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North, J.
James F. Kiesgen, the plaintiff herein, brought suit against George N. Harness for damages incident to the alleged alienation of the affections of plaintiff’s wife by defendant and plaintiff’s consequent loss of his wife’s society, services, etc. The jury rendered a verdict for the plaintiff, judgment was entered thereon, and defendant has brought the case to this court by writ of error. ,
The first count in the declaration charges that the defendant caused plaintiff’s wife to separate from him and cease cohabiting with him; the second count charges that after there was an estrangement existing between plaintiff and his wife caused by the defendant, the latter by his wrongful conduct prevented and rendered impossible a domestic reconciliation. For reasons hereinafter indicated, it is unnecessary to fully set forth in this record each of the 42 assignments of error. We have read the record carefully and fail to find therein testimony which would justify submitting this case to the jury on the theory that the defendant wrongfully caused the separation between the plaintiff and his wife. Mr. and Mrs. Kiesgen were married June 23, 1921, they first separated June 4, 1924, and Mrs. Kiesgen went to live in the home of her parents. She and her husband became reconciled the day before Thanksgiving, 1924; and thereafter they lived together in the home of Mrs. Kiesgen’s people* until their next and final separation on September 4, 1925, at which time the plaintiff left his wife and child. After that date they were entirely estranged from each other. Mrs. Kiesgen instituted divorce proceedings in February, 1926, and was granted a decree May 5th following. The defendant did not know the parties at all at the time of the first separation; and, as stated, there was no testimony from which a jury could justly find he was responsible for the second separation. He was the pastor of the church of which Mrs. Kiesgen and her parents were members, and the plaintiff attended a men’s bible class conducted by the defendant. The testimony as to the defendant’s relation with these parties prior to September 4, 1925, when the Kiesgens finally separated, shows only the normal relations and situations of a pastor and those affiliated with his church. On his direct-examination the plaintiff testified relative to the circumstances which surrounded and caused each of the two separations, but he made no • claim that the defendant was chargeable with either. Notwithstanding the entire absence of proof to sustain the allegation that the defendant was responsible for the separation of the plaintiff and his wife, as charged in the first count of the declaration, the circuit judge when instructing the jury said:
“The plaintiff also claims that before the separation from his wife in September, 1925, his wife had become acquainted with the defendant who. had come to Muskegon.” * * *
After alluding to many of the occasions and circumstances under which the plaintiff’s wife and the defendant were in each other’s company, practically all of which were after the date of the separation, the charge to the jury continued as follows:
“And plaintiff claims, gentlemen, that Mr. Harness, the defendant, caused his wife to leave him or at least induced her not to return to her husband, plaintiff claiming that he has produced evidence which ought to convince you that the defendant has, by reason of his behavior and actions towards Mrs. {Kiesgen, including his presents to her, and the money given to¡ her to commence the divorce suit, alienated the affections of Mrs. Kiesgen from the plaintiff,” etc.
This must be held to constitute prejudicial error, since it submitted to the jury an important issue of fact which was not sustained by competent proof. Under this record the issue on this phase of the case should have been confined to a determination of whether the defendant wrongfully prevented a reconciliation between the plaintiff and his wife.
Error is assigned on the ground that the plaintiff was allowed to give certain testimony over the objection of• defendant’s counsel that it was incompetent, hearsay, and in violation of section 12555, 3 Comp. Laws 1915, which provides in part as to husband and wife as follows:
“Nor shall either, during the marriage or after-wards, without the consent of both, be examined as to any communication made by one to the other during ' marriage,” etc.
Some of the testimony given over these objections is as follows:
“Q. What was the cause of that separation (June 4, 1924)?
“A. Well, she was dissatisfied with the flat we had; it wasn’t big enough. * * * She wasn’t satisfied with the flat, and she called me up and said she had rented a fiat down town, I believe on First street for $35' a month. I told her we could not afford that, and she said that if she could not take that fiat she was going to move back to her mother’s. * * *
“Q. Did you have any conversation with her with reference to the separation at that time? Continuing your conversation with her that you had after the separation ?
“A. I came down to the hotel — she was working at the Occidental at-the time — and I told her I did not want to move; that I thought we ought to be satisfied there because we could get along there. I said it was not as much expense. I just went up and got my clothes and I went to my folks. She did not relent in the matter. She did not change her opinion at all. She said she was going to live with her folks. She said if I wanted to leave I could; it was up to me entirely.”
This testimony was in direct violation of the statute. It enabled the plaintiff to get before the jury his claim that he was free from blame incident to this separation, and produced a situation in which the defendant, was compelled to call the plaintiff’s wife as his witness, and in so doing subject her to cross-examination by the plaintiff’s counsel, or he was compelled to allow the testimony to stand uncontradicted. Somewhat later in the trial plaintiff’s attorney asked of him the following questions: “When you separated in September, 1925, were any arrangements made between you and your wife as to her support and the support of the child?” and thereupon the defendant’s counsel again objected, stating “that would amount to* conversation between them.” The court then said:
_ “Now, I have examined into that matter that was discussed this morning a little bit, and the authorities that have been presented here, and while I am not exactly satisfied just what the ruling should be, my present idea is from the decisions handed me that Mr. Kiesgen cannot testify as to statements made by and between him and his wife not in the presence of the defendant, unless and until his former wife should consent to these statements being testified to. I will say to you, gentlemen, that the portion of the testimony so far given by Mr. Kiesgen as to statements made by his wife to him, and statements made by him to her should be stricken out and the jury is instructed not to consider that part of the testimony, or pay any attention to it, and I think any further testimony along that line will have to be ruled out, unless I change my mind about it.”
The matter of this testimony being stricken from the record and disregarded by the jury was not men tioned in the general charge. There were numerous violations of this rule of evidence which is well established in this State and has been rather rigidly enforced in both civil and criminal cases. Hendrickson v. Harry, 200 Mich. 41; Patterson v. Hill, 212 Mich. 635; People v. Salisbury, 218 Mich. 529. Because, as hereinbefore indicated, this case must be reversed on’other grounds, it is unnecessary to determine whether the irregularity last above referred to was prejudicial to the extent that, standing by itself, it would constitute reversible error.
There are numerous other assignments of error based upon rulings as to the admissibility of evidence; and it may be noted some-of the objections made by the defendant might well have been sustained, but the rulings do not appear to have resulted in prejudicial irregularities so far as disclosed by this record, and it is believed they are largely matters which will not recur at a subsequent trial. In some instances, the record was not made in such a way as to properly present the question for review. This occurred when Mrs. Kiesgen’s sister, who was a witness in behalf of the plaintiff, testified on direct-examination: “Mother did not want her (Mrs. Kiesgen) to get a divorce;” and after this answer had been made, defendant’s counsel objected on the ground that it was incompetent and hearsay. Clearly it was hearsay, and in this instance was prejudicial; but after the answer had been made, the proper practice would have been a motion to have the testimony stricken and the jury instructed to disregard it.
Complaint is made by the appellant that the court did not instruct the jury as to certain circumstances which might have been found to minimize the damages; but there is no merit in this complaint because no requests to charge on this phase of the case were preferred by the defendant.
Other questions are raised by the assignments of error, but we do not find they present matters of such a prejudicial nature as to be a ground for reversal or to merit further consideration here. The judgment is reversed, and the case remanded for a new trial. The appellant will have costs in this court.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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McDonald, J.
This bill was filed to foreclose a land contract made by the plaintiffs to the defendants for the sale of certain real estate in Traverse City, Michigan. The purchase price was $12,000, on which there was a down payment of $1,000. The balance was to be paid in payments of $125 or more per month with interest at 7 per cent. None of the monthly payments was made, and the plaintiffs began suit for foreclosure. The decree entered found that there was $3,467.85 due at that date and gave the defendants until July 9, 1927, to pay it, and in default of such payment ordered a sale of the premises at public auction, subject to the interests of Julia S. McManus, who held the legal title, to satisfy the entire purchase price, both due and to become due, amounting to $11,000, and provided for a personal decree for deficiency. . From this decree the defendants have appealed.
There is no provision in the contract permitting the vendors to declare the whole purchase price due upon default by the vendees in any of its conditions. In view of this fact, the circuit judge was wrong in ordering a sale to satisfy an amount including that to become due. In Cady v. Taggart, 223 Mich. 191, 195, it is said:
“The interest to be sold is the equitable title of the vendee, and this is to be sold to satisfy the amount past due on the contract. To require a sale to satisfy payments to become due in the future would be to declare a forfeiture, which under repeated decisions of this court a court of equity may not do. As applied to the instant case, it would be writing into the contract a provision the parties have not agreed to.”
The decree is reversed, and the cause remanded for further proceedings. The defendants will have costs.
Fead, C. J., and' North, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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] |
Clark, J.
In 1920, defendant, Lalley Light Corporation, a Delaware corporation, manufactured farm lighting plants in Detroit. Plaintiff, E. E. Huber & Company, a Salvador corporation, was then and is now foreign representative in Central America of certain American manufacturers, and then was defendant’s exclusive distributor. In April, 1920, a new distributor’s contract was made in Detroit by the parties, estimating plaintiff’s requirements for the remainder of the year. The contract contemplates forwarding plants to plaintiff from Detroit on plaintiff’s orders thereafter to be received. Mr. Huber, president of plaintiff company, before leaving United States, caused a credit to be established at the Commercial Bank of Spanish America, Limited (New York Agency), which bank on June 25, 1920, wrote defendant as follows:
“Lalley Light Corporation,
“Detroit, Michigan.
“Attention Export Dept.
“Dear Sirs: We beg to advise you that in accordance with cable request from our Guatemala office, we have established a credit in your favor for the amount of about $5,000 to cover an order for 30 lighting plants on account of Mr. E. E. Huber.
“We are not yet advised as to where the goods are to be shipped but we presume they are intended for the Guatemala district. , You will please note that in any case they must be consigned to the order of this bank on the ocean shipping documents. Payment will! be made as usual against delivery of full set ocean shipping documents, certificate of insurance and commercial invoice.
“Yours very truly,
“Commercial Bank of Spanish America, Ltd.,
S. C. Dobson, Agent.”
Defendant replied, suggesting mistake, as the cost of 30 plants was nearly $11,0.00. The matter had not been cleared up on July 22d when defendant cabled plaintiif as follows:
“Commercial Bank advises credit established covering order plants Guatemala. Have not received order. Advise details.”
On July 26, 1920, the bank again'wrote defendant:
“Lalley' Light Corporation,
“Detroit, Michigan.
“E. E. Huber.
“Dear Sirs: Referring to our letters dated June 25th and July 17th respecting the credit established in your favor on account of above to cover thirty lighting plants, we have now received the expected letter from our Guatemala office. From this letter it appears that a cash payment of $5,000 is required by you, the balance of the order to be paid within 120 days.
. “Please note, therefore, that we have amended to cover cash payment of $5,000 against your delivery to us of the ocean shipping documents, and we will be responsible to you for the payment of balance of your invoice 120 days from the date of our initial payment, interest to be added at the rate of 6% p. a.
“We await to hear from you that you are in accord with this arrangement, and remain,
“Yours very truly,
“Commercial Bank op Spanish America, Ltd.,
S. C. Dobson, Agent.”
This was. later modified to provide for payment of full amount in cash on delivery of required documents. On July 28, 1920, defendant shipped 30 plants, f. o. b. Detroit, invoiced to plaintiff and consigned to the bank •on bill of lading. The shipment cleared New York on August 27th. Defendant presented required shipping documents to the bank and was paid in full.
Mr. Huber, returning from United States, reached his office in San Salvador about July 23d, when he received defendant’s cablegram of July 22d. He testified that he replied by letter, Which defendant denies having received: On August 7th, plaintiff ordered by mail 10 plants from defendant. On September 3d, defendant cabled plaintiff:
“30 plants Puerto Barrios cleared Steamer Lake Flattery August 27th.”
Plaintiff insists that from this cablegram it first learned that defendant intended to ship 30 plants and that the shipment had been made. The 30 plants reached Guatemala in due course. Plaintiff accepted 10 of them and demands of defendant refund of the value of 20, plus expense. Defendant refused. The 20 plants are in a warehouse in Guatemala and are held by the bank to secure plaintiff’s indebtedness to it. The trial was without a jury. Upon findings, duly excepted to', defendant, had judgment on April 5, 1926. Plaintiff brings error.
The bank that issued the letter of credit is not affected by this litigation between buyer and seller. It was not concerned with the provisions of the sales contract not incorporated in the letter of credit. It paid on the required documents as it had a right to do. Maurice O’Meara Co. v. National Park Bank, 239 N. Y. 386 (146 N. E. 636, 39 A. L. R. 747); 30 A. L. R. 353, 1310, notes; and 22 Columbia Law Rev. 311. Plaintiff concedes that the bank followed its instructions.
The theory of plaintiff’s case as presented is that it ordered 10 plants and was shipped 30; that defendant upon advice of the letter of credit had no right to ship except upon plaintiff’s order; and that there is no contract relation between the parties respecting the 20 plants; that plaintiff has not accepted but has rejected them; that defendant has its money; and that plaintiff is therefore entitled to recover. Assuming that plaintiff ordered but 10 plants and was shipped 30 as it contends, upon arrival at destination it might accept all, reject all, or accept the 10 it had ordered and reject the rest. Section 11875, 3 Comp. Laws 1915 (uniform sales act); 2 Commerce Clearing House, U. S., Unit. § 1699. But if it exercised acts of ownership, or acts inconsistent with seller’s ownership, it may be held to have accepted. 2 Williston on Sales (2d Ed.), § 483.
The claim of the bank on the goods is valid. Neither party can question it. It secured and still secures a debt of plaintiff. The bank might have sold the rejected goods and applied the avails in reduction of plaintiff’s debt to it. It may be observed that the bank, in the trade sense, was plaintiff’s bank. It owed him the duty of service, and it is not unlikely that it would have sold the goods had it been requested to do so. Imbrie v. D. Nagase & Co., 196 N. Y. App. Div. 380 (187 N. Y. Supp. 692). It is not suggested in the record that the bank agreed to do so. It has not sold the plants or any of them. Without resorting to the collateral it had, and it seems now has, the right to proceed against plaintiff to recover.
“A creditor, unless he has agreed to do so, is never bound to realize upon collateral which he holds before proceeding against the debtor to recover the debt.” Benecke v. Haebler, 38 N. Y. App. Div. 344 (58 N. Y. Supp. 16).
It may be that plaintiff under the sales act had right of a lien on the rejected goods to secure the amount it has paid, unwittingly, as it contends. But such right is wholly apart from its right to use the goods as security for its debt to another. Conceding the amount of the bank’s claim to be larger and to cover more goods than plaintiff intended, and that the situation has been produced by defendant’s wrong, it is still the bank’s security and the plaintiff’s debt. Defendant is not to be penalized by being deprived of both the money and the goods. Plaintiff had right to be compensated in damages. It seems clear that in rejecting the goods and to bring this action plaintiff within a reasonable time ought to have freed them from the hold of the bank. And by a timely sale of the goods by the bank and credit of the avails on plaintiff’s debt to it, the way for this suit might have been opened. Counsel insist that this may work a hardship, but our attention is called to no rule which permits escape from it. See American Commercial Credits, chap. 14, by Ward, Ronald Press, N. Y., relating to the mercantile risk and the buyer’s dilemma, and see The Trust Receipt’ as Security, by Frederick (reprint Columbia Law Review) and Commercial Letters of Credit, by McCurdy (reprint Harvard Law Review). Plaintiff may not have judgment against defendant for the money paid and at the samé time have the property held by the bank to secure the debt. At the time of the trial the goods had; been so held for more than six years. We are constrained to agree with the trial court that plaintiff must be held to have accepted the goods.
In Fillmore v. P. Garvan, Inc., 97 Conn. 207 (116 Atl. 184), it was held (quoting foot-note 2 Williston on Sales [2d Ed.], § 483):
* * * “that where the buyer, on its rejection of the goods as defective, added the statement that it would hold the goods in its warehouse until the seller furnished other goods of contract quality, this attempt to hold a lien on the defective goods was a conditional rejection which had the effect of an acceptance, under (the sales act).”
In Leggett & Meyer Tobacco Co. v. Collier, 89 Iowa, 144 (56 N. W. 417), buyer mortgaged the goods and was held to have accepted them. And so where the goods were loaned to another (Hensen v. Beebe, 111 Iowa, 534 [82 N. W. 942]; 35 Cyc. p. 259). See Detroit Vapor Stove Co. v. Farmers’ Cash Union, 61 Utah, 567 (216 Pac. 1075); Prager v. J. S. Scheff & Co., 180 N. Y. Supp. 119.
That plaintiff is not damaged until it is out of pocket, until it has paid the bank, is a question not necessary to decision. That the result would be different if there had been no bargain and sale, if defendant had sent the goods and taken the money as a mere intermeddler, need not be considered.
Judgment affirmed.
Fellows, Wiest, 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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] |
Potter, J.
Plaintiffs, owners of lots in Dexter Boulevard Heights subdivision in Detroit, seek to restrain the defendant, an incorporated orthodox Jewish Congregation, from erecting a synagogue on property in the subdivision. Plaintiffs claim all of the property in the subdivision is restricted to use for dwelling purposes; that the erection of this synagogue with a seating capacity of approximately 2,000 people will violate the building restrictions applicable to the entire subdivision, and constitute such an infringement of plaintiffs’ rights as to entitle them to enjoin its erection. The applicable building restriction alleged in the bill of complaint, admitted by the answer and proven by the testimony, is:
“Any building erected upon said property shall be fifteen feet from the front line of said property and not less than one and one-half stories with fourteen foot posts in height, and cost at least $2,500, and no shanties or sheds shall be erected upon said premises to be used for dwelling purposes.”
There was decree for defendants and plaintiffs appeal.
Plaintiffs introduced testimony, subject to objection, tending to show that the erection of the synagogue would diminish the value of the adjacent property; that some of the purchasers of property in the subdivision bought with the idea that its use was restricted to residential purposes. It is not disputed that the restrictive clause in the deeds affecting this property was prepared by Mr. A. C. Stellwagen, an jible lawyer, and no doubt its language defined with precision the intention of the grantor.
Defendants purchased the property in this subdivision which it is proposed to use as the site for the erection of the synagogue, subject to the restriction above quoted, and the sole question is whether defendants will, by building the contemplated structure upon their own property, violate the building restriction affecting it.
Restrictions on the use of real property ought not to rest in parol. Where building restrictions have been deliberately put in writing, in plain and unambiguous terms, they are so conclusively presumed to contain the whole agreement between the parties that parol evidence is inadmissible to contradict or vary their terms. Adair v. Adair, 5 Mich. 204 (71 Am. Dec. 779). Witnesses cannot be permitted to speculate on omitted but unexpressed intentions of the parties. Tompkins v. Gardner & Spry Co., 69 Mich. 58. The construction of such restrictions is a matter of law for the court. Johnson v. Cranage, 45 Mich. 14. There is nothing in the language of the restriction relied upon which prevents the erection by defendants of the proposed building.
The decree is affirmed, with costs.
Fead, c. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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] |
Fellows, J.
(after stating the facts). Both cases will be disposed of in one opinion, as the facts are identical. Plaintiff’s counsel has traversed the return, and asks for the framing of an issue to determine the questions of whether the surety had the property he claimed to own and was worth the amount he claimed he was, and whether the order as entered in the journal and as signed by the circuit judge was in accordance with the opinion of the circuit judge as originally announced by him. He also asks that the issue be tried by a circuit judge other than the judge of the Muskegon circuit. We must decline to frame such an issue. It could not benefit plaintiff’s case. We may assume, for the purposes of the case, that the individual surety is worth all that he claims to be worth. But on the other question it is patent that the order entered in the journal of the court, approved and signed by the circuit judge, can not be attacked by evidence, if it is obtainable, that the trial judge did not, by using the words “surety bond,” have reference to a surety company bond, and that therefore the order went further than the opinion. Courts speak through their judgments and decrees, not through their opinions. Harnau v. Haight, 212 Mich. 66. The order as entered and signed by the circuit judge may not be impeached in this proceeding against the clerk.
The clerk drew his authority to approve bonds in these cases solely from the orders of the court. • The bonds tendered did not comply with the requirements of the orders. This is a complete answer to plaintiff’s prayer for mandamus.
The writs will be denied, with costs to defendant.
Wiest, Clark, McDonald, and Sharpe, JJ., concurred. North, J., did not sit.
The late Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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] |
Bird, J.
Plaintiff purchased $40,000 par value of the. bonds of the National Hardwood Company. He claims that he was influenced to do so by the fraudulent acts of the board and the favorable representations of the defendants, who were acting as directors of the company; that said favorable representations were misleading and false; that said company was insolvent, and soon thereafter passed into the hands of a receiver, to his great loss and damage, and he brings this suit to recover his damages,, based upon the negligence of the directors in the management of the company. For a statement of the history of the National Hard wood Company, see Chapple v. Jacobson, 234 Mich. 558.
1. Counsel are not in accord on the question whether the following section of the statute applies to the representations made:
“No action shall be brought to charge any person, upon or by reason of any favorable representation or assurance, made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and signed by the party to be, charged thereby, or by some person thereunto by him lawfully authorized.” 3 Comp. Laws 1915, § 11983.
Both counsel rely on Bush v. Sprague, 51 Mich. 41, to support their contention. In that case Mr. Justice Graves considered the statute and pointed out certain distinctions, which, in substance, were that when a conspiracy was formed to carry out an unlawful scheme and a corporation was formed as one step in furthering that design to make profit for those making the representations, the statute had no application, but when the corporation was created in good faith and the favorable representations were made in behalf of the corporation, and not for personal gain to those making the representations, the statute did apply.
In the case under consideration the declaration alleges a conspiracy, but counsel do not claim that it was proven. There is no claim that the corporation was created as one step in carrying out or furthering the fraudulent scheme. Under these circumstances the favorable statements made by the directors on behalf of the corporation would be within the statute, in the absence of proof that they were made for the purpose of personal gain. Under this rule the testimony offered should have been received or rejected.
2. Complaint is made because the trial court excluded from the consideration of the jury the favorable representations made by the defendants. It is not our purpose to go through the record and point out what statements were admissible and what were not, because no specific assignment of error has been made with reference to the rejection or admission of evidence, but it will suffice to say that if Wilmarfch, Noorthoek and others made favorable statements and signed them they should have been considered by the jury. Wilmarth and Noorthoek and others made favorable statements that were not signed. These statements should have been excluded by force of the statute, unless it were shown that they were made to bring a, profit to themselves. The oral and unsigned statements of Jacobson were admissible because the record shows he was making a direct profit from the sale of the stock and bonds, and that the representations were made to aid the sale of the stock and bonds. Getchell v. Dusenbury, 145 Mich. 197. The question of the declaration of a dividend when the company was insolvent, and such favorable statements as were found admissible under the rule suggested should have been submitted for the consideration of the jury.
3., Plaintiff’s counsel complain because the trial court instructed the jury that they should consider the good faith of defendant in determining the question of negligence. Counsel for the defense insist that the court did not so instruct them. It is possible that the jury may have so understood the charge, although the trial court usually, in referring to the question of good faith, qualified the instruction by the words “if he exercised the care and diligence that would ordinarily be exercised under like circumstances.” Without determining that question, it will be sufficient to say that the question whether the good faith of a director would be a valid excuse for negligent management was raised in Commercial Bank v. Chatfield, 121 Mich. 641, and it was there held it would not be a valid excuse. To the same effect see 4 Fletcher’s Cyc., Corporations, §§ 2462-2465.
“Imprudent acts of directors or other corporate officers cannot be excused, ordinarily, because of their ignorance, inexperience, or the honesty of their intentions.” § 2464.
_ “It is not enough to excuse a director that no actual dishonesty is shown, nor that he was influenced by other than disinterested motives. Good faith alone will not excuse them when there is a lack of the proper care, attention, and circumspection in the affairs of the corporation, which is exacted of them as trustees.” § 2465.
See, also, Anthony v. Jeffress, 172 N. C. 378 (90 S. E. 414).
4. The trial court instructed the jury that in determining the negligence of the directors they could consider':
“The location of the director defendant, the location of the main office of the company and of the books of the company, the difficulty or accessibility of the books, or the difficulty of the director in getting to the office and inspecting the books, or in determining for himself from the books the condition of the company.”
,; We think there was error in this charge. When one becomes a director of a private corporation he assumes certain duties which he cannot excuse by showing that he lives a great distance from where the books are kept, or where the business is carried on. The Michigan directors of this company knew from the beginning where the residence of the corporation was and where its business was to be carried on, and unless they were in a mood to suffer the inconvenience of travel in order to discharge their duties as directors they had no right to accept the position./ If the trial court’s conclusion be the true one, a corporation might be formed for a business in Delaware, and several directors might be selected who reside in California, and if the company were negligently managed they would'be immune on account of the great distance they resided from the -business and office of the corporation.
The following sections from 4 Fletcher’s Cyc., Corporations, are relevant:
“On the other hand, ‘it is not open to doubt,’ said Justice Haight in a recent Federal decision, ‘that a wilful and continued failure on the part of a director to attend meetings of the board at which the business of the bank is conducted, and to familiarize himself, to some extent, with the bank’s affairs, is a violation of the duty which the common law imposes upon directors, and, if loss results therefrom, that he is liable, because such action is, in itself, a failure to exercise the ordinary care and prudence.in the administration of affairs of the bank which the law imposes upon directors.’ ” § 2461.
See, also, Williams v. Brady, 232 Fed. 740.
“Chief Justice Bartch of the supreme court of Utah, in a well-considered decision, states the rule, as to directors of banks, that ‘when sued for losses which resulted from careless or unlawful acts and unfortunate transactions, they can never set up as a defense that they did not examine the books or accounts of the bank, knew nothing about the loans or discounts, were ignorant of banking business, or that they intrusted the management and supervision of the business to the executive officers, in whom they had confidence. The welfare of the public and the interests of banking institutions alike forbid this.’ Continuing, he states that ‘the duties of directors are administrative, relate to supervision and direction, and when it is sought to hold them responsible for a dereliction of duty, because of which a loss occurred to stockholders and creditors, they cannot evade liability by pleading ignorance of the affairs of the institution, incompetency, or gratuitous service, or that the management of the banking business was in the hands of the cashier or other executive officer.’ It is no excuse for the negligence of one officer that another officer or officers were also negligent.” § 2464.
For the errors pointed out the judgment will be reversed and a new trial granted, with costs of this court to plaintiff.
The foregoing opinion was prepared by the late Justice BIRD and is now adopted as the opinion of the court.
Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.
Justice Steere and the late Justice SNOW took no part in this decision. | [
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Fellows, J.
John Harrison died testate, November 26, 1892, the owner of 40 acres of land in Superior township, Washtenaw county, then worth about $1,400. He left a widow who was his second wife and six children. The widow elected to take under the statute. His estate was administered and the final account allowed July 10, 1894. On February 5, 1896, the six children filed a bill for partition. The widow entered her appearance by J. Willard Babbitt March 3d; on April 14th, Harriman and Thompson were substituted as solicitors for defendant. There is testimony that Mrs. Harrison was somewhat ignorant and did not promptly sign her answer; her default was entered but later set aside. A final decree was entered April 17, 1897. Mr. E. B. Norris represented her at the time the decree was taken. The decree provided that the widow should have the use of the farm as a homestead during her widowhood and her dower interest during her life, and the children were each given a sixth interest after her death. Costs taxed at $25 were awarded Mrs. Harrison. On June 14th execution for the costs was issued and levied on the complainants’ (in that case) interest in the land. Sale was made and certificate filed in the register’s office August 3d. The execution was returned to the (then) register in chancery. The sale was to Darwin C. Griffin for $81.50. On November 29, 1898, he deeded to defendant Ely, who was the son of Mrs. Harrison by her first marriage. He has since worked the farm, although living elsewhere, has paid taxes and supported his mother until her death. The sheriff’s deed and the deed of Ely were both recorded. This bill filed by the two living children of Mr. Harrison, the other plaintiffs being grandchildren, seeks to set aside the execution sale. While it names Margaret Harrison as a defendant, it was not filed until after her death. Judge Harriman, Professor Thompson, Judge Babbitt, and Mr. Norris were also dead. Indeed, Judge Kinne, who heard the case, the clerk and deputy clerk, the sheriff who made the levy, and about every one else connected with the former case, around 30 years ago, have paid the debt of nature. There is no claim of any irregularity in the execution sale. None of the six complainants offered to pay the costs or any part of them. The premises are now worth from $10,000 to $12,000.
The plaintiffs claim in their bill that the sale should be set aside because it was agreed that only three acres were to be levied upon, and that they have remained quiescent in the belief that the levy was only on this amount of land. No one testifies to the making of such an agreement. Outside of some slight testimony that the widow recognized some right of the children, the only testimony tending to sustain such a claim comes from one of the plaintiffs, who testifies that “somewhere about 1897 or the latter part of 1898,” she wrote to the judge of probate to find out about the proceeding. The judge of probate was Judge Babbitt, and she says he wrote her that the widow had the property as long as she lived and then it went to the heirs except three acres which had- been sold for costs, and in answer to a leading question she said the letter stated that it had been agreed to sell three acres from the east part of the farm for the costs. She was unable to produce the letter.
While Judge Babbitt originally appeared for Mrs. Harrison, he took no part in the case so far as the record discloses, and about a month after entering his appearance he withdrew from the cáse, and Judge Harriman and Professor Thompson became her solicitors. The final decree was entered about a year later, and so far as the record discloses he had nothing further to do with the case. As judge of probate, his office was in the same court house as was that of the county clerk where rested the return of the sheriff showing a levy on and sale of the entire 40 acres, in the same court house as was that of the register of deeds where rested a record of the levy, the sheriff’s deed, and the deed from the purchaser to Ely. It seems incredible that he would have written a letter without having made inquiry of one or the other of these officers, and it seems particularly incredible that he would have advised her that there had been a sale for costs and a sale of only three acres, when the records under his very nose showed a sale of 40 acres.
Defendants’ counsel insisted in the court below and do here that the laches of plaintiffs precludes recovery here. It is a general rule that a court of equity will apply the statute of limitations by analogy. But this is not a hard and fast rule. The court of equity frequently overlooks delays. Plaintiffs’ counsel insist that defendants’ position has not been changed'by the delay. But this is not true. Thirty years ago there were several persons living who could have disputed the plaintiffs’ testimony if it were not true. Mrs. Harrison knew whether she had made any agreement, but the bill was not filed until after her death. Judge Babbitt knew whether he had written such a letter as was testified to, but he had joined the great majority. If any such agreement had been made, doubtless Judge Harriman or Professor Thompson or Mr. Norris would have known about it, but they too have solved the problem of life and death. Every person who could have had knowledge of the facts and been able to refute the testimony of plaintiffs had passed on in the 30 intervening years. In Green v. Reid, 229 Mich. 503, it was said:
“This bill filed for a partnership accounting over a third of a century after the partnership was at an end and after one of the partners is dead presents too stale a claim for consideration in a court of equity.”
In Eames v. Manley, 121 Mich. 300, it is said:
“It is not until her brother, his wife, and Mr. Parker, who are said to have perpetrated the fraud, are all dead, and cannot repel the attacks made upon them, and whose versions cannot be given of the various transactions, which have been spread upon the records of the_ courts and the registry offices, this claim of fraud is made. It is difficult to imagine a case where the laches are less excused. If this bill can be entertained now, when the parties who possessed the requisite knowledge to enable the truth to be known about, the various transactions have long since died, there can be no safety in acting upon conveyances and records of courts.”
The decree granting plaintiffs the relief prayed will be set aside and one here entered dismissing the bill, with costs of both courts to defendant.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Bird, J.
Plaintiff, a lad of 17 years of age, is a resident of Beloit, Wisconsin. In the summer of 1925 he was at Camp Custer for military training. One evening he and a boy companion went to Battle Creek and returned on one of defendant’s busses. Plaintiff took his seat near a window and placed his left arm on the window sill. Before reaching the camp the bus collided with a truck, and plaintiff’s elbow was broken. He was immediately taken to the hospital at Camp Custer, and- the surgeons attempted to reduce the fracture, but failed. It was finally found impossible to give the plaintiff the proper treatment at the camp hospital, and the surgeons were ordered to transfer the plaintiff to the Walter Reed Hospital in Washington, D. C. He remained there about six months before he was discharged. His suit for damages resulted in a judgment against defendant for $3,000.
Defendant is seeking a reversal because:
(1) The trial court refused to charge the jury that there was no basis shown for damages while plaintiff was at the Walter Reed' Hospital.
(2) Because of the refusal to charge that there was no evidence of lost earning ability for the future.
(3) Because of the improper use of the phrase “in all probability” in regard to future damages.
(4) That the verdict was excessive.
(5) Prejudicial argument of plaintiff’s counsel.
1. The record shows that the plaintiff is a high school boy, that at vacation times he had worked in a factory where his father is employed, at Beloit, and had received $5 a day for his labor. The boy is musically inclined, and has been preparing himself for some time to play the trap drum and xylophone. His aim was to fit himself to play with the orchestra, and was prepared at the time of his injury to take on that employment. For that work he would have received $5 per engagement of a few hours. He was prevented from engaging in either one of these occupations, for which he was qualified, while in the Walter Reed Hospital, and we can see no reason why he should not be permitted to recover for this loss. The cases cited by counsel are distinguishable.
2. The evidence shows that the injury was. a severe one, was a compound, comminuted fracture. By reason of the injury he was unable to operate the trap drum and the xylophone, and he explained to the jury why he was unable to operate them. As a result of his injury he has sold his musical instruments and given up his ambition and prospective income in the orchestra. And the testimony was such that the jury was justified in finding that plaintiff’s injuries were permanent.
3. Complaint is made of the following instruction:
“If you award plaintiff damages there are two elements of damages to be considered, first, such an amount as you find he is entitled to recover for and on account of such, if any, diminished earning capacity as you find he has sustained as a result of this accident and his injuries. If, you find he is entitled to recover, you must then first say how much, if any, less has he been able to earn since the accident than he would have been able to earn but for this accident. How much, if any, less will he in all probability be able to earn in the future than he would have been able to earn but for this accident.”
The particular complaint that defendant makes is to the use of the phrase “in all probability”, used in the concluding .lines of the instruction. Plaintiff’s argument is directed to the weight and propriety of the phrase as used by the court. The meaning of that phrase was recently discussed and approved in an "opinion by Chief Justice Clark in King v. Neller, 228 Mich. 15. That opinion was so recently decided that it will be unnecessary to repeat here what was there Said.
4. Defendant argues that the verdict was excessive. The jury which is primarily the arbiter of this question had before it the fact that plaintiff received a compound comminuted fracture of the bones of the elbow; that he was treated for a short time at Camp Custer, and later transferred to the military hospital at Washington, D. C.; that the bones were rebroken on two occasions and set again, and a 20-pound-shot bag attached to his arm to keep the bones in place. The testimony showed that he suffered much with these treatments. The fact was before the jury that he had lost 6 or 7 months, in which he could have earned $5 per day, and that as a result of the injury he had been obliged to abandon his pet musical instruments and surrender his ambition to play in the orchestra. The intimation of defendant’s own doctor, Bennett, was that the injury might be a permanent one. This testimony was sufficient to support the jury’s verdict. We cannot say it was excessive.
5. Defendant assigns error on the argument of plaintiff’s counsel to the jury. This question was raised in defendant’s application for a new trial. The trial court’s answer which follows to this point is a complete and conclusive answer:
“Without determining whether or not that portion of the closing argument of counsel for plaintiff of which complaint is made was prejudicial error, it does not constitute a ground for a new trial for the reason that the court was not asked to rule upon it.”
The judgment is affirmed.
The foregoing opinion was prepared by the late Justice Bird, and is now adopted as the opinion of the court.
North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Flannigan, C. J., did not sit. | [
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Clark, J.
Defendant was charged with murder. She pleaded guilty, and the court made investigation pursuant to section 15830, 3 Comp. Laws 1915, after plea (People v. Merhige, 212 Mich. 601), and became satisfied that the plea had been made freely, with full knowledge of the nature of the accusation and without undue influence. The court made further inquiry to determine degree of guilt. On December 31, 1926, defendant was sentenced to Detroit house of correction for life. Motion to vacate judgment and plea and for a new trial was filed on March 30, 1927.
Defendant assigns error on the denial of the motion. She and her husband and children lived in Warren, Macomb county. In the front part of the dwelling the husband conducted a grocery. Adjoining was a barber shop of Alexander Miller.
It appears by the record now before us that Miller began having sexual intercourse with defendant early in 1926. Later, fearing the wrath of defendant’s husband and desiring freedom of action, they decided to kill him. In the night of December 15, 1926, while the husband was sleeping, Miller shot and killed him, and in the crime he was aided and assisted by defendant. Both are principals. Miller confessed and pleaded, guilty to the charge of murder. So did defendant. After accepting the pleas the court received full detailed statements and testimony from both, respecting the plea and the crime. Both testified again of the crime in the hearing by the court to determine degree of guilt. The confessions also are in the record.
The grounds of the defendant’s motion, supported chiefly by her affidavit and that of Miller, are that she is not guilty of the crime charged and that she confessed and pleaded while under the dominating influence of Miller; that she is ignorant, “unable adequately to understand and speak the English language,” and that Miller persuaded her to plead guilty. The record is singularly complete. The testimony of defendant and Miller taken after plea relating to the plea and the crime covers 34 pages of the printed record. The confessions in the form of question and answer are exhaustive and cover 46 pages of the printed record. Nothing will be gained by further setting forth the evidence.
The record is convincing that defendant’s plea was freely and voluntarily made. The court questioned her fully in that regard. The record indicates that she understood both questions and answers. A study of the record, a consideration of the circumstances shown, of the relations of defendant and Miller, their conduct before and after the shooting, lead to the conclusion that defendant and Miller were truthful in confession and in testimony after plea, and are otherwise in their affidavits made to support the motion. We agree with the trial judge that justice has not miscarried. People v. Williams, 225 Mich. 133.
Judgment affirmed.
North, Fellows, Wiest, McDonald, 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.
Defendant city owned a piece of land in Oakland county consisting of a little over 21 acres upon which was maintained a piggery used to dispose of its garbage. The land was also used by the city as a dumping ground. During the absence of the mayor a resolution was adopted authorizing its sale to plaintiff for $16,000, less the usual commission which would amount to $800. The following morning notice of a motion for reconsideration was filed by one of the commissioners. Before the next meeting of the council the mayor returned and he and the commissioner who moved for reconsideration voted for the motion; the other three members declined to vote. At this meeting one offer of $25,000 for the land was made, another of $1,000 an acre was made, and the report of an appraisal by competent real estate men fixing its value at $30,000 was filed. At the next meeting the resolution to sell was rescinded, but it is admitted that under the rules 'this attempted action was ineffective. Plaintiff tendered compliance with the terms of the resolution, and, upon the refusal of the city to go on with the deal, filed this bill for specific performance. The following sections of the charter of the city enumerating its powers are deemed important in the consideration of the case:
“45. To purchase, appropriate and own such real estate as may be necessary for public grounds, parks, boulevards, markets, public buildings, public works, and other purposes necessary or convenient for the public good, and for the execution of the powers conferred in this charter or by the statutes of this State; and such buildings and grounds, or any part thereof, may be sold at public sale, or leased, as occasion may require; provided, however, no property of the value in excess of ten cents per capita, according to the last preceding United States census, nor any park, nor any real estate used in carrying on a public utility, or any part thereof, shall be sold, unless such sale be first approved by three-fifths of the electors voting thereon at any general or special election. * * *
“47. To acquire, own, erect, maintain, manage and control real estate, building, institutions and works without the corporate limits of the city, except where prohibited by this charter or the general laws of this State, and to enforce beyond the corporate limits of the city and over such lands, buildings, institutions and property all ordinances and police regulations as may be necessary for the care, protection, control and management thereof in the same manner and to the same extent as if they were located within the city.”
Several defenses were interposed to plaintiff’s bill, one of which, that under the charter the lands could only be sold at public sale, was the basis of the decree dismissing the bill.
To reverse this decree we must accept two contentions advanced by plaintiff’s counsel: (1) That the land in question was held by the city as a proprietor, and not in its governmental capacity; and (2) that the language of the charter, “may be sold at public sale,” does not require a public sale of lands so held. It" is sometimes stated that, in the absence of restrictive provisions in its charter, a municipality has the right to sell property which it has the right to acquire. This statement is, however, too broad. Doubtless property owned by a city as a proprietor and not used or needed in the discharge of its governmental functions may, in the absence of restrictions in the charter, be sold by it, but property used by a city in the discharge of its governmental functions may not be sold by it in the absence- of authority so to do in its charter; some States say it may be sold when it becomes inadequate or otherwise inappropriate for the public use. The latest work on municipal corporations (3 McQuillin on Municipal Corporations [2d Ed.], p. 749), after considering the subject somewhat, says:
“These general expressions, however, are reducible to the proposition that all property of the municipal corporation of a private nature may be sold. But the chief authority for this point of view is the public interest. While it is a recognized rule of the common law that municipal corporations may, in so far as they possess private rights, dispose of their property without special authority from the State, this limitation exists: That property possessed and used by municipal corporations as public agencies of the State for the purpose of governmental administration cannot be alienated by them without special authorization. All property held by the city in fee simple, without limitation or restriction as to its alienation, may be disposed of by the city at any time before it is dedicated to a public use. In other words,r the city has the right to sell or dispose of property^' real or personal, to which it has the absolute title and which is not affected by a public trust, in substantially the same manner as an individual unless restrained by statute or charter; and this power is an incidental power inherent in all corporations, public or private.”
There is no express provision in the charter of defendant city, at least none has been called to our attention, authorizing the private sale of property needed by the city to discharge its governmental functions, or granting such authority by necessary implication. We should, therefore, proceed at once to the crucial question in the case of whether the property here involved was so used. The principal use to which the property here involved was devoted was the disposal of the garbage of the city, although it was also used in part as a dumping ground. The question of when a municipal corporation is discharging a governmental duty, a governmental function, has. arisen most frequently in tort actions for negligence of city employees, and there is quite a wealth of decisions on the subject, a. few of which will be considered in this opinion. Both counsel concede that the precise question here involved has not been settled by the former decisions of this court, but both contend that former decisions of this court are by analogy applicable. Before taking up our own decisions, we shall consider some of the decisions of other States, and first those urged upon us by plaintiff’s counsel:
The New York cases (Kings County Fire Ins. Co. v. Stevens, 101 N. Y. 411 [5 N. E. 353]; People, ex rel. Lehigh Valley R. Co., v. State Tax Com’n, 206 N. Y. App. Div. 549 [202 N. Y. Supp. 310]; Missano v. New York, 160 N. Y. 123 [54 N. E. 744]; Quill v. New York, 36 N. Y. App. Div. 476 [55 N. Y. Supp. 889]) sustain plaintiff’s contention. Three of the cases involved streets and one the disposal of garbage and ashes. It will Ije noted that in the street cases it is held that the municipality was not in the discharge of a governmental function in the care of its streets, a holding we could not follow, as we have expressly held to the contrary. Gunther v. Cheboygan County Road Com’rs, 225 Mich. 619.
In Atlas Life Ins. Co. v. Board of Education of City of Tulsa, 83 Okla. 12 (200 Pac. 171), it was held that the board had the power to lease for 99 years real estate held by it. But the site by reason of the development of the city had become unsuitable for school purposes. The same court held in the later case of City National Bank v. Town of Kiowa, 104 Okla. 161 (230 Pac. 894, 39 A. L. R. 206), that a city could not sell its waterworks and electric light plant, at least without the property being burdened with the duty of continual service. The constitution of Oklahoma, however, permits municipalities to engage in any business and it doubtless is not necessary to observe carefully the distinction between private and governmental rights and ownership under such a constitutional provision.
Ostrom v. City of San Antonio, 94 Tex. 523 (62 S. W. 909); Pass Christian v. Fernandez, 100 Miss. 76 (56 South. 329, 39 L. R. A. [N. S.] 649); and Flannigan v. Bloomington, 156 Ill. App. 162, sustain plaintiff’s contention that in disposing of its garbage a city does not discharge a governmental function. Baily v. Philadelphia, 184 Pa. 594 (39 Atl. 494, 39 L. R. A. 837, 63 Am. St. Rep. 812), involved the lease of a gas plant, and Carlisle Gas & Water Co. v. Carlisle Borough, 218 Pa. 554 (67 Atl. 844), the sale of waterworks. This court in common with nearly every court in the Union is in accord with the Pennsylvania court in holding that the municipality holds its lighting plant and waterworks as a proprietor and not as a governmental agency. Later the Pennsylvania court had before it in Scibilia v. Philadelphia, 279 Pa. 549 (124 Atl. 273, 32 A. L. R. 981), the question of whether, in the disposal of its garbage, the municipality was acting as a governmental agency and, in an exhaustive and able opinion by its Chief Justice, held that it was. It was said:
“The care of public health is undoubtedly a subject-matter of general concern, and how it shall be accomplished is a public question. When the legislature leaves its accomplishment to any degree in the hands of the several municipalities, they act as government agencies, and not as business corporations, in the performance of the power placed at their disposal, or of the duty thus put on them, whichever it may be. That cleanliness makes for health must be accepted as a truism, and that the regular, systematic gathering by municipalities of refuse, including ashes, and the proper, orderly, and efficient disposal thereof, promote cleanliness, is apparent. Such gathering and disposal of refuse is primarily a health measure, the duty to perform which-might have been placed on the health department; the fact that it was put elsewhere makes it none the less a health measure, and hence, a public or governmental function within the police power.”
We now turn to some of the other cases: In City of Louisville v. Hehemann, 161 Ky. 523 (171 S. W. 165, L. R. A. 1915C, 747), the court held the municipality liable for damages to adjacent property and the occupants thereof by reason of using the street as a dumping ground for garbage, but held that it was in the discharge of a governmental function, the court saying:
“In the collection and disposition of garbage, undoubtedly the city acts for the public health, and discharges a governmental function. In this regard it is an agent or arm of the Commonwealth, and, for that reason, is absolved from liability for the negligence of its employees. But there is an element of wrong complained of in this case which goes beyond that. Conceding that a city dump is necessary for the public good, and that Cabel street was the proper place for it, still the city had no right to take or injure adjacent private property, or the occupants in the use thereof without making compensation.”
That a city is in the discharge of a governmental function in the collection and disposal of its garbage is held in the following cases: City of Tuscaloosa v. Fitts, 209 Ala. 635 (96 South. 771); Manning v. City of Pasadena, 58 Cal. App. 666 (209 Pac. 253); James v. City of Charlotte, 183 N. C. 630 (112 S. E. 423); Love v. City of Atlanta, 95 Ga. 129 (22 S. E. 29, 51 Am. St. Rep. 64); Kuehn v. City of Milwaukee, 92 Wis. 263 (65 N. W. 1030); Haley v. City of Boston, 191 Mass. 291 (77 N. E. 888, 5 L. R. A. [N. S.] 1005); Behrmann v. City of St. Louis, 273 Mo. 578 (201 S. W. 547). That a municipality is so acting in the collection: of ashes, refuse, and street sweepings is held in the following cases. Condict v. Jersey City, 46 N. J. Law, 157; Bruhnke v. City of Lacrosse, 155 Wis. 485 (144 N. W. 1100, 50 L. R. A. [N. S.] 1147). Likewise in sprinkling streets. Harris v. District of Columbia, 256 U. S. 650 (41 Sup. Ct. 610, 14 A. L. R. 1471); Conelly v. City of Nashville, 100 Tenn. 262 (46 S. W. 565); Kippes v. City of Louisville, 140 Ky. 423 (131 S. W. 184, 30 L. R. A. [N. S.] 1161). In each instance the act of the municipality is in the interest of the public health and the municipality acts as the arm of the State. Its property devoted to such service-is devoted to the performance of a governmental function. This, we think, is in accordance with the great weight of the authorities. The following cases will prove of interest: City of Asheville v. Herbert, 190 N. C. 732 (130 S. E. 861); Driscoll v. City of New Haven, 75 Conn. 92 (52 Atl. 618); Meldrum v. District of South Vancouver, 22 B. C. 574; Herald v. Board of Education, 65 W. Va. 765 (65 S. E. 102, 31 L. R. A. [N. S.] 588).
Turning now to our own cases, it should be first noted that in People v. Gardner, 136 Mich. 693, and Pantlind v. City of Grand Rapids, 210 Mich. 18 (15 A. L. R. 280), this court sustained ordinances regulating the collection and disposal of garbage upon the ground that they were a valid exercise of the police power. See, also, People v. Gordon, 81 Mich. 306 (21 Am. St. Rep. 524); City of Grand Rapids v. DeVries, 123 Mich. 570. In Attorney General v. City of Detroit, 225 Mich. 631, it was held (quoting from the syllabus):
“In matters of public health, of police, and such activities, municipalities act as agents of the State, but in the management of water works, electric light plants, etc., of which they are proprietors, they act in matters of purely local concern as also in numerous other activities pertaining to the locality as distinguished from the State at large.”
See, also, Gunther v. Cheboygan County Road Com’rs, supra. The recent case of Foss v. City of Lansing, 237 Mich. 633, was an action brought to recover damages occasioned by the negligence of the driver of a truck used by the city in hauling its garbage. The record disclosed that the city received an incidental profit in its garbage disposal. ' The court held, following earlier cases, that, where the municipality received such profit, it was liable for the negligence, although it was in the discharge of a governmental function, the holding being (we quote the syllabus) :
“Where there is an incidental profit to a municipality in collecting and disposing of garbage, by feeding it to hogs, it is liable for the negligence of its employee in operating a truck while engaged in collecting such garbage, although in so doing the municipality is performing a governmental function.”
. Other courts have held that effect should be given the matter of revenue in cases involving negligence. In considering such question, it was said in Scibilia v. Philadelphia, supra:
“Where the authority exercised or thing done is on the border line between the private and the governmental capacities in which municipalities may act, and has features suggestive of both, charges made for, and commercial income derived from, the rendition of the services involved, have been given decisive influence as elements which determine the case to be of a kind where damages for injuries may be recovered, and the absence of these elements has been allowed force the other way. Here, however, no evidence of income received from the activity under consideration appears, and even though it be considered, for the purpose of deciding the present appeal, that some small incidental revenue may be derived through the disposal of refuse gathered by the municipality, this would not have the effect of changing the duty of collecting and disposing of such refuse from a purely public to a corporate, or business, function.”
In the instant case, however, it does not appear that the defendant city received any revenue from its garbage disposal.
So far as our cases have gone, we think they are in line with the weight of authority and sustain defendants’ contention. The matter of public health is not local, it concerns the State. In matters relating to public health, the city acts as an arm of the State and the property whose use is devoted to the public health is used in the discharge of a governmental function. There is no special authority in the charter of the city or elsewhere, so far as called to our attention, which authorizes the city to sell at private sale property which is devoted to the discharge of those duties which devolve upon it as an arm of the State.
We attach no significance to the fact that the property is without the boundaries of the city. The Constitution authorizes the city to own and use it (art. 8, § 22). It may not exercise the power of eminent domain to acquire it. (City of Detroit v. Oakland Circuit Judge, 237 Mich. 446), but having lawfully acquired it and having devoted it to a State use, it is beyond the manipulations here undertaken for the benefit of private speculators.
The decree will be affirmed, with costs.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Williams, J.
Plaintiffs challenge a township’s zoning ordinance, claiming it excludes mobile home parks. They also argue that enforcement of the ordinance amounts to confiscation of their property. This forces us to examine again the appropriate standard for court review of requested zoning changes. This requires revisiting our recent zoning trilogy of Sabo v Monroe Twp, 394 Mich 531; 232 NW2d 584 (1975); Nickola v Grand Blanc Twp, 394 Mich 589; 232 NW2d 604 (1975), and Smookler v Wheatfield Twp, 394 Mich 574; 232 NW2d 616 (1975). In Sabo, we adopted the concurring opinion in Kropf v Sterling Heights, 391 Mich 139, 164 ff; 215 NW2d 179 (1974), which held that "[e]ven if present zoning is not unreasonable or confiscatory, a proposed use should be permitted if reasonable under all the circumstances”. 394 Mich 531, 536-537 (footnotes omitted). We hold that the correct test was expressed in the majority opinion of Kropf v Sterling Heights, 391 Mich 139, 158; 215 NW2d 179 (1974). The plaintiff must show:
"[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or
"[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.”
We find that plaintiffs have not successfully proved either contention under the appropriate rules. We therefore sustain the judgments of the trial court and the Court of Appeals.
I — Facts
Plaintiffs own approximately 117 acres about 20 miles south of Flint in Livingston County. On the east, the land abuts a service drive, which in turn abuts US-23, a limited-access highway. East of the expressway the land is agricultural. There is another agricultural area to the south and west of the property. Apparently, all are working farms. One mile farther west is a man-made lake, Lake Shannon, around which some single-family residences have been built.
In the northwest quadrant is a manufacturing plant. Immediately adjacent to the site on the north is an 18-hole public golf course.
Plaintiffs petitioned to have their property changed from "AR”, agricultural-residential, to "TR-1”, which would permit a mobile home park to be developed.
There appear to be two separate areas designated for mobile home parks on the proposed future land use plan for the township. One, of 80 acres, was rezoned to that classification by order of the circuit court. The other encompasses 600-800 acres. As of oral argument, there was no existing mobile home park in the township, nor had any landowner other than the Kirks applied for rezoning or for a permit.
Plaintiffs contend that neither designated area is really suitable for mobile home park use. They argue that the rezoned parcel is unacceptable because it is remote from substantial traffic patterns, and the 600-800 acre site is undesirable because of its distance from access to the highway.
There is some question whether the land use plan was ever officially adopted, but even those who say it was admit it was adopted no earlier than one month after plaintiffs’ lawsuit was filed. No land, however, has been zoned for mobile home parks in accordance with this plan. The zoning map remains different from the land use plan, and the township has not rezoned any land without application by the landowner since the plan’s "adoption”. The plan itself has not been amended.
The separate Tyrone Township Trailer Park Ordinance requires that an application for an annual permit be filed, along with site plans, with the township clerk. Other requirements include a minimum lot size of 6,000 square feet, and that residents register with the permit holder. All such parks must be in a TR district.
Plaintiffs contend that their proofs demonstrate:
1. The property cannot be developed economically as single-family or as agricultural property.
As agricultural property, plaintiffs’ witness maintains the income received from the property would not be sufficient to yield the necessary return once taxes and insurance were paid.
As for single-family residences, plaintiffs’ witness testified that because of the cost of such things as sewage treatment and utilities, in order to insure a profit the lots would have to sell for just under $6,000. This would make them more expensive than comparable lots in the area which sell for $4,000 to $5,500.
The lack of public water and sewer service would make the site unattractive for industrial use, since property only four miles away comes so equipped. Further, the apparent demand for commercial use is apparently quite small in the general area.
2. It is more practical to develop the site as a mobile home park, primarily because the expenses of sewage collection and disposal can be spread over a greater number of units in a mobile home park than in a single-family development. The problem is particularly acute on plaintiffs’ property, they argue, because there is no public sewer or water system available or planned. The system will cost more than might be normally anticipated because the land’s heavy clay soil makes it impossible to build conventional septic tanks.
3. Location of the property makes it suitable for a mobile home park, surrounded as it is by open space and equipped with direct access to US-23.
4. There is a present demand for a mobile home park on this site.
5. A mobile home park on the property is the highest and best use at the present time.
6. Development of the parcel as a mobile home park would have no adverse effect on the public health or safety, or on the value of surrounding property.
7. Use of the property as a mobile home park would not affect the level of Lake Shannon, but the fertilizer used on the lawns would add to the phosphate level in the lake. Plaintiffs’ witness, however, emphasized that the phosphate damage would be comparable to that from single-family residences with lawns or from agricultural use on the site.
8. There was a great deal of public pressure on township officials to deny the rezoning.
On the other hand, the defendant township contends:
1. If the land were developed as single-family residential, it would produce 70 building sites, yielding plaintiffs a gross return of $280,000 to $385,000 on an initial investment of $70,000 to $75,000.
2. When plaintiffs bought the property, they did not verify the zoning classification, even though they bought it intending to build a mobile home park on the site.
3. While opposition to the rezoning application was heated, plaintiffs do not contend they did not receive a fair hearing. The planning commission denied the rezoning request because the majority felt the land was ideally suited for industry. The future land use plan contemplates light-industrial use in a portion of the disputed site.
4. Development of a mobile home park on the site would speed the flow of drainage to adjoining land.
5. The development would discharge 12,500,000 gallons of treated sewage into Lake Shannon, which, because it would not be phosphate-free, would adversely affect the lake ecology.
6. There is no need or demand for mobile home parks in the township, and, on the contrary, requests have been received for light-industrial sites in areas around the subject property. Defendant points out that the area rezoned by court order to a mobile home park district has not yet been used for such a park.
The trial court granted defendant’s request for a dismissal, holding that plaintiffs had failed to carry their burden of proof that the zoning ordinance was unreasonable, that it was unreasonable as applied to the subject property, and that there was a concerted effort by township officials to exclude mobile home parks. Further, the court found that confiscation had not been established, inasmuch as plaintiffs were gaining income from the undeveloped property almost equal to the annual tax, and that, even considering the required $70,000 investment in the sewage treatment unit, the sale of 70 residential units at the going market price would result in a 400% return on the investment. The court also found no abuse of the township’s policy powers.
The Court of Appeals originally reversed the trial court’s holding on the basis of the "preferred use” doctrine. However, following Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974), reversing decisions relying on this doctrine, we remanded this case to the Court of Appeals. That Court, in a memorandum opinion, then found no reversible error. We granted leave to appeal August 23, 1974. 392 Mich 789.
II — The Appropriate Standard
The principles and tests to use to determine whether the present zoning of plaintiffs’ property is valid was detailed in Kropf.
The important principles require that for an ordinance to be successfully challenged plaintiffs prove:
"[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or
"[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.” 391 Mich 139, 158.
The four rules for applying these principles were also outlined in Kropf. They are:
1. " [T]he ordinance comes to us clothed with every presumption of validity.’ ” 391 Mich 139, 162, quoting from Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957).
2. " [I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property * * * . It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.’ ” 391 Mich 139, 162, quoting Brae Burn, Inc.
3. "Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.” 391 Mich 139, 162-163.
4. " 'This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases.’ ” 391 Mich 139, 163, quoting Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).
See Nickola v Grand Blanc Twp, 394 Mich 589, 595, 600-601; 232 NW2d 604 (1975) (Williams, J.).
Therefore, "[a] zoning ordinance will be presumed valid, with the burden on the party attacking it to show it to be an arbitrary and unreasonable restriction upon the owner’s use of his property.” 394 Mich 589, 595, 600.
In Sabo v Monroe Twp, in a 3-to-2 decision, we affirmed the Court of Appeals and allowed the proposed use on the ground that "[t]he record * * * establishes that the proposed use * * * is reasonable”. 394 Mich 537. We noted that "construction of a mobile-home park would be 'harmonious, compatible, appropriate’ and would not 'impinge unreasonably on the value or use of nearby properties or impair sound communal development.’ ” 394 Mich 537, fn 6.
Sabo represented the theory proposed in the concurring opinion in Kropf. In Sabo, however, we also recognized that the Kropf concurrence would have required that proofs be presented administratively, and that judicial review be directed to determining whether there is support on the record for an administrative finding that the proposed use is reasonable. However, we recognized "it is the present practice to present the proofs in circuit court and for a reviewing court to make its own independent examination and analysis of the record”. 394 Mich 537.
Thus, both the majority in Sabo, and the Kropf concurrence, recognized that the Legislature had not enacted "an administrative procedure act providing for review of local agency action in con tested cases” for use if local authorities deny a change in zoning. 391 Mich 139, 164 at 173.
This procedure is still non-existent. At the present time, the Legislature has chosen to place the zoning authority in the townships and municipalities.
Upon reflection, it does not seem wise as Sabo did to attempt to engraft upon the established legislative scheme of zoning and re-zoning, a new system which admittedly requires new legislative action to operate optimally. Should the Legislature choose to revise the approach to zoning amendments in our state, this Court would, of course, view matters differently. But, as of the present time, it seems wisest to return to the philosophy expressed in Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957), and the Kropf majority. As we said in Brae Burn, and quoted again in Kropf, "The people of the community, through their appropriate legislative body, and not the courts, govern its growth and its life”. 391 Mich 139, 161.
Therefore, unless the Legislature speaks otherwise, the appropriate standard by which the validity of a zoning ordinance may be challenged is that, to overcome the presumption of validity with which a zoning ordinance, as all legislation, is clothed, the party attacking the ordinance bears the burden of proving that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his or her property. 391 Mich 139, 162.
Having clarified the standard, we turn to a consideration of whether plaintiffs by their proofs have met it. We hold they have not.
Ill — Exclusion—Or Not?
Plaintiffs present two arguments that require consideration: (1) that the township zoning ordinance excludes mobile home parks, and, (2) that the zoning classification, as applied to plaintiffs’ property, is confiscatory.
In Kropf, we said,
"On its face, an ordinance which totally excludes from a municipality a [legitimate] use * * * also carries with it a strong taint of unlawful discrimination and a denial of equal protection of the law as to the excluded use.” 391 Mich 139, 155-156. (Emphasis in original.)
We agree with the trial court that it has not been demonstrated that Tyrone Township is excluding mobile home parks.
The proposed master plan for future land use indicates two areas earmarked for mobile home parks, one of 80 acres and the other of 600-800 acres. There was some question as to whether the master plan was ever adopted. However, such a plan does exist, and the fact of its adoption goes only to the evidentiary weight of its reasonableness, and not to its admissibility. Biske v City of Troy 381 Mich 611, 616; 166 NW2d 453 (1969).
There has been no request made by the owners of the larger parcel for rezoning. Of greater significance is the status of the 80-acre property rezoned to mobile home park use by the same court which denied plaintiffs’ request. Despite the rezoning gained through successful court action, as of oral argument, there had been no request made for a building permit, and no progress made on actually building a mobile home park.
Thus the facts before us differ from other cases in which exclusion was present. For example, in Gust v Canton Twp, 342 Mich 436, 438; 70 NW2d 772 (1955), the ordinance and record disclosed the exclusion of mobile homes from the entire township. In Roman Catholic Archbishop of Detroit v Village of Orchard Lake, 333 Mich 389, 391; 53 NW2d 308 (1952), we found that although the ordinance, on its face, permitted churches and schools in about 10% of the village’s area, in effect, they were excluded by ordinance from the entire village. In Dequindre Development Co v Warren Twp, 359 Mich 634, 638; 103 NW2d 600 (1960), although the township already contained one mobile home park, we held that exclusion was established where the zoning ordinance "in effect, prohibited trailer parks by making no provision therefor”.
Plaintiffs attempt to demonstrate that by zoning land for mobile home parks which is unsuitable for that purpose, the township is, as a practical matter, following a policy of exclusion. As to the 80 acres judicially rezoned, it was apparently not the judgment of either the trial court or the plaintiff requesting the rezoning that the land was unsuitable for mobile home parks. As to the 600-800 acres, there has been no such record developed before this Court.
At the present time there is no evidence, in view of the apparent dearth of requests, that the township precludes the possibility of rezoning other suitable land for this purpose if needed.
Under the facts before us today, a case of exclusion of mobile home parks from the township has not been established.
IV — The Confiscation Problem
Plaintiffs have also failed to demonstrate that the township zoning ordinance is confiscatory as to their property.
In Kropf we required the property owner claiming confiscation to prove that application of the existing ordinance to his property would "preclude its use for any purpose to which it is reasonably adapted”. 391 Mich 139, 163.
Although there is no doubt the subject land’s value as a mobile home park exceeded its value as residential property, it still was worth a great deal as zoned. A showing of confiscation will not be justified by showing a disparity in value between uses. Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 433; 86 NW2d 166 (1957). See Reibel v Birmingham, 23 Mich App 732, 738; 179 NW2d 243 (1970).
This is not a case where the land has been proven unsuitable for use as zoned, Anderson v City of Holland, 344 Mich 706, 710; 74 NW2d 894 (1956), nor has there been a demonstration that there is no market for single-family residences. Long v Highland Park, 329 Mich 146, 152; 45 NW2d 10 (1950).
Although we hear zoning cases de novo, as in all equity cases, we give considerable weight to the trial court’s findings. Christine Building Co v City of Troy, 367 Mich 508, 517-518; 116 NW2d 816 (1962). The trial court found, and the Court of Appeals in effect sustained the finding, that there was no confiscation in this case. We agree.
Although a substantial investment was necessary in order to build a sewage treatment plant for a single-family residence, the same type of physical plant was required for the mobile home park. The only difference was that the park provided a greater number of units over which to amortize the cost. However, even with a smaller, number of units, the trial court found the property still has sufficient value to ensure plaintiffs a profit on their investment.
V — Conclusion
Plaintiffs have not established any other reason to require reversal of the lower court decisions. Although we do not approve of the apparent looseness concerning adoption or nonadoption of the master plan, it is not necessary to review this issue in order to come to today’s decision.
The Court of Appeals and the trial court are sustained.
No costs; a public question.
Coleman, Lindemer, and Ryan, JJ., concurred with Williams, J.
The engineering site report describes it as 117 acres with four potholes of 1-to-3 acres each.
Plaintiffs’ witness, however, testified that the level of Lake Shannon would not be affected.
A review of the record, however, as clarified on oral argument, indicates that the phosphate run-off would result not from sewage, which would be treated to reduce about 80% of the phosphate by volume, but from the use of lawn fertilizers.
The Kropf concurrence suggested that until the Legislature acted, GCR 1963, 711, providing for an order of superintending control might be used to appeal adverse zoning determinations. However, this would require reliance on an extraordinary writ as a normal part of the appellate procedure, a function which it was not intended to fulfill. 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 57.
We do not have an indication on the record of why this property was rezoned. | [
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Ryan, J.
We granted leave in this workmen’s compensation case in conjunction with Lahay v Hastings Lodge No 1965, BPOE, 398 Mich 467; 247 NW2d 817 (1976), decided today which concerned the computation of the average weekly wage for a part-time employee who concurrently held a full-time job as well. The issue in this case concerns the proper method of computing the "average weekly wage” under MCLA 412.11; MSA 17.161 for an employee engaged in seasonal employment.
Defendant H. C. Price Construction Company was engaged in the construction of a pipeline in Michigan’s Upper Peninsula. The plaintiff, Robert Gasparick, was working as part of Price’s tree clearing operation when he was struck by a falling tree on August 10, 1968 and sustained severe injuries. Gasparick had worked for only two weeks prior to the accident and received two paychecks. The first, for $258.26, included 28 hours of over time and the other, for $307.12, included 32 hours of overtime.
The hearing referee, whose decision was affirmed by the Workmen’s Compensation Appeal Board, found that plaintiffs "average weekly wage” was $282.69, the total wages divided by the number of weeks worked, based on the formula of the second section of MCLA 412.11; MSA 17.161.
The Court of Appeals denied leave to appeal.
Initially, the "average weekly wage” in this case is to be calculated according to MCLA 412.11; MSA 17.161, which was then in effect, and which states:
"(1) The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the injury, the same to be fixed as of the time of the injury, but to be determined in view of the nature and extent of the injury. The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.
"(2) Average weekly wage’ means the weekly wage earned by the employee at the time of his injury; inclusive of overtime, premium pay, and cost of living adjustment, and exclusive of any fringe beneñt or other beneñts which continue during disability, but in no case less than 40 times his hourly rate of wage or earning. When it is found that the established normal work week for the employee’s classification of employment in the establishment of the employer where the employee suffered a personal injury is less than 40 hours, then the average weekly wage shall be established by multiplying the employee’s hourly rate or earning by the number of hours customarily worked in the employee’s classification or employment in that place of employment or his actual earned wages, whichever is greater.
"(3) When the department finds that the employee was employed specifically and not temporarily on a part-time basis, the average weekly wage shall be determined by multiplying the hourly rate or earning by the average number of hours worked in the part-time employment. When it is found that the employee has worked an average of 25 hours or more per week in all of his current employments, he shall not be considered a part-time employee.
"(4) If the hourly earning of the employee cannot be ascertained, or if no pay has been designated for the work required, the wage, for the purpose of calculating compensation, shall be taken to be the usual wage for similar services where such services are rendered by paid employees.
"(5) In cases where there are special circumstances under which the weekly wage cannot justly be determined by applying the above provision, an average weekly wage may be computed by dividing the aggregate earnings during the year prior to the injury by the number of days when work was performed and multiplying such daily wage by the number of workdays customary in the employment, but not less than 5.” (Emphasis added.)
Price suggests that the formula for the computation of "average weekly wage” as outlined in subsection 2 should not be employed in this case because the seasonal nature of the pipeline business gives rise to "special circumstances” justifying application of a different formula for the determination of Gasparick’s "average weekly wage”. He cites 2 Larson, Workmen’s Compensation Law, § 60.22, in support of this proposition:
"Claimant’s probable future loss is a full-time loss only if the line of work for which he is trained and qualified will normally continue to provide full-time employment. It is well known that many employments are normally seasonal, and wages may to some extent be adjusted so that the worker expects to live on his seasonal earnings during the regular periods of unemployment. If a school teacher, for example, is paid $1,000 a month for nine months of the year, there is no reason to calculate earning capacity on the unrealistic basis of $1,000 a month for twelve months; if the wage statute says that monthly wages shall be multiplied by twelve, this (and any comparable situation) is an appropriate occasion for application of the residual clause, which exists for the express purpose of taking care of just such nonstandard wage relations.” (Emphasis added.)
The residual clause to which Professor Larson refers, however, has been eliminated from the current Michigan statute, thus precluding a computation of Gasparick’s "average weekly wage” in accordance therewith.
Price acknowledges that a resort to subsection 5 of the statute would not be helpful to its argument in the case at bar because, even if plaintiff had established an earning record with Price during the year prior to the accident, the formula in that section "is clearly not intended to encompass a situation where the employment is other than essentially full-time throughout the year.” Subsection 4 of the statute is inapplicable in this case because plaintiffs hourly earnings can be ascertained. Thus, there exists no specific provision in the Michigan statute which might be employed to reduce Price’s liability on the basis that its workers hold seasonal jobs.
Price’s solution to this apparent dilemma is to urge this Court to judicially enact a seasonal employment formula by the application of equitable principles.
Price argues that the operation at which plaintiff was working was seasonal; that the average weekly wage for seasonal employees' should be calculated differently than the average weekly wage for an employee whose employment is continuous over the year; that seasonal employees, due to the nature of the employment, will earn a higher rate of pay than year-round employees; and that the most equitable formula in this case would be to take plaintiffs actual average weekly pay of $282.69, multiply that by the 26 weeks during which plaintiff could have reasonably expected to work for Price, and divide this number by 52, the number of weeks in a year, to arrive at the average weekly wage base to compute compensation benefits.
This argument, however equitably appealing, is utterly without statutory support. This Court is not empowered to fashion what it may perceive to be the equitably appealing result of creating a seasonal employment formula for the computation of the plaintiffs "average weekly wage” when the legislative intent, which is clearly expressed in the statute, is otherwise.
It must be understood that, according to subsection 1 of MCLA 412.11; MSA 17.161, the Legislature designed the act to compensate an employee for his loss of earning capacity resulting from work-related injury and not merely his loss of wages; subsections 2 through 5 of the statute, which prescribe the methods for calculating the wage base, must be read with that in mind. Consequently, although designed to compensate an employee and not to punish an employer, the act itself reveals a legislative determination to require some employers in certain instances to bear the burden of their employees’ incapacitating injuries despite the fact that, at times, the compensation paid will be in excess of the amount of actual wages that would have been earned by an employee.
One such example is the case of a worker employed at several part-time jobs by different employers whose injury in one of the jobs incapacitates him in all of them. The Legislature has dealt with such cases by creating a fictitious 40 hour week for the employee who works part-time for one employer, but whose total employments exceed 25 hours per week, and whose injury suffered on one part-time job affects his earning capacity in his other current employments. Cf. Lahay v Hastings Lodge No 1965, BPOE, supra.
Another application of "this legislative policy occurs in the seasonal employment situation such as in the case at bar. This is evident, not only because of the absence of a special provision in the statute dealing with computation of the wage base for an employee engaged in seasonal work, but also because the Legislature has eliminated the residual clause as it was formulated in 1912 (1st Ex Sess) PA 10, part II, § 11, which, arguably, would have controlled in this case.
Therefore, just as in the case of the employer of the part-time worker who was incapacitated in all of his part-time jobs, the seasonal employer whose employee’s work-related injury incapacitates him from off-season employment must bear the burden of compensating the employee for his year round loss of earning capacity.
It is evident, of course, that this legislative scheme may appear to give rise to many potential inequities. However, on closer analysis, most of the problems can be eliminated by application of the limiting language of the last sentence of subsection 1 of the statute.
As we interpreted the limiting language of subsection 1 in Bowles v James Lumber Co, 345 Mich 292, 295; 75 NW2d 822 (1956), the expression "same or another employment” means "the 'same’ employment in which [the employee] was hurt or * * * 'another’ employment which he undertook in its place”. Because an off-season job can fairly be considered to be taken in place of the seasonal job, wages earned therefrom can properly be considered in calculating the wages-plus-compensation figure to be used in applying subsection l’s limiting language. Thus, during the "season”, the seasonal employer will pay his injured employee full compensation based on the employee’s average weekly wage as computed according to subsection 2, and reduced by earnings from substitute employment according to subsection 1. During the off-season, the amount of compensation will be diminished by the amount of wages earned at the replacement job according to subsection 1 if earning capacity regarding that job is unaffected or only partly affected by the injury.
This result assumes that the employee’s off-season job pays as much, pro tanto, as his seasonal job, which may or may not be the case. Inequities which may seem to arise from the absence of a specific provision for the computation of the injured seasonal worker’s "average weekly wage” must be addressed to the attention of the Legislature for correction in the light of the declared legislative purpose to obligate employers to compensate employees for loss of earning capacity and not mere loss of wages.
We hold, therefore, that the hearing referee was correct in his application of subsection 2 of the statute to the computation of benefits in this case and in his computation of the plaintiffs average weekly wage. Accordingly, the decisions of the referee and of the Workmen’s Compensation Appeal Board are affirmed.
Affirmed.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, and Lindemer, JJ., concurred with Ryan, J.
1967 PA 140 was approved on June 27, 1967 and ordered to take immediate effect. The accident occurred August 10, 1968. In 1969, this statute was amended, 1969 PA 317, and appears in essentially the same form as MCLA 418.371; MSA 17.237(371), changes therein being immaterial to the disposition of this appeal.
Brief of appellant, at 18.
An example of the residual appeared in 1912 (1st Ex Sess) PA 10, part II § 11, a predecessor of the current statute, which stated:
"In cases where the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured employee, and of other employees of the same or most similar class, working in the same or most similar employment, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee at the time of the accident in the employment in which he was working at such time.”
The statute was construed generally in Andrejwski v Wolverine Coal Co, 182 Mich 298; 148 NW 684 (1914). This provision was eliminated when the statute was amended, 1943 PA 245.
The last sentence of subsection 1, however, operates to prevent recovery in excess of the employee’s total wages when the fictitious 40-hour week is used. Thus, an employee who works 15 hours per week for employer A, and 20 hours per week for employer B, and whose injury sustained while working for A incapacitates him in both jobs, is not a part-time employee under section 3. His wage base is calculated by multiplying his hourly wage from A times 40. Subsection 2, MCLA 412.11; MSA 17.161. If he earned $2 per hour from both employers ($30 per week from A and $40 per week from B), his average weekly wage for workmen’s compensation purposes would be $80. Because the employee’s injury incapacitated him in both job A and job B, but because he sustained his injury while working for A, A must pay compensation based on the $80 average weekly wage. But subsection 1 limits the employee’s recovery to $70 per week less wages earned at job A or job B, or from another job taken in lieu thereof. Lahay v Hastings Lodge No. 1965 BPOE, 398 Mich 467; 247 NW2d 817 (1976); Bowles v James Lumber Co, 345 Mich 292; 75 NW2d 822 (1956).
This example illustrates how the legislative policy expressed in the statute can operate to compel one employer to pay an employee more in compensation than he would have paid in wages. This result, however, is understandable if one remembers that it is the legislative intent to compensate loss of earning capacity, not merely lost wages.
The Workmen’s Compensation Appeal Board has apparently applied this sort of reasoning in the past. Plaintiff cites two cases in which a seasonal employee’s average weekly wages were calculated without reference to the period over which the employee could reasonably have been expected to work. In Stahlbaum v Frank Strausberg & Son Co, 1973 WCABO 276, the appeal board upheld an award to a seasonal employee which included a determination of an average weekly wage without reference to the term of employment. In Dougherty v Carr School, Fourth Class School, District Six, 1962 WCABO 377, the board sustained an award of compensation to a schoolteacher in the vacation period when school was not in session.
The “unaffected” off-season job can be considered for the purposes of the limiting language of § 1 of the statute because it is not a "concurrent employment” with the seasonal job. Consequently, the proscription of Bowles v James Lumber Co, supra, would not apply. | [
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] |
Per Curiam.
Both respondent and the State Bar Grievance Administrator appeal from an order of the State Bar Grievance Board reducing discipline ordered by Wayne County Hearing Panel #17 from a three-month suspension to a reprimand.
The case was remanded to the State Bar Grievance Board to state the reasons for modification of the suspension order. In its written opinion, the board concluded that a reprimand was the appropriate penalty because the respondent had practiced law almost 20 years with "an unblemished record” and "the complicated financial transactions” in question took place among "sophisticated business people”.
The complaint against Mr. Charlip arose out of a series of real estate transactions. A warranty deed, signed by the respondent, conveyed certain property from his corporation to Mr. Freedman and Mr. Falk. The deed did not mention two mortgages on the property. Another instrument contained an agreement to discharge one of the mortgages. Mr. Charlip’s signature also appeared on this instrument.
The respondent testified that he did not intend to convey the property, but that Mr. Freedman and Mr. Falk completed the deed after he had signed a blank form. He stated that his promise to discharge the mortgage was contingent on payment of an additional $1,500 by the purchasers. The purchasers testified that they never agreed to pay the $1,500. Mr. Charlip instigated foreclosure proceedings on the disputed mortgage. The mortgage was foreclosed, and Freedman and Falk paid $8,875.61 to redeem from the foreclosure sale. The respondent retained this amount four years before returning it to Freedman and Falk.
We find the respondent’s foreclosure and retention of the entire redemption payment to be mis conduct requiring the .imposition of discipline. We affirm the State Bar Grievance Board’s evaluation of the appropriate penalty, but vacate the assessment of expenses against the respondent. Grievance Board Rule 16.24(h).
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Lindemer, and Ryan, JJ., concurred. | [
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Kavanagh, C. J.
In Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976), released today, we examined the legislative grant of immunity to the state per 1964 PA 170; MCLA 691.1401 et seq., MSA 3.996(101) et seq.
In the instant case, we are called upon to examine the common-law doctrine of state governmental immunity. We hold that the common-law doctrine of state governmental immunity is abrogated. This ruling is prospective, with the exception of the instant case and any cases now pending in which an express challenge to the common-law defense of state governmental immunity has been made and preserved.
I.
According to plaintiffs’ complaint, Paul Pittman, then a 16-year-old student in the Taylor Public Schools, was provided with chemicals by the individually named teachers to construct a rocket as a science project. On April 24, 1969, Paul began to mix the chemicals at his home. An explosion resulted and he was severely injured.
On April 20, 1972, suit was filed against the City of Taylor, the Taylor Board of Education, the individual teachers and the chemical manufacturer.
The City of Taylor moved for summary judgment arguing that the Taylor Board of Education was an agency of the state over which the city had no control, thus they could not be liable for its actions. Summary judgment for the city was granted on July 21, 1972. This order was not appealed.
The Taylor Board of Education moved for summary judgment on grounds of state governmental immunity. Summary judgment for the board was granted on July 17, 1972. It is that judgment which we are called upon to review.
II.
Unlike Thomas, supra, which raised issues of immunity under the terms of the governmental immunity act, MCLA 691.1401 et seq.; MSA 3.996(101) et seq., this case must be resolved according to common-law governmental tort immunity extant in 1969.
The governmental immunity act was originally enacted in 1964. The specific section granting immunity, 1964 PA 170, § 7 (MCLA 691.1407; MSA 3.996[107]), was found to exceed the scope of the title of the act. Consequently, it was declared an unconstitutionally enacted provision under Const 1963, art 4, § 24, Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971), and was void from the date of its original passage. Briggs v Campbell, Wyant & Cannon, 379 Mich 160; 150 NW2d 752 (1967). The Legislature did not cure the constitutional defect until the enactment of 1970 PA 155, effective August 1, 1970. Thus, as appellant claims, any claim arising prior to August 1, 1970, is subject to the common-law governmental tort immunity.
In determining what that common law was, we see no purpose in reviewing the extensive list of cases that have followed this Court’s initial attempt at abolishing governmental tort immunity and which did in fact abolish immunity for municipal corporations. Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961).
We acknowledge that on April 24, 1969, the state, including school boards, enjoyed immunity from tort liability under common-law principles. Sayers v School District No 1, Fractional, 366 Mich 217; 114 NW2d 191 (1962).
However, we are now persuaded that those principles should no longer be given effect.
An examination of the origins of common-law governmental immunity in this country would show that the importation of the principle was the product of an unfortunate "misunderstanding” more appropriate to life and government in the early 19th century than to the age of pervasive governmental activity we know today.
In Michigan, the doctrine of governmental immunity was shaped in its early days by the "experience and environment” of our esteemed forebears on the bench. In later days the courts all too often applied the outmoded forms of the past. The distinction present in our case law between the immunity of the state and that of other governmental units seems particularly anachronistic in today’s society.
Government "instituted for [the] equal benefit, security and protection [of the people]” must accept responsibility for misfeasance causing injury to its citizens during the course of normal governmental operations. "It is plainly unjust to refuse relief to persons injured by the wrongful conduct of the State. No one seems to defend that refusal as fair.” Willis v Department of Conservation & Economic Development, 55 NJ 534, 537-538; 264 A2d 34, 36 (1970).
The reasons given by this Court for abolishing the common-law defense of governmental immunity for municipal corporations are equally relevant in this situation.
"The rule of governmental immunity has as legal defense only the argument that age has lent weight to the unjust whim of long-dead kings. It is hard to say why the courts of America have adhered to this relic of absolutism so long a time after America overthrew monarchy itself!
"[I]n relation to the doctrine of governmental immunity, 'the application of the rule is more harmful than helpful and results in more injustice than it prevents.’ ”
Williams v Detroit, 364 Mich 231, 258, 265; 111 NW2d 1 (1961).
The Court was faced with a related situation in Parker v Port Huron Hospital, 361 Mich 1; 105 NW2d 1 (1960), wherein we abrogated the common-law immunity of charitable institutions: "It is our conclusion that there is today no factual justification for immunity in a case such as this, and that principles of law, logic, and intrinsic justice demand that the mantle of immunity be withdrawn”. Id at 25. That same analysis is appropriate to this case.
"The doctrine of governmental immunity is an historical anachronism which manifests an inefficient public policy and works injustice upon everyone concerned.” Brown v Wichita State University, 217 Kan 279, 297; 540 P2d 66 (1975).
Accordingly, we hold that the traditional common-law judge-made immunity that the state and its instrumentalities heretofore enjoyed from its torts should be and it hereby is abrogated.
In so doing, we agree with the Supreme Court of Minnesota that
"[t]he doctrine of sovereign immunity is an exception to the fundamental concept of tort law that liability follows tortious conduct and that individuals and corporations are responsible for the acts of their employees acting in the course of their employment. We are aware of no substantial reasons, and none have been called to our attention, which support the continuation of this exception to the well-established principles of tort law. And we will certainly not retain the doctrine on the basis of stare decisis alone.
" ' * * * [W]hen a rule, after it has been tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment.’ Cardozo, Selected Writings of Benjamin Nathan Cardozo, pp 107, 152 (1947).
"The reasons for the creation of the state’s tort immunity are now obscured. * * * Because no compelling reasons have been presented in support of its continued existence, we have concluded that the time has come for the abandonment of the rule.” Nieting v Blondell,—Minn—; 235 NW2d 597, 601 (1975).
As we said in Williams: "We eliminate from the case law of Michigan an ancient rule inherited from the days of absolute monarchy which has been productive of great injustice in our courts”. Williams v Detroit, 364 Mich 231, 250; 111 NW2d 1 (1961).
The holding we announce today is prospective, with the exception of the instant case and any cases now pending in which an express challenge to the common-law defense of governmental immunity had been made and preserved. See Bricker v Green, 313 Mich 218; 21 NW2d 105 (1946).
The Wayne County Circuit Court order of July 17, 1972, granting summary judgment in favor of the Taylor Board of Education is hereby vacated and this case remanded to Wayne County Circuit Court for further proceedings in conformity with this opinion.
No costs, a public question.
Levin and Fitzgerald, JJ., concurred with Kavanagh, C. J.
