or to satisfy its creditors, or if the commission so directed to be used for the benefit of the People’s Coal Mining Company... Seventy-nine .thousand ($79,000) dollars was supposed to be issued to George W. Schneider as a trustee for the specific purpose of paying or satisfying certain obligations of the Albion Coal Company. The proof shows, that there was a list of these obligations prepared at the time, but unfortunately it did not seem possible to produce the same and make it a part of the record in this case. The remaining one hundred and fifty thousand ($150,000) dollars of the capital stock of the People’s Coal Mining Company was to be placed on the market and the proceeds of the sale thereof used for the benefit of the People’s Coal Mining Company.”
Certificates for shares to the amount of $79,000 were not issued to Mr. Schneider. A certificate to the amount of $121,000 was placed with the State treasurer, and other stock without distinction as to class: ($79,000! and $150,000) was sold and proceeds went into the treasury of the company. Debts of the Albion Coal Company were paid out of the treasury from time to time and treasury funds were of course used for the corporate functions proper of People’s Coal Mining Company. As stated by the trial court, this commingling of the proceeds from sales of stock of both 'Classes and the indiscriminate use of the proceeds for both of said purposes is largely responsible for this litigation, and"this situation presents the principal question in the case.
A necessary legal consequence of what was here done was an obligation.on the'part'of the new company to pay creditors of the old. The later corporation was but a reincarnation' of the old. The stockholders were the same. ■ The main corporate purpose was to conduct the same business. All the assets of the former corporation were turned over as a basis for the issue of stock. The important changes were to increase capital stock to be sold to provide funds for the enterprise and to change the name. Under the statute the name might have been changed and the amount of capital stock and the number of shares increased by amendment of the articles. Comp. Laws Supp. 1922, § 9053 (48, 61). The law in the circumstances above set forth implies a stipulation on the part of the new company to pay the debts of the old concern. It is a settled rule of law: •
“The courts will not tolerate any species of transaction whereby the stockholders in the debtor corporation are permitted, by virtue of their stock ownership, to retain for themselves an interest in the corporate assets until the debts of the corporation shall have been paid.” 15 A. L. R. 1113.
See 15 A. L. R. 1112, note, where the cases are reviewed fully.
It was held in Grenell v. Detroit Gas Co., 112 Mich. 70, quoting from syllabus:
“A corporation which acquires the entire property of another corporation under an arrangement which has the effect of distributing the assets of the latter among its stockholders, to the exclusion of creditors, takes the property subject to the' payment of the debts of its vendor.” * * *
See, also, Wabash Railway Co. v. Marshall, 224 Mich. 593, and cases cited.
It does not appear that creditors whose claims have been satisfied had waived right to demand payment. The rights of such creditors could not be destroyed or impaired by an agreement between the incorporators of the company or by and between it and the securities commission. The incorporators and the- commission merely sought to provide for payment. When Mr. Schneider, acting for the new company, paid or satisfied demands of creditors of the old concern, he discharged, to the extent of the amount paid, an obligation imposed by law and therefore in this suit by receiver it is not important, so long as the funds were used to pay amounts due such creditors, whether the total amount so paid was more or less than the said $79,000.
The evidence as to the account of payments relates to a great number' of items and to many entries in books and to memoranda. It will profit no one to set forth such evidence or to set up the account, and to print it would be waste. No useful purpose will be served by a review of evidence relative to other defendants, who it is alleged were beneficiaries of some of the payments made by defendant Schneider of funds of the corporation. A study of the record does not persuade us that the decision of the trial judge should be disturbed. He filed a long and carefully prepared opinion which covered the case. We are in accord with his conclusions..
Decree affirmed, with costs to defendants.
Fellows, Wiest, McDonald, and Sharpe, JJ., concurred.- North, J., did not sit.
Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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WlEST, J.
November 80, 1926, plaintiffs filed with the board of supervisors of Hillsdale county a statement of claim for damages. The board rejected the claim; plaintiffs appealed to the circuit court; the court-sustained a motion in the nature of a demurrer to the statement and ordered dismissal of the cause. The liability of the county is pressed by writ of error.
Briefly, the plaintiffs’ statement of claim alleges:
They are the owners of considerable land in Hills-dale county, on which they have and use valuable water rights in the operation of a flour mill, feed mill, buckwheat mill, and hydro-electric plant. Alongside the flour mill, in a meandering easterly direction, runs a county road under the jurisdiction of the board of county road commissioners. Across the road from the mill is Mosher lake. Under the road from the lake to the mill ground ran a sluice or spillway.
In July, 1926, the board of county road commissioners undertook to repair the road and rebuild the bridge adjacent to the mill. The board and plaintiffs entered into a contract on July 24th by which the plaintiffs paid the board $250, and the latter agreed to rebuild the spillway, six feet by twelve feet, of reinforced concrete, the plaintiffs to construct their own gates or dashboards. The contract further provided that the plaintiffs
“hereby release the county of Hillsdale, Michigan, and the said party of the first part from all damages or claims of any kind or nature that may result from the constructing of said sluice or waterway to their property or water rights.”
The board proceeded with the work, and, in the operation, built a cofferdam in the lake, composed entirely of earth. When the bridge was completed and ready for use, the agents of the board opened the gates to let the earthen cofferdam wash through the sluice. The force of rushing water became too strong to withstand, and the whole construction of the sluice-way collapsed. The plaintiffs set up in detail many respects in which the construction was inadequate and negligent. It is charged that large quantities of earth washed into the tailrace of plaintiffs’ plant and produced heavy damage to the mill and its operations. Later, it is stated, in an effort to clear the debris and remove the broken pieces of concrete, the county workmen used dynamite so negligently as to cast large stones against the buildings of plaintiffs, broke windows and roofs and otherwise caused them great injury. It is further claimed that the county workmen broke down the levee and dykes erected for the purpose of impounding the waters of the Kalamazoo river. Plaintiffs claim damages of $20,000.
The sole question is whether the county of Hills-dale is liable for the acts and negligence of its officers, agents, and servants in such a situation. Consideration of this cause may properly begin with a reference to Gunther v. Cheboygan County Road Com’rs, 225 Mich. 619, in which this court, after an exhaustive review of the authorities, held that, in the construction, maintenance, and repair of highways, the county is discharging a governmental function, and, in the absence of statute, is immune from liability for its negligence or that of its agents in the carrying on of such work.
Bridges and culverts are in all respects a part of the road upon which they are located. Act No. 354, Pub. Acts 1925, § 1.
By statute, counties are declared responsible to travelers for injuries sustained on their highways which are negligently unsafe for travel. McCaul v. County of Kent, 231 Mich. 681. But the distinction between the statutory liability for failure to keep highways in safe condition for travel and the immunity from liability in the construction and maintenance of highways as a governmental function is specifically pointed out in Longstreet v. County of Mecosta, 228 Mich. 543, and must be kept in mind.
Plaintiffs cite a number of cases in which cities have been held liable for damages occasioned in. the construction of public works. The distinction between the liability of cities, which are voluntary municipal corporations, chartered upon request of the inhabitants, and that of counties, which are involuntarily established agencies and instrumentalities of the State, is pointed out in the Gunther Case. A considerable number of authorities in other States may also be found holding a county liable for injuries proceeding out of the negligent exercise of governmental functions. Upon such liability there is conflict. For a review of authorities holding divergent views, see notes to 39 L. R. A. 63; 21 L. R. A. (N. S.) 209. However, a discussion of the city cases and of the conflict in the county decisions would be profitless here because, as pointed out in the Gunther Case, the holding of non-liability of counties for governmental acts has been consistent throughout the existence of this court. It must be accepted as the settled law of the State.
It is also established by our decisions that the construction, maintenance, and repair of a highway are governmental functions. Therefore, it merely remains to inquire whether the acts complained of at bar were done in the building of a bridge, a part of the highway, and if not, what governmental or private function of the county they touched. Of course, if they were not done on county business at all, the defendant cannot be held liable for them.
Counsel for plaintiffs urge that the, doctrine of governmental function ceased its operation when the bridge was open to traffic, and that it does not apply to the subsequent acts of running the cofferdam earth through the sluice nor to the blasting with dynamite. Counsel, however, neglected to suggest to what private function of the county those subsequent acts were relevant.
Obviously, the removal of the cofferdam was a part of the construction of the highway, as the removal of scaffolding would be a part of the building of a house or the drawing of basting threads a part of tailoring a suit of clothes. A construction job cannot be said to be completed until it is in finished form, and the temporary construction work removed. Especially is this true of the cofferdam at bar because the sluice was built to permit the water to flow across the road and the construction was not complete until the water had been freed by the removal of the restraining work and was running under the bridge.
The removal of the wrecked cement work was necessary to the construction of the highway and was as much an integral part of the building of the bridge as would be the removal of boulders from the bridge site.
The purpose and the manner of opening the levee and dykes are not shown in the statement of claim. From the argument of counsel it would appear that they were done to release the water pressure during the construction of the work. The acts of removing the cofferdam and the cement and the opening of the levee were all related solely to the building of the bridge, a governmental function. They had no connection with any other county activity. The injury to plaintiffs occurred because the acts were done in a negligent manner. The situation presents just the sort of negligent acts from whose consequences the above decisions hold that the county is immune.