In reaching this result we reexamined the case of McDowell v State Highway Commissioner, 365 Mich 268; 112 NW2d 491 (1961). In McDowell, the majority of the Court concluded that 1945 PA 87 granted statutory tort immunity to the state. This conclusion, we believe, was erroneous. The Legislature in 1945 PA 87 did not statutorily grant to the state governmental tort immunity. Rather, it repealed the statutory waiver of immunity found in 1943 PA 237 and returned the state to the common-law immunity it had enjoyed prior to the 1943 amendment. This conclusion was correctly explained by Justice Edwards dissenting in McDowell:
"By this statute [1945 PA 87], the legislature repealed PA 1939, No 135, § 24, as amended by PA 1943, No 237, the amendment being a legislative grant of the right of maintaining tort actions against the State. By enactment of this statute, the legislature moved to abolish the judicial doctrine of governmental immunity. By repealing this statute, the legislature returned to its prior posture which was no statutory provision on the subject whatsoever.
"It is now proposed that the citizens of this State should be held to be barred from maintaining tort actions against the State by 2 statutory enactments which achieved utter negation. The undersigned cannot agree to such logic.” 365 Mich 268, 272-273.
See also, Cooperrider, The Court, the Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 262-263 (1973).
For an exhaustive review of those cases, see Cooperrider, fn 1 supra.
The term "misunderstanding” is employed by Professor Kenneth Culp Davis in his analysis of the origin of the doctrine in United States jurisprudence. 3 Davis, Administrative Law Treatise, § 25.01, pp 435-439.
Cooperrider, supra, p 188.
Const 1963, art 1, § 1.
As was stated in Williams, supra, "We deal in this case with a declaration which would clearly state an ordinary tort claim against a private individual or a private corporation. Our holding herein is limited to the statement that there is no longer any judicial doctrine of governmental immunity as to such a claim. "364 Mich at 260.
All except 13 states have abolished or limited the governmental immunity defense of the state. See Note, Governmental Tort Immunity in Massachusetts: The Present Need for Change and Prospects For the Future, 10 Suff U L Rev 521, 524, fn 13 (1976).
We reiterate that our holding in this case abolishes common-law governmental immunity. Such immunity was judicially created and, when it becomes clear that it works an injustice, it may be judicially abrogated. In Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976), we are faced with a statutory grant of immunity. We are required to give effect to the statute, whether we think its policy is wise or not, unless it violates the Constitution. | [
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Kavanagh, C. J.
We granted leave to appeal to determine whether an interoffice memorandum between corporate executives, of a purported telephone conversation with a customer, should have been admitted at trial as a "business records” exception to the hearsay rule.
We hold that this exhibit was properly excluded by the trial court. The Court of Appeals is reversed.
Plaintiff Central Fabricators, Inc., sold prefabricated building frames to defendant Big Dutchman. After a number of buildings collapsed, defendant refused to pay on its account for certain of the frames. Plaintiff sued and defendant counterclaimed for breach of warranty.
The jury returned a verdict for plaintiff Central Fabricators and denied relief on Big Dutchman’s counterclaim.
The Court of Appeals reversed and ordered a new trial. 62 Mich App 123; 233 NW2d 212 (1975).
The sole issue in this case concerns the refusal of the trial court to admit into evidence Big Dutchman’s proposed "exhibit F”. That exhibit was a memorandum purportedly authored by Mr. Sever-son, a vice-president of Big Dutchman, addressed to two other executives of that company, allegedly reporting on a telephone conversation between Mr. Severson and a Mr. Blyveis, the general manager of Central Fabricators, in which Mr. Blyveis was reported to have admitted design errors in some of the building frames.
Proposed exhibit F reads as follows:
"December 23, 1963
"MEMO TO: Roger Essenburg Pres Rigterink
"SUBJECT: 8 X 40 and 8 X 44 Dur-A-Frames
"Art Blyveis reports that there is a design error in the 8 X 40 and 8 X 44 Dur-A-Frames which dates back to nearly four years or more ago. I received this information from Art Blyveis on December 23, 1963. Kay Spooner is checking other sizes to determine if there are any other errors. We have had a lot of 8 X 40 DurA-Frames sold and erected the past several years that will require correction, according to Art.
"Another problem is in future orders. Art states the error can be corrected on frames shipped on new orders.
"The Central Pipe and Steel insurance companies are working on the problems of the Jack Dean buildings and Herm DeVisser building.
"(s) Abe Abe Severson Vice President-Operations
"db "cc: R.A. DeWitt Jack DeWitt Hertel, Burma Art Blyveis.”
This exhibit was offered by Big Dutchman to support its contention that the "8 X 40 Dur-AFrame” was defectively designed.
Mr. Severson, the purported author of the memorandum, was not present at the trial.
Defendant argued that the memorandum was admissible under the business records exception to the hearsay rule. The trial court disagreed and refused to admit the memorandum.
MCLA 600.2146; MSA 27A.2146 provides in pertinent part:
"Any writing or record whether in the form of an entry in a book or otherwise, made as a memorandum of any act, transaction, occurrence or event shall be admissible in evidence in all trials, hearings and proceedings in any cause or suit in any court, or before any officer, arbitrators, or referees, in proof of said act, transaction, occurrence or event if it was made in the regular course of any business and it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record including lack of personal knowledge by the entrant or maker, may be shown to affect its weight but not its admissibility. The term 'business’ shall include business, profession, occupation and calling of every kind. The lack of an entry regarding any act, transaction, occurrence or event in any writing or record so proved may be received as evidence that no such act, transaction, occurrence or event did, in fact, take place.”
The Court of Appeals, in finding the memorandum to be admissible under the statute, stated:
"In the case at bar, the memo in question was a record prepared in the course of a systematic routine office procedure to record information relating to, and to be used in, the routine operation of business. It was clearly established at trial that such memos were kept in the ordinary course of business by defendant and that defendant’s executives routinely and in the course of carrying on their business communicated with each other by means of written memos concerning matters of importance. In particular, this memo was prepared in a routine manner to communicate to various officers of the corporation a matter of great importance relative to the selling of building frames. Therefore, the memo was clearly admissible under the business records exception to the hearsay rule.” 62 Mich App at 128.
We disagree with the Court of Appeals conclusion. The exception to the hearsay rule for records made in the regular course of business
"is justified on grounds analogous to those underlying other exceptions to the hearsay rule. Unusual reliability is regarded as furnished by the fact that in practice regular entries have a comparatively high degree of accuracy (as compared to other memoranda) because such books and records are customarily checked as to correctness by systematic balance-striking, because the very regularity and continuity of the records is calculated to train the record-keeper in habits of precision, and because in actual experience the entire business of the nation and many other activities constantly function in reliance upon entries of this kind.” McCormick’s Handbook of the Law of Evidence (2d ed), § 306, p 720.
The leading case on the business records exception is Palmer v Hoffman, 318 US 109; 63 S Ct 477; 87 L Ed 645 (1943). In Palmer, the engineer of a train involved in a crossing accident signed a statement which was a stenographic record of an interview between himself and a superintendent of the railroad. The statement represented the engineer’s version of the accident. The engineer died prior to trial and the defendants attempted to admit this statement under the Federal business records exception statute.
The trial court excluded the statement, and the Supreme Court affirmed, finding that this report was
"not a record made for the systematic conduct of the business as a business. An accident report may affect that business in the sense that it affords information on which the management may act. It is not, however, typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others, or to provide internal controls. * * * The probability of trustworthiness of records because they were routine reflections of the day to day operations of a business would be forgotten as the basis of the rule.” 318 US at 113-114.
The United States Court of Appeals for the Second Circuit in the same case reviewed at length the background and rationale of the business records exception and found that
"the words 'regular course of business’, * * * have always included the concept that the circumstances must be such as to safeguard against any crude bias on the part of persons making the records * * * ”. Hoffman v Palmer, 129 F2d 976, 983 (CA 2, 1942).
Rule 803(6) of the Federal Rules of Evidence specifically recognizes the problems reviewed in Palmer and makes admissible:
"(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. ” (Emphasis added.)
The fact that a corporation makes it a practice to have its employees write down the substance of some telephone calls hardly qualifies the resulting memoranda as records made in the regular course of business thereby requiring their admissibility.
We agree with the observation of the United States Supreme Court that:
"Any business by installing a regular system for recording and preserving its version of accidents for which it was potentially liable could qualify those reports under the act. The result would be that the act would cover any system of recording events or occurrences provided it was 'regular’ and though it had little or nothing to do with the management or operation of the business as such.” Palmer v Hoffman, supra, 318 US at 113.
Proposed exhibit F does not qualify as a business records exception to the hearsay rule. First, it was not established that the memorandum was "made in the regular course of * * * business”. Second, it was not established that "it was the regular course of such business to make such memorandum * * * at the time of such act * * * or event or within a reasonable time thereafter”. Evidence introduced at trial to show the regularity of recording the contents of telephone conversations was at best equivocal and contradictory. Consequently, the requirements of MCLA 600.2146; MSA 27A.2146 were not met.
When measured against the rationale of the business records exception to the hearsay rule recognized in Michigan’s statute, it is clear that to admit the memorandum presented in this case would be "a real perversion of a rule designed to facilitate admission of records which experience has shown to be quite trustworthy”. Palmer v Hoffman, supra, 318 US at 113.
The trial court properly held this memorandum inadmissible, and accordingly, the Court of Appeals is reversed and the jury’s verdict in favor of plaintiff is reinstated.
Costs to plaintiff.
Williams, Levin, Coleman, Fitzgerald, Lindemer, and Ryan, JJ., concurred with Kavanagh, C. J.
See also 5 Wigmore on Evidence (Chadbourn rev), §§ 1517-1561(b).
28 USC 695, now 28 USCA 1732. That statute is not significantly different from the Michigan statute considered in this case.
This Court recently stated that
"the business entry statute as enacted by the Legislature and interpreted in civil cases carefully secures the trustworthiness of the material admissible into evidence. As a consequence, there is reasonable assurance that only the truth will be presented in evidence and that the safeguard of cross-examination is not necessary to assure the truth.” People v Kirtdoll, 391 Mich 370, 389; 217 NW2d 37 (1974).
The United States Court of Appeals in Palmer made a similar observation:
"And so with 'regular course of business’ as applied to records or memoranda in an evidence statute. To a layman, the words might seem to mean any record or paper prepared by an employee in accordance with a rule established in that business by his employer. But according to the jargon of lawyers and judges those words, in discussions of evidence, have always meant writings made in such a way as to afford some safeguards against the existence of any exceptionally strong bias or powerful motive to misrepresent.” Hoffman v Palmer, 129 F2d 976, 984 (CA 2, 1942). | [
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Kavanagh, C. J.
We concur in the remand to the trial court for further proceedings.
The defendants do not enjoy immunity. The day-to-day operation of a school is not a governmental function.
Levin and Fitzgerald, JJ., concurred with Kavanagh, C. J.
Williams, J.
This case requires us to revisit our recent governmental immunity decisions in Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976), and McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976).
I. Facts
The case arises out of the alleged repeated homosexual attacks upon a minor student by a school principal. The question involved herein is whether the trial judge properly denied the defendant school board’s motion for summary judgment based on governmental immunity.
The board moved the trial court "to enter a summary judgment of dismissal under rule 117 * * * because the plaintiffs have failed to state a claim as to this defendant upon, which relief can be granted”. In such motion based on GCR 1963, 117.2(1), we must examine the facts as pleaded in the light most favorable to plaintiff to determine whether plaintiff has stated the elements of a cause of action. Durant v Stahlin, 374 Mich 82; 130 NW2d 910 (1964). To state an actionable claim against the state, a pleader must plead facts in the complaint in avoidance of immunity. McCann, supra, (opinion of Ryan, J. at 77).
The pertinent portions of the complaint are as follows:
"3. That at all times herein complained, defendant Arthur H. Kirkeby was an agent and employee of the Warren Consolidated Schools and, in fact, the Principal of the Hatherly Elementary School, one of the said schools comprising the said Warren Consolidated Schools.
"5. That during the entire school year of September 1972 through June 1973 on numerous and repeated occasions, in excess of 100 occasions, in fact, defendant Arthur H. Kirkeby, took plaintiff minor into the storage room into the storage room in the Hatherly Elementary School and sexually assaulted plaintiff minor, forcing said child to submit to acts of indignity and human revulsion and forcing said child to perform acts of indignity and human revulsion, all too repulsive to set forth in this pleading.
"6. That defendant Board of Education for the Warren Consolidated Schools owed a duty to the public and students to provide proper, competent, moral and capable personnel at their institutions .of learning and said defendant failed so to do, and that, further, failed to supervise said personnel, failed to properly screen personnel before hiring, failed to properly investigate and evaluate said personnel, failed to overview the actions of said personnel, and, in other words, employed an incompetent, improper and immoral servant who failed to carry out the obligations and duties imposed upon the defendant school board by force of law.
"7. That as a direct and proximate result of the wrongful acts and misconduct of defendant, Arthur H. Kirkeby, and the negligent acts of defendant Warren Consolidated Schools for the Counties of Macomb and Oakland, Board of Education, suffered horrendous mental disturbances, traumatic neurosis, severe embarrassment, anxiety, hysteria, panic, humiliation, fear, shame, severe nervous reactions and depression, all of which injuries and maladies are permanent.
"8. Said injuries caused plaintiff minor to suffer severe and excruciating mental and physical pain and does and will so continue to cause him to suffer for the remainder of his life and he has been and will throughout his life be hindered and disabled from carrying on a normal life, existence or occupation and said injuries caused plaintiff minor to be placed in the care of doctors, psychiatrists, hospitals and clinics and to suffer great medical and psychiatric expenses and will so cause him to continue medical and psychiatric treatments and to incur resultant expenses for the remainder of his life.”
Although the complaint is stated in one count, it appears that plaintiffs have pleaded, albeit inartfully, two separate torts against the defendant school board, each of which arose out of the alleged assaults. First, plaintiffs have alleged that the board is liable for its own negligence in failing to properly screen and supervise its personnel. Second, plaintiffs state that the board is vicariously liable for the assaults committed by its employee. For the reasons set forth below, we must measure each alleged tortious activity against the immunity standards.
II. Applicable Law
As already indicated this case requires us to revisit Thomas and McCann. Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), which denied governmental immunity to a school board where a student was injured by the explosion of chemicals negligently supplied by a school teacher, is not on point. The injury there was suffered during a period when there was no applicable governmental immunity statute. In this case there is a pertinent statute, as was true in Thomas.
In Thomas, 8-9, we said:
"The legislative provision for governmental immunity is contained in MCLA 691.1407; MSA 3.996(107). This section provides:
" 'Except as in this act otherwise provided, all government agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.’ ” (Emphasis added.)
The question in Thomas was:
"[W]hether the facts pled in this case, the death of an employee of a subcontractor who was engaged in the construction of a state highway when he was killed by falling earth when tunneling under a railroad right-of-way, deal with a 'case[s] wherein the government agency is engaged in the exercise or discharge of a governmental function’ as provided by statute.” 8.
We concluded in Thomas "that the activity involved in this case must be regarded as a govern mental function under the statute and that as a result the defense of governmental immunity is available to the State Highway Department” (emphasis added) 12. In other words the statutory test focused not upon the general type of work the department performed but upon ’’the activity involved in this case”, the "tunneling under a railroad right-of-way” by the employee of a subcontractor in building a road.
The test was followed and developed in McCann. The question in McCann was whether a state mental hospital, some of whose employees allegedly put a newspaper publisher out of business through pressures on advertisers and subscribers, was shielded by governmental immunity from possible vicarious liability. In four opinions, seven justices concluded that neither the hospital nor the employees were immune. Four justices remanded to determine whether there was vicarious liability and three justices held there was not vicarious liability.
Justice Fitzgerald, in his opinion also signed by Justice Coleman and Justice Lindemer, applied the test this way:
"We agree that the question of governmental immunity should not be considered because the complained-of activity does not fall within 'the exercise or discharge of a governmental function.’ ” 83. (Emphasis added.)
Justice Williams in his opinion signed only by himself applied the test as follows:
"[W]e find that defendant state agency’s employees were clearly engaged in ultra vires activity and were not, therefore, involved 'in the exercise or discharge of a governmental function.’ ” 73-74.
Justice Ryan in his opinion signed only by himself stated the test as follows:
"We look to the facts pleaded in the complaint to determine whether the specifíc tortious activity alleged against the state or its agencies is within the protection of the immunity doctrine.”{Emphasis added.) 80.
The quoted language from McCann and Thomas makes it abundantly clear that the test is not whether the governmental unit is generally "engaged in the exercise or discharge of a governmental function”. The dispositive test is whether "the activity involved in this case” (Thomas), "the complained-of activity” (Fitzgerald’s McCann), or "the specific tortious activity alleged” (Ryan’s McCann) is within "the exercise or discharge of a governmental function”. In short, the test of whether a governmental agency can claim immunity under the statute is whether the specific activity alleged against the governmental defendant falls within "the exercise or discharge of a governmental function”.
Both parties have referred to Lovitt v Concord School District, 58 Mich App 593; 228 NW2d 479 (1975). The operative facts in Lovitt were that teacher-coaches had run a particularly severe football practice session in August heat and a student died of heat prostration. That Court held the school district superintendent and principal clothed in governmental immunity. However, that Court held that the negligence of teacher-coaches was personal and as a consequence they did not enjoy governmental immunity.
The Lovitt test is not the test set forth in Thomas and McCann and to the extent it differs it is overruled. The proper test for governmental immunity is whether the complained of activity falls within "the exercise or discharge of a governmental function”.
With respect to the question of whether statutory governmental immunity extends to the employee, we find that the issue is not presented in this appeal and express no opinion.
III. Application op Law to Facts
We first address the question of whether the school board is immune from suit for its own negligence in allegedly failing to exercise due care in the hiring and supervision of Mr. Kirkeby.
We have held that the hiring of teachers by a school board in the course of providing public education is a governmental function. Daniels v Board of Education of Grand Rapids, 191 Mich 339; 158 NW 23 (1916). See also Daszkiewicz v Detroit Board of Education, 301 Mich 212; 3 NW2d 71 (1942). Likewise, we find that the screening, hiring and supervision of school district personnel by the board in the course of its educational function was an act "in the exercise or discharge of a governmental function”. We hold, therefore, that plaintiffs have not stated an actionable claim against the board for liability for its own negligence, and summary judgment should have been granted as to that "count”.
We next consider whether the school board is immune from suit with respect to the alleged tortious activity of its employee. No one will seriously argue that the intentional homosexual assault of a school principal upon a student falls within "the exercise of a governmental function”. We hold it does not.
The intentional homosexual assault of a school principal upon a school boy even on school time and on school property is not the same thing as negligent tunneling in road construction as in Thomas. Rather the facts in this case are clearly analogous in principle to the facts in McCann.
In both this case and McCann a governmental agency is involved whose normal operation is "the exercise or discharge of a governmental function”. However, in both cases an employee of the governmental agency engages intentionally in allegedly tortious action that bears no arguable relationship to the agency’s function.
IV. Conclusion
We hold that the trial court should have granted the defendant school board’s motion for summary judgment on the question of the board’s negligence, and that the trial court correctly denied the motion with respect to the alleged intentional tort. Under this disposition the matter returns to the trial court for further action not inconsistent with this opinion. McCann implies that the next question is whether vicarious liability lies against the defendant school board under the doctrine of respondeat superior. Since the issue was neither raised nor briefed, we do not here consider it.
Affirmed in part, reversed in part, and remanded to the trial court for further proceedings not inconsistent with this opinion.
Ryan, J., concurred with Williams, J.
Coleman, J.
"Hard cases make bad law.” This is a "hard” case and there is a temptation to bend the law to accommodate plaintiffs. However, statutory law can lose direction and be diverted from its purpose when unduly strained to assist plaintiff or defendant in a given case. Such is our problem here.
Plaintiff Mark Galli allegedly was molested by his school principal, Arthur H. Kirkeby, one of defendants in the circuit court case, during the 1972-1973 school year. The appeal, however, is brought only by defendants Warren Consolidated Schools for the Counties of Macomb and Oakland, Board of Education, and Olin L. Adams (School Administrator). Leave to appeal was granted primarily to consider the question of whether the school board and school administrator for the Warren Consolidated Schools were immune from tort liability or were vicariously liable for an intentional tort of an employee.
Because the Legislature has provided that "all governmental agencies” are immune "from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function”, we must reverse the trial court denial of defendants-appellants’ motion for summary judgment which we treat as a motion for accelerated judgment.
I
Plaintiffs allege in their amended complaint of June 10, 1974 that defendant Kirkeby (not a party to this appeal) sexually assaulted Mark Galli "on numerous and repeated occasions” in a school storage room during the 1972-1973 school year. Plaintiffs claim damages for Mark Galli in the amount of $1,000,000 and for the parents, individually, $500,000 plus interest, costs and attorney fees.
Plaintiffs’ complaint alleges that the board of education (and Mr. Adams ) negligently breached "a duty to the public and students to provide proper, competent, moral and capable personnel at their institutions of learning”.
Defendants moved for summary judgment claiming "that under the law of this state a school board is immune from liability”.
The trial judge denied the motion for summary judgment. The Court of Appeals denied leave to appeal and denied a motion for rehearing.
II
The 1970 legislative provision for governmental immunity is found in MCLA 691.1407; MSA 3.996(107) and is applicable to these facts:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
MCLA 691.1401; MSA 3.996(101) specifies that school districts are within the definition of "governmental agency”.
Therefore, plaintiffs have the burden of stating in their complaint facts in avoidance of immunity. In other words, plaintiffs must allege in their complaint facts which would justify a finding that the alleged tort with which defendants are charged does not fall within the concept of governmental immunity.
Defendants-appellants’ conduct at issue here is their hiring and/or supervising of school personnel.
Justice Williams recently wrote in Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976), that the "key to determining the applicability of the immunity defense is in ascertaining whether or not the particular case is one” where the agency was exercising or discharging a governmental function. The Court also found that the Legislature "intended that the activities described as governmental functions at common law at the time of the enactment of the new legislation would enjoy statutory immunity from tort liability”.
In Daniels v Board of Education of Grand Rapids, 191 Mich 339, 348-349; 158 NW 23 (1916), the Court said:
"As applied to those States where liability is not expressly created by statute the overwhelming weight of authority sustains the following concise statement of the general rule upon the question before us:
" 'The duty of providing means of education, at the public expense, by building and maintaining school houses, employing teachers, etc., is a purely public duty, in the discharge of which the local body, as the State’s representative, is exempt from corporate liability * * * .’ 2 Shearman & Redfield, Negligence (6th ed), § 267.” (Emphasis added.)
Also see Daszkiewicz v Detroit Board of Education, 301 Mich 212, 220; 3 NW2d 71 (1942). See generally Anno, Modern Status of Doctrine of Sovereign Immunity as Applied to Public Schools and Institutions of Higher Learning, 33 ALR3d 703, and 57 Am Jur 2d, Municipal, School, and State Tort Liability, p 1. Statutory exceptions have since eliminated immunity concerning building maintenance and repairs but the remainder continues in vitality.,
It cannot be seriously argued that hiring and/or supervising of school personnel and making of relevant policy are not governmental functions. Neither can it be seriously argued that Mr. Kirkeby’s alleged sexual activities come within his func tion as a school principal. He was acting beyond the scope of his employment.
He is not clothed in governmental immunity as an agent carrying out his prescribed duties. The alleged activities were solely personal and cannot come within the immunity provided to the other defendants.
However, the key problem does not concern defendant Kirkeby’s liability. It concerns the liability of the school board and the administrator who were discharging a governmental function.
Ill
Plaintiff argues the applicability of some cases grounded on the constitutional mandate that "[p]rivate property” cannot be taken without "just compensation” (1963 Const, art 10, § 2).
We cannot in good conscience apply that constitutional prohibition to an area clearly not within the intent of the article which is entitled "Property”. Section 2 has to do with eminent domain. The convention comment submitted to the people when the constitution was approved states, in speaking of § 2, that it was deemed a "sufficient safeguard against taking of private property for public use”. The convention noted that the section contains provisions for "proper procedures for the acquisition of private property”. 2 Official Record, Constitutional Convention 1961, What the Proposed New State Constitution Means to You, p 3403._
IV
In a case factually similar to the one at bar, the Court of Appeals, Judge Danhof writing, found the school district, superintendent and principal clothed in immunity, but the negligence of defendant teachers-coaches to be personal, thereby removing them from the protection of governmental immunity. Lovitt v Concord School District, 58 Mich App 593, 602; 228 NW2d 479 (1975). In Lovitt, the teachers-coaches had required a particularly severe football session in August heat. Plaintiff had died of heat prostration as a result. The Court cited with approval 22 Callaghan’s Michigan Civil Jurisprudence, Schools and Education, § 148, p 194:
" 'The immunity which attaches to the performance of a governmental function protects not only the incorporate district or board of education, but also the individual members of the board, or school officers, who execute that function, where the duty that is breached is one that is imposed on the entity and not the individual.
" 'Where, however, the injuries for which redress is sought are attributable to the individual tort or negligence of a particular official, agent, or employee, the person himself is liable although the district or board is not.’ ”
Similarly, Mr. Kirkeby may be personally liable for the injury which he personally committed outside the scope of his employment. Mr. Adams cannot be held individually liable and neither the school board nor Mr. Adams can be held corporately liable under the law as it exists.
V
Plaintiff also pleads public nuisance, but the facts do not support that legal concept. Being without merit, it is not further discussed.
VI — Conclusion
The school board and Mr. Adams at all times were acting within the exercise of their duties. The applicable statute grants immunity to school districts from tort liability in all cases in which it is acting within its governmental function with certain exceptions, none of which apply to these facts. We must not confuse Mr. Kirkeby’s personal liability with that of the others. In clear language, the Legislature has spoken. If it finds it better public policy to exclude governmental units from immunity in cases where employees act outside of their scope of employment and commit personal offenses, the Legislature should act accordingly. To be considered would be the impact upon school board members and school administrators made to assume responsibility for hundreds or thousands of teachers and other employees for personal aberrations outside of the realm of their governmental functions. If the Legislature does provide for such liability, the school districts should have notice so that they may seek adequate insurance or, if none is available, they may establish within the budget a fund to cover such various personal excursions of employees as here alleged.
Reverse and remand for proceedings consistent with this opinion.
Lindemer, J., concurred with Coleman, J.
The Chief Justice and Justice Levin do not "believe the day to day operation of a [mental] hospital is a governmental function.” 71.
Kirkeby was hired by the Warren Consolidated Schools in 1966 and discharged in 1972. Adams was hired in 1970.
1970 PA 155.
Plaintiffs argue continuing tort from a time prior to the statute. The argument is rejected as to plaintiffs. No tort as to Mark Galli is alleged to have occurred prior to 1972.
Section 7 of plaintiff's amended complaint states the alleged wrongdoing of defendants-appellants:
“That defendant Board of Education for the Warren Consolidated Schools and defendant Olin L. Adams, individually and as Supervisor for the Warren Consolidated Schools, owed a duty to the public and students to provide proper, competent, moral and capable personnel at their institutions of learning and said defendants failed so to do, and that, further, they failed to supervise said personnel, failed to properly screen personnel before hiring, failed to properly investigate and evaluate said personnel, failed to overview the actions of said personnel and, in other words, employed an incompetent, improper and immoral servant who failed to carry out the obligations and duties imposed upon the defendant school administrator and defendant school board by force of law.”
A second amended complaint incorporated by reference a prayer for specific damages (count I) and a count pleading public nuisance (count II).
Governmental immunity is not actually a defense although frequently expressed as such. It is a characteristic of government which plaintiff must avoid.
The legislative exceptions may arise (1) from failure to keep any highway, under the particular agency’s jurisdiction in "reasonable repair, and in condition reasonably safe and fit for travel” (MCLA 691.1402; MSA 3.996[102]), (2) from "negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is the owner” (MCLA 691.1405; MSA 3.996[105]), or (3) "from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect” (MCLA 691.1406; MSA 3.996[106]). Further, proprietary functions of the agencies are excluded from immunity. (MCLA 691.1413; MSA 3.996[113]). There is no exception even for neglect with knowledge.
None of the statutory exceptions apply to this case, nor are they pled in the complaint.
Herro v Chippewa County Road Commissioners, 368 Mich 263; 118 NW2d 271 (1962); Buckeye Union Fire Insurance Co v Michigan, 383 Mich 630; 178 NW2d 476 (1970). For an old but interesting discussion of this question of a taking without adequate compensation see Pumpelly v Green Bay Co, 80 US (13 Wall) 166, 181; 20 L Ed 557 (1871). | [
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Coleman, J.
Leave to appeal was granted in this case to determine what procedures are required when an individual is sentenced as a habitual offender. Because the procedures followed in this case were proper, we affirm defendant’s sentence.
On October 20, 1971, defendant was arrested at the scene of a breaking and entering. During the incident he seriously wounded a state policeman. He was charged with breaking and entering with intent to commit larceny and assault with intent to murder.
Defendant pled guilty to breaking and entering with intent to commit larceny on October 21, acknowledging that he would still have to answer for the assault. That charge went to a jury trial on December 15. He was convicted on December 20 of assault with intent to do great bodily harm less than murder.
On January 10, 1972, defendant was sentenced to a term of 9-1/2 to 10 years. On the same day the prosecutor filed a supplemental information asking that defendant be sentenced as a "fifth offender”. A copy was served on defendant at the sentencing.
On February 2, defendant’s attorney moved to quash the supplemental information. The attorney claimed the prosecutor had prior knowledge of defendant’s convictions. Under People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968), he said the prosecutor was required to file the information when he became aware of the convictions.
The prosecutor said he "first became aware of his criminal record when I received his FBI rap sheet which is dated — received by our office on the 8th day of December”. Because the information was received only one week before the assault trial, there "was absolutely no time * * * to do all the checking that had to be done to determine whether or not * * * he did in fact have a record”:
"I think the prosecutor would be foolish to rely solely upon a rap sheet for information, and I did not. It took me some three weeks to track this down and find witnesses, whether he had these records and whether or not we could prove them; and I would say that I moved as speedily as I possibly could.”
The trial court felt "it was the intent of the Legislature and of our courts that the prosecuting attorney be given latitude in filing the supplemental information”. Because the prosecutor "has represented to the court that there was no knowledge on his part” until after defendant’s plea, the judge felt the filing of supplemental information after the jury trial "is much fairer and more protective of the rights of the defendant than if he were to be tried by the same jury that found him guilty on the last felony”. The motion was denied.
A jury was empaneled and the prosecution demonstrated that defendant had been convicted of five felonies. This required the production of records and witnesses from Washington and North Dakota as well as Michigan. The jury found defendant guilty. Defendant’s previous sentence was vacated and he was sentenced to life.
The Court of Appeals affirmed. It said defendant’s claim was controlled by People v Marshall, 41 Mich App 66, 72; 199 NW2d 521 (1972). That case said "the prosecutor has discretion to file a supplemental information” either before or after conviction despite his knowing about prior convictions.
When an individual is convicted of a felony, MCLA 769.10-769.12; MSA 28.1082-28.1084 permits the court to increase the sentence if the person has previous felony convictions. MCLA 769.12 provides that the person
"need not have been indicted and convicted as a previous offender in order to receive the increased punishment * * * but may be proceeded against as provided [in MCLA 769.13]”.
MCLA 769.13; MSA 28.1085 reads in part:
"If at any time after conviction and either before or after sentence it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in any of the 3 foregoing sections, the prosecuting attorney of the county in which such conviction was had, in his discretion, may file a separate or supplemental information in such cause accusing the said person of such previous convictions. Whereupon the court * * * shall inform him of the allegations contained in such information, and of his right to be tried as to the truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not. * * * The accused may waive trial by jury in the manner provided by this act. The usual practice in the trial of criminal cases shall be followed in the empanelling of such jury and the trial of said issue and the prosecuting officer and the accused shall each be allowed 5 peremptory challenges. If the accused shall plead guilty to such information or if the jury shall return a verdict of guilty, the court may sentence him to the punishment prescribed in the 3 preceding sections, as the case may be, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated if required.”
Legislation such as this increases punishment "because of the apparent persistence in the commission of crime by the person convicted and his indifference to the laws deemed necessary for the protection of the people and their property”. People v Palm, 245 Mich 396, 401; 223 NW 67 (1929). The same Court agreed that " 'in determining the amount or nature of the penalty to be inflicted, the legislature may require the courts to take in consideration the persistence of the defendant in his criminal course’ ”. Also see In re Southard, 298 Mich 75, 78; 298 NW 457 (1941) ("The habitual criminal act was passed to provide punishment for the repeated commissions of felonies.”).
In People v Shotwell, 352 Mich 42, 46; 88 NW2d 313 (1958), the Court said "the legislature did not intend to make a separate substantive crime out of being an habitual criminal but rather, for deterrent purposes, intended to augment the punish ment for second or subsequent felonies”. See People v Ungurean, 51 Mich App 262; 214 NW2d 873 (1974) , and People v Holbrook, 60 Mich App 628; 231 NW2d 469 (1975), Iv granted, 395 Mich 752 (1975) . In People v Judge of Recorder’s Court, 251 Mich 626, 627; 232 NW 402 (1930), the Court said the legislation "merely provides a procedure after conviction for the determination of a fact which the court is required to consider in imposing sentence”.
At one time the Legislature required that allegations of prior felony convictions be included in the information and proved at the trial on the principal charge. This had to "be complied with in order to give the court jurisdiction to sentence the respondent as for a third offense”. People v Campbell, 173 Mich 381, 386; 139 NW 24 (1912). Also see People v Ancksornby, 231 Mich 271; 203 NW 864 (1925). The Court has required strict compliance with the statutory requirements. See People v Brown, 253 Mich 537; 235 NW 245 (1931), and People v Gunsell, 331 Mich 105; 49 NW2d 83 (1951).
In re Brazel, 293 Mich 632, 639-640, 641; 292 NW 664 (1940), discussed whether legislation similar to MCLA 769.13 required the prosecution to file a supplemental information after the principal case. The Court concluded that "prior convictions can be charged in an information for a subsequent offense where the prosecutor has knowledge thereof on filing the information, or later * * * by a supplemental information * * * where [he] acquires such knowledge * * * subsequent to conviction”. The Court said "it is not necessary to file a supplemental information” if the previous convictions "are known to the prosecuting attorney”. The legislation "was added to enable the prosecu tor to file his supplemental information where he discovers such prior convictions so that a sentence might be revised to include augmented punishment prescribed by the statute for incorrigible criminals”.
The defendant in People v Burd, 1 Mich App 178, 183; 134 NW2d 843 (1965), was charged with escape and with being guilty of a second felony. He asked that references to his prior conviction be excluded. The trial court denied the motion. The Court of Appeals said:
"The language of Smith will have to remain dictum. Keith Burd has not yet been tried; the minds of his jurors have not yet been exposed to any potentially poisonous information. Reference to his prior conviction may quite properly seep into the record of Burd’s trial on the issue of escaping prison. The jury may reasonably conclude that one charged with escaping prison was previously convicted of a criminal offense. The defendant may elect to testify in his own behalf and suffer the people’s efforts to impeach his credibility. We see, however, no valid reason for allowing the information to provide evidence of past criminality when to do so might jeopardize constitutional rights.”
The Smith language "is sufficiently strong to war rant granting the motion”. People v Cairns, 4 Mich App 633, 644; 145 NW2d 345 (1966), after quoting Burd, said "[i]t appears to this court that the better procedure to follow in the future would be to proceed after conviction * * * by filing a separate information charging the previous convictions”.
In People v Stratton, supra, 356, the Court said the statutes
"contemplate 2 separate situations and procedures to be followed when the prosecutor desires to make possible the meting out of an increased penalty pursuant to the habitual criminal sections of the code of criminal procedure. The procedure set forth in section 13 is to be followed whenever it appears to the prosecutor 'after conviction’ of the current charge that the felon has a prior felony record. However, where it appears to the prosecutor before conviction of the current charge that the accused person is a prior felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge; the procedure set forth in section 13 need not be followed.”
Compare People v Everson, 16 Mich App 739, 741; 168 NW2d 660 (1969), where Stratton was cited but the Court said if a prosecutor has prior knowledge, MCLA 769.13 "need not be followed”. It did not prohibit use of that section. Also see People v Mauch, 23 Mich App 723; 179 NW2d 184 (1970).
In People v Hatt, 384 Mich 302, 308, 309; 181 NW2d 912 (1970), the defendant was charged with breaking and entering and with having committed a second felony. The previous conviction was disclosed at trial. The Court acknowledged that Brazel approved the "practice of charging other offenses in a single information in accordance with statute”. However, the Court, citing Smith, Burd, and Cairns, made this analysis:
"The constitutional prohibition against self-incrimination will not permit a man’s past record of offenses to be used in such a manner as to imply guilt of the offense charged or to unfairly prejudice the jury against him. The procedures for dealing with a recidivistic charge, as delineated by Judge Levin in People v Stratton, are approved.”
In People v Marshall, supra, the prosecutor filed a supplemental information four months after the second conviction. Without mentioning Hatt, the Court analyzed Brazel and Stratton:
"The specific question as to whether the prosecutor could file his supplemental information after the conviction on the then pending current charge, where the prosecutor had knowledge of the prior convictions, was not before the Court in either of those cases, nor was it decided by the Court. Thus, while the language in both Stratton and Brazel may be persuasive, it is certainly not controlling, where the specific question herein was not before the Court in those cases and was not decided by those respective Courts.”
The Court said "the prosecutor had discretion to file a supplemental information under the Habitual Criminal Act after conviction and is not limited to filing such supplemental information prior to conviction of the current charge, where he has knowledge of the previous conviction”. However, defendant’s conviction was reversed because
"once the prosecutor was aware that defendant would not be sentenced to a mandatory life imprisonment, he should have acted promptly to file his supplemental information. Any delay was solely for his convenience. Therefore, where no good reason exists for the delay in filing a supplemental information .charging the defendant as a subsequent offender, and the delay on the part of the prosecutor substantially prejudices defendant’s rights, the filing of that supplemental information clearly denies defendant his right to due process of law.”
In this case the prosecutor had an FBI rap sheet indicating convictions in Washington and North Dakota. We agree it "would be foolish to rely solely upon a rap sheet for information”. The prosecutor acted properly in this case. The Court of Appeals is affirmed.
Kavanagh, C. J., and Williams, Fitzgerald, Lindemer, and Ryan, JJ., concurred with Coleman, J.
The Court’s decision in People v Smith, 296 Mich 176, 180; 295 NW 605 (1941), raised these concerns:
“We acknowledge some justification for the claim that reading to the jury the allegations of the information charging previous convictions might poison the minds of the jury at the outset of the trial. Its effect in swinging the balance toward conviction where the evidence on the merits of the new crime is weak or doubtful cannot be overlooked. Where the previous conduct has no circumstantial bearing on the crime charged, one may question whether the practice of alleging the previous convictions in the same indictment as is permitted by statute * * * conforms to the standard of fair play required by the due process clause of the Fourteenth Amendment to the Constitution of the United States or the comparable provision of the Constitution of the State of Michigan * * * .”
The Court did not discuss the question further because there was not a timely objection. | [
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] |
Fellows, J.
Cleveland B. Smith, decedent, and one Croski were sales agents in the employ of real estate brokers. On July 31, 1923, they were taking some “prospects” out to a Warrendale subdivision, going out on Warren avenue. Smith was driving the car, a 7-passenger Studebaker; there were from 9 to 11 in the car; the time was about or shortly before 7 in the afternoon. At Town Line road, also known as Division road, the Studebaker came in collision with defendant’s car, resulting in Mr. Smith’s death. The place of the accident was in the open country. There was a gas station and a small garage at the corner; they set back 15 or 20 feet from the highway, and there seem to have been some small cottages near them, although the proof does not very definitely locate them. The testimony established an unobstructed view approaching the corner until the filling station was reached. Mr. Croski was in the front seat with Mr. Smith. He was called as a witness by plaintiff and gave the most intelligent and favorable testimony in her behalf of any witness called. He saw defendant’s car coming when it was some 900 to 1,000 feet from the intersection of the two streets. It was traveling 45 to 50 miles an hour, in violation of the statute then in force, “come very fast.” The Studebaker was then back about 400 feet from the intersection and was traveling about 20 miles an hour or a little better, which rate was lessened as they approached the corner; he also says that when they were a block away from the corner he saw the defendant’s car about three blocks away. He did not speak to Smith about the oncoming car and so far as he knew or observed Smith looked straight ahead and did not look to the right or left until they had passed the intersection of the street.
At the-close of plaintiff’s proof and again at the close of all the proof, defendant’s counsel moved for a directed verdict, basing such motion on the claim that no negligence of defendant had been shown and that plaintiff was guilty of contributory negligence. These motions were reserved under the Empson act, and later a judgment was entered for defendant not withstanding a verdict for plaintiff, the trial judge concluding that decedent was guilty of contributory negligence as matter of law.
The testimony of Mr. Croski took the question of defendant’s negligence to the jury. If defendant was driving at the rate of 45 to 50 miles an hour, he was violating the statute then in force and. this was negligence per se. We are unable to follow the contention of plaintiff’s counsel that there was a presumption that deceased w;as free from negligence, such presumption taking the case to the jury. There were upwards of a dozen eyewitnesses to the accident, some of whom were called upon the trial. The testimony of all who spoke on the subject tended to show that decedent was negligent. See Baker v. Delano, 191 Mich. 204.
The testimony of Mr. Croski, and as we have stated it was the most favorable in the récord to plaintiff, establishes that when defendant’s car was from 900 to 1,000 feet from the intersection decedent’s car was about 400 feet away. Defendant’s car was traveling 45 to 50 miles an hour, decedent’s 20 or a little better. In other words, defendant’s car was a little over twice as far from the intersection as was decedent’s and it was traveling a little over twice as fast. They came together and decedent’s life was snuffed out. While decedent slowed down as he approached the intersection, he nevertheless continued on his way out into Town Line road, out into the line of the oncoming automobile and to his death. Had he looked to the left with any degree of care after he passed the filling station he could have seen .defendant’s car and would have had ample opportunity to stop if he had been traveling no faster than plaintiff claims he was. Upon principle it is utterly impossible to distinguish the instant case from Geeck v. Luckenbill, 215 Mich. 288, where we denied liability on the ground of contributory negligence. We may here say, as it .was said there by Mr. Justice Sharpe, speaking for the court:
“It seems incredible that a collision could have occurred without negligence on the part of both drivers.”
The judgment will be affirmed.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Clark, J.
In 1915, in the Genesee circuit, plaintiff was granted divorce from defendant. Alimony and allowance were decreed as follows:
“It is further ordered, adjudged and decreed that, defendant pay to complainant $100 in lieu of dower, payable $10 monthly in advance from October 1, 1915 ; also that defendant pay complainant $3 (three) dollars weekly in advance for the support of their minor child until said child attains the age of fourteen years, and that complainant recover from defendant her costs including attorney fees of $25 and that she have execution therefor. All of said payments to be made to the register of this court.”
It is not necessary to consider a seeming conflict in the above respecting the person to whom payments were to be made.
On March 2, 1927, plaintiff filed in said court on the law side an “affidavit for writ of garnishment after judgment” in usual form, reciting, in substance, that of moneys so ordered to be paid by the decree there •was due and unpaid the sum of $1,900 over and above all legal set-offs, and that Wayne County & Home Savings Bank, a Michigan corporation, had money, etc., in its hands belonging to defendant.
A writ of garnishment was issued and served on the bank, and it filed disclosure showing indebtedness to defendant in the. sum of $1,215.41. On April 12, 1927, plaintiff served notice on counsel for the bank, garnishee defendant, of intention to move for judgment against it, and notice of the motion was waived. On the same day and on the chancery side of the court and in the cause in chancery an order was made directing the bank to turn over to plaintiff or her attorney the said sum of $1,215.41, which, it is said, the bank did. With respect to the principal defendant these proceedings were ex parte. On May 7, 1927, he filed in the cause a petition to set aside the said order of April 12th, and to modify the original decree, alleging that he had fully paid and satisfied the original decree, praying that the plaintiff and her attorney be ordered to make restitution of the sum of $1,215.41 and for order restraining them from disposing of the money. The restraining order was made. On May 11th the petition was heard and denied, and the restraining order was dissolved. Defendant has appealed.
The bank, garnishee defendant, was not a party to the petition and proceeding to set aside the order by which it was directed to pay said sum to plaintiff or her attorney, and under and by virtue of which order it made payment, and no relief against it was prayed and it is not before this court. Whether plaintiff or her attorney has the money paid by the bank does not appear. In legal effect the payment was made to the plaintiff. It is apparent that defendant does not seek merely a' money decree against the plaintiff, his former wife, for the sum paid. He seeks restoration of the money upon peremptory order against plaintiff, her attorney, and the bank. On the confused and unsatisfactory state of the record we will make no order or decree except, as hereinafter stated. . ;
The garnishment proceedings and the order ,to the bank therein are void, and are open to collateral attack. The court was without jurisdiction. Nixon v. Wright, 146 Mich. 231 (10 Ann. Cas. 547). Garnishment is a statutory remedy, and the statute must be followed strictly. 1 Stevens’ Mich. Prac. p. 138. Jurisdiction of the court in divorce proceedings is entirely statutory. Kutchai v. Kutchai, 233 Mich. 569.
In this State the periodical allowances to a wife for both herself and a child are treated as alimony under statutes to enforce payment. Brown v. Brown, 135 Mich. 141.
A judgment or decree for money that is final is a debt (17 C. J. p. 1372), and may form a basis of an action in garnishment (3 Comp. Laws 1915, § 13122, ds amended by Act No. 305, Pub. Acts 1925). A party in default in payment of alimony (Kutchai v. Kutchai, supra) may be imprisoned (3 Comp. Laws 1915, § 11443 et seq.), and this is on the theory that a decree for-alimony is not a debt within the contemplation of section 20, art. 2, State Constitution, forbidding imprisonment for debt. 30 A. L. R. 130, note; Bowman v. Wayne Circuit Judge, 214 Mich. 518.
A decree for alimony, to be paid from time to time in installments, and for allowances for the support of a child, is not such a final judgment or decree for money that an action at law can be maintained upon it (Nixon v. Wright, supra; Cain v. Miller, 109 Neb. 441 [191 N. W. 704, 30 A. L. R. 125]).
An action in garnishment is an action of law and it cannot be maintained on a decree for alimony — for a periodical allowance. Moreover, if garnishment could have been maintained on such a decree, the failure of plaintiff to observe the following rule would be fatal:
“If the garnishment proceeding is based on a prior decree, rendered in a court of chancery, it is necessary to sue over in a court of law and to. issue the garnishment writ in the county where the suit at law on the decree is commenced. The writ of garnishment cannot be sued out of a court of chancery; neither can it stand alone in a court of law, as above stated; and the two courts are distinct. While garnishment, in other words, may be based on an indebtedness on decree, it cannot be based on the decree itself.” 1 Stevens’ Mich. Prac. p. 144.
As between the parties hereto, the order is set aside, and the cause remanded for such proceedings, if any, as may be advised. No costs.
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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] |
Sharpe, J.
On July 24, 1922, Charles Sparks, acting as a sales agent for George E. Travis, of Pontiac, sold a Reo motor truck to Steve Matey, of Keego Harbor, under a conditional sales contract. Sparks at that time was also acting as a soliciting agent for Charles A. Bingham, who conducted an insurance agency at Birmingham under the name of the Holden Agency. This agency had a written contract with the defendant company under which it was authorized to secure applications, collect the first premium, and forward the application and premium, less its commission, to the defendant for action thereon.' At the time of his purchase of the truck, Matey signed an application for insurance in the defendant company against loss or damage due to collision, to the amount of $800, which was presented to him by Sparks. A policy was issued thereon, containing - a loss payable clause to Travis. It appears that the .plaintiff Wangel Serbinoff was interested in the mercantile business then conducted by Matey. This fact was not stated in the application for insurance, although he signed the note to Travis for the deferred payment on the truck. On August 22, 1922, Matey sold his interest in the business, including the truck, to the plaintiff Thomas' Serbinoff. On July 23, 1923, while the plaintiff Thomas Serbinoff was driving the truck at or near Ferndale, hauling a load of produce from Detroit to plaintiffs’ store, it came into collision, with a car driven by Oral Sark. Both vehicles were damaged, Sark’s car beyond repair. The truck was taken to the Travis garage, and a repair bill of $207.01 was incurred. Sark brought suit against the plaintiffs, and recovered a judgment of $527.55. The defendant company, although notified, denied liability and declined to defend. Plaintiffs paid the judgment, and seek recovery therefor in this action. They had verdict and judgment against the defendant company for $632.91. Both parties seek review by writ of error.
After some negotiations, Bingham paid Travis his repair bill, and was afterwards reimbursed by defendant. It is plaintiffs’ claim that when Thomas Serbinoff purchased the interest of Matey in' the business they both told . Sparks about it and requested him “to transfer the policy,” and that he said he would take care of it. There is no proof that the defendant or the Holden Agency had any notice or knowledge of the transfer of this title to the truck until some time after the collision occurred.
The policy contained the following provision: .
“Subject to the written consent of this company, this policy may be assigned to any purchaser of the motor vehicle insured hereunder, or transferred to another motor vehicle.”
The trial court, after calling the attention of the jury to this provision in the policy, instructed them that the only question for them to decide was whether “at or about the time of transfer of title to the car” the defendant company “had knowledge of the fact that Steve Matey, who was originally insured, had transferred his interest to these plaintiffs.” He further instructed them that if “knowledge of this fact was brought to defendant Sparks, then such notice would be notice to the defendant company.”
In section 1, chap. 3, pt. 2, of Act No. 256, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 9100 [87]), an agent of an insurance company is defined “as a person, firm or corporation acting under written authority from any insurance company to solicit insurance and to write and countersign policies of insurance and collect premiums therefor.” A solicitor is defined “as any person acting under express authority from an agent, having authority to appoint solicitors, to solicit insurance for such agent, but without the power or authority to issue or countersign policies or otherwise bind any company of which such ag.ent may be the duly authorized representative.”
Under section 7, chap. 3, pt. 2 (Comp. Laws Supp. 1922, § 9100 [933), the above provisions are made applicable “only to insurance companies transacting business on a stock plan, and to all mutual or cooperative life and health and accident companies, except fraternal beneficiary societies.” These provisions are also made applicable to the “general mutual law,” section 1, chap. 3, pt. 5 (Comp. Laws Supp. 1922, § 9100 [311] et seq.), under which the policy in question was issued.
It is conceded that Sparks was a soliciting agent for the Holden Agency at the time he^secured the application for insurance from Matey. His acts at that time “will be held the acts of the company, and his knowledge the knowledge of the company.” Russell v. Insurance Co., 80 Mich. 407, 413. The defendant company is chargeable with full knowledge of any facts then known to him which might have influenced it in the issue of the policy or affected the rights of the insured in its enforcement. Steele v. Insurance Co., 93 Mich. 81 (18 L. R. A. 85); Blake v. Insurance Co., 194 Mich. 589; Ames v. Insurance Co., 225 Mich. 44.
“Fair dealing dictates that the agent should see that the information required, and which is necessary to determine whether the policy is valid or not, should appear on the face of the papers.” Miotke v. Insurance Co., 113 Mich. 166, 169.
But when the application is signed and sent to the company the work of the soliciting agent is at an end. He may not thereafter bind the company by any statements made by him (§ 9100 [87], supra). The policy when issued and delivered becomes the contract between the parties. The one before us clearly stated that if a transfer of the property insured was made, there must be a consent thereto in writing by the insurer. No request for such a consent was made, except to Sparks, nor was one granted. By the instruction given, the jury were informed that this provision might be waived by a request to Sparks for a transfer and his assent thereto. In Gambino v. Insurance Co., 232 Mich. 561, 563, it was said:
“But waiver, in order to bind the company, must be by the company through its officers or agents acting within the sphere of their authority. If the agents who attempt to speak for the company bear no authority from the company, either express or implied or by holding out, their acts beyond their authority do not bind the company.” •
The authorities are reviewed at some length by Mr. Justice Fellows in that case. In the somewhat recent case of Greentaner v. Insurance Co., 228 N. Y. 388 (127 N. E. 249, 14 A. L. R. 841), it appeared that the agent of the purchaser of property applied to the agent of the insurance company for a consent to the transfer of title and was told by him that “it was not necessary to have the policy present; that he would have slips prepared consenting to the transfer and assignment, and they could thereafter be delivered to him.” No slips were made or delivered, nor was any indorsement made on the policy. It was held that there was no waiver of the defendant’s rights by the agent and no liability in case of loss on the part of the insured.
It may be noted that Act No. 264, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9100 [254]), providing that .policies shall not be declared void for breach of condition “where a loss has not occurred during such breach and by reason of such breach of condition” is not applicable, as it applies to fire insurance policies only.
It is a well-known fact that many persons do not read their insurance policies. But, as was said in Cleaver v. Insurance Co., 65 Mich. 527, 532 (8 Am. St. Rep. 908) :
“The fact that the plaintiff may not have read the printed conditions of his policy, and relied, in ignorance of them, upon the implied or assumed powers of the agent, cannot help him. It was his business, to know what his contract of insurance was, and there can-be no difference in this respect between an insurance policy and any other contract. In the absence of any fraud in the making of the same, and none is claimed in this case, the insured must be held to a knowledge of the conditions of his policy, as he would be in the case of any other contract or agreement. When the policy of insurance, as in this case, contains an express limitation upon the power of the agent, such agent has no legal right to contract as agent of the company with the insured, so' as to change- the conditions of the policy, or to dispense with the performance of any essential requisite contained therein, either by parol or writing; and the holder of the policy is estopped, by accepting the policy, from setting up or relying upon powers in the agent in opposition to limitations and restrictions in the policy.”
See Stout v. Insurance Co., ante, 181.
The request by plaintiffs to Sparks relating to the transfer was but the asking of a personal favor which he had no power or authority to grant. It in no way constituted a waiver of defendant’s rights to have the express provision in the policy relative thereto complied With.
The provision in the policy for consent to the transfer of title to the property insured was inserted for the benefit of the insurer, and may be waived by it.
“It is essential, however, that the acts relied on as indicative of a waiver should have been done by the insurer with full knowledge of the facts giving it a right to treat the policy as unenforceable.” 14 R. C. L. p. 1155.
The payment by Bingham (Holden Agency) to Travis for the repairs to plaintiffs’ truck was made about 14 months after the collision, and about 2 months after Sark had recovered his judgment against the plaintiffs. Defendant had theretofore denied liability and refused to defend that suit, although requested by plaintiffs to do so. Clearly, it waived no right to contest liability in this case by the voluntary reimbursement to its agent of the amount he had paid to Travis when no claim of legal liability was made therefor. The motion for judgment notwithstanding the verdict should have been granted.
The judgment entered is reversed and set aside and the cause remanded for the entry of such a judgment, with costs to defendants.
North, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
The late Chief Justice Flannigan did not sit.
The late Justice Bird took no part in this decision. | [
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Fellows, J.
Plaintiff was injured in a collision of the automobile in which he was riding, driven by his son 22 years old, and the car owned and driven by defendant on M 13 about four miles south of the city of Kalamazoo. We shall refer to defendant’s car as the “front” car, and the one in which plaintiff was riding as the “rear” car. Both cars were going south. A short distance north of the point of the accident there was a parked car on the west side of the road. The front car pulled out to the left to pass it, and the rear car did likewise. The testimony introduced on behalf of plaintiff tended to establish that after passing the parked car, the front car turned to the right perceptibly indicating that it was resuming its position in the right track. Defendant’s testimony tended to establish that the front car did not yield to the right but continued on the left side of the center of the road. Plaintiff’s testimony tended to show that the rear car was going 25 to 30 miles an hour, and defendant’s that the front car was not traveling to exceed 12 miles an hour. The testimony fairly sustains both contentions as to the rate of speed. Plaintiff’s testimony and that of other occupants of the rear car tends to show that after passing the parked car and. after the front car had yielded to the right, the driver of the rear car sounded his horn for the second or third time and turned to the extreme left-hand side of the road; the front car turned to the left to go into a driveway leading to a residence on that side of the road and the collision occurred. Defendant admits he did not comply with section 4 of Act No. 96, Pub. Acts 1923, by extending his arm outside the car indicating that he was about to make a left-hand turn, but testifies that he held up his right hand within the car. He denies that the horn was sounded and there is negative testimony corroborative of this.
This statement of the testimony demonstrates that the trial judge did not err in refusing to direct a verdict for defendant. The assignments of error based on rulings of the court on the admissibility of testimony present no reversible error. In some instances the questions asked by defendant’s counsel called for conclusions of the witness, and in other instances the information sought was elicited by other questions before the examination of the witness was concluded. So far as defendant’s requests stated the applicable law they were given in substance in the elaborate charge of the trial judge.
One contention advanced by .defendant’s counsel in his requests requires consideration. In the main defendant’s requests dealt with the subject of the claimed contributory negligence of plaintiff’s driver. In different phraseology but to the same end defendant’s counsel requested instruction to the effect that the driver of a passing car was required to assure himself that his signals were heard and understood by the driver of the car to be passed before he undertook to pass, and unless he was so assured he would be guilty of contributory negligence. The trial judge refused to give any of these requests or their substance. In this we think he was right. To follow defendant’s contention would place on the driver of the passing car too high a degree of care. It was not required by the motor vehicle law then in force, and just how the driver of the passing car would be assured that his signal was heard and understood is not pointed out. The stoic driver who pays attention to his driving, and his driving alone, would never be passed except at the peril of the driver of the passing car, and the slow-moving vehicle would hold up the traffic indefinitely except for those of the more venturesome type who would be required to assume the responsibility of anything and everything which might happen, and be held guilty of negligence which would bar their recovery for any and all damages irrespective of the negligence of the drive!" of the car- passed. We can not subscribe to this doctrine.
Defendant admitted he did not extend his arm as required by section 4, Act No. 96, Pub. Acts 1923. This was in violation of the statute and negligence per se. The trial judge so instructed the jury. He committed no error in so doing. But defendant’s counsel says he repeated this instruction several times. It is true that he did. But the restatement of a correct rule of law is not error. The charge in the instant case was a long one, covering over 18 pages of the printed record, and some repetition of necessity occurs in a charge of such length. Cases may arise where such repetition would render the charge argumentative, but we do not think the charge hero open to such criticism.
The trial judge read to the jury the following portions of section 18, Act No. 287, Pub. Acts 1925:
“The operator of a motor vehicle on the public highways shall use due care when meeting or passing any other vehicle or person. Tf any vehicle on the highway be overtaken by a motor vehicle and the person in charge of such motor vehicle signals to pass, it shall be the duty of the driver of any such vehicle so overtaken to turn to the right of the center of the highway and give the person making the signal an opportunity to pass.” * * *
He charged that the plaintiff’s driver was bound to use due care in passing, but also charged that he was not required by this section to sound his horn. Section 14 (6), Act No. 318, Pub. Acts 1927, was not in force when the accident occurred. By the act of 1927 the duty of giving an audible signal was placed on the driver of the passing car, while under the act of 1925 the duty of yielding was placed on the driver of the passed car when and if the signal was given. The trial judge correctly stated to the jury the effect of the statute then in force. A duty was placed on the driver of the passed car to yield if the signal was given, but the duty to give the signal was not placed by the statute on the driver of the passing car.
The trial judge also called to the attention of the jury section 2 of Act No. 96, Pub. Acts 1923, having reference to slow-moving vehicles. He did not instruct them that it was controlling, but left to them to consider whether defendant’s car on the occasion fell within that class, and whether the statute was applicable. If defendant was driving 10 or 12 miles an hour, his car would probably be a slow-moving vehicle in this day and age. The instruction was not erroneous. But, as the case was tried, it was academic. The crucial question in the casé was that of the contributory negligence of the plaintiff’s driver. As noted, defendant admitted he did not give the signal required for a left-hand turn. He was guilty of negligence as matter of law. The controversy centered on the question of contributory negligence, and upon this question the trial judge repeatedly gave to the jury the correct rule, in some instances using the language of defendant’s requests. Upon this question the evidence was conflicting. That of the plaintiff and his witnesses was accepted by the jury, and their verdict was not against the weight of the evidence.
A motion for a new trial on the ground of newly-discovered evidence was made. We agree with the trial judge that sufficient diligence on the part of defendant to entitle him to a new trial on this ground was not shown.
The judgment will be affirmed.
North, 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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Potter, J.
Plaintiff, a coal miner 32 years of age, in good health, employed by the Consolidated Coal Company, a Maine corporation, operating the Uncle Henry mine in Saginaw county, claiming to have been injured November 16, 1925, by an accident which occurred in1 the course 'of his employment, presented a claim for compensation for such injury. Both plaintiff and Mr. Longworth, who worked with him in the mine and who was present when plaintiff was injured, testify to the accident and injury. Three regular practicing physicians and one osteopathic physician testified the injury caused plaintiff’s disability. Two physicians who subsequently examined him seek to account for his condition because of possible bad tonsils or bad teeth. There is ample evidence to sustain the award of the department of labor and industry.
It is hereby approved and affirmed.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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] |
McDonald, J.
This bill was filed for an accounting and to compel the conveyance of certain real estate to the plaintiff in accordance with a land contract between the parties hereto on March 1, 1924. The plaintiff was the owner of two lots on Guild street in the city of Grand Rapids, Michigan. On these lots she desired to build a riding stable. She made an agreement with the defendant to finance its construction. By the terms of the agreement the building was to cost $’6,500, which the defendant was to advance as the construction progressed. The plaintiff was to deed her two lots to the defendant at an agreed valuation of $1,500, and when the building was completed the defendant was to reconvey them by land contract at a consideration of $8,722.22 on which $1,500, the agreed value of the lots, was to be credited; and the balance was to be paid by the plaintiff in equal monthly installments with interest at 7 per cent, per annum. The building was completed and paid for by the defendant and the land contract executed according to agreement. After she had paid a considerable amount on the contract, a dispute arose between the parties as to the balance. The plaintiff claimed that the correct balance was $2,919.63. She tendered this amount to the defendant and demanded a conveyance of the property. The tender was refused. The principal difference between the parties concerned an item of $722.22, which the plaintiff refused to pay on the ground that it was usurious. The defendant insisted that it was a proper charge and should be paid as agreed. This suit was the result of the controversy. On the hearing, the circuit judge found against the plaintiff and dismissed her bill. From the decree entered she has appealed.
The question involved is whether the item of $722.22 is usury. The defendant claims that the $722.22 is not an interest charge; that it should be allowed as an agreed compensation for services rendered or as a legitimate profit on the transaction which was in effect a purchase and sale of property.
A reasonable charge for services in financing a building proposition does not amount to usury. Was this a charge for services? Considerable oral testimony was taken as to the understanding and intention of the parties, but their intention as shown by the written stipulations in the agreement should control. On this question the agreement is very clear. It provides:
“It is further understood and agreed that said first party (defendant) shall not be obligated to provide plans or alterations therein, or to pay for said plans, or to negotiate a contract for the building of said riding club stable, or to superintend the construction of the same, but that said first party shall have a supervisory authority over the construction of said building only to the extent that the value of the security to the land contract herein provided for shall not be impaired by any failure or neglect on the part of the contractor to erect said building according to said plans and specifications, and to the extent that any building contract that said first party may enter into with said contractor shall be executed according to the terms thereof; the intent being that said first party shall finance the purchase of the above described premises, and the cost, of the building, at the time and in the manner specified and as security of so financing shall take title to said premises and reconvey the same by a land contract as hereinbefore provided, and that its duty shall end therewith.”
This agreement was drawn by Mr. Kinsey, president of the defendant company. He is an educated man with large business experience and was familiar with the work of drafting papers concerning real estate transactions and financing propositions. ’ It is fair to assume that the stipulations of the agreement which he prepared are in strict accordance with the preliminary understanding of the parties as to services. It will be noted by reference to that portion of the agreement above quoted that the services to be rendered were such as were deemed necessary to protect the security of his company. They were services usually incident to such a financing proposition for which the defendant may not charge. Miller v. Ashton, 241 Mich. 46, and cases cited.
But this charge of $722.22 was not based on compensation for services. In his testimony, Mr. Kinsey characterized it as a “profit on the transaction;” and that in truth is what it was intended to be. As such, Is it usury? In determining this question, it will not be necessary to enter upon any extended analysis of the testimony. Mr. Kinsey was a witness. We are impressed with his fairness and truthfulness, and may rest our decision on his testimony. He testified:
“At one time in particular when I suggested to her that she could distribute a portion of this profit in the shape of interest, that we would charge her 10 per cent, if she paid 7 per cent, or 12½ per cent, at 6 per cent, interest; she chose the 7 per cent, because it would distribute that profit over a period of time, and she complimented me on that and said that she considered that we save them immediate expense and so on. * * *
“In talking about the rate of interest we talked some of 7 per cent., some 6 per cent, and some 61/2 per cent. We distributed our profit over the length of the contract by increasing the rate of interest. We make the rate of interest or the profit a little bit less if the interest is higher.
“Q. Give me an illustration. What would you say as to what would be the result if you charged 6 per cent, interest ? '
“A. Charge 12½ per. cent.
“Q. 12½ per cent, of what?
“A. For the construction of the building, the building of the building.
“Q. In other words, you arrive at the new figure by dividing $6,500 by 87½ ?
“A. Yes. * * *
“We arrived at the figure $8,722.22 which is the figure that appears first in the application for the loan, by taking the $1,500 for the lots and the $6,500 for the net cost of the building, making $8,000 and then we deducted the $1,500 as a down payment again and divided the $6,500 by 90. That is not 10 per cent, of $6,500, but 10 per cent, of what she would owe us. She would owe us $6,500 plus $722.22. That was figured when the application was made.”
From this testimony, it clearly appears that the amount of the profit depended on the stipulated rate of interest. If the interest to be paid were 6 per cent., the profit charged would be more than if the interest rate were 7 per cent. If the agreed interest rate were 6 per cent., the profit would be 12% per cent, of the contract price. If it were 7 per cent., the profit charged would be 10 per cent, of the contract price. In other words, the $722.22 profit charged bears a direct relation to the stipulated -rate of interest. It is an indirect charge of a greater rate of interest than is allowed by law. Within the meaning of the statute it is usury. See Continental National Bank v. Fleming, 170 Mich. 624.
The contention of counsel for the defendant that the transaction did not involve a loan, but was the purchase and resale of property at a profit, is without merit. The agreement describes the character of the transaction as follows:
“The intent being that said first party shall finance the purchase of the above described premises, and the cost of building, at the time and in the manner speci fied, and as security of so financing shall take title to said premises and reconvey the same by a land contract.”
There was no purchase of the lots. The plaintiff owned the fee in them. She deeded them to defendant as security, and apart from the lots and building gave other security which we need not here specify. There is no basis for the claim that the defendant purchased the lots, built the building, and sold the property to the plaintiff.
The item of $722.22 should be deducted from the amount claimed by the defendant. All other items in dispute are proper charges and should be paid by the plaintiff. Undoubtedly, counsel can now agree upon the exact unpaid balance on the contract. When the correct amount is paid the plaintiff is entitled to a reconveyance of the - premises. A decree will be entered in accordance with this opinion.
The decree of the circuit court is reversed, with costs to the plaintiff.
North, Fellows, Wiest, Clark, 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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] |
Wiest, J.
Plaintiffs filed the bill herein to obtain rescission of an exchange of their farm in Muskegon county for property in the city of Chicago, on the grounds of fraudulent representations of the value, condition, and income of the Chicago property. In the circuit plaintiffs were adjudged guilty of laches and their bill was dismissed. The circuit judge also stated in an opinion that'hé was not convinced of the fraud alleged. ’ Plaintiffs appealed. '
Plaintiffs wanted to exchange their farm for property in the city of Chicago, and, through a real estate broker of their own selection in that city, got in touch with defendants, who were owners of a three-story, stone front, brick store and apartment building on a 25-foot lot, known as 1054 N. Ashland avenue. In April, 1926, án exchange agreement was reached under which plaintiffs were to convey to defendants the Muskegon farm and the farm personal property at a valuation of $10,000, and defendants were to convey to plaintiffs the Chicago property, subject to a first mortgage thereon of $12,000, and a second mortgage to be executed by plaintiffs for $13,000. Plaintiffs examined the Chicago property and defendant Piotr Rusin visited the farm, and, all parties being satisfied, the deal was closed and plaintiffs at once moved to and occupied the Chicago property, and defendants moved to the farm.
Seven months later this bill was filed. The circuit judge, while not convinced that plaintiffs had estaba fished fraud, found that they were fully aware of the value and condition of the Chicago premises and of the rentals paid by tenants as soon as they took possession in May, 1926, and were guilty of laches in using the premises, making repairs, collecting rents and performing obligations of the purchase for seven months without complaint. The parties dealt at arm’s length, had the aid of counsel of their own selection, and fully understood every phase of the transaction. Plaintiffs inspected the Chicago building to some extent, and actually occupied the third floor flat before the deal was closed.
The claimed representations of the condition of the building were matters readily open to observation, should have been seen when plaintiffs made inspection before exchange,- and were discovered immediately after exchange and then repaired by plaintiffs. Under such circumstances the rule of caveat emptor and the doctrine of waiver bar rescission. If the income from rentals was misrepresented, plaintiffs were enlightened on that subject when they collected the first rentals a few days after the exchange. By com tinuing to collect such rentals for many months they waived right to rescind for such cause. It is said that plaintiffs did not learn of the falsity of the represented value of the property until just before this bill was filed, and, therefore, are not guilty of laches. As we do not place decision upon the ground of laches, we will only say that it apparently took plaintiffs a long time to discover what they now assert was so patent as to establish fraud. Maryan Kowalski was not a novice, but a practical builder, carpenter, and brick mason; he was city-wise, having lived in the city of Pullman; he looked the premises over before exchange, and it is inconceivable that he did not form an independent judgment of value from his own ability to do so. Witnesses in the case differ in opinion about the value, and leave it an open question whether the property was worth $35,000. ‘ This court has repeatedly held that an expression of opinion of value of real estate, upon which men might fairly and honestly differ, cannot be made the basis of fraudulent representations. Albright v. Stockhill, 208 Mich. 468. The following cases are also applicable to the facts in this case: Hammer v. Martin, 205 Mich. 359; Bowen v. Stocklin, 215 Mich. 341; Sutton v. Benjamin, 231 Mich. 153.
The circuit judge reached the right result, and the decree in the circuit is affirmed, with costs to defendants.
North, Fellows, Clark, McDonald, and Sharpe, JJ., concurred.
Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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Fead, C. J.
This is review of a judgment for $28,947 upon a claim by plaintiff for services rendered John Kieley in his lifetime, the claim having been filed in the probate court of Wayne county and there disallowed, and trial having been had in the circuit court, with a jury, on appeal.
Plaintiff was a second cousin of Kieley. She came from Ireland in 1889, and began to live with decedent and his wife in 1890. She married in 1904, but, with her husband, continued to reside' at Kieley’s. In August, 1920, Frances Kieley, a niece of John, came to live with him, and in October or November plaintiff moved to a house a block away. Frances left in July, 1923, and plaintiff returned some time later in the year. Frances came back in August, 1924, and plaintiff again moved away and did not return to Kieley’s during his lifetime. Kieley died in April, 1925. Plaintiff claimed she rendered services to him during the time she resided at his home, while she lived in her own house, and to the time of his death. The evidence shows that plaintiff, while she lived at Kieley’s, did all sorts of domestic and farm work and rendered personal nursing care to Kieley and his wife. In 1915, Kieley sold his farm and gave plaintiff $3,000. Upon his death, two notes of plaintiff to him were discovered, one dated September 4, 1920, for $43, and one April 12, no year, for $100.
Mrs. Mary Donahue testified that, shortly after plaintiff went to Kieley’s to live, John Kieley told witness he had told plaintiff that, if she would stay there and work with them and do what work there was to be done, when he and his wife were done with it everything that remained was to go to her for her pay. She also stated that he repeated substantially the same statement in a conversation about four years before he died, and at the time when plaintiff was living away from him, saying that he was going to have her back. Rev. A. M. X. Sharpe testified that, in the latter part of 1924 or the forepart of 1925, Kieley told him that plaintiff would get everything he had when he died and was through with it. Frank Steffes stated that a half dozen times before and after plaintiff was married, the last time about two months before Kieley died, the latter told him he had promised all his property to plaintiff, as she had worked hard for him. Mrs. Sophia Farland testified that in 1919 she told Kieley that she had deeded all her property to her daughter, and he replied, “that is just what I am going to do for Nellie. Nellie shall have everything; she shall have all my property,” and that she had “worked hard and would get all he had for her pay.”
John Kieley’s estate was appraised at $34,321.30.
The plaintiff’s claim, as originally filed, does not appear in the record. In the application for appeal it is stated to be in the sum of $29,090, “for services rendered to and for money furnished to said John Kieley at his request and on his promise to pay for such services and for money furnished in and around the house, farm, and business of said John Kieley, nursing and caring for his invalid and mentally incompetent wife during her lifetime,” and for managing his dairy farm, from August, 1890, to and including September, 1924. In his opening statement, counsel for plaintiff announced that she claimed under an express contract, in that Kieley “promised that if she (plaintiff) would stay and work for him that he would at his death give her everything he had.” In answer to demand from defendant’s counsel, he said he would proceed upon the theory of an express contract, but, if unable to do that, would claim under an implied contract. He could do this. In re Moon’s Estate, 219 Mich. 104. The plaintiff introduced no other evidence of the value of her services, but contended that as she had performed the express contract in full, the measure of damages was the value of the estate, reduced, however, to the ad damnum statement of the claim. The court so charged the measure of damages in case the jury found full performance by plaintiff, less the amount of the plaintiff’s notes to decedent. Verdict for plaintiff was rendered accordingly.
The existence of a contract between plaintiff and decedent was not shown by direct evidence of conversations between them. However, the . declarations made by decedent that he had promised and had told plaintiff she should have his property as her pay if she would continue to live with and work for him tended to establish an agreement. The relationship between them was not such as to raise a presumption that the services were rendered gratuitously. In re Clark’s Estate, 234 Mich. 471. The declarations of the decedent, with the fact of plaintiff’s services, were sufficient to carry to the jury the issue of the agreement to pay for the services and the character of the contract. In re Moon’s Estate, supra; In re Engell’s Estate, 228 Mich. 385; Payne v. Riley’s Estate, 240 Mich. 506.
As disclosed by the record, plaintiff’s statement of cause of action in the probate court did not count upon an express contract to give her decedent’s property for her services, but was plainly a claim, upon the' quantum, meruit. Under such claim, an express contract may be shown, both to establish that the services were to be paid for and also as bearing upon the value the parties put upon them. The worth of the property agreed to be given is evidence of the value the deceased placed upon the services (Riggs v. Rigg's Estate, 232 Mich. 579; In re Clark’s Estate, supra), and, in case of full performance by plaintiff, would, of itself, be sufficient evidence of value to enable the jury to make a fair award (Payne v. Riley’s Estate, supra). But the- essential theory of the quantum meruit prohibits the ruling that the worth of the property agreed to be given shall constitute an absolute measure of damages. It is to be taken in connection with the other circumstances to enable the jury to reach a fair measure of compensation for services performed. In this case, the worth of the property could not be a set measure of damages because plaintiff did not, in her statement of claim, assert fulfillment of an express contract. On the contrary, she claimed for compensation only to September, 1924, several months before decedent’s death and during which intervening, period performance by her was necessary to establish the value of the property as the agreed measure of her compensation under the claimed contract. The measure of damages is the fair value of the services rendered by plaintiff to decedent less the compensatory benefits she received from him. The worth of the estate may be considered by the jury in determining that value, but is not the measure of it. The court, therefore, did not err in, submitting the value of decedent’s property to the jury as evidence of the worth of her services, but did err in declaring such value to be the absolute measure of damages.
Over objection by counsel for the defense, plaintiff testified in detail to services which she rendered for decedent and his wife and to financial support which she furnished them in pursuance of her claimed contract. At the conclusion of the charge, on suggestion of plaintiff’s counsel, the court directed the jury to disregard her testimony as to work she did, which must have been within the knowledge of John Kieley, and to “take the testimony of other parties than Nellie D. Burns, both as to whether there was a contract and as to the matter whether she performed those services.’’ Usually such an instruction from the court may fairly be held to cure error in the admission of testimony, especially where the evidence came in incidentally or accidentally. In this case, however, without plaintiff’s improper testimony, there was no showing of the furnishing of support, of personal nursing services and care, practically none of work for decedent while she was living in her own home, and none at all that she performed services for him after she moved back in 1928. Her own testimony gave continuity and force to her claim. Without it, question of breach of the contract by decedent or by plaintiff, set-offs of money and support, and failure to perform by plaintiff would have been serious. The testimony did not come in casually. It was insistently presented. The protection of the estates of deceased persons demands that the introduction of the testimony be held reversible error.
Defendant further contends that plaintiff would not be entitled to recover for services from the time of her marriage in 1904 to the effective enactment of Act No. 196, Pub. Acts 1911 (3 Comp. Laws 1915, § 11478), under which a married woman became en titled to her own earnings, because there was no proof of her emancipation, with notice to decedent. If the contract between plaintiff and decedent was as claimed by her, and it was renewed after the statutory removal of her disability, she would be entitled to recover for the whole term of service. Riggs v. Riggs’ Estate, supra. With plaintiff’s incompetent testimony stricken, the services for which she claims were not rendered by her as a member of her husband’s family as were those in Sorensen v. Sorensen, 211 Mich. 429, and other authorities cited by defendant.. It was not necessary that decedent be informed that the husband consented to her contract. Ashley v. Smith’s Estate, 152 Mich. 197. The husband’s consent that the wife have the benefit of her own services may be implied from the facts. 80 C. J. p. 732. Even without express declaration, there were sufficient facts in the present record to warrant a jury in finding 'that plaintiff’s husband consented to her continuance of the contract for her own benefit.
The judgment is reversed and a new trial ordered, with costs.
North, Fellows, Potter, and Sharpe, JJ., concurred. • Wiest, Clark, and McDonald, JJ., concurred in the result. | [
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Fellows, J.
(after stating the facts). The trial judge properly entered judgment for defendant non obstante veredicto. Defendant’s counsel were right in both contentions. In the recent case of Howe v. Railroad Co., 236 Mich. 577, an action brought under the Federal act, Mr. Justice Snow exhaustively reviewed the authorities, particularly the Federal ones, dealing with the questions of negligence and assumption of risk. This renders it unnecessary to duplicate that work. Attention will be challenged, however, to a few cases which are somewhat in point.
The handcar was the kind in ordinary use on railroads; there is no claim that it was improperly constructed, or that the speed of five or six miles an hour was excessive; no claim of defective rails or roadbed; deceased was not jostled or pushed off the car by any of his coemployees. If the car was overcrowded such fact could not on this record by any stretch be deemed the proximate cause of the accident. , There are dangers in railroading, but the defense of assumed risk is available to the carriers under the Federal act, and the employee assumes the obvious risks incident to the occupation. In Seaboard Air Line Ry. v. Horton, 233 U. S. 492 (34 Sup. Ct. 635, L. R. A. 1915C, 1), the court in pointing out the distinction between contributory negligence and assumed risk said:
“On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employee. The risks may be present, notwithstanding the exercise of all reasonable care on his part. Some employments are necessarily fraught with danger to the workman — danger that must be and is confronted in the line of his duty. Such dangers as are normally and necessarily incident to the occupation are presumably taken into account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not.”
In Morey v. Railroad Co., 125 Me. 272 (133 Atl. 92), it was said:
“Nor does the fact that the work performed is dangerous, or is performed in a dangerous place, and injury results, necessarily show negligence. Dangerous work must be performed; and work must be done in dangerous places; and when a workman makes a contract to do such work or to work in a dangerous place, he contracts with reference to that danger and assumes the ‘open and obvious risks incident to the work,’ or as sometimes expressed, ‘such dangers as are normally and necessarily incident to the occupation.’ This is a contractual assumption of risk.”
In Owens v. Railroad Co., 32 Utah, 208 (89 Pac. 825), the handcar was not provided with a brake and a scantling was used for that purpose. In going down grade the scantling was jerked from the hand of the employee and fell in front of the car resulting in its being derailed with resultant injury to plaintiff. It was held that plaintiff could not recover, the court saying:
“There was nothing about the situation as thus presented which was not perfectly open and obvious to all the workmen. The risks and dangers, such as they were, were incident to the manner of conducting their work, and were a part of the ordinary risks of their employment assumed by them.”
In Hartwick v. Railroad Co., 286 Fed. 672, it was said:
“The_ real test which we must apply is this: Did the plaintiff seat himself in the position disclosed by the evidence, with knowledge and appreciation of the perils incident to his so riding upon the car? We cannot see in this action of the plaintiff, in thus taking the position of peril and real and known danger, anything but a case of assumed risk.”
See, also, Sims v. Railway Co., 196 Mich. 114; Kalivas v. Railway Co., 96 Wash. 309 (165 Pac. 96); McGrath v. Railroad Co., 14 R. I. 357; Mize v. Railroad Co., 127 Ky. 496 (105 S. W. 908, 16 L. R. A. [N. S.] 1084).
The judgment will be affirmed.
Fead, C. J., and North, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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] |
Fead, C. J.
On October 13, 1922, plaintiffs executed to defendant Mrs. A. Harris a warranty deed of two lots in Detroit, herein referred to as the Brandon street property. The instrument was recorded as a deed. By contemporaneous written instrument, the deed was declared to be a mortgage to secure the repayment of $3,000, evidenced by four promissory notes. The loan was usurious because a bonus of $600 was included in the sum to be repaid. The transaction was conducted on behalf of Mrs. Harris by Saul Meister, or, as found by the trial judge, the party in interest was Meister himself. On October 15, 1923, Goodman executed a new note for $3,000 to Mrs. Harris and the original notes were returned to him then or later. On December 18> 1923, another transaction was entered into by the plaintiffs ostensibly with one Charles "H. Marks, but actually by Meister, a relative of Marks, to replace the Harris loan. The Goodman-Marks instrument declared that a conveyance had been executed by Goodman to Marks as security for the loan. The conveyance was not produced. The agreement stated the debt was $3,000.
On December 21, 1925, Rott negotiated an exchange of property with Wagner and Porvin, acting for the Porvin-Wagner Company and. themselves. Wagner and Porvin had come into possession of the Harris and Marks transactions and they delivered to Rott, as part of the trade, a warranty deed of the Brandon premises from Mrs. Harris to Rott, with an abstract showing title in Mrs. Harris. Meister had possession of the Marks notes at that time but they were later delivered to Rott. A short time after the trade had been closed, Rott undertook to obtain possession of the Brandon premises through summary proceedings before a circuit court commissioner, claiming ownership, and plaintiffs commenced this suit to restrain him from exercising dominion over the property, upon the claim that the Harris deed was a mortgage. Rott in his answer claimed title to the premises, and by cross-bill charged fraud against Wagner and Porvin, the Porvin-Wagner Company, and Mrs. Harris in misrepresenting the title, and asked damages therefor. Rott, Wagner, Porvin, and the Porvin-Wagner Company appealed.
The case rests principally upon the question of fact, whether Rott, before the trade was completed, knew that plaintiffs’ deed to Mrs. Harris was a mortgage. Porvin and Wagner testified that they had informed Rott of the fact. Rott denied such information and knowledge. The trial court did not make a specific finding upon this issue, but the decree demonstrates that he held that Rott knew the condition of the title. His opinion indicates a none too high regard for any of the principals, and he characterized the situation:
“The whole transaction is surrounded by fraud and deceit from start to finish.”
The parties dealt at arm’s length, each able to protect himself. Rott admitted that he went to the Brandon property before the trade to inspect it, but stated that the occupant was away. The tenant, however, evidently disinterested, testified that Rott looked over the property and was informed that plaintiffs owned it. No adjustment of insurance or rents for the premises was made in the transaction, as would have been very probable had Rott thought he was obtaining title to the lots. The disinterested testimony shows that the equity in property which Rott put into the trade was about $1,200 to $1,400 and he paid $800 in cash. In return, Rott received lots, which he said were worth $900, and the Brandon deed. The Brandon premises are valued at from $5,000 to $7,500. Porvin and Wagner admitted that they told Rott that the Harris deed was security for about $2,500. The trade is better balanced upon the basis that the Harris deed was a mortgage than if it were a conveyance. Rott had dealt with Porvin and Wagner before and is shrewd enough to have known that they would not be likely to trade him property worth approximately $6,000 for $2,200. Upon the whole record, the testimony preponderates that Rott knew, when he made the trade, that the Harris deed was a mortgage.
Counsel for Rott contend that the warranty clause of the deed cannot be varied by parol testimony and that verbal notice to him was ineffective. The general rule that the covenants in a 'deed cannot be changed by parol evidence has a well-recognized exception in cases of deeds given as mortgages, and parol notice is sufficient to charge the purchaser with knowledge of the security character of the instrument. 41 C. J. p. 368.
As Wagner and Porvin represented that the amount secured by the mortgage was $2,500, the remaining question, which is one of fact, is whether the representation was true, the plaintiffs having made some payments thereon.