The contract between the plaintiffs and the board of county road commissioners can have no effect upon the liability of the county. Under Act No. 354, Pub. Acts 1925, § 27, the duty was" incumbent upon the plaintiffs to construct the bridge. In case of their failure to do so the duty devolved upon the board. There is no authority in the statute for such a contract. The board, by making it, cannot usurp the power of the legislature which alone has the authority to impose liability upon the county. Plaintiffs have undoubtedly suffered great damage through the carelessness of the board of road commissioners, but the law leaves them without remedy.
In our opinion, the statement of claim does not set up a cause of action against the defendant, the county of Hillsdale, and the order of the circuit court dismissing the cause is affirmed, with costs to defendant.
Fellows, Clark, McDonald, and Sharpe, JJ., concurred.
The late Chief Justice Flannigan and the late Justices Snow and Bird took no part in this decision. | [
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] |
North, J.
This suit was started by summons November 25, 1918. The writ was returned “not found” on January 31, 1919. It is agreed that it was not possible to get service on the defendant company in Michigan on the date suit was started nor at any time thereafter until January 6, 1921. The plaintiff caused an alias summons to be issued October 27, 1921, and service thereof was made on the defendant October 29, 1921. This alias was issued without a showing that in the exercise of reasonable diligence service could not have been obtained at an earlier date, as required by Circuit Court Rule No. 18, § 2. For this reason the service of this alias is conceded by the respective parties to have been irregular and ineffective. On December 2, 1921, the plaintiff’s attorney made an application to the circuit judge to have the issuance of another alias authorized. This application was supported by an affidavit showing it was not possible to obtain service on the defendant before January, 1921, and that the plaintiff’s attorney did not know such service could be obtained until October, T921, notwithstanding he made inquiries relative thereto at various times; and, further, that unless an alias was issued plaintiff’s right of action would be barred. On this showing the court ordered the issuance of an alias summons which was served December 5, 1921. The defendant entered a special appearance and moved to quash this alias writ. The motion was granted, and the plaintiff has appealed.
This suit is based upon a bill of lading and by its terms the period within which suit might be brought thereon expired March 21, 1919. In disposing of the motion to quash, the trial court held that the length ' of time which elapsed between the date of issuing the original summons (November 25, 1918) and the date of issuing the alias (December 3, 1921) was so great that, notwithstanding the showing made incident to the application for the alias, the continuity of the action was broken; and since the cause of action became barred in the interim, the issuance of the alias writ would not revive the suit. We are in accord with this holding. While the precise question has not been passed upon before by this court, the rule was rather definitely indicated in Gunn v. Gunn, 205 Mich. 198, wherein Justice Fellows held that an alias issued without proper basis was not void but should be “treated as a new writ;” but he there specially stated: “In the instant case the statute of limitations is not involved.” When the Gunn Case was decided, Circuit Court Rule No. 18, § 2, provided, as it still provides, that any time after the filing of the return of an unserved writ an alias or pluries writ may be issued “by leave of the court upon proper showing by affidavit satisfying the court that service could not, with reasonable diligence, have been made sooner.” But we are of the opinion that the provision in this rule for issuing an alias or pluries writ “at any time thereafter” was not designed to abolish or circumvent the limitations otherwise applicable to an- action; and that in cases such as this wherein there' is a clear break in the continuity of the action during which the statute of limitations becomes effective or the suit is otherwise barred, the right of action is terminated. The circumstances surrounding these parties did not deprive the plaintiff of an opportunity to have his rights adjudicated; but he was required to submit his case to- a court having jurisdiction of the defendant. This he did not choose to do; but instead allowed his right of action to become barred by the terms of the contract he had made with the defendant.
The judgment entered in the circuit court is affirmed, with costs of this court to the appellee.
Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.
The late Chief Justice Flannigan did not sit.
The late Justice Bird took no part in this decision. | [
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] |
North, J.
This is a suit for divorce. The defendant filed an answer but did not seek affirmative relief. A decree was granted to the plaintiff. The defendant has appealed, and he asks to have the decree reversed on the ground that a lawful marriage between the parties was not proven, and also that the plaintiff did not establish such a residence in this State as was necessary to give the court jurisdiction.
If there was a marriage between these parties it was contracted in the State of Georgia. The alleged causes of divorce occurred in Michigan. Under such circumstances it was necessary to prove that the party applying for the divorce had resided in this State for at least one year immediately preceding the time of filing the bill (3 Comp. Laws 1915, § 11400). On this phase of the case the plaintiff testified as follows:
“I have lived in Detroit since 1923. Prior to coming to Detroit I lived in Savannah, Georgia. In 1923 Mr. White sent for me and I came up here to Detroit and have been living here ever since. I don’t know whether we separated in 1923 or 1924.”
The plaintiff further testified that they lived together in Michigan 11 months and 15 days. She filed her bill 9 days after the separation. Thus if, as appears from the record, they lived together from the time plaintiff came to Michigan to the date of separation, she had been in this State less than a year when the bill was filed. The plaintiff’s attorney produced at the trial and offered in evidence a letter written by the defendant to the plaintiff and addressed to her at Savannah, Georgia. This letter was post-marked at New York, March 3, 1923, and was evidently received by the plaintiff while in Georgia. The bill of complaint was filed March 3, 1924. It is stated in counsel’s brief:
“We contend first as to residence, 11 months and 24 days is a legal year within the letter and spirit of the statute enough to confer jurisdiction on the court.”
The statute requires a full year’s residence and a less period does not give the court jurisdiction. Such a residence was not established by the plaintiff. Divorce proceedings are wholly statutory' and not within the original cognizance of courts of equity. Haines v. Haines, 35 Mich. 138. The provision of the statute as to residence is mandatory and it must be made to appear affirmatively; otherwise the court is without jurisdiction. Bradfield v. Bradfield, 154 Mich. 115 (129 Am. St. Rep. 468); Hoffman v. Hoffman, 155 Mich. 328.
The decree of the lower court is reversed, and one may be entered here dismissing the bill of complaint, without costs.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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McDonald, J.
The parties hereto were divorced on the 20th of September, 1923. The wife was awarded the custody of a minor daughter now five years of age. In June, 1925, the father, Joseph A. Lyson, filed a petition in the circuit court asking that the decree be modified and that the custody of the child be awarded to him. From the order entered denying the prayer of the petition, the defendant has appealed.
The petition was based on the claim that since the decree for divorce was granted the plaintiff, Victoria A. Lyson, by reason of over indulgence in intoxicating liquors and association with men of low repute, has become grossly immoral and thereby unfit to have the custody of the minor child.
A hearing was had on the issue presented by the petition, and, when the proofs were concluded, the circuit judge said:
“All I care about is this child. Ordinarily, the mother is to take care of a little girl. If the mother’s character is what she admits it to be, it is not a wholesome place for anybody. * * * If the mother can be clean enough, have enough regard for her body, she will not go and stay around with men, then marry them, live apart from them, then go down with them, as she has just now for a week. She has not much regard for virtue, she is not a very clean woman to take care of the child, but the man is working. Is there a better place? The. child should be with the mother if the mother would be decent. In this case, the mother admits she is not decent, whether it is just one man or a dozen men, but if she is telling the truth, attempts to be getting rid of the children before this,” etc.
In view of what the circuit- judge says about the conduct of the mother, in which he is amply supported by the evidence, she should not be allowed to retain the custody of the child. As to the father, the evidence shows that he is steadily employed at the Semet-Solvay Process Company in Detroit; that he has built a home and has engaged an elderly woman as housekeeper; that he is a man of good habits and is a fit person to have the custody of the child.
A decree will be entered in this court awarding its custody to the defendant, Joseph A. Lyson.
North, Fellows, Wiest, Clark, and Sharpe, JJ., concurred.
Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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Sharpe, J.
Plaintiff, the widow of Frank J. Greene, filed a claim for compensation under the workmen’s compensation act. On final hearing before the com mission, it was held that her claim was barred because not made within two years after the accident which resulted in her husband’s death.
This question was before us in the recent case of Hovey v. Construction Co., ante, 84, and it was there held that this statutory limitation did not apply to such a claim. It is but fair to the commission to say that language used in Millaley v. City of Grand Rapids, 231 Mich. 10, was capable of the construction they placed upon it. For this reason, the award must be vacated, with costs to plaintiff.
The defendant, however, also insists that the record discloses that plaintiff’s husband in his lifetime made a claim for and accepted compensation from others, in whose immediate employ he was at the time of the accident, for the injury which he received, and that he thereby elected not to take under the provisions of the act. This presented a question of fact which was not passed upon by the commission.
The record will be remanded for further action not inconsistent herewith.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Fellows, J.
Plaintiff was driving his car in an easterly direction near Denton in Wayne county. The undisputed testimony is that he was at all times on the right side of the road. He came in collision with a car driven by defendant going in a westerly direction. Defendant either attempted to pass a car standing or moving slowly, or his automobile slued onto the wrong side of the road in an attempt to stop it, the pavement being slippery. Plaintiff’s testimony was to the effect that he was driving at a lawful rate of speed, and that defendant’s car came out in front of him onto his side of the road but 25 feet away, too short a distance to stop. Defendant’s testimony tended to show that plaintiff was driving at an excessive rate and that he could and should have seen defendant’s car in time to stop.