Plaintiff Goodman claimed he has paid about $1,900 on the mortgage loan. He produced canceled checks aggregating $893.75, paid in 1924. He asserted that he paid a note of $750, with interest of $13.13, on January 13, 1923, but did not know whether he paid in cash or by check. He produced the note, indorsed by Mrs. Harris and Meister. But the evidentiary force of possession of the note is impaired by the fact that, when the Marks deal was made, all the Harris notes were returned to plaintiffs. He stated that he had paid an additional $309 in 1923 in four cash payments. He produced no receipts. He has made no payments since 1924. In October, 1923, he acknowledged himself indebted to Mrs. Harris in the sum of $3,000 by giving her a new note in that sum. The Marks mortgage made in December, 1923, was for $3,000. Plaintiff Goodman testified that he received nothing from the transaction except the original $2,400. The trial court found that Goodman had made all the payments he claimed. But we are not able to reconcile that finding with Goodman’s, subsequent unequivocal notes which demonstrate that he had made no payments in 1923, especially when account is taken of the absence of documentary proof of payment in that year and of the generally uncertain nature of his evidence. The preponderance of the testimony is that plaintiffs have paid $893.75 on the mortgage. The decree will, therefore, be modified to declare the sum due on the mortgage to be the original loan of $2,400 with interest at 5% per annum less the sum of $893.75 to be credited on the respective dates of payment.
Defendant Rott is then entitled to a decree against Wagner and Porvin and the Porvin-Wagner Company in the sum of $2,500 with interest at 5% per annum from December 21, 1925, less the amount still secured by the mortgage as above stated.
The claim of Rott for reimbursement for taxes paid on the premises cannot be determined here because there was no evidence of the amount.
Defendant Rott will recover his costs of this court to be taxed as against the plaintiffs, and the defendants Wagner, Porvin and the Porvin-Wagner Company will recover their costs of this court against Rott.
The decree of the circuit court, in chancery, will be modified in accordance with this opinion. The decree against defendants Wagner, Porvin, and the PorvinWagner Company will also run against the surety on their appeal bond, as provided by 3 Comp. Laws 1915, § 12795; National Bank of Commerce v. Corliss, 225 Mich. 441.
North, Fellows, Wiest,- Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Fellows, J.
On October 23, 1913, Michael J. Griffin and others executed a quitclaim deed to the city of Detroit of a strip of land 10 feet in width off the easterly end of lot 6 of the subdivision of John Real, deceased, for use for alley purposes. On. April 18, 1914, Griffin conveyed the lot in its entirety and without reservation to one Oliver E. Day, who is made a defendant in this case. This conveyance was recorded May 5, 1914. On June 8th following, Day entered into an agreement to convey the lot in its entirety to plaintiffs-, and on June 22d executed to them a warranty d'eed thereof which was recorded July 9, 1914. On the day the deed from Day to plaintiffs was delivered the deed from Griffin to the city of Detroit was recorded. It is established beyond doubt that both Day and plaintiffs paid a full and adequate consideration* for the entire lot, and it is likewise established- beyond question that none of them had any knowledge of the deed to the city. Plaintiffs made very valuable improvements on the premises and their basic value has materially increased. On May 25, 1926, they were served with notice to remove encroachments on the 10-foot strip, said notice being given pursuant to action of common council of defendant city. They thereupon filed this bill to restrain action by the city and its officers and to quiet title. From a decree granting such relief, the city appeals.
As we have stated, the good faith of Day and plaintiffs is established beyond doubt. While Day testifies that he noticed an alley at the rear of the lots, the blueprint attached to defendants’ answer shows a 10-foot alley outside of lot 6, and we are satisfied that neither Day nor any of the plaintiffs ever knew or had reason to know that the city claimed any rights outside of that strip until the service of the notice in 1926. The city regularly levied general taxes on lot 6, and all. special assessments were made on the basis of plaintiffs’ ownership . of the entire unincumbered lot.
Plaintiffs’ grantor, Day, paid full consideration for the lot, bought it without knowledge or notice of any kind that the city claimed any interest in it, and re= corded his deed some time before the city recorded its deed. All concede he had a perfect title as against the city. As we view the case, the sole question for our consideration is whether his deed to plaintiffs carried such title to them. The only notice it can be claimed plaintiffs had was constructive notice by reason of the recording of the deed to the city the day they purchased and before their deed was recorded. But we are satisfied that their rights do not rest on the question of notice to them, either actual or constructive. If Day had a perfect title, and all seem to concede he had, it is difficult to perceive how he can be hampered in conveying to- any one he sees fit such perfect title. If he may be so hampered, his title is far from perfect and his rights of little value. Both counsel have favored us with exhaustive consideration and citation of cases from other jurisdictions, but we are satisfied our own decisions settle the question. In Godfroy v. Disbrow, Walk. Ch. 260, it was held (quoting from the syllabus):
“Although a party may not himself be a bona fide purchaser without notice, yet, if his grantor was such purchaser, the former is entitled to all his -rights, and the protection which the law would give him.”
And in Shotwell v. Harrison, 22 Mich. 410, it was said by Mr. Justice Christiancy, speaking for the majority of the court:
“But whether the defendant purchased with or without notice, and whether he paid any consideration or not, he would still hold the title, if Bacon, his grantor, could have held it as a purchaser in good faith and for a valuable consideration; for if Bacon was such purchaser, he had not only a right to hold it, but to dispose of it by sale or donation, or transmit it by descent, and the purchaser, donee, or heir, whatever notice he may have had, would take his title. But if the purchaser from Bacon paid no consideration, his rights would stand exclusively upon Bacon’s title, as much of it had come to him by descent. But a purchaser for value, though having notice of the prior unrecorded deed, would be just as clearly a purchaser in good faith within the meaning and protection of the statute, as if he had purchased without notice of it, if his grantor could have held the property as a bona fide purchaser, for value; since no injury is done by such a purchaser to the holder of the prior unrecorded title.”
See, also, Title & Trust Co. v. Jaster, 241 Mich. 416. The rule and the reason for the rule is thus stated with a citation of numerous authorities in 27 R. C. L. p. 684:
“As a general rule, if one is entitled to protection as a bona fide purchaser, he may convey a good title to a subsequent purchaser irrespective of notice on the part of the latter of defects in the title; in other words, a purchaser with notice from a bona fide purchaser. without notice succeeds to the rights of the latter and occupies the position of a bona fide purchaser. The reason for this is to prevent a stagnation of property, and because the first purchaser, being entitled to hold and enjoy, must be equally entitled to sell.”
We aré satisfied that when plaintiffs received the deed from Day they acquired the title and all the title Day had, which was a title superior to and untrammeled by any claim of defendant city.
The decree will be affirmed, with costs against defendant city.
Wiest, 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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] |
Fellows, J.
The primary purpose of plaintiff’s bill is to relieve it from an alleged defective foreclosure of a land contract, supplemental to which a decree against defendant for specific performance of said contract is asked. The contract in question, dated December 14, 1925, was given by defendant to William F. Nance. The property involved is described as:
“Greater Detroit New City Park Subdivision of part of the E. one-half of sec. 5, T. 2 S., R. 10 E., Dearborn township, Wayne county, Michigan. Plat liber 54 plats page 60, except the part vacated. Greater Detroit Fordson Highway Subdivision of part of the E. one-half of sec. 5, T. 2 S., R. 10 E., Dearborn township, Wayne county, Michigan, plat liber 57 plats, page 89. Both subdivisions containing 60.347 acres, according to the survey thereof, more or less.”
The agreed purchase price for the property is $126,494, with a payment of $5,000 down, the balance payable in monthly installments of $5,000 each, beginning January 14, 1926, not less than that sum each month thereafter, with interest on deferred payments at the rate of 6 per cent, per annum while the purchaser is not in default, and 7 per cent, per annum if in default, with a provision that the entire purchase price with interest shall be fully paid within 11 months. The initial payment of $5,000 down was made by Nance, after which no further payments were made or tendered by him or any one else.
To exploit these subdivisions Nance organized plaintiff corporation under the name “William F. Nance Realty Company,”, with an authorized capital of $50,000. Its articles of incorporation were received by the secretary of State on November 21, 1925, entered and filed by him January 15, 1926, and on that date copy of same was filed with the county clerk of Wayne county. Three incorporators and stockholders are shown, consisting of himself and two associates named Marshall and Tyson, with Nance as president, Marshall vice-president, and Tyson secretary- and treasurer. They state in their articles of association:
“The amount subscribed is one thousand ($1,000) dollars and no shares of no par value.
“The amount paid in is one- thousand ($1,000) dollars. * * *
“The amount of actual capital, in cash or property or both, which this corporation owned and possessed at-the time of executing these articles is one thousand ($1,000) dollars.”
On January 16, 1926, Nance gave a quitclaim deed of the property covered by his land contract to the corporation of which he was president, for a stated consideration of “one ($1.00) dollar and other valuable consideration to him in hand paid by the said parties o'f the second part.” This deed was recorded in the office of the register of deeds for Wayne county on February 16, 1926.
Whatever his plan was for financing this project and paying up the $121,494 yet due on the contract within 11 months from its date is not made clear, but it did not materialize. After default in payments defendant herein instituted two successive statutory summary proceedings against Nance to terminate the contract before circuit court commissioners of Wayne county, in each of which hearings were had, adjudications of amounts then due on the contract made, judgments for restitution rendered, and writs issued. The commissioners’ records show the first was commenced February 25, 1926, adjournment was had on the return day and case heard April 21,1926. Both parties were present,' defendant pleaded not guilty, amount due was determined, judgment of restitution rendered, and writ therefor issued on May 22, 1926. The second case was commenced April 9, 1926, adjourned for trial on the return day, and heard on April 30, 1926; both parties were present, defendant entered his appearance and pleaded guilty, amount then due was determined, judgment of restitution rendered, and writ therefor issued on June 12, 1926.
The instant case was heard before the Wayne county circuit court, in chancery, on November 1, 1926, resulting in a decree dismissing plaintiff’s bill. Plaintiff’s grounds for reversal on appeal are stated in its counsel’s brief as follows:
“The hill was filed for the purpose of setting aside a defective foreclosure of land contract for the following reasons: (1) That the proper parties were not made party defendants. (2) That after the commencement of the proceedings for possession in the circuit court commissioner’s courts before Samuel L. May and Henry G. Nicol, moneys due the vendee were collected by the vendor to apply in payment of the vendee’s obligation by virtue of this contract. (3) That the property in question was vacant and unoccupied, and therefore not within the jurisdiction of the circuit court commissioner.”
The contract involved is in its entirety a pretentious instrument, covering some 10 pages of the printed record, with numerous provisions immaterial to1 the issues raised here. It is said to be of the “Union Trust revised form.” Apparently a printed blank form of that kind was adopted and used until exhausted, when the subject was continued by a rider of about equal length attached to and concededly made a part of the contract by proper wording. It is also signed by the parties, with the same witnesses and date as the Union Trust part. As a whole, it follows the familiar phraseology and customary provisions of an ordinary land contract with provisions interspersed or added as the parties desired and agreed. Amongst other things it expressly specifies that—
“If purchaser shall fail to perform this contract or any part thereof the seller immediately after such default shall have the right to declare the same void and retain whatever may have been paid hereon and all improvements that may have been made upon the premises and consider and treat the purchaser as his tenant holding over without permission, and may take immediate possession of the premises and the purchaser and each and every other occupant remove and put out.”
Adverting to plaintiff’s three reasons why the alleged defective foreclosures of the contract should be set aside, the first is based on the fact that plaintiff was not made a party to the statutory proceedings before the commissioners, though an interested party by virtue of its quitclaim deed from Nance. In answer to that contention defendant refers to the express provision in its contract with Nance—
“That no assignment or conveyance by the purchaser shall create any liability whatsoever against the seller until a duplicate thereof duly witnessed and acknowledged, together with the residence address of such assignee, shall be delivered to the seller and receipt thereof indorsed hereon.”
That provision was not complied with. When Nance gave plaintiff the quitclaim deed in violation of his contract it was then in default. Plaintiff could not be an innocent party in that transaction. Conceding that between themselves the deed was given by Nance to the corporation of which he was president as an assignment of the contract .and plaintiff accepted it as such, it was accepted subject to all its provisions. Plaintiff necessarily knew that by its express terms Nance could not thus surreptitiously assign it in viola tion of their agreement and defendant’s rights and compel it to recognize a third party in the transaction. This is not an invalid provision because in restraint of alienation, as plaintiff contends. It does not bar assignment of the contract, but is a plain agreement between the contracting parties as to the method in which any assignment must be made to affect the rights of the vendor. It entitled him to actual notice by a duplicate thereof, witnessed and acknowledged, with the address of the assignee, delivered to him and receipted. The burden rested upon plaintiff to establish assignment of the contract to it and notice thereof to defendant in accordance with the covenant it contained. So far as applicable here, Kapelovitch v. White, 230 Mich. 427; cited by plaintiff, is confirmatory of that view.
Plaintiff’s second reason for reversal is that after the summary proceedings were commenced defendant collected moneys due the vendee to apply in payment on the contract, and thereby recognized the same as yet in, force. The land involved had been platted before this contract was entered into and certain lots sold under contract with payments falling due from time to time. To take care of that matter this contract provided:
“It is agreed between the parties hereto that the party of the first part shall collect all payments due or to become due on the said land contracts for lots sold heretofore until the first party has received its full consideration; provided, however, that upon the payment of the full consideration the said party of the second part shall receive credit for all,payments made subsequent to the date hereof less interest due to the date hereof which interest shall belong to the1 party of the first part.
“It is further agreed between the parties hereto that should the said party of the second part, pay the monthly payments as hereinbefore mentioned, that the first party will tentatively and for the time being shall apply upon its interest on the said money due and to be due, the amount collected on the land contracts sold as herein mentioned; provided, however, should the party of the second part at any time fail and neglect to make the said payments, then the said interest shall become due and payable and the party of the first part shall be entitled to the amount collected on the said land contracts.”
In compliance with that provision of the contract defendant collected payments as they fell due and were collectible on land contracts for lots theretofore sold, keeping an account of dates and amounts, but the total amount collected did not approximate the first default on this contract, of January 14, 1925, before the quitclaim deed on which plaintiff relies was given, irrespective of taxes of 1925, and interest, which the purchaser agreed to but did not pay. Such being the case, by the plain terms of the contract defendant (party of the first part) was “entitled to the amount collected on the said land contracts,” which in no sense of this contract could be construed as waiving compliance with its terms by accepting payments from the purchaser after due dates.
In support of its third proposition, that the circuit court commissioners had no jurisdiction because the property was unoccupied and vacant, counsel cite Rubenstine v. Powers, 215 Mich. 434, and quote the following excerpt:
“We do not think that Act No. 243 of the Public Acts of 1917, amending section 13253, 3 Comp. Laws 1915, relating to writs of restitution, has any application to this case. The question of possession of the premises is not here involved, nor did the cross-bill tender any such issue. It does not appear that any of the parties was actually living upon the land, or in actual occupancy thereof.”
That closing paragraph of the exhaustive opinion reviewing the many questions raised was not essential to the disposition of that case. The opinion not only shows but squarely states that the pertinent and controlling question involyed was whether a certain deed of the property was in fact given as security and in effect a mortgage, or the instrument was what upon its face it appeared to be. An examination of the original record of that case discloses it a lengthy one with various complications. One of the points raised and urged in plaintiffs’ brief was that the only method by which defendant and cross-plaintiff Powers who held a land contract could be dispossessed was by summary proceedings under the statute. Touching upon this contention before concluding, the court disposed of it with the statement that possession of the premises was not involved, and no such issue was tendered by the cross-bill, apparently because none of the parties were living upon the land or in actual occupation of it. This cannot be construed as an authoritative holding against the right to base summary proceedings on constructive possession.
In the instant case the purchaser’s land contract gave him in express terms absolute and exclusive possession of the property from its date, so long as he discharged his obligations under it. With that accepted muniment of title he was at least in constructive or legal possession. Such constructive possession with right of actual follows the title in the absence of adverse actual possession, and exists in contemplation of law without actual personal occupancy.
A further reason in this case is that at the summary proceedings, in both of which Nance is recorded as appearing and pleading, possession was an essential fact to be shown, and found by the commissioners to sustain the judgments rendered, which were not appealed from and are res adjudicada as to him.
This is likewise true as to notice of forfeiture, which plaintiff's counsel contend was not shown at the hear ing of this case. It was distinctly so stated in defendant’s sworn answer, which was not disputed by any motion, objection, or otherwise, during the hearing, nor was the claim now made even called to the attention of the trial court so far as shown. In fact forfeiture was admitted at one time, though now claimed unintentionally.
Under the general rule that specific performance is discretionary in equity courts, it is urged for plaintiff that it be granted under such equitable conditions as will relieve the vendee from the harsh imposition of a strict forfeiture. No actual tender is alleged or shown prior to filing this bill, nor into the court since, nor is ability to carry out the terms of the contract shown. Early in the hearing counsel for defendant stated during a discussion in open court that if plaintiff would pay the money into court they would terminate the suit right there, to which no direct reply was made. In the absence of any tender or some satisfactory assurance to the court of ability to at least promptly pay all then due and fully carry out the terms of the contract, the court was justified in the decree rendered.
• It will stand affirmed, with costs to defendant.
Wiest, Clark, McDonald, and Sharpe, JJ., concurred.
Justice Steere and the late Justices Snow and Bird took no part in this decision. | [
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] |
North, J.
The defendant was convicted of pander ing and sentenced from 5 to 20 years in the Detroit house of correction. He has brought the case here by writ of error. The information contained three counts, each charging acts which constitute pandering. The jury found a verdict of not guilty as to the second and third counts, and hence we are concerned only with the regularity of the conviction of the defendant for having committed the offense as charged in the first count. This count is as follows:
“That Charles Lockhart, late of the city of Detroit, in said county, heretofore, towit, on the thirtieth day of June, A. D. 1926, at said city of Detroit in the county aforesaid, did then and there knowingly accept, receive, levy and appropriate certain money, towit, the sum of -five dollars, without consideration, from the proceeds of the earnings of one.............., a woman, then and there engaged in prostitution, contrary to the form of the statute,” etc.
The principal question presented by defendant’s assignments of error is that section 3 of Act No. 330, Pub. Acts 1925, is unconstitutional. In support of this contention, the appellant primarily relies upon People v. Lyons, 197 Mich. 64, in which it was held that this same section as embodied in Act No. 63, Pub. Acts 1911 (3 Comp. Laws 1915, § 15496), was unconstitutional. But this determination was placed upon the sole ground that the various misdeeds which were made felonies by section 3 of the act of 1911 were not within the statutory definition of pandering as contained in section 1 of that act; and therefore section 3 was not within the title of the act which related to pandering only. For this reason section 3 was held to be in violation of section 21, article 5, of the Michigan Constitution, which provides:
“No law shall embrace more than one object, which shall be expressed in its title.”
But the subsequent amendment of this statute (Act No. 330, Pub. Acts 1925) remedied this defect by broadening the statutory definition of pandering as defined in section 1, so that it specifically includes the felonies embodied in section 3 of the act. This clearly brings section 3 within the title and overcomes the constitutional objection which was the sole basis of the decision in People v. Lyons, supra.
There are two inconsistent penalties provided in this statute as amended by Act No. 330, Pub. Acts 1925. Section 1 provides a maximum penalty of 30 years, while section 3 provides a maximum penalty of 20 years for the same offense. The defendant contends that this renders the provisions of the act indefinite and uncertain, and therefore it is unconstitutional. We think this contention is not well founded. It is the duty of this court to sustain rather than destroy a legislative enactment if such a result can be justly obtained. People v. Stickle, 156 Mich. 557. It is also the duty of this court, having due regard for other rules of construction, to construe the penal provisions of statutes in a manner most favorable to the accused.
“If the statute contains a patent ambiguity, and admits of two reasonable and contradictory constructions, that which operates in favor of a party accused under its provisions is to be preferred.” 25 R. C. L. p. 1084.
See, also, Weirich v. State, 140 Wis. 98 (121 N. W. 652, 22 L. R. A. [N. S.] 1221). Applying these rules of construction to this statute, we hold it is not in violation of the Constitution, but that it must be construed as providing a maximum penalty of 20 years. The trial judge so construed the conflicting provisions of this statute, and imposed a maximum sentence of 20 years. In so doing he fully protected the rights of the accused.
Numerous assignments of error urged in behalf of the defendant relate to rulings of the trial court which allowed the prosecuting attorney to proceed with the examination of the female witness, who was defendant’s confederate in the commission of this offense, on the theory that she was a hostile witness. The record discloses that the trial court was entirely justified in so doing. The people were compelled to call this young woman as a witness. Her testimony was indispensable to the prosecution's case. Before the trial was concluded she frankly admitted that she had committed perjury in the earlier part of her testimony, and this was clearly done in an attempt to shield the defendant. Objections to the above method of examining this witness were so persistently made by defendant’s attorney that the following colloquy finally passed between the court and counsel:
“I am glad to have you make objections if there is some good sense back of them, if they are proper objections. You are a lawyer; you know what impeachment is; you ought to know; it by this time.
“Defendant’s attorney; All right.”
Because of the numerous objections just previously made by defendant’s counsel, which were much to the same point and wholly without merit, the trial court surely had some provocation for admonishing counsel in an effort to proceed with the trial orderly and expeditiously; and, under the record presented, we would not be justified in holding that this remark of the court constituted reversible error.
Two of the assignments of error relate to the charge to the jury. In one instance complaint is made that the court omitted the word “knowingly” in stating to the jury the offense as set forth in the first count of the information. The charge as given is not subject to this criticism. At the outset the court said the information charges that the defendant did knowingly accept, receive, etc. Again, and on the very page of the printed charge to which this assignment of error relates, the court said “the law aims to punish those who knowingly accept, receive, appropriate, and levy money from a prostitute coming out of her earnings without a consideration.” The other assignment relating to the charge is that because the court said: “The fact that one has committed crimes or has been charged with other acts in the past does not prove his guilt; it does not tend to prove the case at bar,” the jury improperly drew the inference from this statement that the defendant had committed other offenses or had been charged therewith. The charge of the court is not subject to this construction, and obviously the portion quoted was given in an effort by the trial judge to fully protect the rights of the defendant in the face of the fact that there was testimony in this case from which it might well have been inferred that he was guilty of other and serious offenses.
Many of the assignments of error contained in the record have been withdrawn by defendant’s counsel. Those not so withdrawn and not hereinbefore discussed have been given careful consideration, but we find them to be without merit and such that it would not be helpful to the profession to discuss them here. The guilt of the accused is conclusively shown by the record, and we find no good reason for setting aside his conviction.
The judgment of the lower court is affirmed.
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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Clark, J.
On October 29, 1920, Stella Brukwinski by Frank Brukwinski, her next friend, filed a declaration in the Wayne circuit against Standard Oil Company, an Indiana corporation. On November 5, 1920, the following paper was filed in the cause:
“Return of Sheriff.
“State of Michigan,
“County of Wayne.
ss.
“I hereby certify and return, that on the 4th day of November, A. D. 1920, I served the declaration of which the within is a copy, on the Standard Oil Company, by serving R. F. McConnell, Supt. of Co., the de fendant named in said declaration, by delivering to R. F. McConnell, said defendant at the city of Detroit, in said county of Wayne, a true copy thereof and of the foregoing rule to plead the notice relating thereto, together with a trué copy of the notice to appear and plead, attached thereto, as hereto attached.
“Irving J. Coffin,
Sheriff Wayne County,
“By Wesley J. Wing,
Deputy Sheriff of Said County.”
Such return or writing was not indorsed on or attached to the declaration (3 Comp. Laws 1915, § 12441).
On March 5, 1923, default of defendant, said Standard Oil Company, for want of appearance, was entered, and judgment followed on April 9, 1923. On June 21, 1924, an execution was placed in the hands of the sheriff. Said Standard Oil Company, as plaintiff herein, filed this bill, alleging in substance that no service on it had been had, that the return of service was irregular and insufficient, and that the default and judgment were void, and prayed in chief that levy be enjoined and that the judgment and default be set aside. Plaintiff had decree. Defendants have appealed.
On the authority of Whirl v. Reiner, 229 Mich. 114, which is accessible and which need not be quoted, the decree must be sustained. See, also, Stanczuk v. Pfent, 231 Mich. 689, 691.
That the return is bad for another reason, discussed in Price v. Delano, 187 Mich. 49; McCain v. Wayne Circuit Judge, 187 Mich. 73, and Hoben v. Telephone Co., 176 Mich. 596, need not be considered.
Affirmed, with costs to plaintiff.
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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Potter, J.
(dissenting). Arda M. Johnson, individually, and as administratrix of the estate of William T. Johnson, deceased, sued defendant. There was verdict and judgment for plaintiff. A motion to set aside the verdict and enter judgment for defendant was denied. A motion for a new trial was denied. Defendant brings error, assigning 34 reasons for reversal, grouped under five heads as follows:
(1) The declaration is insufficient to sustain the vérdict.
(2) There was no evidence of tender by plaintiff before suit of what was received under the contract.
(3) There was no evidence that decedent relied on the alleged misrepresentations.
(4) Deceased relied upon and acquiesced in the transaction after knowledge of the claimed fraud.
(5) Prejudicial argument by counsel for plaintiff.
The declaration has three counts, the first two of which charge defendant with having procured, through its agents, the money of plaintiff’s intestate and plaintiff’s assignor by false and fraudulent representations and pretenses. It is charged that defendant’s agents represented they were selling stock in defendant, whereas they delivered memberships therein. The third count is the common counts in assumpsit.
Defendant challenges the sufficiency of the declaration for the reasons, — that it does not allege facts sufficient to sustain a cause of action; it does not count upon the statute, 3 Comp. Laws 1915, § 12350; and the counts for tort are improperly joined with the count in assumpsit.
The first two counts in the declaration allege that defendant’s agents made false representations and pretenses to plaintiff’s intestate and plaintiff’s assignor, which representations and pretenses are set forth in the declaration; that plaintiff’s intestate and plaintiff’s assignor relied upon such false'representations and pretenses; that defendant thereby procured their money which it would not have procured had they not relied upon such false representations and pretenses; and that plaintiff’s intestate and assignor were injured thereby. We think either of these two counts in the declaration sufficient to sustain the verdict, and it is self-evident that the common counts in assumpsit are sufficient.
The claim that the declaration does not count upon section 12350, 3 Comp. Laws 1915, which provides that in cases where an action on the case for fraud or deceit may by law be brought, and in cases of the conversion of personal property into money, the plaintiff may bring and maintain either .an action of assumpsit or an action of trespass on the case, is without merit.
Defendant contends that the two tort counts in the declaration cannot be joined with the count in assumpsit; that plaintiff’s intestate and assignor and plaintiff, upon the discovery of defendant’s alleged fraud, had the choice of two inconsistent remedies, — to retain what had been received, affirm the contract and seek to recover damages for the fraud; or to rescind the sale, tender back to defendant what had been received, and seek to recover what plaintiff’s intestate and assignor had parted with. Stowe v. Mather, 234 Mich. 385.
. It seems to be a well-settled rule in this State that counts based upon rescission of a contract and upon breach of contract may be joined. Glover v. Radford, 120 Mich. 542; Goldman v. Great Lakes Foundry Co., 230 Mich. 524; Stowe v. Mather, supra. We think the declaration in this case is sufficient.
It is a general rule where plaintiff seeks to rescind a contract upon the ground that it was induced by fraud, and recover back the money paid thereon, he must, as a condition precedent, tender back whatever of value he has received, and thus place the defendant in statu quo. The defendant’s agents sold stock. It delivered so-called memberships. It obtained the money of plaintiff’s intestate and assignor by false pretenses and representations. as to what it was selling. Plaintiff’s intestate and assignor and plaintiff had a right to rescind. The record shows that the secretary of State ordered defendant to default and cancel all memberships on which nothing had been paid before June 1, 1925. Defendant sent a release of liability to plaintiff’s intestate and assignor in which they were asked to acknowledge that defendant was under no obligation to them. In view of the facts, of the position taken by the State and by defendant that these memberships were worthless, and should be canceled and defendant released from liability, it was unnecessary for plaintiffs intestate and assignor or for plaintiff to tender back the receipts or certificates of membership before instituting suit. Stubly v. Beachboard, 68 Mich. 401; Pangborn v. Ruemenapp, 74 Mich. 572; Joslin v. Noret, 224 Mich. 240.
The law does not encourage fraud. It does not deny relief because the fraud has been successful. One who has perpetrated a fraud cannot be heard to say that the person defrauded ought not to have relied upon his false pretenses. The proof is conclusive that false representations were made by defendant’s agents. They thereby procured the money of plaintiff’s intestate and assignor. The false pretenses and representations made are shown to have been a part of a general scheme of defendant’s agents to obtain money by false pretenses and representations. That plaintiff’s intestate and assignor parted with their.money, and defendant’s agents received it shows sufficient reliance upon the fraud. Eaton v. Winnie, 20 Mich. 156 (4 Am. Rep. 377); Sawyer v. Menominee Loan & Building Ass’n, 103 Mich. 228; Smith v. McDonald, 139 Mich. 225, The testimony was sufficient to warrant the conclusion that plaintiff’s intestate and plaintiff’s assignor believed and relied upon the false representations made.
Defendant is a building and loan association organized and existing under the laws of the State of Michigan. It is purely a creation of law and exists only by authority of law. It possesses no power or authority except that which is expressly or impliedly conferred on it by law. 14 C. J. p. 51, § 3; Schuetzen Bund v. Agitations Verein, 44 Mich. 313 (38 Am. Rep. 270). A corporation which exercises or seeks to exercise corporate powers or privileges of a particular kind ought to be able to point to the law which authorizes the exercise of those powers and privileges. No act for creating a corporation can be extended to cases not reasonably covered by its terms. The determination of the conditions and powers of corporate existence is peculiarly a matter of policy and requires legislative judgment. Stewart v. Father Matthew Society, 41 Mich. 67.
Building and loan associations, from some real or imaginary benefit they are supposed to afford the poorer classes of society, are given exceptional advantages over other corporations and private persons. Phelps v. Savings & Loan Ass’n, 121 Mich. 343. Experience has proved that such associations have not been free from the baleful influence of the desire for money getting. Stoddard v. Building & Loan Ass’n, 138 Mich. 73.
Section 37, Act No. 255, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 10023 [8]), was passed prohibiting them from directly or indirectly doing a banking business or advertising for or accepting deposits. Plaintiff’s intestate and assignor were not depositors in defendant. It was forbidden to receive deposits. One-fifth of the money paid by them went to defendant ; four-fifths of it went to' defendant’s agents. No interest on the money paid to defendant was to- be received. Their supposed rights, according to defendant, were subject to cancellation and the money paid by them to- confiscation. They did not become stockholders in defendant. They could not vote for directors. They could not participate in the control of defendant. They could not share in dividends in case of winding up defendant. Memberships in defendant as sold were not securities. If plaintiff’s intestate and assignor had bought stock in defendant they would have had to pay its full par value.
Defendant procured the money of plaintiff’s intestate and assignor and purported to give them the right to deposit money with the defendant. There was then nothing in the statute authorizing a building and loan association to sell memberships therein independent of the sale of its stock. These memberships were a subterfuge for procuring from the plaintiff’s intestate and assignor money for defendant’s agents and defendant. So common became the frauds perpetrated by the method pursued by defendant, that Act No. 207, Pub. Acts 1925, was passed which provides (§ 5):
“No membership fee in excess of three dollars, the actual amount of which to be determined by the secretary of State, may be, charged for each one hundred dollars of capital stock subscribed nor shall stock or membership certificates be sold or transferred on commission nor at a premium either directly or indirectly. All moneys received from whatever sources, including membership fees, shall be paid into the treasury of the association and disbursed by the proper officers as provided by the by-laws.”
Prior to the enactment of this statute, a building and loan association, under the law of this State, had no authority to sell memberships independent of its stock as a security therein, or to exact a fee therefor. By the enactment of Act No. 207, Pub. Acts 1925, the legality of membership fees within the limits of that statute was approved, but money taken by defendant for membership fees prior to the enactment of Act No. 207, Pub. Acts 1925, was improperly taken because such memberships were not legally authorized.
Plaintiff’s intestate acted with reasonable promptness. There was testimony that he was sick. Defendant’s correspondence was designed to lull him into security. Under such circumstances the law will not refuse relief because he was not diligent, but reposed too much confidence in defendant. Miller v. Savings Bank, 227 Mich. 316.
Defendant assigns error because of the argument of plaintiff’s counsel. The argument of defendant’s counsel is not reported. Many of the things stated by plaintiff’s counsel objected to by defendant were within the proof. The trial court charged the jury to disregard some improper remarks when they were made. In some cases the stateménts of counsel were stricken from the record. Some of them were in reply to defendant’s argument. Many of the things stated by plaintiff’s counsel might well have been unsaid. Upon the whole record we do not think plaintiff’s improper argument sufficient to warrant a reversal of the case. Judgment should be affirmed, with costs.
. Sharpe, J^
In my opinion this case should be reversed because of the prejudicial argument of plaintiff’s counsel, upon which error has been assigned, I quote therefrom:
“Now you aren’t hurting me; it is that widow back there and the children that you are hurting; not me. This isn’t my suit and if they paid — after I am paid, if I should be, still I should feel that I am in better position than the prosecuting attorney of this county who is here defending this defendant who has come over from Ohio and brought a corps of stock swindling selling agents — ”
On objection,thereto the court said:
“I think you ought to discuss the testimony and make the applications from that and confine yourself to the testimony.” * * *
“The testimony shows they have been authorized to sell fifteen million dollars’ worth of memberships to the people of the State of Michigan. They are authorized to mulct the people of the State of Michigan out of fifteen million dollars for the credit of — ”
On' objection and request for a mistrial the court said:
“I think you ought not to use that word mulct. * * * There have been several things in this case, but I am still going to try to save the case.”
He then instructed the jury to disregard “the statement of counsel absolutely.”
“Now, it would seem that this association had agents in Detroit to sell all the memberships and stock they had, -without importing these high-powered salesmen from the State of Ohio. I have heard of the bandits being imported from one city , to another, but I never heard of them going from an entire State and importing a corps of swindling salesmen — we have one in this case.”
On renewed objection and request for a mistrial, the court said: “Confine yourself to the testimony.”
Over objection, counsel continued:
“Our friends upon the other side can say anything they want to. We are at a disadvantage. We aren’t able to express our ideas and to express our contempt of the defendants because they pop up and call it non-suit. * * *
“Now, there is a string of these stock salesmen and you probably know — I don’t know if you know how it works, but I have seen more or less of it. In fact, I was skinned out of $1,000 once myself and possibly they put me on a sucker list, but I never have been since. * * *
“Why, they would take candy from a baby. They did take some in our county, $25. * * *
“You don’t blame me for being here, do you? You can hardly blame the prosecutor for being here. If I could get $4 out of every $5, the Lord only knows what I would do, but so help me God, I don’t sell stock, even for $4 out of every $5. * * *
“Would you have gone into this if you had known you had to pay $50 a month for 11 years? Nobody said so and nobody understood so. It is just as this lady said and Mr. McCann said; it is absolutely worthless. You can’t get your money back. It isn’t worth anything more than a whip pocket on a Ford; not a bit. It is no good to any one. Any other companies charge nothing; all the way from nothing to 50 cents.”
On objection that there was no. testimony bearing on the statement made, and demand for a mistrial, the court said: “Strike it out.”
The statements complained of, which we have quoted only in part, were not referred to in the general charge. It cannot well be claimed that they were in reply to anything said by opposing counsel.
During the course of the trial, on objection being made to the introduction of prejudicial testimony, and on motion to1 declare a mistrial therefor, the court said:
“Yes, it is prejudicial. There is no doubt about it. I presume I really ought to. If I didn’t know this jury as well as I do, I would declare the cause a mistrial, but I think that I will not do so. I want the jury to disregard the statement of counsel absolutely in the matter and I think that you will be able to do so from my experience with you for the last two or three months.”
Later in the trial, when plaintiff’s attorney was testifying as a witness for her, he had stated that in November or December, 1924, he was at the office of the defendant. Quoting again:
“Q. When was the last time you went down there?
“A. I was down there when I sued you. for—
“Mr. Newman: Just a minute.
“A. (Continued) Grossman’s.
“Mr. Newman: All right; I will ask to have it declared a mistrial on this statement.
“The Court: Strike it out, gentlemen of the jury. I don’t know what I really ought to do with this case, ladies and gentlemen of the jury, I think you can just disregard that retort of Mr. Waters.”
This court has repeatedly reversed cases because of the improper argument of counsel. In Hillman v. Railway, 137 Mich. 184, reversal was had for this reason alone. It was there said:
“One cannot read the record without being impressed with the idea that the trial judge got tired of trying to keep counsel within the rules, and that counsel was not willing to acquiesce in the admonitions and suggestions of the court. The mischief done by the improper argument of counsel was not cured by the judge.”
In Atherton v. Defreeze, 129 Mich. 364, this court said:
“As long as attorneys will resort to such methods, unjustifiable either in law or ethics, courts have no alternative but to set the verdicts aside.”
Later cases in which prejudicial argument was held to be ground for reversal are Reed v. Louden, 153 Mich. 521; Hughes v. City of Detroit, 161 Mich. 283 (137 Am. St. Rep. 504); Morrison v. Carpenter, 179 Mich. 207 (Ann. Cas. 1915D, 319); Stowe v. Mather, 234 Mich. 385. As was said by Mr. Justice Stone in Morrison v. Carpenter, supra:
“If counsel persist in making such improper arguments, they must take the consequences resulting therefrom.”
It is unfortunate that “the consequences” must here be suffered by the client instead of by the attorney.
The judgment is reversed, with costs to appellant, and a new trial ordered.
Fead, C. J., and North, Fellows, Wiest, Clark, and McDonald, JJ., concurred with Sharpe, J. | [
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] |
Fead, C. J.
This is a bill for the foreclosure of a mechanic’s lien. It is conceded that all the statutory requirements have been observed. The lien was released by Zacks & Lerner’s filing a statutory bond, with defendants Shanbom and Furnari as sureties. At the hearing, by consent, the cause was dismissed as to the defendant church corporation.
November 2, 1923, defendants Zacks & Lerner con tracted to erect a church building for the defendant church corporation. February 13, 1924, defendant Harris contracted with Zacks & Lerner to furnish and complete the structural and ornamental iron work for the building, for the sum of $11,500. March 22, 1924, Harris and plaintiff entered into a contract by which the plaintiff, for the sum of $9,500, agreed .to furnish and deliver the structural steel for the building, not to exceed 75 tons. This contract was approved and payments thereunder guaranteed on the instrument itself by Zacks & Lerner. July 24, 1924, plaintiff, by letter, notified Zacks & Lerner that it had delivered 63 tons of steel and that, with additional balcony and roof details, the total would be 113 tons. It is the claim of plaintiff that shortly afterwards Zacks verbally agreed to plaintiff’s furnishing the additional steel and promised that it would be paid for. While this was denied by Zacks, it was properly found to be the fact by the circuit judge, as, on July 31st, plaintiff advised Zacks & Lerner by letter that it had proceeded with the additional tonnage, “as per your instructions and your advice and assurance that there would be no question as to payment of same.” This contemporaneous written evidence turns the scale. The total value of steel furnished by plaintiff was $11,396.22.
Before July 24th, $4,500 was paid on the Harris contract, $3,500 to plaintiff and $1,000 to Harris with plaintiff’s consent. Harris claims extras on his contract of $1,929.75. This claim is denied by defendants. Zacks & Lerner claim damages against Harris of $859.46 for failure to complete his contract. Harris admits their claim of noncompletion to the amount of $198.36. The architects allowed Zacks & Lerner $128.15 for extras on the steel work. Plaintiff had decree for $8,538.87 and defendants appealed.
Defendants contend that the case is governed by the provisions of Act No. 140, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 14796), which reads in part as follows:
“The owner, part owner or lessee shall not be liable to the subcontractor, materialmen or laborers, for any greater amount than he contracted to pay the original contractor, and shall be entitled to recoup any damages which he may sustain by reason of any failure or omission in the performance of such contract.”
Counsel for defendants urge that the statute limits plaintiff’s lien to the amount of the Harris subcontract, $11,500, and additional “extras” of $128.15, with deduction of $4,500 already paid and $859.46 damages for noncompletion.
The defendants evidently have misread the statute. The statutory lien limit of liability for labor and materials is the amount of the contract between the owner and Zacks & Lemer, not of the Harris subcontract. Zacks & Lerner are not owners, part owners, or lessees, nor is Harris, the original contractor. The statute obviously was designed as a measure of protection to the owner, who,.presumably, is not a builder and is not in a position to keep check of the costs of construction. There is no good reason to extend the statute beyond its plain language and confuse and restrict materialmen and laborers in order to give advantage to the principal contractor who is in complete control and can protect himself. It nowhere appears in the record that the original contract has been exceeded, and the statute does not apply.
Moreover, the testimony preponderates that the steel, over the contracted 75 tons, was furnished by plaintiff as a result of assurance by Zacks & Lerner that it would be paid for. This was, as the circuit court held, an original and independent undertaking, apart from the written contract. Consequently, such excess must be considered without reference to the limits of the Harris subcontract. Plaintiff’s original contract claims of $9,500, added to the $1,000 paid Harris with its consent, and the damages for noncompletion claimed by the defendants would not exhaust the Harris contract of $11,500 with admitted extras. So the plaintiff’s lien is for the full amount of its claim.
The Harris subcontract contained a provision for the settlement of disputes by arbitration. No such clause appears in plaintiff’s contract, either directly or by reference, but defendants say it is binding on plaintiff and urge it as a bar to this action. The contention is untenable. If it were sound, defendants waived the provision by failing to demand arbitration and going to trial without raising the question. They made no suggestion of it until the testimony had been completed.
The decree of the circuit court is affirmed, with costs to the plaintiff.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Clark, J.
Plaintiff Vermont Marble Company furnished material for erecting the James Scott water fountain on Belle Isle to defendant Emil J. Bollin, trading as John Bollin Company, principal contractor with the city of Detroit. The defendant Southern Surety Company was surety on the construction bond and also on the statutory bond for the protection of'those furnishing material and labor on the job. The city was to make payment to the principal contractor on architect’s certificates of progress of the work furnished from time to time, and such contractor agreed that when he received a payment from the city he would immediately pay to plaintiff its portion applicable on material furnished. There is some evidence that the principal contractor withheld from plaintiff from time to time sums due it upon such certificates and from payments made by the city. The sums so withheld were to draw interest under a fair construction of the contract. When the aggregate of the sums withheld was a large amount, the principal contractor defaulted under its contract with the city and the defendant surety company then conferred with those interested, including plaintiff, and decided to accept responsibility and to complete the job. In this regard there is evidence tending to show an understanding between the parties hereto that no interest on the amounts then due plaintiff would be charged. This evidence is strongly corroborated by the subsequent conduct of plaintiff, especially sending a number of statements of account in which no interest charge appears. When the job was completed defendant surety company concededly owed plaintiff $2,000, but plaintiff contends for the further sum of nearly $2,700 interest. On motion, a verdict was directed for plaintiff for the full amount a,nd judgment entered thereon. Defendant surety brings error.
The judgment must be reversed. Whether plaintiff was entitled to any interest and if so, how much, were, as above indicated, questions of fact for the jury.
That it is upon plaintiff, under section 14830, 3 Comp. Laws 1915, that it may recover, to prove full payment to its laborers and materialmen, is, because of *the extensive oral argument in this court, not likely to arise again and is therefore passed.
Judgment reversed. New trial granted.' Costs to appellant.
Fead, C. J., and North, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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North, J.
The Central Land Company, a corporation, brought suit in ejectment against the township of Clearwater in the circuit court of Kalkaska county. The case was tried by the circuit judge without a jury, findings of fact and law were filed by the court September 28, 1927, and judgment in favor of the plaintiff was entered October 1, 1927. Notice in writing of the entry of judgment was given forthwith to the attorneys of the defendant township. No exceptions to the findings were filed; but on November 5, 1927, a motion was made by the defendant asking for further time within which to file exceptions to the court’s findings of fact and law. This motion was denied by the circuit judge, and it is now sought to compel by mandamus the granting of an extension of time within which to file such exceptions.
It is the claim of the plaintiff herein that the attorney representing it was seriously ill during practically all the period intervening between the entry of judgment and the making of the motion. None the less, the trial court refused to grant the motion on the ground that -he did not have the power to do so, since the exceptions were not filed within the four days provided by Circuit Court Rule No. 45, nor was there an application made within that period for an extension of time within which to file exceptions; and in his return to this petition for mandamus, incident to the statement that he had no doubt of the illness of plaintiffs attorney as hereinbefore stated, the circuit judge pointed out that throughout this litigation the attorney who makes the claim of illness had associated with him another attorney who was conversant with this case. At the time of settling the return a plea was made to this portion of 'it from which the claim appears that the partnership relation between these two attorneys had been dissolved some months before the determination of the ejectment suit and that the suit had been entirely in the charge of the attorney who was ill. As against this claim it is evident that the circuit judge had before him the file in the case throughout which the attorneys seemed to have been of record as jointly representing the defendant. Even the motion for the extension of time which was then before the court was presented in the name of both of the attorneys. In addition to this it appears from the record that within the period during which counsel claims he was incapacitated by illness the plaintiff herein filed a bond incident to securing a stay of proceedings in the ejectment suit, paid the appeal fee, secured the certificate of the stenographer reciting that the record had been ordered in the ejectment case, and obtained an order for an extension of time within which to settle a bill of exceptions therein. In the face of such a record the circuit judge was abundantly justified in denying plaintiff’s motion for an extension of time, regardless of whether or not the court had the power to do otherwise, which it is unnecessary to determine herein because we are of the opinion that had the circuit judge ruled to the contrary, it would have been an abuse of discretion.
The application for the writ of mandamus is denied, with costs to the defendant herein.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Clark, J.
The first action 4s quo warranto to test the validity of amendments of the charter of the city of Sturgis. On motion the proceeding, after full hearing and taking the testimony, was dismissed and plaintiff brings error.
The city has a charter adopted under the home-rule act, 1 Comp. Laws 1915, § 3304 et seq., as amended. It has a city commission of five members elected at large, one elected each year for a term of five years. The main feature or purpose of the amendments adopted by the people at an election was to abolish such body and to provide for a commission of nine members, one to be elected at large for the term of one year and two from each of four precincts to serve for a term of two years. The validity of the amendments is challenged as conflicting with a provision of section 3308, 1 Comp. Laws 1915, as amended by Act No. 119, Pub. Acts 1923, § 5, subd. (d), which is that no city shall have power:
“To change the salary or emoluments of any public official after his election or appointment or during his term of office; nor shall the term of any public official be shortened or extended beyond the period for which he was elected or appointed, unless he resign or be removed for cause where such office is held for a fixed term/*
This proceeding is pursuant to sections 13551-13553, 3 Comp. Laws 1915:
“Section 28. A petition may be filed in the circuit court of any county of this State whenever it shall be made to appear that material fraud or error has been committed at any election in such county at which there shall have been submitted any constitutional amendment, question, or proposition to the electors of the State or any county, township or municipality thereof,
“Sec. 29. Such petition shall be filed within thirty days after such election by the attorney general or the prosecuting attorney' of the proper county on his own relation, or on the relation of any citizen of said county without leave of the court, or by any citizen of the county by special leave of the court or a judge thereof. Such petition shall be filed against the municipality wherein such fraud or error is alleged to have been committed.
“Sec. 30. After the filing of such petition the procedure shall conform as near as may be to that provided by law for informations in the nature of quo warrcmto.”
The ground of the motion upon which the proceeding was dismissed is that the claimed invalidity of the amendments is not “material fraud or error” at the election within the statute just above quoted. This case on its face is not a contest between rival claimants for office. The question before us is the validity of the amendments. Practically as presented it is a corniest between the present commissioners, represented by the regular city attorney who appears as such, and citizens, sponsors of the amendments, who were permitted to intervene and who are represented by counsel. The city is also represented by special counsel contending against the position of plaintiff and his counsel, who, with the city attorney, urge the claimed invalidity.
We think it our duty to pass on the question before us. In Youells v. Morrish, 218 Mich. 194, it was said of the statute last above quoted:
“The legislature by adopting these three sections, evidently intended a change in the practice; otherwise nothing was accomplished. A reading of these new sections clearly evidences, we think, this legislative intent: That where it is claimed there was fraud or there was error, invalidity, in an election at which any constitutional amendment, question or proposition has been voted upon, the proceedings to test the election must be against the municipality affected by the proceedings and must be brought within 30 days after the election. The purpose of the change is clearly apparent; the municipality to be affected by the proceedings should have an opportunity to be heard, and public policy requires that there should • be a speedy determination of the validity of the election before engagements are entered into by such municipality.”
The word “invalidity” was there used advisedly, and as within the contemplation of the statute. We think it proper in this proceeding to inquire of the claimed invalidity of the amendments. The purpose of the amendments is not' to shorten the term or terms of the commissioners of the city. The purpose is much broader. It is to provide a new and different legislative body in the city government, and, of course, to abolish the present body as of the day when the members of the new body shall have been elected and qualified.
The electors of the city have statutory power to amend the charter, to abolish lawfully the legislative body and to provide another and different body, to do what was here done. The power as here lawfully exercised would be rendered nearly nugatory if the taking effect of the amendments were postponed to the day when the term of office of the commissioner now elected for the longest term shall have expired. The practical difficulties of authorizing and providing a legislative body to function until that day will suggest themselves. It was not intended that the above provision quoted from the home-rule act should have such effect.
In this State one does not have a contract right to an office. The office is taken subject to the contingency that it may be abolished lawfully. The present commission of the city has been abolished as stated. The authorities are fully reviewed in notes in 4 A. L. R. 205, and 37 A. L. R. 815. See Long v. Mayor, etc., of New York, 81 N. Y. 425. We agree with the trial judge that plaintiff ought not to prevail, but we think judgment on the merits should have been entered against him. The cause is remanded that the judgment may be modified accordingly. No costs.
Electors of the city, favoring reform of the charter as above stated, and meeting opposition by the present commissioners, filed petitions for the recall of such commissioners. Election to determine recall was refused. Mandamus was instituted on the relation of the attorney general to compel the calling and holding of such election, in view of our holding in the main case, we think the action in mandamus of no practical importance and it is dismissed, without costs.
North, Fellows, Wiest, 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.
The plaintiff in this case was employed by the defendant, a Michigan corporation, as a sales agent. Plaintiff’s services as such were first rendered as a subagent in the State of Texas, beginning February 5th or 6th, 1925, and extending over a period of about three months. Thereafter, from May 4, 1925, until April 1, 1926, he was engaged as one of defendant’s sales agents in the State of Ohio. He brought this suit to recover from the defendant compensation which he claims he earned while so employed. The defendant asserted the plaintiff had been paid in full, and further, that, because of certain overpayments, and because of certain damage the defendant had sustained by reason of fraud and misrepresentations of the plaintiff, the plaintiff was indebted to the defendant. At the conclusion of the proofs, the trial judge directed the jury to find in favor of the plaintiff in so far as the controversy arose out of his services in the State of Ohio, the amount of such recovery being fixed by the court in the sum of $1,582.94. In so far as the claim arose out of plaintiff’s services rendered in the State of Texas, it was submitted to the jury, which determined that the plaintiff was entitled to recover $410 for this item. The verdict rendered in favor of the plaintiff and against the defendant was in the total sum of $1,992.94. Judgment was entered for the plaintiff in this amount and the defendant has appealed.
It is the claim of the plaintiff that the contract between himself and the defendant for services, in the State of Texas was wholly verbal, and that by its terms the commissions on the respective sales were earned by him and fixed in amount as soon as the defendant received and accepted orders secured by the plaintiff. The defendant agrees that the arrangement between the parties was oral but contends that, in consummating the same, the oral contract was made to conform to the terms of the printed contract which the defendant used in employing its agents generally. This printed contract provided that, except as other wise specifically stated in the contract (which was not done in plaintiff’s contract), commissions were to be paid to the agent only “token the customer had remitted for the sale in full.” The plaintiff’s commission in the Texas territory was to be 17% of his sales, with an advancement for expenses. The question was, When were his commissions payable? Under plaintiff’s theory and claim as to the terms of his Texas employment, there was due him $410; but nothing was due him incident to his operations in this territory under defendant’s claim as to the terms of this oral contract. The defendant moved the court to direct a verdict in its favor. This was denied and this phase' Of the case submitted to the jury. We have given the record careful consideration touching this issue, and are of the opinion that the controversy as to what were the terms of the oral contract clearly presented an issue of fact, and that it was proper to submit its determination to the jury.
Incident to this phase of the case, the defendant requested the court to charge the jury as follows:
“Where a letter is deposited in the United States mail addressed to a person at his place of residence, there is a presumption of law that such letter is received by the person to whom it is addressed.”
It was the defendant’s claim that it had mailed a letter to plaintiff “which confirmed our verbal understanding,” and which corroborated the defendant’s claim as 'to the terms of the Texas agency. A copy of this letter was received in evidence; but the plaintiff testified he did not recollect receiving the letter. In submitting this issue to the jury the requested charge should have been given; but, since the case must be remanded for a new trial on other grounds, we need not here consider the question as to whether the trial judge’s omission to give the requested charge was prejudicial to the extent that, standing alone, it would constitute reversible error.
In so far as the plaintiff represented the defendant as a sales agent in the State of Ohio, the agency contract was reduced to writing. It is unnecessary to quote the contract in full. By its terms the defendant company appointed the plaintiff sales manager of the company’s products within and for the State of Ohio, beginning May 4, 1925. Nowhere in the contract is the plaintiff given the exclusive agency in this territory, but in some of the correspondence the defendant refers to plaintiff as its “State manager.” The contract provided:
“The company hereby reserves the right to refuse any order mailed to them, which is undesirable for any reason whatsoever. No sales bind the company until they are accepted. The company agrees to fill all such orders with all practical dispatch,” etc.
Also:
“This contract is to be in force for the period - of one year providing you adhere to all the rules and regulations and personally produce a minimum of $1,500 as per sales price of the company’s goods each month. Your failure to do so automatically cancels this contract without notice to you.”
After the signatures the following appears:
“Clause No. 18 Remuneration.
Expenses paid not charged up $50 per wk.
Salary — $120 per month.
Commission — 4% of net sales providing volume exceeds $1,500 per mo.
Bonus — Per Schedule below.” (Schedule follows.)
There is no controversy about the payment of plaintiff’s expenses and salary as provided in the contract; but the controversy arises over the amount of commissions to which plaintiff was entitled, and also to what extent he should have received the bonus from month to month. With the full knowledge and consent of the plaintiff two other subagents were placed in the Ohio territory. In the main their contracts were similar to the plaintiff’s with the exception that their compensation was different, and each contract had written thereon underneath the provision that the territory consisted of the State of Ohio the following' parenthetical expression: “(Under H. O’Connor.)” The plaintiff claimed and the trial court held that plaintiff was entitled not only to the commission on his own orders from the Ohio territory but that he was also entitled to commission on the orders secured by the two subagents each month when the total sales of the three exceeded $1,500. It was claimed by the defendant that the plaintiff was not entitled to the 4% commission unless his personal sales for the current month exceeded $1,500. The president of the defendant company testified that the plaintiff received 4% overwriting on the entire sales of the Ohio territory each month when plaintiff’s personal volume of sales exceeded $1,500. Thus it seems to be agreed by these parties that under certain conditions plaintiff was to receive 4% commission on all sales made during a given month in the Ohio territory; but they disagree as to the terms of the contract fixing these conditions. There is no other provision in the contract which specifically refers to clause No. 18 or which renders at all definite or certain the meaning of the expression “Commission — 4% of net sales providing volume exceeds $1,500 per mo.” This provision is ambiguous, and its meaning and intent may be in accord with the contention of either of these parties so far as can be ascertained from the face of the contract. Its construction not only controls plaintiff’s right to commissions but likewise his right to share in the monthly bonus. Under the record of the case, if the plaintiff’s construction is adopted he will be entitled to the commission and the monthly bonus as was held by the trial court; but under defendant’s claim and theory the plaintiff could not recover for these items. Because the contract is ambiguous its construction in this particular should have been determined as a question of fact by the jury under proper instruction from the court. The proper rule for determining the construction of a contract has been stated as follows:
“Where a contract is to be construed by its terms alone, it is the duty of the court to interpret it; but where its meaning is obscure and its construction depends upon other and extrinsic facts in connection with what is written, the question of interpretation should be submitted to the jury, under proper instructions.” 6 R. C. L. p. 862, and cases cited.
See, also, Geoghegan Sons & Co. v. Arbuckle Bros., 139 Va. 92 (123 S. E. 387, 36 A. L. R. 399).
The plaintiff also claimed and the court held that plaintiff’s commissions under the Ohio contract were earned as soon as the orders were received and accepted by the defendant; but the defendant contended that these commissions were not due to the plaintiff until the one to whom the products were sold had made payment therefor to the defendant. Thus it became a controverted issue as to what, under this 'contract, constituted a “sale” in the sense that the plaintiff would be entitled to receive his commission. Relative to this, the trial judge said:
“Now, it seems in this case there was some of these orders that were accepted in writing. On some, the. goods were shipped and not paid for. Some were canceled by the defendant long after their receipt, after the plaintiff’s commission had been earned. It is my opinion that the undisputed evidence in the case, as I construe the contract, entitles the plaintiff to a bonus and commission for sales or orders obtained by the three men, the. plaintiff and the two subagents in Ohio, covering all orders except those containing the statement ‘Subject to change of customer,’ and which last mentioned orders are not, by the undisputed evi dence, shown to have been accepted or filled. Now, those orders are out of the case.”
It is difficult to adopt the foregoing construction or meaning of the word “sale” as used in this contract, because of the undisputed proof that the parties themselves placed another and different construction thereon, and their construction should control. The plaintiff’s Ohio contract became effective May 4, 1925. The two contracts of the Ohio subagents took effect June 6, 1925. At the end of the first month there was trouble about settling commissions with one of the subagents; and the president of the defendant company wrote plaintiff on July 7, 1925, as follows:
“Mr. Brooks (a subagent) informed me, yesterday, that you stated to him that he would receive a full cash settlement on every bona, fide order and sale that he made during the month, and that such settlement was to be at the end of every month. I do not see why you made the statement, as I have never found that you wilfully misrepresented facts before. But, you certainly must understand that settlement of salesmen commission is based on the settlement to us by the customer, on the sale. I have carefully gone over this before, and I was sure that you understood the matter, as do our other salesmen.”
To this letter the plaintiff replied July 9, 1925, as follows:
“Regarding Mr. Brooks and his commissions, will say, I am sure there must have been a misunderstanding, as of course I never told him that you would pay an agent all his commissions at the close of every month, otherwise I would have asked you for the back commissions due me. I regret that he understood it that way for I think he is a good man for us. My brother here understands it as I do, that you will advance the weekly allowance and pay the balance of their commissions when you have received your pay from the customer.”
Since these parties at the very outset clearly and definitely placed a meaning upon the word “sale” which, with the exception of money advanced to meet expenses, did not entitle the agent to demand his commission until the defendant received its pay from the purchaser, we are bound to accept such construction as proper and binding upon the parties. McIntosh v. Groomes, 227 Mich. 215. The failure to do this in the trial court was prejudicial error and enabled, the plaintiff to recover commissions incident to orders which, without fault on the defendant’s part, were never filled, or at least orders for which the defendant never received pay. The foregoing holding should not be construed to mean that merely for its own convenience or without just cause the defendant could cancel or neglect to fill bona fide orders procured by the plaintiff and accepted by the defendant, even though the filling of such orders would result in a financial loss to the defendant. As a matter of law, the defendant had jio right to arbitrarily deprive the plaintiff of his commission. 1 Meehem on Agency (2d Ed.), § 1536; Parker v. Walker, 86 Tenn. 566 (8 S. W. 391). The defendant was bound by its contract “to fill all such (accepted) orders with all practical dispatch.” It was required to exercise diligence and good faith in its efforts to fill and collect the pay on all orders which it accepted from the plaintiff; but so long as the defendant proceeded “with all practical dispatch” and in good faith to complete the contracts arising from plaintiff’s orders taken in the Ohio territory, the latter was not entitled to his commissions thereon until the «customer paid the purchase price.
The remaining question presented by the assignments of error which merits' consideration is whether prejudicial error was committed by receiving the testimony offered by the plaintiff incident to certain prize contests conducted by the defendant among its salesmen. The plaintiff claimed this testimony was material and relevant because it would disclose that certain- sales were credited in these contests to the plaintiff by the defendant on which sales the defendant at the trial denied the plaintiff’s right to recover commission. The record discloses that the number cf points each salesman received in these contests depended upon his “total week’s business” as indicated by the orders he sent in, regardless of the fact that some of these orders might be canceled after the contest period, or that the purchase price thereof might not be paid by the customer. In view of the construction hereinbefore placed upon this contract, it is evident that the testimony relative to “orders” credited to the plaintiff in these contests cannot be held to be competent proof of consummated “sales” such as would entitle the plaintiff to his compensation, and we think receiving this testimony was prejudicial error.
Because of the errors hereinbefore indicated, the judgment must be reversed and the case remanded for a new trial. The appellant will have costs of this court.
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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] |
Fellows, J.
These five writs of error sued out by different parties in interest bring up for review a judgment of the circuit court of Wayne county entered, upon several appeals from a single decree of the probate court of that county ordering a partial distribution of the estate of decedent. While the amount involved is large (something over $7,500,000), and the briefs are exhaustive, we are persuaded that the questions are not complex, nor do they require detailed analysis or discussion in an extended opinion for their correct solution. John F. Dodge made his will April 4, 1918. It made no provision for after-born children. Anna Margaret Dodge, his daughter, was born June 14, 1919. He died January 24, 1920, without making any change in his will. It is conceded that Anna Margaret Dodge as a pretermitted child took under section 18790, 3 Comp. Laws 1915, which reads:
“When any child shall be born after the making of his father’s or his mother’s will and no provision shall be made therein for such child, he or she shall have the same share in the estate of the testator as if the parent had died intestate. And the share of such child shall be assigned to him as provided by law in case of. intestate estates, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child.”
Anna Margaret Dodge died April 13, 1924, when less than five years old. Her estate consisted almost entirely of personal property, Mr. Dodge having left ■but little real estate. The question here presented is whether her estate both real and personal has the quality of an ancestral estate and goes to her brothers and sisters under the following provision found in section 11795, 3 Comp. Laws 1915:
“If such intestate shall die under the age of twenty-one years, and not having been married, all the estate that came to such intestate by inheritance from a parent, which has not been lawfully disposed of, shall descend to the other children and the issue of deceased children of the same parent, if there be 'such children or issue, and if such persons are in the same degree of kindred to said intestate they shall take equally, otherwise they shall take by right of representation.”
If either or both real and personal property has not the character or quality of an ancestral estate, then the mother takes under other provisions of the section cited. The probate court held the real estate had such quality, and it was decreed to the brothers and sisters; it held that the personal property had not the quality and character of ancestral estate, and decreed it to belong to the mother. The circuit court gave judgment to the mother for both real and personal estate.
1. Personal Property. As the great bulk of the estate is personal property we shall first consider its devolution. Appellants insist that the general provision found in section 13913, 3 Comp. Laws 1915, requires that the personal property pass as ancestral under the provision above quoted. This general provision is as follows:
“In any other case the residue, if any, of the personal estate shall be distributed in the same proportion and to the same persons, and for the same purposes, as prescribed for the descent and disposition of the real estate.”
If the provisions of section 11795, dealing with ancestral property, which we have quoted, are not applicable to personal property, then the personal property under other provisions of the same section goes to the mother, and the decisions of the probate and circuit courts as to the personal property must be affirmed. Before taking up Jenks v. Trowbridge’s Estate, 48 Mich. 94, we should quote the statute having reference to ancestral estates in force when that litigation arose. It is the 6th subdivision of section 4309, 2 Comp. Laws 1871, and is as follows:
“If any person shall die leaving several children, or leaving one child, and the issue of one or more other children, and any such surviving child shall die under age, and not having been married, all the estate that came to the deceased child by inheritance from such deceased parent shall descend in equal shares to- the other children of the same parent, and to the issue of any such other children who shall have died, by right of representation.”
We have italicized the words “by inheritance” and shall possibly have ■ occasion so to do later. We do this because in the Jenlcs Case interpretation of these words was regarded as crucial in determining one of the grounds of decision. In the Jenlcs Case the minor son of the parties had died. The estate which came to him from his father consisted of both real and personal property. It was conceded by all parties that the real estate passed as ancestral property, the litigated question being whether the personal property was also ancestral. This court held that it was not, and based its decision on two grounds: It gave to the words “by inheritance” used in the statute their technical, legal meaning, as having reference only to descent of real estate. It was said:
“We have seen how the right of succession provided for in subdivision 6 (§ 4309) is dependent on. specified conditions and that the presence of all the conditions is indispensable to the right. The ‘persons’ there mentioned can only become entitled to take and be the ‘persons’ prescribed as successors by inheritance in the event that all the conditions exist, and one of these conditions not inferior to any other is that the -decedent shall have taken the estate by inheritance. The-legal sense is manifest. There is nothing equivocal. The terms of the condition peculiarly appertain to- real property and do not fit personalty and no change to’ extend the meaning to the latter, which might possibly be permitted in some other case, can be allowed here without a gross perversion of sense.”
The court as its second ground pointed out that the movable and changeable character of personal property precluded it from having the quality of ancestral property and directed attention—
“to the nature, uses and modes of handling such property and its vicissitudes of ownership as affording reason for thinking it was not meant to consider it as suitable to be classed in the category of ancestral estate.”
The court also with citation to Massachusetts cases called attention to the fact that the effect would be to hold that “the parent’s estate is considered as still in a course of distribution.” By reason of the construction given the words “by inheritance,” and by reason of the movable and changeable character of personal property, it was held that it did not pass as ancestral property. But even before the Jenks Case was decided, and in Henderson v. Sherman, 47 Mich. 267, this court with but little discussion had committed itself to the doctrine that personal property had not the quality of ancestral property.
Appellants’ counsel call attention to the fact that the legislature has made changes in the language used in the statute before the court in the Jenks Case. It is true that our statutes of descent and of distribution have been subjects of change from time to time, but an examination of the various amendments demonstrates that in every amendment that has been made to the ancestral estate provision since the decision in the Jenks Case, the legislature has retained the crucial words “by inheritance” which had in that case received judicial construction. The year following the decision in the Jenks Case the legislature amended the statute of descent but the amendment retained the words “by inheritance” (Act No. 169, Pub. Acts 1883). This is likewise true of Act No. 168, Pub. Acts 1889, and Act No. 286, Pub. Acts 1909. The word “inheritance” as used in the ancestral statute was given its technical meaning in the Jenks Case and consistently on every occasion that it has spoken since the legislature has continued its use in that statute with such meaning attached. It is of no moment that the words on other occasions and in other statutes have been used in a more liberal sense. As a part of the ancestral’ statute it has been given a definite meaning, and unless the Jenks Case be overruled it must be held that personal property, changeable and movable as it is, has not the quality of and does not pass as ancestral property.
But it is insisted by counsel for appellants that the Jenks Case was overruled by In re Schultz’s Estate, 212 Mich. 682, and if not, that it should now be overruled. In the Schultz Case this court had before it the provision applicable to adopted children (3 Comp. Laws 1915, § 11808). That statute did not contain the words “by inheritance,” which, as we have pointed out, were deemed controlling in the first ground of decision in the Jenks Case. The words used in the section then before us were “which has come.” So it will be seen that the case is distinguishable if we only consider the first ground of decision in the Jenks Case. But we should frankly state that the. Jenks Case was not called to our attention by either counsel in the Schultz Case, was not before us, and was not considered by us. Appellant’s brief in that case stated:
“As the question presented by this case has not been passed upon by the court of last resort of this State we can turn to no precedents from this jurisdiction as an aid.”
This statement was acquiesced in by appellee’s brief. What was said in the Schultz Case which conflicts with the second ground of decision in the Jenks Case was said without the Jenks Case being before us and without the light that case would have given us. There was no intention to overrule a case not before us and which had not then been examined by us. Much less was it intended to overrule a case of as long standing as the Jenks Case.
Nor are we persuaded that the Jenks Case should be overruled. It followed the general rule (18 C. J. p. 819), established a rule of property, and is in consonance with the spirit of our institutions. On at least three different occasions since it was decided the legislature has spoken on the subject and on each occasion it re-enacted the language there given judicial construction. Following it, it must be held that the personal property did not pass as ancestral property.
2. Real Estate. Every reason advanced in the Jenks Case for holding that personal property does not pass as ancestral is a reason for holding that real estate does. The fact that the statute having reference to a pretermitted child is found in the chapter dealing with the probating of wills has no significance. Mr. Dodge made a will but Anna Margaret Dodge took nothing under it. Under the statute she took as though he had died intestate; she took by inheritance and upon her death the real estate passed as ancestral property.
From what has been said, it follows that the decree of the probate court must be affirmed, and the judgment of the circuit court modified. As the cases came to this court on error, they will be remanded to the circuit, court with direction to modify the judgment in accordance with this opinion and certify such modified judgment to the probate court. None of the parties will recover costs.
Wiest, 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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] |
Clark, J.
This action in assumpsit was commenced in justice’s court. The cause was appealed to the circuit court and tried without a jury. Plaintiff had judgment for $27.64. Defendant has brought the case here for review on case-made.
The court made no findings of fact and law and none were requested. There is therefore nothing here to review. McDonell v. Union Trust Co., 139 Mich. 386; Simon v. Zarevich, 213 Mich. 662; Robbins v. Simons Sales Co., 218 Mich. 569; Tuxbury v. Freneh, 39 Mich. 190.
Judgment affirmed.
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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Potter, J.
Plaintiff filed his bill of complaint against defendants for specific performance of an option agreement, and alternatively for a money judgment for damages suffered by reason of defendants’ failure to perform the contract. February 2, 1926, defendants owned the real estate in Macomb county involved herein, a farm of 120 acres. Plaintiff claims they then executed an-option agreement to Casper Czizek, in consideration of $100 paid to defendants, to sell the land for $60,000. February 17, 1926, Czizek assigned the option agreement to plaintiff. March 9, 1926, the option and assignment were recorded in the office of the register of deeds of Macomb county. March 23, 1926, Czizek executed another assignment of the option to plaintiff. March 31,1926, plaintiff tendered defendants $6,000 in currency in accordance with the terms of the option, and the assignment of the option contract, and demanded the execution and delivery by defendants of a contract of purchase of the land. The principal defense is that defendant Minnie Vermander did not execute the option contract. A decree was entered for plaintiff, with costs, and defendants appeal.
Mr. Czizek was in the real estate business and had known Mr. Vermander for 35 years, but was not well acquainted with his wife. Czizek offered defendants $450 an acre for the land. Mrs. Vermander advised her husband to think it over. Later Czizek called at defendants’ home and they asked $500 an acre for it. An agreement was made to sell the property on the basis of $500 an acre. Plaintiff claims the option was signed at defendants’ home, in the presence of Czizek, his daughter, defendants, and their son; that Czizek asked Mrs. Vermander to sign the contract, and Mrs. Vermander then asked her son to sign for her. Czizek’s daughter, a notary public, executed the notarial certificate of acknowledgment.of due execution, and, together with Vermander’s son, a man about 30 years of age, witnessed the signatures.
Edward Vermander, defendants’ son, admits signing his father’s name and making the cross in his signature. He denies his mother’s signature was made by him at her request. He admits he signed the option agreement in her name, but says he signed it at Czizek’s request. He denies that the notary asked if the execution of the option was the free act and deed of defendants, and denies Czizek asked Mrs. Vermander to sign. He claims his mother was not in the room at the time he signed her name to the option agreement, but that during the negotiations she was back and forth where the parties were talking, being engaged in baking and other household duties, and at the time he signed her name to the option contract his mother was looking for the abstract of the property.
Defendant Vermander desired to know when the option was signed whether Czizek thought he could sell the property. Czizek testifies defendants were pleased and “tickled to death,” that they were getting $60,000 for this 120 acres of land. Defendants accepted the $100. A couple of days afterwards an advertisement appeared in the Detroit Free Press showing the land was being offered for $250 an acre more than defendants were selling it for. Apparently defendants became dissatisfied. Defendant Vermander assaulted plaintiff and his attorney when they came to make a tender in accordance with the terms of the option, and ordered them off the place. Czizek and his daughter both testified to the regular execution and acknowledgment of the option contract. The notary’s certificate and execution appear to be regular. It would have been a natural thing for Czizek to have asked Mrs. Vermander to sign the option contract. She was not a skilful writer, and Czizek and his daughter both claim that she then asked her son to sign. The son admits he signed his father’s name and admits that he signed his mother’s name. He witnessed both signatures. It is improbable the son would have signed his father’s and mother’s names to the option contract, under the circumstances, without their consent. The record does not warrant overturning the trial court’s determination of the facts.
Decree affirmed, with costs.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Sharpe, J.
Plaintiff is a resident of the village of Flushing, in Genesee county. A house on a farm owned by him, a few miles from the village, was destroyed by fire on October 17, 1925. It was insured in the defendant company. This action was brought to recover on the policy. Plaintiff had verdict and judgment for $5,177.78. Defendant seeks review by writ of error.
1. The record discloses that the barn on said farm, insured in the defendant company, burned in February, 1924, and that, about a week before the house burned, a fire occurred in the attic, which was extinguished. An assignment is based upon the refusal of the court to admit certain proofs, of which it is conceded the defendant should have the same benefit as though the witnesses had been called and interrogated relative thereto. The offer was thus stated by its counsel:
“Now, I propose to prove, if the court please, that prior to the burning of the barn, that oats were taken away, hay was taken away, lumber was removed from the barn, his best harness was taken away; that the fire did not originate where he said it did; it did not originate from the lantern, that was placed where he said it was placed, but the fire was set or originated in the north end of the barn, that there was a heavy wind, and that it was sweeping to the south, and that he was the only person around there that could have caused the conflagration; that some of the best tools were out of the barn and in the yard at the time of the fire; that the stock was all let out in the orchard, had been out there for some considerable time, and the poorer tools, the worthless tools, were still in the barn. Now, that is what I propose to prove about that. Of course, there are a whole multitude of little things about this case that may have slipped my mind, but those are the essentials.”
This offer was made at the opening of defendant’s case. Its counsel had theretofore been permitted to cross-examine plaintiff at length relative to the facts incident to the burning of the bam. It is the general rule that evidence that a person has done an act at a particular time is not admissible to prove that he has done a similar act at another time. There are well-recognized exceptions to this rule, however. In certain criminal cases in which intent is involved prior acts of a similar character may be shown, and, in civil cases where misrepresentations are claimed, other fraudulent transactions of a similar nature may be proven.
The purpose of the proof here offered was to establish the motive which actuated the plaintiff in the burning of the buildings on his farm. Defendant sought to show that the plaintiff had in mind that, after the buildings were burned and the insurance secured, he could dispose of his farm to better advantage than with the buildings upon it. To make such testimony admissible, it must appear that the facts were—
“sufficiently significant in character, and sufficiently near in point of time, to afford a presumption that the element sought to be established existed at the time of the commission of the offense charged.” Commonwealth v. Bradford, 126 Mass. 42.
In State v. Graham, 121 N. C. 623 (28 S. E. 409), where similar proof was offered, it was said:
“It is when the transactions are so connected or contemporaneous as to form a continuing action that evidence of the collateral offense will be heard to prove the intent of the offense charged.”
In Meister v. People, 31 Mich. 99, 108, the facts are thus stated:
“The fire was on the 22d of June. Proof was given, under exceptions, that about a month before the fire, three conversations were had between Leizer Meister and John Wagner and John Nugent (at one of which William Meister was present), in which Leizer desired to get them to burn the property between the 1st and 10th of June, between Saturday night and Monday morning, when the folks would be away, and consulted as to the best way of burning. This testimony . was objected to, as tending to show another offense, under a different statute.”
The court held that this evidence—
“was admissible as tending to show a purpose to burn the property, existing not very long before the fire, and bearing on the probabilities.”
The test seems to be whether the earlier act was sufficiently near in point of time to permit a presumption to arise therefrom that the motive which it is sought to establish then existed. The fire which destroyed the barn occurred in February, 1924. The house burned on October 17, 1925, nearly 20 months thereafter. During this time the plaintiff had erected a new barn somewhat smaller than the old one. It does not appear that either building was insured for more than its value. The only proof tending to justify a finding of the motive claimed was the testimony of farmers that the farm, stripped of the buildings, would sell for more money than with them on if the insurance was collected.
Plaintiff’s counsel urge that on cross-examination he admitted all the facts which defendant sought to prove. There is some force in this contention. But, in our opinion, the proof offered was too remote in point of time to justify our holding that the trial court abused his discretion in rejecting it.
2. Error is assigned upon the following extract from the charge:
“Now there has been testimony introduced by the defendant in this case to show the value of the property with the buildings on, and what the value of the farm would be with the buildings removed or burned off. I charge you, gentlemen of the jury, under the testimony of these men, that would be true of any man’s farm that had the buildings on, that the insurance would be more than the buildings would sell for after the buildings were built, so Mr. Stranahan is not in a class by himself. According to the testimony introduced here, and the arguments made, he is in a class with people with that kind of insurance, so that of itself would not point to Mr. Stranahan any more than anybody else who had buildings insured in that way.”
One of the witnesses who estimated the value of the farm with and without the buildings stated:
“There is not much demand for land without buildings. It would move much slower on the market. The average man who buys a farm buys one with buildings and not without buildings.”
Another said:
“I figured the difference in the value of the land without the buildings. I could not say as to what the value of the barn was. I did not fix any value on the house.”
Another testified:
“I have been in Mr. Stranahan’s house and barn, but never paid any attention to them. I don’t know what it would cost to build the barn and the house. The buildings are worth something, but you can buy those farms out there for $125 an acre.”
There was other testimony of similar import. The instruction as given was unfortunate. We are unable to say after an examination of the entire record that it resulted in a miscarriage of justice. 3 Comp. Laws 1915, § 14565.
The-judgment is affirmed.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Wiest, J.
We here review, under special leave, denial of defendant’s motion in the circuit to dismiss plaintiff’s bill of complaint and refusal to order plaintiff to give bond upon being granted a temporary, injunction to stay the proceedings at law. The bill before us was filed to set aside a default judgment rendered in favor of defendant and against plaintiff herein in the Wayne circuit.
Several grounds are alleged in the bill, only one of which need be considered, for, if that states a case for consideration in equity the circuit judge rightly refused to dismiss the bill on special motion. It is the universal rule that, upon a motion to dismiss a bill for want of equity, the court must take as, true every well pleaded asserted fact stated therein. Plaintiff set up in the bill the fact that, despite the return of the sheriff of personal service upon him of the process in the action at law, no service was made, and, therefore, he had no knowledge of the suit or judgment against him until an officer appeared with an execution to seize his property. That allegation states a case in equity. Garey v. Morley Brothers, 234 Mich. 675, and cases there cited. We need not repeat what we there said.
Counsel for defendant claims that the sheriff is a necessary party defendant. We do not think so. At the hearing, plaintiff must, in order to have the judgment set aside, establish the fact that the return of service of process upon him was false.
By injunction the circuit court stayed all proceedings in the action at law and should have required plaintiff to give bond. The statute (3 Comp. Laws 1915, § 12664) requires a bond be given, except in case of actual fraud. 3 Comp. Laws 1915, § 12670.
In the particular mentioned the bill does not allege actual fraud and the circuit court is directed to require that a bond be given or, in default thereof, dissolve the stay.
The order denying the motion to dismiss the bill is affirmed. Under the circumstances, each party will stand his own costs.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Fellows, J.
The testimony introduced on behalf of plaintiff tends to show: that he is a policeman of the city of Grand Rapids; while in the discharge of his duty, and while pursuing on a motorcycle a law violator, he was run into and seriously injured by defendant’s automobile, which attempted to turn into a private driveway without giving any signal or notice of such intention; that, under the charter and ordinances of the city, he was entitled to and was paid a pension for the time of disability; that he was not paid compensation under the workmen’s compensation act nor did he file any claim with or take any proceedings before the department of labor and industry asking compensation under the act. At the close of this proof defendant moved for a directed verdict on the ground of contributory negligence and for the further reason that plaintiff had been compensated under the work men’s compensation act and could not recover against both employer and the wrongdoer, and had elected his remedy. The trial judge was not impressed with the claim of contributory negligence, but accepted defendant’s contention that the pension was the same as compensation under the act and its acceptance precluded the maintenance of this suit against the one responsible for the injury by the one suffering the injury, and that the provision of the act inhibiting proceeding against both was applicable to the instant case.
, We can not say as matter of law that plaintiff was guilty of negligence contributing to the injury so as to preclude maintenance of this action. Our discussion will, therefore, be limited to the reason which was the basis of the action taken by the learned trial .judge in directing a verdict for defendant.
Irrespective of. what had been said in cases which preceded it, City of Grand Rapids v. Crocker, 219 Mich. 178, must be accepted as settling the proposition that one who had proceeded under the act and accepted from the employer its benefits had elected his remedy, and the employer who had paid compensation under the act was the one entitled to sue the wrongdoer to recover for the money expended by him. Having paid to the employee compensation for an injury caused by a third person, the employer was by the terms of the act entitled to be reimbursed by such third person. That conclusion was reached by reason of the provisions of the act and its interpretation then indulged in by this court. As construed by us the act so provided. We are now asked to go much further and to hold that the acceptance of a pension by a city employee is the same thing as receiving compensation under the act, and, although no such provision is found in the act, we should read it into it and by construction hold that the employer can sue the wrongdoer to re cover the pension paid and the injured employee can not sue for his damages.
The act as originally passed put city employees within its terms. It did not deal with pensions. However, the legislature of 1921 took note of the fact that in some cities pension systems were in operation, and section 7 of part 1 of the act was amended (Act No. 173, Pub. Acts 1921 [Comp. Laws Supp. 1922, § 5429]) and the following provisos were enacted:
“Provided, however, That policemen or firemen or employees of the police of fire departments, or their dependents in municipalities or villages of this State having charter provisions prescribing like benefits, may waive the provisions of this act and accept in lieu thereof such like benefits as are prescribed in such charter, but shall not be entitled to like benefits from both: And provided further, That nothing contained in this act shall be construed as limiting, changing or repealing any of the provisions of any charter of any municipality or village of this State relating to any benefits, compensation, pensions, or retirement, independent of this act, provided for employees as herein-before defined.”
Plaintiff chose to accept the pension provided for in the charter and ordinance of the city. By so doing ho waived the provisions of the act. To sustain defendant’s contention would necessitate a holding that by accepting the provisions of the charter and ordinance for a pension, plaintiff elected to come under the act. The construction contended for by defendant is untenable. It is based, and must be based, on the theory that “pension” and “compensation” are synonymous and that the use of either word included the other. No authorities are cited to sustain such contention, and such as we are able to find in the time at our disposal are to the contrary. In Dickey v. Jackson, 181 Iowa, 1155 (165 N. W. 387), it was said:
“The words ‘pension’ and ‘compensation’ are not synonymous, nor are the plan and purpose which underlie the workmen’s compensation act necessarily identical with those which induce the establishment of a pension fund. The latter is ordinarily a gratuity from the government, or some of its subordinate agencies, in recognition of but not as payment for past services; though, when provided as part of a scheme of employment, it would seem to include some elements of a contractual character, and is doubtless intended to encourage faithfulness of service. On the other hand, workmen’s compensation acts are intended to secure to the injured employees a money allowance, which shall to some degree pay to employees compensation for the loss or damage to which their injuries in the master’s service have subjected them. The purposes of the case before us do not require us to attempt solution of the difficult question of how far statutes dealing with these subjects may both stand, and the benefits of both be enjoyed by the same individual. It would seem, however, under familiar principles, that, if there be no express repeal of the earlier statute, and no demonstrable inconsistency between such statute and one of a later enactment, both must be given effect according to their terms.”
In Kelly v. Railway Co., 53 Scot. L. R. 53, the court concluded from an examination of the papers submitted that the payments made by the municipality were not made as compensation under the workmen’s compensation act but were made to tide the plaintiff over until he could try his lawsuit, and it was held they did not defeat his right to recover against the wrongdoer. In Hornburg v. Morris, 163 Wis. 31 (157 N. W. 556), the plaintiff, a fireman, had been injured and had drawn the pension provided for by an ordinance of the city. He brought suit against the wrongdoer. The trial judge held that he was under the workmen’s compensation act and that his claim had by receiving compensation been assigned to the city and he could not recover. The circuit court reversed and its decision was affirmed by the supreme court; that court holding that he was not under the act when the accident occurred, and as to the pension it was said:
“The only party, if any, liable for the injury to plaintiff was the -defendant. That being so, plaintiff’s right to maintain the action against him is not transferred to the city by reason of its paying plaintiff’s salary while not on duty.”
We are not persuaded that by accepting the pension provided for in the charter and ordinance of the city plaintiff assigned to the city his cause of action against defendant precluding him from maintaining this suit. As against any reason here urged plaintiff is entitled to take the judgment of a jury. .The case must be reversed and a new trial granted. Plaintiff will recover costs of this court.
North, 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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Fellows, J.
Upon the bill of a stockholder and with the consent of the defendant company, the Michigan Trust Company was appointed receiver of the Wolverine Metal Specialties Company. Martin DeGraaf was president and treasurer of the company. After its qualification, the receiver filed a petition setting up that DeGraaf had in his possession a large amount of tools and equipment belonging to the company which he had failed to turn over to the receiver; that just prior to the appointment of the receiver DeGraaf as treasurer of the company drew from the bank $2,272.22, which he had failed to turn over to the receiver, and that the records of the company showed that he had on hand the following items of cash belonging to the company: $2,400.49, $670.39, $600, $300, $250, $500, and $400. Upon filing the petition, order to -show cause was issued and served on DeGraaf. In his answer he insisted that he was not a party to the suit, was a stranger to the record, and the court was without jurisdiction to summarily dispose of the matter; upon the merits he insisted that he had loaned and advanced to the company over $9,000, some of which had been furnished by his wife, and insisted that he had used the money withdrawn from the bank to liquidate in part such indebtedness; he answered with reference to the tools and equipment and other cash items, but as they are not here involved further detail is unnecessary. Upon the hearing, as appears by the order entered thereon, the court found that the sum of $2,272.22 was in DeGraaf’s hands as president and treasurer of the company at the time of the appointment of the receiver, and he was directed to turn the same over to the receiver; the other cash items were left to be disposed of in future litigations, and he was ordered to turn over to the receiver the property, books, records, letters patent, etc., in his possession but belonging to the company. From this order no appeal was taken. A demand was made on DeGraaf for the money, but it was not turned over, and a petition was filed asking that he be committed for contempt. His present counsel then appeared for him. In the contempt proceedings, it was again urged that DeGraaf was not a party to the suit, and it was then claimed and stressed that the sum of $2,272.22 was drawn from the bank and applied on the indebtedness of the company to DeGraaf before the bill for the appointment of a receiver was filed, and testimony on this subject was taken but not considered by the court. Upon this petition, after giving DeGraaf some time to comply with the original order, an order of commitment for contempt was made. It is upon the appeal from this order that the case is before us.
The order which appellant is charged with violating found that he had received the money of the corporation as an officer of the corporation 'after the receiver was appointed, and directed him to turn it over to the receiver. That order was not appealed from. We can not in this proceeding, instituted to enforce such order, retry the facts then before the court or review it as upon appeal therefrom and find that it was based on an erroneous view of either the law or the facts. If the court was without jurisdiction to make it and it was void, appellant may not be committed for failure to obey it. In 6 R. C. L. p. 505, it is said:
“While courts may enforce observance of their orders and injunctions generally, by recourse to contempt proceedings where these are violated, it is a general rule that no court can punish as for a contempt the disobedience of an order made without jurisdiction. The respondent may question the order which he is charged with refusing to obey, only in so far as he can show it to be absolutely void; he cannot be heard to say that it is merely erroneous, however flagrant it may appear to be, since judgments of courts cannot be attacked collaterally for mere irregularities.”
In re Cohen and Jones, 5 Cal. 494, is an interesting case very like the one now before us. We shall have occasion to refer to it again. But upon this question language there used is quite in point. It was said:
“Contempt is defined by our statute to be the disobedience or resistance of a lawful order of a court or judge. What is a lawful order, within the meaning of this act? Strictly speaking, every erroneous order or judgment of a court, is unlawful, and for that reason, may be reversed on appeal.
“But it will not be contended, that therefore parties may not be punished for resistance or disobedience to such orders, or that the officer executing final process, issued on an erroneous judgment, would make himself liable as a trespasser.
“In the examination of this question, we should be careful to distinguish between the erroneous exercise of a power conferred by law, and the usurpation of power. If the district court has jurisdiction, under any circumstances to make an order, requiring persons not parties to the record to deliver property to the officers of the court, the issuance of such order in an improper case would be error certainly, which an appellate court would correct, but would not be an usurpation of power or an excess of jurisdiction.”
We recognize the rule contended for by appellant’s counsel that the receiver may not, ordinarily, through a summary proceeding in the receivership case and without a plenary suit, take into his possession property in the possession when the receivership proceedings are instituted of one not a party to the suit, a stranger to the record, and who claims adversely to the party for whom the receiver is appointed. Where one in possession of property in good faith denies the right of the one for whom a receiver is appointed, and he is neither agent or in privity with such one, and is not-made a party, he is a stranger to the record, and a plenary suit is the appropriate remedy to settle his rights and those of the receiver. This rule has been generally recognized. Sinsheimer v. Simonson, 107 Fed. 898; State, ex rel. Mining Co., v. McClure, 17 N. M. 694 (133 Pac. 1063, 47 L. R. A. [N. S.] 744); Fidelity & Deposit Co. v. Johnson, 275 Fed. 112; Ex parte Hollis, 59 Cal. 405; White v. Gates, 42 Ohio St. 109; People, ex rel. Pomeranz, v. District Court, 74 Colo. 58 (218 Pac. 742); State, ex rel. Boardman, v. Ball, 5 Wash. 387 (31 Pac. 975, 34 Am. St. Rep. 866); Ex parte Renfro, 115 Tex. 82 (273 S. W. 813, 40 A. L. R. 900); 23 R. C. L. p. 60.
But corporations may only act through their officers and agents, and while the rule above referred to has. generally been recognized, it has likewise been generally recognized that it is not applicable to the officers and agents of corporations. In High on Receivers (4th Ed.), § 312a, it is said:
“When a receiver is appointed over a corporation,, with the usual powers of receivers, and specially empowered by the order of the court to receive all the effects and choses in action of the corporation, such order involves a correlative duty upon the part of the corporate officers to deliver the assets to the receiver, even though such delivery is not specifically directed by the court. A failure, therefore, by the officers of the corporation to deliver its assets to the receiver, and their sale by such officers, constitute a. contempt of court and will be punished as such.”
And in section 144 of the same work it is said:
“The receiver, being the officer or agent of the court,, is entitled to its assistance in obtaining possession of property which is the subject-matter of his receivership, and may have an order of court to procure possession of such property, not only against defendant in the action, but in a proper case against his agents and employees, although not parties to the record, requiring them to deliver up the specific property.”
In 1 Tardy’s Smith on Receivers (2d Ed.), p. 872, § 345, it is said:
“A failure of the officers of a corporation over which a receiver has been appointed to deliver its assets to such receiver, even though the delivery is not specifically ordered by the court, constitutes a contempt of court.”
In Tolleson v. Savings Bank, 85 Ga. 171 (11 S. E. 599), it was said:
“When a court acquires jurisdiction over a corporation as a, party, it obtains jurisdiction over the official conduct of the corporate officers so far as the conduct may be involved in the remedy against the corporation which the court is called upon to enforce.”
And the commitment of the officer for contempt was affirmed. In the case of In re Cohen and Jones, supra, where this question was before the court, it was said:
“Courts of equity unquestionably have the power to appoint receivers and to order them to take possession of the property in, controversy, whether in the immediate possession of defendant or his agent, and in proper cases, they can also order the defendant’s agents or employees, although not parties to the record, to deliver the specific property to the receiver.”
See, also, Brandt v. Allen, 76 Iowa, 50 (40 N. W. 82, 1 L. R. A. 653); Ex rel. Cameron v. District Court, 48 Nev. 198 (228 Pac. 617); Blaise v. Security Brewery Co., 124 La. 979 (50 South. 816); Thornton v. Savings Bank, 76 Va. 432; Young v. Rollins, 90 N. C. 125; Wheeler v. Mathews, 70 Fla. 317 (70 South. 416); Edrington v. Pridham, 65 Tex. 612. And this court has recognized the rule in Baldwin v. Wayne Circuit Judge, 101 Mich. 1191 (25 L. R. A. 739), although in that case the officers had been garnisheed and it was held that under such circumstances the trial judge properly refused to commit them for contempt. Under the bankruptcy law the Federal courts have held it to be proper practice, where the property or money is in the hands of the bankrupt or his agent, to bring summary proceedings, with punishment for contempt on violation of the order. In re Rosser, 101 Fed. 562; Bryan v. Bernheimer, 181 U. S. 188 (21 Sup. Ct. 557); Mueller v. Nugent, 184 U. S. 1 (22 Sup. Ct. 269).
The circuit court for the county of Kent, in chancery, was not without jurisdiction to enter the order requiring appellant treasurer of the Wolverine Metal Specialties Company to. turni over to its receiver the money of the company; it had authority to make such order in the summary proceedings here indulged in. It is admitted by appellant that he has not complied with that order. On this appeal from the order of commitment, we cannot retry the questions before the court when the original order was made.
The order appealed from will be affirmed, with costs of this court.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Clark, J.
The automobile of defendant Joseph Troost, driven .by his wife, the other defendant, in the night, in a snowstorm, on an icy paved country highway, slid off the pavement and turned over. Leaving the car without lights, its front end including a bumper over and obstructing the paved way to the extent of two or three feet, Mrs. Troost went to a farm house to summon aid. While she was gone, plaintiff’s car, driven by him, collided with defendants’ car. Plaintiff’s car was broken and he was injured. His testimony is inconsistent, but that most favorable to him is to the effect that in the storm he could see nearly 30 feet ahead, and that, considering his speed, he could have stopped his car in less than that distance. He testified that he was watchful, that his lights were dimmed at the moment, and that he did not see defendants’ car. He accounts for his failure to see it by saying there was snow on it. Defendants had judgment on directed verdict, and plaintiff brings error.
The holding of the trial court that plaintiff was guilty of contributory negligence as a matter of law must be approved.
The reasons which underlie the holding have been considered many times by this court, notably in Lett v. Summerfield & Hecht, 239 Mich. 699, which case is decisive of this, and which so fully discusses the questions presented and so fully reviews the other cases, that further comment is, we think, not required.
Judgment affirmed.
Fead, C. J., and North, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Wiest, J.
Plaintiff, under contract of purchase, is in possession of lot 28, Scripps subdivision of part of the Woodbridge farm, city of Detroit, and brought this action in ejectment to recover a part of lot 2 of E. I. and A. K. Stimpson’s subdivision, abutting lot 28 at the rear, claiming to be the owner thereof by adverse possession and long acquiescence in the boundary line. Defendant Robert C. Sheehan holds the record title to lot 2 and is in possession of the strip in suit. Plaintiff’s vendor purchased lot 28 November 1, 1912, and, by land contract, sold to plaintiff, April 4, 1913. While the land contract covered lot 28 and the strip of lot 2, there appears no conveyance of the strip in suit to plaintiff’s vendor, so there can be no tacking of possession by others prior to November 1, 1912, and possession since, by plaintiff and her vendor up to the time of suit, was less than 15 years, and plaintiff had no title by prescription, and defendant’s request for an instruction to such effect should have been given. Wilhelm v. Herron, 211 Mich. 339; Robertson v. Boylan, 214 Mich. 27.
Plaintiff, however, claims that by a long-established boundary line at the rear end of lot 28 the strip of lot 2 was recognized as a part of lot. 28 and always passed as such in conveyances without particular mention thereof. Plaintiff claims that about 30 years ago a fence inclosed the strip as a part of lot 28 and remained until about 4 years ago, when the record owner of lot 2 built on the disputed strip.
The lines of lots 28 and 2, as laid out in the subdivisions, have never been uncertain or in actual dispute. After lot 28 was platted and sold to the first purchaser thereof, that section was commons and in part a dump heap. In fencing lot 28 an early owner thereof encroached upon lot 2 and such encroachment continued for upward of 15 years before questioned by the owner of lot 2.
Defendant Sheehan contends that the issue of boundary line by acquiescence was not submitted to the jury. An examination of the instructions given the jury is persuasive that the sole issue submitted was the title of plaintiff under adverse possession. If the boundary line of lot 28 was never in dispute, and the fenced-in portion of lot 2 was but an encroachment, then plaintiff’s right, if any, to the disputed strip rested upon prescription and not on a boundary line, established by acquiescence. On the other hand, if the fence was placed in assertion of the boundary line of lot 28, and encroached upon lot 2, and, for upward of 15 years, plaintiff and her predecessors in title claimed it was on the boundary line and used and occupied lot 28 up to such line, with the acquiescence of the owner of lot 2, then the boundary line between lot 28 and lot 2 is fixed, and the strip so occupied falls within the call for lot 28. This question was not submitted to the jury under the instructions. Under the charge, the jury was permitted to find title in plaintiff by adverse possession, and, as we have pointed out, the plaintiff failed to make a case of that character. Upon this record, plaintiff has no' title by prescription, and whether the strip in suit goes with lot 28 by reason of a boundary line established by acquiescence should have been submitted to the jury as the sole issue in the case.
■ We are constrained to reverse the judgment and grant a new trial, with costs to defendant Sheehan.
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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] |
Coleman, J.
The Workmen’s Compensation Appeal Board has awarded compensation. We agree that the board has applied the proper legal standard. We remand this case to permit the board to make a more definite factual determination.
Plaintiff was first employed by Suits News Company in 1957 as a warehouse stock clerk. He worked his way up to outside salesman and eventually was made a supervisor. He was responsible for putting up magazine orders and insuring their delivery. If a deliveryman called in sick, took a vacation or quit, plaintiff would deliver the magazines.
Plaintiff was in charge of receiving for the entire warehouse. The employer testified about these duties:
”Q. And as part of his duties for — in charge of receiving, was he expected to be there?
”A. Yes. If we had a night delivery or a weekend delivery, he was expected to go over and get it in out of the weather. That was one of his jobs.
”Q. As a matter of fact, his name was the one that was on the wall to call Jim Steel if there is anything wrong, right?
"A. Yes, his name was there for police if a door was left open, a delivery—
"Q. So if there was breakin or something of that nature or night delivery or fire or anything of that nature he was the guy that was to be called, is that right?
'A. Yes.”
To supplement his salary, plaintiff also cut the lawn, washed the delivery trucks and shoveled snow. He worked an average of 60 hours and occasionally as much as 100 hours per week.
February 1, 1969, was a Saturday. Plaintiff had brought three or four skids of magazines off the delivery dock. He oversaw the loading of trucks and cleaning of the warehouse. He washed four or five trucks when he began to feel "dizzy and weak * * * I felt like I was drunk”. His wife took him home. He was taken to a hospital on February 3 for what was later described as "an intercranial bleed, hemorrhage of not quite sure what type, whether it was an aneurysm or what, this was a cerebral vascular hemorrhage of unknown etiology”.
The deposition of plaintiff’s physician, Dr. Turner, is part of the record and was introduced at the hearing. Plaintiff’s work history and the events of the injury were described to Dr. Turner. He was then asked his "opinion as to the relationship of those duties to the condition which you have diagnosed and treated”:
"I’d have to generalize on that. Most of the hemorrhages of this age group, he is a relatively young man, occur, are due to an aneurysm in the cerebral vascular vessels which is a weakening in the wall of that vessel, usually congenital. This whether it remains a whole wall or whether it ruptures or not is thought to be related to the blood pressure that the person is maintaining, and to add to that, that in permanent hypertension or in labile hypertension, either one of the two, that stress can, and often does, cause an elevation of blood pressure.
"Q. And by stress, what do you mean by that, Doctor?
"A. Stress of any kind, emotional fatigue, excitement, cold, this is one of the tests used for blood pressure, put the man’s hand in cold water and see how the blood pressure responds.”
Dr. Turner thought it was "the accepted theory” that with plaintiffs age group "stress from job could lead to an elevation of blood pressure which would cause the aneursym to pop”.
In denying benefits, the referee said plaintiff "did not receive a personal injury arising out of and in the course of his employment”. Although plaintiff "was a horse for work * * * he liked his work and was happy with it”. The referee found "no indication of emotional stress or concern over pressure”.
The appeal board reversed and found "the stroke to be a compensable happening”. It found "plaintiffs long hours of work and job responsibility could well have contributed to his cerebral vascular hemorrhage”.
MCLA 418.301(1); MSA 17.237(301X1) compensates an employee "who receives a personal injury arising out of and in the course of his employment”. Subsection 2 says the employee "shall be presumed to be in the course of his employment” if he is "on the premises where his work is to be performed”. See Nemeth v Michigan Building Components, 390 Mich 734; 213 NW2d 144 (1973).
In its opinion the appeal board quoted from Zaremba v Chrysler Corp, dill Mich 226, 231, 232; 139 NW2d 745 (1966). Plaintiff there had a heart attack while drilling holes in sheet metal. The appeal board denied compensation because they could not find the work strenuous enough to cause the attack. In reversing, the Court adopted this language:
"' "Notwithstanding anything we may have said in prior cases, we hold that an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, that an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary. ” ’ (Emphasis this Court’s.)”
The Court remanded "for reconsideration upon the record already made to determine whether * * * decedent’s work, whatever its nature, was causally related to the fatality”.
The plaintiff in Fergus v Chrysler Corp, 45 Mich App 196, 209; 206 NW2d 521 (1973) had a history of heart trouble. The appeal board found the disability was not related to employment. The dissent argued for a remand in part to determine if the appeal board
"has applied the Zaremba test that the exertion need not be the sole cause of the injury, that it is enough if it is a contributing cause of the injury, that, as stated in the earlier case of [Coombe v Penegor, 348 Mich 635; 83 NW2d 603 (1957)], the presence of a preexisting disease or injury does not bar compensation where the record shows that a disabling injury arose out of and during the course of employment.”
We granted leave and peremptorily remanded to the appeal board for further proceedings consistent with the dissent. 389 Mich 811 (1973). Also see Galac v Chrysler Corp, 63 Mich App 414, 418; 235 NW2d 359 (1975) where the "board was not free to conclude legally that the employee’s death to be compensable required unusual stress or strain, physical or emotional, in a causative connecting chain”.
In Grammas v Donut Systems, Inc, 52 Mich App 472, 473; 217 NW2d 423 (1974), the plaintiff suffered a stroke which the medical testimony attributed to either a hemorrhage (which could be work related) or an occlusion (which could not). The Court said the "sole question presented is one of fact”. Plaintiffs high blood pressure plus job-related mental strain and physical exertion supported the board’s conclusion that the injury was work related. The award was affirmed. Compare Greene v International Industrial Contracting Corp, 18 Mich App 193, 197; 171 NW2d 44 (1969), where the Court affirmed a denial of compensation because the appeal board’s opinion "clearly intended to indicate that death was caused by an ordinary disease of life, and not from work-related exertion”.
The appeal board in this case referred to Zaremba in support of its finding "that plaintiffs long hours of work and job responsibility could well have contributed to his cerebral vascular hemorrhage”. We agree that Zaremba states the standard to be applied. However, the board’s conclusion is too indefinite.
Under the constitution (art 6, § 28) and the statute (MCLA 418.861; MSA 17.237[861]) the board’s findings of fact are conclusive in the absence of fraud. This grant of authority imposes a responsibility on the board to make its factual findings specific and clear. The statement that plaintiffs hours and responsibilities "could well have contributed” to his injury implies that they could well not have contributed.
The board found "the stroke to be a compensable happening”. For us properly to review this conclusion, we must have the facts and a clear conclusion that the employment did or did not cause or contribute to the injury. We cannot discharge our review function if the facts are imprecisely or unclearly stated.
We retain jurisdiction and remand to the Workmen’s Compensation Appeal Board for proceedings in accordance with this opinion.
Kavanagh, C. J., and Williams, Levin, Fitzgerald, and Ryan, JJ., concurred with Coleman, J. | [
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Coleman, J.
The parties propose two dispositive issues:
1. Did the trial court err in refusing to consider the police officer’s testimony regarding the contents of the police report on the issue of negligence?
2. Did the trial judge err in ruling that the facts did not support a finding of negligence on behalf of the bus driver?
We find that the judge did not err in either instance and therefore affirm the Court of Appeals.
I — Facts
The appeal revolves around the testimony of three persons — plaintiff, the bus driver arid a police officer.
Plaintiff testified that on January 7, 1968 she was a passenger on a bus operated by defendant. She stated that the weather conditions included "sleeting and snowing and raining”. When her attorney asked about the incident, she replied:
"A. Well, this bus driver — all I know, when I knowed anything, I was on the aisle in the bus, but what happened I don’t know.
”Q. You don’t know?
’A. No, I don’t.
”Q. Now, do you know what speed the bus was driving at?
'A. No, I don’t.
”Q. Do you know whether he was driving slow, medium or fast?
'A. He was driving kinda fast, but I don’t know how many miles he was going though.”
After further questioning, counsel elicited testimony that the bus was "going wigwag”, that she fell from her seat and that the bus drove up and stopped on the shoulder of the street.
On cross-examination plaintiff could not recall the name of the street where the accident occurred, distance of the accident from the corner, or the lane in which it happened. It was revealed that the bus had stopped several times prior to the accident without incident. Plaintiff also indicated, contradicting earlier testimony, that the bus was traveling south on Beaubien.
Plaintiffs attorney next introduced testimony from the police officer investigating the accident. The officer had a photostatic copy of the accident report and defendant objected to the testimony because the officer did not have the original. Plaintiffs attorney stated: "I am not introducing the original. He can refresh his memory from anything he wants.” The trial court responded: "He can testify from memory as to what happened; whatever papers he has.” The court further noted: "I don’t know what it is. He can use anything that he did to refresh his memory.” The officer indicated that he did not have any notes independent of the accident report, but that the report was in his own handwriting.
During the ensuing examination of the police officer, it became apparent that he had no independent recollection of the events surrounding the accident. The. trial court observed that the officer was able to give testimony only by direct reference to the report, and concluded that his present memory of the accident was exhausted. Because the report was neither offered nor admitted into evidence, and no other foundation was laid for its use, the trial court disregarded the officer’s testimony.
The third portion of disputed testimony came from the bus driver. He testified that there was packed snow on the street, that he was traveling at 10 to 15 miles per hour, had made several stops without incident, and began to slow down preparing to stop for a traffic light one block ahead. There was no back and forth movement of the bus. The bus was in the curb lane and it touched the curb (but did not go over it). He applied the brakes, the bus traveled about five more feet and came to a stop on a dry spot. When the bus stopped, passengers brought to the driver’s attention that a lady had fallen.
The trial court returned a judgment of no cause of action. In so holding, he found the bus driver to be a more credible witness than plaintiff:
"The testimony of Mrs. Moncrief is, at best, sketchy, it isn’t her fault, she cannot remember the events of January 7, 1968. Not only can she not remember where she got on the bus, she cannot remember where it happened. I tried to find out when the bus swerved, how long before the accident it began to swerve. I couldn’t, nor counsel, find out what she meant by 'too fast’.
"Her testimony is such that she simply says the bus was going too fast. She testified it swerved back and forth and in the next breath she would say she didn’t remember anything about it because she couldn’t remember anything after she fell. I questioned her three different times and had to remind her that she testified last Thursday the bus had swerved, today she didn’t know that.
"I don’t know if she knows what happened that day and it simply is the law that the plaintiff must prove the case, the defendant doesn’t have to prove anything. The plaintiff has to prove the operator was driving at a speed inconsistent with that of a normal, ordinary, prudent person and I don’t know if he was doing that or not because I don’t think that her testimony is too reliable on other things.”
In regard to negligence, the court stated:
"I don’t believe there is any liability on the part of the defendant because I can’t find negligence. I can’t find that merely because an accident happened gives cause of negligence. The simple fact that a bus hit the curb does not make it negligence, that can happen.”
Further, considering the driver’s actions leading up to the stop, the court stated, "I don’t know what more a man can do”.
Plaintiff subsequently made a motion for new trial, which was granted by the trial court. The court later vacated the order for new trial, holding that there was no negligence and that the police officer’s testimony and report were properly excluded. The Court of Appeals affirmed and this Court granted leave to appeal.
II — Police Report
There has been much confusion in this state regarding the use of police accident reports as evidence in trial.
To maintain perspective, it is necessary to review some "first principles”. Because police reports are generally offered to prove the truth of their contents, their use as evidence at trial constitutes hearsay. Therefore, before they may be admitted into evidence, read into the record, or read to the fact finder by a witness in the course of his testimony, the proponent of the evidence must lay a foundation which establishes an exception to the hearsay rule.
The police report is a writing. It could be admitted into evidence as an exhibit if the proponent can show that it meets the requirements of the business records exception. However, because of the "nature” of police business and the circumstances under which such reports are usually made, the possibility of police reports so qualifying is unlikely. Nevertheless, the report could be received into evidence if the proponent is able to demonstrate that the report constitutes its author’s past recollection recorded. We reviewed the requirements of this hearsay exception in Jaxon v Detroit, 379 Mich 405, 413; 151 NW2d 813 (1967), a case dealing with the use of police accident reports at trial.
"To qualify a writing otherwise objectionable as hearsay to be admitted in evidence as a past recollection recorded, a proper foundation must be laid. That foundation should consist in the following: (a) a showing that the witness has no present recollection of the facts, (b) a showing that the witness’ memory is not refreshed upon reference to the document, (c) a showing that the document is an original memorandum made by the witness from personal observation, (d) a showing that the document was prepared by the witness contemporaneously with the event and was an accurate recording of the occurrence and, (e) a showing that the substance of the proffered writing is otherwise admissible.”
In this case, the first element was adequately established in the record but the report was purportedly a photostat of one in the officer’s own handwriting which plaintiff’s counsel said he was not introducing into evidence but using to refresh the officer’s memory. Also there was no attempt by plaintiff’s counsel to show that the document was made by the witness from personal observation or was prepared contemporaneously with the event and based on his personal knowledge rather than, for example, statements of bystanders or witnesses. The report would not have been admissible if plaintiff would have offered it as past recollection recorded because no adequate foundation was laid.
Finally, the report could have been properly used by the witness to refresh his recollection if the appropriate foundation was established. To permit the use of a writing in order to refresh the memory of a witness, the proponent must show: (1) that the witness’s present memory is inadequate; (2) that the writing could refresh the witness’s present memory; and (3) that reference to the writing actually does refresh the witness’s present memory. In this case, the trial court correctly found that the third element of this foundation was not established. The officer’s reference to his report did not refresh his present memory. Further testimony based on the police report absent its qualification as an item of evidence as set forth above was properly disregarded by the trial court.
We mention in passing that MCLA 257.622; MSA 9.2322 and MCLA 257.624; MSA 9.2324 have no application in this case. These statutes deal with reports by local police to the Director of State Police concerning accidents resulting in injury, death or property damage in excess of $200. These particular reports, commonly referred to as "red-line” reports, are made on forms supplied to the local police agencies by the state police, and include the investigating officer’s opinion regarding the causes of the accident. The information is used for statistical purposes. The statute prohibits use of these reports in evidence. This statutory proscription, however, is confined to the reports mandated by the statute, and has no effect on the rules of evidence regarding the police officer’s personal notes or the routine report, usually entitled "Motor Vehicle Accident Report”, that the officer takes at the scene of the accident. Exclusion of an otherwise admissible police Motor Vehicle Accident Report, which is not a "red-line” report, on the basis of this statute, would be error.
In this case, however, neither use of the report by the police officer to refresh his present recollection, nor its receipt by the court as an item of evidence had it been so offered, would have been proper because of the absence of proper foundation for either purpose.
We hold that the trial court did not err in refusing to consider the police officer’s testimony regarding the contents of the police report on the issue of negligence.
Ill — Negligence
Plaintiff argues that the trial court erred in not holding the bus driver negligent. Plaintiff argues that Michigan has a version of res ipsa loquitur (although it is not acknowledged by that name) which would compel a presumption of negligence on the instant facts.
In Mitcham v Detroit, 355 Mich 182; 94 NW2d 388 (1959), the Court recognized a loosely defined version of the res ipsa loquitur doctrine. It held that plaintiff’s testimony raised an inference of defendant’s negligence. In Gadde v Michigan Consolidated Gas Co, 377 Mich 117, 123-124; 139 NW2d 722 (1966), the Court recognized the uncertainty of the adoption of res ipsa loquitur: "Whether Michigan has or has not a doctrine of res ipsa loquitur, in spite of many attempts to clarify the situation, continues to perplex the legal profession.”
The doctrine, if applicable, may raise an inference of negligence solely upon plaintiff’s testimony. However, the defendant may "attempt to explain away or avoid, if he can, the inference of negligence”. Mitcham, supra, at 192. The trial court must then weigh the evidence. After finding that plaintiff’s testimony raised an inference of defendant’s negligence, the Mitcham Court examined defendant’s proofs trying to avoid the inference. The question was held to be for the fact finder.
It is not necessary to decide whether Michigan law has the doctrine óf res ipsa loquitur. The Gadde Court expertly characterized Michigan’s position:
"Formal adoption of the doctrine of res ipsa loquitur, whomsoever’s version might be chosen, would add little to the jurisprudence of this State or to the attainment of justice. This is not to in any way overrule our past decisions or to say that in some cases, even possibly this one, the facts will not permit nice, neat, classification under this or that version of the doctrine. Whether they do is not the consequential issue. The doctrine is merely an uncertain blend of more fundamental concepts of law. Our concern is with the proper application of such concepts from the larger fields of negligence and evidence.
"So here, the traditional concepts of the law of negligence and of evidence need not be refined and compartmentalized. If the decisions of this Court are applied, not in terms of dispute over a rule or doctrine but under the general law of negligence and evidence, the problems presented by a given case will be resolved.”
Even assuming that the doctrine by whatever name is appropriately applied in the instant case to raise an inference of negligence by the bus driver, the trial court (as the trier of fact) correctly weighed the evidence and found defendant not negligent. The trial court considered all of the competent evidence. In finding the bus driver not negligent, the court considered the driver to be a more credible witness than plaintiff.
Plaintiff’s testimony was generally confused and indefinite. She repeatedly answered, "I don’t know” when questioned about speed of the bus, name of the street, distance of the accident from the corner and the lane in which the bus was driving. She testified at one time that the bus swerved but later had to be reminded of her testimony. She could not say at what point it allegedly swerved. Plaintiff’s testimony on the weather conditions did not agree with the weather report for that day. On the other hand, testimony from the bus driver, as summarized in part I of this opinion, was specific and clear. The trial court correctly found that the bus driver was not negligent. We cannot find that the trial court was clearly in error. GCR 1963, 859(2).
The Court of Appeals is affirmed.
Addendum
November 22, 1976
In part II, Justice Levin states: "My colleague, therefore, is mistaken in saying that 'the trial court correctly found’ that reference to the report did not refresh the witness’ present memory”. To the contrary, the police officer inspected his memorandum, and short of reading it, could not independently recollect the facts it contained.
In speaking of the police officer, the court said:
"He has before him notes he made himself. He has testified they are to refresh his recollection of that day. * * * He can use the notes to refresh the actual words he must put down on the record. He is looking at the notes he took in his own handwriting.”
After many questions were asked, it became apparent that the officer remembered nothing of substance even with the memo to refresh his memory, leading the court to say:
"It is obvious upon reflection of the testimony of the officer he has no independent recollection of the events of the day.”
The judge’s conclusion was not so artfully phrased as might have been but just as unambiguous:
"He [the police officer] doesn’t have any idea about anything that occurred. He could not answer any questions by defense counsel about where the bus was, how far it skidded, if he knew it skidded, and from whom he found that out.
"He didn’t know anything about it, himself, in fact, whenever defense counsel was holding the memorandum [police report] he didn’t know anything about it.”
Although an argument is also made in part II regarding the bases for admitting into evidence a police report as "past recollection recorded”, the fact is that the report itself was not offered in evidence. Plaintiff’s complaints revolve around exclusion of the officer’s testimony.
It is difficult to understand how Justice Levin can conclude that the issue of the use of the police report for purposes of testifying is not before the Court. Plaintiff’s application for leave to appeal argued that the trial court improperly struck from the record the testimony of the police officer. Plaintiff-appellant’s argument I as it appears in her brief is:
"The court committed error in excluding all the testimony of the police officer who came to the scene, made a report of the accident, and used this report in testifying as to physical facts observed by him and admissions made to him by the bus driver at the scene of the accident.”
Plaintiff proceeds to argue the concept of "past recollection refreshed”, which theory is vital to the issue. The judge found that, short of reading the report, the officer could testify to virtually nothing. He had no memory of the details to be refreshed. The report itself was not offered in evidence.
There was no need to discuss the question of the bus driver’s statement at the scene as an "admission” by his employer. The officer could not remember it and the bus driver testified personally.
It is not jurisprudentially sound to determine by hindsight what counsel possibly could have done at the initial trial and remand to allow a different trial strategy or a correction of an error of omission by plaintiff, if that by chance were the case.
We must hear the case before us, not the case that "might have been”.
Affirm.
Fitzgerald, Lindemer, and Ryan, JJ., concurred with Coleman, J.
Kavanagh, C. J.
(for affirmance). I agree with Justice Levin that the testimony of the police officer could have been admitted if a proper foundation had been laid. I will concede on this record that the trial judge here without question would have erroneously excluded the testimony even if properly founded on account of his expressed misunderstanding.
I do not agree, however, that it was error to grant the motion to strike this footless evidence. Finding no error, I would affirm.
Levin, J.
The plaintiff, Mrs. Willie Moncrief, was injured when a DSR bus stopped and she fell to the floor. The trial judge, hearing the case without a jury, found no cause for action.
The judge struck the testimony of the police officer who investigated the accident on the ground that it was based on his written report of the accident and the statute provides that such a report is not "available for use in any court action”.
We agree that in so ruling the judge erred. As my colleague states, the statute "has no effect on the rules of evidence regarding the police officer’s personal notes or the routine report, usually enti tied 'Motor Vehicle Accident Report’, that the officer takes at the scene of the accident”.
My colleague nevertheless would affirm on the ground that the officer’s testimony was inadmissible because he had no present recollection of the accident, his memory was not refreshed on reading the accident report and a proper foundation for admission of the report itself under the hearsay exception for past recollection recorded was not laid.
The record supports the conclusion that the officer’s memory was not refreshed on reading the accident report. His testimony was, however, received in evidence as present recollection refreshed without objection by the DSR’s lawyer or ruling by the judge that his recollection was not refreshed.
A precondition to the admission of a memorandum as past recollection recorded is that the witness cannot refresh his recollection on reading it. There was no reason for Mrs. Moncrief s lawyer to make an offer of proof inconsistent with the basis on which the officer’s testimony had been received in evidence without pertinent objection or ruling. Even if the offer had been made, it is apparent that the judge would have refused to admit the report itself because of his mistaken view that the statute barred use of the report.
The judgment cannot be affirmed on the ground that the right result was reached for the wrong reason. The reason relied on by my colleague for rejection of the officer’s testimony was not raised in the trial court. Mrs. Moncrief could properly rely on the receipt in evidence, without pertinent objection or ruling, of the officer’s testimony as present recollection refreshed. She has had no opportunity to respond in the trial court to the deficiency noted on appeal that the officer’s recollection was not refreshed. It appears that a proper foundation for the admission of the accident report as past recollection recorded could be laid at a new trial and she is, therefore, entitled to a new trial.
I
We agree that the statute does not bar from evidence either an accident report prepared by an investigating police officer or his testimony based on the report.
The provision of the Motor Vehicle Code precluding the "use in any court action” of accident "reports required by this chapter” refers to the report required of a driver involved in an accident resulting in injury or death or property damage exceeding $200, and not to "notes or report” made by an investigating police officer.
In Wallace v Skrzycki, 338 Mich 164, 174, 177; 61 NW2d 106 (1953), after a review of earlier cases, this Court said that "the statute * * * does not bar a police officer from testifying concerning physical facts observed by him or admissions made to him by drivers of vehicles at the scene of an accident and * * * police reports of accidents are not barred by the statute for use as evidence or refreshing a witness’s recollection.”
In Jaxon v Detroit, 379 Mich 405; 151 NW2d 813 (1967), this Court indicated that an accident report prepared by a witness who cannot recall the contents of the report and whose recollection cannot be refreshed by reference to it would be admissible in evidence as past recollection recorded if a proper foundation is laid.
II
If a witness recalls the event without the aid of a memorandum he can testify on the basis of his "present recollection”. If he has no independent recollection and his memory can be refreshed upon reference to a memorandum or, indeed, anything else, he may testify on the basis of his "present recollection revived”. If his recollection cannot be revived, and the other preconditions to admissibility are satisfied (see fn 2), a memorandum of the event may be admissible as "past recollection recorded”.
The investigating police officer testified about the driving conditions and statements made by the bus driver shortly after the accident. On direct examination the officer said that he had refreshed his recollection on reading his report of the accident. On cross-examination, however, it became apparent that his memory was not refreshed.
The DSR’s lawyer at no time objected to the officer’s testimony on the ground that his recollection had not been refreshed; indeed, he assisted the effort to use the report to refresh the officer’s recollection. His objection on direct examination was "on the grounds that anything the bus driver said at that time was beyond the scope of his duty and is not admissible”. When the officer’s testimony was concluded, a motion to strike was made on the same ground.
After the noon recess, the judge ruled, based on his erroneous reading of the statute, that the officer’s testimony was inadmissible and it was stricken. The judge did not reach the ground of the DSR’s lawyer’s objection that the driver’s admission was not binding on the DSR. Nor did he say that the officer’s recollection had not been refreshed. The judge said, rather, that the officer had no present unrefreshed recollection and that his testimony refreshed by the accident report was inadmissible because the statute barred use of the report. My colleague, therefore, is mistaken in saying that "the trial court correctly found” that reference to the report did not refresh the witness’ present memory. The judge never reached that question; he would have been correct if he had so found.
My colleague overlooks the failure of the DSR’s lawyer to object and of the judge to rule that the officer’s recollection was not refreshed, the error of the judge in ruling that testimony based on an accident report is inadmissible, and holds against Mrs. Moncrief on the ground that her lawyer did not, anticipating the deficiency noticed on appeal, lay a foundation and make a futile offer of the report itself.
If the accident report had been offered as past recollection recorded, it is apparent that the judge would have refused to admit it in evidence because of his misunderstanding of the statute. The judge understood the statute to provide "against admission of the accident report, itself.”
The officer’s testimony was at first received in evidence without pertinent objection or ruling that his recollection had not been refreshed. A memorandum is not admissible as past recollection recorded if the witness can, on examination of the memorandum, testify from present recollection refreshed. Mrs. Moncriefs lawyer cannot be faulted for failing to make an offer of proof inconsistent with the basis on which the officer’s testimony had been received in evidence.
My colleague writes that "there was no attempt by plaintiff’s counsel to show that the document was made by the witness from personal observation or was prepared contemporaneously with the event and based on his personal knowledge rather than, for example, statements of bystanders or witnesses. The report would not have been admissible if plaintiff would have offered it as past recollection recorded because no adequate foundation was laid.”
It appears that the officer wrote the report at the scene on a Detroit Police Department motor vehicle accident report form.
The report contains the officer’s personal observation that "the road surface was ice”.
It also contains the statement of a witness, the DSR driver, that he was "driving at an estimated speed of 20 to 25” miles per hour and "slid on a patch of ice and a passenger from a seat slid on the floor.”
Although the report contains the statement of a witness and both the report and his statement are hearsay — there is "double hearsay” — the report may, nevertheless, be admissible. Where there is multiple hearsay, or "hearsay within hearsay”, each separate hearsay link is examined. If hearsay exceptions apply to each link, then the evidence is admissible. Thus, while statements of bystanders or other witnesses to police officers at the scene of an accident are ordinarily not admissible, if the statements fall within another exception (e.g., an admission, excited utterance, declaration against interest) they are admissible.
The accident report in the instant case would be admissible under the exception for past recollection recorded if the statement of the driver is within another exception to the hearsay rule, e.g., an admission by an agent.
The issue of jurisprudential significance presented by this case is whether the bus driver’s statement ten minutes after the accident may be received in evidence as an admission by his employer, the DSR. My colleague does not reach that question, noticing on appeal an issue not preserved at the trial level, and on the mistaken premises that the accident report does not contain personal observations of the officer and that a report containing the statement of a witness is necessarily inadmissible, even if that witness is a party or agent of a party.
Ill
The judge’s error in striking the officer’s testimony on the ground that the statute barred use of the accident report to refresh his memory was not harmless.
If the evidence of the bus driver’s statement to the investigating officer had been admitted, the judge may have reached a different decision on the bus driver’s credibility and may have concluded that Mrs. Moncrief had produced sufficient proof to preponderate: There was ice. The driver was proceeding at an immoderate speed in light of the road conditions. As a result of his negligence, the bus slid on a patch of ice causing Mrs. Moncrief to fall to the floor.
Mrs. Moncrief testified that it was sleeting and snowing. The bus driver "was driving kinda fast, but I don’t know how many miles he was going though.” The bus "was going wigwag, like that, real fast. He was driving fast.” The driver drove up on the curb and she fell off the seat.
Mrs. Moncrief is an older woman suffering from a deterioration of the brain. Nevertheless, her testimony was not confused or indefinite. Although she did not know the exact speed of the bus, in the judge’s words, "she knew the bus was going too fast. She has been riding buses for 13 years.”
The bus driver testified that it had snowed on the day of the accident "[ejnough to make the surface slippery”. He did not assert that there was no ice: "My testimony is that I don’t remember that there was any ice.” He was traveling 15 miles per hour. He slowed down because of the road conditions. He did not swerve from side to side. He was going 10 miles an hour in the curb lane. When he "hit” the brakes the bus slid, hit the curb, slid about five feet and stopped at a dry spot. Mrs. Moncrief fell after the bus "slid off the curb and hit the dry pavement and stopped”.
The stricken testimony of the officer was that the bus driver said he was driving at an "estimated speed of 20 to 25” miles per hour, "[hje slid on a patch of ice and a passenger from a seat slid on the floor”. The accident report showed that the officer observed that the "road surface was ice”.
The cause of Mrs. Moncriefs injuries is not in dispute. The issue was whether the bus driver was negligent in failing to have the bus under control. In resolving that issue it was important whether the road was slippery, as the driver testified, or icy as he is reported to have told the officer and the officer himself observed, and whether the bus driver was driving at the speed he told the judge or at the higher speed he is reported to have told the officer.
The plaintiff might prevail on a new trial at which the error in excluding the officer’s testimony is not repeated. I would reverse and remand for a new trial.
Williams, J., concurred with Levin, J.
A third issue presupposes judicial error.
See Palmer v Hoffman, 318 US 109; 63 S Ct 477; 87 L Ed 645 (1943); McCormick, Evidence (2d ed), § 308.
People v Rodgers, 388 Mich 513, 519; 201 NW2d 621, 624 (1972); McCormick, Evidence (2d ed), § 9.
In refusing to consider the officer’s testimony, the trial court indicated that reference to the report failed to refresh the officer’s recollection, and that use of this report was barred by the statute. Thus, the trial judge stated two reasons for his holding, one correct and the other erroneous. Whether we affirm a trial court which reaches. the correct result for the wrong reason depends on the circumstances of the case. For example, it is generally stated that the overruling of a specific objection on an untenable ground will not be disturbed on appeal even if there was a tenable ground that could have been urged. Similarly, if a trial judge sustains a specific objection on an untenable ground, his ruling should be upheld if there was an unstated tenable ground unless it appears that the proponent of the evidence could have obviated the grounds for the true objection, if stated, ábe McCormick, Evidence (2d ed), § 52, pp 117-118 & fn 61.
In this case, plaintiffs counsel stated on two separate occasions that he did not want to offer the report into evidence. The trial judge’s subsequent erroneous application of the statute was, therefore, inconsequential, especially because he also correctly found that one of the foundational prerequisites for the use of the report to refresh recollection was lacking.
Much is made of the fact that the admission of the accident report (which was not offered by plaintiff) would have revealed that the bus driver told the officer he had "slipped on a patch of ice” instead of "packed snow” as the bus driver had stated at trial. The temperature had ranged from 11° to -3° that day and it had snowed — but the significance of the argument is elusive.
"The reports required by this chapter shall not be available for use in any court action, but it shall be for the purpose of furnishing statistical information as to the number and cause of accidents.” MCLA 257.624; MSA 9.2324.
The accident reports required "by this chapter” are required of drivers (see fn 5 and accompanying text):
"The driver of every motor vehicle involved in an accident resulting in injury or death of any person or total damage to all property to an apparent extent of $200.00 or more shall forthwith report such accident to the nearest or most convenient police station or police officer. The officer receiving such report or his commanding officer shall forthwith forward each individual report to the director of state police on forms prescribed by him which shall be completed in full by the investigating officer. The director of state police shall analyze each report relative to the cause of the reported accident and shall prepare for public use the information compiled from the reports. A copy of the report required under sections 621 and 622 of this act shall be retained for at least 3 years at the local police or sheriffs department or local state police post making the report.” MCLA 257.622; MSA 9.2322.
"To qualify a writing otherwise objectionable as hearsay to be admitted in evidence as a past recollection recorded, a proper foundation must be laid. That foundation should consist in the following: (a) a showing that the witness has no present recollection of the facts, (b) a showing that the witness’ memory is not refreshed upon reference to the document, (c) a showing that the document is an original memorandum made by the witness from personal observation, (d) a showing that the document was prepared by the witness contemporaneously with the event and was an accurate recording of the occurrence and, (e) a showing that the substance of the proffered writing is otherwise admissible.” Jaxon v Detroit, 379 Mich 405, 413; 151 NW2d 813 (1967).
Similarly, see People v Rodgers, 388 Mich 513; 201 NW2d 621 (1972).
The criteria for admissibility are set forth in Jaxon v Detroit, supra.
In this case the judge ruled that the officer had no present recollection. My colleague concludes that the officer’s memory was not refreshed on reading the report, and the record supports that conclusion. The officer, appearing in response to a subpoena, produced a photocopy made in his presence of the original report he prepared on the basis of his investigation. See MCLA 600.2146, 600.2147; MSA 27A.2146, 27A.2147; McCormick on Evidence (2d ed), § 236, p 569; Myrick v United States, 332 F2d 279, 282 (CA 5, 1964). The report was made contemporaneously and was regarded by the officer as an accurate record of what occurred.
See fn 1, supra.
"PA 1949, No 300, § 624 (CL 1948, § 257.624 [Stat Ann 1952 Rev § 9.2324]), makes unavailable for use in any court action 'the reports required by this chapter,’ being chapter 6, Michigan vehicle code, PA 1949, No 300. The reports required in that chapter are those to be made by drivers of vehicles involved in accidents and by garage keepers under certain circumstances. The chapter contains no requirement that reports of accidents be made by police officers as such. The only duty imposed upon police officers in this connection is the requirement, contained in PA 1949, No 300, §§ 621, 622 (CL 1948, §§ 257.621, 257.622 [Stat Ann 1952 Rev §§ 9.2321, 9.2322]), that officers receiving the aforementioned reports shall 'forward the same to the commissioner of State police on forms to be prescribed by him.’ Accordingly, the bar to use in any court action provided in PA 1949, No 300, § 624 (CL 1948, § 257.624 [Stat Ann 1952 Rev § 9.2324]), has no application to the notes or reports made, as in the instant case, by the investigating police officer.” Wallace v Skrzycki, 338 Mich 164, 173-174; 61 NW2d 106 (1953).
Similarly, see Jaxon v Detroit, supra, pp 412-413:
“The statutory exemption refers only to reports required under 'this chapter.’ The only persons required to make reports under the statute are drivers of vehicles and persons in charge of garages or repair shops. The statute does not refer to any report by a police officer to his superiors.”
The Court said that "a statement would not have been unavailable as evidence by reason of the statute”, but was not admissible in the case under consideration because of the failure to lay a proper foundation.
Immediately after his objection on another ground (see fn 9, infra) was overruled, the DSR’s lawyer objected that the officer was reading. The judge responded:
"He has before him notes he made himself. He has testified that they are to refresh his recollection of that day. He remembers that day himself. He can use the notes to refresh the actual words he must put down on the record. He is looking at the notes he took in his own handwriting that day.”
On cross-examination the officer was asked: "Do you have any independent recollection other than this paper?” He responded, "I have a — I can remember making that particular report. I remember concerning the lady that fell. I believe it was the rear of the bus.”
The matter was not pursued and no motion to strike or objection to his continued testimony was made. When the officer was asked: "Do you recall from your memory or otherwise in which lane the bus was traveling?” the following occurred:
"The Court: He can use his notes to refresh his recollection if they will help him any.
"Mr. Weiss [DSR lawyer]: You want that to refresh your recollection?”
The DSR’s lawyer then hhnded the report to the police officer who proceeded to testify. There was no objection or motion to strike.
Later it was brought out that the officer did not have an “indepen dent recollection” of actually seeing ice on the roadway or whether it was snowing. He did not recall the conversation with the bus driver. Again there was no objection or motion to strike.
See fn 7, supra.
The DSR lawyer amplified, "[tjhey are unauthorized statements”.
At the conclusion of the officer’s testimony, a motion to strike was made on that ground, citing Hyatt v Leonard Storage Co, 196 Mich 337; 162 NW 951 (1917).
Immediately before the judge struck the officer’s testimony, he asked the DSR’s lawyer the ground of his objection. He responded, "on the grounds that the bus driver is not authorized”.
See fn 16, infra.
While the judge said that the officer had no "independent recollection” or "present recollection”, he indicated that the problem was not that the officer’s recollection had not been refreshed but, rather, that he had no present recollection and his recollection had been refreshed from the inadmissible memorandum:
"The problem is a double problem involving the past recollections refreshed and present recollections, 'If you know.’
"His recollections can be refreshed if it is in his own handwriting.
That doesn’t apply when the document is barred from evidence by a statute.” (Emphasis added.)
The judge appears to have used the term "present recollections” as meaning unrefreshed present recollection; refreshed memory (present recollection revived) being referred to as "past recollections refreshed”. He ruled:
"In any event, it seems to me on the basis of the provision against the admission of the accident report, itself, it would be error for me to allow in evidence the statements made by the officer.
“He had no present recollection of the events at all or the speed or where he got it from. And so, on that basis, all the testimony of the officer is not received in evidence and will be disregarded by this court.” (Emphasis added.)
The judge’s statements:
"It is obvious upon reflection of the testimony of the officer he has no independent recollection of the events of that day, do you both agree on that? * * *
"He doesn’t have any idea about anything that occurred. He could not answer any questions by defense counsel about where the bus was, how far it skidded, if he knew it skidded, and from whom he found that out. * * *
"He didn’t know anything about it, himself, in fact, whenever defense counsel was holding the memorandum he didn’t know anything about it. On that basis, the objection was not made. The objection was made on different grounds,” were in explanation of his conclusion that the officer’s testimony should be excluded because it was based on the accident report he ruled inadmissible and does not support the Court’s statement that the judge "correctly found that the third element of this foundation ["(3) that reference to the writing actually does refresh the witness’s present memory”] was not established. The officer’s reference to his report did not refresh his present memory.”
It is evident that if Mrs. Moncriefs lawyer had laid a proper foundation and moved to admit the memorandum, the judge would have ruled the memorandum inadmissible.
The following is the complete text of the post-recess colloquy:
"The Court: Before we begin, I would like to have your objection to the testimony. Your objection was on what grounds?
"Mr. Weiss [Attorney for Defendant]: On the grounds that the bus driver is not authorized.
"The Court: I’m talking about the police officer’s testimony.
"Mr. Weiss: That is what I am objecting to. That he was testifying as to certain statements allegedly made by the bus driver and it was improperly received as such.
"The Court: First of all, you are both aware that the accident report cannot be in evidence.
"Mr. Weiss: That is correct.
"The Court: It is obvious upon reflection of the testimony of the officer he has no independent recollection of the events of that day; do you both agree on that?
"Mr. Posner [Attorney for Plaintiff]: He said that he remembers the accident. He remembers going down there but he doesn’t have an independent recollection of talking to him; just what happened. He remembers the accident.
“He remembers he was called to the place and there was an accident.
"The Court: He doesn’t have any idea about anything that occurred. He could not answer any questions by defense counsel about where the bus was, how far it skidded, if he knew it skidded, and from whom he found that out.
“The problem is a double problem involving the past recollections refreshed and present recollections, 'If you know.’
"His recollections can be refreshed if it is in his own handwriting. That doesn’t apply when the document is barred from evidence by a statute.
"It cannot be admitted if a jury is in progress. The rules are a little more relaxed when the judge is here.
"If the jury were here it would be a violation of the statutory provisions set up by the legislation.
"He didn’t know anything about it, himself, in fact, whenever defense counsel was holding the memorandum he didn’t know anything about it. On that basis, the objection was not made. The objection was made on different grounds.
“During the lunch hour, I was able to read a couple of cases. In any event, it seems to me on the basis of the provision against the admission of the accident report, itself, it would be error for me to allow in evidence the statements made by the officer.
"He had no present recollection of the events at all or the speed or where he got it from. And so, on that basis, all the testimony of the officer is not received in evidence and will be disregarded by this court.”
See fns 10 and 11, supra.
Felice v Long Island R Co, 426 F2d 192, 197 (CA 2, 1970), cert den, 400 US 820; 91 S Ct 37; 27 L Ed 2d 47 (1970).
Rule 805 of the Federal Rules of Evidence codifies this common-law principle:
"The problem of multiple hearsay arises most frequently with respect to hospital records, police reports or other business records when the entrant has no personal knowledge of the underlying event and has based his entry on information supplied by someone else. If the statement of the person who furnished the information independently qualifies as a hearsay exception, Rule 805 would make the record admissible.”
"Rule 805 is in accord with other codifications. The same result could be achieved even in the absence of a rule, but the explicit statement may be useful in focusing the courts’ attention on a problem they have sometimes failed to analyze adequately.” 4 Weinstein’s Evidence, ¶ 805[02], pp 805-2 to 805-3.
See also Advisory Committee Notes, FR Ev 805:
"On principle it scarcely seems open to doubt that the hearsay rule should not call for exclusion of a hearsay statement which includes a further hearsay statement when both conform to the requirements of a hearsay exception. Thus a hospital record might contain an entry of the patient’s age based on information furnished by his wife. The hospital record would qualify as a regular entry except that the person who furnished the information was not acting in the routine of the business. However, her statement independently qualifies as a statement of pedigree (if she is unavailable) or as a statement made for purposes of diagnosis or treatment, and hence each link in the chain falls under sufficient assurances. Or, further to illustrate, a dying declaration may incorporate a declaration against interest by another declarant. See McCormick § 290, p 611.”
McCormick on Evidence (1st ed), § 286, pp 602-603; Johnson v Lutz, 253 NY 124; 170' NE 517 (1930).
Investigating police officers have been permitted to read, under the exception for past recollection recorded, notes made by them or under their supervision of statements made by the accused person to the officer. Jordan v People, 151 Colo 133; 376 P2d 699 (1962); Lay v State, 461 P2d 1021, 1022-1023 (Okla Cr App, 1969). See, also, People v Rodgers, 388 Mich 513; 201 NW2d 621 (1972) (dictum that on a proper foundation a police officer could read his notes of a conversation with the accused).
The DSR’s lawyer objected (see fn 9 and accompanying text) to the testimony of the police officer on the ground that the bus driver had no authority to bind the DSR by a declaration as to a past event. See Hyatt v Leonard Storage Co, supra, p 344; Kalamazoo Yellow Cab Co v Kalamazoo Circuit Judge, 363 Mich 384; 109 NW2d 821 (1961); Gorman v McCleaf, 369 Mich 237; 119 NW2d 636 (1963). The trial judge did not rule on that objection.
In Gorman the Court said:
“A statement in the nature of an admission by an employee is not admissible as to the employer so as to bind the employer, unless it is part of the res gestae or unless authorized by the employer or made within the scope of the employment.” 369 Mich at 241.
The Court concluded that a statement would not be part of the res gestae where it could only be said that it was made either the day of the accident or the day after. In this case, the statement was made approximately ten minutes after the accident.
In Kalamazoo Yellow Cab, where the Court concluded that an accident report made to a cab company by its driver could be used for impeachment purposes only, absent a showing that it was otherwise admissible, the Court noted in a footnote that the limitation on the use of an agent’s declaration as to a past event was of doubtful validity.
"Why the merger of identification (and a priori the veracity of the statements) should be less complete when the agent is authorized only to act for his principal and the statement is made incident to his performance of an authorized act, has caused legal scholars (and some courts) considerable difficulty.” 363 Mich, fn at 387.
Absolute limitations on the admissibility of agent’s statements have been criticized by the commentators. The authors of the current edition of McCormick on Evidence (2d ed), § 267, p 641, state:
"Probably the most frequent employment of this test is in the exclusion of statements made by employees after an accident, to the injured party, to a police officer, or to some bystander, about the accident not made in furtherance of the employer’s interest, but as a 'mere narrative’. This is the logical application of these tests, but the assumption that the test for the master’s responsibility for the agent’s acts should be the test for using the agent’s statements as evidence against the master is a shaky one. The rejection of such post-accident statements coupled with the admission of the employee’s testimony on the stand is to prefer the weaker to the stronger evidence. The agent is well informed about acts in the course of business, his statements offered against the employer are normally against the employer’s interest, and while the employment continues, the employee is not likely to make the statements unless they are true. Moreover, if the admissibility of admissions is viewed as arising from the adversary system, responsibility for statements of one’s employee is a consistent aspect. Accordingly, the trend is in the direction of broader admissibility of admissions by agents, exemplified by the Model Code provision which lets in the agent’s statement, if 'the declaration concerned a matter within the scope’ of the declarant’s employment 'and was made before the termination of the agency or employment.’ Cases in increasing number support this wider test. Its acceptance by courts generally seems expedient.” (Emphasis in original.)
The new Federal Rules of Evidence provide that a statement is not hearsay and is admissible as an admission by a party opponent if offered against a party and is "a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship”. FR Ev, § 801(d)(2). The accompanying advisory committee note states: "A substantial trend favors admitting statements related to a matter within the scope of the agency or employment”.
See also Comment, Admissions of Agents, 40 Mo L Rev 55, 62-63 (1975):
"Criticism of this rule of admissibility is generally premised on the supposed lack of trustworthiness inherent in the agent’s prior out-of-court declaration. It is submitted that such criticism is largely unfounded. Since the statement concerns an act within the authority of the agent, it can rarely be claimed that he is unfamiliar with what occurred. In light of the apparent unity of interest between principal and agent in seeing that the authorized act is performed, exclusion of the agent’s statement would seem illogical. Admittedly, exclusion under the hearsay rule may seem theoretically sound if we look only to the physical absence of the principal at the time the statement was made, yet the broad scope of the agency relationship itself lends support to admitting the statement. Since the law deems the principal constructively present for the agent’s authorized acts, the same theory should be applied to the agent’s statements concerning those acts.”
While it is sometimes said that an issue not preserved is "not before the Court,” I do not mean to suggest that it is beyond the Court’s prerogative to consider an issue not preserved at the trial level. The Court clearly has the authority to do so. Where, however, the Court departs from the usual course of proceeding, it is incumbent on it to afford the litigant struck down by a dispensation extended another litigant an opportunity on remand to remedy the defect recognized on appeal, especially where it is apparent that given such an opportunity that could be done.
My colleague states: "In finding the bus driver not negligent, the court considered the driver to be a more credible witness than plaintiff.”
The injured passenger does not have "the often impossible burden of pointing out by direct evidence on his main case the specific breach of duty by the carrier resulting in injury, especially where the carrier is in sole possession of the facts.” Mitcham v Detroit, 355 Mich 182, 189; 94 NW2d 388 (1959).
"[T]he law does not place upon the passenger the burden of demonstrating the exact breach of duty committed by the carrier * * * . Negligence may be inferred from the surrounding facts and circumstances where they are such as to remove the case from surmise and conjecture and place it within the field of legitimate inferences deduced from the established facts.” Trent v Pontiac Transportation Co, 281 Mich 586, 588; 275 NW 501 (1937). Similarly, Durfey v Milligan, 265 Mich 97, 100; 251 NW 356 (1933). | [
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Coleman, J.
Defendant was convicted by a jury of assulting a police officer, MCLA 750.479; MSA 28.747, and fleeing and eluding a police officer, MCLA 750.479a; MSA 28.747(1). On December 23, 1971, defendant was sentenced to 6 months in jail and $150 costs, or an additional 30 days in jail on one count, and a suspended sentence of $100 fine and $100 costs on the other count.
The Court of Appeals affirmed the conviction. This Court granted leave to appeal limited to the two questions considered herein.
Defendant is a young black man and most of the police officers involved in the incident are white. Prior to trial, defense counsel submitted 120 questions to be asked during voir dire. In lieu of the defendant’s 120 questions, the trial judge announced that he would utilize seven of the defendant’s questions to cover any bias or racial prejudice in the proposed jurors.
Issues
1. Did the trial court’s refusal to submit 120 questions to the jury on voir dire deny defendant a trial by a fair and impartial jury by preventing a meaningful exercise of challenges for cause?
2. Did the trial court’s refusal to submit 120 questions to the jury on voir dire deny defendant a trial by a fair and impartial jury by preventing the intelligent use of peremptory challenges?
Discussion
In Michigan, the examination of prospective jurors may be conducted by the court or, in its discretion, by the attorneys. The scope of voir dire examination of jurors is within the discretion of the trial judge and his decision will not be set aside absent an abuse of that discretion. Voir dire affords attorneys an opportunity to elicit sufficient information to develop a rational basis for excluding veniremen whether for cause or by peremptory challenges.
Relying on Ham v South Carolina, 409 US 524; 93 S Ct 848; 35 L Ed 2d 46 (1973), and related Federal appellate decisions, the defendant maintains he had a constitutional right to voir dire the veniremen further on racial prejudice. Although it is true that the Ham decision held that the Fourteenth Amendment required the trial judge to interrogate jurors upon the subject of racial prejudice after the defendant’s timely request, Ham does not stand for the proposition that the trial judge must ask every question dealing with racial prejudice that the defense might wish to be heard.
Justice Rehnquist, writing for the Court, stated:
"We agree with the dissenting justices of the Supreme Court of South Carolina that the trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner. The Court in Aldridge was at pains to point out, in a context where its authority within the federal system of courts allows a good deal closer supervision than does the Fourteenth Amendment, that the trial court had a broad discretion as to the questions to be asked,’ 283 US, at 310; 51 S Ct, at 471 [75 L Ed 1054 (1931)]. The discretion as to form and number of questions permitted by the Due Process Clause of the Fourteenth Amendment is at least as broad. In this context, either of the brief, general questions urged by the petitioner would appear sufficient to focus the attention of prospective jurors on any racial prejudice they might entertain.” 409 US 527.
While concurring in part and dissenting in part with the majority’s decision in Ham, Justice Marshall stated:
"I do not mean to suggest that a defendant must be permitted to propound any question or that limitless time must be devoted to preliminary voir dire. Although the defendant’s interest in a jury free of prejudice is strong, there are countervailing state interests in the expeditious conduct of criminal trials and the avoidance of jury intimidation. These interests bulk larger as the possibility of uncovering prejudice becomes more attenuated. The trial judge has broad discretion to refuse to ask questions that are irrelevant or vexatious. Thus, where the claimed prejudice is of a novel character, the judge might require a preliminary showing of relevance or of possible prejudice before allowing the questions.” 409 US 533.
Footnote 2 at 409 US 533 specifically holds:
"I also agree with the majority that the judge may properly decline to ask the question in any particular form or ask any particular number of questions on a subject.”
In its most recent pronouncement in this area, the Supreme Court of the United States, by Justice Powell, held that voir dire about racial prejudice is not constitutionally required absent circumstances comparable in significance to those existing in Ham, supra. Ristaino v Ross, 424 US 589; 96 S Ct 1017; 47 L Ed 2d 258 (1976). Defendant Ross was a black man who was charged with two other blacks for the armed robbery, assault and battery by means of a dangerous weapon, and assault and battery with intent to murder of a white man employed by Boston University as a security guard. The trial judge refused to pose a question directly related to racial prejudice during the voir dire of the veniremen.
The Court’s opinion said Ham "reflected an assessment of whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice”, the jury would not be impartial:
"The circumstances in Ham strongly suggested the need for voir dire to include specific questioning about racial prejudice. Ham’s defense was that he had been framed because of his civil rights activities. His prominence in the community as a civil rights activist, if not already known to veniremen, inevitably would have been revealed to the members of the jury in the course of his presentation of that defense. Racial issues therefore were inextricably bound up with the conduct of the trial. Further, Ham’s reputation as a civil rights activist and the defense he interposed were likely to intensify any prejudice that individual members of the jury might harbor. In such circumstances we deemed a voir dire that included questioning specifically directed to racial prejudice, when sought by Ham, necessary to meet the constitutional requirement that an impartial jury be impaneled.”
Unlike Ham, "the need to question veniremen specifically about racial prejudice” did not rise "to constitutional dimensions” in Ristaino.
Although the questions were not constitutionally required in Ristaino, footnote 9 of the opinion said "the wiser course generally is to propound appropriate questions designed to identify racial prejudice if requested by the defendant”. The states "are free to allow or require questions not demanded by the Constitution”.
In the instant case, the following colloquy took place between defense counsel and the trial judge in chambers:
"Mr. Hayes: Could you indicate to me which ones you are going to use?
"The Court: 25, 26 and 27, 91 and 92, 105 and 106 with additions making them to conform to the Court rulings.
"Mr. Hayes: May I ask — why you have rejected all the questions which I believe go to the essence of the matter, Your Honor?
"The Court: The court will give the voir dire. I think the court’s voir dire will cover any bias or prejudice any jurors may have — that is the purpose of it — it is hot to choose a jury which is biased or [sic] your viewpoint or the prosecution’s, but to get a jury which is unbiased and unprejudiced, and I think the court’s voir dire will fairly cover it. Knowledge of your instructions are [sic] contained in the court questionnaire signed by the jurors, and it would be repetitious to go into them— many of them are of the nature not proper for voir dire. These are not given.”
During the voir dire, the trial court asked the following questions:
"Have any of you had any dealings or experiences with black persons that might make it difficult for you to sit in impartial judgment on this case? By 'you’ I mean also members of your immediate family, your spouse, your children?
“(none)
“The Court: Will the fact that defendant is black in any way affect your judgment in this cause?
“(none)
“The Court: Would any of you give more credence to the testimony of a white person than you would give to the testimony of a black person, everything else being equal?
“(none)
“The Court: That is give two persons of equal stature and so forth upon the stand, equal appearance, and one is a white skin, one has a black skin, would that in any way prejudice you in either way?
“(none)
“The Court: Would any of you give the police officers any more credence in their testimony than you would a person who is not a police officer, because of the fact that the witness was a police officer?
“(none).”
Our examination of the 120 questions proposed by counsel discloses that many are repetitive of the court questionnaire and many are not proper for voir dire.
In the instant case, the trial court followed the course of action recommended by the United States Supreme Court in Ristaino, supra. We find no abuse of the trial court’s discretion. The trial court’s voir dire contained questions regarding racial prejudice which were sufficient to afford defense counsel information necessary to challenge prospective jurors, either peremptorily or for cause. Defendant’s right to be tried by an impartial jury was protected by the judge’s questioning.
The defendant’s conviction is affirmed.
Fitzgerald, Lindemer, and Ryan, JJ., concurred with Coleman, J.
54 Mich App 554; 221 NW2d 411 (1974).
394 Mich 812 (1975).
GCR 1963, 511.3.
Corbin v Hittle, 34 Mich App 631; 192 NW2d 38 (1971); People v Brown, 46 Mich App 592; 208 NW2d 590 (1973).
2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 465.
GCR 1963, 510.
Many of defendant’s proposed questions are irrelevant, vague or inconsequential (e.g.):
"61. Did you ever take the position 'where there is smoke there must be some fire someplace’?
"62. Have you ever watched the Perry Mason show?
"67. Have you ever made a statement to anyone that Negroes should be able to help themselves just like anybody else does?
"70. Do you think there is any difference between black people and white people?”
The defendant was allowed five peremptory challenges in the instant case. GCR 1963, 511.5; MCLA 768.12; MSA 28.1035. However, the defense counsel utilized only four of his peremptory challenges and expressed his satisfaction with the panel at the close of the voir dire.
"No person shall * * * be deprived of life, liberty or property, without due process of law.” Const 1963, art 1, § 17. | [
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Williams, J.
This malpractice case raises three questions. The first question is whether a properly qualified medical specialist witness may testify as to the standard of care that a general practitioner should meet. The second question is what the proper standard of care should be. The third question is whether the trial court properly refused to give an instruction that proper hospital records may be used to show that an action had not taken place as well as that an action had taken place.
As to the first question, we hold that a specialist may testify as to the standard of care of a general practitioner as long as the specialist is familiar with the applicable standard of the general practitioner.
However, since the proper foundation for one of plaintiffs’ witnesses was not laid despite opportunity to do so, and since the other affected by this ruling admitted not knowing the standard of practice in the relevant communities, and therefore could not testify anyway, we affirm the Court of Appeals and the trial court.
As to the second question, we hold in this opinion that the question as to what the proper standard of care should be was not preserved.
As to the third question, we hold that in this case the instruction was properly not given.
I — Facts
James Scott Siirila was a premature baby, born at 5-1/2 months, in St. Joseph’s Hospital in Houghton, November 19, 1967. He weighed 2 pounds, 1 ounce at birth.
The attending physician, Dr. Honorato Barrios, had been a general practitioner in the HoughtonHancock area since 1965. He ordered the child immediately placed in an Isolette infant incubator, where he remained, under controlled oxygen flow for about two months.
Dosage was apparently 3 liters per minute, from November 19, 1967 to November 26, 1967, then 2 liters per minute to December 7, when it was reduced to 1 liter per minute until December 12, when the flow was increased to 2 liters per minute for two days, after which it was reduced to 1 liter per minute for one day. The baby was removed from the Isolette for 20 minutes the following day, then replaced at a rate of probably 2 liters per minute for three days, when it was removed for 10 minutes, then returned for an amount of either 1 or 2 liters until the following day. The child was removed from the Isolette from December 19 to December 26, when the oxygen was supplied for 2 liters per minute for five hours. It was apparently started briefly for an undetermined time and dosage on December 29, after which the child was permanently removed from the Isolette.
According to hospital testing, a flow rate of 3 liters per minute was equivalent to an oxygen concentration of approximately 36%-38% in the Isolette (subject to 2% inaccuracy). Two liters per minute of oxygen reflect an approximate concentration of 32%-36% oxygen, and 1 liter per minute, 27%-31%, plus or minus 2%.
The child was discharged from the hospital February 10, 1968. Two weeks later, Dr. Barrios observed the baby had small eyeballs, but he attributed this abnormality to the child’s premature birth. On March 23, at the six-weeks checkup, the mother reported her son had trouble with his sight. For the first time, Dr. Barrios used an ophthalmoscope and detected a scar on the retina. Believing that there was a serious pathology of the eye, Dr. Barrios wrote, on March 25, to Dr. Norman L. Matthews, a pediatrician at St. Luke’s Hospital, Marquette, Michigan, for an appointment. Dr. Barrios requested that Dr. Matthews evaluate the child’s general condition, but, particularly, his eyes. In the letter, he indicated concern about opacity through refraction media, and gave Dr. Matthews information about the baby’s prematurity, medication and nutrition.
Dr. Matthews replied on March 27, 1968, having made an appointment for the infant with Dr. John Kublin, a Marquette ophthalmologist, for April 2. He said that if the family was poor and would have problems transporting the child to Marquette, help was available. He also analyzed:
"Since the boy was born very small, one wonders whether or not he has retrolental fibroplasia. This may not be the diagnosis, but it may be well to know how much oxygen he had as an [sic]premature.”
Dr. Barrios replied on April 3 that "the baby had oxygen continuously from the birthdate [11/19/67] until 12/29/6[7]. Initially the oxygen was given at 3L. (40% concentration), and then reduced to 2L. and 1L.”
On April 18, Dr. Matthews wrote and reported to Dr. Barrios that Dr. Kublin found
"severe retrolental fibroplasia. He does not think there is any chance that the child will have any vision.
"You might have the hospital check very carefully the oxygen regulator on their incubators there to make sure that the oxygen content of the inside of the incubator will not be higher than 40%. Presumably, even 40% may not be safe over the prolonged period of time.”
Plaintiffs filed an action against Dr. Barrios and St. Joseph’s Hospital, claiming the retrolental fibroplasia and the consequent total and permanent blindness was caused by the infant’s continued exposure to oxygen while in the Isolette. They alleged medical malpractice by the physician and the hospital for allowing the baby to unnecessarily remain in oxygen for the extended period of time and for failing to properly maintain, control and measure the oxygen flow in violation of the standard of care.
At trial, plaintiffs attempted to have Dr. Matthews testify as to the proper care and treatment of premature babies and the danger of oxygen therapy. The court ruled that Dr. Matthews would be prohibited "from testifying as to the standard of care in this community or similar communities on the basis that he’s a specialist”. Counsel was permitted, however, to make a separate record.
On this special record, Dr. Matthews said he did not know how oxygen was used in Houghton-Hancock, and that he was not capable of establishing what the standards of practice were in the area in 1967. However, he did testify that prior to the Siirila baby he had seen only one other case of retrolental fibroplasia (RLF) within the period 1955 to 1967. Prior to 1955, he said, such cases were seen frequently. He attributed the reduction in RLF to the information available to the medical profession that the use of oxygen in premature babies over prolonged periods of time caused the condition. He testified that 40% oxygen is the maximum concentration usually ordered, and indicated that, according to standard books of pediatrics, oxygen should be used for as short a period of time at as low a concentration as possible.
He testified that proper procedure would have been that after two or three days at the 40% oxygen level, the Siirila baby should have been removed from oxygen, with continued exposure only if there were "very solid evidence of poor condition of the baby”. He saw no such evidence from examination of the record in the instant case.
In front of the jury, Dr. Barrios testified that he knew that oxygen concentration should be no more than 40% in the Isolette, but did not know that long exposure to oxygen could bring an added risk of RLF. He did not think of RLF when he ordered oxygen therapy, but prescribed it to keep the baby alive and to prevent brain and cardiorespiratory damage. He did not know what the average doctor in the community would have done under the circumstances in 1967. But he testified, over objection, that the care and treatment rendered to the Siirila baby were within the standards of practice as they existed in the area in 1967.
There was testimony that a premature baby can develop RLF without being given oxygen therapy, and that the Siirila baby suffered damage resulting from environmental difficulties while in his mother’s womb.
The jury was instructed that a physician "must possess and exercise that degree of skill and learning which conforms to the average or ordinary learning and skill in his profession in the same or similar communities”. Further, they were instructed that Dr. Matthews’ testimony was not to be considered in determining the standard of care because he was a specialist and Dr. Barrios was a general practitioner. This was given over the objection of plaintiffs’ counsel that such testimony of Dr. Matthews which did not relate to standard of care should have been admissible. Plaintiffs’ counsel also maintained that Dr. Matthews testified as to proximate cause and did not testify as to the standard of care. The jury found no cause of action against defendants Dr. Barrios and St. Joseph’s Hospital.
The Court of Appeals affirmed, Siirila v Barrios, 58 Mich App 721, 723; 228 NW2d 801 (1975). The Court held, first, that as an intermediate appellate court, they were bound by the standard of Lince v Monson, 363 Mich 135, 142-143; 108 NW2d 845 (1961), that there be expert testimony as to the defendant physician’s compliance with professional standards and practice in the same and similar communities.
The Court of Appeals specifically refused to apply the same standard of care rule to a general practitioner as would be appropriate for a specialist, "that of a reasonable specialist practicing medicine in the light of present day scientific knowledge. * * * [Geographical conditions or circumstances control neither the standard of a specialist’s care nor the competence of an expert’s testimony”. Naccarato v Grob, 384 Mich 248, 253-254; 180 NW2d 788 (1970). In Naccarato, we found it unnecessary to consider whether the locality rule should be modified or abandoned as well for general practitioners. 384 Mich 253.
However, it is the view of a majority of this Court that the issue of applicability of the locality rule was not preserved for appellate review. Plaintiffs’ pleadings stated the claim under the "same or similar circumstances” test. Further, counsel never objected to instructions of the court which were couched in these terms. In addition, counsel insisted that the witness’s testimony was directed to establishing proximate cause, and not to the question of the appropriate standard of care.
The Court of Appeals also affirmed the trial court’s refusal to give plaintiffs a directed verdict. Also approved was Dr. Barrios’ testifying that his treatment met community standards. The panel also found the trial judge properly refused to give any instruction on hospital records. 58 Mich App 725-726. The Court of Appeals, however, did not rule on whether a specialist may be permitted to testify as to the standard of care of a general practitioner. We granted leave July 23, 1975. 394 Mich 817.
II — Specialists’ Competency to Testify
The trial judge ruled that Dr. Matthews, a pediatrician, would not be permitted to testify as to the standard of care of defendant general practitioner because Matthews was a specialist. We find the trial judge erred in so ruling without first permitting questioning of Dr. Matthews as to whether he knew the relevant standard of care of a general practitioner. However, since Dr. Matthews admitted he did not know the standards of practice in Houghton-Hancock or similar communities, he would not have been permitted to testify to the standard of care on that basis. Therefore, this was at most harmless error, and the trial court decision should not be disturbed.
Ordinarily, the qualification of competency of expert witnesses is a matter for the discretion of the trial judge, Ives v Leonard, 50 Mich 296, 299; 15 NW 463 (1883), "and it is incumbent on the person offering an expert witness to show that the witness possesses the necessary learning, knowledge, skill or practical experience to enable him competently to give such testimony”. 11 Michigan Law & Practice, Evidence, § 260, p 484. See Moore v Lederle Laboratories, 392 Mich 289, 295-296; 220 NW2d 400 (1974).
Generally, where there are different schools of medical thought, the physician is to be judged by his or her ability to adhere to the requisite standard of care of the school to which he or she adheres. Prosser, Law of Torts (4th ed), p 163. The rationale is that "[practitioners of other schools of treatment, no matter how well qualified by study and experience in their own methods and standards but lacking the requisite knowledge of the specific matter in question [i.e., the ordinary methods and standards of practice of another school], could not competently express opinions”. Bryant v Biggs, 331 Mich 64, 72; 49 NW2d 63 (1951). However, it is clear that a member of one school of thought may testify as to the standard of care applicable to an individual adhering to another school as long as the proffered witness is familiar with the applicable standards of defendant’s school.
"We do not read our precedents to preclude opinion testimony of compliance or failure of compliance with the standards of a defendant’s profession except only from a member of that profession. We never have addressed our decisional attention to this specific ques tion. However, it is significant that on a number of occasions in which we have discussed opinion testimony in malpractice cases, we have suggested that opinions of one not a practitioner of defendant’s profession would have been admissible had there been a showing that the offered witness had knowledge of the applicable standards of the defendant’s profession. See, for example, Zoterell v Repp, 187 Mich 319, 330 [153 NW 692] (1915); Sima v Wright, 268 Mich 352, 356 [256 NW 349] (1934); Facer v Lewis, 326 Mich 702, 713, 714 [40 NW2d 457] (1950); and Pedler v Emmerson, 331 Mich 78 (1951).” Frazier v Hurd, 380 Mich 291, 297; 157 NW2d 249 (1968).
Frazier permitted a medical doctor to testify as to the standard of care of an osteopathic physician. See also, Ferguson v Gonyaw, 64 Mich App 685, 696; 236 NW2d 543 (1975) (neurosurgeon permitted to testify as to standard of care of osteopathic neurosurgeon after qualifying on basis of testimony that medical and osteopathic neurosurgical procedures were similar); Pedler v Emmerson, 331 Mich 78, 80; 49 NW2d 70 (1951) (suggesting that such knowledge may be demonstrated by factors including training or experience in the field or practice of the school about which testimony is to be received or learning directly from members of that school what constitutes the standard practice in the subject treatment).
Pediatricians and general practitioners are both medical doctors and therefore there is even less reason to preclude testimony of one on the standard of care of the other than there would be if members of diiferent schools were involved. The rule therefore as to the ability of a specialist testifying as to a general practitioner’s compliance with the requisite standard of care of a general practitioner is only that the witness have knowledge of the standard of care about which he or she is testifying. The standard of care discussed must of course be that of a general practitioner. See Czajka v Sadowski, 243 Mich 21, 22; 219 NW 660 (1928) (testimony of a specialist was deemed improper because it was based on the standards of a skilled specialist). The weight to be given such testimony is, of course, a matter for the jury. Harvey v Silber, 300 Mich 510, 517; 2 NW2d 483 (1942). .
We are referred to no cases which have changed this rule. Naccarato v Grob, 384 Mich 248; 180 NW2d 788 (1970), is inapplicable to this issue because it only dealt with the appropriate standard of care of a specialist. This is not the same as saying that because specialists are subject to a higher standard of care than general practitioners, a specialist may not comment on a general practi tioner’s adherence to his or her own standard, once the specialist demonstrates familiarity with the general practitioner’s standard.
Other cases suggested for supporting exclusion of Dr. Matthews’ testimony are equally inapposite. Thus, in Rytkonen v Lojacono, 269 Mich 270, 273-275; 257 NW 703 (1934), admission of expert testimony was deemed error because the witness failed to testify as to whether the method used by defendant was recognized by other doctors of the vicinity or elsewhere as good practice. He testified instead to methods others actually used. In Callahan v William Beaumont Hospital, 67 Mich App 306, 311-312; 240 NW2d 781 (1976), the Court of Appeals held that because defendant specialist was acting as a general practitioner at the time of the disputed treatment, the locality rule prevailed. Therefore, the Court of Appeals held, since the witness had never practiced in the area where treatment was given, his testimony as to defendant’s standard of care was properly excluded. Therefore, neither Rytkonen nor Callahan is on point, and neither Naccarato nor these two cases have anything to do with the ability of a specialist to testify as to the standard of care of a general practitioner.
Ill — Plaintiffs’ Instruction
One more significant matter remains, that is, whether the trial court properly refused to give plaintiffs’ proposed instruction: "I charge you, that you may consider as evidence the matters contained in this hospital record, and also concerning the lack or absence of an entry in said hospital record, which should have been entered if such act, occurrence or event had taken place, can be considered as evidence by you that such act, transaction, occurrence or event had not taken place”.
The judge properly denied this request on the basis of Michigan Standard Jury Instructions— Civil, SJI 2.12 "Hospital and Business Records”. The SJI provides:
"The committee recommends that no instruction be given concerning hospital and business records.
"Comment
"An instruction on this subject is not necessary and would place undue emphasis upon particular portions of the evidence.”
GCR 1963, 516.6(3) requires:
"Where the SJI Committee Report recommends that no instruction be given on a particular matter, the court shall not give an instruction on the matter unless it specifically finds for reasons stated in the record that (a) such an instruction is necessary to state accurately the applicable law and (b) the matter is not adequately covered by other pertinent Standard Jury Instructions.”
The problem is that MCLA 600.2146, MSA 27A.2146 provides,
"The lack of an entry regarding any act, transaction, occurrence or event in any writing or record so proved may be received as evidence that no such act, transaction, occurrence or event did, in fact, take place.”
Such entries must be "made in the regular course of any business” and it must be
"the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.”
See People v Kirtdoll, 391 Mich 370, 386, fn 9; 217 NW2d 37 (1974), for analysis of the use of hospital records.
In construing a predecessor statute, in Podvin v Eickhorst, 373 Mich 175, 179-180; 128 NW2d 523 (1964), we held that the statute permitted plaintiff "to use his medical records as evidence not only of the happening of events recorded thereon but he was also entitled to rely upon such records as evidence of the nonoccurrence of certain events in the absence of any record thereof’.
Thus, we must reconcile the language of the SJI, and the court rule, and the statute. The court rule mandates an instruction where the SJI recommends none be given only where the applicable law is not otherwise adequately covered. Defendants urge that since the statute says only that lack of an entry may be used for a particular purpose, and the evidence was so admitted and argued, an instruction is not necessary.
Defendants are correct. The plain language of the statute says only that the lack of absence of an entry may be "considered as evidence” of the nonoccurrence of particular events. Plaintiffs themselves agree that a significant amount of testimony was devoted to an alleged failure to record information on the infant’s charts and records. Further, plaintiffs’ counsel told the jury, in his closing argument:
"[W]e have a statute in Michigan * * * that says that a record is admissible not only for the entries that it contains, but for the entries that it doesn’t contain. That is, if something should be in the record and isn’t there, this is admissible evidence of the fact that it didn’t occur.”
Therefore, the mandate of the statute was complied with. Unlike Podvin, the trial judge did not disparage the records in the presence of the jury, 373 Mich 181, and plaintiffs in the instant case thus had the opportunity to have the jury determine the weight and effect of these non-entries. We have been offered no good reason within the guidelines provided by GCR 1963, 516.6(3) to circumvent the express provision of the SJI that no instruction be given. The trial court quite properly refused plaintiffs’ request.
Further, it would have been error in any event to give plaintiffs’ requested instruction, as it did not state the law accurately. The requested instruction would not have advised the jury that an entry must be made in the regular course of business, and that it must be the regular course of business to make such records.
IV — Conclusion
We reiterate today that a specialist may testify as to the standard of care of a general practitioner as long as the witness is knowledgeable about the general practitioner’s standard of care.
As to missing entries in records usually made in the ordinary course of business, the SJI must be followed and the jury may not be instructed, under certain circumstances, that such omissions may be used as evidence that the acts to be recorded did not take place. We find it unnecessary to consider other issues raised by plaintiffs.
The Court of Appeals and the trial court are affirmed. Costs to defendants.
Kavanagh, C. J., and Levin and Ryan, JJ., concurred with Williams, J.
Coleman, J.
(to affirm). Plaintiff has sued for damages claiming that his blindness was caused by-defendant Barrios’ negligence. The jury returned a verdict of no cause of action which the Court of Appeals affirmed.
The appeal to this Court reduces into one viable issue:
Did the trial judge err in refusing to admit into evidence the testimony of an expert witness, a specialist, concerning the standard of care of a general practitioner in Houghton, Michigan or similar communities?