While defendant made a motion for a directed verdict and for judgment non obstante veredicto and assigns error upon the refusal to grant these motions, in the main his insistence is that the verdict was against the weight of the evidence, that question having been raised by a motion for a new trial. Clearly plaintiff’s testimony made a case for the jury and defendant was not entitled to a directed verdict. Nor can we say on this record, having due regard for our duties as a reviewing court, that the verdict should be set aside as against the weight of the evidence. We, of course, do not on the law side of the court try cases de novo. The fact that we would reach a different conclusion than did the jury is not controlling. We should set aside a verdict, and only set one aside, when it is against the overwhelming weight of the evidence. We are not persuaded that this record justifies us in setting aside the verdict.
Two assignments of error on portions of the charge of the court should be considered. They are too lengthy to quote and it will be necessary to state their substance. The first relates to the portion of the charge which in substance instructed the jury that although plaintiff was operating his automobile at a speed in excess of the statutory provision then in force (Act No. 287, Pub. Acts 1925, § 21), such fact would not prevent recovery unless it contributed to the accident, and the second to that portion of the charge that stated that the law made allowance for lack of exercise of deliberate judgment by one suddenly placed in peril, and allowed the jury to consider plaintiffs sudden peril in determining the question of his contributory negligence. The first of these assignments of error is answered by Arvo v. Delta Hardware Co., 231 Mich. 488, and authorities there cited, and the second by Myler v. Bentley, 226 Mich. 384. In the Arvo Case we quoted with approval from 1 Cooley on Torts (3d Ed.), 269, the following:
“The principle is, that to deprive a party of redress because of his own illegal conduct, the illegality must have contributed to the injury.”
And in the Myler Case we said:
“Counsel for defendant stresses plaintiff’s failure to use the emergency brake, his turning quickly to the right, off the edge of the pavement, and his turning quickly back upon the road, as contributory negligence as a matter of law. But the law makes allowance for acts done in an emergency and in sudden peril and for lack of coolness of judgment incident thereto.”
The charge as a whole fairly submitted the case to the jury; it is not open to the objection that it was argumentative, and in the absence of specific requests it stated the rules and all the rules necessary to be applied to the case. We find no reversible error on the record before us, and
The judgment will be affirmed.
Fead, C. J., and North, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Kavanagh, C. J.
Leslie Kroll wras injured while operating a forklift truck during the course of his employment with Superior Sliding Door Frame Company. He commenced an action against Hyster Company, the manufacturer of the forklift truck. Louise Kroll, his wife, joined in the action seeking damages for loss of her husband’s services, society, advice and affection. Liberty Mutual Insurance Company, the workmen’s compensation insurer for Kroll’s employer, intervened.
The jury returned a verdict for Leslie Kroll in the amount of $175,000 and for Louise Kroll in the amount of $50,000. The judgment was satisfied.
A post-judgment hearing was held before the circuit court to apportion the costs of Leslie Kroll’s recovery between Kroll and the insurer and to determine what amount the insurer was to receive as reimbursement for compensation benefits it had paid and what amount was to be paid to Kroll.
Kroll’s attorney did most of the legal work in the lawsuit. The insurer’s attorney did some preparation and was present throughout the trial.
Section 827 of the Workmen’s Compensation Act of 1969, MCLA 418.827; MSA 17.237(827), sets forth the procedure to be followed in third-party workmen’s compensation actions. Subsections 5 and 6 prescribe how the recovery is to be divided.
"(5) * * * Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.
"(6) Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effecting recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. Expenses of recovery shall be apportioned by the court between the parties as their interests appear at the time of the recovery.”
The judgment entered by the circuit court directed that $32,337.39 be paid to the insurer to reimburse it for compensation benefits it had paid Kroll, with the proviso that the insurer shall pay Kroll’s lawyer one-third of said sum, i.e., $10,779.13, "as the proportionate share of the plaintiffs attorney fees”. The judgment provides that the amount received by Kroll as his share of the recovery is "a credit against” future compensation and medical expenses which the insurer is obliged to pay under the Workmen’s Compensation Act and that since the insurer "shall hereafter receive the benefit” of the amount paid Kroll, it shall pay Kroll, monthly, one-third of any compensation or medical or other expenses compensable under the Workmen’s Compensation Act which the insurer, but for the third-party recovery, would be obligated to pay until such time as the amount of the credit against future compensation and benefits has been consumed.
The Court of Appeals held that the circuit court erred in failing to award compensation to the attorney for the insurer and remanded this case to the circuit court for a hearing to determine the value of the services rendered by the insurer’s attorney. The Court of Appeals did not address the question whether the circuit court properly required the insurer to pay Kroll one-third of any compensation or other benefits the insurer would be obliged to pay but for the third-party recovery and resulting "advance payment”.
We affirm the Court of Appeals and additionally conclude that the circuit court erred in requiring the insurer to pay Kroll amounts in respect to attorney fees periodically as the insurer realizes the benefit of the advance payment resulting from the third-party recovery.
In Banoski v Moto-Crane Service, Inc, 35 Mich App 487; 192 NW2d 555 (1971), the majority, relying on Potter v Vetor, 355 Mich 328; 94 NW2d 832 (1959), held that the insurer had to pay its share of the plaintiffs attorney fees, but also held that the insurer was not entitled to reimbursement of its attorney fees because its attorney did not assist in preparing or trying the case. Justice Levin, who was on the panel in Banoski, dissented, saying that it was the trial court’s responsibility to determine what constitutes a reasonable expenditure for attorney fees and then divide that figure between the attorney for the insurer and the attorney for the employee. Justice Levin maintained that complete denial of any share to a party’s attorney would have only been supported by a showing that that attorney’s services were not necessary to the adequate representation of his client.
In the instant case the Court of Appeals panel adopted Justice Levin’s reasoning. We also find Justice Levin’s reasoning to be persuasive. On remand the circuit court shall determine what constitutes a reasonable expenditure for attorney fees for counsel for Kroll and counsel for the insurer and shall, as the statute provides, "divide” that amount among counsel for Kroll and counsel for the insurer.
Injured workmen who obtain third-party recoveries argue that the employer or his insurance carrier may obtain the benefit of the entire third-party recovery either in the form of reimbursement for benefits paid to the date of recovery or as an "advance payment” on account of any future compensation benefits and contend that the employer/insurer should accordingly pay the expenses of recovery allocable to the "advance payment”: In this case the circuit court accepted that argument in part by requiring the insurer to reimburse Kroll periodically, as benefits would have become due but for the advance payment, for one-third of such benefits in respect of "plaintiffs attorney fees”.
The statute provides that "[ejxpenses of recovery shall be apportioned by the court between the parties as their interests appear at the time of the recovery”. The "expenses of recovery” are "the reasonable expenditures, including attorney fees, incurred in effecting recovery”.
The third-party recovery is a benefit to the employer/insurer and to the injured employee. After deducting the expenses of recovery, the recovery first reimburses the employer/insurer for benefits already paid. The balance is paid to the employee — an immediate benefit to the employee. That balance is also treated as an advance payment by the employer on account of future compensation benefits — a potential benefit to the employer and his insurance carrier. Whether the employer/insurer in fact realizes a benefit depends on whether future compensation benefits are payable; recovery from disability, death, or termination of dependency status may result in termination of the employer/insurer’s obligation.
Since the amount paid to the injured employee (and the amount of the advance payment) are reduced by the expenses of recovery, in a sense the employee and the employer/insurer both, at the same time, "pay” the expenses of recovery.
We have considered the decisions of the Court of Appeals and of courts in other jurisdictions construing other statutes and have concluded that the expenses of recovery are to be apportioned, as our statute clearly provides, between the injured employee on the one hand and the employer/insurer on the other "as their interests appear at the time of the recovery” (emphasis supplied), i.e., without regard to whether future compensation benefits may or in fact do become payable.
We remand to the circuit court for determination of a reasonable attorney fee and for division of that amount between counsel representing the parties. The provision in the judgment ordering the insurer to pay Kroll periodically amounts in respect of the attorney fee allocable to future compensation benefits is deleted.
The insurer shall pay that portion of the ex penses of recovery which bears the same relationship to the total expenses as the amount of the reimbursement for benefits previously paid (before reduction on account of such portion) bears to the amount of the recovery (before reduction on account of such expenses).
Affirmed. No costs as neither party prevailed in full.
Levin, J., concurred with Kavanagh, C. J.
Fitzgerald, Lindemer, and Ryan, JJ., took no part in the decision of this case. | [
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Levin, J.
Plaintiff suffered an industrial injury when she fell on her back. She continued to work, experiencing increasing back pain, until laid off for economic reasons. More than a year later, after consulting a physician, she applied for worker’s disability compensation benefits.
The referee found her totally disabled and ordered that benefits be paid from the last day worked. The appeal board affirmed, and the Court of Appeals denied leave to appeal.
We agree that this case should be remanded for a further hearing and determination of the date of disability. Since plaintiff was laid off for economic reasons and did not consult a physician for over a year, the last day of work was not necessarily the date of disability.
My colleague predicates that conclusion on the provisions of the statute applicable to occupational disease or disability, which suggests that the conclusion depends on categorizing plaintiffs claim as an occupational disease or disability and that the result might be different if her claim were categorized as an industrial injury.