The testimony was properly rejected in what was an exemplary trial.
Although much has been written in this case about the "locality rule”, it is surplusage because the circuit judge did exactly what plaintiff urged in his complaint. The judge instructed the jury to consider the standard of care employed by Dr. Barrios not only in light of the standards of Houghton but also of similar communities. Plaintiff received that for which he asked. We cannot properly make a different case at this level of the proceedings and thereby adopt a new rule to apply to a situation which occurred ten years ago.
The facts of this case are important and all were before the jury. They reveal virtually a miracle not only in saving the life of a baby born after only a little over five months gestation, but also in saving him from brain damage.
Plaintiff was born almost four months prematurely on November 19, 1967 and weighed 950 grams (2 lbs, 1 oz.). His chances of living were one in ten and, if he did live, there was an even chance that some brain damage would result. The mother’s prebirth difficulties resulted in the child being starved for oxygen. His exposure to the operating room air doubled his blood oxygen level. There was testimony that the child probably suffered retrolental fibroplasia (RLF) immediately upon birth and prior to placement in an Isolette.
Dr. Barrios ordered the child placed in an incubator and given oxygen in order for him to survive. He considered it necessary to prevent brain damage or injury to the cardio-respiratory system. His main concern was to keep the child alive:
"Q. Doctor, was that your first, your main and your continuing main consideration in your care and treatment of James Siirila?
"A. His life.
"Q. Doctor, is there ever anything that takes any precedence over life in the care of a child or a person?
’A. No.
"Q. Doctor, what are the main reasons — causes of death of premature babies?
"A. Anoxia. Lack of oxygen.
"Q. That comes from what, poor respiratory problems?
"A. Yes.”
Dr. Barrios visited the child 30 to 45 times during the first two days of his life and checked on him frequently each day after that. He consulted often with his associate, Dr. De Castilla, who had held a residence in pediatric surgery at Children’s Hospital in Detroit.
The child was removed from oxygen or the dosage reduced on several occasions without success until December 29 when he was finally removed from the Isolette and returned only as his condition required. On one occasion, the child had been removed from oxygen for seven days but became cyanotic so that he had to be placed back in the oxygen for survival. Removal to another city would have meant almost certain death.
Plaintiff was in thé hospital for nearly three months. Following release, his mother noted that plaintiff was not seeing well. Dr. Barrios discovered a scar on the retina and recommended that Dr. Matthews, a Marquette pediatrician, examine the child. This led to an appointment with an opthalmologist and the discovery that plaintiff had retrolental fibroplasia.
At trial, Dr. Matthews was presented as a witness for plaintiff. Defendant objected and the court decided "to prohibit the doctor from testifying as to the standard of care in this community or similar communities on the basis that he’s a specialist”. Plaintiff did present a Dr. Carson who had practiced in the area since 1952. He said keeping a premature infant under oxygen treatment without regard to retrolental fibroplasia departed from the standard of practice in the area.
Defendant presented Dr. Repola who was on the St. Joseph Hospital staff. He said Dr. Barrios acted according to acceptable standards. He said the child needed "the oxygen to live and so that it won’t have brain damage”. He believed plaintiff to be one of those premature babies who incur retrolental fibroplasia without ever being treated with oxygen, a result of oxygen starvation in the mother’s womb.
The trial judge described Dr. Barrios’ duty to plaintiff in this manner:
"You are instructed, members of the jury, that the law requires a doctor to possess and exercise reasonable skill and care in the treatment and care of his patients. Although this requirement does not mean that a physician must possess and exercise the highest degree of learning and skill in his profession, it does require that he possess and exercise that degree of skill and learning which conforms to the standard of practice in the same or similar communities. That is, he must possess and exercise that degree of skill and learning which conforms to the average or ordinary learning and skill in his profession in the same or similar communities.
"You are further instructed that for you to find that the defendant, Dr. Barrios, in his care and treatment of plaintiff, James Scott Siirila, did not use reasonable skill or care, plaintiff must show by a preponderance of the evidence as follows: One, that defendant doctor did some particular thing or things that a doctor of ordinary skill, care and diligence, in the same or similar community, would not have done under like or similar circumstances. Or, two, that defendant doctor did some particular thing or things in a manner that a doctor of ordinary skill, care and diligence, in the same or similar community, would not have done under like or similar circumstances. Or, three, that defendant doctor failed to do some particular thing or things that a doctor of ordinary skill, care and diligence, in the same or similar community, in the exercise of due care, would not [sic] have done under the same or similar circumstances. And, fourth, it must be further shown that such conduct was the proximate cause of the injury suffered.” (Emphasis added.)
He also said the jury could not measure "the standards of practice as they affect Dr. Barrios” by holding him "to the standards of board certified pediatricians and opthalmologists”.
Plaintiff’s complaint said defendant was "under a duty to render care and treatment * * * in accordance with the standard of practice in this and similar communities”. The judge instructed the jury that "the law requires a doctor to possess and exercise reasonable skill and care” in treating patients. He must "possess and exercise that degree of skill and learning which conforms to the average or ordinary learning and skill in his profession in the same or similar communities”.
These instructions accurately reflect Michigan precedent. In Lince v Monson, 363 Mich 135, 140-141; 108 NW2d 845 (1961), the Court used this standard:
"In order to submit a case of alleged malpractice to the jury, the plaintiff must produce medical testimony to the effect that what the attending physician or surgeon did was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or similar communities.” Delahunt v Finton, 244 Mich 226, 229, 230; 221 NW 168 (1928).
Skeffington v Bradley, 366 Mich 552, 554; 115 NW2d 303 (1962), followed Lince in requiring that there be medical testimony "showing or tending to show that what the defendant did or omitted doing was contrary to customary practice by reputable members of the medical profession practicing under similar conditions”. Also see Wrobel v Cotman, 372 Mich 383; 126 NW2d 723 (1964), Daniel v McNamara, 10 Mich App 299; 159 NW2d 339 (1968), and Mitz v Stern, 27 Mich App 459; 183 NW2d 608 (1970).
The jury was properly instructed on Dr. Barrios’ duty to plaintiff. The remaining question is whether the jury should have been permitted to consider the testimony of two specialists in measuring the standard of practice. The trial judge correctly refused to permit this.
In Naccarato v Grob, 384 Mich 248, 252; 180 NW2d 788 (1970), plaintiff sued two Detroit pediatricians for failing to diagnose a certain disease. Plaintiff’s experts were from Chicago and Los Angeles; defendants’ were from Detroit. The jury returned a verdict for plaintiff. The trial judge overturned this because "the testimony of the plaintiff’s experts could not be considered by the jury as worthy of belief regarding the standards of actual private practice of the physicians in the Detroit area during the time periods in question”.
In reinstating the verdict, this Court relied on Wood v Vroman, 215 Mich 449, 465, 466; 184 NW 520 (1921), which said a specialist is "obligated to bring to the discharge of his duty that degree of skill and knowledge possessed by physicians who are specialists in the light of present day scientific knowledge”. This Court then said:
"The reliance of the public upon the skills of a specialist and the wealth and sources of his knowledge are not limited to the geographic area in which he practices. Rather his knowledge is a speciality. He specializes so that he may keep abreast. Any other standard for a specialist would negate the fundamental expectations and purpose of a speciality. The standard of care for a specialist should be that of a reasonable specialist practicing medicine in the light of present day scientific knowledge. Therefore, geographical conditions or circumstances control neither the standard of a specialist’s care nor the competence of an expert’s testimony.”
Dr. Barrios did not hold himself out as a specialist. He should not be judged by a specialist’s standards.
In Rytkonen v Lojacono, 269 Mich 270, 274; 257 NW 703 (1934), plaintiffs husband had died following surgery. One allegation was that defendant had failed to properly secure a tube which slipped inside the husband’s body. The man who performed the autopsy, Dr. Talso, was permitted to testify how he would have secured the tube and about practices he had observed at famous hospitals:
"Dr. Talso’s testimony in this respect was error. Defendant is not to be charged with the peculiar skill or methods of practice used in famous medical institutions. Nor is the treatment another physician would have used under the circumstances the test. Wood v Vroman, 215 Mich 449, 465. The rule is firmly established that defendant was bound to use the degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities. Miller v Toles, 183 Mich 252; LRA 1915C, 595 [150 NW 118 (1914)]; Czajka v Sadowski, 243 Mich 21 [219 NW 660 (1928)]. Dr. Talso’s testimony was' not cured by a general statement that his methods have been used by physicians in the same and similar communities. He did not say other methods were not recognized as proper.”
One defendant in Callahan v Beaumont Hosp, 67 Mich App 306, 310; 240 NW2d 781 (1976) (a surgeon named Feldstein), had treated plaintiff in the emergency room for an ankle injury. The Court said Naccarato "was grounded to a large degree on the reliance and expectations of the public with respect to the skills possessed by a specialist”. P specialist "represents to the public that he has special knowledge and skills not possessed by a general practitioner and that he also keeps abreast with the advances in his specialty”.
Plaintiffs expert witness was a surgeon. The trial judge refused to let him testify as to the standards of care to be imposed on the defendant. In affirming, the Court of Appeals said:
"Dr. Feldstein, although a surgeon, was not practicing surgery or utilizing any special skills of a surgeon when he treated the plaintiff. Rather, in wrapping the plaintiff’s ankle in an Ace bandage and telling her to take aspirin for the pain, Dr. Feldstein was acting in the same manner as would any other doctor on duty at the emergency room of the defendant hospital. Furthermore, the injury suffered by the plaintiff was not an injury requiring treatment by a surgeon, nor is there any indication that the knowledge and skills that Dr. Feldstein gained by virtue of his specialization in any way better prepared him to examine and treat the plaintiffs injury. Under these circumstances, there is no holding out of special skills or knowledge on the part of Dr. Feldstein, nor is there any reliance upon such special skills or knowledge by the plaintiff As a result, we decline to extend the holding of the Naccarato decision to the facts of the present case, since the rationale underlying that decision has no application here.”
The defendant was held to " 'that degree of skill and diligence ordinarily exercised by the average members of the medical profession in the same or similar localities with due consideration to the state of the profession at the time’ ”.
We agree with Justice Williams that "a general practitioner is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner of the same class, acting under the same or similar circumstances”. However, his extended discussion of the "locality rule” is unnecessary and diverting. As demonstrated above, a doctor’s conduct is to be measured against the degree of skill and learning expected of reputable doctors practicing under similar conditions. We do not limit consideration to the particular locality but include similar communities. We require that the doctor’s actions conform to customary practice of the medical profession. There is nothing impermissibly parochial or restrictive about the Michigan standard. It states a reasonable method by which to judge the doctor’s conduct. The trial judge followed the law.
Justice Williams concludes that reversible error occurred when the jury was told that the specialist’s testimony could not be used to judge Dr. Barrios’ conduct. I disagree. This would be a new rule of law which would inure to the benefit of no one.
Expert witnesses are used to assist the jury in determining by what standards the defendant’s conduct should be examined. Dr. Barrios held himself out as a general practitioner. He did not claim to be a specialist; he should not be judged by their standards. The specialist’s testimony was heard by the jury and was excluded only to the extent that the jury could not use it to measure "the standards of practice as they affect Dr. Barrios”. The case was fully and properly presented to the jury and its verdict should stand. We should not act as a superior, if remote, second jury.
This is a very difficult case because one of the principals was an infant. It is natural to feel deep sadness for the child and family. Undoubtedly the jurors were similarly moved. However, from the evidence presented, they may have concluded that without Dr. Barrios’ efforts James Siirila would not have lived at all. Also, from the fully developed evidence they could not fix blame for the sight problem upon defendant doctor. This was an emergency situation demanding that tough decisions be made. Dr. Barrios’ main concerns were preserving life and preventing brain damage. There was testimony that the sight damage probably took place because of the lack of oxygen in the mother’s womb. The jury heard all the facts in 17 days of testimony and found that Dr. Barrios had not violated his duty.
Included in the testimony was a cross-examination of Dr. Barrios concerning the fact that he "didn’t seek any advice from any pediatrician 100 miles away by picking up a telephone to say to him * * * are there any special problems, things that I should be looking out for?” Dr. Barrios made the point that he "was treating jointly this patient with Dr. De Castilla * * * [who] had experience in pediatrics”. He said:
"I knew there was going to be problems, but in my judgment, the child started doing well, and any transfer or any change of what has been established, you know, of a nursery, would be detrimental to the baby.”
The jury thus had available testimony concerning whether Dr. Barrios should have called Marquette for advice. It is not proper for us, by hindsight, to say that the jury should have concluded other than as they did. They had the information which my colleague argues they should have had.
Unfortunately, we cannot bring back plaintiffs sight. Neither can we in good conscience affix blame on Dr. Barrios in a suit charging medical malpractice where the jury found none.
Importantly, we should limit ourselves to the only real issue before us: the propriety of admitting the expert testimony of the Marquette specialist Dr. Matthews regarding the standard of medical care by general practitioners in Houghton or similar communities.
We would not adopt the new rules proposed and cause them to be applicable to facts which occurred ten years ago.
Affirm.
Fitzgerald and Lindemer, JJ., concurred with Coleman, J.
Specific findings included nystagmus, or eye movement typical of the child who has lost his sight, opacity of the lens of the eye and a white retina.
According to Adler’s Textbook of Ophthalmology (W B Saunders Co, 8th ed 1969), "This [RLF] is an oxygen-induced retinopathy in premature infants who weigh less than four pounds” and "[r]etrolental fibroplasia has, to a great extent, been eliminated by careful regulation of oxygen' therapy”. 24-25. In the chapter on Pediatric Ophthalmology, it is observed that RLF was virtually unknown prior to 1940, when "it became the vogue to treat irregular respiration in premature infants with high concentrations of oxygen”. By 1953 "it was estimated that 50 per cent of all blindness in institutionalized children up to the age of 7 was a result of retinopathy of prematurity”. By 1952 the relationship of the disease to both the level and duration of oxygen therapy was confirmed. Apparently, "[i]t is now well understood and accepted that the incidence of retrolental fibroplasia will increase with any one of three factors, each of which may act independently:
"1. Oxygen concentration. The higher the concentration of the oxygen, the greater the chance of retrolental fibroplasia developing within a given time period. * * * The accepted 'safe’ oxygen concentration has been less than 40 per cent, but this must be modified when one considers the variables mentioned below.
"2. Duration of oxygen treatment. The longer the continuous oxygen treatment, the greater the chance for retinopathy of prematurity to develop for any fixed oxygen concentration. Thus, six to eight weeks of 40 per cent oxygen therapy may be just as dangerous as three weeks of 60 to 70 per cent.
"3. Prematurity of the infant. If both the above variables are held constant, the degree of prematurity becomes important; the smaller the infant, the greater the chance for retrolental fibroplasia.
"Since there is no treatment for this disease once activity has begun, the physician’s major concern must be toward prevention.” 148-149, 152.
One theory presented was that the RLF was caused because the baby’s blood vessels were severely immature at the time of birth, and he received lower than normal levels of blood oxygen before he was born. The transfer from a low oxygen content to the 21% oxygen content of ambient air might have caused the constriction of blood vessels which leads to RLF. Testimony at trial was that prenatal problems resulting from abnormal attachment of the placenta and infection of the umbilical cord resulted in lower than normal prebirth blood oxygen levels.
The testimony of Dr. John Kublin, an ophthalmologist, was also included in this prohibition.
A directed verdict had been rendered in favor of the defendant Air Shields, Inc., manufacturer of the Isolette. Plaintiff moved for voluntary dismissal of defendant Mira Corporation, manufacturer of the oxygen analyzer.
Lince, however, referred only to standards of good practice in the community, and did not mention that similar communities might also be considered. E.g., 363 Mich 140, 141, 142. However, in Delahunt v Finton, 244 Mich 226, 230; 221 NW 168 (1928), quoted in Lince, 363 Mich 140-141, the standard was "the practice in that or similar communities”. (Emphasis added.) This appears to be the correct statement of Michigan law. E.g., Pelky v Palmer, 109 Mich 561, 563-564; 67 NW 561 (1896); Miller v Toles, 183 Mich 252, 257; 150 NW 118 (1914).
The trial judge also instructed the jury to disregard the testimony of Dr. John Kublin, an ophthalmologist, as it concerned the standard of care, also because he was a specialist. However, no error was committed as to Dr. Kublin because the opportunity to establish such a foundation was provided:
Defense Counsel: "At this time, I don’t think Dr. Kublin has testified that he has knowledge that would be deemed in the general practice of medicine other than ophthalmology.”
The Court: "Mr. Okrent [plaintiffs’ counsel]?” Plaintiffs’ counsel then attempted to establish whether the medical profession had in 1967 any generally accepted standard for oxygen dosage, but Dr. Kublin did not know that. There appear to have been no other questions directed to the foundational problem, although Dr. Kublin later testified that 40% oxygen was an accepted maximum level to be administered. Since there was an opportunity to do so, and the required competency of witness was not demonstrated, there was no error in the instruction concerning Dr. Kublin.
In Sampson v Veenboer, 252 Mich 660, 667; 234 NW 170 (1931), we approved the following qualification of a surgeon from Chicago, testifying as to the standard of practice of a surgeon in Grand Rapids:
"The defendant testified in his presence that:
" 'There are about 20 fellows of the American College of Surgery in Grand Rapids. Grand Rapids as a surgical center or locality stands very high.’
"This in itself would give the witness a good idea of the standard of surgery in Grand Rapids. After giving these qualifications, the expert was asked whether he was 'familiar with the standards of surgery of the average practitioner of surgery in localities and communities similar to Grand Rapids.’ He testified that he was. Thereupon, his testimony was admitted. The fact that he was a man of experience and had performed somewhat similar operations, even though not the identical one in question, and the further fact that it was not shown that this was a very unusual operation, and the further knowledge that he obtained in the court-room listening to defendant’s testimony in regard to the practice of surgery in Grand Rapids, were sufficient to qualify him as an expert. The jury was sufficiently informed so as to be able to judge the extent of his qualifications and to decide how much credence should be given to the testimony.”
This suggests still another way in which competency may be established.
In Harvey, a physician who was only a medical student at the time of a shooting was permitted to testify as to the standard of care of gunshot wounds.
MCLA 617.53; MSA 27.902. The relevant language was identical.
The Court also noted these factors:
"Moreover, this case involves treatment in the emergency room of a large metropolitan hospital. It is entirely possible that the conditions present in an emergency room of a Detroit area hospital are so different from those in an emergency room of a small-town hospital, that any comparisons made by a small-town doctor would be unfair to a doctor practicing in the big-city hospital. It is also possible that the number of cases handled in the emergency room of a big-city hospital as well as the nature of those cases may differ so significantly from the nature and volume of cases handled in the emergency room of a small-town hospital that comparisons of the procedures used in each to examine a person seeking emergency treatment would be misleading.” | [
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Lindemer, J.
(for affirmance). Defendant and others were convicted after a jury trial of conspiracy contrary to MCLA 750.151; MSA 28.348. The conspiracy was to violate both the burglary statute, MCLA 750.110; MSA 28.305, and the receiving or concealing of stolen goods statute, MCLA 750.535; MSA 28.803. Defendant’s conviction was affirmed by the Court of Appeals, 47 Mich App 61; 209 NW2d 281 (1973). We granted leave to appeal, 391 Mich 766 (1974).
It is uncontroverted that a great many burglaries took place in Genesee County from February through December of 1967. The Federal Bureau of Investigation became involved in investigation of the problem, and an FBI agent named Thiel asked defendant in October or November to become a paid informant. Defendant did apparently give information for pay to the authorities that led to the arrest of the two apparently principal burglars, Bolduc and Fralick. Whether defendant was working primarily for himself or as part of an FBI investigation was a key factual issue.
Defendant maintains that, as a matter of law, he may not be convicted of conspiracy since he was a government informer. One who is a government informer and only feigns participation in a criminal enterprise may not be a coconspirator. People v Atley, 392 Mich 298, 311-312; 220 NW2d 465 (1974). It becomes a question of fact. We find upon examination of the record that the trial judge properly instructed on the question for the jury:
"The question really concerns the presence or absence of criminal intent, whether he was a government informer secretly bent upon frustrating the conspiracy while feigning or pretending to be a coconspirator, or whether he was a willing party to an illegal venture for gain who feigned being a government informer to avoid the consequences of his criminal activities with the persons he informed upon.”
Defendant and prosecutor on appeal both state that trial testimony "clearly” establishes the respectively favored theory. Neither party is correct. The questions of defendant’s complicity and cooperation were vigorously litigated and submitted to the jury.
"In conducting this review the appellate court must remember that the jury is sole judge of the facts. It is the function of the jury alone to listen to testimony, weigh the evidence and decide the questions of fact. People v Mosden, 381 Mich 506, 510; 164 NW2d 26 (1969).” People v Palmer, 392 Mich 370, 375; 220 NW2d 393 (1974).
The jury’s determination that defendant was a coconspirator rather than a police informant cannot be upset where sufficient evidence to support a finding of guilt beyond a reasonable doubt is present. After reviewing the record we conclude that the people’s proofs meet that standard. The jury’s verdict must stand.
Defendant complains of the seizure and admission into evidence at trial of a certain dress. The search warrant which led to the discovery and seizure of the dress was based on an affidavit as to a conversation held six days prior to the execution of the warrant. The article sought was a dress and the affidavit in support stated that "the said white cocktail dress [is] for [Mrs. Smyers’] personal use and that the said dress is presently at the above-described home of [defendant]”. There was reasonable cause to believe at the time the search warrant was issued that the dress was present in defendant’s house. The finding of probable cause by the magistrate to issue a search warrant pursuant to MCLA 780.651-780.653; MSA 28.1259(1)-(3) does not appear to have been an abuse of discretion. People v Dellabonda, 265 Mich 486, 491; 251 NW 594 (1933). Since the dress was seized on authority of a properly issued search warrant, defendant’s arguments concerning the propriety of his arrest warrant become moot. The cocktail dress was connected up by testimony which, if believed, supported the theory that the dress was a fruit of one of the burglaries within the conspiracy and was provided to defendant by Fralick as a special present for Mrs. Smyers. The dress would be probative of defendant’s participation in the conspiracy charged, and admission of the dress was not error.
The admission of a stolen adding machine seized from defendant’s house under a valid search warrant and the cross-examination of defendant concerning that machine are also claimed as error. Agent Thiel had testified that defendant had said nothing about the adding machine, while defendant said he had properly reported it. Although the machine wasn’t a fruit of the conspiracy, the trial court properly allowed cross-examination to test defendant’s credibility, motive and intent. People v Dellabonda, supra. The admission of the machine was without error under the same rationale.
The lower court file in this case contains a handwritten "missing witness” instruction which was not given at trial. Defendant’s brief does no more than state that failure to give this charge was reversible error. No charge is questioned, no argument is offered, no portion of the record is referenced, and no authority of any kind is cited. This issue is deemed abandoned on appeal. People v George, 375 Mich 262, 264; 134 NW2d 222 (1965).
Defendant finally contends that certain statements by the prosecuting attorney in rebuttal argument were prejudicially erroneous. To say that this trial at times became vigorous and heated would be an understatement. We are satisfied that the remarks of the prosecutor were invited response to the closing argument of defend ant’s attorney, and will not reverse this case on the basis of any such remarks.
"Criminal trials are not basket luncheons, and we seem faintly to recall that in our experience opposing lawyers rarely if ever pelted each other with rose petals. In any case, counsel for defendants cannot on his side be allowed great latitude to goad and provoke adverse comment or criticism from the prosecutor and then seek a reversal because his strategy succeeded.” People v Allen, 351 Mich 535, 544; 88 NW2d 433 (1958).
The Court of Appeals and the circuit court are affirmed.
Coleman and Ryan, JJ., concurred with Lindemer, J.
Levin, J.
(for reversal). Archie Smyers, a police informant, was convicted of conspiracy to break and enter occupied dwellings and to receive or conceal stolen property — the conspiracy he was investigating as part of his undercover activities— on evidence tending to show that he had joined and profited from that criminal enterprise.
There had been a wave of several hundred burglaries in the Flint area, apparently the work of a group of thieves. The FBI became interested when it learned that guns, including machine guns, had been stolen, and asked Smyers, who had previously worked as a police informant, to obtain information.
Smyers learned the identity of two of the burglars, fenced stolen property for them and received a portion of the fencing proceeds, and ultimately supplied the FBI with information which resulted in their apprehension. He reported those sales to the FBI. He testified it was his understanding that he was expected to involve himself in the criminal enterprise if necessary to obtain the desired information and that, in addition to the money he received from the FBI, he could retain as part of his compensation for his undercover work the portion of the fencing proceeds he received from the burglars.
After their arrest the burglars turned state’s evidence, and Smyers was arrested. They testified that Smyers purchased and acquired on consignment additional stolen property; the people asserted that Smyers had unlawfully profited from the secret disposition of that property, the receipt and sale of which was not reported to the FBI. Smyers denied the receipt of stolen property not reported to the FBI.
The judge instructed the jury, over objection, that it should acquit Smyers if it concluded that he feigned complicity and acted as an informant for the police throughout his association with the burglars but that he should be convicted if he joined the "continuing conspiracy charged to achieve its criminal purpose and to proñt by those purposes but gave information to the government for gain and with a hope of protecting himself from criminal prosecution”. (Emphasis supplied.)
The jury was instructed that it was the people’s theory that Smyers had sought to profit from his participation in the criminal enterprise in three ways:
1) as an informant he would be immune from arrest and prosecution;
2) he would profit from the money paid to him by law enforcement authorities;
3) as an active participant in the conspiracy he would profit from the portion of the money he kept for himself when stolen goods were sold.
We would reverse because the instructions
—were erroneous in permitting the jury to treat as an unlawful "profit” or "gain”
i) the immunity from prosecution with which the law shields a feigned accomplice,
ii) the money paid Smyers by the FBI for his undercover activities;
—were misleading in failing to inform the jury that if it concluded that Smyers was authorized to involve himself in the criminal enterprise as a fence, his retention of fencing proceeds on sales reported to the FBI would not support a conviction. (If he was justified in believing he could retain such proceeds, retention was not improper; if that asserted belief was not justified, his duplicity in withholding from the FBI the proceeds of sales he reported was neither related to nor furthered unlawfully the criminal enterprise he was charged with unlawfully joining.);
—were misleading in failing to inform the jury that if it concluded Smyers received stolen property not reported to the FBI, conviction would be warranted if the jury further concluded that Smyers joined in the far-flung conspiracy charged in the information, but not if it concluded that his criminal involvement was confined to a narrower conspiracy with the burglars with whom he dealt or did not amount to a conspiratorial agreement, constituting only the unlawful acts of receiving or concealing stolen property.
I
The wave of several hundred burglaries began in February, 1967. In late October or early November, 1967 FBI agent Donald Thiel communicated with Smyers, who was employed at a large industrial plant, and had previously worked as a police informant. Thiel asked Smyers to provide him with information concerning the identity of the thieves.
Thiel testified that he received money from the state police which he, in turn, paid to Smyers and also paid him money provided by the FBI. On the people’s examination, Thiel said that he had only asked Smyers to obtain information and had not "authorized” him to commit burglaries or to buy and sell stolen property and that Smyers did not inform him that he had retained proceeds received on the sale of stolen property. On re-examination Thiel acknowledged that he might have "possibly” expected Smyers "to appear to be involved” in order to obtain the information. It is not contended that Thiel told Smyers to desist from further involvement when Smyers reported that he was fencing TV’s.
Thiel testified that Smyers first began working for him in January, 1966. Smyers testified that he had worked for law enforcement agencies for a number of years. He named a member of the sheriffs department and five members of the Flint Police Department with whom he had worked. Smyers said that it was the "practice over a period of years” that he could retain proceeds. "If they asked me how much I made, I told them.” He was not expected to remit such proceeds. None of the police officers named was called as a witness.
A mutual acquaintance introduced Smyers, as a person interested in buying some TV’s, to Jerry Bolduc, one of the burglars.
Bolduc testified that the first meeting was in the last of October or sometime in November. Smyers purchased a TV, knowing it was stolen, and paid $150. He said he would like to buy some guns and more TV’s. A few days to a week later Smyers met James Fralick, who worked with Bolduc, and paid them $200 for a TV and took an outboard motor he thought he might be able to "move”. Bolduc could not remember if Smyers ever paid for it.
Bolduc said he delivered to Smyers’ home another TV "along with some guns and other stuff’ in the first part of December. Fralick said that within a week he and Bolduc received $200 for that TV. Fralick also related a delivery on consignment to Smyers of two stolen musical instruments and four or five guns for which Smyers never paid.
Smyers denied the foregoing transactions. He said that at the first meeting he told Bolduc he didn’t have any money with him but would get back to Bolduc. The meeting occurred in late November or the first of December, and he reported to Thiel shortly after the meeting. At the second meeting (with Fralick), a few days later, there was a conversation regarding Smyers’ interest in buying guns and a color TV. Smyers, because of the FBI’s concern, told Bolduc that he was interested in machine guns, and learned that they had been sold. Smyers was shown a diamond watch he did not purchase. He said he also reported this meeting to Thiel. He said he never received guns or musical instruments.
While the testimony was conflicting regarding what occurred at the first meetings, there was substantial agreement regarding the subsequent events.
In late November or early December, Bolduc and Smyers delivered a TV to a music store in Flint. Smyers said that the proprietor gave him $200 in bills and $25 in change. He gave $200 to Bolduc who said he could keep the change. Bolduc confirmed that he received $200, but he and the proprietor both testified that $300 had been paid. Thiel corroborated Smyers’ testimony that he had reported the delivery of a TV at the music store.
Around the first of December, a Magnavox color TV-record player-radio was delivered to Smyers and he was given a stolen white cocktail dress for his wife. Smyers testified that the Magnavox was delivered to a local union president, whom he named, and that he reported that delivery and the receipt of the cocktail dress to Thiel. Thiel testified that Smyers had reported delivery of a TV to the person named, but he did not recall Smyers mentioning a dress. He also testified that he was aware of the delivery of a Magnavox, but did not connect it with the union officer.
Fralick testified that sometime before the dress was delivered he mentioned to Smyers that he had seen Christmas presents at some of the homes they were burglarizing and Smyers responded affirmatively to the question whether he would like some for his family.
A few days later another TV was delivered to Smyers on the understanding he would try to sell it, and Bolduc said Smyers paid cash for a pistol. A short time later, Smyers obtained a customer for the TV, and he, Bolduc and Fralick delivered it in Owosso. The customer paid $250, of which Bolduc and Fralick received $200.
Returning from Owosso, Fralick suggested that "it’s about time we break [Smyers] in” on the burglaries. Two or three burglaries were attempted in Corunna; Bolduc and Fralick essentially corroborated Smyers’ testimony that he remained in the car at each house and interrupted the burglaries by reporting he had seen flashing lights in the neighborhood or a person standing at the window of the house. Smyers attempted to report these events to Thiel; when he could not reach Thiel he called a Flint city detective, whom he identified by name, and gave the information to him.
The next day, December 11, he reached Thiel and reported what had occurred. Thiel said that Smyers reported three break-ins, and he recalled some discussion that the reason for the journey was the delivery of a TV.
Thiel said that he saw Smyers five or six times in the approximately six-week period between their first conversation and the one on December 11th when, following the three break-ins, Smyers for the first time gave Thiel the first names of the thieves, physical descriptions, Bolduc’s address and telephone number, and the license numbers of the vehicles they operated. Thiel communicated this information to the state police, resulting in the arrest of Bolduc and Fralick the next day while attempting a breaking and entering.
After Bolduc and Fralick were arrested, they said they met Smyers and asked him for payment on consigned merchandise; he responded that he didn’t have any money and the merchandise was still out on consignment. Later, Smyers paid $50 to each of them. Smyers acknowledged the pay- merits, adding that he owed them about $207 he had borrowed during the period of time he "was trying to gain their confidence”.
II
Smyers was a paid informant for the FBI. If Thiel had not solicited his assistance in identifying the persons responsible for the burglaries, he would not have been exposed to arrest and prosecution.
Neither Smyers’ expectation of immunity from arrest and prosecution nor the money received from the state police and the FBI can properly be regarded as "profit” or "gain” from the criminal enterprise. "[I]t is * * * well-established that one who acts as a government agent and enters into a purported conspiracy in the secret role of an informer cannot be a co-conspirator.”
The law tolerates the use of undercover agents to ferret out law violators. Some are police officers; others, often with underworld connections, are engaged on an informal basis with widely varying arrangements for the payment of money or other compensation. It is inconsistent with ordinary notions of fairness for law enforcement authorities to invite a person to become involved in a criminal enterprise and then charge him as a participant on the theory that he profited from his participation in expecting to be immunized from arrest and prosecution and in receiving compensation from the authorities for the activities they hired him to perform.
The instructions were erroneous in stating that such expectation of immunity or compensation could be treated as "profit” or "gain” derived from the conspiracy charged.
Ill
The evidence against Smyers fell into three categories: (a) his retention of fencing proceeds on sales of stolen TV’s reported to the FBI; (b) the receipt of the stolen white cocktail dress, which was to be retained and not fenced; (c) the alleged receipt, not reported to the FBI, of additional TV’s and other property to be fenced.
(a)
It was undisputed that Smyers had retained fencing proceeds received on the deliveries reported to the FBI, either $25 or $100 on one delivery, an undisclosed amount, if any, on the second, and $50 on the third delivery.
There was no significant testimonial conflict between Smyers, Bolduc and Fralick concerning the disposition of the TV’s reported to the FBI; nor was there any direct conflict between Thiel’s and Smyers’ testimony. Thiel’s statement that he had not "authorized” Smyers to become involved in criminal activity is qualified by his statement that he "possibly” expected Smyers "to appear to be involved” in order to obtain the desired information. Thiel’s failure to tell Smyers to desist from further involvement when Smyers reported that he was fencing TV’s supports Smyer’s claim that he was justified in believing he was authorized to become so involved. No police officer was called to contradict Smyers’ statement that for a number of years he had performed similar services as an informant for local law enforcement officers, whom he named, and that it was the practice he could retain fencing proceeds in addition to the monetary compensation he received from the authorities.
If the jury concluded that Smyers was justified in believing he could become involved in fencing operations, his retention of fencing proceeds on sales reported to the FBI would not support a conviction for the conspiracy charged, without regard to whether retention of proceeds was, as Smyers claimed, in accord with past practice. While the retention of proceeds without authorization might have been unlawful, it could not have affected the activities of the burglars (who were unaware of Smyers’ undercover role and expected him to retain the proceeds) or furthered unlawfully the objectives of the conspiracy charged.
Whenever an undercover agent participates in criminal activity the result may be to encourage and assist law violators and advance the criminal enterprise in which they are engaged. Such encouragement and assistance, incident to the undercover agent’s participation, gives rise to no criminal responsibility on his part.
There was compelling evidence that Smyers was justified in involving himself as a fence provided that he reported the sales to the FBI. The jury may well have disbelieved the assertions of the admitted burglars, that Smyers received additional TV’s and stolen property which were not reported to the FBI. It was most important, therefore, that the jury be carefully instructed that if it concluded Smyers was justified in involving himself as a fence on sales reported to the FBI, his retention of fencing proceeds, whether or not in accord with past practice, would not support a conviction of participation in the conspiracy charged.
(b)
Smyers’ receipt of the stolen dress was undisputed. He said he reported its receipt to Thiel at the same time he reported the delivery of the Magnavox which was stolen in the same burglary. Thiel said he remembered the Magnavox but not the dress. Even if the jury concluded that Smyers did not report receipt of the dress and thereby unlawfully received stolen property, it would not follow that he was a co-conspirator. While the corollary of that conclusion may be that he was guilty of the offense of receiving or concealing stolen property, the gist of the offense of conspiracy is the unlawful agreement with the requisite criminal intent. The receipt and sale of stolen property is not necessarily pursuant to an earlier agreement or related to a larger criminal enterprise.
Although an express agreement need not be established, some undertaking to engage in the offenses which are the putative objective of the criminal plan must be established. To sustain a conviction for conspiracy, "the evidence must disclose something further than participating in the offense which is the object of the conspiracy; there must be proof of the unlawful agreement, either express or implied, and participation with knowledge in the agreement”. Dickerson v United States, 18 F2d 887, 893 (CA 8, 1927).
The people sought, through Fralick’s testimony that Smyers had expressed an interest in receiving a stolen Christmas present, to establish that Smyers unlawfully joined in the conspiratorial agreement. The failure to instruct the jury that it could not implicate Smyers in the conspiracy on the strength of the receipt and retention of the stolen dress alone and that unless it believed Fralick and disbelieved Smyers he could not be convicted on this theory improperly exposed Smyers to conviction even if the jury disbelieved Fralick’s testimony.
(c)
The principal evidence against Smyers was testi mony by Bolduc and Fralick that they had delivered to him additional TV’s and other stolen property — not reported to the FBI — which he was to fence. Smyers denied receiving any stolen property not reported to the FBI. No property stolen in any of the burglaries, except the dress and the TV’s reported to Thiel, was, after an extensive investigation, traced to Smyers. The instructions did not adequately apprise the jurors that their verdict depended on how they resolved the issue of credibility posed by Bolduc’s and Fralick’s testimony and Smyers’ denials.
The jury should have been further instructed that even if it concluded that Smyers had received stolen property not reported to the FBI, it would not necessarily follow that he had become a co-conspirator. The jury could nevertheless properly conclude that Smyers had not thereby joined the far-flung conspiracy charged in the information, that his criminal involvement was confined to a narrower conspiracy with the burglars with whom he dealt, or that the acts of receiving stolen property did not support a finding that he had entered into an agreement amounting to a conspiracy with the burglars. If the jury so concluded, conviction of the conspiracy charged would not have been justified, even though such a finding might have supported conviction for a narrower conspiracy or for receiving or concealing stolen property, offenses not charged. The instructions also failed to identify these issues for the jury’s consideration.
IV
Two rationales have been suggested for charging conspiracy where the substantive offense has been completed: first, that prosecutors need this additional weapon to reach the "kingpin” of a far- reaching criminal enterprise who is insulated by tiers of lieutenants from the substantive offenses, and second, that there is a "special danger incident to group activity”.
In prosecuting the "hub” of a far-reaching criminal enterprise it may well be necessary to introduce evidence of the activities of the "spokes” in order to establish the "hub’s” role in the enterprise. To require a minor "spoke” to in effect defend against massive evidence of the operation of the entire wheel can, however, be highly prejudicial. See Kotteakos v United States, 328 US 750, 769-770; 66 S Ct 1239; 90 L Ed 1557 (1946).
Smyers, concededly a late entrant in the ongoing burglary ring, was a minor figure in the grand pattern of several hundred burglaries and sales of property worth tens of thousands of dollars. After being enlisted by Thiel, Smyers dealt with Bolduc and Fralick for not more than six weeks of the ten-month period during which the ring operated.
The objective of the conspiracy was to burglarize and sell property. That objective was achieved, with ample evidence of the many burglaries and subsequent sales available and introduced. Charging Smyers with conspiracy where the objectives have been accomplished, and liability for substantive offenses could be established, adds little except to provide the people with procedural advantages not otherwise available.
A "person joining a group should not be held for offenses committed prior to his entry, for he was not a party to the crime of conspiracy which was being committed before that time”. "Guilt with us remains individual and personal, even as respects conspiracies. It is not a matter of mass application.” Kotteakos v United Statessupra, p 772.
There were 12 trial days in a 22-day period; 49 witnesses testified in 63 appearances. Two defendants were tried in addition to Smyers, a burglar and a fence with whom he had no relationship. The testimony concerned the activities of dozens of charged and uncharged co-conspirators and felons in the commission of over 400, possibly as many as 600, burglaries extending over a ten-month period.
It was of critical importance, under the circumstances, that "the arcane jargon of the law should not be recited in vacuo but, rather, the law pertinent to the case should be related in a meaningful manner to the evidentiary facts of the case”. Hill v Harbor Steel & Supply Corp, 374 Mich 194, 208; 132 NW2d 54 (1965). Absent careful instructions relating the law of conspiracy to the evidence against Smyers, the instructions facilitated a verdict of guilty on alternative grounds, some of which would not as a matter of law support a conviction for conspiracy.
We would reverse and remand for a new trial.
Kavanagh, C. J., and Williams, J., concurred with Levin, J.
Fitzgerald, J., took no part in the decision of this case.
The judge’s instruction on feigned accomplices differed substantially from the instruction proposed by Smyers’ counsel. The judge did not give a requested instruction to the effect that the jury should acquit Smyers if it concluded that he was not part of the conspiracy charged but rather was involved in a separate and distinct criminal combination. Smyers’ counsel objected to the instructions given, including the portion of the instructions concerning Smyers’ profiting from his involvement with the burglars.
The judge instructed the jury:
"It is the theory of the people that defendant Smyers acted in a duo role in this matter, that is, that he was not only an informer for the police some of the time, but that he joined the conspiracy with criminal intent and for his own profit. The people contend that defendant Smyers sought to profit from his participation in the conspiracy in three ways:
"1, that as an informer he would immunize — I’m not reading that right — that as an informer he would be immunized from arrest and prosecution;
"2, that as an active participant in the conspiracy he would profit from that portion of the moneys he kept for himself when stolen goods were sold;
"And, 3, that he would further profit from the money paid to him by law enforcement authorities on the occasions where he did, in fact, inform.
"The people contend that defendant Smyers actually participated in the unlawful conspiracy charged.
"I charge you that if, after having heard all of the proofs in the case regarding the defendant Smyers’ activities with the police, that he was feigning complicity and acting as an informer for the police throughout the period of his associations with any of the alleged conspirators, or if the people have not proved beyond a reasonable doubt and by substantial evidence that Archie Smyers was not feigning complicity in acting as an informer for the police throughout the period of his associations with any of the alleged conspirators, then, in either case, you must return a verdict in favor of Mr. Smyers of not guilty.
"On the other hand, I charge you that if Archie Smyers, with criminal intent, agreed with Jerry Bolduc or other conspirators to join the continuing conspiracy charged to achieve its criminal purpose and to profit by those purposes but gave information to the government for gain and with a hope of protecting himself from criminal prosecution, then you may find him guilty of the conspiracy.
"The question really concerns the presence or absence of criminal intent, whether he was a government informer, secretly bent upon frustrating the conspiracy while feigning or pretending to be a co-conspirator, or whether he was a willing party to an illegal venture for gain who feigned being a government informer to avoid the consequences of his criminal activities with the persons he informed upon.”
The people stressed Thiel’s testimony that Smyers did not identify Bolduc and Fralick by name until December 11. Thiel testified, however, that he saw Smyers five or six times during the period of Smyers’ undercover activities and that during two conversations preceding the 11th, Smyers had reported that he was in communication with the burglars and that he had fenced stolen property. It must have been apparent to Thiel that Smyers knew the identity of the burglars; he did not claim that Smyers refused to disclose their names. It appears that, for whatever reason, he may have been content to wait until Smyers decided to disclose their identities.
Smyers testified that he believed Bolduc and Fralick were armed. He understandably would withdraw from further communication with Bolduc and Fralick after their identities were made known to avoid the physical danger of being present when the police might attempt to make an arrest. Indeed, Bolduc was shot and wounded by the police when he and Fralick were apprehended on December 12.
United States v Chase, 372 F2d 453, 459 (CA 4, 1967). See People v Atley, 392 Mich 298, 311; 220 NW2d 465 (1974); Sears v United States, 343 F2d 139, 142 (CA 5, 1965); United States v Wray, 8 F2d 429, 430 (ND Ga, 1925) (dictum).
"When one of two persons merely pretends to agree, the other party, whatever he may believe, is in fact not conspiring with anyone.” Developments in the Law—Criminal Conspiracy, 72 Harv L Rev 920, 926 (1959).
An adding machine was seized at Smyers’ home following his arrest. The adding machine was not, however, substantive evidence; it was not stolen in any of the burglaries and was not connected to the conspiracy charge. It had been stolen from a store and was received in evidence on rebuttal on the issue of credibility.
Smyers did not, as asserted in my colleague’s opinion, claim that he had reported the receipt of the adding machine to Thiel.
See Bollenbach v United States, 326 US 607, 611; 66 S Ct 402; 90 L Ed 350 (1946); Cleaver v United States, 238 F2d 766, 770 (CA 10, 1956); United States v Zeuli, 137 F2d 845 (CA 2, 1943).
See People v Atley, supra.
"Since the agreement is usually tacit, its proof is largely circumstantial, drawing upon inferences from the acts and circumstances surrounding the course of dealings between the parties.” Note, Falcone Revisited: The Criminality of Sales to an Illegal Enterprise, 53 Colum L Rev 228 (1953).
See United States v Klein, 515 F2d 751, 755 (CA 3, 1975); People v Nelson,—Colo—; 539 P2d 477 (1975), reversing conspiracy convictions for insufficient evidence of an agreement. Similarly, see United States v Spanos, 462 F2d 1012 (CA 9, 1972); United States v Vaught, 485 F2d 320 (CA 4, 1973).
See also Davidson v United States, 61 F2d 250, 254-255 (CA 8, 1932); Linde v United States, 13 F2d 59 (CA 8, 1926); cf. Bell v United States, 2 F2d 543, 544 (CA 8, 1924). "[P]roof of the substantive offense alone is not sufficient to establish the crime of conspiracy to commit such offense.” Gebardi v United States, 57 F2d 617, 618 (CA 7, 1932) (dictum) rev’d on other grounds, 287 US 112; 53 S Ct 35; 77 L Ed 206 (1932); United States v Heitler, 274 F 401, 405 (ND 111, 1921), ap’d 289 F 1021 (CA 7, 1923). "[T]he fact, alone, that two or more have committed the [substantive] crime charged is not sufficient to establish a prima facie case of conspiracy.” State v Carter, 326 So 2d 848, 854 (La, 1975).
See ALI Model Penal Code, § 5.03, Comments (Tentative Draft No. 10, 1960); Developments, supra, 72 Harv L Rev, pp 923-925; LaFave & Scott, Hornbook on Criminal Law, p 459.
The "group danger” rationale for permitting separate punishment for conspiracy is summarized and questioned in Goldstein, Conspiracy to Defraud the United States, 68 Yale L J 405, 413-414 (1959):
"Building on the assumption that a group is more to be feared than individuals acting separately, courts concluded that a plan by two or more persons to commit crime brings with it an increased likelihood that: the participants will reinforce each other’s determination to carry out the criminal object; the object will be successfully attained; the extent of the injury to society will be large; those who commit it will escape detection; and the group’s planning will have a long-term educative effect on its members, with schooling in crime the result. * ** * More likely, empirical investigation would disclose that there is as much reason to believe that a large number of participants will increase the prospect that the plan will be leaked as that it will be kept secret; or that the persons involved will share their uncertainties and dissuade each other as that each will stiffen the others’ determination. Most probably, however, the factors ordinarily mentioned as warranting the crime of conspiracy would be found to add to the danger to be expected from a group in certain situations and not in others; the goals of the group and the personalities of its members would make any generalization unsafe * * * .”
Developments, supra, 72 Harv L Rev, p 929.
Bolduc and Fralick pled guilty to reduced charges. Other persons charged as co-conspirators pled guilty or nolo contendere to various charges.
See, also, People v Guillett, 342 Mich 1; 69 NW2d 140 (1955); People v Liggett, 378 Mich 706; 148 NW2d 784 (1967); People v Widgren, 53 Mich App 375, 387; 220 NW2d 130 (1974). | [
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] |
Kavanagh, C. J.
On May 22, 1972 Gailen Hobbs was killed when the automobile he was driving plunged off an overpass bridge onto state trunkline highway 1-75. Suit was filed in the Court of Claims on October 9, 1973 alleging that the State Highway Department had been negligent in the design and construction of the bridge.
The defendant filed a motion for "accelerated judgment and/or summary judgment”, claiming that the Court of Claims lacked jurisdiction over the subject matter because the overpass was not a part of the state trunkline system. An amendment was then made to this "motion for accelerated and/or summary judgment” alleging that the action was barred due to plaintiffs failure to file the complaint or a notice of intention to file within one year after the claim accrued pursuant to MCLA 600.6431(1); MSA 27A.643KD (The Court of Claims Act).
The Court of Claims denied defendant’s original motion, but granted the amended motion.
The Court of Appeals reversed. 58 Mich App 189; 227 NW2d 286 (1975).
The parties and the Court of Claims believed that this case was controlled by the provisions of the Court of Claims Act, RJA 6431(1); MCLA 600.6431(1); MSA 27A.6431(1). That act requires that a claim against the state or a notice of intention to file such claim be brought within one year after the claim has accrued.
The Court of Appeals, however, based its decision on 1964 PA 170, MCLA 691.1411; MSA 3.996(111), the statute of limitations provision contained in the governmental liability act, which provides:
"(1) Every claim against any governmental agency shall be subject to the general law respecting limitations of actions except, as otherwise provided in this section.
"(2) The period of limitations for claims arising under section 2 of this act shall be 2 years.
"(3) The period of limitations for all claims against the state, except those arising under section 2 of this act, shall be governed by chapter 64 of Act No. 236 of the Public Acts of 1961.”
Both parties agree that this claim arises under § 2, which provides:
"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.” MCLA 691.1402; MSA 3.996(102).
The Court of Appeals held that because this action was brought under § 2, and because the period of limitation for these actions is two years, this claim was timely filed as it was brought within two years after it arose.
The Court found that the Court of Claims Act did not apply because of the express exception of subsection (3) of MCLA 691.1411; MSA 3.996(111), supra. Additionally, it noted that claims arising under § 2 are subject to a notice requirement different from and expressly exclusive of the notice provision in the Court of Claims Act.
Plaintiff, however, did not file notice within 120 days as required by MCLA 691.1404; MSA 3.996(104). Thus, defendant maintained, even if the Court of Claims Act did not control, plaintiff did not meet the time limits of the governmental liability act.
However, based on this Court’s decision in Reich v State Highway Department, 386 Mich 617; 194 NW2d 700 (1972), the Court of Appeals held the notice provisions of the governmental liability act unconstitutional. Since the claim was filed within the two-year statute of limitations period, the case was remanded to the Court of Claims for further proceedings.
Defendant alleges on appeal to this Court that the governmental liability act is not exclusive of the Court of Claims Act, that the notice requirements of the governmental liability act are not unconstitutional, and that even if we should decide that Reich controls and these notice requirements are void, the Court of Claims Act would still apply.
We agree with the Court of Appeals that the provisions of the governmental liability act, 1964 PA 170, MCLA 691.1402, MCLA 691.1411; MSA 3.996(102), MSA 3.996(111), control this case, exclusive of the Court of Claims Act.
Having determined that, however, we must consider that portion of the act which provides that notice be given within 120 days of the accrual of the cause of action. MCLA 691.1404; MSA 3.996(104).
In Reich v State Highway Department, supra, this Court held the 60-day notice provisions of 1964 PA 170 to be an unconstitutional denial of equal protection of the laws because these notice provisions served "as a special statute of limitations which arbitrarily bars the actions of the victims of governmental negligence after only 60 days. The victims of private negligence are granted three years in which to bring their actions. * * * Such arbitrary treatment clearly violates the equal protection guarantees of our state and Federal Constitutions. The notice provision is void and of no effect.” 386 Mich at 623-624.
Defendant in this case observes that the 120-day notice provision currently in effect as a result of 1970 PA 155, was not considered in Reich, and that this Court’s opinion in Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973), held that statu tory notice provisions are not necessarily unconstitutional. We agree.
In Carver v McKernan, supra, we held that the notice requirement contained in the Motor Vehicle Accident Claims Act, 1965 PA 198, § 18 as amended by 1968 PA 223, §1, MCLA 257.1118; MSA 9.2818, did not necessarily violate the constitution. We upheld this notice requirement on the sole basis that the failure to give notice within the prescribed time "may result in prejudice to the fund”. Accordingly, we held that " * * * only upon a showing of prejudice by failure to give such notice, may the claim against the fund be dismissed”. 390 Mich at 100.
In Carver, we acknowledged that
"[Statutes which limit access to the courts by people seeking redress for wrongs are not looked upon with favor by us. We acquiesce in the enforcement of statutes of limitation when we are not persuaded that they unduly restrict such access, but we look askance at devices such as notice requirements which have the effect of shortening the period of time set forth in such statutes.” 390 Mich at 99.
The rationale of Carver is equally applicable to cases brought under the governmental liability act. Because actual prejudice to the state due to lack of notice within 120 days is the only legitimate purpose we can posit for this notice provision, absent a showing of such prejudice the notice provision contained in MCLA 691.1404; MSA 3.996(104) is not a bar to claims filed pursuant to MCLA 691.1402; MSA 3.996(102).
The case is remanded to the Court of Claims for further proceedings.
Affirmed.
No costs, a public question.
Williams, Levin, and Fitzgerald, JJ., concurred with Kavanagh, C. J.
Coleman, J.
Relying on Reich v State Highway Dept, 386 Mich 617; 194 NW2d 700 (1972), the Court of Appeals reversed the Court of Claims dismissal of this action. This decision should be reversed. The Court of Appeals failed to apply a provision of the Court of Claims Act. Also, we find that the Reich analysis was incorrect.
PlaintiiFs husband was killed in an automobile accident on May 22, 1972. She filed a complaint in the Court of Claims on October 9, 1973 alleging that the department improperly designed and constructed the bridge where the accident occurred.
The department moved for "accelerated judgment and/or summary judgment”. One basis for the motion was that plaintiiFs claim was not filed within the time required by the Court of Claims Act. The motion was granted.
Although the trial judge and the parties agreed that the Court of Claims Act controlled, the Court of Appeals was "compelled to point out, * * * and base our decision on a different statutory scheme”. 1964 PA *170, the act establishing the limited tort liability of governmental units, requires as "a condition to any recovery for injuries sustained by reason of any defective highway” that the governmental agency be notified "within 120 days from the time the injury occurred”. MCLA 691.1404; MSA 3.996(104). ?
Mrs. Hobbs’ claim was filed 16 months after the accident. If the Court of Appeals "were to accept the statute as it now stands, such a failure on her part would permanently bar a recovery”. The Court said our decision in Reich "dictates a different result, however”.
Reich was one of three cases challenging the 60-day notice provision in the predecessor to MCLA 691.1404. The Court said the statute put governmental units "on an equal footing with private tortfeasors”. Requiring notice to the governmental unit "constitutes an arbitrary and unreasonable variance in the treatment of both portions of one natural class”. This was said to violate equal protection guarantees. The Court held that the "notice provision is void and of no effect”.
In our case, the Court of Appeals held that "increasing the time limit to 120 days has not prevented the 'diverse treatment’ condemned in Reich”. The notice provision "does not pass constitutional muster”. The Court said plaintiff’s claim was filed within the two-year statute of limitations in 1964 PA 170. The summary judgment was reversed.
The decision should not stand. Even if the 120-. day notice provision were void the notice provision in the Court of Claims Act must be applied. More importantly, we believe Reich incorrectly interpreted the statutory purpose.
The Court of Claims was described by Taylor v Auditor General, 360 Mich 146, 149; 103 NW2d 769 (1960), as "a court of legislative creation”. The 1908 Constitution designated the board of state auditors to hear claims against the state. The state administrative board succeeded it and was in turn replaced by the Court of Claims. The Const 1963, art 9, § 22 and art 6, § 26 provided for the court’s continuation.
In Manion v State Highway Commissioner, 303 Mich 1, 20; 5 NW2d 527 (1942), we said the "terms of the State’s consent to be sued in any court define that court’s jurisdiction to entertain the suit”. As a legislative creation, the Court of Claims "derives its powers only from the act of the Legislature and subject to the limitations therein imposed”. Also see Taylor and Farrell v Unemployment Compensation Commission, 317 Mich 676; 27 NW2d 135 (1947).
In authorizing suits against the state for injuries caused by defective highways (MCLA 691.1402; MSA 3.996[102]), the Legislature said they "shall be brought in the manner provided in” the Court of Claims Act. MCLA 691.1410; MSA 3.996 (110). MCLA 600.6431(1); MSA 27A.643KD says no claim "may be maintained against the state unless the claimant, within 1 year after such a claim has accrued” files the claim or notice of intention to file a claim. MCLA 600.6431(3); MSA 27A.6431(3) requires that the notice in all personal injury actions be filed "within 6 months following the happening of the event giving rise to the cause of action”.
Plaintiff has not challenged the state’s right to claim immunity. In establishing governmental liability for certain occurrences the Legislature said (MCLA 691.1407; MSA 3.996[107]) that otherwise "all governmental agencies shall be immune from tort liability” if exercising or discharging a governmental function. The act "shall not be construed as modifying or restricting the immunity” of the state "as it existed heretofore”. The statutory exception to immunity requires that claims be processed under the terms of the Court of Claims Act. Mrs. Hobbs’ claim was not timely filed in the Court of Claims.
The greater problem in this case is with Reich itself. The conclusion that the legislation waiving immunity put "[governmental tortfeasors] on an equal footing with private tortfeasors” is not correct. 386 Mich 623.
The theory of governmental immunity shields the state from liability unless the Legislature provides differently. 1964 PA 170, as amended, was designed "to make uniform the liability of * * * the state, its agencies and departments, when engaged in the exercise or discharge of a governmental function, for injuries to property and persons”. The legislation was designed "to define and limit such liability”. Unlike private tortfeasors, the state has to consent to be sued.
In surrendering some of the state’s immunity, the Legislature imposed restrictions. The claim must be brought in the Court of Claims. There is a two-year statute of limitations for claims alleging that injuries resulted from a defective highway. The Legislature also required that the governmental agency be notified of such claims "within 120 days from the time the injury occurred”.
We do not believe this legislation was intended to put governmental tortfeasors on an equal footing with private ones. The objective was to make uniform the liability of governmental units. The act defines and limits liability. It lifts the state’s immunity only for certain injuries. It describes how claims concerning these injuries are to be processed. It prescribes that a legislatively created forum will adjudicate the claim.
Justice Brennan’s dissent in Reich contained the correct analysis:
"The legislature has declared governmental immunity from tort liability. The legislature has provided specific exceptions to that standard. The legislature has imposed specific conditions upon the exceptional instances of governmental liability. The legislature has the power to make these laws. This Court far exceeds its proper function when it declares this enactment unfair and unenforceable.” 386 Mich 625, 626.
The majority in Reich erred in equating governmental tortfeasors with private.
This incorrect premise led to a conclusion that the notice provision was arbitrary and unreasonable. Under present legislation the claimant must give a notice within 120 days after the occurrence specifying "the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant”. We do not consider this an unreasonable requirement. In Swanson v Marquette, 357 Mich 424, 431; 98 NW2d 574 (1959), the city charter required that a notice of claim be filed. The Court said the notice given was sufficient. It quoted from Pearll v Bay City, 174 Mich 643; 140 NW 938 (1913), including this language:
" 'The purpose of the charter provision is to furnish the municipal authorities promptly with notice that a claim for damages is made, and advise them of the time, place, nature, and result of the alleged accident, and a sufficient statement of the main facts, together with names of witnesses, to direct them to the sources of information that they conveniently may make an investigation.’ ”
This was also quoted with approval in Meredith v Melvindale, 381 Mich 572; 165 NW2d 7 (1969) and Lisee v Secretary of State, 388 Mich 32; 199 NW2d 188 (1972). The Court in Hummel v Grand Rapids, 319 Mich 616, 624-625; 30 NW2d 372 (1948), equally divided on the question of whether a directed verdict should have been granted. Justice Sharpe’s opinion used this quotation from a New York case, Griffin v Town of Ellenburgh, 171 App Div 713, 715; 157 NYS 813 (1916):
" 'The purpose of the notice is to fairly apprise the officers of the town of the nature and circumstances of the accident, so that they may investigate the same fully and intelligently and with certainty as to the place and conditions of the accident, so far as the facts are concerned, with a view to making either an appropriate settlement of the claim or an effective and intelligent defense of the action, and if the notice serves that purpose the requirement of the statute has been effectuated.’ ”
Both opinions in Hummel referred with approval to Pearll.
The notice provision does not unreasonably restrict the right to seek recovery. It insures that the state will have a fair chance to defend any action. It permits the state to conduct prompt investigation and determine what should be done. The Legislature has permitted suits where none are allowed as a right. The 120-day notice provision is a reasonable condition on that permission.
The Court of Appeals should be reversed and the decision of the Court of Claims reinstated.
Lindemer and Ryan, JJ., concurred with Coleman, J.
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Kavanagh, C. J.
Plaintiff brought suit for wrongful death arising out of an automobile accident which occurred on May 6, 1972. The complaint alleged negligent design, construction and maintenance of an intersection per MCLA 691.1402; MSA 3.996(102). The suit was brought under the authority of the Court of Claims Act. MCLA 600.6431; MSA 27A.6431.
Notice of intention to file a claim was filed on January 7, 1974, and the complaint was filed January 29, 1974.
The Court of Claims granted defendants’ motion for accelerated judgment due to plaintiff’s failure to comply with the one-year notice requirement of the Court of Claims Act. MCLA 600.6431(1); MSA 27A.643K1).
The Court of Appeals reversed, based on its decision in Hobbs v Michigan State Highway Dept, 58 Mich App 189; 227 NW2d 286 (1975), in which it was held that the Court of Claims Act did not apply to cases brought under MCLA 691.1402; MSA 3.996(102). The Hobbs Court found that in such cases, the only notice requirement applicable was that included in MCLA 691.1404; MSA 3.996(104), but held that provision unconstitutional under Reich v State Highway Dept, 386 Mich 617; 194 NW2d 700 (1972). Accordingly, because the case was brought within the two-year statute of limitations period contained in MCLA 691.1411; MSA 3.996(111), the Court of Appeals held that it was timely.
We held today in Hobbs v Department of State Highways, 398 Mich 90; 247 NW2d 754 (1976), that the provisions of the governmental liability act, 1964 PA 170, MCLA 691.1402, MCLA 691.1411; MSA 3.996(102), MSA 3.996(111), control cases such as this, exclusive of the Court of Claims Act.
We also held that the rationale of Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973), applied, and we remanded to the Court of Claims to provide an opportunity for the state to show that it was prejudiced by the failure of the plaintiff to provide timely notice.
Accordingly, we affirm the ruling of the Court of Appeals in this case as well, and remand to the Court of Claims for further proceedings.
No costs, a public question.
Williams, Levin, and Fitzgerald, JJ., concurred with Kavanagh, C. J.
Coleman, J.
Relying upon its decision in Hobbs v State Highway Dept, 58 Mich App 189; 227 NW2d 286 (1975), the Court of Appeals reversed a decision of the Court of Claims. 60 Mich App 761, 762; 231 NW2d 521 (1975). We have voted to reverse the Hobbs decisions and vote to reverse this one. Plaintiff alternatively asks us to apply Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973), to these facts. We consider Carver to be an unwarranted intrusion into a legislative function and therefore overrule that decision.
James Kerkstra was killed in an automobile accident on May 6, 1972. The administrator of his estate filed a complaint in the Court of Claims on January 29, 1974, alleging that defendants were negligent in the operation of a traffic signal. The state moved for an accelerated judgment because the claim was not timely filed.
In an opinion filed June 3, 1974, the trial judge granted defendants’ motion. The court said that "the same sovereign who may enjoy absolute immunity from negligent acts, may statutorily prescribe specific procedures and conditions under which he will consent to liability”. The court found the legislative mandate to be "unmistakable” and required the filing of a claim within one year after it accrued. Defendants’ motion was granted.
The Court of Appeals reversed on April 28, 1975. It noted that the "parties and the lower court proceeded on the assumption that the Court of Claims Act controlled”. However, that Court said it "has recently held [in Hobbs] that under facts indistinguishable from those in the present case, the general highway statute * * * is controlling”. Because the claim was filed within that act’s statute of limitations, the accelerated judgment was reversed. 60 Mich App 762.
We have voted to reject Hobbs. We also vote to reject the test devised in Carver.
The Court was asked in Carver to decide "whether the notice requirement of * * * the Mo tor Vehicle Accident Claims Fund Act is unconstitutional as violative of’ due process and equal protection guarantees. Because the majority found "a legitimate purpose for the notice provision”, they were "constrained to hold that” the notice provision "does not necessarily violate the constitution”. However, the Court held that "only upon a showing of prejudice by failure to give such notice, may the claim against the fund be dismissed”. 390 Mich 98, 100.
The majority also devised a standard to measure the constitutionality of notice provisions:
"[A] particular provision may still be constitutionally deficient. We must consider the time specified in the notice for an extremely short period may be unreasonable. What period is reasonable in part depends on what purpose the notice serves. Because we cannot say with certainty what purpose the Legislature had in mind in providing for this notice, we are not prepared to say that the six month period provided by this statute is unreasonable as a matter of law.” 390 Mich 100.
Even if this test were accepted, plaintiff’s claim would fail. In Hobbs, we said the notice provision "insures that the state will have a fair chance to defend any action”. It permits prompt investigations and leads to informed decisions. The notice provision is a reasonable requirement.
We cannot, however, accept Carver’s judicial amendment of legislation. Justice Brennan’s dissent in Carver said the "power to legislate necessarily includes the power to declare the boundaries of prohibited or required conduct”. 390 Mich 102. In our case, plaintiff is able to proceed against the state only because the Legislature has elected in limited instances to lift the state’s immunity. The notice which the legislation requires (with which plaintiff did not comply) is reasonable.
Since Carver, time of notice has become a blurred concept tailored to fit the moment. Bad law is often made in trying to accommodate a specific party. However, the law does not permit amendment of legislation by court edict.
Statutory notice provisions have become as gnats to be brushed aside. Much legislation has been "rewritten” to suit the Court’s preference. The result is open-ended notice provisions wherever found, with a great variety of results. This uncertainty is aggravated by the recent trend to expand similarly our statutes of limitation. Justice Brennan’s dissent in Carver found "no justification for judicial legislation”. 390 Mich 103. We agree.
The statute permitting suits such as plaintiff’s says (MCLA 691.1410; MSA 3.996[110]) they shall be brought in the manner provided by the Court of Claims Act. That statute is authorized by Const 1963, art 9, § 22 which states "[procedures for the examination and adjustment of claims against the state shall be prescribed by law”. Plaintiff did not comply with the law.
There is no basis for the Court to add its own conditions to those provided by the Legislature. The requirements are reasonable. They are a legitimate legislative action. The Court should not impose Carver-type restrictions on them.
The Court of Appeals should be reversed and the decision of the Court of Claims reinstated.
Lindemer and Ryan, JJ., concurred with Coleman, J.
Also see the dissents in Komendera v American Bar & Cabinet Mfrs, 390 Mich 305, 319, 325; 212 NW2d 173 (1973), and West v Barton Malow Co, 394 Mich 334, 341; 230 NW2d 545 (1975). Komendera said we should not be "willing to assume amendatory legislative powers”. | [
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Fellows, J.
Plaintiff delivered to Bert Guilford a tractor under the following agreement:
“This agreement made this 8th day of October, A. D. 1925, by and between Contractors Equipment Company, Inc., of the city of Detroit, 5163 Martin ave., party of the first part, and Bert Guilford of the city of St. Helen, Michigan, party of the second part. Witnesseth, first: That the said party of the first part shall and will sell to said second party, the following described property, to-wit: One, only (used) 10-ton Holt tractor; one, only Port Huron trailer, $2,000, upon and after full payment therefor by said second party, of the sum of $2,000 with interest at the rate of 6 per cent, per annum, in the manner following:
“Fifteen hundred dollars upon the execution and delivery of this agreement. Five hundred dollars on or before the 1st day of March, A. D. 1926, with interest as above mentioned. Second: That said second party shall and will pay for said property said sum of $2,000 two thousand dollars and interest, at the time and in the manner above mentioned at the National Bank of Commerce in said city of Detroit, Michigan. Third: That the title to said property and right to possession thereto shall be and remain in said first party until said sum of two thousand dollars and interest is paid in full. Fourth: That in case of default in any of the payments of principal or interest when due as above specified, and for ten days, thereafter, the said first party shall thereupon forthwith have the right to declare this contract at an end, and to take immediate possession of said above described property, as well as all payments of principal or interest which shall have been made hereon, shall belong to and be retained by said first party and for use of and injury to said property.
“In witness whereof the parties hereto have hereunto set their hands and seals the day and year first above written.
“B. Guilford.”
Guilford paid in cash $1,500. He also gave a note for $500. Defendant runs a public garage at Rose City. He furnished gas and oil to Guilford, repaired the tractor, stored it, and did work for Guilford. No payment to plaintiff other than the down payment was made by Guilford although payment was past due. He did not pay defendant and defendant claimed a lien on the tractor, retained it in his possession, and advertised it for sale to satisfy his lien. Plaintiff, claiming title to it, brought this action of replevin and recovered judgment on a directed verdict. The grounds upon which the verdict was directed were not stated by the trial judge, although good practice requires this to be done; the briefs therefore discuss all the questions which were raised on the trial. As we have reached the conclusion that the agreement before us constituted a pure conditional sales agreement, we will not discuss the other questions.
The varieties of agreements used in the sale of per sonal property on time, the difference in the language employed, the divergence of provisions, have led to much discussion before and by this court in determining whether the instrument before the court on the different occasions was a conditional sales agreement or a chattel mortgage. Doubtless much of this litigation has been due to a desire on the part of the draftsmen of such agreements to make them as favorable to their clients, the vendors, as possible, and in many instances they have been framed with the view of making them susceptible of different constructions as different situations might arise, as expressed' by Mr. Justice Stone in National Cash Register Co. v. Paul, 213 Mich. 609 (17 A. L. R. 1416), using an old expression, .“to ride with the hunter and run with the hounds.” Among the later cases in which the question has been before us, attention may be called to Atkinson v. Japink, 186 Mich. 335; Luce v. Stott Realty Co., 201 Mich. 587; Young v. Phillips, 202 Mich. 480, (on rehearing) 203 Mich. 566; Niman v. Story & Clark Piano Co., 213 Mich. 397; National Cash Register Co. v. Paul, supra; Phillips-Michigan Co. v. Field Body Corporation, 221 Mich. 17; Heyman Co. v. Buck, 221 Mich, 225; Thomas Spacing Machine Co. v. Trust Co., 223 Mich. 165; Plummer v. Dilley, 223 Mich. 372. No doubt skilful draftsmen have been able to make very close cases on this subject. It is likewise true that some of the profession have not at all times acquiesced in and approved all the decisions. After Young v. Phillips, supra, went down it was urged that we had misapplied the earlier cases and especially Atkinson v. Japink, supra, and we granted a rehearing, upon which we reached this same result and adhered to our former opinion. In due course of time we had four cases involving the question before us. It was urged that some judges and some lawyers did not understand our decisions on'the subject, and it was suggested that we should go over the ground at length. The four cases went down the same day: Burroughs Adding Machine Co. v. Wieselberg, 230 Mich. 15; Grinnell Bros. v. Moy, 230 Mich. 26; Federal Commercial & Savings Bank v. Machinery Co., 230 Mich., 33 (43, A. L. R. 1245); and Nelson v. Viergiver, 230 Mich. 38. In the Grinnell Bros. Case, it was not necessary to decide the question, but in, the other cases the subject and the authorities were reviewed at length.
In view of the full discussion in the cases noted, it will not be necessary to quote from or again discuss the cases. We are satisfied that, under all the authorities, the contract before us is a pure conditional sales contract. It is true that there was attached to it the affidavit required on a chattel mortgage, and defendant’s counsel relies on National Cash Register Co. v. Paul, supra. That case was a close one, and the contract of doubtful construction, one we were called upon to construe. The affidavit was noted by Justice Stone as one of the “earmarks” of a chattel mortgage, but the case does not go beyond that. It is also pointed out that a note was given. The contract did not require the giving of a note, but one was given. It was apparently sent through the bank for collection but had not been paid. In Federal Commercial & Savings Bank v. Machinery Co., supra, it was said by Mr. Justice Clark, who wrote for the court:
“That the agreement required the buyer to give negotiable promissory notes, or negotiable trade acceptances, for the deferred installments of the purchase price, or that they or either of them were in fact given, is not inconsistent with the retention of title in the seller pending payment, and does not of itself characterize the instrument as one for security in the nature of a chattel mortgage.”
In addition to the cases there cited on this question, see Atkinson v. Japink, supra; Boudeman v. Arnold, 200 Mich. 162 (8 A. L. R. 789). The contract before us is singularly free from ambiguity requiring construction. It is notably free from expressions which taint it as given for security. It lacks the giving of options and the election of different remedies. In fact, considering its terms alone, plaintiff had the right to do but one thing in case of default, i. e., recapture its own property. It is a pure) conditional sales agreement, and it was not necessary for plaintiff to 'file it in order to protect or retain its rights in the property.
The judgment will be affirmed.
Fead, 'C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Sharpe, J.
On September 23, 1927, defendant filed an affidavit and bond to secure an appeal from a judgment rendered against him in justice’s court in the city of Detroit. The return of the justice was filed on October 4th. On October 20th, the plaintiff’s attorney was notified by the assignment clerk that the case was set for trial on the 31st. On October 25th he filed and served a motion to dismiss the appeal for failure of defendant or his attorney to serve notice of such appeal within five days after the return on appeal was filed in the office of the county clerk, as required by Circuit Court Rule No. 11 (237 Mich, xxxiii). On October 27th defendant’s attorney gave plaintiff’s attorney notice in writing “of the pendency of such appeal.” On October 29th the motion to dismiss came on for hearing before Judge Moynihan, and an order of dismissal was entered. Defendant seeks review by writ of error.
Both the Constitution (Art. 7, § 5) and the statute (3 Comp. Laws 1915, § 12019-) impose on this court the duty to establish, modify, amend and simplify the practice in this court and in all other courts of record by general rules. Circuit Court Rule No. 11 reads as follows:
“In appeal cases, where the party upon whom papers are sought to be served has not appeared by attorney, service may be made upon such party personally, or by mail in the manner provided for service on attorneys by mail; and if there be two or more such parties who are partners, service upon one shall be sufficient. If such party is not a resident of the State, or if his place of residence cannot be ascertained, such papers may be served by posting the same in a conspicuous place in the office of the county clerk, and if the post-office address of said party be known or can be ascertained, a copy shall be mailed to him. But proof of such service, mailing or posting, and the facts authorizing such posting, shall be filed before the court shall take any action on the strength thereof.
“In cases of appeal from a circuit court commissioner or the justice’s court, the party appealing shall serve notice of the appeal upon counsel for the opposite party in the court below, if the opposite party had counsel in the court below, or if not, then such notice shall be served upon the opposite party personally or by mail in the manner provided for service upon attorneys by mail, within five days after the return on appeal is filed in the office of the county clerk.”
•The first paragraph above quoted provides that proof of such service “shall be filed before the court shall take any action on the strength thereof.” The second paragraph provides for the time and manner of service. It explicitly provides that the notice of appeal shall be served “within five days after the return on appeal is filed in the office of the county clerk.” When the return of the justice is made and filed, the court acquires jurisdiction over the subject-matter. But no jurisdiction is acquired over the person of the appellee until proof of the service of notice of appeal has been filed, as required by the rule. In that respect “the notice is much the same as that of an original summons.” 16 R. C. L. p. 403.
“If the required notice is not given in the manner prescribed by law the appellate court will acquire no jurisdiction, except to dismiss the appeal or affirm the judgment below.” 35 C. J. p. 773.
In construing a statute requiring notice in certain cases appealed from the probate court, this court said in Hosey v. Ionia Circuit Judge, 120 Mich. 280:
“The statute requiring notice to the adverse party is mandatory, and, until the party is given such notice, the circuit court has no jurisdiction over the parties to the record.”
The rule contains no provision for the court, to which the appeal has been taken, extending the time within which such service may be made. In our opinion the language is mandatory.
The order is affirmed, with costs to appellee. In view of the question presented and the conclusion reached, we do not decide whether such an order may be reviewed by writ of error.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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] |
North, J.
This is a will contest involving the validity of a will left by Ellen B. Shuler who died at the age of 84 years. The testatrix was survived by three sons, Albert, Fred, and William J. Shuler, and a daughter, Helen S. Cook. Albert’s daughter, now Mrs. Minnie Haines, was reared from earliest childhood by the testatrix, and is named in the will. The son William J. contested the will on the grounds of mental incompetency of the testatrix and of undue influence. The circuit judge held there was no proof of mental incompetency, and that issue was withdrawn from the jury, but, on the ground of undue influence, the jury found in favor of the contestant and disallowed the will. The proponent has appealed.
The will herein involved made substantially an equal division of the estate among the four children of the deceased, excepting that the share which naturally would have gone to Albert was equally divided between him and his daughter, Minnie Haines. The contestant evidently hoped to profit by the disallowance of this will, because, by the terms of a former will and codicil, executed September 4, 1925, the bulk of the estate was left to him.
At the conclusion of the proofs the proponent moved for a directed verdict, and later moved for judgment non obstante veredicto. • Each of these motions was denied. The appellant now urges that he was and is entitled to have a judgment allowing the will; but, in the event the record does not sustain this contention, he asserts that because of errors assigned the case should be reversed and a new trial ordered.
An attempt to fully review the testimony of the numerous witnesses who appeared at the trial would not be helpful. A careful consideration of the record convinces us that there was an issue of fact for the jury on the question of undue influence.
Error is assigned on that portion of the charge wherein the court submitted to the jury the question as to whether the testatrix was unduly influenced by excessive kindness of her daughter, Mrs. Helen Cook, with whom she resided from May 29, 1926, to the date of her death, March 3, 1927. The will in issue was executed July 30, 1926. The charge to the jury contained the following:
“It (the exercise of undue influence) does not mean you have got to do it with a club; you might do it with kindness; one might be so kind and gentle as to unduly influence by excessive kindness. Ordinary kindness and care that Mrs. Cook would be expected to give to her mother would not be evidence of influence. If her kindness was undue, or extreme kindness, it might overcome the free will of the testatrix or deceased just as much as if she had been cruel to her and harsh with her.”
There is testimony that Mrs. Ellen Shuler said Mr. and Mrs. Cook were “wonderful” to her, and that they couldn’t do more for her; but we think this general statement did not justify submitting to the jury the question of undue or excessive kindness. A fair and reasonable construction of the testimony discloses that Mrs. Cook’s attitude towards her mother was that of a dutiful daughter and nothing more. Courts should not administer the law in such a way as to penalize the faithful discharge of filial duties. Submitting this issue to the jury without proof in the record tending to sustain the same was prejudicial error. Kiesgen v. Harness, ante, 422.
Error is also assigned on the ground that, under the record in this case, the contestant’s claim that the will was rendered invalid because of the insane delusions of the testatrix should not have been submitted to the jury, for the reason that there was no proof tending to sustain such a claim. In the brief filed by the appellee the contention is made that there is proof in the record tending to show that the téstatrix was afflicted with the following insane delusions: (1) That her son William would place her in a home for feeble-minded; (2) that William was not staying at the old home, and that he would not answer the telephone when it rang; (3) that the testatrix was afraid of her son William, and had made a will under his dictation; and (4) that she had been given dope during the period of her illness, and that her son William had been responsible for this. The first of the matters above claimed to be an insane delusion was mentioned only once in the record, and then it was referred to as a laughing matter by the witness, Who said, “Of course she (testatrix) laughed about it, and so did I.” This did not tend to prove an insane delusion in consequence of which Mrs. Shuler would be inclined to disinherit her son William. It was simply a joke between two elderly ladies. Mrs. Shuler’s belief as to William’s not being in the old home, and not answering the telephone, and also to the circumstance that his conduct at times was such that she had reason to be afraid of him, and that she had signed a will favoring William, under the proof, appears in each instance to pertain to matters of fact and was in no sense an insane delusion. There is some testimony tending to show that Mr. and Mrs. Cook may have deceived the testatrix as to such matters, but that would not constitute an insane delusion. The remaining circumstance of “dope” having been administered to the testatrix during the period of her illness evidently had reference to the fact that she was taking medicines because of her unfortunate physical condition in 1925 and 1926. She was of the opinion that the medicines were not helping her. The record shows she sometimes took the medicine without assistance and at other times it was given to her by her son William. She evidently had little faith in it and it was not overstrange that she referred to it as. “dope.” On this subject William testified:
“Dr. S. E. Gustin prescribed digitalis for her heart, practically the only medicine mother took the last sickness, but mother thought it wasn’t doing her much good, and sometimes he would give her a few pills in water to satisfy her more than anything else. I never gave mother anything in the way of medicine or drugs except what Dr. Gustin prescribed.”
The record would not justify the conclusion that the testatrix had an insane delusion of this character, for the reason that it cannot be said it was not without some basis in fact. Mrs. Shuler’s impression as to having taken “dope” may not have rested on facts which were very convincing, but they are sufficient to overcome the imprecation of an insane delusion. In re Barlum’s Estate, 240 Mich. 393. That the proof did not justify submitting the question of insane delusions to- the jury is further indicated by the assertion in the appellee’s brief that “Contestant contended and offered to prove that she (testatrix) had never departed from normal mentality.” And while it is not a controlling circumstance, the natural justice of this will which gave the contestant an equal share in the estate with the other three children surely adds nothing to his claim that it was the product of an insane delusion.
Other questions are raised by assignments of error, but, as far as they are meritorious, it is improbable that any of them will be presented under like circumstances at a retrial of the case, and for that reason we will not review them here. Because of the errors above indicated, the case must be reversed and a new trial ordered. The appellant will have costs in this court.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
These cases involve the same issue, were heard together in the court below and here, and will be disposed of in one opinion. In each case plaintiff instituted attachment proceedings against defendant, the grounds for the issuance of the writ being thus stated:
“Deponent further says that he has good reason to believe and does believe that the said Robert E. Boyle is not a resident of the State of Michigan and has not resided therein for three months immediately preceding the date of this affidavit, or that the said defendant is about to assign, dispose of or conceal some of his property within the State with intent to' defraud his creditors, or said Robert E. Boyle, defendant, is about to remove some of his property out of the State of Michigan with intent to defraud his creditors.”
The defendant petitioned to dissolve the attachment on the ground that the’ allegations in the affidavit were untrue, and that the affidavit was defective. The trial judge denied the petition and we allowed this writ of certiorari to review the proceedings.
. There is a 'motion to 'dismiss the writ. None of the grounds are tenable, and but one requires consideration. The defendant did not print in the record the return of the circuit judge. This he should have done. But the petition for certiorari had attached to it as exhibits copies of the proceedings, and an examination of the return in the clerk’s office shows that it also had copies 'of such proceedings. It would have been but a duplication of matters already before us to have printed the return and we do. not think the failure to so print the return deprives us of jurisdiction.
It will be noted that the affidavit is in the alternative. It does not charge that defendant has brought himself within any of the grounds authorizing the issuance of the writ (3 Comp. Laws 1915, § 13029). What is charged is that either (1) he is a nonresident, or (2), is about to dispose of his property, or (3), is about to remove it from the State. But it does not charge any one of the three. We quote from some of our former holdings:
“This_ affidavit is fatally defective because in the alternative. It should show the existence of either cne cause or the other; which this affidavit does not.” Kegel v. Schrenkheisen, 37 Mich. 174.
“A denial in the alternative is -good, while an affirmation in' the alternative is bad. Where one denies that he has done either of several acts charged, it naturally implies a denial o'f all; but where one alleges that another has done either one or the other of several acts^ it naturally means that he has done but one of the several acts charged, and the accuser is unable to tell which. In such case, the accused is unable to tell which one of the charges he must prepare to meet. The proposition needs no further argument.” First National Bank v. Steele, 81 Mich. 93.
“Statutory attachment proceedings are in derogation of the common law, and the proceedings thereunder must be strictly complied with. The affidavit was in the alternative, and is conceded to be void, under Kegel v. Schrenkheisen, 37 Mich. 174. The affidavit in these proceedings is jurisdictional, and, if 'the affidavit is void, the whole proceeding falls with it.” Dutcher v. Insurance Co., 131 Mich. 671.
None of the cases relied upon by plaintiff sustain a contrary holding. Detroit Free Press Co. v. Medical Ass’n, 64 Mich. 605, held that there might be several ground's for issuing a writ of attachment, but it did not hold that they could be alleged in the alternative. In Emerson v. Steel & Spring Co., 100 Mich. 127, and Jones v. Peek, 101 Mich. 389, the disjunctive “or” was used, but in both cases it was held that but one ground of attachment was alleged. Here in the alternative three grounds are alleged. The affidavit was fatally defective.
The order here under review will be vacated with direction- to quash the attachment.
Wiest, Clark, McDonald, and Sharpe, JJ., concurred. North, 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.
John Hovey suffered a compensable injury November 15, 1922. Compensation for total disability was paid to him by the defendants herein up to and including the day of his death, August 10, 1926. His widow gave notice of her claim for compensation as a total dependent September 2, 1926. The defendants served notice of their defenses, one of them being that “the claim is barred by the statute of limitations.” The matter was regularly brought on for hearing before a deputy commissioner, who found that the widow as plaintiff was “not entitled to recover compensation * * * as the claim for compensation was not made within two years from the date of the injury, as required by law.” This determination was reviewed by the commission and affirmed. The plaintiff has brought the case to this court by certiorari.
It is contended in behalf of the plaintiff that the notice of the defense is not sufficiently definite in that it does not specify the particular “statute of limitations” relied upon. This question was not raised at the hearing before the deputy commissioner, and in disposing of it on review the following is stated in the opinion rendered by the commission:
“The transcript has been carefully read. The commission find numerous objections offered by plaintiff’s attorney but are unable to find where plaintiff’s attorney offered any objection on this particular point, during the hearing. We have, also, examined his claim for review, and do not find where he asked that defendant be required to make his defense more specific. If there was any merit to this particular point it was not raised at the hearing before the deputy commissioner and is, therefore, waived.”
The foregoing ruling was correct and is approved by us.
Whether plaintiff’s claim is barred will be determined by the construction to be placed upon section 15 of part 2 of Act No. 64, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 5445), which, so far as here involved, is as follows:
“No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer within three months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, within six months after said death; or, in the event of his physical or mental incapacity, within the first six months during which the injured employee is not physically or mentally incapacitated from making a- claim: Provided, however, That in all cases in which the employer has been given notice of the injury, or has notice or knowledge of the same within three months after the happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within six months after the happening of the accident, but does develop and make itself apparent at some date subsequent to six months after the happening of the same, claim for compensation may be made within three months after the actual injury, disability or incapacity develops or makes itself apparent to the injured employee, but no such claim shall be valid or effectual for any purpose unless made within two years from the date the accidental personal 'injury was sustained.” * * *
The precise question is whether the two-year limitation applies to every type of claim included within the above section, or whether the expression “Nq such claim shall be valid or effective,” etc., refers only to those claims incident to which the “injury, disability or incapacity” does not develop within the first six months’ limitation. The opinion of Justice STEERE in Millaley v. City of Grand Rapids, 231 Mich. 10, seems to have been misconstrued as holding that the limitation of making the claim within two years from the date of the injury applies to every claim included in the section. We think the contrary clearly appears from the opinion wherein it is said:
“In 1919 the legislature amended and revised that section (15) of the act, retaining the six months’ limitation after the death of the injured party.”
If this six months’ period is “retained” in the amended statute, as Justice Steere rightly stated, then the claim of the plaintiff herein is not barred. From the context of this section it clearly appears that the expression “no such claim shall be valid,” etc., applies to and limits only the type or class of claims specified in the proviso of which this expression is a part, i. e., those wherein the actual injury does not develop or become apparent within six months. The preceding part of this section includes the ordinary claim which is barred by the terms of this part of the statute unless presented within six months after the date of the injury. Surely it would be a strained construction to attempt to apply a two-year limitation to a claim which was already limited to a six months’ period for presentation. If the two-year limitation were applicable to claims of dependents, then in every instance where the injured employee lived more than two years after the date of his' injury, as in the instant case, his dependents could have no right of compensation. While this circumstance is not conclusive as to the proper construction of this’section, surely it is somewhat persuasive. If the legislature had intended to fix such a limitation it is fair to presume it would have couched it in language far more direct, simple, and concise than that found in this section. The limitation of two years applies only to the class of cases included within the first proviso of this section.
It is also urged by the defendants that even though the plaintiff’s claim is not otherwise barred, it falls within the general statute of limitations applicable to actions arising out of personal injuries (3 Comp. Laws 1915, § 12323), which provides that “actions to recover damages to person or property shall be brought within three years,” etc. This provision, if applicable, would not bar plaintiff’s claim, because her right to compensation did not accrue at the date of her husband’s injury, but, instead, it came into existence as a new cause of action on the date of his death. Curtis v. Slater Construction Co., 202 Mich. 673. The plaintiff properly presented her claim well within the stat utory limitation of six months from the date of her husband’s death.
Neither the deputy commissioner nor the commission when considering this claim on review determined whether the injury received by plaintiff’s husband was the proximate cause of his death. This is a disputed issue of fact which should be determined by the commissioners, who áre the triers of the issues of fact involved in claims of this character. The record is, therefore, remanded to the commission for further consideration and such disposition of the plaintiff’s claim not inconsistent herewith as shall be deemed just and proper.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Kavanagh, C. J.
This is an appeal from the Court of Appeals order remanding this case to the Court of Claims. We affirm.
On April 15, 1973, plaintiffs were involved in an accident on 1-696. On November 19, 1973 their attorney sent a letter to the State Highway Department informing it of the accident.
On June 3, 1974, complaint was filed in the Court of Claims alleging that defendant had breached its "duty * * * to keep and maintain its highways in a reasonably safe condition”.
Defendant filed a "motion for summary and/or accelerated judgment” alleging that the action was barred because the complaint was not filed within one year after the accident as required by the Court of Claims Act, MCLA 600.6431(1); MSA 27A.6431(1), and because the plaintiff failed to state a claim upon which relief could be granted.
The Court of Claims granted defendant’s motion for accelerated judgment due to the untimely filing of the claim or notice of intent to file a claim pursuant to MCLA 600.6431(1), 600.6431(3); MSA 27A.643K1), 27A.643K3).
The Court of Appeals reversed and remanded to the Court of Claims "for further proceedings provided the involved department fails to show it was prejudiced by plaintiffs’ noncompliance with the applicable provisions of the Court of Claims Act. MCLA 600.6431(3); MSA 27A.6431(3).”
We held today in Hobbs v Department of State Highways, 398 Mich 90; 247 NW2d 754 (1976), that the provisions of the governmental liability act, MCLA 691.1402, 691.1411; MSA 3.996(102), 3.996(111), control cases such as this, exclusive of the Court of Claims Act. We also held that the rationale of Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973), applied, and remanded to the Court of Claims to provide an opportunity for the state to show that it was prejudiced by the failure of the plaintiff to provide timely notice.
The complaint in the case at bar was filed within the two-year statute of limitations period contained in MCLA 691.1411; MSA 3.996(111), as were those in Hobbs, supra, and Kerkstra v Department of State Highways, 398 Mich 103; 247 NW2d 759 (1976).
Accordingly, we affirm the Court of Appeals and remand to the Court of Claims for further proceedings.
No costs, a public question.
Williams, Levin, and Fitzgerald, JJ., concurred with Kavanagh, C. J.
Coleman, J.
The Department of State Highways is appealing a Court of Appeals decision which remanded this case to the Court of Claims "for further proceedings provided the involved governmental agency fails to show it was prejudiced by plaintiffs’ noncompliance with the applicable provision of the Court of Claims Act”. Pursuant to the decisions in Hobbs v Department of State Highways, 398 Mich 90; 247 NW2d 754 (1976) and Kerkstra v Department of State Highways, 398 Mich 103; 247 NW2d 759 (1976), we would reverse.
On April 15, 1973 plaintiffs were injured in a two-car automobile accident on 1-696. Their attorney sent no notice to the Court of Claims but only this form letter to the highway department on November 19, 1973, more than seven months after the accident:
"Re: Donald E. Appel vs.
State of Michigan & Detroit Edison Date of Accident: 4-15-1973 Location of Accident:
1-696 at Lasher [sic]'Road "Gentlemen:
"Be advised that this office represents the above-named in connection with claim for damages suffered due to the consequences of an accident as described above.
"If you are insured, please turn this letter over to your insurance carrier so that they may properly defend you in this matter. Also, contact this office immediately. If you are not insured, please contact us within five (5) days so as to avoid an immediate law suit against you. "Be further advised that under the laws of the State of Michigan, we hereby claim an attorneys’ lien on any and all proceeds received by our clients by way of settlement or collection of judgment.”
A vehicle claims adjuster responded on November 29 saying the department did not carry insurance for this type of accident and he could "see no involvement for the Department of State Highways”.
Plaintiffs filed a complaint in the Court of Claims on June 3, 1974 (more than one year after the accident). It alleged that plaintiffs’ car was side swiped, went out of control and struck a light pole. Claiming that the highway department had breached "a duty * * * to keep and maintain its highways in a reasonably safe condition”, plaintiffs sought awards totaling $3,500,000.
Defendant filed a motion for "summary and/or accelerated judgment” because the complaint was filed more than one year after the accident and also failed to state a proper claim. Plaintiffs responded and oral arguments were also held.
The Court found that plaintiffs "did not file their claim or notice of intent to file a claim within the time limitations specified in MCLA 600.6431(1) or MCLA 600.6431(3) and are barred from any further proceedings in this matter”. The Court of Appeals reversed and remanded to determine if defendant was prejudiced by this failure.
In Hobbs we said the "statutory exception to immunity requires that claims be processed under the terms of the Court of Claims Act”. Even if we assume that plaintiffs’ November 19 letter was a notice of claim, it was not filed in the Court of Claims or filed within six months of the personal injury accident. The statute was not followed.
The Court of Appeals recognized this but remanded on the basis of Hanger v State Highway Department, 64 Mich App 572, 575; 236 NW2d 148 (1975). Hanger concluded that our decision in Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973), "dictates that the accelerated judgment be set aside, and the cause remanded for a hearing to ascertain whether the State Highway Department was prejudiced by plaintiffs’ failure to give notice”. In Kerkstra we voted to overrule Carver. There, as here, the plaintiffs did not comply with the law.
Mr. and Mrs. Appel failed to file in the Court of Claims a notice of intention to file a claim. They not only failed to file the notice within six months, but they never did file such a notice. Neither did they file the claim itself within the six-months period (MCLA 600.6431[3]; MSA 27A.6431[3]). In fact, plaintiffs did not file the claim until after expiration of the final statutory deadline of one year (MCLA 600.6431[1]; MSA 27A.6431[1]).
In short, plaintiffs in no way complied with the time limitations set by the Legislature.
The Court of Appeals should be reversed and the Court of Claims affirmed.
Lindemer and Ryan, JJ., concurred with Coleman, J.
MCLA 600.6431; MSA 27A.6431:
“(1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths.
"(2) Such claim or notice shall designate any department, commission, board, institution, arm or agency of the state involved in connection with such claim, and a copy of such claim or notice shall be furnished to the clerk at the time of the filing of the original for transmittal to the attorney general and to each of the departments, commissions, boards, institutions, arms or agencies designated.
"(3) In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.” | [
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] |
McDonald, J.
The plaintiff seeks to review by certiorari the action of the circuit judge of Wayne county, Michigan, in refusing to issue a writ of mandamus to compel the defendant to break open a garage and levy on an automobile. On January 22, 1927, the plaintiff recovered a judgment against the Reliable Painting & Decorating Company in the sum of $5,692.50 in the circuit court of Wayne county, Michigan. An execution was issued .and placed in the hands of the sheriff for service. It was later returned milla bona,. On the same day an alias was issued and delivered to the sheriff with instructions to levy on a Buick automobile owned by the defendant company and then being kept in a garage in the rear of a dwelling house occupied by one Minnie Rosen, at 5795 Seminole avenue, Detroit, Michigan, the garage not being connected with the dwelling but within the curtilage. The sheriff refused to make the levy with out an indemnity bond. The bond was furnished. He then refused to make the levy on the ground that he had no right to break open the garage. The plaintiff petitioned the court for a writ of mandamus to compel him to do so. The usual order was issued and on the hearing the writ was denied.
An officer has no authority to break into a dwelling house to levy under a writ of execution and if the garage in question may be said to be a part of the dwelling house, the writ of mandamus was properly denied. In cases where crimes against the habitation, such as burglary, are committed in any of the' outbuildings within the curtilage or home inclosure, they are held to be a part of the dwelling house. In Stearns v. Vincent, 50 Mich. 209, 219 (45 Am. Rep. 37), it is said:
“In the law of burglary, the dwelling house is deemed to include whatever is within the curtilage even if not inclosed with the dwelling if used with it for domestic purposes. People v. Taylor, 2 Mich. 250; Pitcher v. People, 16 Mich. 142. This construction of the term is for the peace, repose and safety of families in the nighttime and it is made to include all those buildings, the forcible breaking of which for felonious purposes during the hours which peaceable and law-abiding persons give up to rest, would naturally cause alarm, distress and danger.”
This reason for treating all outbuildings as parts of a dwelling house where there is a criminal invasion of any part of the house inclosure by burglars, does not apply to such buildings when invaded by an officer seeking to levy on property under execution issued by the court. In such a case, the term “dwelling house” carries its ordinary and generally understood meaning. As was said by Mr. Justice Steere in People v. Labbe, 202 Mich. 513:
“Outside the legal profession, the average citizen of recognized education, intelligence, and standing would be surprised if not offended on -being told his hog house and cow stable, or other structure in his barnyard, were part of his private residence.”
The rule is correctly stated in 17 R. C. L. p. 179, § 76, as follows:
“Again, the maxim that ‘a man’s house is his castle’ extends only to his dwelling house; and therefore a barn or outhouse, not connected with the dwelling house, may be broken open to levy aii execution or attachment.”
The garage in question was within the curtilage,, but was not connected with the dwelling house. The-sheriff had authority to break it open and levy on the-automobile. The circuit judge erred in refusing the writ of mandamus. If necessary, the writ should issue. The plaintiff will have costs.
North, Fellows, Clark, and Sharpe, JJ., concurred.
Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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] |
Clark, J.
(dissenting). Plaintiff Emil Draeger., a mechanic residing in Grand Haven, and his wife, signed a subscription for 50 shares of defendant’s capital stock at $100 per share, to be paid in installments of not less than 50 cents per share per month, and, quoting:
“I agree to pay with this subscription a premium of three ($3) dollars per share to establish a reserve fund and defray the expenses of reorganization, extension, equipment and obtaining subscriptions to'the stock of the association.”
After they had paid $150 they claim to have discovered that they had been defrauded, and this suit to recover the sum paid was instituted. The substance in chief of the averred fraud is thus stated by Mr.' Draeger:
“He said that you could get your money back at any time, any time you wanted it, and he said we would guarantee you seven per cent, interest and possibly more if the company made it. He said that the shares were $3 a share. And he said we wouldn’t need to pay more than $3 a share, nor anything more.”
Mrs. Draeger testified to the same effect. They also testified that they did not’ understand the paper and relied on what wa's said to them by Mr. Pringle, the stock salesman, who contradicts them squarely. Other persons o.f the locality testified of like misrepresentations made to them by the salesman about thát time to induce them to subscribe. ' Plaintiffs had verdict and judgment. Defendant brings error.
Under the following decisions we think plaintiffs made a case for the jury: Schupp v. Davey Tree Expert Co., 235 Mich. 268; J. B. Colt Co. v. Cousino, 226 Mich. 518; Plate v. Surety Co., 229 Mich. 482.
The last case cited also answers the contention that plaintiffs were permitted, by their testimony of misrepresentation, to vary the terms of the contract. The testimony of the other persons of like misrepresentations made to them, as stated, was admissible to show a scheme or intent to defraud. Jordan v. Miller, 232 Mich. 8; Stowe v. Mather, 234 Mich. 385.
Judgment should be affirmed.
Wiest, J., concurred with Clark, J.
McDonald, J.
This judgment should be reversed. The plaintiffs are husband and wife. The wife did not sign the contract. Her husband testified:
“I signed for myself- and my wife. While it says that it is an application for installment shares at the top I did not see it, and when I signed this application to buy some shares of stock, and that was put there before me to sign, I did not read it and I do not think my wife read it. I am not in the habit of signing papers and agreements to purchase stocks although I have sometimes signed an agreement to purchase something that I didn’t see with a good reliable firm. * * * I have bought other stock in Chicago but I have never bought building and loan stock. * * * I have testified that I hadn’t read this application and I did not. I signed it because I thought the firm was honest, and Pringle (agent) was honest, so I didn’t take the trouble of looking it over and reading it. At the time that I signed it Pringle told me that it was $3 a share, and I could pay it off in installments. There was nothing said about that being contained in an instrument.”
The rule applicable to the facts in this case is well stated in McCormack v. Molburg, 43 Iowa, 561. There the defendant claimed to have been induced to enter into a written contract because of fraudulent representations of plaintiff’s agent. In disposing of this claim the court said:
“The defendant does not state that plaintiffs used any artifice to prevent him from reading the contract, nor does he state that he was unacquainted with the English language, or that he could not read. In fact no excuse whatever is given, except that he signed the contract relying on the representations of the plaintiffs as to its contents. This is inexcusable neglect, and the defendant must suffer the consequences of his own folly. The effect of such a rule as that claimed by appellant would be to render written contracts of but little practical value over those existing in parol only.”
In Gardner v. Johnson, 236 Mich. 258, there was involved a claim of fraud in the sale of foxes. The plaintiff claimed that she sold four foxes but the written contract called for six. It was there said:
“She was possessed of her faculties. She could read, might have done so, but did not read before signing, nor were the papers read to her. There is no testimony of procuring her signatures by' trick or artifice, no testimony of any act of fraud. Plaintiff says simply, T sold but four foxes,’ and from this it is argued that, as the papers call for six foxes, an issue of fraud is made. If that be the rule, where is the advantage of putting agreements in writing?”
In the instant case, the testimony shows that the plaintiff Emil Draeger was an intelligent man. He could read and write and had some experience in the purchase of stocks. No artifice, no means fraudulent or otherwise were used to prevent him from reading the contract, which was simple and understandable to a man of ordinary intelligence. He chose to sign it without reading. If he had read it, he would have been informed that any statement made by the agent and not contained in the writing was not binding on the association. If he had read it, he would have been informed that it was not the same as the oral contract which he had made with the agent. It was his duty to read it before signing, not alone for his own protection but as well for the defendant association.
An examination of the authorities will show that. courts have gone far to protect ignorant and illiterate persons who have been induced to sign contracts for the purchase of worthless stocks. But in this case, as far as appears by the record, the plaintiffs made a good .investment in shares of a building and loan association that is financially sound and in a prosperous condition. There seems to be no reason why this court should assume to act as guardian for them in this transaction. To allow persons of intelligence and mature age to repudiate their written contracts which they have' an opportunity to read before signing and can read would lend uncertainty to business transactions and render the making of contracts unsafe.
The judgment is reversed, with costs to the defendant.
Fead, C. J., and North, Fellows, Potter, and Sharpe, JJ., concurred with McDonald, J. | [
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Fellows, J.
(after stating the facts). This court has uniformly held that cases may be made by circumstantial evidence. This is not the adoption of the rule res ipsa loquitur, a rule not favored by this court. It has always been the rule of this jurisdiction that the jury should be permitted to draw legitimate inferences from the established facts. So to do is an entirely different thing than to permit the jury to speculate or guess what the facts are. In the instant .case the plaintiff’s proofs presented the following established facts for the consideration of the jury: (a.) That a railway track extended from defendants’ switching yard to and into plaintiff’s building; (b) that the three cars entered plaintiff’s building on this track; (c) that the cars could not have pushed their way onto plaintiff’s spur track through a steel curtain into- and through the factory and destroyed a brick wall at the further end unless there were some adequate force behind them; (d) the fact that an adequate force (a live switch engine) with three cars stood close by on the same track on which the three cars entered the building; (e) that the switch engine and yards belonged to defendants and was being operated by their employees.
Plaintiff’s declaration counted on the wilful and wanton acts of defendants’ agents, upon so-called gross negligence (but see Gibbard v. Cursan, 225 Mich. 311). It was a legitimate inference to- be drawn from the established facts that defendants’ employees sent the cars into this siding with such force that they crashed through a steel curtain, over two high bumpers near the end of 13Ó feet of track running through the building and through a brick wall. If they did so I think such agents of defendants acted in wanton disregard of the rights of plaintiff and that on the author ity of E. B. Muller & Co. v. Hines, supra, plaintiff here made a case for the jury.
I think the judgment should be affirmed.
Fead, C. J., and North, Wiest, Potter, and Sharpe, JJ., concurred with Fellows, J. | [
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Fellows, J.
(after stating the facts). 1. Plaintiff seeks to here enforce her individual rights, her rights as guardian of Marjorie, and her rights as administratrix of Morgan’s estate. She has the right to enforce her interest as widow of Morgan, and she may, as guardian, file a bill for partition. Gillmett v. Tourcott, 213 Mich. 617. The bill is, therefore, maintainable and we need not discuss whether an administrator alone may maintain such a bill. Defendants’ counsel now insist that no demand for partition was made before filing the bill, and that certain prerequisites were not complied with. It is doubtful if a demand for and refusal of partition was necessary. 30 Cyc. p. 219. But, upon the state of the pleadings, defendants may not now complain of failure to comply with minor technical prerequisites. In their answer they say:
‘‘Answering paragraph 12, these defendants say if plaintiffs desire a partition and division of said 80 acres of land, these defendants have no objection thereto. In fact, it being joint property, if either party desires a division he has the privilege of doing so by agreement or by invoking the aid of the court in the premises. These defendants to avoid expenses are ready and willing to make a division out of court if so desired by-plaintiffs. Otherwise, court procedure is necessary, notwithstanding the expenses and risks of such method.”
Plaintiff is entitled to partition or a sale if partition is not feasible.
2. Defendant insists he should not account for the use and occupation of the premises, and also insists that the amount fixed is too high. One cotenant may not recover rent from another cotenant who with his consent occupied the premises owned in common. But where the question arises in partition proceedings in equity, and particularly when the possession has been exclusive, this court has recognized that in adjusting the equities of the parties the one who has had the exclusive occupation of the premises should account, for its use and occupation. Fenton v. Miller, 116 Mich. 45 (72 Am. St. Rep. 502); Hunt v. Hunt, 109 Mich. 399; Schultz v. Dennison, 159 Mich. 259 (25 L. R. A. [N. S.] 1249); Wettlaufer v. Ames, 133 Mich. 201 (103 Am. St. Rep. 449); Noll v. Gundick, 212 Mich. 223. The case of Owings v. Owings, 150 Mich. 609, is not out of accord with the cited cases. In that case the court found that the possession was with the consent of the cotenants.
In the spring of 1924, John made arrangement with the administrator of his father’s estate to rent the farm for $500 a year, and, in addition, to pay the insurance. He went to the place but William drove him off with a pitchfork and continued to occupy the premises. Other testimony fixed the annual rental value at $500, and there is little to dispute it. This is the figure fixed by the trial judge, and we agree with him.
3. We are satisfied from the testimony in the case that William perpetrated a fraud on his brother Richard when he obtained his half interest in the farm for $1,000. ' If this is an appropriate proceeding to determine that question, and Richard is now in position to assert his claim of fraud, the decree as affecting the rights of these two brothers should be affirmed. While it is true that under guise of partition proceedings parties may not maintain a proceeding launched to try title alone, it is likewise true that a court of chancery is not ousted of jurisdiction because questions of title arise in partition proceedings, which in the interest of all the parties require the settlement of adverse claims before a judicial sale is ordered. 30 Cyc. p. 238. Two cases in this court which follow earlier cases, we think, demonstrate the correct practice where the question of title arises in partition cases. If the question is of a character requiring a determination of the title by an action at law, the court will stay the partition case until the question of title is settled by an action at law. Fenton v. Mackinac Circuit Judge, 76 Mich. 405, following and citing Hoffman v. Beard, 22 Mich. 59. If the question is one which may be heard and settled in equity, the equity court in which the partition case is pending hears and decides the question in that proceeding. Gillmett v. Tourcott, supra. This case but followed the early case of Page v. Webster, 8 Mich. 263 (77 Am. Dec. 446). In the Gillmett Case the court set aside the deed of minors to their mother and ordered partition- in the same decree, and in the Page Case the bill which was maintained sought the setting aside of a tax deed and partition in the one suit. We think it quite proper that questions of title be settled before there is a judicial sale of the premises.
Richard could not have maintained ejectment; his remedy to set aside the deed was through a court of equity. In Moran v. Moran, 106 Mich. 8 (58 Am. St. Rep. 462), it was said:
“It is true, as contended, that the uniform practice in this State has been to test the validity of deeds, given under the circumstances claimed in this case, by a bill to set them aside. No case is found where, under like circumstances, this court has permitted a deed for which a consideration had been paid, and which appeared to be executed with due formality, to be set aside in an action of ejectment. It has always been done in equity, where the interests of all parties could be protected.”
It is insisted that cross-plaintiff’s laches precludes him from the relief granted. The suit for the construction of the father’s will was pending for something over a year; it was some time after the decision in that case before Richard came into this case and here asked for affirmative relief. Delay alone will not bar relief. In the instant case William has not been harmed by it. He has been in possession of the premises for several years and up to date has paid nothing but the taxes. He has removed to his own farm some 400 rods of wire fence. He insured the buildings in his own name and on the loss of the barn received $2,800 insurance, no part of which has he been required to give up. Indeed, upon this record the delay has been quite profitable for him.
Finally, it is insisted that Richard may not maintain his cross-bill because he did not tender back the $1,000 received from William before bringing suit. In the recent case of Chaffee v. Raymond, 241 Mich. 392, the distinction between rescission at law and a suit in equity to rescind was pointed out and it was held that a tender before institution of the suit was not imperatively prerequisite to the filing of a bill to rescind. Here William had had the use of the premises for considerable time and as we have decided was obligated to pay for such use and occupation. He did not have $1,000 coming to him from Richard when Richard filed his cross-bill but in the cross-bill filed by Richard and his wife proffer of return of the $1,000 was made.
We have been unable to discover any good reason for reversing the decree, and it is affirmed. It ap peared at the argument that William was still in possession. The record discloses that the decree in the court below was entered nearly two years before the case reached us. The case must, therefore, be remanded for the adjustment of accounts, William, of course, must account for the use and occupation. If he has paid the taxes he-should receive credit. Plaintiff and cross-plaintiff will recover from defendant their costs in this court.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
North, J.
Markus Maurer and his wife, Celia Maurer, entered into an agreement with the defendants to purchase a moving picture business in the city of Detroit, which purchase included the personal property used in connection with the business and the lease of the property; the agreed consideration being §7,500. ■ As part payment in this transaction the plaintiffs gave the defendants $500 in cash, deeded to them real estate in Macomb county valued at $1,100, and also conveyed their interest amounting to $2,700 in another piece of land located in Detroit. This latter parcel was sold on a contract and the plaintiffs assigned their interest therein as vendors to the defendants. The balance of the consideration for the theatre was to be paid in monthly installments of $100 each. The plaintiffs took possession February 8, 1927, and soon discovered from actual operation of the business that the theatre was a losing venture. They continued to operate it until March 9, 1927, but in the meantime and on February 24th they filed this bill of complaint wherein they seek to have their agreement to purchase and the conveyances and transfers of their property to the defendants canceled, and an accounting between the parties to this suit. It also appears that the plaintiffs operated this theatre for two days, March 19th and 20th. The defendants answered March 3d denying that the plaintiffs were entitled to any relief. The hearing of the case was concluded April 13, 1927. The plaintiffs prevailed in the circuit court, and the defendants have appealed.
Relief is sought by the plaintiffs on the theory that they were induced by the fraudulent representations and deceit of the defendants to enter into this transaction. The particular fraudulent representation alleged in the bill is that the theatre could be and was being operated at a large profit, that it was producing profit of $100 per week; and as a part o'f the plan to induce the plaintiffs to believe and rely on such false representation, the defendants distributed tickets gratuitously about the community and thereby increasing the attendance at the theatre on the occasions when plaintiffs or their son, who was acting with them, were making observations as to the character and extent of the business. The defendants contend that the plaintiffs’ claim of being deceived and defrauded in the manner alleged is not sustained by the proof. We have given the record careful consideration and find abundant proof therein, as did the circuit judge, to sustain these allegations of the bill of complaint.
It is strenuously urged by the defendants .that relief should not be granted to the plaintiffs because they did not tender a return of the theatre until the hearing of the case. That they, therefore, did not place the defendants in statu, quo as far as within plaintiffs’ power so to do; and, further, the defendants claim the. plaintiffs did not act promptly upon learning of the alleged fraud, but, instead, continued to operate the theatre and appropriated the income therefrom. It is also claimed in behalf of the defendants that it nowhere appears in the record that the various items of personal property used in connection with the theatre were still there at the time restoration was tendered during the hearing of the case. Reference to the dates 'hereinbefore given will show that the plaintiffs acted with a rather unusual degree of promptness in attempting to secure redress by means of this suit. Process was served on the defendants on or before March 1st, and the theatre continued as a going business at least a week thereafter, and soon after the appearance of the defendants in the suit a petition for the appointment of a receiver was filed and thereafter one was appointed. We think the plaintiffs cannot be charged with laches.
In their contention as to the necessity of restoration of property as a condition precedent to relief, the appellants quote John Schweyer & Co. v. Mellon, 196 Mich. 597, but it does not sustain their position. While restoration or a tender of restoration is a prerequisite to recovery in a suit at law on the ground of rescission, it is not a condition precedent in this type of case, where cancellation or rescission is sought by bill in equity. This rule is well stated in Witte v. Hobolth, 224 Mich. 286, in the following words:
“It is said that plaintiff neither restored nor offered to restore to defendant the property received before seeking rescission. Neither was necessary. A bill in equity praying rescission proceeds on the theory that' there has been no rescission, not on the theory that rescission has already been accomplished. Were plaintiff to sue at law for the money he paid defendant he should, before suit, restore or tender restoration of, the property he received that by his own. act he thus may have legal right and title to the money. See 9 C. J. p. 1215; Jandorf v. Patterson, 90 Mich. 40.”
These plaintiffs have not only asked for rescission of the transaction, but they ask and therefore they made proffer of an accounting; and the court in equity could and would require a restoration of property so far as necessary to do justice as a condition of granting relief. The accounting contemplated necessitated this. Chaffee v. Raymond, 241 Mich. 392. While there is neither proof nor reason to suppose that some of the personal property used in connection with the theatre was not there at the time of the hearing, had such been the case as to minor items, it could have been adjusted incident to the accounting. Bailey v. Perkins, 224 Mich. 27. It was not necessary that the plaintiffs should restore possession of every item of personalty to the defendants or make a tender of such restoration before bringing this suit.
The record satisfies us that the plaintiffs were entitled to the relief granted in the lower court, and the' decree is affirmed, with costs to the appellees.
Fead, C. J., and Fellows, Wibst, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
McDonald, J.
This bill was filed to- ,set aside two deeds, one from the plaintiffs to the defendant DeMagnussun, and the other from DeMagnussun to defendant Morris Epstein. The plaintiffs were the owners of certain real estate in the city of Detroit, Michigan. On August 19, 1925, thgy sold it on land contract to a Mr. Zygmont and wife. Wishing to discount this contract in which they had an equity of about $2,700, they applied to defendant De Magnussun, who had advertised in the Detroit newspapers under the name of the American Discount Company that he would purchase land contracts at a low rate of discount. A sale was agreed'upon. The plaintiffs furnished an abstract of title and a day was set for closing the deal. At the time fixed, the plaintiffs went to De Magnussun’s office, signed the necessary papers including a deed of the premises, and received from DeMagnussun $25 in cash and his- seven-day note of $1,947 for the balance. The note was not paid when it became due. In the meantime, De Magnussun sold the property to the defendant Morris Epstein and absconded. When the plaintiffs learned that they would be unable to collect the note, they employed counsel who filed this bill charging fraud and conspiracy on the part of De Magnussun, Morris Epstein, and Samuel Sternberg, the notary who took their acknowledgment to the deed, and praying that the assignment of the contract and their deed to De Magnussun and his deed to Epstein be set aside. De Magnussun was not served with process and no appearance was entered by or for him. On the hearing, the plaintiffs abandoned the theory of the bill, and claimed that their signatures to the deed were obtained by trickery on the part of De Magnussun and Sternberg; that therefore it was a forgery and was not a valid deed in the hands of Epstein. The circuit judge adopted this view of the case, and entered a decree for the plaintiffs except as to the defendant Sternberg. The defendant Epstein has appealed. The plaintiffs also have appealed from that provision of the decree denying their relief against Sternberg.
It has been held by this court that where one is tricked into signing a deed believing it to be some other instrument, such deed is a forgery and is invalid in the hands of any one. Horvath v. National Mortgage Co., 238 Mich. 354, and cases therein cited.
Counsel are not in disagreement as to the law. The question is whether it is applicable to the facts as shown by the record. The plaintiffs went to the office of De Magnussun to sell their land contract. They knew that they were going to dispose of their entire interest in the property and they were willing to sign all of the necessary papers. The husband, Walter Kuczewski, had conducted the preliminary negotiations with De Magnussun and understood that they were not to be paid in full until a week after the papers were signed. His wife was not informed of this arrangement and expected that when the deal was closed they would be paid in cash. She testified:
“My husband didn’t say anything to me about not getting his money for a week. He didn’t tell me, because he was in such a hurry to come and get me, and while we came right back he didn’t have the chance to do there, he put it up to Mr. De Magnussun to tell me but he didn’t.”
She further testified that after the papers were signed—
“De Magnussun took out a check out of his pocket and he handed it to my husband and he says ‘you indorse this,’ and,my husband put his name on and he says ‘well,’ he says, T guess I will give you cash, I got that much in my pocket,’ and he did that. After he gave him the cash I thought it was quite funny; I says to my husband, ‘what is the matter, is that all he is giving you, that $25 ?’ And my husband .says, he says, ‘all right, we will get the receipt after while,’ and I didn’t understand it, because De Magnussun didn’t tell me and my husband didn’t tell that he didn’t intend to give him all of the money down * * * so I kind of hesitated and I said to my husband, I says, ‘no, that don’t go that way.’ I says to Mr. De Magnussun, I says, T want my papers back,’ and he says ‘what for, here is your note for the rest, the $1,500 you got coming,’ and he says, T will take care of the papers, you don’t have to take them back.’ I says, ‘well, look here, I didn’t get the money for my property, and I want my papers back.’ ”
Both of the plaintiffs say that they did not know that they were signing a deed. It clearly appears, however, that they knew they were signing whatever papers were necessary to convey their entire interest in the property. Mr. Kuczewski testified:
“Q. Now, you knew you had to sign the papers when you sell your property?
“A. Yes, sir.
“Q. And that is what you wanted to do?
“A. That is what I wanted to do.
“Q. And the whole trouble with it is that De Magnussun didn’t keep his promise to pay you a week later, isn’t it?
“A. I don’t think I signed that deed though.
“Q. No, but you did sign any paper that was necessary there?
“A. Yes.”
When the plaintiffs signed the papers, they knew that they had conveyed their entire interest in the property to De Magnussun. That is why Catherine Kuczewski demanded that he return the papers when she learned that payment was to be deferred for a week. She was not tricked into signing the papers. Her only complaint at the time was that they were not to get payment as she had expected. The plaintiffs’ testimony does not make a case of constructive forgery. They signed the papers willingly with full knowledge that they were passing .their interest in the property to De Magnussun. They trusted him as to the payment of the purchase price. They accepted a cash payment of $25 and his note for the balance payable seven days from date. Their unfortunate situation is due solely to the fact that De Magnussun was a swindler and did not fulfil his promise to pay. In view of these facts, the court is powerless to grant them relief against a bona fide purchaser who invested his money and obtained his deed from De. Magnussun in reliance upon the public records of title. The defendant Morris Epstein wasi an innocent purchaser. His deed is valid. The defendant Stern-berg ought not to have been brought into the case as a party defendant. He committed no wrong and, as to him, the court properly dismissed the bill.
As the decree of the circuit judge is not justified by the facts, it is reversed and a decree will be entered in this court in accordance with this opinion. The defendants Epstein and Sternberg will have costs.
North, Fellows, Wiest, Clark, 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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] |
Wiest, J.
This is a bill to obtain right to redeem from a mortgage foreclosure, under a claimed extension of time beyond the statutory period of redemption. In the circuit the bill was dismissed and plaintiffs appealed.
August 27, 1917, plaintiffs gave the American State Bank of Detroit a mortgage for $5,400 due in three years, on property in the city of Detroit, and made default in payment. The American State Bank foreclosed the mortgage by advertisement, purchased at the sale un’der bid of the amount due, with costs, and, October 6, 1920, received a sheriff’s deed, to become effective October 6, 1921, if the premises- were not redeemed. Plaintiffs did not redeem but claim an officer of the bank assured them that redemption- would be permitted later. January 20, 1919, plaintiffs gave a second mortgage, for $3,000, on the property, to defendants Niles and Peters. This- mortgage has not. been paid by plaintiffs nor foreclosed. October 4, 1921, two days before right to redeem expired, the American State Bank, for an expressed consideration of one dollar, but in fact payment of $.6,013.12, sold and, by a quitclaim deed, conveyed its interest in the property to defendants Niles and Peters. This deed had no revenue stamp. By warranty deed, dated October 7th, and acknowledged October 18, 1921, Niles and Peters, for an expressed consideration of one dollar, conveyed the property to defendant Peter A. Miller. This deed was dated the next day after plaintiffs’ statutory right to redeem had expired, and bore a fifty-cent revenue stamp. Niles and Peters lived in the State of Ohio, and Miller was their Detroit agent and attorney. Our disposition of the case lenders it unnecessary to mention subsequent transfers and contracts.
Plaintiffs allege an extension of time within which to redeem, and had the burden of establishing such an agreement. Mr. Chauvin testified to such an agreement by Gordon Fearnley, vice-president of defendant bank and in charge of the bank’s, mortgage matters, and Mr. Fearnley denied any such agreement. This situation sends us to consideration of established facts and circumstances from which we may gather an idea of probabilities supporting one claim or the other. Plaintiffs did not pay the interest on the mortgage promptly, let the taxes go until the mortgagee had to advance the money and exhibited an indifference upon the subject of redemption until late in the period, and then had no reasonable assurance of being able to make redemption. To say the least, the sidelights are not helpful to plaintiffs. We cannot find, by a preponderance of evidence, an extension of time for redemption.
Plaintiffs also contend that the deed from the bank to the second mortgagees, while right to redeem was open, operated in fact as a redemption and not a transfer of inchoate title. We find nothing in the evidence showing such to have been the fact, and it is conceded not to be so by operation of law.
The statute (3 Comp. Laws 1915, § 14958) provides that, if the premises are not redeemed, a sheriff’s deed vests in the grantee therein named, and his assigns, the right, title and interest of the mortgagors at the time of the execution of the mortgage.
The bank, as purchaser, at the foreclosure sale, possessed a sheriff’s deed, and. by virtue thereof had inchoate'title, and, by its quitclaim deed, conveyed the same to Niles and Peters. There having been no re demption within the period allowed by law, Niles and Peters acquired the title specified by statute. The holders of the second mortgage had a right to redeem and thereby increase their mortgage interest, if they cared to do so, and they also had an equal right to purchase the title of the bank. Sanderson v. Ressler, 223 Mich. 232; Gerasimos v. Continental Bank, 237 Mich. 513. If they had redeemed they would have thereby increased their mortgage interest. If they purchased, then their second mortgage merged in their title at the expiration of the redemption period. We think the holders of the second mortgage understood their rights, and their agent and attorney, who handled the matter and advanced the money to purchase, was well aware of the advantage under purchase, and the quitclaim deed was intended to consummate a purchase, just as it purports, and not a mere redemption.
But, it is said, the sheriff’s deed to the bank bore revenue stamps to- the amount of $5.50, while the deed from- the bank to Niles and Peters bore no stamps,' and we are asked to consider the absence of stamps on the latter deed as guiding evidence of an acquisition by the grantee'of the mortgage by redemption. Failure, if any, to properly place revenue stamps on the deed did not, under present law, render it inoperative as a deed. See Cole v. Ralph, 252 U. S. 286 (40 Sup. Ct. 321). The intent of that deed governs, and upon that question the evidence shows it was to consummate a purchase.
What we. have said disposes of the case and obviates need of mentioning the other defendants.
The decree is affirmed, with costs to defendants.
North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. Fead, C. J., did not sit, | [
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North, J.
In this suit the plaintiff seeks to recover in consequence of an alleged conversion for 876 5/6 bushels of potatoes which he claims he placed in the defendant’s warehouse at Buckley, Michigan, for storage. These potatoes were delivered by the plaintiff to the defendant in the fall of 1924. Upon receipt of the first load, defendant gave plaintiff its check for $200. The plaintiff testified: — “I never paid any of the $200 back; they were to take it out of the potatoes.” Each load was weighed in and the plaintiff accepted therefor a written memorandum of the weight and date of delivery which bore the words, “These potatoes.to be sold by May 1, 1925.” No other writing passed between the parties at the time relative to this transaction. Before this controversy arose the agent who represented the defendant in this matter had died, and in consequence thereof only a limited amount of oral testimony was taken from which other details indicative of the exact character of the original transaction might be determined. Plaintiff’s potatoes were mingled with those delivered by others at defendant’s warehouse; and, evidently with the knowledge of all concerned, the defendant sold and shipped out of this general supply from time to time as it saw fit. At various times after the delivery of these potatoes to the defendant’s warehouse and before May 1, 1925, the defendant urged the plaintiff to accept the then market price so that his potatoes might be shipped and the transaction closed. The plaintiff refused to do so. The market price of potatoes seems to have been on a decline during the winter and spring. By May 1st the price had gone down to 35 cents per cwt.; and the defendants sold the’ plaintiff’s potatoes at that price immediately after that date. The amount received was not sufficient to fully repay the $200 originally advanced to thé plaintiff; but the balance was deducted by the defendant from a sale of other potatoes made by plaintiff to the defendant May 29th. This was done with plaintiff’s knowledge and without objection on his part. There was a sudden rise in the market on or about May 29th or 30th; the price of potatoes went up to 75 cents per bushel; and on the latter date the plaintiff telephoned the defendant’s agent at Buckley he would accept the market price above quoted. Defendant thereupon took the position that it ’ had purchased these potatoes May 1st and plaintiff’s account therefor had already been settled. The plaintiff claimed the $200 was merely a loan to him; that he placed his potatoes with the defendant for storage only, and the latter had no rights in them except as a bailee. At the close of the proofs each of the parties moved for a directed verdict. The court held as a matter of law that the- plaintiff was entitled to recover, and left to the jury only the question of determining the market price of potatoes May 30th. The plaintiff had a verdict and judgment. The defendant has appealed.
The recovery by the plaintiff was on the theory that the defendant’s sale of these potatoes was unwarranted and constituted a conversion by it of plaintiff’s property which it was holding in storage. This presents the question as to whether the delivery by the plaintiff of his potatoes to the defendant under the circumstances resulted in a sale or a bailment. Since each of the parties moved for a directed verdict, it was proper for the trial judge to determine this as a question of law. Kyselka v. Assurance Co., 194 Mich. 430; City National Bank v. Price’s Estate, 225 Mich. 200, 212. The circuit judge held the relation of the parties to be that of bailor and bailee.
The weight receipts with the indorsement “these potatoes to be sold by May 1, 1925” were explained by the testimony and conduct of the plaintiff. He testified:
“It is the custom of Leonard, Crosset & Riley in taking any potatoes at Buckley, to give waybills when they are taken in. We generally surrender these waybills when we want to dispose of potatoes.
“Q. Did you ever turn in these waybills into the company?
“A. I did on the 30th of May.”
He further testified:
“If he (defendant) wanted to gamble on them he had that privilege to ship and it did not matter to me when they wanted to, but I wanted the privilege of selling when I got ready; that has always been rulable.”
Under the plaintiff’s own testimony the transaction was a sale of the potatoes by the plaintiff to the defendant with the right reserved in the plaintiff to accept the prevailing market price any time on or be fore May 1, 1925. Jones v. Kemp, 49 Mich. 9. At no time did the plaintiff demand the return of his potatoes, and obviously did not contemplate doing so. He knew they were intermingled with those delivered by others, and that the defendant had a right to ship out of the general storage from time, to time, and that it did so in the regular course of its business. On May 30th the plaintiff was insisting that the defendant accept the potatoes as a vendee. In.so doing he placed his own construction on the transaction as a sale and not as a bailment. By the express terms of the memorandum the plaintiff did not have the right to require the defendant company to pay him the market price on a date subsequent to May 1st. Since plaintiff failed to sell .on or before May 1st, by the terms of the written memorandum the transaction was automatically closed on that date at the prevailing market price. The defendant settled with the plaintiff on that basis, and he had no further right of recovery.
Many cases might be cited which are in accord with this determination, among those referred to in the note of 35 Cyc. p. 32, are the following: Redfern v. Stacy, 12 Ohio Cir. Ct. Rep. 36; Richardson v. Olmstead, 74 Ill. 213; Woodward v. Boone, 126 Ind. 122 (25 N. E. 812). See, also, Powder Co. v. Burkhardt, 97 U. S. 110. The receipt taken incident to the delivery of grain in Redfern v. Stacy, supra, was in almost the same terms as that in the instant case. It contained the provision: “To be sold not later than the middle of July without insurance.” The court held that the paper on its face was a contract for the sale of grain; that the plaintiff had the option to demand the prevailing market price at any time up to the middle of July and if he did not exercise that option on or before the middle of July the wheat was by the contract then sold to the one to whom it had been delivered. On this record it must be held the transaction was a sale and not a bailment.
The judgment is reversed, without a new trial.
Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.
The late Chief Justice Flannigan and the late Justice Bird did not sit. | [
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] |
McDonald, J..
This bill was filed for a determination of the rights of the parties in certain real estate, for a partition and sale thereof, and for an accounting. On November 25, 1925, William H. Marshall was the purchaser on land contract from the Hendrie Company, Ltd., of lots 47, 48, 49, and 50 of Hendrie’s private plat of Connors and Mack Avenue subdivision in the city of Detroit, Michigan. The purchase price was $7,600, upon which there was paid $760 on execution of the contract. The balance was to be paid in equal quarterly installments of $228. Mr. Marshall was unable to meet his payments. It is claimed that this was due to the fact that a sale and development of the property was retarded by condemnation proceedings brought by the city of Detroit. To secure financial assistance, he entered into a written agreement with the defendant, Kenk, pursuant to which he assigned the land contract to Kenk. The purpose of the assignment is stated in the agreement as follows:
“Now, therefore, the said party of the first part being desirous of bringing the said contract down to date, said first party offers to assign said contract to the said party of the second part if he will advance the necessary money in order that said contract may be paid to date and said party of the second part agrees so to do.”
In pursuance of this agreement, defendant paid $2,327.76 to the Hendrie Company, Ltd., which brought the contract up to date, but left an unpaid balance of $5,244 on the principal. The agreement provided that this balance should be paid out of the money received from the city on the condemnation proceedings. If the amount received was not sufficient for that purpose, Marshall and Kenk were each to advance an equal amount to make up the deficit and secure a deed from the vendor. Subsequently, lots 52 and 53 of the same subdivision were purchased by Mr. Marshall on land contracts which were also assigned to defendant, Kenk. No written agreement accompanied these assignments, but the plaintiff claims that they were made for the same purpose as the assignment of the contract for the purchase of lots 47, 48, 49, and 50; and that all of the transactions between the parties were in pursuance of the same general plan to acquire a contiguous strip of frontage on Mack avenue, the title to which was to temporarily rest in the defendant. Mr. Marshall died before any of the various contracts were fully paid. His administratrix asked Kenk for an accounting and for a division of the real estate. Mr. Kenk took the position that the assignments of the contracts to him were absolute and left Mr. Marshall no interest in the real estate; that the only interest Marshall had was the .right to share equally in the proceeds received from the condemna tion proceedings, and that there was nothing due his estate from that source because of a settlement which they had on July 13, 1926, when Mr. Marshall was paid $500, which he accepted as payment in full. The plaintiff then filed this bill asking for a division of the real estate and an accounting on the theory that the assignment of the contracts was not intended to be absolute, but that defendant, Kenk, was to hold the property in trust for Mr. Marshall and himself until such time as it could be sold.
On the hearing, the circuit judge held that Mr. Marshall had not parted with all of his interest in the property by his various assignments to Mr. Kenk, and that at the time of his death his interest was that of a tenant in common with Kenk. He made an accounting, determined the interest of each of the parties, and, as a physical division of the property could not fairly be made, he directed a sale thereof and the payment of the proceeds equally to the parties after reimbursing them for advances made by each. The defendant has appealed.
It is first contended by the defendant that equity has no jurisdiction in this case; that the plaintiff has mistaken her remedy; that if she has any action it is an action in assumpsit to recover her share of the proceeds from condemnation proceedings involving the property.
This contention is without merit. Mr. Marshall as vendee in a land contract was the equitable owner of the real estate described therein. He entered into an agreement with Mr. Kenk by which Kenk was to advance sufficient money to bring the payments on the contract up to date and to take an assignment thereof. On its face, the assignment seems to bear out the defendant’s claim that it was an absolute transfer of Mr. Marshall’s entire interest in the property. But it was made pursuant to the written agree ment. It was part of the same transaction. Both instruments must be read together. So reading them, it appears that the assignment was absolute only to the extent of the interest which Kenk was entitled to by reason of his investment. It was not absolute as to Marshall’s interest, which, under the assignment, Kenk held in trust for him. The agreement contemplated that a considerable sum of money would be received from the city as a result of pending condemnation. proceedings. There was in fact $6,000 subsequently received from that source. The agreement provided that this money should be applied in completing the payments on the contract so that a deed could be obtained. It was expressly provided:.
“And in case the amount is not sufficient to obtain the deed above named, then and in that case the parties shall advance equally the amount required to obtain said deed.”
If after the assignment Marshall had no interest in the property, why was it agreed that he should advance an equal amount with Kenk to obtain the deed? The agreement also contemplated with reasonable certainty that there would be a considerable portion of the four lots left after the city had taken what it required to widen Mack avenue, and so it was provided that when this was sold the’ proceeds should be divided equally between the parties after the advanceménts made by each had been deducted. In other words, subject to their advancements, each party had a half interest in the land though the title to the whole rested in Mr. Kenk. Both parties contributed to the purchase price. After the assignment, Mr. Kenk handled the property for the benefit of Mr. Marshall and himself. It was a trust relation contemplated by their agreement. A court of equity is the proper forum in which to enforce it. ,
It is next contended by the defendant that the agree ment between the parties was completed when the city had paid the award in the condemnation proceedings and that at that time he settled with Marshall for $500; that Marshall accepted the $500 as payment in full. This alleged settlement agreement was not reduced to writing and there was no written release of Marshall’s interest. As his interest was an interest in real estate, it could only be released by some written instrument. The trial court correctly so held.
Section 11975, 3 Comp. Laws 1915, provides:
“No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized by writing.”
In respect to the interest created by the agreement between the parties, the facts already referred to distinguish this case from Carr v. Leavitt, 54 Mich. 540, cited and relied on by the defendant. In that case, under an oral agreement, the plaintiff was merely acting as an agent for the defendant in negotiating for the purchase of certain real estate. The defendant contributed all of the purchase price. The plaintiff contributed his services for which he was to receive, not an interest in the land, but a part of the profits from its sale. The court said:
“But the plaintiff was to be neither purchaser nor seller, and the contract did not contemplate that in any contingency an interest in the land was to be conveyed to or vested in him. It contemplated only that in a certain event the plaintiff should receive a share of the moneys that a sale of the land should bring. His interest was therefore in these moneys and not in the land itself.”
It was therefore held that the oral contract between the parties was not “for the sale of any lands or any interest in lands” within the meaning of the statute of frauds and was valid though not in writing. In the instant case, the parties were contracting as principals. Both contributed to the purchase price. Mr. Marshall was the owner of a real estate interest which he desired to convey to Mr. Kenk. The contract related to this interest and not to a distribution of the proceeds from the sale of lands. It contemplated the transfer of the ownership in lands, and therefore came within the statute which requires such contracts to be in writing.
The agreement which we have been discussing refers only to lots 47 to 50 inclusive. As to them, the decree of the court is fully sustained by the evidence, and should be affirmed.
As to lots 52 and 53 the situation is different. It appears that Mr. Marshall bought them on contract, but Mr. Kenk made the initial payments and took absolute assignments of the contracts. If Mr. Marshall retained any interest or was merely to share in the profits, the record does not show it. There was evidently no written agreement as to their respective interests. Mr. Marshall is dead and Mr. Kenk is prohibited by statute from testifying. The plaintiff has not been able to establish by other evidence that Mr. Marshall retained any interest in these lots. As to them, the decree of the trial court is not justified by the evidence, and should be reversed.
The court made a correct accounting between the parties as to lots 47 to 50 inclusive, but the defendant claims that since the hearing and since the decree he has been compelled to make payments on the property. Such payments should be credited to the defendant in the decree to be entered in this court.
In respect to the plaintiff’s interest'in lots 47 to 50 inclusive, the decree is affirmed. As to her interest in lots 52 and 53, it is reversed. The defendant will have costs.
North, Fellows, Wiest, Clark, 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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] |
McDonald, J.
The plaintiff brought this suit to recover damages for personal injuries received while working in the manufacturing plant of the defendant. He was employed by the defendant as a punch-press operator. He had been thus employed for six months prior to his injury, and was familiar with the use of the press which he was operating at that time. It was a motor-driven press, and was set in motion by means of a foot treadle. At the time of the accident, it was being used to stamp out milk can covers from metal discs. The stamping of the disc required but a single operation. The disc was placed into the machine by hand, after which the operator pressed the treadle with his foot, the punch descended, stamped, and released the disc, and automatically ascended to its normal position. At the time of the injury, the plaintiff, using his left hand, had placed the metal disc into the machine, and had reached his right hand in to straighten it, when the punch descended and cut off four of his fingers. It is his claim that he does not know what set the machine in motion; that it was not because he placed his foot on the treadle; that he did not do that or any other act which would constitute contributory negligence.- As to the defendant’s negligence, it is not claimed that the machine was. not properly constructed or was out of repair, but the theory of the plaintiff is that the defendant was guilty of statutory negligence in that plaintiff was under 18 years of age and was employed by the defendant in an unduly hazardous occupation in violation of section 5332, 2 Comp. Laws 1915.
The defense was that the plaintiff’s injuries were due to his own negligence; that the employment was not unduly hazardous, and that, if it were so, the plaintiff is estopped from- raising the question because at the time of his employment he fraudulently represented that he was 18 years of age.
When the proofs were concluded, the defendant moved for a directed verdict. The motion was denied and the issues submitted to the jury. The plaintiff was given a verdict for a substantial amount. The defendant entered a motion for a new trial. The court denied a new trial but granted a motion for judgment non. obstante veredicto. The plaintiff has brought error. The defendant also has assigned error under section 14569, 3 Comp. Laws 1915.
To maintain his action, the plaintiff had the burden of proving that he was free from contributory negligence, and that he was employed by the defendant in an unduly hazardous occupation in violation of the statute. As we are convinced that he was guilty of contributory negligence as a matter of law, it will not be necessary to consider other questions.
The plaintiff was injured while working alone on a press which was of proper construction and in perfect order. It could not be set in motion except by some act of the operator. The treadle was guarded by a wooden rail running from the front to the back of the machine,'so that, after the metal discs were stamped and released, they could not fall on or against it. The machine was not in continuous operation. It stopped as soon as it had stamped the disc, and started again only when pressure was' applied to the treadle. The admitted facts and circumstances were such that nothing but some human agency could have started the machine in motion at the time of the accident. Who did it? If it was the plaintiff, his act was negligent, caused the injury, and bars recovery. The operation was entirely within his control. No other person was present. He must haye applied his foot to the treadle while his right hand was under the punch. There is no other way of accounting for the accident. There is no evidence that he did not do so except his statement to that effect given on his direct-examination, which he qualified on cross-examination as follows:
“Q. You may have unconsciously put your foot on there?
“A. I wouldn’t say that I did.
“Q. You would not say that you didn’t do it?
“A. I said that I don’t remember how I did it.
“Q. So that you couldn’t positively say that you did not put your foot on there, could you ?
“A. No.”
All of the circumstances and physical facts and every reasonable inference therefrom indicate that the accident could not have happened if the plaintiff had not set the machine in motion by placing his foot on the treadle. His testimony on direct-examination that he did not do so, qualified as it was by his cross-examination, was not sufficient to take the question of contributory negligence to the jury. Moreover, it is undisputed that it was not necessary for the operator of this press to put his hand into the machine for any purpose, and the plaintiff had been instructed not to do so. In view of the admitted facts, we cannot escape the conclusion that the plaintiff was guilty of contributory negligence as a matter of law. The circuit judge was not wrong in so holding.
The judgment is affirmed, with costs to the defendant.
North, Fellows, Wiest, Clark, 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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] |
Wiest, J.
This is an action at law to recover, under rescission, payments made upon a contract of purchase of real estate and the value of benefits conferred upon the property by improvements. Defendant company owned a parcel of real estate in the city of Iron Mountain, and, February 16, 1925, sold to plaintiffs, on contract, a portion thereof, designated by metes and bounds. At tlie time of the sale the ground was covered with snow. When the snow left plaintiffs found that a dwelling house, sold by defendant to another, occupied 20 feet of the land they had purchased. This was brought to the attention of defendant and negotiations were carried oh between the parties for an amicable adjustment. The purchaser of the encroaching dwelling objected to removal of his house. At the other side of the premises purchased by plaintiffs was a 20-foot public alley, and across the alley was property being sold by defendant under land contract. Defendant agreed to endeavor to have the alley vacated and obtain the land for plaintiffs. This was agreeable to plaintiffs, if it could be accomplished. Steps were taken by defendant to have the city council vacate the alley but rested for many months without action. Plaintiffs finally gave notice of rescission and brought this suit. At the close of the proofs in the circuit defendant moved for a directed verdict on the ■ground that when plaintiffs discovered the shortage they did not announce their purpose to rescind and adhere to it, but, without definite assurance of ever getting the alley, went ahead and made a number of improvements, rented a portion of the premises, and continued to make payments, and Were, therefore, guilty of laches and waived right to have rescission. This motion was denied and the case submitted to the jury. Plaintiffs had verdict and judgment.. -Defendant reviews by writ of error.
Defendant urges application of the rule requiring a party intending to rescind a contract to do so by prompt notice. This rule has exceptions. A right to rescind may, of course, be waived by acts showing an affirmance of the contract or by inexcusable delay, but neither waiver or laches arise out of consistent insistence upon rights during pendency of efforts toward an amicable adjustment.
In Plate v. Surety Co., 229 Mich. 482, we stated the rule applicable to the instant case, as follows:
“Time alone is of slight significance and when it appears, as it does here, that the delay was occasioned by efforts to reach an amicable adjustment, with offers and counter offers, the time so taken and the efforts so made cannot be counted as a time of sleeping on rights or an intention to forego remedy.”
But it is said that plaintiffs, under use and occupation, inclusive of receipt of rentals and also in making improvements, could not, after many months, rescind. During negotiations toward an amicable adjustment of acknowledged and just rights of plaintiffs to have the land sold them, or the quantity thereof supplied, they had a right to use the property in their possession, take the avails thereof, inclusive of rentals, maintain the status quo by payments on the contract, all subject, however, to judicial adjustment if amicable adjustment failed and rescission followed. Defendant did not give plaintiffs possession of all the land sold to them. Its failure to do so was cause for rescission, and such cause could have been obviated, if agreeable to plaintiffs, by freeing the land of the encroachment. This was not done. A pecuniary composition, satisfactory to plaintiffs, with binding credit to the amount thereof indorsed upon the contract, would have prevented rescission. This was not done. The shortage might have been supplied if the alley had been vacated. That was á method of adjustment intended, and contemplated vacation of the alley, but efforts to such end were prolonged by inexcusable inaction of defendant until after rescission and commencement of this suit.
The trial judge instructed the jury:
“If you find that the defendant, the Caspian Realty Company, did undertake and agree with LaForce to use its best efforts to bring about a vacation of the alley, then the rule of law would be this, that if it made such an agreement, it was obliged to be in the exercise of due and reasonable diligence to bring about a vacation of the alley or to ascertain that it could not be done. And Mr. LaForce on his side was obligated to wait upon the Caspian Realty Company for a reasonable time; for such time as was reasonable to allow the Caspian Realty Company to ascertain whether they could bring about a vacation of the alley or could not. But Mr. LaForce was not obligated to wait upon the Caspian Realty Company longer than such time as was reasonable, under all the circumstances and surroundings in this matter. * * *
“February 28, 1927, was the date when Mr. LaForce served notice on the Caspian Realty Company of their rescinding of this land contract. Now, this is the question: On that day, February 28, 1927, had the Caspian Realty Company had a reasonable time within which to ascertain whether or not the alley could be vacated? Had they used due diligence to ascertain that fact? If on the 28th day of February, 1927; the defendant had already had a reasonable time within which to bring about this matter of ascertaining whether or not it could be done, then LaForce had a right to rescind. But if the Caspian Realty Company had not had, on that date, reasonable time within which to bring this matter, about, or ascertain that it could not be brought about, then LaForce did not have a right to rescind.”
This instruction aptly laid before the jury the real issue of fact in the case and clearly stated the applicable rule of law.
We find no reversible error and the judgment is affirmed, with costs to plaintiffs. •
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ-., concurred. | [
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McDonald, J.
In 1922 a copartnership was formed between the plaintiff, the defendant, and one Charles F. Kyer, under the firm name of Kyer-Whitker-Dobson Company, to conduct a wholesale grocery business in the city of Ann Arbor, Michigan. Each of the partners owned an undivided one-third interest in the business. The business was a success, but apparently Mr. Dobson’s connection with it was not agreeable to the other partners. Negotiations for the purchase of his interest were carried on for some time. Finally it was proposed to pay him $38,000. This amount he was unwilling to accept, but was induced to do so by the defendant Whitker, who made a side agreement with him in substance and effect that Kyer and Whitker would incorporate the business, and that he, Whitker, would assign and give to Dobson 400 shares of his stock at the par value of $10 each. With this understanding, the plaintiff, Dobson, sold his interest to 'Kyer and Whitker and retired from the business. Kyer was not informed of this agreement and had no knowledge of it. The $38,000 was paid to the plaintiff, but the business was not incorporated. The plaintiff says that Whitker told him that he would not incorporate. Whitker says that he is willing to incorporate but that Kyer refuses to do so. Alléging fraud, the plaintiff filed this bill in which he asks for an accounting, a discovery, and an injunction restraining Whitker from selling or otherwise disposing of his interest in the business. The defendant answered and filed a motion to dismiss on the ground that the plaintiff’s remedy was in an action at law for damages, and that a court of equity had no jurisdiction to hear and to determine the matter in issue.
On the hearing, the court found that the plaintiff had been induced to dispose of his interest in the partnership business because of fraud on the part of the defendant; that the business was being carried on with considerable profit; that the plaintiff had a substantial interest therein and was entitled to an accounting. To obtain such an accounting, the cause was referred to a circuit court commissioner with directions to report his findings to the court. From the decree entered the defendant has appealed.
The principal question involved is, Has the plaintiff made a case for a court of equity?
In an opinion filed as a basis for his decree, the circuit judge said:
“There is ample testimony, in the opinion of the court, to justify the conclusion that the action of the defendant, Whitker, constituted a fraud on the rights of the plaintiff, and that an accounting should be had between the parties.”
We are unable to agree with the conclusion of the trial court on the question of fraud. There was no representation of an existing fact. The only representations made by the defendant were that he would incorporate the business and give the plaintiff certain shares of his stock, and that Mr. Kyer would consent to the incorporation. The plaintiff testified:
“The substance of the conversation between myself and Mr. Whitker with relation to the purchase and sale of my interest in the business were, Mr. Whitker said, when it came down toward the end of the negotiations that he was perhaps better able to handle Mr. Kyer than anybody else; that he always had been able to. Charles was a little hot-headed and unreasonable at times but he thought he could handle him. * * * I knew it would be impossible for Mr. Whitker to ever incorporate that business down there, and include Mr. Kyer’s interest without his consent. I naturally knew that, but Mr. Whitker said he would consent. I knew that was necessary for certainly you can’t incorporate unless all the parties are willing.”
The promise to incorporate and to secure the consent of Mr. Kyer is contractual in its nature and does not constitute fraud. McDonald v. Smith, 139 Mich. 211; Boston Piano & Music Co. v. Pontiac Clothing Co., 199 Mich. 141; Barker v. Finley, 200 Mich. 166. The evidence is convincing that when the defendant promised to incorporate and to secure the consent of Mr. Kyer thereto, he acted in good faith. The promises were not made as a part of a scheme to defraud, and therefore they come within the rule announced in the cases above cited.
But the plaintiff contends that for other reasons a court of equity has jurisdiction in this case. It is claimed that it has jurisdiction for the purpose of an accounting. The contract upon which the plaintiff’s action is based was not made with- the partnership. Mr. Kyer had nothing to do with it. It was made between the plaintiff and the defendant as individuals and not as partners. The partnership with the plaintiff had been dissolved. He was out and his interest could not be revived by any side agreement to which one of the partners was not a party. After the dissolution, the business was carried on by Mr. Kyer and Mr. Whitker. The business and accounts of the original partnership had been adjusted and settled. The plaintiff is not here asking to rescind that settlement. He is seeking to have the court decree to him an interest in Whitker’s share of the partnership business owned and conducted by Kyer and Whitker and to secure an accounting to determine that interest. It is plain that the relation between the parties was not that of partners, and therefore if the plaintiff is entitled to an accounting it must rest on some • other ground. •
Counsel say that, after the plaintiff had withdrawn from the partnership and the business was being continued by Kyer and Whitker, in so far as Whitker was concerned, it was conducted on joint account with the plaintiff. This claim is apparently based upon a misconception of partnership relations and interests. Whitker could have no secret partner whose interest could be enforced against the partnership property of Kyer and Whitker. As copartner with Kyer, he had no separate interest in the property of the going partnership business.
“The assets are held in a sort of community, but the partners do not hold as common tenants or joint tenants. The property is distinctly separated from that belonging to the individual members and it constitutes an identical and entire interest.” Hubbardston Lumber Co. v. Covert, 35 Mich. 254, 260.
By its terms the secret agreement gave the plaintiff no right to a joint interest with Whitker in the partnership business. It merely provided that certain shares of Whitker’s stock in a corporation thereafter to be formed should be assigned to the plaintiff.
It is not necessary to discuss the other grounds which the plaintiff claims justify equitable cognizance of the matters involved in this controversy. We have considered them. They are wholly without merit.
While the plaintiff claims an interest in the defendant’s share of the partnership business, it is plain that the only question involved is one of damages for breach of contract. The defendant breached his contract to form a corporation and to assign to the plaintiff a certain amount of his stock. The plaintiff has an action at law for damage^, the measure of which is the value the stock would have had if the corporation had been formed and the stock had been assigned as agreed. If, in determining this value, it becomes necessary to examine the accounts of the partnership business of Kyer and Whitker, the plaintiff has the same right to do so in an action at law as he would have in a suit in equity. The accounts cannot be very complicated, and we see no good reason for resorting to a court of equity to determine the simple issue involved in this case. It is our judgment that the plaintiff has an adequate remedy at law and that therefore the court of equity is without jurisdiction.
The decree is reversed and the cause remanded that the plaintiff may have an opportunity to move its transfer to the law side of the court. The defendant will have costs.
Fead, C. J., and North, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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Kavanagh, C. J.
(to reverse). Bruno Krol was employed by the City of Hamtramck from June 1950 until his death on November 14, 1960. He worked in the traffic control division of the police department painting signs, curbs, crosswalks, and removing paint from signs. In the winter months he worked primarily indoors and was exposed to paint, kerosene and gas fumes. His death was caused by brain necrosis.
Under date of November 18, 1960, in response to its own inquiry, the city was given notice of Krol’s death which contained the following information:
"11-11-60. Right temporal craniotomy with removal of necrotic temporal lobe.
Brain necrosis, questionable etiology.”
In approximately November 1962, two years after Bruno died, his widow Lottie read a newspaper article which suggested to her the possibility that Bruno’s death might have been work related.
On April 3, 1963 she filed an application for hearing with the Workmen’s Compensation Bureau. The bureau served the city a copy of her application on June 4, 1963.
On June 26, 1969 an award of benefits was made by a referee. On February 10, 1972 the Workmen’s Compensation Appeal Board reversed because the plaintiff had failed to give notice within 120 days after her husband’s death.
On May 29, 1973 the Court of Appeals reversed the appeal board, holding that
"in claims arising out of occupational diseases, the statutory period for filing notice and claim begins to run when the disability is discovered and when the claimant knows, or reasonably should know, that his disability is related to his employment.”
On remand the appeal board again denied benefits, finding that Lottie knew in November 1962 that Bruno’s death might have been work related and the notice from the compensation bureau on June 4, 1963 was untimely as being more than 120 days from November 1962.
We granted leave to consider whether the Court of Appeals, which affirmed the appeal board’s determination, erred in refusing to apply our decision in Norris v Chrysler Corp, 391 Mich 469; 216 NW2d 783 (1974).
We conclude that it was error not to apply Norris, supra, for we find that case controlling and accordingly we reverse the Court of Appeals and remand to the Workmen’s Compensation Appeal Board for consideration of the substantive issues raised in the appeal from the referee’s award.
The following statutory provisions are applicable to this claim: 1948 CL 412.15; MSA 17.165; now, without substantive change, MCLA 418.381; MSA 17.237(381) provides:
"No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer within 3 months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within 6 months after the occurrence of the same; or, in case of the death of the employee, within 6 months after said death * * * . In all cases in which the employer has been given notice of the happening of the injury, or has notice or knowledge of the happening of said accident within 3 months after the happening of the same, and fails, neglects or refuses to report said injury to the compensation commission as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of either said employer or his insurer, until a report of said injury shall have been filed with the compensation commission.”
1948 CL 417.10; MSA 17.229, now, without substantive change, MCLA 418.441; MSA 17.237(441) provides:
"The requirements as to notice as to occupational disease and death resulting therefrom and the requirements as to the bringing of proceedings for compensation for disability or death resulting from such occupational disease shall be the same as required in section 15 of part 2 of this act, except that the notice shall be given to the employer within 120 days after the disablement.”
It is apparent from these provisions that in a claim for benefits arising out of an occupational disease, notice must be given the employer within 120 days after the disablement. This time period, as correctly noted by the Court of Appeals, begins to run at the time the claimant knows, or should have known, that the disease or disability might be work related. See Finch v Ford Motor Co, 321 Mich 469; 32 NW2d 712 (1948).
Assuming, arguendo, that the claimant did not meet the statutory time limits for giving notice to the employer, that is not the end of the inquiry. As cited above, MCLA 412.15; MSA 17.165 (now MCLA 418.381; MSA 17.237[381]) provides:
"in all cases in which the employer has been given notice of the happening of the injury, or has notice or knowledge of the happening of said accident within 3 months after the happening of the same, and fails, neglects or refuses to report said injury to the compensation commission as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of either said employer or his insurer, until a report of said injury shall have been filed with the compensation commission.”
This provision was considered in Norris v Chrysler Corp, 391 Mich 469, 477; 216 NW2d 783 (1974), and for a unanimous Court, Justice Coleman wrote:
"The notice given must be sufficient to make the employer aware that an injury has been sustained. If, after inquiry, the employer does not believe the injury to be compensable, it need not report the accident. However, in not reporting the accident, the employer assumes the risk that the injury will be found tó be compensable. If such a determination occurs, the employer’s penalty is a suspension of statutory limitations. ” (Emphasis added.)
In this case, the evidence shows that the city had timely written notice of Bruno Krol’s death and the cause of death. Nevertheless, the city chose not to notify the Workmen’s Compensation Bureau of Krol’s death.
As we said in Norris, supra:
"To hold that defendant was charged with reporting only compensable injuries in order to impose the statutory limitations would be to hold that defendant was charged with judging the merits of the case. To the contrary, it was and remains the duty of the referee (with appellate levels provided) to determine compensability. The employer must report any injury of which it has notice if it is to have the advantage of the statutory limitations. Conversely, the employer need not report all or any injuries, but in failing to do so pays the price of the suspension of statutory limitations.” 391 Mich at 480.
Accordingly, the statutory time limits for the filing of notice and claim with the defendant employer for occupational disease and death were suspended, and this case is remanded to the Workmen’s Compensation Appeal Board for a determination on the merits.
Reversed.
Williams, Levin, and Fitzgerald, JJ., concurred with Kavanagh, C. J.
Coleman, J.
We have been requested to excuse plaintiff’s failure to give an employer timely notice of a claim for compensation because it does not appear the employer was prejudiced. As indicated by the dissent in Kerkstra v Department of State Highways, 398 Mich 103; 247 NW2d 759 (1976), we should not engraft such conditions on the statute. We step outside our constitutional role when we judicially legislate.
Bruno Krol worked for the city of Hamtramck. He died November 14, 1960. The city received notice of the death which had this information:
"11-11-60. Right temporal craniotomy with removal of necrotic temporal lobe.
Brain necrosis questionable etiology.”
On April 3, 1963, Mrs. Krol filed an application with the Workmen’s Compensation Bureau. The claim related to "disablement from occupational disease which occurred on or about November 1960”. The city was served with a copy of the application on June 4, 1963.
After several dismissals, a hearing was held. On June 26, 1969 the referee awarded benefits. In an opinion filed February 10, 1972, the appeal board reversed because plaintiff failed to give notice within 120 days after her husband’s death.
By a per curiam opinion dated May 29, 1973, the Court of Appeals reversed the appeal board because it "erred in holding that the period in which notice and claim must be filed is solely the date of disability”. The Court said "in claims arising out of occupational disease, the statutory period for filing notice and claim begins to run when the disability is discovered and when the claimant knows, or reasonably should know, that his disability is related to his employment”.
On remand, the board noted this exchange:
”Q. [By Mr. Thomas]: Mrs. Krol, approximately when was it, approximately when was it that you first had reason to believe that Mr. Krol’s illness could have been related to his employment?
"A. Oh, I think about two years later I read in papers by Dr. Molner and stuff like that that from being exposed to fumes, paint and different things like acid and stuff like that, could damage your brain; and that’s what they were diagnosing in the hospital, at Ford and Ann Arbor, that he had a damaged brain, but they couldn’t know — they didn’t know where it was.
'The Referee: * * * When you say two years later, is this two years after your husband’s death you are talking about?
'A. No, no — yes, after he is dead.”
The board found that Mrs. Krol had notice of the relationship between death and employment in November 1962. The board found that the employer received notice of Mrs. Krol’s claim on June 4, 1963. The board found no proofs from which it could conclude "that the employer received notice or had knowledge of the alleged cause of death until they were served” with Mrs. Krol’s application. The board denied Mrs. Krol’s claim and the Court of Appeals affirmed.
We are mandated by Const 1963, art 6, § 28 and MCLA 418.861; MSA 17.237(861) to accept findings of fact made by the Workmen’s Compensation Appeal Board. See DeGeer v DeGeer Farm Equipment Co, 391 Mich 96; 214 NW2d 794 (1974), and Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975).
Plaintiff believes Norris v Chrysler Corp, 391 Mich 469; 216 NW2d 783 (1974), controls. She claims defendant had notice of Mr. Krol’s death. In Norris, the appeal board misapplied a decision of the Court of Appeals in concluding the employer was given insufficient notice of a personal injury. We reversed.
The notice which defendant received in this case indicated Mr. Krol had a brain necrosis of questionable etiology. The appeal board found no proof from which it could conclude that defendant knew the cause of Mr. Krol’s death prior to being served with Mrs. Krol’s application. The board in this case did not find the notice legally insufficient. They found no notice at all prior to June 4, 1963. Norris does not apply to these facts.
The remaining issue is whether the statutory requirement for timely notice was satisfied. The appeal board found that proper notice under the statute had not been given.
An occupational disease was not an injury for which a remedy was provided by common law. Liability of the employer was created by express and specific statutory provisions. It is well established that such a statute must be strictly applied in cases which would take advantage of its terms. We cannot properly change its mandates:
"It is not within the province of this Court to read therein a mandate that the Legislature has not seen fit to incorporate. Our duty is to apply the law as we find it.” Jones v Grand Ledge Public Schools, 349 Mich 1, 11; 84 NW2d 327 (1957).
A claim that the employer was not prejudiced by the delay in notice cannot change the statute. In Kerkstra, we found "no basis for the Court to add its own conditions to those provided by the Legislature”.
The decisions of the appeal board and the Court of Appeals should be affirmed.
Lindemer and Ryan, JJ., concurred with Coleman, J.
Changed to 12 months by 1965 PA 44.
This same sanction exists "for failure to notify the department of such injury or death". Martin v White Pine Copper Co, 378 Mich 37, 43; 142 NW2d 681 (1966). (Emphasis added.) | [
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Lindemer, J.
On December 18, 1970, defendant-appellant attempted to rob a bank with the use of bombs in Battle Creek, Michigan. Heroic action by bank and police officials prevented what might otherwise have been a tragic loss of life.
We granted leave in this case to consider whether defendant’s trial in state court following his acquittal in Federal court on charges for the same criminal act violated his right to be free from double jeopardy under either Const 1963, art 1, § 15 or US Const, Am V.
On February 10, 1971, defendant was arraigned in Federal court on alternative counts of violating 18 USC 2113(a), the Federal bank robbery statute. A trial commenced and on June 5, 1971, the jury returned a verdict of not guilty on both counts.
Subsequently, on June 22, 1971, defendant was arraigned in a state court on three charges: (1) attempted murder, MCLA 750.91; MSA 28.286; (2) bank robbery, MCLA 750.531; MSA 28.799; and (3) assault with intent to rob being armed, MCLA 750.89; MSA 28.284. The case went to trial and the jury found defendant guilty of all three offenses. He received a sentence of from 5 to 25 years in prison on each count, the terms to run concurrently.
The Court of Appeals dismissed the attempted murder count but, citing Bartkus v Illinois, 359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959), and In re Illova, 351 Mich 204; 88 NW2d 589 (1958), concluded that defendant’s double jeopardy claim failed under both the United States and Michigan Constitutions.
I
We turn first to the preliminary question of whether defendant is precluded from raising the defense of double jeopardy on appeal when he failed to raise it before or at trial. There is some confusion in the courts below as to the propriety of presuming such a waiver from a silent record. Compare People v McPherson, 21 Mich App 385, 391; 175 NW2d 828 (1970) (waiver of double jeopardy not presumed from a silent record) with People v Cooper, 58 Mich App 284, 290; 227 NW2d 319 (1975) (double jeopardy must be raised before or during trial or it is waived). The decisions of this Court, too, are not without inconsistency. Compare People v Powers, 272 Mich 303; 261 NW 543 (1935), with People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972).
In Powers, supra, the Court quoted with approval the language in LRA 1917A, 1233 which provided that double jeopardy claims are waived if not raised before or at trial. Powers at 307. The defendant in People v Powers was charged with receiving stolen property and larceny. He was convicted on the larceny count. In a subsequent trial for receiving stolen property, defendant did not raise a double jeopardy claim and he was convicted. It was the established law at that time that "where a defendant is charged with distinct offenses in separate counts, a conviction on one of the counts works an acquittal of the other”. 272 Mich at 306. Nevertheless, the defendant was held to have waived his claim because he did not raise his conviction of larceny prior to his subsequent conviction of receiving stolen property.
Since that time, the constitutional law regarding double jeopardy has changed. Not the least of those changes has been the application of the Fifth Amendment guarantee against double jeopardy to the states through the due process clause of the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969).
In, Grimmett, supra, wherein the prosecutor contended that defendant waived his double jeopardy claim because he did not raise the issue and requested and consented to a new jury, this Court reviewed the United States Supreme Court’s post-Powers analyses of the waiver concept. We concluded:
"Thus, waiver consists of two separate parts: (1) a specific knowledge of the constitutional right; and (2) an intentional decision to abandon the protection of the constitutional right. Both of these elements must be present and if either is missing there can be no waiver and no finding of consent.” 388 Mich 598.
In light of both Benton and Grimmett, we must conclude that the holding in Powers does not extend beyond its particular factual setting. Because the instant record contains no evidence of "an intentional decision to abandon the protection of the constitutional right” pertaining to double jeopardy, the defendant is not precluded from presenting his double jeopardy claim to this Court.
II
We begin our analysis of defendant’s claim that he was twice put in jeopardy with Bartkus v Illinois, 359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959), and its companion case of Abbate v United States, 359 US 187; 79 S Ct 666; 3 L Ed 2d 729 (1959). In a five-to-four decision, Bartkus held that an acquittal on a prior Federal charge of bank robbery was not a bar on double jeopardy grounds to a successive state prosecution for the same criminal act. Abbate held that a conviction on a state charge of conspiracy was not a bar on double jeopardy grounds to a successive Federal prosecution based on the same criminal act.
Justice Frankfurter, writing for the majority, based his decision upon two principles: (1) that the Fifth Amendment Double Jeopardy Clause is not binding on the states; and (2) that our concept of dual sovereignty in a Federal system compels maintenance of a strong state, as well as Federal, system of justice. He discussed a long line of American cases to demonstrate that repeated prosecutions are an ingrained part of. American criminal procedure. In addition, limitation of dual sovereignty "would be a shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines”. Bartkus at 137. Bartkus includes a sharp dissent. In his dissent Justice Black analyzed the situation not from the viewpoint of maintaining a state’s prerogatives, but rather from the perspective of defendant’s rights. He wrote that the notion that successive Federal and state trials for the same act are somehow less offensive than repeated prosecutions by one sovereign was "too subtle for me to grasp”. Bartkus at 155.
The trend in United States Supreme Court decisions leads us to conclude that the permissibility of Federal-state prosecutions as a requirement of our Federal system is open to reassessment. Indeed, the reasoning supporting Bartkus has been seriously undermined. In Benton v Maryland’ the Court declared the Fifth Amendment guarantee against double jeopardy to be a fundamental right which was applicable to the states through the due process clause of the Fourteenth Amendment. Subsequent United States Supreme Court decisions have also cut away at Bartkus’ remaining rationale, the dual sovereignty theory.
In Elkins v United States, 364 US 206; 80 S Ct 1437; 4 L Ed 2d 1669 (1960), the Court denied that evidence obtained by state authorities during a search, which if conducted by Federal officers would have violated the Fourth Amendment, could be admitted in a Federal prosecution because of the dual sovereignty doctrine. The court, viewing the issue from the defendant’s perspective, observed that "[t]o the victim it matters not whether his constitutional right has been invaded by a federal agent or by a state officer”. Elkins at 215.
In Murphy v Waterfront Commission of New York Harbor, 378 US 52; 84 S Ct 1594; 12 L Ed 2d 678 (1964), wherein the issue was whether the Fifth Amendment privilege against self-incrimination protects state and Federal witnesses against incrimination under both state and Federal law, the Court held that a state witness need not testify if his answer might incriminate him unless his immunity covered Federal prosecutions as well. The Court again rejected the dual sovereignty argument and allowed a defendant in one sover eignty to assert rights based on the actions of another sovereignty’s officials.
The people argue that language in In re Illova, 351 Mich 204, 209; 88 NW2d 589 (1958), supports Bartkus:
"The substance of the matter is this: When a defendant has violated both State and Federal laws he is liable to each sovereign and subject to prosecution by each. It is not his privilege to choose which shall first inflict punishment. If any comity between sovereigns is violated, the offended sovereign may complain, not the defendant.”
The issue in Illova was not double jeopardy, but jurisdiction. The Illova defendant, while in state custody, was turned over to Federal authorities for a plea to a Federal offense and was sentenced to five years. He was then returned to state authorities who tried defendant, found him guilty, and sentenced him to a five-to-ten-year sentence which was to run concurrently with the Federal sentence. It is not reported whether the Federal and state offenses grew out of the same criminal act. After completing his Federal sentence he was returned to state prison, thus presenting the issue of whether the state relinquished all rights and claims of imprisoning the defendant by transferring its jurisdiction over him to the Federal authorities to serve a five-year sentence when the state had ordered its five-to-ten-year sentence to begin immediately. The Court answered in the negative.
The suggestion in Illova that "when a defendant has violated both State and Federal laws he is liable to each sovereign” was analyzed in In re Carey, 372 Mich 378, 381; 126 NW2d 727 (1964). Finding "little justification for this dual approach in the sentencing law” and observing that "the sooner we eliminate it the better”, this Court in Carey held that absent statutory authority a defendant under a Federal sentence cannot subsequently be given a state sentence which is ordered not to commence until the expiration of the Federal sentence. Illova was expressly overruled to the extent it was inconsistent with the preceding holding.
Rather than supporting Bartkus, the case history of Illova suggests an increased scrutiny of dual sovereignty claims on the part of this Court. This Court’s increased scrutiny parallels the United States Supreme Court’s skepticism, as manifested in Elkins and Murphy, of the dual sovereignty doctrine.
The dual sovereignty notion is predicated on the belief that state criminal justice systems should be strong. Additionally, there is the fear that Federal legislation which covers a criminal act may involve interests unlike the interests which state legislation covering the same criminal act may seek to promote. We agree that where an individual’s behavior violated state and Federal laws which are framed to protect different social interests, prosecution by one sovereign will not satisfy the needs of the other sovereign. In such a case, given the Federal government’s preemptive power, the inability of the state to vindicate its interests would truly be an "untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines. It would be in derogation of our federal system”. Bartkus, supra, at 137 (Frankfurter, J.). Therefore, we cannot accept defendant’s proffered alternative to the dual sovereignty doctrine which would pro hibit all successive prosecutions by two sovereigns for the same act.
However, the interest of the Federal and state governments in prosecuting a criminal act frequently coincide. When state and Federal interests do coincide, prosecution by one sovereign will satisfy the need of the other. We note that persons convicted in Federal court only very rarely are prosecuted in state courts for offenses arising out of the same criminal act.
Moreover, we do not perceive an inability or unwillingness to cooperate among state and Federal criminal justice officials. Law enforcement agencies are not separate and independent in this age of "cooperative federalism”, as the United States Supreme Court has observed, "where the Federal and State Governments are waging a united front against many types of criminal activity”. Murphy, supra, at 56. The instant record shows that cooperation between state and Federal authorities is not uncommon.