When the occupational disease and disablement chapter, 1937 PA 61, was added, it may have been thought, because of the long course of many occupational diseases and disablements, that explicit provisions were needed concerning the dates of disability and personal injury.
Disablement is defined in that chapter as the event of becoming disabled, which in turn is defined as "the state of being disabled from earning full wages at the work in which the employee was last subject to the conditions resulting in disability”.
The concept that entitlement to benefits depends on disablement from earning full wages is expressed in the occupational injury chapter in establishing the rate of benefits. Benefits are payable for general disability "[w]hile the incapacity for work resulting [from] the injury” is total or partial.
Whether plaintiffs incapacity is compensable as an occupational disease or disablement or as an occupational injury, she was not entitled to benefits until her condition incapacitated her for work.
Kavanagh, C. J., and Williams and Ryan, JJ., concurred with Levin, J.
We should not implicitly decide as a matter of law whether plaintiffs present disability is attributable to the fall, or is an aggravation of the injury suffered at that time, or constitutes an occupational disease.
The categorization may affect the time when the right to benefits accrues and the act under which they are to be computed, and consequently the rate and duration of benefits.
Compare Braxton v Chevrolet Grey Iron Foundry Division of General Motors Corp, 396 Mich 685; 242 NW2d 420 (1976), where plaintiff was injured in an industrial accident but the appeal board did not specifically find that the disability was due to that injury. We re manded for further hearing and findings, stating that an occupational disease can be the cause of the disability even though it is aggravated by an accident or by subsequent work conditions or by both.
1948 CL 417.1, 417.2; now MCLA 418.401, 418.411; MSA 17.237(401), 17.237(411).
These provisions are also made applicable to claims for occupational disease or disablement, MCLA 418.401-418.441; MSA 17.237(401)-17.237(441).
MCLA 418.351; MSA 17.237(351).
MCLA 418.361; MSA 17.237(361). | [
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Fead, C. J.
By bill and cross-bill for injunction, the partiés seek to have determined which of two groups was legally elected the board of directors for the year 1927 of the First Church' of Christ Scientist in Coloma, Michigan. The by-laws designated the date of the meeting for the election as January 6, 1927. Notice was given in church on the Sunday preceding. Later, because of a claimed epidemic of scarlet fever, the chairman of the board, after talking with five of the ‘other nine directors by telephone, ordered the meeting postponed until a date to be afterward set. Notice of postponement was given to all members of the church. On January 6, 1927, however, nine members and Mrs. Mary Bishop (a quorum is ten members) appeared at the church, found it locked, opened a meeting on the front steps under leadership of the vice-chairman of the board, adjourned to a near-by house and elected the defendants directors. The 1926 directors later called a meeting and elected a board on January 20, 1927, the members being the cross-defendants.
The by-laws of the church do not authorize the board of directors to postpone an election meeting. Moreover, the board did not act legally to that effect as the order of postponement was not authorized at a regularly assembled meeting of the board. 14A C. J. p. 84.
The by-laws of the church provide:
“The rules contained in Roberts’ Rules- of Order Revised shall govern the meetings of the church in all cases where they are not inconsistent with these bylaws.”
Roberts’ Rules of Order Revised, p. 122, state:
“A matter that is required by the by-laws to be at tended to at a specified time or meeting as the election of officers cannot, in advance, be postponed to another time or meeting, but when that specified time of meeting arrives the assembly may postpone it to an adjourned meeting.”
The election of the defendants on the board of directors was valid if Mrs. Bishop was a member qualified to vote.
At the December, 1926, meeting of the board of directors, the chairman presented written charges that Mrs. Bishop was disloyal, the board at once and without notice to the accused voted to sustain the charges, and, by written letter later, Mrs. Bishop was informed that the charges had been presented and sustained, that she was placed on probation for one year, and that “this disqualifies you from holding any church office or attending any church business meeting until again approved by the board.”
The disciplinary power of the board is stated in the by-laws:
“The board of directors shall take cognizance of any charges that may be made to them in writing and duly signed, against any member for unscientific conduct, and shall, in their official capacity, investigate the charges, and if in their judgment the same be proven, shall admonish said member, and in their discretion after said admonition, drop his or her name from membership in the church and due notice of such action shall be mailed to such person.” '
The accused is then given an opportunity to be heard before the congregation on application for restoration to membership.
The action of the board was irregular in that no investigation of the charges was made, nor admonition; of the member given before sentence. The sentence was without authority. It was not an expulsion from membership, and the by-laws give the board no power to restrict the voting rights of members. As Mrs. Bishop was not expelled from membership, she had a vote and counted on a quorum.
The decree dismissing plaintiff’s 'bill and declaring defendants the regularly elected board of directors of the church for 1927 is affirmed, with costs.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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North, J.
These cases arise out of the same circumstances and each presents the same question for determination. The plaintiffs are husband and wife; and the suit by Mrs. Fay Robinson was originally commenced November 25, 1922, against Scott C. Runnells and the regents of the University of Michigan. An order dismissing the case as to the regents of the University was affirmed by this court July 24, 1924. See Robinson v. Washtenaw Circuit Judge, 228 Mich. 225. The defendant Runnells filed a plea September 12, 1924, and the case was prsecipsed on that date as-ready for trial. In October, 1925, the clerk of the court informed plaintiff’s attorney that the clerk thought the attorney would be notified by the court when this case was placed on the call, but no such notice was given. After the case had been regularly on the calendar for seven terms of court between October 6, 1924, and March 1, 1926, it was dismissed on the latter date under the statute (3 Comp. Laws 1915, § 12574) as one in which no progress had been' made for more than a year. Between eight and nine months after this dismissal, the plaintiff moved to have the cases reinstated. This motion was denied; and the circuit judge also denied the plaintiff’s subsequent motion to vacate the order denying plaintiff’s motion for reinstatement. The plaintiff now seeks by man damus to compel the lower court to. reinstate the case.
It is urged in plaintiff’s behalf that unless the relief sought is granted she will be deprived of a trial of her case on its merits because she is now barred by the statute of limitations from beginning her suit anew. But it can hardly be said that courts should totally disregard a defendant’s right to assert the defense afforded by the statute of limitations, since it is only fair to presume that the lapse of time incident to plaintiff’s delay may have rendered it all the more important and even necessary that the defendant should have the protection of the statute. The opinion of the circuit judge filed in this case is in accordance with our former decisions as- is indicated by the following quotation therefrom:
“It is not reasonable to suppose that the defendant must keep his witnesses together and know where they are and expect any time the defendant, after the expiration of nearly six years, may be on the alert and ready to try his case. I think the statute was meant for an entirely different purpose. It was enacted for the purpose of helping litigants dispose of their cases promptly. It permitted the court upon its own initiative to clean up the deadwood which accumulates in circuit courts. * * * I am of the opinion that the case at bar belongs to the class of cases that should be dismissed where no progress has been made for more than a year. Surely in this case the plaintiff had ample time from October, 1924, until March, 1926, in which to try the case.”
See McGurrin Sales Agency v. Jackson Circuit Judge, 215 Mich. 214.
The record discloses full compliance with the statute in that the case was regularly placed on the calendars of the respective terms of the circuit court and finally listed with those actions in which no progress had been made for more than a year. A showing was made in plaintiff’s behalf that neither of her attorneys received a copy of the court calendar in which, this case was placed with those to be dismissed “for want of prosecution but in denying the application to have the cause reinstated, the trial judge must have found against this contention, and he expressly pointed out that no attention whatever was given to the plaintiffs case from March 1, 1926, when it was dismissed, .until November 27, 1926, the date of filing the motion to reinstate. It cannot be said the trial judge was guilty of an abuse of discretion in dismissing these cases, and the application for the writ must be denied in each instance, with costs.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Clark, J.
The city of Detroit instituted, under its charter, proceedings to condemn lands of plaintiffs. The jury found necessity and awarded $86,000, which award was duly confirmed by the court on May 15, 1924, and judgment entered. On May 23, 1925, the amount of compensation to be paid to plaintiffs was in the city treasury, secured to be paid. Plaintiffs having remained in possession of the premises after judgment and having collected rents, a dispute arose relative to the right of the city to set off against the total of the judgment of May 15, 1924, and interest thereon, the total of an account of rents received by. plaintiffs. Plaintiffs, on May 23, 1925, without prejudice, accepted the amount offered by the city, $83,674.28, and brought mandamus to have determined the matter in dispute. A judgment for plaintiffs is reviewed here by the city on certiorari.
In many jurisdictions, because of constitutional and statutory provisions, necessity is legislative. It is declared by the legislature or by some agency exercising delegated legislative power, and such declaration is followed in due course by an assessment of damages by a commission or jury of inquest. In a number of eases it has been held that, in assessing damages, an account of use and occupation by the landowner of his remaining in possession during the interval between the legislative declaration of taking and. the assessment of damages may be made and considered in fixing compensation. See 20 C. J. p. 806, 32 A. L. R. 102, note. In this State necessity is not a legislative question (State Constitution, art. 13, §§ 1, 2); Hendershott v. Rogers, 237 Mich. 338. In the case at bar, pursuant to the statute, under the Constitution, the jury by its award determined in one proceeding both necessity and compensation, on which final judgment was entered. Of the character of such a judgment it is said in Campau v. City of Detroit, 225 Mich. 519 (32 A. L. R. 91):
“When judgment was entered upon the award and no appeal taken, the rights and obligations of the parties were legally adjudicated and fully fixed. The amount of defendant’s indebtedness for the land it compelled plaintiff to sell was as finally and forcibly determined as by any other judgment. Its absolute right and title to the property only awaited payment of a judgment, based on just compensation for the property at the time it was rendered.”
And in that case it was held that the judgment entered upon the award draws interest at the statutory rate of 5% because it is a final judgment and because the statute provides that judgments draw interest.
According to the city charter the city was not entitled to possession of the land- until it had secured the money to be paid to plaintiffs> in satisfaction of judgment. Between the date of judgment, May 15, 1924, and May 23, 1925, plaintiffs remained in possession as of right. The city was not entitled to possession. No promise or obligation on the part of plaintiffs to pay the city for use and occupation during such period can be implied. No principle supports the demand' that plaintiffs account for such use and occupation. An account of rents or of use and occupation may not be set up against the final judgment on the theory of determining compensation. Compensation had been determined finally. The tribunal whose province it was to determine it had finished its labors. We are dealing with a final judgment, not with compensation. The statute does not provide for taking account of use and occupation after judgment. It is anomalous that one must bring an action to determine the amount due on a final judgment.
Plaintiffs were entitled to the amount of the judgment with interest thereon. The city, for the reasons stated, has no right to set off against the total of judgment and interest the claimed account for the use and occupation.
Moreover, as was said in Brown v. United States, 263 U. S. 78 (44 Sup. Ct. 92), this holding will have the “wholesome effect of stimulating the plaintiff in condemnation to prompt action,” which is desirable and equitable, in view of the uncertainties and embarrassments attending the possession of the landowner during the period between judgment and payment.
Judgment affirmed.
Fead, C. J., and North, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
McDonald, J.
This bill was filed for the construction of paragraphs six and eight of the will of John Sturgis, deceased.
Paragraph six is as follows:
“I give, devise and bequeath to my son, David Sturgis, all those parcels of land situate in the county of St. Joseph, and State of Michigan and described as follows: * * * to have and to hold the same for and during his natural life and to descend to his male children, if any shall survive him, if not, then to his female children, and should none of his children survive him, then to descend to the children of my sons, John, Amos and Thomas, first to the males and second to the females.”
Paragraph eight is as follows:
“I give, devise and bequeath to my sons William, John, George, David and Thomas all those certain parcels of land situate in .the county of St. Joseph, and State of Michigan, and described as follows: * * * The said real estate to my said sons for life and' to descend to their male heirs.”
The testator died in 1872. David, the son named as life tenant in the two paragraphs of the will, was then living. David had two sons, Frank Sturgis and James A. Sturgis, both of whom were living at the time of the testator’s death. Frank died in 1915, leaving as his heirs Anna Sturgis, his widow, and four children, who are the plaintiffs in this suit. David Sturgis, the life tenant, survived his son Frank, but died in 1922. James A. Sturgis, the other son, is still living and is the defendant in this suit. He claims to have succeeded to the entire estate as the sole surviving male' child of the life tenant. His claim is right if the estate vested at the termination of the life tenancy rather than on the death of the testator. If the estate vested on the death' of the testator, it became vested equally in Frank and James, who were then the sole male children of the life tenant, and on the death of Frank, in 1915, his interest passed to his heirs, the plaintiffs in this case. On the hearing, the circuit judge adopted the view that the estate did not vest until the termination of the life tenancy, and entered a decree affirming the defendant’s claim in the entire estate. From this decree the plaintiffs have appealed.
The particular language of the will which has given rise to this controversy is as follows:
“To have and to hold the same for and during his natural life and to descend to his male children if any shall survive him, if not, then to his female children, and should none of his children survive him, then to descend to the children of my sons John, Amos and Thomas, first to the males and second to the females.”
Counsel for the defendant argues that in using the words, “if any shall survive him,” the testator intended that only the male children of the life tenant living at the time of his death should share in the estate; that therefore it could not vest until the termination of the life tenancy for only in the happening of that event could it be determined who, if any, survived. There is much force in counsel’s argument. It finds support in many American jurisdictions, but it is not the construction adopted in this State. In Porter v. Porter, 50 Mich. 456, the will there under consideration gave the widow of the testator a life estate in all his property and provided for a disposition of the remainder as follows:
“On the decease of my wife, Eliza G. Porter, I desire my property to be divided equally between my surviving children,” etc.
In construing the effect of the word “surviving,” the court said:
“We think, on the rules of construction which have always prevailed in this State, that immediately on George F. Porter’s death, his children took vested estates subject only to the life estate and other burdens imposed by law or by the will.”
This construction was reaffirmed in the case of In re Patterson’s Estate, 227 Mich. 486, in which Mr. Justice Sharpe, speaking for the court, said:
“We have not overlooked the claim of counsel for the appellant that the use of the words ‘the surviving children’ is expressive of the intent that the remainder should pass to the children at the death of the widow. Similar language was used in Porter v. Porter, supra. We find no intent to apply any different rule of construction in the recent cases of In re Blodgett’s Estate, 197 Mich. 455; Hadley v. Henderson, 214 Mich. 157, and Rozell v. Rozell, 217 Mich. 324. The many cases cited by counsel from other jurisdictions have been considered. We think the rule has become one of property in this State, and that it should not be disturbed.”
Following, as we should, the ruling of this court in the case of In re Patterson’s Estate, and the cases therein cited, we hold that when John Sturgis, the testator, died, the remainder over after the termination of the life tenancy immediately vested in James A. Sturgis and Frank Sturgis in-equal shares, and that when Frank died his interest descended to his heirs, who are the plaintiffs in this suit. This construction applies to both paragraphs of the will.
The decree of the circuit court is reversed and one will be entered here in harmony with this opinion. The plaintiffs will have costs.
North, Fellows, Wiest, Clark, and Sharpe, JJ., concurred. Flannigan, C. J., did not sit.
The late Justice Bird took no part in this decision. | [
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Fellows, J.
Plaintiff Clark, brother of Mary C. Castner, individually and as administrator of her estate, files this bill to have determined the title to 62 acres of land located in Porter township, Van Burén county. Defendant Charles Wesley Castner was the husband of deceased. The other defendants are interested with plaintiff in the outcome of the case as heirs at law of deceased. Mr. and Mrs. Castner were married in 1883; they had no children. He inherited 37 acres of the land in question from his father and purchased an additional 3 acres. She bought on land contract from his brother, who inherited it from his father, the other 22 acres. Which one of them actually furnished the consideration for this purchase is left in doubt. The title to the 62 acres was placed in them as tenants by the entireties. Their married life was not entirely happy, and in 1921 Mrs. Castner filed a bill for divorce. Mr. Castner did not appear, and a decree was entered for divorce and awarding Mrs. Castner the entire 62 acres of land. Mr. Castner filed a petition accompanied by an answer asking that the default and decree be set aside. This was done. Thereafter the parties with the aid of counsel made an agreement by which Mr. Castner agreed to convey his interest in the 62 acres to her and she was to pay him in cash $2,100, and he was to have some of the household effects. The agreement referred to the pendency of the divorce case and contained the following clause:
“It is understood this is made in settlement of the property rights of the parties; that neither will make claim against the other in the future for any property, property rights or care, support and attention, and that neither will make claim against the other for expense money, alimony, temporary or permanent, in the prosecution of a complaint for divorce.”
Mr. Castner executed and delivered the deed to his wife and she paid him the $2,100, mortgaging the farm for this sum. Nothing further was done in the divorce case, and about two years later Mrs. Castner died intestate and without having disposed of the land. The sole question is whether Mr. Castner takes an interest in the land by descent as heir at law of his wife.
Mr. Castner was the lawful husband of Mrs. Castner when she died. As such lawful husband, there being no issue, one-half of the land descended to him (3 Comp. Laws 1915, § 11795) unless his right to take by descent was barred by the agreement of the parties. Antenuptial agreements made in contemplation of marriage, and postnuptial agreements made after actual separation or the institution of divorce proceedings have generally in this country been upheld and enforced. This court has been called upon more frequently to deal with antenuptial agreements, but post-nuptial agreements have not infrequently come before us. In Bechtel v. Barton, 147 Mich. 318, where the husband and wife separated and the wife had agreed that “said notes and cash as aforesaid shall be in full of all claims to and right for dower, support and of all claims of every name, nature and description,” it was held that the wife by the terms of the agreement was barred from participating in the estate of the deceased husband, although the case was finally made to turn on a question of fact, the court finding on the facts that the contract was unconscionable and unenforceable.
In the case of In re Berner’s Estate, 217 Mich. 612, a property settlement in contemplation of divorce proceedings was entered into and the wife released
“dower, thirds or allowances either statutory or arising at common law incident to the marriage relation, intending hereby to relieve the said first party entirely from all personal claims and demands and from any that may hereafter attach, arising in any manner from the relation of husband and wife.”
It was held that upon his death she was not entitled to administer his estate.