The defendant’s interests in not being forced twice to run the gauntlet are substantial. They include his desire to avoid (1) continued embarrassment, expense and ordeal; (2) being compelled to live in a continuing state of anxiety and insecurity; and (3) the possibility that even though innocent he may be found guilty through repeated prosecutions. United States v Wilson, 420 US 332, 342; 95 S Ct 1013; 43 L Ed 2d 232 (1975); Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957).
We feel that the interests of the state and the defendant are best accommodated by the approach of the Pennsylvania Supreme Court in Commonwealth v Mills, 447 Pa 163; 286 A2d 638 (1971). We perceive that approach as requiring, and we so hold, that Const 1963, art 1, § 15 prohibits a second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different. Analysis on a case-by-case basis cannot be avoided.
Although the United States Supreme Court’s treatment of the rational underpinnings of Bartkus leads us to question seriously its current vitality, it has not been expressly overruled. Therefore, we have preferred to rest the decision on our state constitution. In doing so, we have, appropriately, "assigned] proper weight to opposing interests and give[n] some consideration to public policy”. People v Beavers, 393 Mich 554, 581; 227 NW2d 511 (1975) (Coleman, J., dissenting).
A prosecutor would be entitled to direct the attention of the court to factors which are pertinent to a determination of whether a Federal prosecution satisfies the state’s interest. Such factors, for prosecutions arising out of the same criminal act, may include whether the maximum penalties of the statutes involved are greatly disparate, whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interests in securing a conviction, and whether the differences in the statutes are merely jurisdictional or are more substantive. While we would prefer that our interpretation produce clear distinctions, we are comforted by our belief in the correctness of this approach, the judiciary’s ability to apply this test, and the infrequency of successive Federal and state prosecutions.
The instant defendant was acquitted in Federal court under the Federal bank robbery statute. 18 USC 2113(a). He comes before us convicted in state court of bank robbery, MCLA 750.531; MSA 28.799, and assault with intent to rob being armed, MCLA 750.89; MSA 28.284. His conviction for attempted murder was reversed by the Court of Appeals and that charge is not before us.
The prosecutor has conceded that the state’s charges and the Federal charges arose out of the same criminal act. The Federal statute which defendant was charged with violating reads as follows:
"§ 2113. Bank robbery and incidental crimes
"(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
"Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—
"Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.” 18 USC 2113(a).
We conclude that the interests sought to be protected by the Federal statute are not substantially different than those sought to be protected by the two state statutes of which defendant stands convicted. The laws of both jurisdictions seek to insure the safety of individuals and the protection of private property.
Defendant’s convictions are reversed.
Kavanagh, C. J., and Williams, Levin, Fitzgerald, and Ryan, JJ., concurred with Lindemer, J. | [
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Coleman, J.
Petitioner appeals from the February 27, 1976 order of the State Bar Grievance Board denying his petition for reconsideration of his petition for reinstatement as a member of the State Bar of Michigan.
The facts of the instant case are not in dispute. Petitioner is 71 years old. He served as probate judge for Macomb County for 24 years, from 1941 to 1965. He was defeated while running for his seventh consecutive term as probate judge.
Following his defeat, petitioner suffered emotional problems which he characterized in his own words:
"Having lost my judgeship by election and being financially pressed, everything seemed to go wrong for me and I became depressed and very unhappy with myself.
"Being depressed at the time, I began to lose interest in my practice of law in late summer of 1969.”
Petitioner seriously neglected his duties as an attorney. Pursuant to recommendations of the State Bar Grievance Committee, petitioner was permanently disbarred on December 18, 1969. Petitioner never answered the formal complaint of the grievance committee and never appeared at the 1969 hearing.
On February 20, 1975, Mr. Trombly petitioned for reinstatement as an attorney in good standing.
A proceeding was held before Wayne County Hearing Panel No 10 on July 15, 1975. The August 6, 1975 report of Hearing Panel No 10 states in pertinent part:
"5. That at the hearing, two witnesses appeared in opposition to said petition, to-wit: Florence Moran, a former client, and her present attorney, Leonard Reinowski, Esq.
"6. That the unrebutted testimony of Mrs. Moran and Mr. Reinowski as to petitioner’s conduct subsequent to his disbarment indicated:
"(a) a flagrant disregard of the orders of a Judge of the Macomb County Circuit Court with regard to turning over to Mr. Reinowski the file of Mrs. Moran and the execution of a substitution of attorneys thereon.
"(b) the fact that a default judgment was taken against the petitioner in a lawsuit commenced on behalf of Mrs. Moran in the principal sum of $1,000, plus interest and costs.
"(c) that the petitioner did attempt to settle said matter directly with Mrs. Moran, thereby disregarding the recognized attorney’s lien held by Mr. Reinowski as her attorney in the action filed against petitioner by Mrs. Moran, and in the course of said attempted 'private’ settlement delivered a check in the approximate sum of $400-$425 which was returned for insufficient-funds but which check was eventually honored after the intervention of the Clinton Township Police Department.
"(d) that no explanation was offered at the hearing by way of rebuttal to the serious charges set forth above.
"7. That the petitioner, while testifying as the sole witness on his behalf, appeared to ramble in a series of unrelated explanatory statements as to his past misconduct. It was evident to the panel that the petitioner was confused as to many elements of hornbook law and could not safely be licensed to counsel and advise the public as an attorney. This stated attempt to limit his practice to the 'preparation of wills’ for example, was negatively perceived by the panel as being a limitation of practice which all recognize as not being feasible under our licensing statutes. In short, the panel felt that the petitioner was no longer qualified, in a scholarship sense, of being held out to the public, as a skilled attorney and that our obligation to the public was paramount in our considerations.
"8. That the petitioner did not in other ways sustain the burden which was his at the hearing of producing evidence that was clear and convincing of his petition for reinstatement.”
The hearing panel’s order dismissed the petition for reinstatement. Mr. Trombly petitioned the grievance board for a review of the dismissal order. A hearing was held before the State Bar Grievance Board on November 21, 1975. On December 18, 1975 the grievance board affirmed the order of the hearing panel.
In bar grievance matters, this Court must determine "whether the Board’s findings have proper evidentiary support on the whole record”. In reinstatement proceedings, the burden is on the petitioner to establish his eligibility by "clear and convincing evidence” that:
"(a) He desires in good faith to be restored to the privilege to practice law in this State;
"Ob) The term of suspension prescribed in the order of suspension has elapsed or 5 years have elapsed since revocation of the license;
"(c) He has not practiced law contrary to the requirement of his suspension or revocation and has not attempted to do so since he was disciplined;
"(d) He has complied fully with the terms of the order for discipline;
"(e) His attitude towards the misconduct for which he was disciplined is one of genuine remorse;
"(f) His conduct since the discipline has been exemplary and above reproach;
"(g) He has proper understanding of and attitude towards the standards that are imposed upon members of the bar and that he will conduct himself in conformity with such standards;
"(h) He can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise to act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the courts.”
As was noted above, the hearing panel found that the petitioner did not satisfy the requirements under subsections (f) and (h).
Our examination of the transcripts and briefs discloses that the board’s findings do have proper evidentiary support on this record.
The petitioner attempted to limit his practice to the "preparation of wills”, because he has a severe hearing deficiency. As the hearing panel noted, such limited practice is not "feasible under our licensing statutes”.
In all bar grievance matters, it must be remembered that this Court does not wish to punish the lawyer under investigation. Foremost in our concern is the protection of the public. This philosophy is universally embraced. In an appeal from a suspension order, the United States Court of Appeals for the Seventh Circuit stated:
"We do point out, however, that the disciplinary powers of the courts do not exist for the punishment, as such, of wrongdoing. They exist so that the administration of justice may be protected by weeding out practitioners who are not trustworthy.”
Regardless of our feelings of sympathy for a disbarred attorney, our paramount concern must always be to safeguard the public. A hearing panel of three persons and a seven-person grievance board have found him not fit for reinstatement. We cannot underestimate the advantage of the board and the hearing panel in that they were able to observe the petitioner’s demeanor as he testified. This is particularly significant in light of petitioner’s acknowledged emotional problems.
In bar grievance matters, this Court "may make such order as may be deemed appropriate”. Thus, we find that order of disbarment of petitioner should be terminated. However, on our own motion, it is ordered that petitioner be immediately placed on inactive status until further order of this Court.
Affirmed in part and reversed in part.
Kavanagh, C. J., and Williams, Levin, Fitzgerald, Lindemer, and Ryan, JJ., concurred with Coleman, J.
Grievance Board Rule 16.24.
Petitioner’s statement of March 19, 1975 incorporated into the record at the July 15, 1975 proceeding before Wayne County Hearing Panel No. 10.
Petitioner so testified at the July 15, 1975 hearing.
State Bar Grievance Administrator v Estes, 390 Mich 585, 593; 212 NW2d 903 (1973); State Bar Grievance Administrator v Estes, 392 Mich 645, 649; 221 NW2d 322 (1974); State Bar Grievance Administrator v Posler, 393 Mich 38, 39; 222 NW2d 511 (1974); State Bar Grievance Administrator v Ryman, 394 Mich 167, 174; 229 NW2d 311 (1975).
State Bar Rule 15, § 7.
State Bar Rule 17, § 3(3).
See fn 5, supra.
In re Echeles, 374 F2d 780, 782 (CA 7, 1967). See also, Steere v State Bar of Texas, 512 SW2d 362 (Tex Civ App, 1974); In re Barton, 273 Md 377, 381; 329 A2d 102, 104-105 (1974).
Grievance Board Rule 16.24(h). | [
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Clark, J.
Plaintiff’s automobile, insured by defendant, was stolen and suit was brought on the policy. The declaration follows section 5, Circuit Court Rule No. 22, in setting forth no more than “the execution, the date, the amount of the .policy, the premium paid or to be paid, the property or risk insured, the interest of the insured, and the loss.” The plea was the general issue. After the proofs were closed defendant sought to amend its plea to give notice thereunder of a defense and was refused. It is not here contended that the refusal was error. Plaintiff had verdict and judgment. Defendant brings error. The sole matter urged here is that plaintiff did not show compliance with the following, contended to be a condition precedent of the policy:
“This company will pay * * * providing car is equipped with lock approved by the Underwriter’s Laboratories Incorporated * * * and owner maintains the efficiency of such locking devices * * * and locks car when unattended,”
—and therefore did not make a case, and that the court erred in refusing for that reason to direct a verdict for defendant. We quote section 4, Circuit Court Rule No. 23:
“In-a suit upon a policy of insurance, if the defendant shall rely, in whole or in part, upon any breach of any of the conditions, agreements, representations or warranties of the policy or application therefor, or upon the failure to perform or make good any promise, representation or warranty, or upon the failure to furnish any proof of loss, as required by the policy, there shall be added to the plea a notice plainly indicating the nature of the defense relied upon.”
If a defendant would use in his defense matter covered by the rule just quoted he must set it forth with his plea and he has the burden of proving it. The rule is plain. It uses the word conditions without qualification. It makes no distinction between conditions, warranties, promises, and representations. A plaintiff is required to prove what he is required to aver in his declaration. It was not upon plaintiff in either pleading or proof to affirm compliance with such provisions of the policy or to negative breach thereof. If noncompliance or breach was to be averred it was upon defendant to do it and it could not defend on the ground of the claimed breach in the ab sence of a notice added under its plea plainly indicating the nature of the defense relied upon. Douglas v. Insurance Co., 215 Mich. 529; Emery v. Guarantee Corp., 209 Mich. 295; McLaughlin v. Insurance Co., 221 Mich. 479; 33 C. J. p. 89.
In Mumaw v. Insurance Co., 97 Ohio St. 1 (119 N. E. 132), it was held in the trial court that certain provisions of the policy constituted conditions precedent and that the burden was on the plaintiff to prove compliance with those conditions. In reversing, the appellate court said:
“All of the provisions referred to were included in the policy for the benefit of the defendant. Non-fulfillment of them is matter of defense to be alleged and proved by defendant. Any other rule would impose unreasonable hardships on the plaintiff.”
In Chambers v. Insurance Co., 64 Minn. 495 (67 N. W. 367, 58 Am. St. Rep. 549), a question for decision was:
• “Was the burden on the plaintiff to allege and prove the truth of the answers to the questions contained in the application, or was it upon the defendant to allege and prove their falsity?”
The court said:
“It is more in the nature of a defeasance, where the insured contracts that, if the representations made by him are not true, the policy shall be defeated and avoided. But, even if these warranties are to be deemed conditions precedent, it has become settled in insurance law, for practical reasons, that the burden is on the insurer to plead and prove the breach of the warranties.”
Judgment affirmed.
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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Lindemer, J.
These cases present the issue of when and under what circumstance a defendant may properly dismiss his attorney and assert his right to represent himself.
On November 9, 1972, defendant Anderson was charged with armed robbery. MCLA 750.529; MSA 28.797. The trial was held on January 30 and 31, 1973, following which the jury returned a verdict of guilty as charged. Defendant was sentenced to from 7 years and 6 months to 20 years in prison.
On the first day of defendant Anderson’s trial, but prior to the selection of a jury, the defendant replied as follows to the court’s inquiry as to whether he wished to represent himself:
"Yes. Not at this moment. I wish to represent myself and have a little more time to get affiliated with the case.”
Defendant Anderson predicates his appeal on the trial court’s refusal to permit him to discharge his attorney and proceed with the trial in pro per. The Court of Appeals found merit in defendant’s contentions and reversed and remanded for a new trial. 55 Mich App 317; 222 NW2d 226 (1974). We reverse and reinstate the conviction.
Defendant Overby and two codefendants were charged with armed robbery, MCLA 750.529; MSA 28.797 and assault with intent to commit murder, MCLA 750.83; MSA 28.278. The jury convicted him on both counts and he was sentenced to serve 15-to-30 years incarceration on each count, the sentences to be concurrent.
During voir dire, and after he had expressed certain reasons for his dissatisfaction with his appointed counsel, defendant Overby addressed the court, quoted the applicable provision of the Michigan Constitution, and requested permission to defend himself. Error is predicated upon the trial court’s refusal to grant this request. The Court of Appeals saw no merit in this argument and affirmed the conviction. 42 Mich App 1; 201 NW2d 303 (1972). We reverse and remand for a new trial.
The right of self-representation under Michigan law is secured by both Constitution and statute. Const 1963, art 1, § 13 reads: "A suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by an attorney”. MCLA 763.1; MSA 28.854 provides: "On the trial of every indictment or other criminal accusation, the party accused shall be allowed to be heard by counsel and may defend himself, and he shall have a right to produce witnesses and proofs in his favor, and meet the witnesses who are produced against him face to face”. The United States Supreme Court has held that this right is also implicitly guaranteed in the Sixth Amendment to the United States Constitution. Faretta v California, 422 US 806; 95 S Ct 2525; 45 L Ed 2d 562 (1975). None of these provisions, however, guarantees an absolute right to proceed to trial without counsel.
In People v Henley, 382 Mich 143, 148-149; 169 NW2d 299 (1969), wherein the defendant moved to dismiss his attorney and represent himself after the trial was well underway, we held that under Michigan law the defendant’s right to do so was a qualified one, and that the trial judge should exercise his discretion.
The question presented in Faretta was whether a constitutional right to self-representation should be recognized. Questions associated with administering the right during the course of the litigation were not addressed. However, the Court carefully noted the circumstances under which Faretta was. deprived of his constitutional right to conduct his own defense. The circumstances, affirmatively shown by the record, involved a clear and unequivocal request, weeks before trial, by a literate, competent, and understanding individual. In People v Holcomb, 395 Mich 326, 335; 235 NW2d 343 (1975), we reversed and remanded for a new trial; there was no affirmative showing, as there was in Faretta, that the defendant was "literate, competent, and understanding, and that he was voluntarily exercising his informed free will”.
The foregoing cases suggest that several requirements should be met before a defendant’s request to dismiss his counsel and proceed in proper person is granted.
First, the request must be unequivocal. This requirement will abort frivolous appeals by defendants who wish to upset adverse verdicts after trials at which they had been represented by counsel. This requirement of "unequivocality” is well established in the courts of this state and others, with many of the decisions relying on United States, ex rel Maldonado v Denno, 348 F2d 12, 15 (CA 2, 1965). See, e.g., People v Payne, 27 Mich App 133; 183 NW2d 371 (1970).
Second, once the defendant has unequivocally declared his desire to proceed pro se the trial court must determine whether, defendant is asserting his right knowingly, intelligently and voluntarily. Faretta, supra, 422 US 835; Holcomb, supra, at 337. The trial court must make the pro se defendant aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open. Id. Defendant’s competence is a pertinent consideration in making this determination. Westbrook v Arizona, 384 US 150; 86 S Ct 1320; 16 L Ed 2d 429 (1966). But his competence does not refer to legal skills, "[f]or his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself’. Faretta, supra.
The third and final requirement is that the trial judge determine that the defendant’s acting as his own counsel will not disrupt, unduly inconvenience and burden the court and the administration of the court’s business. The people would have us announce a guideline which would preclude the assertion of the right to proceed without counsel if it is not made before the trial begins. We cannot accede to this request. Although the potential for delay and inconvenience to the court may be greater if the request is made during trial, that will not invariably be the case.
The foregoing requirements do not impermissibly infringe on the constitutional right to act as one’s own counsel. Importantly, they do support the imperative that criminal adjudications must proceed in an orderly fashion and result in trustworthy guilt determinations.
Defendant Anderson indicated that he wanted his assigned counsel dismissed for "lack of evi dence”. The court, in an attempt to discover what "new evidence” made it impossible for assigned counsel to continue in the case, engaged the defendant in this colloquy:
"The Court: You say you are aware of new evidence?
"The Defendant: Yes.
"The Court: What is that?
"The Defendant: I mean, like, I came across a little piece of evidence of the Supreme Court.
"The Court: A case?
’’The Defendant: Yes, a case.
’’The Court: Some decision by the United States Supreme Court?
’’The Defendant: That is correct.
’’The Court: And what about that?
"The Defendant: I mean, the case concerned of Jessie James, the mask ruling of it.
’’The Court: Would you stand up, sir? What?
”The Defendant: The mask ruling of Jessie James’ case concerning the Supreme Court, the waiving of the masked bandit.
’’The Court: The waiving of a masked bandit?
’’The Defendant: Yes.
’’The Court: All right. Is that your only piece of new evidence?
’’The Defendant: Yes.”
Neither defendant nor his present counsel have been able to cite the so-called "mask ruling of Jessie James’ case concerning the Supreme Court” on appeal.
The above exchange reveals that defendant was not competent to waive his right knowingly and voluntarily.
Defendant Overby’s situation is different. First, his request to proceed as his own counsel was unequivocal. After indicating several reasons for his dissatisfaction with appointed counsel, defendant addressed the court as follows:
"Speaking in my own behalf, Your Honor, I would like to ask the court to enter this also. The Constitution of the State of Michigan, § 13, a citizen in any court in this state has the right to prosecute or defend any suit. I know I don’t have much education, but since it seems, and it should seem to the court that I have no defense counsel that will agree with me on anything in this matter, and he is going to be forced on me, I ask that this part of the Constitution apply to me also and I’ll do the best I can in defending myself.” (Emphasis supplied.)
At the close of jury selection, Overby stated that he wanted an additional juror removed and that his attorney had refused. He then asked the court to clarify his right to self-representation. The judge told Overby that he had a competent attorney, that Overby wasn’t entitled to counsel of his own choice, and that he would have to let appointed counsel handle the trial.
Second, the record demonstrates that defendant Overby asserted his right knowingly, intelligently and voluntarily. The Faretta requirement of a "knowing, intelligent and voluntary” relinquishment of the traditional benefits associated with the right to counsel when a defendant asserts his right to proceed as his own counsel stems from the language in Johnson v Zerbst, 304 US 458, 464-465; 58 S Ct 1019; 82 L Ed 1461 (1938). In Johnson, the Court indicated that the existence of a knowing and intelligent waiver must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused. Here, the trial court did not explicitly inform defendant Overby of the dangers and disadvantages of self- representation. However, the sophisticated and comprehensive nature of defendant Overby’s expressed reasons for dissatisfaction with his appointed counsel, together with his history of personal involvement with the criminal justice system, indicates that he knew what he was doing and made his choice with eyes open.
Finally, it does not appear that defendant Over-by’s acting as his own counsel would disrupt, unduly inconvenience and burden the court and the administration of the court’s business. Rather, the trial court apparently denied Overby’s motion on the sole basis that his court-appointed counsel was competent.
Because we find that the trial court’s refusal to allow Overby to represent himself is reversible error, we do not reach the other issues he raises on appeal.
The Court of Appeals in People v Anderson is reversed and defendant Anderson’s conviction is reinstated. The Court of Appeals in People v Overby is reversed and the case is remanded for a new trial.
Kavanagh, C. J., and Williams, Coleman, and Fitzgerald, JJ., concurred with Lindemer, J.
Levin, J., concurred with Lindemer, J., as to People v Overby. | [
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Clark, J.
Proponent seeks to establish the existence of a nuncupative will of John J. McGarry, deceased. The cause was certified from the probate court to the circuit court, where proponent suffered adverse verdict directed by the court, and she brings error. The decisive question is directing a verdict.
In April, 1917, McGarry, not living with his wife, the proponent, and their child, whom she here represents as guardian, enlisted in the marine corps. He applied for and was granted a policy of war risk insurance in which he named his mother beneficiary and which policy was forwarded to her. The controversy relates to the insurance. .
Proponent’s evidence to prove a will has some inherent weakness and in some respects is flatly contradicted, but, as verdict was directed against her, we, under the rule, give such evidence full credit for the purposes of this 'opinion.
In the summer of 1918, McGarry, while attending a training school for officers at Quantico, was chatting with other members of the corps on a street in Washington, and said to one of them that he wanted his daughter to get the insurance. In August, 1918, McGarry, on leave of absence, visited his parents' in Detroit and called at the office of his attorney who then was acting for him in a proceeding for divorce which he had instituted. While there he said to the attorney that he wanted the daughter to have the insurance.
He was discharged from the service in August, 1919, returned to Detroit and to the home of his parents in poor health, which continued until his death in May, 1920.
The statement made on the street in Washington and repeated in the office of his attorney in Detroit is urged as the nuncupative will.
The statute (3 Comp. Laws 1915, §§ 11820, 11821, 11822):
“Every person of full age and sound mind, may, by his last will and testament, in writing, bequeath and dispose of all his personal estate remaining at his de cease, and all his rights thereto, and interest therein, and all such estate, not disposed of by .the will, shall be administered as intestate estate.
“No will made within this State, except such nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses; and if the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved.
“Nothing contained herein shall affect the validity of a nuncupative will, in which the value of the estate bequeathed shall not exceed three hundred dollars, provided the same shall be proved by two competent witnesses; nor prevent any soldier, being in actual military service, nor any mariner, being on shipboard, from disposing of his wages and other personal estate by a nuncupative will, as he might heretofore, have done.”
The portion of the last section, most important here, is printed in italics.
In a noteworthy and well-considered charge, the trial judge commented that by Federal statutes the marine corps is subject to the laws and regulations established for the government of the navy, except when detached for service with the army by order of the president, and that the record does not indicate that the marine corps had been detached from the navy by presidential order.
Upon the showing by the.record of the peculiar service and duties of the marine corps it may be doubted that they may be classed as mariners in the technical or dictionary sense, as stated by counsel, but in the broader view they may be entitled to be so classed while on shipboard under orders. It is clear, as held by the trial judge, that at the time in question McGarry was not a mariner on shipboard.
We further agree with the trial judge that on this record proponent is entitled to further determination on the other branch of the statute of whether, at the time of making the averred will, McGarry was in “actual military service.” The exception of the statute in favor of the soldier above italicized is founded on the necessity of the case. Were it not for the necessity there would be no exception. And the courts have had this in mind in applying the statute to the facts of a case, in determining “actual military service,” and the quoted words have been held to designate a service “on an expedition,” Gould v. Safford’s Estate, 39 Vt. 498; “when in the enemy’s country performing military service,” VanDeuzer v. Gordon’s Estate, 39 Vt. 111; Leathers v. Greenacre, 53 Me. 561; while “exposed to the perils incident to actual warfare,” Pierce v. Pierce, 46 Ind. 86; and when “about to embark upon a journey to'a foreign land to take part in a war,” In re Stein’s Will, 194 N. Y. Supp. 909. Many other cases are cited by counsel in the excellent briefs, but we think it unnecessary to discuss them.
The necessity for this exception in favor of the soldier respecting wills is found in the stress, peril, urgency, and travail attending his being in actual warfare, his actual going into war or “on an expedition,” his being in military service in the enemy’s country, his being on the eve of embarkation and the like, and the lack of reasonable time, opportunity, and means for putting the will into form and in writing.
In the instant case' there was not actual military service within the contemplation of the statute. See Leathers v. Greenacre, supra; Pierce v. Pierce, supra.
McGarry had no order for embarkation, was not about to embark, or to go on an expedition. He was not in actual warfare, nor in the enemy’s country. When he, stationed as stated, was chatting with fellow soldiers on the street in Washington, and when he, on leave, was consulting his attorney in his office in Detroit, he was not in actual military service, and, within the purview of the statute, the circumstances did not deny to him reasonable time, opportunity, and means to make a formal will in writing.
•No other question requires discussion.
Judgment affirmed.
North, Fellows, Wiest, 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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Wiest, J.
Under a contract, in writing, plaintiff was to remodel a house for defendants for $5,000, of which $2,000 was to be paid when the roof was on and the "house sheathed in rough,” $1,500 “when plastered two coats,” and $1,500 “when finished.” When the roof was on and the “house sheathed in rough,” plaintiff requested payment of the earned $2,000, and, after delay causing him financial embarrassment, he was paid. When the house was plastered two coats plaintiff requested payment of the earned $1,500. After some demur he received a check for $500, which he negotiated to pay bills, and upon which payment was stopped by defendants, but later paid when they were sued by the holder thereof. Defendants refused to pay the $1,000 balance, also due, and plaintiff quit the job, brought this suit to recover the $1,000, less $278 owing for labor and materials, and, upon trial before the court without a jury, was awarded a judgment for $727. Defendants review by writ of error, claiming the contract was nonapportionable and plaintiff could not recover thereon without completion of the whole job, and, under notice of recoupment, set up the claim that the cost of completing the job exceeded the contract price.
The evidence is persuasive that plaintiff was fully justified, by defendants’ refusal to pay, in quitting the job. Plaintiff was entitled to hdve performance on the part of defendants as expressly agreed in the contract, and was not required to forego the financial aid so provided and carry the burden of expenses to the completion of the job. Holding him obliged to do so would not only contravene the contract provision, but establish a rule well calculated to prove ruinous to contractors of limited financial means.
Defendants breached the contract, could not demand further performance, nor hold plaintiff for the added cost of completing the job. The contract, by its express terms, apportioned payments thereof, and there is no merit in the claim that it was nonapportionable. Dibol & Plank v. Minott, 9 Iowa, 403. Under the contract plaintiff was entitled to receive the second payment of $1,500, but was bound to pay for labor performed and materials furnished to that time.- Defendants’ breach of the contract justified plaintiff in quitting the job, but did not abrogate his right to remedy under the contract, or drive him to recovery upon the quantum meruit. See Geary v. Bangs, 138 Ill. 77 (27 N. E. 462).
The judgment is affirmed, 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 for an accounting, to determine the ownership of a real estate mortgage, and to have' defendant specifically perform a verbal agreement to purchase the undivided interests of plaintiffs in a parcel of real estate. Catherine Williams was the wife of defendant and the mother of plaintiffs by a previous husband, and, by her will, she devised the homestead to defendant and her three children, share and share alike. Plaintiffs claim that defendant, after probate of the will, agreed verbally to purchase their interests in the property and pay each of them $2,500, and they seek a decree compelling him to carry out the agreement. Defendant denied any such agreement. The circuit judge was unable to find the alleged agreement and held that, even if made, it was void under the statute of frauds. A note was given Thomas Williams and Catherine Williams, his wife, “or the survivor,” secured by mortgage on real estate, in which the mortgagees were designated as Thomas Williams and Catherine Williams, his wife, but nothing therein stated about survivorship. Plain tiffs claim an interest in the mortgage, and defendant claims by right of survivorship, as designated in the mortgage note.
Plaintiffs appealed from a decree adjudging defendant owner of the note and mortgage and dismissing their bill. Two questions are presented:
(1) If a note, payable to “Thomas Williams and Catherine Williams, his wife, or the survivor,” is secured by a real estate mortgage to “Thomas Williams and Catherine Williams, his wife,” and the wife dies, does the survivor own the note and mortgage?
(2) May the verbal agreement to purchase the interests of plaintiffs in the real estate be enforced? '
In this jurisdiction the answer to the first question is yes. Such was the clear intent expressed in the note, and ownership may be so provided in case of personal property. Lober v. Dorgan, 215 Mich. 62; Scholten v. Scholten, 238 Mich. 679. See, also, In re Peterson’s Estate, 239 Mich. 452. The debt was evidenced by the note, payment thereof secured by the mortgage, and the owner of the note owns the mortgage.
We do not pass upon the question of whether the claimed agreement was made to purchase plaintiffs’ interests in the real estate because, if it was made, it was void under the statute of frauds. The case presents no part performance taking the agreement out of the statute.
The decree in the circuit is affirmed, with costs to defendant.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Clark, J.
Of Act No. 236, Local Acts 1891, we quote the title and a section:
“An act to incorporate the village of Fruitport, in the county of Muskegon.
“Section 1. The people of the State of Michigan enact, That the following described territory in the counties of Muskegon and Ottawa, Michigan, to-wit: All of sections thirty-five and thirty-six in township nine north, range sixteen west, in Muskegon county, and that part of section two in township eight north, range sixteen west, in Ottawa county, located north and east of Stahl bayou, and north and west of Spring lake, said last mentioned tract containing nineteen and sixty-two hundredths acres, be, and the same is hereby constituted a village corporate, by the name of the village of Fruitport.”
Plaintiff is the owner of lands in Ottawa county included in the description set forth in the act, which lands he purchased lately on contract. He filed this bill to restrain the defendant village from exercising jurisdiction and control, including taxing, of his lands, alleging that as to his lands the law is void because of section 20, art. 4, Constitution of 1850:
“No law shall embrace more than one object which shall be expressed in its title.”
The same provision is in section 21, art. 5, Constitution of 1908. Plaintiff had decree. Defendant has appealed.
The sole question presented for decision is whether the act offends the quoted provision of the Constitution, and it is presented as a thing apart, free from any other matter or consideration. We dispose of it accordingly.
It may be that the words “An act to incorporate the village of Fruitport” would have been a sufficient title, and that the words “in the county of Muskegon” were unnecessary, but we do not agree with appellant that the words last quoted may, for that reason, be disregarded as surplusage. 36 Cyc. p. 1033.
A typical case of rejecting surplusage is where the title is to “regulate and prohibit,” and the act is merely to prohibit. No harm is done. No one is misled. The word “regulate” may be discarded. Jasnowski v. Judge of Recorder’s Court, 192 Mich. 139. Under the guise of discarding surplusage, a court cannot reject a part of the title of an act for the purpose of saving the act. Schmalz v. Wooley, 56 N. J. Eq. 649 (39 Atl. 539).
A purpose of the provision of the Constitution is to “challenge the' attention of those affected by the act to its provisions.” Commerce-Guardian Trust & Savings Bank v. State of Michigan, 228 Mich. 316.
The title here is restrictive. It restricts the operation of the act to Muskegon county. The act goes beyond the restriction. As was said in Schmalz v. Wooley, supra: “The title £is erroneous in the worst degree, for it is misleading.’ ”
We think the case ruled in principle by Wilcox v. Paddock, 65 Mich. 23, where a title referring to State lands in the particular county was held not to sustain a provision in the act relating to lands in another county. See Atchison, etc., R. Co. v. Kearny Co., 58 Kan. 19 (48 Pac. 583); State v. Burr, 73 Mont. 586 (238 Pac. 585); Village of Fairview v. City of Detroit, 150 Mich. 1.
Decree affirmed. Costs to plaintiff.
Fead, C. J., and North, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Potter, J.
Plaintiff, a girl 17 yeárs of age, of at least average intelligence, was employed in defendant’s laundry. Ordinarily she received sheets, pillow cases, towels, and other fabrics from the mangle or ironer, and folded them. On the day of her injury she had been feeding towels into the mangle for about five minutes, when her hand was caught between the guard and the steam drum or chest of the mangle and drawn into it, and she thus injured.
Plaintiff alleged defendant’s negligence, among other things, in employing her, contrary to the provisions of Act No. 285, Pub. Acts 1909 (2 Comp. Laws 1915, § 5322 et seq.), as amended; failure to properly instruct her in the operation of the ironer; to afford her a safe place to work; to have the machine properly equipped with guards; having the machine equipped with defective guards; placing plaintiff at hazardous work; carelessly and negligently attracting plaintiff’s attention while she was operating the machine; failure to have the machine equipped with guards in accordance with Act No. 285, Pub. Acts 1909; and placing plaintiff under the direction of incompetent foremen.
There was testimony showing plaintiff’s familiarity with the machine, its operation, its defective guards, and dangerous character. It is insisted that plaintiff was guilty of contributory negligence as a matter of law, and that the trial court ought not to have submitted that question to the jury.
It is conceded by defendant that at the time of plaintiff’s employment, ánd at the time of her injury, she was under 18 years of age, and that defendant did not have the employment permit required by law for her employment.
Plaintiff, having been illegally employed, was not within section 5429, 2 Comp. Laws 1915, and defendant was guilty of negligence, under the circumstances, in employing her, 2 Comp. Laws 1915, § 5331; Act No. 280, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 5331); Act No. 341, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 5330); Grand Rapids Trust Co. v. Petersen Beverage Co., 219 Mich. 208; Szelag v. Jordan, 223 Mich. 672; Gwitt v. Foss, 230 Mich. 8, and could not defend on the ground of assumption of risk or the negligence of a fellow-servant. Gee v. Brunt, 214 Mich. 679.
There was evidence that the guard on the machine -was loose; that plaintiff was not instructed as to the dangerous character of the employment; that the guard on the machine was improperly adjusted; that defendant’s foreman called sharply to plaintiff while she was operating the machine, momentarily attracting her attention; and that at that time her hand was caught and drawn into the machine and injured.
On cross-examination plaintiff testified:
“Q. You testified that Mr. Richards spoke to you?
“A. Yes.
“Q. What did he say to you?
“A. To straighten out that towel.
“Q. What did you do then?
“A. I looked at him.
“Q. You turned around from your work and looked at Mr. Richards?
“A. I just turned on the side, in this direction, to see if he meant me.
“Q. You didn’t know at the time that he did mean you, when you turned oh the side?
“A. No.
“Q. During the time your eyes were off your work you suffered this injury?
“A. Yes.
“Q. And your fingers went into the machine?
“A. Yes, the guard went over the top of my hand, over the wrist.
“Q. The guard fell?
“A. Yes, the guard fell.”
Was plaintiff guilty of contributory negligence as a matter of law? The fact that plaintiff was momentarily inattentive to the task in hand does not, as a matter of law, warrant the conclusion that she was guilty of contributory negligence. 39 C. J. p. 1199, § 1376.
In Conway v. Naylor, 222 N. Y. 437 (119 N. E. 71), plaintiff was working, with full knowledge of its dangerous character, near a revolving crank shaft collar with protruding set screws. His clothing was caught thereby and plaintiff injured. It is said:
“It cannot be said, as matter of law, that a moment of forgetfulness cast upon the plaintiff the responsibility for his injury. Palmer v. Deering, 93 N. Y. 7; Larsen v. Lackawanna Steel Co., 146 N. Y. App. Div. 238 (130 N. Y. Supp. 887). The most that can be said is that reasonable minds may differ as to whether the plaintiff’s actions constituted negligence; it cannot be said that the facts did not warrant a reasonable inference that the plaintiff was careful. If this be so, a case was made out fpr the jury. Kettle v. Turl, 162 N. Y. 255 (56 N. E. 626); Sharp v. Railroad Co., 184 N. Y. 100 (76 N. E. 923, 6 Ann. Cas. 250); Sigel v. American Seating Co., 161 N. Y. App. Div. 54 (146 N. Y. Supp. 350).”
In Ammons v. Manufacturing Co., 165 N. C. 449 (81 S. E. 452), plaintiff was employed in moving a heavy planer. The machine was swung up on chains. Another employee asked plaintiff to show him the ticket on the machine. As plaintiff turned his head to reply, the planer fell on his feet. Plaintiff was held not guilty of contributory negligence as a matter of law.
Knowledge alone of the dangerous character of the instrumentality which causes an injury is not sufficient to charge the injured party with contributory negligence, as a matter of law; the question in each case being whether plaintiff did or did not have the danger in mind at the time of the injury complained of. Dundas v. City of Lansing, 75 Mich. 499 (5 L. R. A. 143, 13 Am. St. Rep. 457); Graves v. City of Battle Creek, 95 Mich. 266 (19 L. R. A. 641, 35 Am. St. Rep. 561); Grandorf v. Railway Co., 113 Mich. 496; Vergin v. City of Saginaw, 125 Mich. 499.
The rule above indicated has been applied to cases .substantially similar to this.
In Brancheau v. Monroe Binder Board Co., 229 Mich. 681, there was testimony that no guard was on the machine which plaintiff was operating when injured, and it was held that plaintiff, who was illegally employed by defendant, was not guilty of contributory negligence, as a matter of law.
In Gwitt v. Foss, 230 Mich. 8, plaintiff, a boy less than 15 years old, and another employee were using a cut-off saw. What was being done was not a part of their regular employment. Plaintiff testified that at the moment he was handing a stick across the table of the cut-off saw he forgot the cut-off saw was there. This court said:
“The purpose of the statute is to prohibit the exposure of young boys to such danger. It is a well-known fact, one of which the legislature took cognizance, .that boys of his age are not watchful. They do things impulsively, and do not exercise the care which older persons do when in dangerous positions.
“On the proof as submitted we think the court was right in submitting this question to the jury.”
The question of plaintiff’s contributory negligence was properly submitted to the jury. No other question needs discussion.
Judgment is affirmed, with costs.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Sharpe, J.
The Allegan Silver Fox Company, in November, 1925, sold and delivered to the Detroit Silver Fox Farms 58 pair of silver black fox at the price of $27,706.80, of which $100'was paid, verbally retaining title, together with their increase, until paid for. On January 22, 1926, a chattel mortgage was given on the property sold to secure the amount then unpaid, $24,746.80. In the meantime, the Detroit company had sold and issued certificates of title to purchasers of all but three of the foxes, subject to any indebtedness due to it, but without regard to that yet owing to the Allegan company. Possession, however, had not been delivered. In April, 1926, the assets of the Allegan company were turned over to •plaintiff as trustee for certain persons who had advanced money to keep it out of bankruptcy. Defendant, a practicing attorney in that county, who had theretofore rendered service for the company for which he had been paid, was employed by the plaintiff to go to Detroit and investigate the financial condition, of the Detroit company. He did so, and reported that, while not adjudged a bankrupt, it was so in fact. He was instructed to return to Detroit and effect a compromise or settlement, if possible. He returned to Detroit, and found that a receiver had been appointed for the Detroit company. Through his efforts he secured an order of the court for the return of the foxes to the Allegan company, under which 248 were returned. This included a part of the increase. The defendant, acting for the plaintiff, then sought to work out an arrangement under which those who had made purchases from the Detroit company might secure title thereto. The chattel mortgage was later foreclosed. Some of the foxes were actually sold and paid for and the remainder bid in for the plaintiff. The proceeds of the sale passed into the defendant’s hands. A part thereof was turned over to plaintiff by him. He soon after made a full report to the plaintiff, and suggested by way of compromise the allowance of $3,626.42 in payment for the services rendered. Being unable to reach a settlement, plaintiff filed the bill of complaint herein for an accounting. Defendant answered, claiming that the fair value of his services was $4,000. Plaintiff had decree fixing such value at $2,000, from which both parties appeal.
It is very difficult for this court to fix the compensation an attorney should receive in such a case as this. The defendant kept no memorandum of the time actually spent by him in the service of the plaintiff. We should, of course, consider the time spent, the amount involved, the character of the service rendered, the skill and experience called for in the performance of the work, and the results achieved. That the defendant is an 'attorney of standing in the community in which he lives cannot be doubted. This is evidenced by the fact that he was employed by the plaintiff and his associates. The results obtained indicate the exercise of skill and judgment on his part. Plaintiff had proof that on a fair per diem charge, such as was customary among attorneys in Allegan county, defendant’s compensation should be less than $1,000, while defendant’s witnesses, in answer to hypothetical questions in which the services rendered were outlined, expressed their opinion that an allowance of $4,000 should be made. We have read the record with care. Judge Warner, who heard the case, was until a few years ago a practicing attorney in an adjoining county. In view of the conflict in the testimony, we are loath to disturb the conclusion reached by him, that $2,000 was a fair allowance.
The decree so providing is affirmed. As both parties have appealed, no costs in this court will be allowed.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Wiest, J.
The plaintiffs individually own many shares of the capital stock of the Michigan-Colorado Copper Company. The stock is worthless. Plaintiffs claim they were induced to purchase the stock by false and fraudulent representations made to them by officers and agents of the company, acting in concert, and they filed the bill herein to have their stock holdings canceled, their several investments therein refunded by the company, and its officers and agents who perpetrated the fraud held liable in damages. The company has been adjudged a bankrupt by the Federal court for the district of Colorado. In the circuit the bill, as to 19 of the plaintiffs, was dismissed, 5 plaintiffs were granted relief against the company and all of the defendants, except 1, and 23 plaintiffs were granted relief against the company and all of the defendants. In the circuit a motion by defendants to have the bill dismissed was denied. Forty-seven persons joined as plaintiffs in filing the bill. In purchasing stock' there was no concert of action by plaintiffs, and, while there was unity among them in filing. the bill, there existed no community of interest beyond having their stock holdings canceled and each one having a separate money decree. Counsel for defendants insist that the bill is multifarious, while counsel for plaintiffs contends that joint action by persons wronged by the carrying out of a fraudulent design by concerted acts of others is permissible. Defendants appealed.
At the very threshold of our consideration of the case we are confronted with the question of equitable .jurisdiction. If no decree can be entered against the ■corporation, then there is no equity in the bill. The .Michigan-Colorado Copper Company was named a defendant in the bill, but no process was served upon it ;and it did not appear in the suit. With reference to service of process the record states:
“Returns on summons show service on all defendants except Michigan-Colorado Copper Company, A. C. Carton as president of Michigan-Colorado Copper Company, and Edward F. Loud as secretary of Michigan-Colorado Copper Company, service, however, being made on Carton and Loud as individuals.”
This service of process limited decree to damages individually sustained by plaintiffs against defendants guilty of fraud and called for separate decrees varying in amounts and differing in parties plaintiff.
In a suit to cancel subscriptions to capital stock, or stock holdings, the corporation is a necessary party. Unless the corporation is a. party to the suit, and thereby subjected to the decretal power of the court, there can be no decree directing it to cancel subscriptions to its capital stock or severing the relation of its stockholders. The decree in the circuit canceled the certificates of stock held by plaintiffs upon delivery thereof to the secretary of the Michigan-Colorado Copper Company. The Michigan-Colorado Copper Company was not before the court under process or appearance, and the part of the decree mentioned was a nullity.
The circuit judge seemed to think that the appearance of certain of the corporate officers, under designation of their offices, constituted a sufficient appearance of the corporation. We do not think so, for we attribute their appearance, and the designation of their relation to the corporation, to the character in which they, as individuals, were summoned. Summoning “A. C. Carton as president of the Michigan-Colorado Copper Company, a corporation,” and “Edward F. Loud, as secretary of the Michigan-Colorado Copper Company, a corporation,” was not a summoning of the corporation, and their appearance in the form they were summoned did not constitute an appearance of the corporation in fact or in law. This was evidently the understanding of counsel for plaintiffs, for he entered an order taking the bill as confessed by the Michigan-Colorado Copper Company for want of appearance. The order pro confesso was a nullity.
Without cancellation of the stock holdings by plaintiffs and severance of their relations to the corporation, the 47 issues in the circuit were for damages only, and when it So appeared the case should have been dismissed without prejudice to the rights of plaintiffs to prosecute actions at law for damages. We may not now transfer the case to the law side of the court, for on the law side each person seeking damages will have to prosecute his individual suit, and we cannot split this suit in equity into 28 suits at law.
Without the Michigan-Colorado Copper Company before the court the asserted community of interest of plaintiffs, claimed to authorize their joinder for equitable relief, does not fall within the doctrine stated in Hamilton v. American Hulled Bean Co., 143 Mich. 277. The only equitable relief prayed was against the Miehigan-Colorado Copper Company, and such relief was rendered impossible by failure to summon that corporation.
The decree is reversed and the bill dismissed, with costs to defendants.
Fead, C. J., and Noeth, Wiest, Claek, McDonald, and Potter, JJ., concurred. Sharpe, J., did not sit. | [
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North, J.
At his death in 1919 Felix Kieruj was the owner of lot 5 of Fox and Quinn’s subdivision of the city of Detroit. Sigmund J. Dziatkiewiez was named executor of the estate and by the terms of the will was directed to reduce all of the property to cash and to distribute it in various amounts to numerous legatees specified. While the estate was pending the property above described was sold at tax sale because of the nonpayment of State and county tkxes for the year 1918 and it was also sold because of unpaid city taxes for 1921. The plaintiff herein claims title to this property as the assignee or grantee of the purchasers at these tax sales. She filed a petition for a writ of restitution and also instituted a suit in ejectment; but by stipulation these proceedings were consolidated and a bill of complaint was filed by which the plaintiff seeks to1 have her title to this property quieted. In the interim the Union Trust Company had been appointed administrator de bonis non of the estate of Felix Kieruj, deceased. The trust company, the former executor, and certain of the legatees were made defendants. These defendants deny the right of the plaintiff to relief, and in cross petitions ask that it be decreed that the plaintiff has no valid title to this property and that upon payment by the defendants of the amounts required to redeem from the tax sales, all claim of title through said tax sales be deemed canceled and released. After the hearing in circuit court a -decree was entered in which the relief sought by plaintiff was denied and her title to the premises involved held to be invalid for various reasons set forth in the decree, and the estate of Felix Kieruj was allowed to redeem the property from the tax claims upon payment of certain sums fixed by the court. The plaintiff has appealed.
Numerous questions are presented by the record, but it will be necessary to consider only those that are controlling as to the validity or invalidity of each of the tax titles through which the plaintiff claims. If either title is found to be valid, the plaintiff must prevail; but if neither is free from fatal defects, the defendants are entitled to relief.
1. Has the plaintiff acquired an absolute title through the auditor general’s deed given incident to the sale for State and county taxes? This deed bears date of May 7, 1923. The statutory notice of the right to redeem within six months (1 Comp. Laws 1915, § 4138) was served on the executor, Sigmund J. Dziatkiewicz, June 30, 1923, and the return of such service was duly filed with the county clerk. But the same section of the statute also requires service of such notice "upon the grantee or grantees under the tax defed issued by the auditor general for the latest year’s taxes, then appearing of record,” etc. The taxes assessed against this land for the year 1856 were not paid. At the tax sale held in October, 1857, the property was bid in by the State. The statute then in force provided for redeeming the land at any time within one year next succeeding the sale. This parcel was not redeemed. November 17, 1858, the auditor general executed and delivered a deed thereof to Edward S. Snow who had purchased through the auditor general’s office. This deed was properly recorded in the office of register of deeds for Wayne county December 2, 1858. Neither actual nor substituted service of the statutory notice was obtained on the grantee in this tax deed. It is urged by the plaintiff that this deed was prematurely issued by the auditor general and was void, but this contention is not well founded. It is further asserted by the plain tiff that at best this tax deed is only an ancient document, long since outlawed, and therefore service on the grantee named therein of notice to redeem should not be required. The statute specifically states the steps which must be taken by the grantee in a tax deed in order to perfect his title, and to these requirements he must conform. The provisions of the statute are mandatory. G. F. Sanborn Co. v. Richter, 176 Mich. 562; Marshall v. Anderson, 233 Mich. 480; Hildie v. Eckhart, 203 Mich. 346. Attention is called by the appellant to the statutory provision (1 Comp. Laws 1915, § 4071) whereby the rights of a purchaser at a tax sale under certain conditions are barred if not perfected within five years after the purchaser is entitled to a tax deed. This provision was not contained in the law at the time the tax deed was issued to Snow and can have no retroactive application. Holmes v. Soule, 180 Mich. 526; Jacques v. Bosman, 181 Mich. 495. The statute provides the method by which the plaintiff was required to obtain either actual or constructive service of the notice of the right to redeem upon the grantee in this tax deed which was a matter of record. The plaintiff has not perfected her title, and the defendants have the right to redeem .from the sale of this land for State and county taxes. G. F. Sanborn Co. v. Richter, supra.
2. The remaining question for consideration is whether the plaintiff has a valid 99-year lease of the premises in question, which leasehold interest she claims to have obtained incident to the sale of this property for city taxes. The Detroit city charter requires service of notice to redeem, and it is essential that the property should be described with sufficient accuracy to constitute fair and reasonable notice to the party on whom it is served. In the notice to redeem, the description in this case was typewritten and appears in the record in the following form:
“City of Detroit
“Lot 5. N. Warren. Fox & Quinn Sub’n of west 40 acres of S. E. ¼ of Sec. 4, T. 2 S., R. 11 E., Springwells Twp., Wayne Co., Mich.”
The words “City of Detroit” appear to have been inserted at the head of this notice in typing different from that in the body of the notice. The trial judge found and recited in- his decree that the lease from the city of Detroit was void and gave as a reason the following:
“Because the notice required in the charter and claimed to have been served did not contain a correct description of the land as conveyed by the deed as it did not set forth that the land was in the city of Detroit ; the words ‘city of Detroit’ not being in the notice served, and therefore not identifying the property or conveying to the mind of the party the information as to what property was affected by the sale.”
This provision in the decree had been preceded by a specific finding of the trial judge wherein he stated:
“I find as' a fact that this notice signed by John Faust was insufficient in the description, in that at the time it was signed and filed it did not contain the words ‘city of Detroit.’ They were added thereafter by some person unknown.”
Aside from the notice itself, the testimony concerning it came largely from the witness who served the same. His testimony was conflicting and of an uncertain character, and he appears to have been desirous of favoring the plaintiff’s case as much as possible. The circuit judge had full opportunity to hear and observe this witness and to note his attitude while testifying ; and we find nothing in the record which would justify us in setting aside the determination'of the circuit judge as set forth in the portion of the decree above quoted. Notwithstanding the notice served contained a description which might be sufficient in an ordinary conveyance between individuals, although it did not contain the words “city of Detroit,” we are in accord with the circuit judge in holding that the notice to redeem which did not describe this land as being in the city of Detroit was fatally defective because, instead of being fair and reasonable, such a notice would tend strongly to mislead and deceive by its failure to- disclose that the land was in fact located in the city of Detroit rather than in an outlying township. In Jackson v. Sloman, 117 Mich. 126, Justice HOOKER said:
“We should, however, note a distinction between cases upon conveyances between private persons, arising out of a sale and intentional transfer, and those where title is sought to be divested through tax proceedings. The requirements as to the description in tax proceedings are not only aimed at securing an identification of the property that will be certain, but are designed to afford notice to the owner that proceedings affecting his property are pending. The description should therefore be such as not to mislead him, if it departs from strict accuracy as stated by statutory rules.”
The notice to redeem from the city tax sale was also defective in that it in no way disclosed that it was intended as a notice to the executor of the estate of Felix Kieruj, deceased, or that it pertained to the property of Felix Kieruj or his estate. It was served on Sigmund • J. Dziatkiewicz who at that time was acting as the executor of this estate. The Detroit city charter requires service of the notice to' redeem on “the owner or occupant of or parties in interest in such real estate, as shall appear by the last recorded deed conveying title thereof.” In this case there is no testimony whatever of service upon either the owner or occupant or upon the parties in interest, except the service upon Sigmund J. Dziatkiewicz who was the executor and also a legatee. Notwithstanding there is no provision in the charter for such service, the claim is here made that because of the provisions in the will of Felix Kieruj valid service could be made on his executor. If this be conceded for the purpose of this case, still we are constrained to hold that such a notice to be effective must in some reasonable, clear, and definite manner disclose that it was served on the recipient as such executor or that the property involved belonged to the estate of the deceased. The notice served in the instant case contained no information whatever of this- character. In giving the notice a printed form such as is provided for in the city charter was used. This printed form was addressed : “To the owner or occupant or parties in interest of the'real estate herein described.” The impracticability and the unfairness of such a notice becomes apparent if one contemplates its service upon a trust company having charge of many estates. Omitting to refer to the representative character of the one served or to identify the property as a part of the estate to which it belongs would result in the failure of the notice to serve the very purpose for which it was intended. The following has been said relative to the statutory notice to. redeem, and it applies with equal fitness to the Detroit charter provision for redemption:
“This section was designed’ as a relief to owners of delinquent tax lands, and to prevent the divestiture of their titles, beyond redemption, through ignorance, inattention, or carelessness. It plainly indicates that the purchaser is expected to give an express notice, wherever practicable, with a six-months interval thereafter, within which the land may be redeemed. It imposes, upon the purchaser the obligation of good faith, and an earnest effort to ascertain the owner and his whereabouts, and an honest attempt to give him actual notice and the statutory opportunity. Any effort to avoid it through fraud or collusion, or intentional omission to comply with the spirit of this statute, should not be permitted to be effective, if the courts can legitimately avoid it.” Winters v. Cook, 140 Mich. 483.
The validity of each of these tax titles held by the plaintiff is assailed on other grounds, but a review of the questions thus presented is unnecessary. The amount the defendants should pay to the plaintiff as a condition of redeeming the land has been fixed in the decree entered in the circuit and no complaint is made concerning the same.
The decree of the lower court is affirmed, with costs to the appellees.
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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] |
Per Curiam.
We are asked to determine the date when plaintiff retired from the Michigan National Guard for purposes of computing his retirement pay under the military establishment act, 1909 PA 84, MCLA 32.1-32.85; MSA 4.591-4.675 and the Michigan Military Act, 1967 PA 150, MCLA 32.501-32.851; MSA 4.678(101)-4.678(451). Plaintiff contends that his retirement occurred at the time he became eligible for retirement benefits in July of 1972. Defendant maintains that it was plaintiff’s separation from active service in August of 1967 which occasioned his retirement.
Plaintiff, recently deceased, was an officer with more than 31 years of military service who attained the rank of Brigadier General in the Michigan National Guard. On August 9, 1967, plaintiff’s recognition as an officer in the National Guard of the United States was withdrawn in accordance with established practice by reason of maximum service pursuant to National Guard Regulation No. 20-4, § 5c(1)(b). As a result, he was separated from service with the Michigan National Guard and his name was placed on the state military retired list effective August 10, 1967, as provided by statute. MCLA 32.811(b); MSA 4.678(411)(b); MCLA 32.805; MSA 4.678(405).
On May 30, 1972, a special retirement board of officers was convened pursuant to 1967 PA 150, § 421; MCLA 32.821; MSA 4.678(421), for the purpose of considering plaintiff’s application for retirement. It made the following recommendation:
" * * * the Board recommends that Brigadier General Noble O. Moore, having been found qualified for retirement benefits, be retired pursuant to the provisions of § 49 and 49c. P.L. 84, 1909 as amended and § 435, PA 150, 1967, State of Michigan, beginning 11 July 1972.”
The Governor approved this recommendation on June 8, 1972.
Plaintiff’s retirement benefits were calculated pursuant to 1909 PA 84, § 49, as amended, which provides that retirement benefits are to be computed on the basis of the active service annual pay to which an officer was entitled "at the time of his retirement”. Plaintiff’s benefits were computed using the 1967 date of separation from active service and as a result his pay was $611.78 per month less than he would have received had defendant used the rate of pay in effect in 1972.
Plaintiff filed a complaint in the Court of Claims contending that he retired in July of 1972, and that his retirement benefits should be calculated on the rate of pay in effect at that time. Defendant moved for summary judgment, briefs were filed, and the Court of Claims held that plaintiff’s monthly retirement benefit was correctly calcu lated based upon the pay tables in effect at the time of his retirement in 1967. The Court of Appeals affirmed. 60 Mich App 338; 230 NW2d 422 (1975). This Court granted leave to appeal on September 9, 1975. We reverse.
This Court has observed many times that the first postulate of statutory construction is to discover and give effect to the intent of the Legislature. See, e.g., Dussia v Monroe County Employees Retirement System, 386 Mich 244, 248; 191 NW2d 307 (1971). The instant task of determining when plaintiff retired for purposes of computing his retirement benefits is one of first impression. We are aided, however, by 1967 PA 150, § 103, which contains a general statement of legislative intent on the construction of the act. Section 103 provides:
"It is the intent of this act and other acts of this state affecting the Michigan national guard, the Michigan defense force and the unorganized militia to conform to applicable acts and regulations of the United States. The laws of this state shall be construed to effect this intent, and anything to the contrary shall be held to be null and void as long as the subject matter shall have been acted upon by the United States. Upon any subject not acted upon with reference to these matters by the United States, any law or regulation of this state shall be in full force and effect.” MCLA 32.503; MSA 4.678(103).
The Federal Armed Forces Act, 10 USC 1401, provides that monthly retirement pay to those retired under § 1331 of the act shall be computed "at rates applicable on date when retired pay is granted”. It is not disputed that retirement pay was not granted to plaintiff until 1972.
While the Federal act technically does not apply to the payment of state retirement benefits, this area is particularly appropriate for a construction harmonizing the statutes involved. A great percentage of the payment for virtually all National Guard activities comes from the Federal government. Here, plaintiff’s retirement benefits paid by the Federal government and calculated using the 1972 date were subtracted from the state rate of pay calculated at the 1967 rate. The state paid only the difference. The Michigan Military Act contains numerous references to Federal procedures. Indeed, plaintiff was separated from active service because under Federal regulations he had served the maximum allowable time.
The Legislature, by enacting § 103, wisely recognized that it could not anticipate the interstices which unavoidably develop in legislation of this scope. This Court cannot say with any degree of confidence that the Michigan Military Act contemplates a specific date of retirement for purposes of computing retirement benefits. However, the subject matter of 10 USC 1401, "computation of retired pay”, does establish a certain date for such purposes. Accordingly, we conclude that the intent of the Legislature is best effectuated by construing the Michigan Military Act to avoid incongruence with the Federal provisions.
This conclusion finds support in the rule that where "language is of doubtful meaning, a reasonable construction must be given, looking to the purpose subserved thereby”. People v McFarlin, 389 Mich 557, 563; 208 NW2d 504 (1973) (quoting Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 [1948]). Our conclusion gives effect to the spirit and purpose of the act in light of the existing Federal involvement and the express language of § 103. See Aikens v Dept of Conservation, 387 Mich 495, 499; 198 NW2d 304 (1972).
We hold that the rate of pay for computing retirement benefits under 1909 PA 84, § 49, as amended; MCLA 32.49; MSA 4.640(1) shall be that rate of pay applicable on the date when an individual becomes eligible for such benefits. Here, that date is July 11, 1972, plaintiffs sixtieth birthday.
The Court of Appeals is reversed and the cause is remanded to the Court of Claims for entry of summary judgment in favor of plaintiff. No costs, a public question.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Lindemer, and Ryan, JJ., concurred. | [
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Williams, J.
(to affirm). This case concerns government immunity from liability for tort. Such immunity may arise either from judicial policy or legislation. This case does not involve judicially created but rather legislatively created immunity.
On appeal the question raised by the Court of Claims grant of summary judgment is whether the facts pled in this case, the death of an employee of a subcontractor who was engaged in the construction of a state highway when he was killed by falling earth when tunneling under a railroad right-of-way, deal with a "case[s] wherein the government agency is engaged in the exercise or discharge of a governmental function” as provided by statute.
We hold that the facts as pled deal with a "case[s] wherein the government agency is engaged in the exercise or discharge of a governmental function” as defined by common-law precedent at the time of the enactment of the pertinent governmental immunity statute and affirm the Court of Appeals.
I — Governmental Immunity Statute
The legislative provision for governmental immunity is contained in MCLA 691.1407; MSA 3.996(107). This section provides:
"Except as in this act otherwise provided, all government agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” (Emphasis added.)
To this general grant of immunity the Legislature has enacted certain exceptions none of which here is applicable.
The key to determining the applicability of the immunity defense is in ascertaining whether or not the particular case is one "wherein the * * * agency is engaged in the exercise or discharge of a governmental function”.
The term "governmental function” is nowhere defined in the statute. However, this does not mean that we have been left with no guidelines in determining what the Legislature intended by adopting this particular phraseology.
"Governmental function” is a term of art which has been used by the courts of this state to describe those activities of government which due to their public nature should not give rise to liability at common law. Through many years of application, the label of governmental function has been attached to a number of governmental activities.
Words and phrases which have acquired meaning in the common law are interpreted as having the same meaning when used in statutes dealing with the same subject matter as that which they were associated at the common law. 2A Sutherland Statutory Construction (3d ed, Sands), § 50.03, pp 277-278. See People v Den Uyl, 320 Mich 477, 486; 31 NW2d 699 (1948).
It is therefore reasonable to conclude that the Legislature, in choosing the precise terminology of "governmental function” to describe the limits of governmental immunity, intended that activities described as governmental functions at common law at the time of enactment of the new legislation would enjoy statutory immunity from tort liability.
The historical context in which the governmental. immunity statute was enacted suggests that the Legislature, alarmed at the prospects of liability for government activities previously protected, sought to restore the immunity enjoyed by municipalities prior to Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), and to codify the state’s existing immunity to insulate governmental entities from tort liability.
The Legislature accomplished this goal by employing a term, "governmental function”, which served to mark the boundaries of common-law immunity, and used it to set the limits of statutory immunity.
This conclusion is supported by the language employed in MCLA 691.1407; MSA 3.996(107). This section provides in pertinent part:
"Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immu nity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
Obviously this language must be construed as an "affirmation” of case-law precedent on the subject of the state’s immunity.
II — State Was Engaged in a "Governmental Function”
Given that the Legislature intended activities regarded as governmental functions under common law should be considered governmental functions under the statute, the question becomes whether under the facts the Department of State Highways at the time of decedent’s fatal injury was engaged in the exercise or discharge of a "governmental function” under common-law immunity.
The question whether or not a government agency was engaged in a governmental function will not always be easily answered. In many instances governmental activities have never been examined in terms of whether they constitute governmental function and in others the case-law precedent is less than clear. In those cases the courts will be forced to adapt case-law precedent as best they can and will no doubt be called upon to use their own creative genius to resolve the case. However, in this case, prior court decisions have clearly established that the activity involved —the maintenance and improvement of a highway —is a governmental function.
In Gunther v Board of County Road Commissioners of Cheboygan County, 225 Mich 619, 631; 196 NW 386 (1923), this Court held:
"Our former decisions as well as the great weight of authority sustain the contention of defendants’ counsel and the holding of the trial judge that in this work [maintenance and repair of highways] the counties are discharging a governmental function and in the absence of statute are immune from liability for their negligence or that of their agent in carrying on this work.”
See In re Claim of Moross, 242 Mich 277, 281; 218 NW 683, cert den 278 US 635; 49 S Ct 32; 73 L Ed 552 (1928) ["construction, maintenance and repair of a highway are governmental function”] and Johnson v Board of County Road Commissioners of Ontonagon County, 253 Mich 465, 468; 235 NW 221 (1931).
Confronted by the uniformity and clarity with which prior case law has treated the repair, maintenance and construction of highways as a governmental function it is difficult to conclude other than that the activity involved in this case must be regarded as a governmental function under the statute and that as a result the defense of governmental immunity is available to the State Highway Department.
Ill — Conclusion
The result reached in this decision is the result mandated by the governmental immunity statute as it presently exists.
This statute is not as precise or pervasive as it could be. The practical effect of the Legislature’s decision to establish governmental immunity in the manner it has chosen is to return much of the task of determining the limits of governmental immunity to the courts. Under the present statutory scheme the judiciary, looking to past precedents (which in many cases are less than clear), must decide on a case-by-case basis which activities may be classified as governmental functions and thus entitled to immunity. Until such judicial decisions are made, which may not be until a number of years have passed, those who must try to live with this statute will encounter many areas of doubt as to whether a given activity is or is not a governmental function. Such confusion could be more quickly relieved by more specific legislative guidelines.
Under the guise of "judicial refinement,” the Kavanagh/Fitzgerald opinion has sought to impose rather novel standards for governmental immunity. For example, the opinion suggests that if a police commission plans a particular type of war on crime, that is a governmental function, but if a police officer under that plan performs the traditional police function of arresting a criminal, that is not a governmental function. This certainly does not in any way correspond to the meaning the Legislature intended.
Under the governmental immunity statute as it presently is constituted, the common law and common sense indicate that the state was engaged in a governmental function at the time decedent was fatally injured and thus the state is entitled to raise the defense of governmental immunity until the Legislature enacts a governmental immunity law holding otherwise.
The Court of Appeals is affirmed. No costs, a public question.
Coleman, Lindemer, and Ryan, JJ., concurred with Williams, J.
Kavanagh, C. J., and Fitzgerald, J.
Plaintiffs’ decedent, an employee of a subcontractor, was engaged in the construction of a state highway when he was killed by falling earth when tunneling under a railroad right-of-way. This action was originally brought in the Court of Claims alleging, inter alia, negligence of the State Highway Department. Summary judgment was entered for the defendant. That judgment was affirmed by the Court of Appeals.
On appeal to this Court, plaintiffs raise three issues. Only the third issue deals with the constitutionality and construction of the governmental immunity act, 1964 PA 170; MCLA 691.1401 et seq.; MSA 3.996(101) et seq. We conclude that in this case, on the basis of the statutory language, the state is not immunized from liability. We do not reach the other issues raised as they are not ripe for appellate resolution.
In their complaint plaintiffs contended that defendant was negligent in failing to 'supervise the digging out of the dirt beneath the Grand Trunk Railroad viaduct’, enumerating six instances of such negligence. Defendant did not file an answer but rather immediately filed a motion for summary judgment. In this motion defendant asserted that plaintiffs had 'failed to state a claim upon which relief can be granted’, pointing to the fact that plaintiffs’ decedent was an employee of a subcontractor and not under the supervision and control of defendant. At the hearing on defendant’s motion for summary judgment, defendant relied upon both governmental immunity and the asserted fact that defendant had no control or supervisory authority over plaintiffs’ decedent. The trial court apparently granted summary judgment on both bases. The Court of Appeals resolved the case in favor of defendant on the basis of governmental immunity.
On appeal before this Court, defendant again urges that summary judgment was appropriate because defendant had no control or supervision of the tunneling operation in which plaintiffs’ decedent was killed. Plaintiffs also argue, for the first time on appeal, that defendant breached a statutory duty to supervise and control the tunneling operation and also that the tunneling operation was such 'inherently dangerous’ activity as would give rise to a legal duty on defendant’s part to supervise and control the tunneling operation.
There has been no factual development in this case. Had the grant of summary judgment been premised alone on resolution of these issues we would have been obliged to reverse because these issues, being factual disputes, do not admit of summary disposition. They must be fully developed and determined at a trial.
In Williams v Detroit, 364 Mich 231, 250; 111 NW2d 1 (1961), four members of an eight-person Court, speaking through Justice (now Judge) Edwards, stated:
"From this date forward the judicial doctrine of governmental immunity from ordinary torts no longer exists in Michigan.”
The Legislature subsequently enacted 1964 PA 170. That statute, as amended by 1970 PA 155, now reads, at § 7:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” (Emphasis supplied.) (Compiled as MCLA 691.1407; MSA 3.996[107].)
The state’s governmental function immunity of § 7 does not apply to any action "arising out of the [state’s] performance of a proprietary function” defined as "any activity which is conducted primarily for the purpose of producing a pecuniary profit for the state, excluding, however, any activity normally supported by taxes or fees”. MCLA 691.1413; MSA 3.996(113).
In contrast with this specific definition of "proprietary function”, the act does not define "exercise or discharge of a governmental function”. Because "exercise or discharge of a governmental function” has no fixed meaning, and is not defined in the statute, the phrase is "presumably subject to judicial refinement”. This fact would seem evident because the term governmental function is historically of judicial origin. We perceive in this lack of a precise legislative definition an intention to leave to the judiciary the task of defining a somewhat amorphous concept in concrete factual settings. The question in the instant case, therefore, becomes one of statutory interpretation: Was the State of Michigan, by contracting out work on a highway construction project, engaged in the exercise or discharge of a governmental function, thus immunizing it from tort liability? We hold that it was not so engaged, and thus is not immune.
A broad definition of "exercise or discharge of a governmental function” would leave that phrase without any meaning of substance in the context of the governmental tort immunity act. As the scope of governmental activity increases, the government performs many services that are not essentially "governmental”. The legislative grant of tort immunity does not extend to these governmental activities. "[T]here is nothing governmental about the activities of a doctor employed on the staff of a public, rather than a private hospital, nor about the activities of a worker employed on a street project, rather than on building a private driveway for a private employer.”
If "governmental function” were deemed to insu late all governmental activities for which liability is not expressly provided in the statute, the phrase would not describe the nature of the activity involved, and would not only be irreconcilable with the historical tradition of governmental responsibility, but in fact governmental irresponsibility would be fostered if "governmental function” were simply equated with "governmental participation”, and the victims’ right to recovery depended solely upon the identity of the tortfeasor rather than on the nature of the function being performed. The policy reasons which motivated the Legislature to institute governmental immunity cannot be given such an irrational interpretation.
Mr. Justice Jackson, dissenting in Dalehite v United States, 346 US 15, 57; 73 S Ct 956; 97 L Ed 1427 (1953), succinctly stated the policy basis and practical necessity of governmental immunity: "[I]t is not a tort for government to govern”. That is also the essence of the Michigan governmental immunity statute. Exposure to liability necessitating judicial inquiry into the essential workings of all branches of government is unacceptable in our constitutional system. Professor Kenneth Culp Davis notes the "utter impracticality” of trying to make governmental units liable in damages for all the harm they do the interests of individuals and corporations:
"A city should not be liable for damages done by a zoning ordinance, which necessarily reduces the value of some property. Nor should the state be liable to the seller of a harmful drug if it enacts a statute prohibiting further sale of the drug, thereby destroying a profitable business.” 3 Davis, Administrative Law Treatise, § 25.11, p 484.
The test then, of "governmental function” for purposes of the immunity statute, must be phrased in terms of the nature of the specific function. We conclude that a function is not "governmental” in this context unless the particular activity that this function entails is uniquely associated with those activities having "no common analogy in the private sector because they reflect the imperative element in government, the implementation of its right and duty to govern”. Thus, a government is immune only when it is planning and carrying out duties which, due to their peculiar nature, can only be done by a government. The mere fact that a governmental agency is doing a certain act does not make such act a "governmental function” if a private person or corporation may undertake the same act. Thus, "governmental function” is not delineated by questions of the broad scope of an activity undertaken or by financial or insurance considerations which may be indicative of a governmental undertaking, but rather by viewing the precise action allegedly giving rise to liability, and determining whether such action is sui generis governmental — of essence to governing. Supervision of road construction (as opposed to the making of decisions as to whether to build a road), operation of hospitals and schools (as opposed to planning or deciding what health services to offer or what subject to teach), operation and supervision of playgrounds and swimming pools (as opposed to deciding whether to operate such playgrounds or pools) are not governmental functions within this definition. On the other hand, certain aspects of the exercise of the executive, legislative, or judicial powers are by their very nature governmental functions and necessarily removed from the undertakings of the private sector. In this regard, we agree with the California Law Revision Commission:
"Decisions of legislators to enact or not to enact legislation; decisions of prosecutors to prosecute or not to prosecute persons suspected of crime; decisions of judges to grant or not to grant judgment for a particular party — these and other comparable types of governmental activity are examples of the kinds of functions which imperatively require complete independence from threat of tort consequences to insure their fearless and objective performance.” 5 Cal Law Revision Comm Report, Recommendations and Studies, 281, 282 (1963).
The parameter of "governmental function” will most often run along the line of distinction between decisional and planning aspects of governmental duties on the one hand, and operational aspects on the other. See 3 Davis, Administrative Law Treatise, § 25.10, pp 476-482. In this case, where an operational aspect of the governmental road-building activity is involved, we find no governmental immunity because no exercise or discharge of a governmental function was involved in the act alleged to have been negligently performed, i.e., supervision of a digging operation on a highway construction project.
The analysis is similar to that of the United States Court of Appeals for the District of Columbia in Elgin v District of Columbia, 119 US App DC 116, 118; 337 F2d 152, 154 (1964):
"With kings replaced by city councils as the embodiments of the grace by which men permit themselves to be governed, this alertness was verbalized in somewhat different terms, but the core of the judicial insight remained the same. It is, we believe, essentially this: If a king, or a city council, is to do the job of governing well, then there is something to be said for withholding the threat of answerability in damages for at least some of the actions and decisions which governing necessarily entails. He who rules must make choices among competing courses of action and in the face of conflicting considerations of policy. The capacity and the incentive to govern effectively are arguably not enhanced by the prospect of being sued by those citizens who may be adversely affected by the choice eventually made. Thus it has been thought wise to sweep this restrictive cloud from the horizon and to let those responsible for the conduct of public affairs calculate their courses of action free of this intimidating influence. By the same token, in those areas of governmental action where the reason for the rule does not apply, the rule itself is disregarded.”
In Spencer v General Hospital of the District of Columbia, 138 US App DC 48, 57-58; 425 F2d 479, 488 (1969) (Wright, J., concurring), the opinion in Elgin, supra, was discussed in a manner which has application to our focus on the nature of the particular activity being performed by the governmental agency in determining whether immunity exists:
"Drawing on two recent cases, the court discerned a shift from a 'governmental-proprietary’ to a 'discretionary-ministerial’ distinction. Where the previous distinction had rested on a vertical classification of broad areas of activity — education, sanitation, care of the sick, etc. — as 'governmental’ or 'proprietary,’ the new distinction was a horizontal one which cut across these broad areas, and looked with more particularity at the act or omission complained of as negligent. Where the injury proximately resulted from a deliberate choice in the formulation of official policy, characterized by a high 'degree of discretion and judgment involved in the particular governmental act’, immunity would remain. To inquire into such decisions in a tort suit might 'jeopardiz[e] the quality and efficiency of government itself,’ and endanger the creative exercise of political discretion and judgment through 'the inhibiting influence of potential legal liability asserted with the advantage of hindsight.’ On the other hand, where the injury was inflicted by negligent official acts or omissions other than in the formulation of public policy — 'ministerial acts’ — liability could be asserted. Thus in 'the execution of policy as distinct from its formulation,’ the District of Columbia could be held to the duty of reasonable care which the courts had long enforced against individuals and private associations.” (Footnotes omitted.)
Our holding that the State of Michigan is not immune in this case under § 7 of the governmental immunity act in no way addresses the actual merits concerning the alleged negligence of the state. All we hold is that the governmental tort immunity act does not here bar suit against the state.
Reversed and remanded. No costs, a public question.
Levin, J., concurred with Kavanagh, C. J., and Fitzgerald, J.
The California Law Revision Commission, after thorough and thoughtful examination of the governmental immunity problem, concluded that the doctrine did have validity in some instances:
“Government cannot merely be made liable as private persons are, for public entities are fundamentally different from private persons. Private persons do not make laws. Private persons do not issue and revoke licenses to engage in various professions and occupations. Private persons do not quarantine sick persons and do not commit mentally disturbed persons to involuntary confinement. Private persons do not prosecute and incarcerate violators of the law or administer prison systems. Only public entities are required to build and maintain thousands of miles of streets, sidewalks and highways. Unlike many private persons, a public entity often cannot reduce its risk of potential liability by refusing to engage in a particular activity, for government must continue to govern and is required to furnish services that cannot be adequately provided by any other agency. Moreover, in our system of government, decision-making has been allocated among three branches of government — legislative, executive and judicial — and in many cases decisions made by the legislative and executive branches should not be subject to review in tort suits for damages, for this would take the ultimate decision-making authority away from those who are responsible politically for making the decisions.” 4 Cal Law Revision Comm Report, Recommendations and Studies, 810 (1963).
1970 PA 155. This act validated 1964 PA 170, declared unconstitutional because of title defect by Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971).
These exceptions include: MCLA 691.1402; MSA 3.996(102), failure to keep highways fit and safe for travel; MCLA 691.1405; MSA 3.996(105), negligent operation of motor vehicles; and MCLA 691.1406; MSA 3.996(106), dangerous and defective building. In addition MCLA 691.1413; MSA 3.996(113) provides that immunity shall not apply in those instances in which the performance of a "proprietary function” is involved.
It was firmly established that state agencies were only entitled to immunity while they were engaged in a "governmental function”. See Manion v State Highway Commissioner, 303 Mich 1, 19; 5 NW2d 527 (1942); Dazkiewicz v Detroit Board of Education, 301 Mich 212, 220; 3 NW2d 71 (1942). See also Bofysil v Department of State Highways, 44 Mich App 118, 124-126; 205 NW2d 222 (1972).
After the Supreme Court in Williams abolished the judicial doctrine of governmental immunity, a bill to restore the defense was drafted by a special committee of the Michigan Association of Municipal Attorneys and supported by the Michigan Municipal League. That proposed legislation was eventually enacted into law as 1964 PA 170. One drafter of the legislation stated:
" 'The net effect of Act 170, 1964 is to largely return to municipal corporations the position they enjoyed prior to the decision of the Williams case.’ ” 28 NIMLO Municipal L Rev 432, 464 (1965).
The plaintiff in Gunther was not an employee working on the road, but a person traveling on the highway. However, the Court cited the case of Fisher v Delaware Twp, 87 Kan 674; 125 P 94 (1912) in which an employee who sustained injuries while performing work on a highway was barred from recovery by the doctrine of governmental immunity.
The Kavanagh/Fitzgerald opinion is correct in stating that the activity in question is not a "proprietary function” as defined in MCLA 691.1413; MSA 3.996(113). See Thomas v Department of State Highways, 398 Mich 1, 18, fn 7; 247 NW2d 530 (1976).
In its summary and recommendations to the Governor and Legislature the California Law Revision Commission cogently expressed the need for effective legislation in this area:
“There is an immediate need, therefore, for the enactment of comprehensive legislation stating in considerable detail the extent to which public entities will be liable.
“The resulting certainty will be of benefit both to public entities and to persons injured by governmental activities. If the limits of potential liability are known, public entities may plan accordingly, may budget for their potential liabilities, and may obtain realistically priced insurance. Meritorious claims will not be resisted in the hope that the appellate courts will create an additional immunity; and unmeritorious claims will not be pressed in the hope that an existing immunity will be curtailed or that liability will be extended beyond previously established limits.” 4 Cal Law Revision Comm Report, supra, 809 (1963).
Professor Cooperrider, cited by some of my colleagues to support their treatment of governmental immunity, acknowledges that the issue of liability for harm caused by law enforcement is an extremely complex question which should be dealt with through specific legislation. He states:
"[T]he governmental-function defense negates liability for harms caused by law enforcement and by protective actions of employees such as policemen, firemen, inspectors, and custodial employees, who are by law compelled to act directly upon persons and property, overcoming resistance if necessary. Mistakes are an inevitable consequence of such activity, and it may be that resultant losses should, to some extent, be absorbed by the community, but the problems of separating instances where compensation would be appropriate from those in which it would not is complex, and it is difficult to see how, with any fidelity to language, it could be held that these employments are anything but governmental. I would suppose, therefore, that if there is to be liability in this area it should come through legislation, wherein the criteria and the limits can be specified, and the basic policy questions resolved in the appropriate forum.” Cooperrider, The Court, the Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 283-284 (1973).
Plaintiffs specifically allege that decedent’s death resulted from the state’s negligence in failing "to supervise and inspect the digging out of dirt beneath the Grand Trunk Railroad viaduct”. Ministrelli Construction Company, a construction contractor, had entered into a written contract with the Michigan State Highway Commission for a highway reconstruction project involving the widening of state trunk-line highway M-102 where it passes beneath the railroad viaduct. At the time of his death decedent was an employee of Gale Crushed Concrete and Aggregate, Inc., a subcontractor selected by Ministrelli to perform work on the project.
MCLA 247.651a; MSA 9.1097(la), imposes the responsibility for state trunkline highway construction and maintenance upon the State Highway Commission which is granted jurisdiction over all state trunkline highways by Const 1963, art 5, § 28.
MCLA 250.62; MSA 9.902, and MCLA 247.807; MSA 9.216(7) authorize the Highway Commission to contract for the construction, improvement and maintenance of highways under its jurisdiction or to do such work with its own forces on state account.
MCLA 691.1407; MSA 3.996(107) was originally § 7 of 1964 PA 170. This section was later held unconstitutional on the grounds that it exceeded the scope of the title of the act. Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971). The Legislature cured the unconstitutionality by modifying the act’s title in 1970 PA 155 and reenacted MCLA 691.1407; MSA 3.996(107) with only stylistic changes. See Cooperrider, Torts, 1971 Ann Survey of Mich Law, 18 Wayne L Rev 503, 518-523 (1971).
Williams was interpreted to be limited to municipal corporations in McDowell v State Highway Commissioner, 365 Mich 268; 112 NW2d 491 (1961).
In this case there is question whether a "governmental function” of the state rather than a municipality is involved. This distinction arguably has significance in light of the second sentence of MCLA 691.1407; MSA 3.996(107). We do not, however, construe this sentence to be an "affirmation” of case-law precedent preserving for all time state governmental immunity heretofore recognized by case law. To read it in such a manner would be to assume that the Legislature failed to recognize that the evolution of case-law precedent is exclusively committed to the judicial branch of government. We rather find that by the last sentence of the section it was intended that the governmental immunity act was not to be construed in such a way as to alter, unless so indicated by express statutory provision, state governmental immunity as recognized by case-law precedent existing at the time of enactment. Such precedent no longer has force in light of our decision in Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976)
Cooperrider, The Court, The Legislature, and Governmental Tort Immunity in Michigan, 72 Mich L Rev 187, 282 (1973).
Cooperrider, supra. Legislative draftsmen no doubt took this historical background into account in framing the statute. Section 7 of the governmental tort immunity act was drafted against a background of judicial precedent which presumed immunity and predicated liability only upon exceptions to the general rule. This "presumption” of case-law precedent is changed by our decision in Pittman v City of Taylor, supra.
In the past, analysis of this statute and case law has generally suggested a dichotomy between immune "governmental function” on one hand and non-immune "proprietary” function on the other — that is, if an activity was not one, it was the other. See Cooperrider, supra, and the majority opinion in Pichette v Manistique Public Schools, 50 Mich App 770; 213 NW2d 784 (1973), and the general discussion appearing at 2 Harper and James, The Law of Torts, § 29.6, pp 1619-1627. While we cannot in this case seriously regard plaintiffs’ argument that defendant’s activity was "proprietary”, we do reject, for purposes of statutory construction, the rigid dichotomy of the past. In our view, an activity which is not proprietary in nature does not necessarily fit the governmental function classification. This principle was recognized in Lykins v People’s Community Hospital, 355 F Supp 52 (ED Mich, 1973), and in the dissenting opinion in Pichette, supra. See also, Spencer v General Hospital of the District of Columbia, 138 US App DC 48; 425 F2d 479 (1969); Elgin v District of Columbia, 119 US App DC 116; 337 F2d 152 (1964).
The argument that exposure of the government to particular liabilities would cause financial deprivation and governmental bankruptcy is not a persuasive reason for judicial liberality in defining "governmental function”. By providing liability for the negligent operation of motor vehicles (MCLA 691.1405; MSA 3.996[105]), defective maintenance of roads (MCLA 691.1402; MSA 3.996[102]), and faulty maintenance of public buildings (MCLA 691.1406; MSA 3.996[106]), the Legislature has exposed the state’s governmental units to frequent and costly liability. The Legislature also allowed the governmental units to settle claims or to indemnify employees for claims made against them while acting within the scope of their public employment (MCLA 691.1408; MSA 3.996[108]), and to purchase liability insurance (MCLA 691.1409; MSA 3.996[109]). See, also, Williams v Detroit, 364 Mich 231, 258-259; 111 NW2d 1 (1961).
Cooperrider, fn 5 supra, 284. Similar observations have led a Federal district judge of the Eastern District of Michigan to observe that Equal Protection considerations dictate a narrow construction of "governmental function” in this statute. Lykins, fn 7 supra. We agree that a broader interpretation might present such problems. See Brown v Wichita State University, 217 Kan 279; 540 P2d 66 (1975).
The entire concept of governmental immunity has come under broad attack on numerous grounds. See, e.g., Littlejohn, Torts, 1974 Ann Survey of Mich Law, 21 Wayne L Rev 665-666 (1975):
"The continuation of plaintiff 'sacrifices’ offered in the name of governmental immunity is without doubt the most deplorable circumstance in Michigan jurisprudence. * * * As a legal policy, governmental immunity from tort liability is immoral and legally unjustifiable. In a purportedly enlightened society that requires its citizens to pay lawful judgments or within ordinary prudence, requires them to insure against unreasonable risks of harm to others, governmental immunity is an embarrassing anomaly.”