The agreement in Re Jeannot's Estate, 212 Mich. 442, released dower and also each released the other from “any claims which they have or may hereafter have in or to the property of the other,” and it was held that upon the death of the wife before the completion of the divorce proceedings, the husband was by the agreement barred from claiming an interest in her estate. In MeKelvey v. McKelvey, 112 Mich. 274, the word “dower” was not used in the agreement, but it was found by the court that the wife fully understood it to have been included in the settlement and her action for dower was held to have been barred.
The difficulty we encounter in the instant case is due to the fact that we find no apt language in the agreement barring the husband's interest as heir at law in case the wife died without having procured a divorce and without having disposed of the real estate by will or otherwise. An examination of the authorities is satisfying that by their weight it is established that such settlement agreements bar and only bar such rights in the estate of the deceased spouse as are expressly enumerated or are reasonably inferable from the language employed; some authorities say “clearly” inferable. In 18 C. J. p. 857, it is said:
“However, the rights of inheritance in the property of the husband or wife are not to be denied the surviving spouse on account of a separation agreement, unless the purpose to exclude him or her is expressed or clearly inferable, and then no further than the agreement clearly requires. A mere agreement between husband and wife in contemplation of divorce, by which specific articles of property are to be held by each separately, is no bar to the rights of the surviving husband, if no divorce 'has in fact been granted.”
The following cases sustain the text: Stewart v. Stewart, 7 Johns. Ch. (N. Y.) 229; Beard v. Beard, 22 W. Va. 130; Jones v. Lamont, 118 Cal. 499 (50 Pac. 766, 62 Am. St. Rep. 251); Smith v. Smith, 57 Ohio St. 27 (48 N. E. 28); Kistler v. Ernst, 60 Kan. 243 (56 Pac. 18); Williams v. Coffman, 31 Ky. Law Rep. 151 (101 S. W. 919); Newton v. Truesdale, 69 N. H. 634 (45 Atl. 646); Willis v. Jones, 42 Md. 422; Coatney v. Hopkins, 14 W. Va. 338; Jardine v. O’Hare, 122 N. Y. Supp. 463; Girard v. Girard, 29 N. M. 189 (221 Pac. 801, 35 A. L. R. 1493, and note).
In Stewart v. Stewart, supra, it was said by Chancellor Kent:
“I believe it has been the invariable practice, and that the uniform course of the precedents will show it, that when it is intended in a marriage settlement to exclude the right of the husband to her personal property, in the event of his. surviving her, and in default of her appointment, an express provision to that effect is inserted in the deed. * * * The settlement cannot be extended, by construction, beyond the just and fair import of its provisions; and_, clearly, the court cannot create a settlement, or a disposition of property, in violation of the jus mariti, when none has been made by the party.”
In Jones v. Lamont, supra, it was said:
“We do not think the courts should come to the aid of these contracts so as to deprive either the husband or wife of the property rights growing out of the married relation, except where there is a clear and unmistakable intention to barter away such rights. Even where ‘unhappy differences’ exist, it is quite consistent with the separation to so divide the property that in the event of death the statute of succession and descents shall control its devolution. That there was an intention in this case to defeat the_ law of inheritance, or to waive its beneficial provisions, we do not think can be ascertained from anything in the contract, or from' any extrinsic facts before us.”
In Willis v. Jones, supra, the Maryland court had before it substantially the same question we have here. In disposing of the case it was said:
“This agreement as well as these conveyances profess to deal only with specific articles and pieces of property, and we find in them nothing whatever evidencing an intention on the part of the husband to abandon his rights to all the property his wife might thereafter acquire and die possessed of, in case there was no divorce. To give this agreement that construction would require us to incorporate into it terms and language which the parties have not used, and this we cannot do. It is clearly no abandonment of the rights the husband now asserts.”
We have quoted the language of the settlement agreement upon which plaintiff and those interested with him must rely to sustain their claim. It clearly does not expressly bar Mr. Castner from an interest as heir at law in case Mrs. Castner died without obtaining a divorce or disposing of the property by will or otherwise. Nor are we persuaded that such a bar is reasonably inferable from the language employed. Nor are we persuaded that giving consideration to the surrounding circumstances, as plaintiff insists we should, would change the result. From a consideration of the terms of the agreement in connection with the surrounding circumstances it is reasonably inferable that the parties contemplated that Mrs. Castner would proceed with her divorce case and obtain a decree. With that in view, they evidently did not contemplate, at least they did not contract, for a condition which would or might arise if the divorce was not granted. They have failed to provide for such a condition and have failed to make a contract with reference to it. The court may not make a contract for them.
The decree will be affirmed, with costs. The costs should be paid by plaintiff and the defendants interested with him in defeating the claim of Charles Wesley Castner.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. - | [
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North, J.
This is a suit for damages as compensation for personal injury. The plaintiff’s declaration alleges that in 1923 he was employed in a store operated by the defendant company in the city of Detroit; that at the time of his injury he was 15 years and 4 months of age; that he was employed by the defendant without the latter complying with the provisions of chapter 100 of the Compiled Laws of 1915, as amended, the same being the statute which specifies the conditions under which a minor under 16 years of age may be employed. It is further alleged as the result of such illegal employment, and while in the discharge of the duties which were assigned to him by said defendant, the plaintiff sustained an injury whereby he lost the sight of his left eye and was caused great pain and suffering, and still experiences much pain and suffering. The defendant pleaded the general issue.
The proof discloses that the plaintiff worked under one Charles Barkman; that he was employed by Bark-man and was paid by him in cash at the end of each' week. It is the claim of the plaintiff that Bark-man, in his relations with the plaintiff, was acting as the agent of the defendant company, which is a Michigan corporation. The plaintiff sustained his injury while attempting to open a wire-bound box of oranges. •He severed the wire band by striking it with a hammer, and, as it broke, the wire struck him in the eye, resulting in the injury. The plaintiff had a verdict in the sum of $10,000.
There are 18 assignments of error. The first 11 for the most part are directly or indirectly concerned with the question as to • whether or not there was testimony to sustain the verdict incident to which the jury must have found that the store where plaintiff worked was owned by the defendant company; that Barkman was the agent of the defendant; and that the employment of the plaintiff was within the scope of Barkman’s agency. The evidence on the question of ownership of the store is not as strong as might be wished, but whatever testimony there is tending to sustain this claim is wholly undisputed; and if such ownership is contrary to the fact, it is rather strange that the defendant should have declined to offer any proof which in any way would help the jury to ascertain the truth on this issue. The name of the defendant company appeared on the front window of the place of business, and was on containers of spices and coffees which were kept for sale in the store. The plaintiff had worked there about three months before his injury, and he testified that Barkman and he were the only persons who worked in the store; that Barkman was the store manager and hired plaintiff to work for the C. F. Smith Company. The defendant objected to plaintiff’s testimony that Barkman was the store manager, but we can see no valid objection to this witness testifying as to his own observation and knowledge as to who was managing and controlling the operation of this store; and if from the rather meagre but undisputed evidence on that question the jury found that C. F. Smith & Company owned the store,- the inference would follow that in discharging his duties as a manager Barkman was acting for C. F. Smith & Company; and the further fact that the plaintiff had been employed in this store for three months at the time of his injury surely raises a rather potent presumption that he was so employed with the knowledge and approval of the proprietor or its agents. Obviously the defendant could have met this showing if it was contrary to the fact, notwithstanding its claim that Barkman could not be produced as a witness. Barkman’s presence was by no means indispensable for this purpose. Defendant’s officers and agents were presumably available as witnesses; and even its records doubtless could have been used to show to whom the defendant had sold its goods which were handled in this store, if it was not true that Barkman was selling them there as defendant’s agent and manager. Failure to produce evidence within a party’s control raises the presumption that, if produced, it would operate against him; and every intendment will be in favor of the opposite party. Cole v. Railway Co., 81 Mich. 156; Griggs v. Railway Co., 196 Mich. 258. The trial court would not have been justified in overlooking the proven facts and circumstances which remained uncontradicted and tended to sustain the plaintiff’s claim; nor can we do so on the record here presented. There was tangible proof on each of these issues. They were properly submitted to the jury, and the defendant is bound by the verdict. Incident to the foregoing assignments of error, complaint is made about the order of proof, but this is a matter which was within the reasonable discretion of the trial court and the record in this case does not show any abuse of such discretion. In re Bradley’s Estate, 223 Mich. 312. Error is also assigned on rulings of the trial court relative to the admissibility of certain items of testimony. Most of these assignments are based upon the erroneous assumption that there was no proof of Barkman’s agency, and therefore are not tenable. We have given each of these alleged errors consideration and find they do not constitute ground of reversible error. 3 Comp. Laws 1915, § 14565.
Assignments of error 12 to 17, inclusive, relate to alleged irregularities in the charge of the court to the jury. It is asserted by the appellant that there was prejudicial error particularly in that portion of the charge wherein the court submitted to the jury the question of damages for “deformity and humiliation” both for the period prior to the trial and “for what might occur for long years ahead, or such time as you are satisfied the boy will live, based on the proofs in the case.” The claim is that there was neither an allegation nor proof of “humiliation,” and that it allowed “the jury to go outside of the testimony and speculate on the longevity of plaintiff.” The ad damnum clause of the declaration covers pain and suffering and permanent loss of sight; and if it can be said to be insufficient to include damage for the pain of mind that comes from humiliation, it can be amended in this court to conform to the proofs. Atkinson v. Akin, 197 Mich. 289. There was ample testimony to justify submitting to the jury the question as to whether plaintiff’s injury was permanent in character; and both deformity and humiliation might well be found from such testimony as the following given by the plaintiff:
“The eyelid of the left eye seems to be drooping all the time. It will not stay open all the way. It seems to have lost its strength.”
' He testified that since his injury he wears glasses to' relieve the nerves; that he has frequent headaches; and that he does not see as clearly as he used to out of the good eye. The question as to plaintiff’s expectancy of life was not left as a matter of speculation for the jury, as urged in the appellant’s brief. The charge expressly directed them to base their determination “on the proofs in the case.” The record contains the testimony that the plaintiff was a strong, healthy boy before the accident; his age was proven; and both he and his parents testified before the jury, thus affording opportunity to observe their physical condition. It cannot be said there was no evidence in this record bearing upon the question of plaintiff’s longevity.
Complaint is made relative to the failure of the trial judge to definitely charge the jury as to the method of computing the present worth of damages awarded for future pain, suffering, or humiliation. Without quoting this part of the charge, it may be stated that the jury was instructed to reduce to present worth “based on five per cent.” whatever amount was awarded as damages for future pain, suffering, or humiliation; but the method of so doing was not staffed, as should have been done under the settled law. of this State. In Denman v. Johnston, 85 Mich. 387, Chief Justice Champlin said that computing present worth presents problems -“which the ordinary jury without special instructions as to the method of ascertaining them are hardly competent to grapple with.” See, also, O’Brien v. Loeb, 229 Mich. 405. The plaintiff sustained his injuries in 1923, and the final adjudication of his rights ought not to be further delayed. We are of the opinion that a fair and more practical administration of justice in this case will be accomplished if the option is extended to the plaintiff to file a remittitur of damages in the amount of $2,000 rather than to subject him to the delay and expense of further litigation. We are satisfied that such a reduction of damages will fully protect the rights of the defendant, especially since the jury which fixed the amount of damages was instructed to apply the rule of reducing to present worth, and presumably in consequence thereof returned a verdict for a lesser amount than it would otherwise have done.
There are other assignments of error relating to remarks of plaintiff’s counsel, which are claimed to have been prejudicial; and also the contention is made that the declaration is one for the enforcement of a penalty for the nonobservance of the statute rather than one for the recovery of damages for personal injury. There is no merit in either one of these contentions. Error is also assigned on the ground that the damages awarded were excessive. The amount of the verdict, when reduced as hereinbefore specified, cannot be held to be excessive as a matter of law. If, within 30 days after filing this opinion, the plaintiff will remit the judgment down to $8,000, it will be affirmed in that amount, but without costs; otherwise a new trial will be granted, with costs to appellant.-
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Sharpe, J.
The question presented in Hawkins v. Ermatinger, 211 Mich. 578, is again before us. In that case the judgment of the trial court, based on a holding that, under section 4825, 1 Comp. Laws 1915, recovery might be had against the owner of a motor vehicle, when negligently driven by an immediate member of his family, was affirmed by an equal division of this court. The law is again attacked as unconstitutional.
When such a claim is made, what is the test to be applied by a court? This question received thoughtful consideration in the early case of Sears v. Cottrell, 5 Mich. 251. That decision has been cited and quoted from more frequently than any other in our official Reports, and always with- approval. It may be read in its entirety with much profit. The quotations herein are taken from it except as otherwise indicated.
We have no right to' consider whether, had we been members of the legislature, we would have favored its enactment, nor “seek for some hidden or abstruse meaning in one or more clauses of the Constitution, to annul a law.” If we do, so, we will “encroach on the power of the legislature, and make the Constitution instead of construing it,” and thereby- “declare what the Constitution should be — not what it is. The tendency of courts at the present d'ay, we think, is too. much in that direction.” Neither should we consider whether this law is in harmony with the rules of the common law.
“There is no such limit to legislative power. The legislature may alter or repeal the common law. It may create new- offenses, enlarge the scope of civil remedies, and fasten responsibility for injuries upon persons against whom the common law gives no remedy.” Bertholf v. O’Reilly, 74 N. Y. 509 (30 Am. Rep. 323), quoted approvingly in Rhodes v. Sperry & Hutchinson Co., 193 N. Y. 223 (85 N. E. 1097, 34 L. R. A. [N. S.] 1143, 127 Am. St. Rep. 945).
“A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law can not be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will * * * of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.” Munn v. Illinois, 94 U. S. 113, 134, quoted approvingly in Second Employers’ Liability Cases, 223 U. S. 1, 50 (32 Sup. Ct. 169, 38 L. R. A. [N. S.] 44).
The distinction between the provisions of the Constitution of the United States and our State Constitution must not be lost sight of. Under the former, “a power not conferred by the express terms of the instrument, or by necessary implication, cannot be exercised.” “The purpose and object of a State Con stitution are not to make specific grants of legislative power, but to limit that power where it would otherwise be general or unlimited.” “In the one case, therefore, the inquiry is: Has the power in question been granted? in the other: Has it been prohibited?” If “not prohibited by the express words of the Constitution, or by necessary implication,” it “cannot be declared void as a violation of that instrument.” The true test, then, seems to be, that, to declare a statute unconstitutional, “we should be able to lay our finger on the part of the Constitution violated, and that the infraction should be clear, and free from a reasonable, doubt.” Tyler v. People, 8 Mich. 320, 333. See, also Moore v. Harrison, 224 Mich. 512, 515.
In Blodgett v. Holden, U. S. Adv. Ops. 1927, 28, p. 67 (48 Sup. Ct. 105), Mr. Justice Holmes said:
“Although research has shown and practice has established the futility of the charge that it was a usurpation when this court undertook to declare an act of congress unconstitutional, I suppose that we all agree that to do so is the gravest and most delicate duty that this court is called on to perform. Upon this, among other considerations, the rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.”
No attempt is made by counsel for the appellant to point out wherein the Constitution prohibits the enactment of such a law. It cannot be said to impair the obligation of contracts, nor can it be said to deprive the owner of liberty or property without due process of law. It interferes with the use of property by a restriction imposed thereon for the protection and safety of the public.
“It is not disputed that the State may regulate the use of private property, when the health, morals, or welfare of the public demands it. Such laws have' their origin in necessity.” People v. Smith, 108 Mich. 527 (32 L. R. A. 853, 62 Am. St. Rep. 715).
“It is a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.” Commonwealth v. Alger, 7 Cush. (Mass.) 53, as quoted in 211 Mich. 586.
It is urged, however, that the provisions of the act are arbitrary and oppressive. . This law was enacted in the exercise of the police power.
“It is elementary that all property is held subject to the general police power to regulate and control its use so as to secure the general’ safety.” Peninsular Stove Co. v. Burton, 220 Mich. 284, 286.
Such power is vested in the legislature. It has frequently been said that this power is “incapable of any exact definition or limitation, because none can foresee the ever-changing conditions which may call for its exercise.” 6 R. C. L. p. 184. It has been said that laws touching the regulation of morals, manners, or property- are all enacted as experiments to fit conditions of time and place. The automobile .is with us. There are few homes in which one may not be found. Stress is laid upon our holding that “an automobile is not a dangerous instrumentality.” Brinkman v. Zuckerman, 192 Mich. 624. But in Stapleton v. Brewing Co., 198 Mich. 170, 175 (L. R. A. 1918A, 916), it was said that it may not be so classed “when intelligently managed.” One has but to peruse the columns of the daily press, or travel upon our streets or highways, or even to read our recent opinions, to note that the safety of pedestrians or persons riding in vehicles is at all times endangered by reckless driving, and in such collisions the one exer cising due care usually receives the greater injury. It is true that a standing automobile is not a dangerous instrumentality, but the moment it begins to move, unless in the hands of a careful person, it certainly becomes such. How may such carelessness be controlled? We have criminal laws seeking to do so. Drivers are required to be licensed. That these laws do not prevent serious accidents, often resulting in death, is apparent. The punishment, criminally, of the one who has violated the law in no way recompenses the other for the injury sustained. There has been agitation looking to a law requiring all owners to carry liability insurance. The owner of a car who does not is today carrying such insurance himself when he is driving it or it is being driven by some person-employed by him. But, when driven by his 14-year-cld son or daughter, the person injured has no protection whatever except under this statute. Is it “arbitrary or oppressive” to require a father, who permits his minor child to drive his car, to compensate a neighbor for damages due to his or her recklessness in doing so ? Is it not more so to hold a law invalid which so provides? It seems safe to say that most owners who are financially responsible carry insurance which protects them against liability under' this act. That the policy is so written imposes no liability on the insurance company if the act is invalid. The insurer may make any defense that the insured could make.
Daugherty v. Thomas, 174 Mich. 371 (45 L. R. A. [N. S.] 699, Ann. Cas. 1915A, 1163), is again relied on as decisive of this case. If the statute there considered was similar to that before us, this contention' would have force. The gist of that decision- is thus stated by Mr. Justice Stone:
“To hold subdivision 3 of section 10! constitutional is to 'hold a party absolutely liable for the negligent conduct of another, a mere stranger or a wilful tres passer, no matter how careful or free from negligence he himself has been.”
Is there any provision in the statute we are here considering under which an owner may be held liable for the negligent conduct of “a mere stranger or a wilful trespasser”? Can the immediate members of a person’s family be so designated?
The Daugherty Case was decided in 1913. This statute was enacted in 1915. It is apparent that the purpose of the legislature was to so change the liability of an owner as to relieve it of the objectionable features in the former law.
The section of the motor vehicle law here involved was amended by Act No. 56, Pub. Acts 1927, § 29. It now provides:
“The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge. It shall be presumed that such motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of said injury by his or her father, mother, brother, sister, son, daughter, or other immediate member of the family.”
Under it the owner is liable only if the vehicle be driven “with his or her express or implied consent or knowledge,” but such consent and knowledge will be presumed if it be driven by an immediate member of the family.
It is difficult to perceive how this amendment affords any real protection to the owner. Under Act No. 33, Pub. Acts 1909 (3 Comp. Laws 1915, § 15431), “Every person who takes or uses without authority” a motor vehicle is subject to a fine or imprisonment. Should a member of the owner’s family use the car and the defense be made, under the amendment above quoted, that it was without’ the owner’s consent or knowledge, the proof offered to maintain such defense, if sufficient to do so, would render the person using the car guilty under Act No. 33. The owner, when such a claim is made, will therefore be placed in a position where he must admit liability, if negligence be proven, or by his proof establish facts sufficient to sustain the_ criminal prosecution.
In passing upon the extent to which the police power may be exercised by the legislature of a State, the Supreme Court of the United States, in Van Oster v. Kansas, 272 U. S. 465, 467 (47 Sup. Ct. 133, 47 A. L. R. 1044), said:
“It is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it. Much of the jurisdiction in admiralty, so much of the statute and common law of liens as enables a mere bailee to subject the bailed property to a lien, the power of a vendor of chattels in possession to sell and convey good title to a stranger, are familiar examples. They have their, counterpart in legislation imposing liability on owners of vehicles for the negligent operation by those entrusted with their use, regardless of a master-servant relation. Laws of New York, 1924, c. 534; Michigan Pub. Acts 1915, Act No. 302, § 29 (constitutionality upheld, Stapleton v. Independent Brewing Co., 198 Mich. 170 [L. R. A. 1918A, 916]). They suggest that certain uses of property may be regarded as so undesirable that the owner surrenders his control at his peril. The law thus builds a secondary defense against a forbidden use and precludes evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner. So here the legislature, to effect a purpose clearly within its power, has adopted a device consonant with recognized principles and therefore within the limits of due process.”
In my opinion, this law should be sustained as a valid exercise of the police power upon the broad principle that he who owns property, in its nature a dangerous instrumentality when recklessly operated, will not be permitted to suffer it to be handled by a member of his immediate family, over whom he has full control, in such a negligent manner as to inflict injury upon another without responding in damages therefor.
"The physical welfare of the citizen is a subject of such primary importance to the State, and has such a direct relation to the general good, as to make laws tending to promote that object proper under the police power.” People v. Havnor, 149 N. Y. 195 (43 N. E. 541, 52 Am. St. Rep. 707, syllabus in 31 L. R. A. 689).
As was said in People v. Schneider, 139 Mich. 673, 679 (69 L. R. A. 345, 5 Ann. Cas. 790), the act “is merely a justifiable exercise of the police power in the interest of the safety of the traveling public.”
The judgment is affirmed.
Fead, C. J., and, Clark, McDonald, and Potter, JJ., concurred with SHARPE, J. | [
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Clark, J.
A review of the Territorial Laws of Michigan will show that the chief basis for distributing public moneys to school districts was a count of children of school age. And during all the period of statehood, until 1925, nearly 90 years, this basis for ap portioning the primary school interest fund has been continued and kept inviolate.
In Muskegon Public Schools v. Wright, 176 Mich. 6, this court said:
_ “These census reports, made by the several school districts, are the basis upon which the entire system of apportionment of primary school money is founded.’'
Prior to 1911, at least, it was founded and continued, not by constitutional mandate, but upon common favor, understanding, and approval. . '
Taking the school child as the unit, the distribution was equal. A child in Gogebic and a child in Wayne were favored alike.
By Act No. 53, Pub. Acts 1925, the legislature attempted two radical departures from what had been the historical and established practice with respect to the fund, namely, an unequal distribution, and a new basis of apportionment, assessed valuation, the former relating to but 5 per cent, of the fund, and the latter used in a limited sense, to add assessed valuation to census reports as a basis of apportionment of said part of the fund.
To test the constitutionality of the act, plaintiff filed this bill and had decree from which defendants have appealed. The trial court in an opinion to support decree held, in substance, that the Constitution requires an equal distribution of the fund, and that, as the act provides otherwise, it is not constitutional. The reasoning is persuasive, and it may be that the holding can be sustained, but we prefer to rest decision on different ground.
That the count of children of school age as the basis for apportioning primary school interest funds is historical and of long standing and common acceptance presents no obstacle to the legislation in question. Rather it is as stated by the attorney general:
“In the construction of Act No. 53 of the Public Acts of 1925 it is necessary that those who attack the same as unconstitutional, be able to point out that the rule fixed and established by the Constitution is inconsistent with the rule fixed and established by Act No. 53 of the Public Acts of 1925.”
The pertinent provisions of the act are as follows:
“Sec. 4. He (the superintendent of public instruction) shall in the year nineteen hundred twenty-six and annually thereafter on receiving notice from the auditor general of the amounts thereof and between the fifth and the fifteenth days of July apportion ninety-five per centum of the primary school interest fund among the several townships and cities of the State in proportion to the number of children in each between the ages of five and twenty years as the same shall appear by the reports of the several township clerks and school districts made to him for the school year closing in July of the preceding year; and the remaining five per centum shall be apportioned among all school districts which have an average school membership in excess 'of the average for the whole State for each one hundred thousand dollars of equalized valuation in a manner such that the am’ount apportioned to each school district for each school census child shall be in direct proportion to the number by which the average school membership of the district exceeds the average for the whole State for each one hundred thousand dollars of equalized valuation. In computing the average school membership for each one hundred thousand dollars of valuation, whether for the State or any school district, the nearest whole number shall be used; except that when the coverage school membership for each one hundred thousand dollars of valuation is equally distant from two whole numbers, the next higher whole number shall be used for the purpbs.es of this section.” * * *
In 1911, section 9, Art. 11 of the Constitution was amended to read as follows:
“The legislature shall continue a system of primary schools, whereby every school district in the State shall provide for the education of its pupils without charge for tuition; and all instruction in such schools shall be conducted in the English language. If any school district shall neglect to maintain a school within its borders as prescribed by law for at least five months in each year or to provide for the education of its pupils in another district or districts for an equal period, it shall be deprived for the ensuing year of its proportion of the primary school interest fund. If any school district shall, on the second Monday in July of any year, have on hand a sufficient amount of money in the primary school interest fund to pay its teachers for the next ensuing two years as determined from the pay roll of said district for the last school year, and in case of a primary district, all tuition for the next ensuing two years, based upon the then enrollment in the seventh and eighth grades in said school districts, the children in said district shall not be counted in making the next apportionment of primary school money by the superintendent of public instruction; nor shall such children be counted in making such apportionment until the amount of money in the primary school interest fund in said district shall be insufficient to pay teachers’ wages or tuition as herein set forth for the next ensuing two years.”
By the amendment the said census-basis of apportioning equally the primary school money, though ancient and long established, first found expression in the Constitution. It was there expressly adopted, we think, but in any event the necessary implication of the language is that the basis of apportioning the fund is a count of children.
If the legislature may dispose of 5 per cent, of the fund in the unequal manner attempted by the act, it may so dispose of a larger part or of all of the fund; if it may use assessed valuation as a basis of apportionment in a limited or qualified sense, it may use it to the full extent, and it then may provide that the whole fund be apportioned on the sole basis of assessed valuation or otherwise as it may determine — this is not and cannot well be controverted. It seems clear that the power of the legislature so to do is challenged by the section of the .Constitution above quoted. The section states the basis of apportionment of primary school money, a count of children. If counted in any district they must be counted in the entire State. Neither the legislature nor the courts may strike from that section the words “the children in said district shall not be counted in making the next apportionment of primary school money” and substitute therefor the words “The assessed valuation of the district shall not be considered in making the next apportionment of primary school money;” nor these words “The children in said district shall not be counted nor assessed valuation considered in making the next apportionment of primary school money.”
It is hardly necessary to say that a provision of the Constitution cannot be repealed or amended directly or indirectly by the legislature, nor can it be set aside by the courts. That the statute must fall because it conflicts with express language and necessary implication of the Constitution seems clear.
The matter of education in this State is with the legislature with few constitutional restrictions. But such restrictions stand. One of them fixes the basis of apportioning equally primary school money — a count of children.
That in some school districts taxes are nearly if not quite confiscatory appeals strongly to the minds and hearts of both legislators and judges, but both are powerless. The people of the State adopted the Constitution. They alone may make the modification sought.
The decree is affirmed. No costs.
North, Fellows, Wiest, McDonald, and Sharpe, JJ., concurred.
The late Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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