See also, 2 Harper & James, § 29.3, pp 1611-1612, and the analysis of this Court in rejecting the common-law rule of state governmental immunity in Pittman v City of Taylor, supra.
Cooperrider, fn 5 supra, 287.
This definition of governmental function is only given in regard to the governmental immunity act here considered. We intend no such definition in other contexts, e.g., civil rights cases requiring state action, etc. See, e.g., Moose Lodge No. 107 v Irvis, 407 US 163; 92 S Ct 1965; 32 L Ed 2d 627 (1972); Burton v Wilmington Parking Authority, 365 US 715; 81 S Ct 856; 6 L Ed 2d 45 (1961).
In Downs v United States, 522 F2d 990 (CA 6, 1975), the United States Court of Appeals adopted a similar view of 'discretionary function’ immunity under the Federal Tort Claims Act. That Court held that immune 'discretionary functions’ were only those functions which involved policy formulation. The Court went on to conclude on the facts that the government was not immune from liability as a result of FBI actions which allegedly caused a hijacker to shoot several hostages during the course of a hijacking episode.
We recognize, as did the California Supreme Court in Johnson v State, 69 Cal 2d 782, 794; 73 Cal Rptr 240, 248; 447 P2d 352, 360-361 (1968), that
"Our proposed distinction, sometimes described as that between the 'planning’ and 'operational’ levels of decision-making (cf. Dalehite v United States, supra, 346 US 15, 35-36 [73 S Ct 956; 97 L Ed 1427, 1440-1441], however, offers some basic guideposts, although it certainly presents no panacea. Admittedly, our interpretation will necessitate delicate decisions; the very process of ascertaining whether an official determination rises to the level of insulation from judicial review requires sensitivity to the considerations that enter into it and an appreciation of the limitations on the court’s ability to reexamine it. Despite these potential drawbacks, however, our approach possesses the dispositive virtue of concentrating on the reasons for granting immunity to the governmental entity. It requires us to find and isolate those areas of quasi-legislative policy making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.” | [
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Kavanagh, C. J.
(for reversal). This is an appeal from affirmance of defendant’s conviction of second-degree murder of her husband. MCLA 750.317; MSA 28.549. We reverse.
Defendant killed her husband with a rifle during a protracted family argument. Her defense was accidental shooting.
A police officer was permitted to testify that in response to a call from defendant he went to the defendant’s residence on January 22, 1971 where he found the defendant and her husband in the midst of a "family fight”. The decedent husband had explained a pistol protruding from his pocket as one he had taken from the defendant because she had threatened to shoot him.
The officer left, with the pistol, shortly after 3 p.m. At approximately 4 p.m. the same day, in response to another call by defendant, police returned and discovered Mr. Cunningham’s body lying in the doorway. Defendant was charged with murder.
At trial, the officer testified that during his 3 p.m. visit to defendant’s home the decedent
"stated then that he had taken the gun from her [defendant] because she had threatened to shoot him with it”.
Defense counsel made a belated objection to this testimony which was overruled. At the conclusion, of the first day of trial, defense counsel moved to strike the testimony as inadmissible hearsay, and moved for a mistrial, stating "we can’t cross-examine the decedent on this. There’s no way we can have any attack whether this is — was a lie or not, and yet it’s obviously extremely crucial to the decision of the jury in this case.”
The motions were denied. The court found the statement to be "clearly hearsay, but * * * the res gestae exception to the hearsay rule may apply. * * * [T]here was an occasion which was startling enough to exert excitement and to render the statements by the deceased spontanéous and unreflecting. It was made before there was time to contrive or misrepresent.”
The Court of Appeals agreed, finding that: "A review of the sequence of events leading to the fatal shooting convinces us that there was a circumstantial probability that the statement was trustworthy and admissible as part. of the res gestae”.
We are convinced that this conclusion is unwarranted and stems from a confusion of closely related concepts.
The use of the term "res gestae” in this context has properly been criticized. See, e.g., People v Randall, 42 Mich App 187; 201 NW2d 292 (1972); People v Jones, 38 Mich App 512, 515-516; 196 NW2d 817, 818-819 (1972). We agree with the observation of Justice Levin in People v Ivory Thomas, 14 Mich App 642, 654-655; 165 NW2d 879 (1968) (concurring):
"A more neutral, and for that reason more accurate, rubric than either ’res gestae’ or 'spontaneous exclamation’ is the one adopted by Professor McCormick — 'excited utterance.’ McCormick on Evidence, § 272, p 578. Since courts generally hold admissible under this exception the statements of an excited person * * * this definitional refinement is a welcome advance toward clarity.”
In this case, it is clear that the decedent’s statement was admitted under the "excited utterance” exception.
The standards for admissibility of such statements were stated in Rogers v Saginaw B C R Co, 187 Mich 490, 493-494; 153 NW 784 (1915):
"The exception is based upon the fact that such exclamations, by virtue of their origin, have peculiar trustworthiness. It is well established by the authorities that the only conditions upon which such statements will be allowed in evidence are (1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it.”
See also, People v Ivory Thomas, supra; FRE 803(2).
The rationale for this exception is stated by Dean McCormick to be "the special reliability which is regarded as furnished by the excitement suspending the declarant’s powers of reflection and fabrication”. McCormick on Evidence (2d ed), p 704.
Wigmore states: "Since this utterance is made * * * during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance is taken as particularly trustworthy * * * ”. 6 Wigmore on Evidence (Chadbourn rev), § 1747, p 195.
As Justice Levin recognized in People v Ivory Thomas, supra:
"Freed of the difficulty that can be caused by use of the terms ’res gestae’ and 'spontaneous,’ this exception, the 'excited utterance’ exception, stands clear as the simple principle which Wigmore originally enunciated, i.e., when a person participates in a startling or shocking experience, the emotional excitement generated in him may render him unable or unlikely to fabricate concerning his experience. Like so much else which seeks to explain human conduct, this cannot be stated as a certainty, but it can create a circumstantial probability of trustworthiness.” 14 Mich App at 655; 165 NW2d 879 (1968). (Levin, J., concurring.)
In this case decedent was attempting to explain to a police officer investigating a family fight why he had a loaded gun in his pocket. When measured against the criteria for admissibility as an excited utterance, and against the rationale for that hearsay exception, it is apparent that decedent’s statement was not admissible. It was not made immediately after a startling event to which it related. It was not "spontaneous and unreflecting”. It was made after there was time to contrive and misrep resent, and after time for consideration of self-interest.
"Evidence that the statement was self-serving or made in response to an inquiry, while not justification for automatic exclusion, is an indication that the statement was the result of reflective thought, and where the time interval permitted such thought these factors might swing the. balance in favor of exclusion.” McCormick, supra, p 706. See also, People v Ivory Thomas, supra (Levin, J., concurring); Rice v Jackson, 1 Mich App 105; 134 NW2d 366 (1965).
This statement was made at a time and in such circumstances that it was not admissible as an excited utterance. The prosecution also argues that because the challenged statement of the decedent "was made not only in appellant’s presence, but also as part of a conversation and debate in which she herself took quite an active role, such statement was not hearsay evidence as to her”. We explicitly reject that argument.
Hearsay is an extrajudicial statement which is offered to prove the truth of the thing said. People v Hallaway, 389 Mich 265, 275; 205 NW2d 451 (1973) .
"One widely held myth about the hearsay rule is that an out-of-court statement is not hearsay if it was made in the presence of a party and hearsay if not made in his presence.” Robinson, Civil and Criminal Evidence, 20 Wayne L Rev, 391, 398 (1974) .
Judge Danhof pertinently recognized in People v Sixty-Eighth District Judge, 44 Mich App 553, 554, fn 1; 205 NW2d 608 (1973),
"the widespread and unfortunate misconception that the distinguishing factor of hearsay is the presence or absence of a party to the action at the time the statement is made. McCormick calls this idea a bit of courthouse folklore. McCormick, Evidence (2d ed), §246, p 586. Perhaps stronger language is in order.”
The testimony in question was clearly hearsay. In fact, it was "double hearsay”, consisting of the police officer testifying as to what the decedent told him concerning defendant’s threats.
Finally, the prosecutor argues that even if the statement was improperly admitted, any resulting error was harmless because defendant herself told the officer that she "might load this gun and shoot [the decedent]”. Thus, the testimony of the officer concerning decedent’s statement was merely cumulative or corroborative on the issue of defendant’s intent.
We disagree.
The statement was offered to show that defendant had threatened to shoot her husband, and thereby make it more believable that she murdered him.
The state has not demonstrated beyond a reasonable doubt that this inadmissible hearsay testimony concerning decedent’s statement did not contribute to defendant’s conviction. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972); People v Liggett, 378 Mich 706, 717; 148 NW2d 784 (1967). The admission of this statement, with no opportunity in the presence of the jury for the defendant to challenge the person who made it, denied defendant a fair trial.
The conviction is reversed. The cause is remanded for further proceedings.
Levin and Ryan, JJ., concurred with Kavanagh, C. J. | [
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Coleman, J.
This is an appeal from a Court of Appeals decision affirming the Workmen’s Compensation Appeal Board. Plaintiff challenges a section of the Workmen’s Compensation Act (MCLA 418.357; MSA 17.237[357]), providing for reduction in compensation payments to employees over the age of 65, claiming that it denies him equal protection of the law. We affirm the Court of Appeals.
The facts are not in dispute. On October 17, 1968, plaintiff injured his foot while at work. Although compensation for the foot injury was voluntarily paid through December 1, 1968 and plaintiff recovered from the foot injury, he did not return to work because of a lung disease.
At a hearing on October 26, 1971, the referee determined that the plaintiff had suffered a personal injury (silicotuberculosis) causally related to plaintiff’s work at defendant’s plant and, pursuant to MCLA 418.301; MSA 17.237(301), set the last day of work as October 17, 1968, the date of the foot injury, when plaintiff was 66 years old.
In computing the weekly award, the referee applied § 357 of the Workmen’s Compensation Act of 1969 (MCLA 418.357, supra) which read:
"When an employee who is receiving weekly payments or is entitled to weekly payments reaches or has reached or passed the age of 65, the weekly payments for each year following his sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65, but not to less than 50% of the weekly benefit paid or payable at age 65, so that on his seventy-fifth birthday the weekly payments shall have been reduced by 50%, after which there shall be no further reduction for the duration of the employee’s life. In no case shall weekly payments be reduced below the minimum weekly benefit as provided in this act.”
The plaintiff appealed to WCAB, claiming that § 357 was unconstitutional because it discriminated among employees on the basis of age, or that it was improperly applied to the plaintiff-appellant.
WCAB declined to consider the question of the constitutionality of § 357 leaving that question to the "higher tribunals”. The appeal board did find that the plaintiff was subject to the age-65 reduction in the act. Finally, the appeal board corrected an error in the referee’s computation. The computation modification is not in question on appeal to this Court.
The Court of Appeals found § 357 to be constitutional.
Plaintiff died in Mexico on January 7, 1973, prior to the February 23, 1973 opinion of WCAB. Although there had been no previous substitution of parties, the Court received a motion January 8, 1976 (amended January 21, 1976) and thereafter granted substitution of Marcellina Cruz, special administratrix of the estate of Victoriano Cruz.
Issues
I
Is it an unconstitutional deprivation of equal protection of the law to provide by statute that workmen’s compensation benefits be reduced after a worker attains the age of 65?
II
If MCLA 418.357; MSA 17.237(357) is valid, does it apply to this case?
Issue I
We long have held that a statute comes clothed in a presumption of constitutionality and that the Legislature does, not intentionally pass an unconstitutional act. Therefore, one challenging the constitutionality of a statute assumes the burden of overcoming the presumption.
In Lindsley v Natural Carbonic Gas Co, 220 US 61, 78-79; 31 S Ct 337; 55 L Ed 369 (1911), the United States Supreme Court set forth and this Court subsequently has reiterated the standards for treating equal protection questions:
"1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.” (Emphasis added.)
The United States Supreme Court reviewed a civil action by a former officer in the uniformed branch of the Massachusetts State Police. The Court examined a Massachusetts statute which mandates retirement for uniformed state police officers at age 50. The Court determined that strict scrutiny was not the proper test for determining whether the mandatory retirement provision denied appellee equal protection since the legislative classification did not impermissibly interfere with the exercise of a fundamental right or operate to the peculiar disadvantage of a suspect class. The Court found that the legislation did not violate the Equal Protection Clause and reiterated the rationality test of Lindsley, supra:
"We turn then to examine this state classification under the rational-basis standard. This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Dandridge v Williams [397 US 471; 90 S Ct 1153; 25 L Ed 2d 491 (1970)] supra, at 485. Such action by a legislature is presumed to be valid.”
In Michigan, workmen’s compensation is paid for an employee’s loss of wage-earning capacity because of a work-related injury. It is not compa rabie to an action in tort where a person may be compensated for pain and suffering, lack of consortium and other results growing from an injury. Affirming the WCAB, the Court of Appeals said in this case:
"Viewed as compensation for wage loss, it is not unreasonable to assume that the Legislature found that, upon attaining the age of 65, a worker’s level of compensation often decreased as a result of retirement, reduction in work, or other reasons. This assumption on the part of the Legislature has been reflected in § 357. Viewed in this respect a state of facts exists which would reasonably sustain the law and appellant has failed to carry the burden of showing that the law does not rest on any reasonable basis.” (Footnote omitted.)
Given the standards of Lindsley, supra, and the presumption of the constitutionality of legislative enactments, the plaintiff must show that the classification does not rest upon any rational basis. Plaintiff’s principal attack on the statute asserts that the legislation is unconstitutional because it discriminates against workmen on the basis of age.
While both the Federal government and the State of Michigan have passed laws protecting against age discrimination in employment, they have chosen the ages 65 (Federal) and 60 (Michigan) as the uppermost limits of protection. Although there is no small amount of controversy surrounding the choice of an age at which protec tion ceases, it cannot be said that the lawmakers were totally arbitrary in their actions. Thus, both the state and Federal governments have made distinctions between workers who are over 65 and those under 65.
The leading case in the area of age discrimination is Weiss v Walsh, 324 F Supp 75 (SD NY, 1971); aff'd mem, 461 F2d 846 (CA 2, 1972); cert den 409 US 1129; 93 S Ct 939; 35 L Ed 2d 262 (1973) . Dr. Paul Weiss, a metaphysician of renown, alleged that he was offered the Albert Schweitzer Chair at Fordham University only to have the offer withdrawn because of his advanced age (69). It was alleged that the Department of Education informed Fordham that a nominee of such advanced age would not be acceptable. Dr. Weiss brought suit seeking a declaratory judgment, injunctive relief and $1,000,000 in damages. Dr. Weiss alleged violations of the First Amendment (right to speak as a teacher) and violations of the Fifth and Fourteenth Amendments (equal protection). A motion to dismiss was brought by the defendants and was granted in part. Dr. Weiss was granted leave to amend on a breach of contract issue raised at oral argument.
The district court in Weiss made it clear that the decision was based upon the validity of the classification by age, stating at p 77:
"Secondly, the absence of specific reference to age in the Fourteenth Amendment does not alone insulate age classifications from constitutional scrutiny any more than does the absence of mention of poverty or residency for example. Harper v Virginia State Board of Education, 383 US 663; 86 S Ct 1079; 16 L Ed 2d 169 (1966), Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1968). But being a classifícation that cuts fully across racial, religious, and economic lines, and one that generally bears some relation to mental and physical capacity, age is less likely to be an invidious distinction. * * * Notwithstanding great advances in gerontology, the era when advanced age ceases to bear some reasonable statistical relationship to diminished capacity or longevity is still future. It cannot be said, therefore, that age ceilings upon eligibility for employment are inherently suspect, although their application will inevitably fall injustly in the individual case. If the precision of the law is impugnable by the stricture of general applicability, vindication of the exceptional individual may have to attend the wise discretion of the administrator. On its face, therefore, the denial of a teaching position to a man approaching seventy years of age is not constitutionally infirm. The same result obtains under Article I, Section 11 of the New York Constitution.” (Emphasis added.)
As the Federal district court of New York noted, the application of comprehensive legislation will "inevitably fall injustly in the individual case”. Although a classification may result in some inequality, that fact alone does not offend the equal protection clauses. Lindsley, supra.
Age limits are necessary for practicality in many of our statutes. Many laws would be unmanageable if subjective assessments had to be made in each case. For instance, age limits for marriage, work permits for young people, various retirement systems, juvenile court jurisdiction, sale of alcoholic beverages and tobacco and licensing for various types of work are but a few examples of what could be called "age discrimination” under plaintiffs theory.
The classification in which the statute placed Mr. Cruz included all workers who had been injured either before or after the sixty-fifth birthday and it provided the same rule for all.
It is true that a 65-year-old worker may be physically fit, although I doubt that anyone would claim all of the resilience of youth. One of that age may also be as sharp as (and maybe a little wiser than) a person 40 years of age. An individual income may be at an all-time high. These facts, however, do not prohibit a general age classification.
The argument that one injured prior to age 65 is better situated than one injured after that birthday is without merit. In either event, the worker would receive either full pay or full benefits until 65 or until injured. No matter what mortality table is used, the older we become, the fewer years of life (and therefore capacity for earning) we have left. We can take judicial notice of the fact that we are not immortal and that the bodily functions do change with age — in some, more rapidly than others.
We may even think that 65 is too young an age for general retirement and that instead of the trend to reduce the vesting age of various plans, the age should be raised to perhaps 70 so that more people could work the maximum time and also be less of a burden upon the young and the taxpayers. Such an argument foreseeably could be met with one directed towards even earlier mandatory retirement so that increased job opportunities would be available to the ever increasing populace and thereby diminish unemployment lines and public assistance. Albeit with less money to spend (and less demands), the earlier retired worker would have more time to relax, engage in part-time work, start a new business or visit family and friends, etc. The arguments pro- and con-age limitations are many.
If we entered into that maze, we could immediately be confronted by a challenge to a converse general classification in the Workmen’s Compensation Act which has to do with the compensation of those permanently injured before age 25. MCLA 418.359; MSA 17.237(359) permits computation by. a hearing referee which takes into account age and experience when injured and what wages and position could be expected had the worker not been injured.
Plaintiffs knife cuts both ways.
We submit that these are matters for the Legislature or contracting parties as the case may be. It is certainly not for this Court to say at what age a general classification should be made or whether one should be made at all.
If the classification falls unfairly upon some individuals, that fact alone does not permit a finding of unconstitutionality. It could well be a matter for legislative consideration, but not for the personal convictions of the seven of us.
Importantly, the need for some orderly process, as opposed to a multitude of individual (and not necessarily fair) judgments of wage-earning capacities is apparent. If we had to project the wages to be anticipated in the future for each individual 65 and over before compensation benefits could be paid for injuries received, we would impose upon all concerned an incredible task and one quite different from projections for those under 25. The Legislature probably considered the difficulty in anticipating on an individual basis the mental, emotional and physical future of those 65 and over as well as projected retirement, productivity and other less apparent concerns having to do with wage-earning capacity. The method employed is grounded in reason.
It is outside of our constitutional role to change judicially the legislative objective to compensate for loss of wage-earning capacity and the legislative determination of a classification in which that capacity diminishes.
Dual Rights
It has not been argued by defendant that the reduction resulting from § 357 is because a worker usually is entitled to full social security benefits at age 65. Defendant astutely observes:
"Plaintiff-appellant has argued against an issue he himself has injected before this Court, but which is not the basis of the holding of the Court of Appeals in issue on appeal in the instant case.”
Neither the WCAB nor the Court of Appeals based its decision on the avoidance of dual benefits argument. Defendant has not proposed such an argument. In this issue, it appears as a "straw man” set up by plaintiff to be destroyed by plaintiff.
Simply stated, dual rights is not an issue in this case.
Conclusion
The Legislature has recognized diminishing earning capacity in the diminishing life expectancy of the older worker and has developed a 5% reduction formula for each year after the sixty- fifth birthday, which will level off at age 75 and not fall below 50% of the benefits based on earnings at age 65. The formula may not precisely reflect the loss of anticipated earnings of each individual with mathematical nicety — but this is comprehensive legislation not unlike many other statutes in which age is a threshold factor.
When viewed in that context, it cannot be said that there is no rational basis to support § 357 of the Workmen’s Compensation Act.
Issue II
The plaintiff maintains that § 357 only applies when the employee was receiving or was entitled to receive compensation as of his sixty-fifth birthday.
The plaintiff cites a portion of § 357 which says that when an employee who is receiving weekly payments or is entitled to receive weekly payments f!Teaches or has reached or passed the age of 65, the weekly payments for each year following his sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65 * * * ”. (Emphasis added.)
The plaintiff argues that the section contemplates a 5% reduction each year after a claimant passes 65. Thus, if a person is first disabled when he reaches age 66, the statute does not apply to him. The statute only applies to those who are receiving benefits at age 65.
Plaintiff’s technical argument does not coincide with the plain meaning of the language of the statute. If this interpretation were to prevail, the statute would indeed fall unfairly on those injured before age 65.
In Welch v Westran Corp, 45 Mich App 1, 4-5;
205 NW2d 828 (1973), the Court of Appeals clearly resolved the dilemma:
"MCLA 412.9(g), supra, as amended by 1968 PA 227, § 9(g), provided that 'when an employee who is receiving weekly payments or is entitled to weekly payments reaches or has reached or passed the age of 65’ weekly payments were to be reduced in accordance with the provisions of the section. Since the section as amended provides that when the employee is either receiving or entitled to receive payment and reaches or has reached or passed age 65 his benefits will be reduced, it is clear that the Legislature intended that subsequent to July 1, 1968, all persons over the age of 65 are subject to the reduced-benefit provision, no matter when the injury was incurred.” (Emphasis added.)
We agree with that opinion.
The plain meaning of the words and the logical interpretation of the statute lead to the conclusion that its provisions fall equally upon all regardless of age at the time of injury.
Affirmed.
Fitzgerald, J., concurred with Coleman, J.
Levin, J.
The Workmen’s Compensation Act was amended in 1965 to remove the 500-week limitation on the duration of benefits for general disability. At the same time the Legislature provided that benefits for each year following the worker’s 65th birthday are to be reduced by 5% until they are reduced by 50% (on the 75th birthday) but not below the minimum weekly benefit.
The appeal board found that plaintiff Victoriano Cruz was disabled by occupational silicosis and silicotuberculosis.
Plaintiff contends that the provision for reduction of benefits for workers over 65 is violative of the Equal Protection Clause.
Workmen’s compensation benefits are in lieu of wages lost because of reduced earning capacity caused by industrial injury or disease. The disparate analyses in the opinions of the Justices appear to be attributable to different views of what constitutes earning capacity.
Justice Coleman, writing to uphold the constitutionality of the scale-down in benefits, states that older workers may have less physical and mental capacity than younger workers, their remaining useful years are fewer and, therefore, the scale-down has a rational basis.
We agree with her analysis insofar as it is based on the statistical likelihood that older persons will retire from the work force and no longer earn wages. However, even if older workers have less strength and agility than younger workers, this is not generally reflected in the current earning capacity of the employed.
We, therefore, agree with Justice Williams that the challenged classification cannot be sustained on the premise that employed persons over 65 earn less than younger persons doing like work. The older employed, as distinguished from job seekers, are generally compensated at the same rates as, or even higher rates than, younger persons doing the same work.
Justice Williams, writing to hold the scale-down unconstitutional, appears to require individualized determinations of whether and when a particular disabled worker would, but for his disability, have retired. The Equal Protection Clause does not, however, require precision in classification.
We would sustain the constitutionality of the scale-down of benefits on the ground that it is rationally related to the scale-down in earning capacity due to normal retirement.
While many workers continue to work past their 65th birthday, there is a significant drop in the number of persons employed after they become 65. Only 23% of males in this state between 65 and 69 are fully employed. The proportion drops to 12% for those between 70 and 74 and to 7% for those over 75.
It is therefore likely that a worker would retire from the work force between 60 and 75 even if not disabled and in consequence would no longer earn wages.
Compensation benefits are geared to weekly loss in wages. It is not unreasonable to factor into the benefit program the likelihood that a disabled worker would retire between 60 and 75 even if not disabled and for that reason no longer earn wages.
I
The challenge to the constitutionality of the scale-down of benefits appears to proceed on the unstated premises that a disabled worker is entitled to benefits for life and that classification based on age is impermissible.
Before the 1965 amendments, benefits for general disability were limited to 500 weeks and the aggregate amount payable for silicosis or dust disease was $10,500. These limitations were removed so that if the disability continues, benefits are payable for life.
At the same time the act was amended to provide that when a worker who is receiving or is entitled to receive weekly payments "reaches” 65, the payments for each year following that birthday are reduced by 5% but not to less than 50% so that on the 75th birthday the weekly payments are reduced by 50% but not below the minimum weekly benefit. This limitation was extended to include a worker who "has reached or passed” the age of 65 when the disability occurred and was carried forward in the 1969 codification of the workmen’s compensation statutes, subsequently renamed the Worker’s Disability Compensation Act of 1969.
In reducing benefits for workers over 65, the Legislature accorded disabled workers less than full payment for life. The duration of the employer’s obligation to make payments was extended; the amount payable after normal retirement was scaled down.
The Legislature might merely have extended the period of benefit payment to a particular age, for example 65 or 70. Instead, it extended for the duration of the disability the period of payment with a reduced scale of benefits beginning at 65.
To be sure, if a worker is injured at 75 he receives only one-half the weekly benefit payable to a worker injured at 50. However, a larger amount of benefits may be paid on account of the injury and disability of a worker who is 75 and has a spouse and minor children, than is paid for the same injury and disability of a 50-year-old worker who has no dependents and shortly after the occupational injury is killed in an automobile accident.
Five hundred weeks at 100% of the weekly benefit may, in some cases, aggregate to more than a scaled-down lifetime benefit. In other cases, lifetime payment of the scaled-down benefit will be more beneficial. If the general enhancement in the dollar amount of all benefits since 1965 is taken into account, relatively few workers will be found to have received less after the 1965 amendments than was theretofore payable.
II
The Worker’s Disability Compensation Act is replete with classifications and subclassifications, many affecting the amount of compensation benefits.
The amount of benefits payable in respect to a particular injury or disease depends on a number of variables, including:
—whether the injury or disease is the cause of specific loss, general disability or death;
—the length of time the worker lives after injury or disease and the cause of death;
—the number and age of the worker’s dependents and whether the worker is married or single or male or female;
—the average weekly wage.
The amount of benefits payable for essentially the same injury or disease is likely, therefore, to vary greatly. If death results from the injury and there are no dependents, the employer’s sole obligation is to pay the reasonable expense of the worker’s last sickness and burial. If there are dependents, benefits are payable as long as they survive (or for a widow until she remarries) for not exceeding 500 weeks unless extended by the referee for dependents under the age of 21.
The worker is now entitled to benefits as long as his disability continues; upon his death benefits cease. If the occupational injury was the proximate cause of death, benefits are payable to dependents for the unused portion of the 500 weeks.
If the disability is "total and permanent”, benefits are payable for 800 weeks, even if, as where the loss is of both legs, the worker is not disabled from and continues to work.
Dependents include not only a wife and a child but may include any member of the worker’s family. Payments cease upon the remarriage of a dependent wife.
If the worker is permanently and totally disabled before his 25th birthday, the referee may, in determining weekly benefits, consider whether "under natural conditions, his wages or position would be expected to increase”.
The statute now requires an adjustment in the maximum weekly rate to reflect any increase or decrease in the average weekly wages in covered employment.
Worker’s compensation is social legislation. The benefit program incorporates some concepts developed at common law and by statute to provide a damage remedy for injury or death. In some of its features the program diverges from principles applied in assessing damages in ordinary civil litigation. The departures and innovations aid some workers and their families and disadvantage others. "[T]he drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one.” Massachusetts Board of Retirement v Murgia, 427 US 307, 314; 96 S Ct 2562, 2567; 49 L Ed 2d 520, 525 (1976). A classification affecting the amount of benefits is not unconstitutional simply because it is unfamiliar and may appear to be or is less generous than the common law or other statutes.
Ill
Classifications based on age are commonplace. Criminal liability and civil responsibility may depend on the age of the actor or victim.
In Massachusetts Board of Retirement v Murgia, supra, the United States Supreme Court held that a statute requiring uniformed state policemen to retire at 50 without regard to whether the officer is capable of performing his duties does not violate the Equal Protection Clause.
The Court examined the classification under the rational basis standard and concluded that "[s]ince physical ability generally declines with age,” requiring mandatory retirement at 50 "rationally furthers the purpose identified by the state” of removing from the service "those whose fitness for uniformed work presumptively has diminished with age”. "That the State chooses not to determine fitness more precisely through individualized testing after age 50 is not to say that the objective of assuring physical fitness is not rationally furthered by a maximum age limitation. It is only to say that with regard to the interest of all concerned, the State perhaps has not chosen the best means to accomplish this purpose. But where rationality is the test, a State 'does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.’ Dandridge v Williams, 397 US [471], 485; 90 S Ct 1153; 25 L Ed 2d 491 [1970].” Massachusetts Board of Retirement v Murgia, supra, pp 314-316. (Emphasis supplied.)
Many workers continue to work past their 65th birthday. There is, however, a substantial drop in the percentage of persons working after 65. In Michigan in 1970, 76% of males between 55 and 59 worked 48 weeks or more a year. The percentage so employed was reduced to 58% for males between 60 and 64, to 23% for those 65 to 69, to 12% for those 70 to 74, and to 7% for those over 75.
Whether this reduction in the work force is caused by mandatory retirement, physical disability, the incentives of the Social Security system or other pension programs or by a desire to experience the "good things” in life, the Legislature could rationally reflect in the benefit program the percept that sometime between 60 and 75 workers will, even if not disabled as the result of occupational injury or disease, "generally” cease to receive any substantial annual compensation for the current rendition of personal services.
Compensation benefits are geared to weekly wage loss. It is consistent with the concept of tying weekly compensation benefits to weekly wage loss to factor into the benefit program the statistically established generalization that workers, even if not disabled, retire between 60 and 75 and no longer earn weekly wages. There is no discrimination against disabled workers over 65 in taking into account the wage loss they would "presumptively” suffer due to normal retirement.
Paraphrasing Massachusetts Board of Retirement v Murgia, supra, the Legislature might have chosen to determine "more precisely through individualized” factual determinations the age at which a disabled worker would, but for his injury, have retired. It is apparent that if the Legislature had adopted that course both the length and amount of benefits would be sharply reduced for many disabled workers and their families. The administrative convenience of the 5% per year scale-down compared to the cost and uncertainty of case-by-case determination justifies the legislative choice. "Perfection in making the necessary classifications is neither possible nor necessary.” Massachusetts Board of Retirement v Murgia, supra, p 314.
IV
Decision in this case does not require consideration of the 1974 amendment (see fn 8) eliminating the scale-down for those ineligible for Social Security benefits. It may, however, avoid misunderstanding to speak to the question since this amendment is adverted to in Justice Williams’ opinion.
The special treatment of those who are ineligible for Social Security benefits does not create an entitlement in those who are eligible. There are many components that go into the makeup of the weekly compensation payments which benefit one class of persons to a greater extent than another. Enhanced benefits are payable for the disability of a worker who has dependents, whose spouse does not remarry after the worker’s death or who survives the injury or onset of disease for an especially long period of time.
Enlarging the benefits payable to disabled workers over 65 who do not receive Social Security benefits reflects their needs in much the same way as does the increase in benefits for those who have dependents, or whose spouses do not remarry, or who survive to old age.
Kavanagh, C. J., concurred with Levin, J.
Lindemer and Ryan, JJ., took no part in the decision of this case.
Williams, J.
(for reversal). We review today a challenge to the constitutionality of MCLA 418.357; MSA 17.237(357), that section of our state’s Worker’s Disability Compensation Act which provides for annual reductions of benefits once an employee reaches, has reached, or has passed the age of 65, on the theory apparently that persons of that age have left employment or suffered reduction in earning capacity. We hold that the classification is overinclusive as it covers a substantial group of individuals who have passed the age of 65 and have remained employed. Further, the statutory scheme has no relationship to the legislative object of avoiding the payment of duplicate disability benefits. Therefore, the statute is unconstitutional, and violates article 1, §2, of the Michigan Constitution, and the Fourteenth Amendment to the United States Constitution, requiring that each person receive the equal pro tection of the laws. Because of our resolution, we do not find it necessary to determine the appropriate method of reduction of benefits for those disabled after the age of 65.
I — Facts
Plaintiff-appellant Victoriano Cruz was found to be permanently and totally disabled because of occupational silicosis and silicotuberculosis caused by 34 years of plant and foundry work.
The referee found plaintiff was disabled as of his last day of work, at which time Cruz was 66 years old.
Because of defendant’s age, the referee ruled that benefits should be awarded subject to the reduction mandated by MCLA 418.357; MSA 17.237(357). At the time of the award, the statute provided:
"When an employee who is receiving, weekly payments or is entitled to weekly payments reaches or has reached or passed the age of 65, the weekly payments for each year following his sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65, but not to less than 50% of the weekly benefit paid or payable at age 65, so that on his seventy-fifth birthday the weekly payments shall have been reduced by 50%, after which there shall be no further reduction for the duration of the employee’s life. In no case shall weekly payments be reduced below the minimum weekly benefit as provided in this act.”
The Worker’s Compensation Appeal Board corrected an erroneous computation, but otherwise affirmed the referee’s decision. The award was thus $69 per week with a five per cent reduction for every year beyond 65 until plaintiff-appellant’s 75th birthday was reached.
The Court of Appeals affirmed, rejecting plaintiff-appellant Cruz’ contention that the act, by arbitrarily, unreasonably and capriciously discriminating against disabled workers solely on the basis of age, was unconstitutional class legislation in violation of the right to equal protection guaranteed by the Michigan and United States Constitutions. The Court held that, "Viewed as compensation for wage loss, it is not unreasonable to assume that the Legislature found that, upon attaining the age of 65, a worker’s level of compensation often decreased as a result of retirement, reduction in work, or other reasons. This assumption on the part of the Legislature has been reflected in § 357. Viewed in this respect a state of facts exists which would reasonably sustain the law.” Further, the Court held that the use of age to classify was reasonable, inasmuch as age on the date of injury was not controlling for determining the amount of benefits, but rather age was controlling "for determination of amount regardless of age on the date of injury”. Cruz v Chevrolet Grey Iron, 53 Mich App 472, 475-476; 220 NW2d 178 (1974). We granted leave to appeal October 15, 1974. 392 Mich 808 (1974). Following plaintiff’s death we permitted substitution of his wife, the administratrix of his estate, as the party plaintiff.
II — The Statute
In 1968, 1968 PA 227 amended 1965 PA 44. The statute then read:
"When an employee who is receiving weekly payments or is entitled to weekly payments reaches or has reached or passed the age of 65, the weekly payments for each year following his sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65, but not to less than 50% of the weekly benefit paid or payable at age 65; so that on his seventy-fifth birthday the weekly payments shall have been reduced by 50%; after which there shall be no further reduction for the duration of the employee’s life.” MCLA 412.9(g); MSA 17.159, now MCLA 418.357; MSA 17.237(357) (emphasis added to indicate amendment).
In Welch v Westran Corp, 45 Mich App 1, 4; 205 NW2d 828 (1973), aff'd on other grounds 395 Mich 169; 235 NW2d 545 (1975), it was held that prior to the 1968 amendment the reduction did not apply to persons 65 years old before enactment of the section in 1965, or who were injured subsequent to their 65th birthdays. However, as a consequence of this amendment, the provisions applied to employees injured subsequent to their 65th birthdays.
In 1974, this became subsection (1), and a second subsection was added, which mandated:
"(2) Subsection (1) shall not apply to a person 65 years of age or over otherwise eligible and receiving weekly payments who is not eligible for benefits under the federal social security act, 42 U.S.C. sections 301-1396i.” 1974 PA 184.
Ill — The Appropriate Standard of Review
The Court of Appeals held that plaintiff-appellant had "failed to carry the burden of showing that the law does not rest on any reasonable basis”. 53 Mich App 472, 475-476 (emphasis by the Court). This is consistent with the standard of review used in Naudzius v Lahr, 253 Mich 216, 223; 234 NW 581 (1931), quoting Lindsley v Natural Carbonic Gas Co, 220 US 61, 78; 31 S Ct 337; 55 L Ed 369(1911): "[I]f any state of facts reasonably can be conceived that would sustain [a law], the existence of that state of facts at the time the law was enacted must be assumed. * * * One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.”
However, this standard is no longer appropriate for viewing the challenged statute. We held in Manistee Bank & Trust Co v McGowan, 394 Mich 655, 671; 232 NW2d 636 (1975), that where the challenged statute carves out a discrete exception to a general rule and the statutory exception is no longer experimental, the substantial-relation-to-the-object test should be applied.” This test, as used by the United States Supreme Court in Reed v Reed, 404 US 71, 76; 92 S Ct 251; 30 L Ed 2d 225 (1971), requires that "A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation * * *’ ”. As we observed in Manistee, the test is applied when the disputed legislation is no longer experimental.
"Where a classification scheme creates a discrete exception to a general rule and has been enforced for a sufficiently long period of time that all the rationales likely to be advanced in its support have been developed, a court should fully examine those rationales and determine whether they are sound.
"Where * * * it can no longer be claimed that the legislation is experimental, where all possible rationales have been developed, a court should not dismiss a constitutional challenge on [the] hypothesis [perhaps the legislature also had other reasons for the law].” 394 Mich 672.
Cf., Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510, 523-524; 104 NW2d 182 (1960) (although we applied the more deferential traditional test of Naudzius and Lindsley, we noted that statutes constitutional when passed could become unconstitutional in the future).
Operationally, the test means that,
"The yardstick for the acceptability of the means would be the purposes chosen by the legislatures, not 'constitutional’ interests drawn from the value perceptions of the Justices.”
As a consequence, "[j]udicial tolerance of overinclusive and underinclusive classifications is notably reduced”. Gunther, Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1, 21, 20 (1972).
Our state’s worker’s compensation statute made its first appearance in 1912, and was most recently extensively revised in 1969. Various sections have been more heavily amended than others, but, as the pages of our Michigan Reports and our session laws indicate, this significant social and economic legislation has been subjected to extensive legislative and judicial review. Because of this extensive review, the possible justifications for various legislative approaches have been duly asserted and well canvassed. Although the particular amendment which is the subject of our litigation is of relatively recent vintage, it can only be fairly considered in relationship to the history of the complex body of legislation which makes up the worker’s compensation act. In that sense, the ten years, more or less, of this amendment no longer leaves it in a purely experimental stage.
Further, in the instant case where the only issue litigated has been constitutionality of a disputed statute, the various arguments have been given free and full play. Thus, the label of "experimental” cannot be fairly applied, and the justification for not applying the "substantial relation” test, i.e., that other rationales may develop, is inapplicable.
Therefore, we look to the test we applied in Manistee to determine whether plaintiff has sustained his burden of proof in challenging the statute, and has demonstrated either that the classification is not a reasonable one, and/or it does not bear a fair and substantial relation to the object of the legislation.
IV — Is the Classification Reasonable?
The appropriate test to determine whether this particular legislative enactment violates equal protection because subject individuals or entities are improperly classified was recently set forth in Alexander v Detroit, 392 Mich 30, 35; 219 NW2d 41 (1974) (citations omitted), cited with approval in Manistee, 394 Mich 670. The test is:
"Are the enactment’s classifications based on natural distinguishing characteristics and do they bear a reasonable relationship to the object of the legislation?”
We find that the statute in the case at bar fails to satisfy these conditions and is an unconstitutionally overinclusive classification.
The Court of Appeals, in rejecting plaintiff’s argument, held that the use of age in the statute to classify was reasonable. The Court maintained:
"Viewed as compensation for wage loss, it is not unreasonable to assume that the Legislature found that, upon attaining the age of 65, a worker’s level of compensation often decreased as a result of retirement, reduction in work or other reasons.” 53 Mich App 475.
The Court of Appeals claimed support for the validity of its assumption in Letourneau v Davidson, 218 Mich 334, 340; 188 NW 462 (1922), where we said, "We may take judicial notice that the earning power of a person performing manual labor is usually lessened when he reaches the age of 77 years”.
The Court of Appeals reliance on Letourneau is, however, misplaced; the issue before our Court in that case was whether, based on a physician’s report that plaintiiFs disabilities were partly re lated to senility and partly the result of his work-related injury, compensation benefits could be reduced by that proportion of his disability which was not work-related. We held that the statute contemplated no such apportionment.
The statute still contemplates no such apportionment. The reduction required by MCLA 418.357 is not an attempt to allocate a certain portion of payments to compensate for work-related disability, while another portion is reserved for old-age related disability. Instead, the state tells us, it reflects the legislative assumption that workers over 65 will reduce their own incomes.
The Court of Appeals approved the scheme because, the panel reasoned, benefits are paid on the basis of wage loss and after 65 most workers retire or suffer reduction in work. However, this is incorrect for those who are working after the age of 65. They have a wage record that reflects they are not retired and the exact level of compensation whether reduced or increased. Thus, the Court of Appeals approach misstates the issue.
The bottom line is that, based on the state’s own justification, the statute is deficient. The Legislature has included within the reduction requirement both those who left the labor force voluntarily before or at age 65 and those who were still working after the age of 65. Plaintiff in the instant case was himself 66 when he was forced to leave work by his disability, not by voluntary removal from the labor force. As plaintiff points out, the statute operates so that in the event of an identical disability befalling two workers performing identical jobs at identical salaries, the disability of the 68-year-old would be compensated at a lower rate than the 58-year-old, despite the demonstrated identity in earning capacities. If the justification for the reduction is retirement, if someone is still working after the age of 65, there is no reason why he or she shouldn’t get the same benefits as anybody else.
Plaintiff advised this Court that there were 96,-992 persons 65 and over who were employed in Michigan in 1970. The classification is therefore more than a case of mathematical imprecision. It is more than a case of lines drawn slightly askew. An entire wedge of the compensation pie has been improperly removed. Based on numbers alone, the discrimination complained of is significant and warrants judicial attention.
Further, as we have seen, the state’s own rationale does not justify the exclusion. The assumption on which the classification is based is factually and fatally overinclusive. It is as defective as those practices recently rejected which gave lesser credit to a wife’s salary in mortgage applications because it was assumed she would leave the labor force to raise a family.
The concept is also contrary to the basic nature of worker’s compensation benefits. As Professor Larson observed in his learned treatise, the concept of worker’s compensation mandates that the older worker’s remaining years should not be treated less seriously than those of the younger worker’s.
"If permanent disability or death benefits become payable, they are not limited to the period of what would have been claimant’s active working life. In other words, if a man becomes totally permanently disabled at age twenty-five, and is awarded benefits for life, they obviously do not stop when he is sixty-five, but extend on into the period of what probably would have been retirement. This being so, if a man is permanently and totally disabled at age sixty, it is not correct to say that his benefits should be based on the theory that his probable future loss of earnings was only ñve years of earnings. The right to have compensation benefits continue into retirement years is built into the very idea of workmen’s compensation as a self-sufficient social insurance mechanism from industrial accident and death.” 2 Larson, Workmen’s Compensation Law, § 60.21, pp 10-391-10-392. (Emphasis added.)
The Legislature has chosen to base compensation for permanent and total disability on the earnings of the injured individual. This renders unnecessary estimates based on erroneous assumptions of retirements which have not taken place.
Because it is overinclusive, the statute must fail judicial review. For further guidance to the Legislature, however, we turn to a consideration of an additional rationale suggested for the statute. Consideration of this will determine whether such a reduction may be applied to those injured before they are 65 and have not demonstrated an intent to continue in the labor market beyond that age.
V — The Statute as a Means of Reducing "Double Benefits”
The 1974 amendment to the statute, eliminating the reduction for those not eligible for Federal Old Age and Survivors benefits, suggests the only other rationale legislatively identified as supporting a mandatory reduction, that of eliminating so-called "double benefits”. As the WCABO expressed in Lakey, "Consideration of * * * the various benefits many employees receive after retirement and age 65 [was] likely important to the legislative thinking in setting a reduction formula that still does recognize injury effect by granting compensation at least at the 50% level.” 1970 WCABO 444.
This type of scheme has been judicially approved when dual benefits were genuinely involved. Thus, the United States Supreme Court approved, in Richardson v Belcher, 404 US 78; 92 S Ct 254; 30 L Ed 2d 231 (1971), 42 USC 424a(a), which provides a formula for reduction of Federal disability insurance benefits received by individuals also entitled to worker’s compensation benefits. The Supreme Court, citing legislative hearings, stated that the act resulted from congressional response to "criticism of the overlap between the workmen’s compensation and the social security disability insurance programs”. 404 US 82. Since both programs involved compensation for work-related disability, it is clear that the benefits are effectively duplicative.
This is seen even more clearly in those state statutes which attempted to avoid duplication of state and Federal disability benefits. Thus, Montana carefully limits the offset to compensation benefits for the same injury, as does Minnesota. The Colorado statute contains no such limitation, but clearly specifies reduction is warranted because of other disability benefits collected by the worker.
It is clear, however, that insofar as the Michigan statute may have been designed to avoid duplication of benefits, it has not been appropriately drawn. It is apparent both from the age at which reductions begin, and from the 1974 amendment, that the Legislature was concerned about receipt of both Federal old age and survivors benefits and our state worker’s compensation payments. The concern is misplaced, however, because these benefits are not duplicative.
Whereas Federal social security disability insurance and worker’s compensation benefits are in a sense double payment because they both are designed to deal with disability, the Federal social security old age and survivors benefit is meant to supplement or, in some cases, substitute for private pension benefits, not disability benefits. Old age and survivor benefits are triggered by retirement because of age not because of injury.
On the other hand, "Workmen’s compensation laws generally provide compensation to employees for loss resulting from industrial accidents and disease growing out of or resulting from their employment. The need for such a system arose out of conditions produced by modern industrial development and was premised upon the idea that the common-law rule of liability for personal injuries incident to the operation of industrial enterprises, which was based upon the negligence of the employer, with its defenses of contributory negligence, fellow servant’s negligence, and assumption of risk, was outmoded by modern conditions”. Belcher v Richardson, 317 F Supp 1294, 1296 (SD W Va 1970), rev’d on other grounds, 404 US 78; 92 5 Ct 254; 30 L Ed 2d 231 (1971).
"Workmen’s compensation * * * developed] in response to a social policy decision to substitute for tort law principles a no-fault liability based on the employment relationship.” Pelkey v Elsea Realty 6 Investment Co, 394 Mich 485, 501; 232 NW2d 154 (1975) (Williams, J., dissenting).
Thus, the conditions of payment for worker’s compensation benefits have a completely different nature from old age and survivor’s benefits. The source of funds differs as well. Compare 42 USC 401 and MCLA 418.601 et seq.; MSA 17.237(601) et seq.
Therefore, worker’s compensation deals with disability. Old age and survivor’s benefits do not. Thus, in no sense do the two duplicate each other. Because old age and survivor’s benefits and worker’s compensation payments are distributed for different reasons, from different funds, the legislative purpose of avoiding dual benefits is not at all related to the statutory provision, because the statute does not address itself to, nor deal with, dual benefits.
In order for a statute to satisfy the provisions of the equal protection amendments of the Michigan and United States Constitutions, the classifications must be reasonable and the statutory scheme must have a fair and substantial relation to the object of the legislation. The classification, as we have already discussed, is impermissibly overbroad. As for the second requirement, the statutory provisions reviewed today have no relation at all to the legislative goal.
VI — Conclusion
We hold today that MCLA 418.357 is unconstitutional as a violation of equal protection, both because of an overinclusive classification and because it is not reasonably related to the legislative object. Because of this opinion, it is unnecessary to consider plaintiff’s related issue of when the reduction begins for individuals injured after the age of 65.
The Court of Appeals and the Worker’s Compensation Appeal Board are reversed, and the matter is remanded to the Worker’s Compensation Appeal Board for entry of an order not inconsistent with this opinion.
As to those individuals not involved in the instant case, the holding of unconstitutionality is to be prospective only, and will also apply to all cases filed on our date of decision, and to all cases pending on appeal which have raised and preserved the issue.
No costs; a public question.
Plaintiff was born March 18, 1902.
The statute was amended by 1974 PA 184, § 1. The effective date of the amendment was July 2, 1974 and it reads:
"(1) When an employee who is receiving weekly payments or is entitled to weekly payments reaches or has reached or passed the age of 65, the weekly payments for each year following his sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65, but not to less than 50% of the weekly benefit paid or payable at age 65, so that on his seventy-fifth birthday, the weekly payments shall have been reduced by 50%; after which there shall not be a further reduction for the duration of the employee’s life. Weekly payments shall not be reduced below the minimum weekly benefit as provided in this act.
"(2) Subsection (1) shall not apply to a person 65 years of age or over otherwise eligible and receiving weekly payments who is not eligible for beneñts under the federal social security act, 42 USC sections 301-13961 ’’(Emphasis added.)
Const 1963, art 1, § 2:
"No person shall be denied equal protection of the laws”. US Const, Am XIV, § 1:
"[N]or shall any state * * * deny to any person within its jurisdiction the equal protection of the laws.”
See People v Bricker, 389 Mich 524; 208 NW2d 172 (1973). Also see Cady v Detroit, 289 Mich 499; 286 NW 805 (1939), Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973), and WA Foote Memorial Hospital, Inc v Jackson Hospital Authority, 390 Mich 193; 211 NW2d 649 (1973).
See Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510; 104 NW2d 182 (1960).
See also, San Antonio School District v Rodriguez, 411 US 1; 93 S Ct 1278; 36 L Ed 2d 16 (1973); Village of Belle Terre v Boraas, 416 US 1; 94 S Ct 1536; 39 L Ed 2d 797 (1974).
Both Rodriguez and Boraas adopt the deferential stance of the Lindsley Court with respect to legislative action.
Massachusetts Board of Retirement v Murgia, 427 US 307; 96 S Ct 2562; 49 L Ed 2d 520 (1976).
Ibid, 314.
Sims v RD Brooks, Inc, 389 Mich 91; 204 NW2d 139 (1973).
53 Mich App 472, 475-476; 220 NW2d 178 (1974).
Age discrimination in employment act, 29 USC 621 et seq.
Michigan State Fair Employment Practices Act, MCLA 423.301 et seq.; MSA 17.458(1) et seq.
MCLA 423.303a; MSA 17.458(3a).
See Kovarsky & Kovarsky: Economic, Medical and Legal Aspects of the Age Discrimination Laws in Employment, 27 Vand L Rev 839 (1974) ; Note: Mandatory Retirement—A Vehicle for Age Discrimination, 51 Chicago Kent L Rev 116 (1974); Comment, Age Discrimination and the Over-Sixty-Five Worker, 3 Cumberland-Samford L Rev 333 (1972); Note: Age Discrimination in Employment: The Problem of the Worker Over Sixty-Five, 5 Rutgers Camden L J 484 (1974); Note: Age Discrimination in Employment: Correcting a Constitutionally InSrm Legislative Judgment, 47 S Cal L Rev 1311 (1974).
Although this Court affirmed Welch (by an equally divided Court) in 395 Mich 169; 235 NW2d 545 (1975), the reduction of benefits argument was not pursued.
The 1968 amendment became effective July 1, 1968 and the date of plaintiff’s injury was determined to be October 17, 1968. Therefore, there is no retroactivity problem or need to interpret the prior statute.
The date of disablement was subsequent to the effective date of the 1965 amendment which in effect eliminated the aggregate dollar limitation on silicosis and dust disease benefits. See fn 4.
The original Workmen’s Compensation Act, 1912 (1st Ex Sess) PA 10, pt 2, § 9, provided that benefits were payable for total incapacity for a period no greater than 500 weeks.
1943 PA 245 enlarged the period for total and permanent disability to 750 weeks; 1953 PA 198 extended the duration of benefits for such disability to 800 weeks; 1956 PA 195 provided that benefits shall be paid for the duration of a total and permanent disability not greater than 500 weeks.
1951 PA 278.
The amendment eliminating the 500-week limitation provides: "Compensation shall be paid for the duration of the disability.” 1965 PA 44, part 2, § 9(a); MCLA 412.9; MSA 17.159.
The obligation to pay silicosis and other dust disease benefits in excess of $12,500 was imposed on the Silicosis and Dust Disease Fund. 1965 PA 44, pt 7, § 4; MCLA 417.4; MSA 17.223.
Although some states have provided benefits for life (Arizona, Colorado, Illinois, Massachusetts, Minnesota, Nevada, Ohio, West Virginia), or for the duration of the disability (Alaska, Connecticut, Delaware, Florida, Hawaii, Kentucky, Michigan, New York, North Dakota, Oregon, Pennsylvania, Rhode Island, Virginia, Washington, Wisconsin), others have set a maximum time period, usually 400 to 500 weeks (Alabama, 550 weeks; Georgia, 400 weeks; Indiana, 500 weeks; Iowa, 500 weeks; Kansas, 415 weeks; Louisiana, 500 weeks; Mississippi, 450 weeks; Montana, 500 weeks, discretionary thereafter; New Jersey, 450 weeks; New Mexico, 500 weeks; North Carolina, 400 weeks, 500 weeks for two injuries in one employment, life for brain or spinal injuries; Oklahoma, 500 weeks; South Carolina, 500 weeks; South Dakota, 30 years; Texas, 401 weeks; Utah, 260 weeks; Vermont, 330 weeks), or have provided for a reduced scale of benefits after a given number of weeks (California, life, reduced after 400 weeks; Idaho, life, reduced after 400 weeks; Nebraska, duration of disability, reduced after 300 weeks; Tennessee, 500 weeks maximum, after 400 weeks reduced to $15 per week maximum). 4 Larson, The Law of Workmen’s Compensation, app B, table 8, pp 524-527 (compiled as of 1973).
1965 PA 44, pt 2, § 9(g); MCLA 412.9; MSA 17.159.
1968 PA 227.
1969 PA 317; MCLA 418.357; MSA 17.237(357).
The statute was further amended in 1974 to eliminate the scale-down if the worker is not eligible for Social Security benefits. 1974 PA 184.
This statutory provision as so amended reads:
"(1) When an employee who is receiving weekly payments or is entitled to weekly payments reaches or has reached or passed the age of 65, the weekly payments for each year following his sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65, but not to less than 50% of the weekly benefit paid or payable at age 65, so that on his seventy-fifth birthday the weekly payments shall have been reduced by 50%; after which there shall not be a further reduction for the duration of the employee’s life. Weekly payments shall not be reduced below the minimum weekly benefit as provided in this act.
"(2) Subsection (1) shall not apply to a person 65 years of age or over otherwise eligible and receiving weekly payments who is not eligible for benefits under the federal social security act, 42 U.S.C. sections 301-1396Í.” MCLA 418.357; MSA 17.237(357).
1975 PA 279.
MCLA 418.345; MSA 17.237(345).
MCLA 418.321, 418.335, 418.341; MSA 17.237(321), 17.237(335), 17.237(341).
MCLA 418.351, 418.375; MSA 17.237(351), 17.237(375).
MCLA 418.375; MSA 17.237(375).
MCLA 418.351, 418.361; MSA 17.237(351), 17.237(361).
MCLA 418.331, 418.335, 418.353; MSA 17.237(331), 17.237(335), 17.237(353).
MCLA 418.359; MSA 17.237(359).
MCLA 418.355(3); MSA 17.237(355X3). "The maximum weekly rate as so determined for the year in which the date of injury occurred shall remain fixed without further change as to the personal injury occurring within such year.”
The Court first determined that “strict scrutiny is not the proper test for determining whether the mandatory retirement provision denies appellee equal protection.” It said:
"While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a 'history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. The class subject to the compulsory retirement feature of the Massachusetts statute consists of uniformed state police officers over the age of 50. It cannot be said to discriminate only against the elderly. Rather, it draws the line at a certain age in middle life. But even old age does not define a 'discrete and insular’ group, United States v Carolene Products Co, 304 US 144, 152-153, n 4 [58 S Ct 778; 82 L Ed 1234] (1938), in need of 'extraordinary protection from majoritarian political processes.’ Instead, it marks a stage that each of us will reach if we live out our normal span. Even if the statute could be said to impose a penalty upon a class defined as the aged, it would not impose a distinction sufficiently akin to those classifications that we have found suspect to call for strict judicial scrutiny.” Massachusetts Board of Retirement v Murgia, 427 US 307, 313-314; 96 S Ct 2562, 2566-2567; 49 L Ed 2d 520, 524-525 (1976).
Nationwide, in 1974, 22% of males and 8% of females over 65 were in the labor force. United States Bureau of the Census, Social and Economic Characteristics of the Older Population (Washington, D.C.: United States Government Printing Office, 1974), p 24. Approximately 2.0 million males and 1.1 million females over 65 were employed in 1970; more than half were between 65 and 69. Id.
United States Bureau of the Census, Social and Economic Statistics Administration, Census of Population: 1970, Detailed Characteristics. — Michigan (Washington, D.C.: United States Government Printing Office, 1972), table 167.
These statistics reflect retirements from the work force due to mandatory retirement.
While demographic statistics will reflect the results of unlawful discrimination, mandatory retirement at 65 does not appear to violate the public policy of this state or of the United States.
In enacting the age discrimination in employment act of 1967, Congress expressed its judgment that the prohibitions of that legislation should "be limited to individuals who are at least forty years of age but are less than sixty-five years of age”. 29 USCA 631. The Michigan State Fair Employment Practices Act provides that it is an unfair employment practice to discriminate against any individual because he or she is between the ages of 18 and 60. MCLA 423.303a; MSA 17.458(3). Those legislative judgments, imposing no limitation on discriminatory tenure practices for persons over 60 or 65, are presumptively constitutional, and are not challenged in this litigation.
MCLA 418.351, 418.371; MSA 17.237(351), 17.237(371).
The statute, as amended, reads in part: " * * * after which there shall not be a further reduction for the duration of the employee’s life”. 1974 PA 184.
Thus, in Massachusetts Board of Retirement v Murgia, 427 US 307; 96 S Ct 2562; 49 L Ed 2d 520 (1976), where the United States Supreme Court upheld a Massachusetts law requiring police to retire at age 50, the Court rejected the district court’s use of a strict scrutiny test of equal protection. (This test requires the presence of a fundamental right or a suspect classification to be applicable.) It then applied what it characterized as "a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task * * * . Perfection in making the necessary classifications is neither possible nor necessary”. 427 US 314. However, even though the Court was using what was in effect the Lindsley test, it was careful to review only that "purpose identified by the state”, and did not hypothesize or rely on conjecture. The stated legislative purpose was "to protect the public by assuring physical preparedness of its uniformed police”. Analyzing this stated rationale, the Court specifically found, "There is no indication that [the statute] has the effect of excluding from service so few officers who are in fact unqualiffed as to render age 50 a criterion wholly unrelated to the objective of the statute.” 427 US 315-316 (citations omitted) (emphasis added). Thus, the Murgia statute is different from the disputed statute in the case at bar, for while that statute excluded very few, the fact is that MCLA 418.357 excludes so many the classification is overinclusive. See discussion in text, infra. Applicability of the Reed-Manistee test was not raised in Murgia.
The Court of Appeals believed this might result from "retirement, reduction in work, or other reasons”. 53 Mich App 475. The Worker’s Compensation Appeal Board argued, in a similar case, "Can it be said that those 65 and over, whether injured or not, would not leave the labor market of their own volition through retirement some time [well] before a disability would run its course”. Walker v Lakey Foundry Corp, 1970 WCABO 443, 444.
They suggested the statute would be deficient if those injured before 65 would not be subject to benefit reduction, while those injured after 65 would be. We agree.
He cites Table 174, United States Bureau of the Census, Census of Population: 1970, Detailed Characteristics; Final Report PC (D — D24 Michigan (Washington, DC: United States Government Printing Office, 1972), pp 899-901.
This is a situation which the United States Supreme Court implied in Murgia it would find invalid, where a substantial number of qualified individuals are excluded by the statutory classification.
Although we do not today rely on the due process analysis, we note that the presumption is in this way as unreasonable as the residency requirement struck down in Vlandis v Kline, 412 US 441, 452; 93 S Ct 2230; 37 L Ed 2d 63 (1973), where the state’s permanent and irrebuttable presumption of non-residency for purposes of tuition was struck down as "not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination”.
We might add that the Legislature has also, in eifect, already allowed for decreased earning capacity, for those individuals whose compensation is based on what their earning abilities were, without contemplating any increases due to promotions, ordinary wage or salary increases, or inflation.
"Section 224 provides, in pertinent part:
" '(a) If for any month prior to the month in which an individual attains the age of 62—
" '(1) such individual is entitled to benefits under section 423 of this title, and
" '(2) such individual is entitled for such month, under a workmen’s compensation law or plan of the United States or a State, to periodic benefits for a total or partial disability (whether or not permanent), and the Secretary has, in a prior month, received notice of such entitlement for such month,
" 'the total of his benefits under section 423 of this title for such month and of any benefits under section 402 of this title for such month based on his wages and self-employment income shall be reduced (but not below zero) by the amount by which the sum of—
" '(3) such total of benefits under sections 423 and 402 of this title for such month, and
" '(4) such periodic benefits payable (and actually paid) for such month to individual under the workmen’s compensation law or plan, " 'exceeds the higher of—
" '(5) 80 percentum of his "average current earnings” * * *
“ 'For the purposes of clause (5), an individual’s average current earnings means the larger of (A) the average monthly wage used for purposes of computing his benefits under section 423 of this title, or (B) one-sixtieth of the total of his wages and self-employment income (computed without regard to the limitations specified in sections 409(a) and 411(b)(1) of this title) for the five consecutive calendar years after 1950 for which such wages and self-employment income were highest * * * .’ 42 USC 424a.” Richardson v Belcher, 404 US 78, 79 fn 1; 92 S Ct 254; 30 L Ed 2d 231 (1971).
E.g., "In cases where it is determined that periodic benefits granted by the Social Security Act, 42 USC 301 (1935), are payable because of the injury, the weekly benefits payable under this section are reduced * * * ”. Rev Codes of Montana 92-701.1 (Cum Supp, 1975) (emphasis added).
E.g., "the amount of the weekly compensation benefits being paid by the employer shall be reduced by the amount of any disability benefits being paid by any government disability benefit program if such disability beneñts are occasioned by the same injury or injuries which give rise to payments under this subdivision. ” Minn Stat Ann 176.101(4). The Minnesota statute, however, also applied to old age and survivor insurance benefits, presumably those converted from social security disability payments. Cf. Telle v Northfield Iron Co, 278 Minn 129; 153 NW2d 270 (1967).
"In cases where it is determined that periodic disability beneñts, granted by the federal old-age, survivors, and disability insurance act are payable to an individual and his dependents, the aggregate-weekly benefits payable * * * pursuant to this section shall be reduced * * * ”. Colo Rev Stat Ann 8-51-101(1)(c).
"The purpose of the federal old age benefits of the Social Security Act is to provide funds through contributions by employer and employee for the decent support of elderly workmen who have ceased to labor.” Social Security Board v Nierotko, 327 US 358, 364; 66 S Ct 637; 90 L Ed 718 (1946). (See discussion, Helvering v Davis, 301 US 619, 642-644; 57 S Ct 904; 81 L Ed 1307 (1937), where the emphasis is on finding means of supporting workers over 65, involuntarily "thrown out of work”.)
Further, by setting a statutory maximum of 2/3 of the actual wage, recipients of worker’s compensation benefits are already collecting reduced payments.
Further, because individuals become eligible for Federal retirement at 62, 42 USC 402(a), the MCLA 418.357 produces the anomalous result of reducing the compensation benefits of those who are 65, while those collecting the same retirement benefits who are between 62 and 65 collect the full amount of worker’s compensation payments. | [
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Lindemer, J.
In the early morning hours of December 15, 1969, Mrs. Eileen Garcia and Mr. Blevins Rinehart were shot to death outside the Peerless Gear Company in Clinton, Michigan. The slayings took place in the factory parking lot as the employees reported for the day shift. Both victims died of gunshot wounds to the head. Later that same day defendant was apprehended by the police and charged with the murder of his wife. In May of 1970, defendant was bench-tried before Lenawee County Circuit Judge Rex B. Martin. Defendant was convicted of first-degree murder. MCLA 750.316; MSA 28.548. In his appeal of right, the Court of Appeals affirmed his conviction. 33 Mich App 598; 190 NW2d 347 (1971). Leave to appeal that decision to this Court was denied. 386 Mich 766 (1971). Defendant then filed a motion for a new trial with the trial court. Defendant appealed the denial of that motion to the Court of Appeals which again upheld the conviction. 51 Mich App 109; 214 NW2d 544 (1974). This Court granted defendant’s application for leave to appeal. 392 Mich 803 (1974). We affirm.
Initially, we consider defendant’s claim that the trial court improperly refused to direct a verdict of acquittal at the close of the prosecution’s proofs. An appellate court tests the correctness of the denial of such motion by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there was any evidence upon which the trier of fact could predicate a finding of guilty of murder in the first degree. People v Vail, 393 Mich 460; 227 NW2d 535 (1975). People v Abernathy, 253 Mich 583; 235 NW 261 (1931). To the extent that the case of People v Qualls, 9 Mich App 689; 158 NW2d 60 (1968), holds to the contrary, it is expressly overruled.
When moving for acquittal, defense counsel argued that there was no evidence linking defendant to the perpetration of the crime. We disagree. A number of persons who witnessed the slayings testified but were unable to positively identify defendant as the assailant. However, it was established that defendant had made several recent threats to kill his wife and anyone found with her; the assailant escaped in the defendant’s car; and a police officer testified that when apprehended the defendant admitted being in sole possession of his car during the time of the slayings. Defendant was known to have been in possession of a .22-caliber revolver and some ammunition. A police expert testified that the bullet recovered from the wife’s body is of the type which could have been fired from such a pistol. The murder weapon was never recovered so a match between the bullet and the pistol could not be accomplished.
Witnesses testified that the slayings took place between 6:30 and 6:45 a.m. One witness observed that the assailant was wearing a dark topcoat. After the shooting, the assailant entered defendant’s car and calmly drove from the parking lot (in Clinton) towards Tecumseh, approximately four miles south. Defendant was observed driving his car in Adrian, 15 miles south of Clinton, sometime between 7:00 and 7:30 a.m. Defendant, wearing a dark trench coat, arrived at James McClarren’s house, about ten miles from the prior sighting, sometime between 7 and 8 a.m. We believe this chain of circumstantial evidence was sufficient to allow the trial judge to deny the motion. In our opinion these proofs contained some relevant evidence on each of the elements of the crime charged and that defendant was the perpetrator of that crime. The trial judge properly denied the motion for a directed verdict of acquittal at the close of the prosecution’s case.
The next of defendant’s four raised issues concerns the defense of voluntary intoxication. Defendant argues that the crime of first-degree murder requires the specific intent to kill. Defendant then argues that the law of this state is such that voluntary intoxication can be a defense to crimes which require a specific intent. Defendant concludes by arguing that the trial judge erroneously concluded that defendant was not so intoxicated that he did not form the specific intent to kill. In related subarguments, the defendant alleges that the trial court failed to find all of the necessary elements of first-degree murder; that the defendant was acting under diminished mental responsibility sufficient to negate the elements of specific intent and premeditation and deliberation; and that the evidence was insufficient for a finding of guilt of any crime greater than the crime of voluntary manslaughter. MCLA 750.321; MSA 28.553. We find these related issues to be without merit.
Murder is homicide committed with malice aforethought. At the common law, the crime of murder was not divided into degrees. The present statutory scheme providing for the separation of murder into degrees was "for the purpose of graduating the punishment”. People v Doe, 1 Mich 451, 457 (1850). This classification of murder by degree was first enacted by the State of Pennsylvania in 1794. In 1838, motivated by a concern that the more culpable forms of murder should be punished more severely, this state adopted a similar statutory scheme. People v Potter, 5 Mich 1, 6 (1858); People v Morrin, 31 Mich App 301, 325; 187 NW2d 434 (1971).
Courts in Pennsylvania have consistently held that their first-degree murder statute requires a specific intent to kill. Commonwealth v Murray, 2 Ashm (Pa) 41 (Phila O & T, 1834); Commonwealth v Fostar, 455 Pa 216; 317 A2d 188 (1974).
Michigan courts have not been so consistent. In People v Scott, 6 Mich 287, 294 (1859), this Court stated:
"Except in cases expressly named in the statute, murder in the ñrst degree requires the existence of a deliberate intention to take life; and any slaying in which a jury should find either the absence of deliberation, or that the intent was to commit another and a lesser injury, must be either murder in the second degree or one of the lighter grades of homicide.” (Emphasis supplied.)
However, confusion began when this Court, on policy grounds, rejected the defense of voluntary intoxication in a prosecution of first-degree murder. People v Garbutt, 17 Mich 9 (1868). Broad statements from cases involving second-degree murder convictions added to the confusion. Wellar v People, 30 Mich 16 (1874).
Another problem with some of the cases is that the crime charged was not a homicide. An example is Roberts v People, 19 Mich 401 (1870), which involved an assault with intent to commit murder. In hopes of ending the confusion and on the authority in Potter and Scott, we hold that nonfelony first-degree murder is a specific intent crime requiring an intention to take life.
Our holding is supported by the language of the first-degree murder statute.
"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing * * * shall be murder of the first degree”. MCLA 750.316; MSA 28.548.
A reading of the statute mandates the construction that "wilful * * * killing” means the intent to accomplish the result of death.
Voluntary intoxication can be a defense to crimes which require a specific intent.
"While it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist.” People v Walker, 38 Mich 156, 158 (1878).
In the case at bar, however, the trial judge rejected the defense of voluntary intoxication. We believe he did so properly. In his finding of facts, the trial judge stated:
"I think he formed an intent to do away with her [his wife] if he caught her with someone else. I think he went to Clinton early Monday morning with his pistol to kill her if the occasion arose and he thought he should.”
These findings of fact support the conclusion that the murder was premeditated and deliberated upon. The record also supports the trial judge’s conclusion the defendant acted with wilfulness. The trial judge found the killing to be intentional rather than accidental:
"The physical facts themselves, the place where the bullet went in each person, the fact there were no powder burns, the path of the bullet, the type of gun, the fact that it had to be cocked every time it was fired would completely belie this story, so there wasn’t any accidental killing.”
Defendant argues that certain remarks of the trial judge indicate that defendant was found to have been operating under a diminished mental capacity due to consumption of alcohol and lack of sleep. Specifically defendant points to these statements:
"I am convinced his ability to form a proper judgment was impaired by his voluntary consumption of intoxicants. * * * I am convinced he wouldn’t have killed them, either one of them, if he had been sober.” However, the entire passage from which those comments were excised evidences an entirely different conclusion. Our review of the transcript leads us to believe that the trial judge was properly convinced that, in spite of his drinking spree, the defendant had the ability to and did actually premeditate and deliberate over his wife’s death.
"Now, the people must convince the court beyond a reasonable doubt of premeditation and malice to have first-degree murder. Dr. DuKay stated very emphatically among some of his other testimony that when you take the total picture of the alcoholism, the lack of sleep, the lack of food, etc., the defendant didn’t have the ability to specifically form an intent to murder, and he was pretty definite about this. He also said another thing, and frankly, I looked at my notes, and I wasn’t too sure that probably I got it down right, so I asked the reporter to type out this particular question and answer just to make sure I had heard Dr. DuKay correctly, and on cross-examination, Mr. Koselka asked him, 'Again, I want to be sure I understand this, doctor. You are saying then, doctor, that he did in your opinion have the intent to murder, but his ability to form this intent was impaired by the use of alcohol?’ And the answer was, 'I think that that’s what it really can be summarized.’ So Dr. DuKay, in effect, has said he could have this intent and did have it and yet on another occasion he said he didn’t think he had the intent. Now, I think Dr. DuKay also said again it wasn’t his responsibility to make that determination, and, of course, he was correct in this. I am convinced that the defendant had the ability to form a proper judgment — pardon me. I am convinced his ability to form a proper judgment was impaired by his voluntary consumption of intoxicants. I believe his inhibitions were released by intoxicants. His basic subconscious hatred of his wife, because of her failure to be the mother, the housekeeper, and the wife he had wanted her to be, came to the forefront. Now, he knew that this dislike of his wife came to the forefront when he drank. He’d been told this. He testified himself that he knew about this. I think he formed an intent to do away with her if he caught her with somebody else. I think he went to Clinton early Monday morning with his pistol to kill her if the occasion arose and he thought he should. I don’t think he went there to give her the pistol at all. This doesn’t make sense. He found her with Mr. Blevins [Rinehart]. It was an innocent meeting between the two of them. I think she went to Mr. Blevins to see if he had brought her work clothes so she could go into work. He killed them both. I am convinced he wouldn’t have killed them, either one of them, if he’d been sober. I don’t think there’s any question in my mind about that. I am convinced he was not so drunk as to have lost the ability to have malice, that malice arose in his heart and his mind. In fact, I think the drinking released the controls on the suppressed malice. That the court is convinced that he was not so drunk as to be unable to plan ahead to do what he did. I am satisfied beyond a reasonable doubt that all the elements of first-degree murder have been proved. The court would find him guilty of that offense.”
The nature of defendant’s impairment was described as (1) his inhibitions were released, (2) his subconscious hatred of his wife came to the forefront, and (3) drinking released his controls on suppressed malice. Judged in light of his other comments about defendant’s ability to form a proper judgment and entertain malice, we believe the trial judge must have concluded these "impairments” were of a minimal nature. Such a conclusion is supported by the trial judge’s finding that defendant had exaggerated his testimony concerning consumption of intoxicants and lack of sleep. We find nothing in this record to indicate that defendant’s consumption of intoxicants so clouded his ability to reason that he was unable to premeditate or deliberate over his actions at the time of the slayings.
In a bench trial, it is the role of the trial judge sitting as the trier of fact to observe the witnesses and decide the weight and credibility to be given to their testimony. Where sufficient evidence exists to sustain a verdict of guilty beyond a reasonable doubt, the decision of the judge should not be disturbed by an appellate court. The task of the reviewing court must be to examine the record to determine whether the evidence was ample to warrant a verdict of guilty beyond a reasonable doubt of the crime charged. Our review of this record leads us to conclude that there was sufficient evidence on each and every element of the crime of first-degree murder to sustain the decision of the trial judge.
Next the defendant alleges that reversible error was committed when the trial judge, sitting as a trier of fact, read the entire transcript of the preliminary examination. To support his contention defendant cites the case of People v Ramsey, 385 Mich 221; 187 NW2d 887 (1971). In Ramsey, this Court considered MCLA 768.26; MSA 28.1049, and held that:
"[A]s an absolute rule it is reversible error for the trial court sitting without a jury to refer to the transcript of testimony taken at the preliminary examination except under the exceptions provided by [the above] statute.” Ramsey, supra at 225.
The policy behind Ramsey was to "assure that an accused has a right to confront all of the witnesses against him in open court, and to have all of the evidence against him placed in the record at the trial”. Ramsey, supra at 224-225. However, we find defendant’s reliance upon Ramsey misplaced.
The rule fashioned by this Court in Ramsey was not announced until one year after the trial of this case had concluded. Prior to Ramsey, review of the preliminary examination transcript was a generally accepted practice for the trial judge sitting as a trier of fact. We cannot fault the trial judge’s reliance on this long standing practice especially in light of defense counsel’s consent to it. Upon consideration of the standards enunciated in Link-letter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), and People v Hampton, 384 Mich 669; 187 NW2d 404 (1971), we hold the rule announced in Ramsey is not to be accorded retroactive effect.
Finally defendant contends that he was denied a fair trial by the defense counsel’s failure to object to the trial court’s reading of the entire preliminary examination transcript. Defendant argues that this constituted the serious mistake and but for this mistake there was a great likelihood that he would not have been convicted. This is the two-prong test set forth in People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969). Defendant also contends that he is entitled to a new trial under the doctrine established in Beasley v United States, 491 F2d 687, 696 (CA 6, 1974). Beasley held that:
"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interests, undeflected by conflicting considerations.”
We do not believe the alleged error amounts to reversible error under either Beasley or Degraffenreid. In his findings of fact, the trial judge remarked:
"I think we had a well tried lawsuit here. The witnesses were brought in and examined and cross-examined well, and it was well argued. * * * I wondered at first why defense counsel and his client had waived a jury in this case, and as I got to thinking about it, I could probably understand best after we heard Dr. DuKay’s testimony, because this particular type of defense has been offered many times in this court, and frankly, I don’t think that we’ve ever had an occasion where a jury has accepted it as a defense. I don’t think that we have ever had the case as a defense as well presented as we had it by Dr. DuKay.”
The trial judge read the preliminary transcript to help him to evaluate the testimony of Dr. DuKay. Considering the importance of Dr. DuKay’s testimony in this trial, it is likely that defense counsel perceived the trial judge’s reading of the preliminary examination transcript would be beneficial to the defense. Apparently the trial judge thought otherwise:
"Now, I went through the preliminary examination yesterday, and frankly, I don’t think the preliminary examination set forth the defendant’s case as strongly as the trial itself did. I think the testimony brought out at trial was much stronger * * * .”
People v Degraffenreid, supra, adopts a strict standard for the review of claims of effective assistance of counsel.
"The constitutional right to counsel does not guarantee an accused person that his lawyer will not make a big mistake. The Constitution guarantees only that the accused person will enjoy representation by an attorney adequately equipped by his training in the law to undertake the case and who will diligently, conscientiously and honestly represent the accused person.” Degraffenreid, supra at 712 (footnotes deleted).
Degraffenreid goes on to state that:
"A claim that an adequate lawyer made a serious mistake does not raise the constitutional issue of right to counsel; it does not involve the concept of 'effective assistance of counsel’, it should not be measured against the sham trial standard which circumscribes the constitutional right.” Degraffenreid, supra at 717.
However, even where assistance of counsel satisfies the constitutional requirements, defendant is still entitled to a fair trial. Defendant can be denied this right if his attorney makes a serious mistake. But a court should not grant a new trial unless it finds that but for this mistake defendant would have had a reasonably likely chance of acquittal. Degraffenreid, supra at 718.
In Beasley, supra at 696, the Sixth Circuit rejects the farce or mockery standard as a meaningful test of the Sixth Amendment right to effective assistance of counsel.
We agree with the Sixth Circuit that the time has come for this Court to reject the "sham test”. However, in adopting Beasley and applying it to this case, we fail to find reversible error has been committed. We believe the decision of defense counsel not to object to the trial judge’s reading of the preliminary examination transcript to be a conscious choice of trial strategy. Under Beasley, if such "action that appears erroneous from hindsight was taken for reasons that would appear sound to a competent criminal attorney, the assistance of counsel has not been constitutionally defective”. The alleged mistake is of this caliber. We conclude that defendant was deprived of neither a fair trial or effective assistance of counsel.
The Court of Appeals is affirmed.
Williams and Coleman, JJ., concurred with Lindemer, J.
Fitzgerald and Ryan, JJ., took no part in the decision of this case. | [
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McDonald, J.
The defendant was convicted under an information charging him with the embezzlement of $20 represented by a warrant of the treasurer of the county of Saginaw issued to one Anna Anderson. The information contained five counts. On the trial the third, fourth, and fifth counts were stricken out, and the case was submitted to the jury on the first and second. The jury found the defendant guilty on the first count, and not guilty on the second. The first count was charged under section 15308, 3 Comp. Laws 1915, which reads as follows:
“If any officer, clerk, or other person, employed in the treasury of this State, or in the treasury of any county, or in any other public office within the State, shall commit any fraud or embezzlemént therein, he shall be punished,” etc.
At the time of the alleged embezzlement, the defendant was probation officer of the mothers’ pension division of the probate court of Saginaw county, Michigan. On June 3, 1925, he received a warrant from the treasurer of Saginaw county payable to the order of Anna Anderson, who was on the mothers’ pension list. It is charged that he did not deliver the warrant to Mrs. Anderson, but forged her name thereto, cashed it, and appropriated the money to his own use. Before the trial, the prosecuting attorney filed a motion for a change of venue, alleging that the people could not have a fair trial in the county of Saginaw. The motion was supported by numerous affidavits and was contested by the defendant, who filed a large number of affidavits in opposition thereto. The motion was granted, and the case was transferred for trial to Bay county. It is here on exceptions before sentence.
The first question presented by the record is that the conviction cannot be sustained under section 15308, 3 Comp. Laws 1915, on which the first count of the information is based. It is claimed by the defendant that this statute was not intended to cover a case like the one at bar, for the reason that, as probation officer, no duty was imposed on him to receive, pay out or account for the safekeeping of any money belonging to the county of Saginaw; that the money which he is charged with having embezzled did not come into his possession by virtue of his office or employment, and, therefore, he could not be guilty of embezzlement under the statute on which the information is based.
It is charged in the information that the defendant was' “an officer, clerk and personally employed by the county of Saginaw,” and that he embezzled certain money that came into his possession and control “by virtue of his said office and employment.” The statute applies to any officer, clerk, or other person employed in any public office who “shall commit any fraud or embezzlement therein.” The defendant was an officer of the county of Saginaw. The question is, Did he commit an embezzlement in that office? It is true that the law did not require him to handle any of the county’s money. The warrants for payments to mothers pensioners were issued by the county clerk on order from the probate judge. The clerk, passed them over to the county treasurer, who' signed them and mailed them to the pensioners. This method of payment was not always followed. In many instances, the treasurer gave the warrants to the defendant, who personally delivered them to the pensioners. This practice followed a suggestion of the probate judge, who testified:
“I acquainted Mr. Burns with the usual procedure; I have no recollection of giving any specific instructions in regard to his duties concerning any checks excepting at the beginning of his appointment we talked over the matter of how to- best get acquainted with the recipients of this fund, and I suggested to Mr. Burns that it would be advisable at that time to call in all pensioners for an interview with them at the time that the check was given to them.”
Acting on this suggestion, the defendant received from the county treasurer every month a number of mothers’ pension checks. The deputy treasurer testified:
“He came where the pile was and took them in my presence and took them away. Sometimes he would take 5, and he has taken as high as 20 or 25.”
In this way he came into possession of the check, the proceeds of which he is alleged to have embezzled.
It is said by counsel for the defendant that the law never contemplated that probation officers should receive checks and deliver them to mothers pensioners. Conceding the correctness of counsel’s contention, the fact remains that he did receive checks and did so as probation officer. Whether he was legally authorized to handle and disburse this money is not controlling. He consented to handle it as probation officer, and, if he has embezzled it, he is in no position to say that he had no legal right to its possession. It will be noted that the statute does not say that the money must have come into his hands by virtue of his office. It merely provides for the punishment of any officer, clerk, or other person employed in any public office who “shall commit any fraud or embezzlement therein.”
But the defendant received these checks by virtue of his office. They were delivered to him because he was the probation officer, and he consented to receive them and disburse the money because it brought him in contact with the pensioners whose claims he was required to investigate. The money belonged to the county of Saginaw. While in possession of it as probation officer he appropriated some of it to- his own use. He committed an embezzlement in his office, and that is all the statute requires to constitute the offense charged.
The record presents but one other question for our consideration. Did the court err in granting the prosecuting attorney’s motion for a change of venue? It appears from the affidavits filed by the prosecuting attorney that, at the time the motion for a change of venue was made, there were 14 criminal cases pending against the defendant in the county of Saginaw; that the Saginaw News Courier, a daily newspaper having a large circulation in Saginaw county, carried articles, statements, and headlines regarding these cases and published portions of the testimony taken in justice’s court examinations; that because of the publication of these articles and statements, public interest and public prejudice were greatly aroused; that many persons were strongly influenced thereby, and became ardent partisans of the defendant; that the defendant had held public office in the county of Saginaw for many years, and was widely known; that in the campaign of 1926 ‘ he was a successful candidate for county clerk against Edward P. lioeser, the former clerk; that during the campaign a bitter personal and political feud arose between the two candidates; that a great many persons are intensely loyal to the defendant, have absolute confidence in him, and have a prejudice against Roeser and hatred for him; that numerous persons have said that defendant Burns will not be convicted unless Roeser is also convicted; that the defendant became county clerk of Saginaw county on January 1, 1927, and as such had charge of the jury lists furnished by the jury commission; that, in order that a fair and impartial trial of the cases against him might not be had by the people, he withdrew from 47 of the 48 envelopes containing the jury lists names of jurors furnished by the commission, and substituted therefor names of his own selection. For these reasons it was urged that the people could not have a fair trial in the county of Saginaw.
In opposition to the motion, the defendant filed his affidavit, in which he denied tampering with the jury lists, and requested the court to designate one of his deputies or some other suitable person to become custodian of the jury lists and to take charge of drawing the juries. He denied that the publication of articles in the daily newspaper concerning the cases against him had created public sentiment in his favor, or that there was a bitter personal and political feud between him and Mr. Roeser, the former clerk. He also filed numerous supporting affidavits from reputable citizens who gave their opinion that the people could obtain a fair trial in Saginaw county.
The right of an accused to be tried in the county where the offense is alleged to have been committed is a valuable right of which he should not be deprived except upon a clear showing of good cause. To determine a question of such importance upon evidence' by affidavits is never satisfactory. A better practice “ would be for the trial court to make an actual test by an effort to secure a fair jury. Such a course is not absolutely essential, but it is the surest way of protecting the rights of both parties. However, the question is addressed to the judicial discretion of the trial judge, and except for an abuse of that discretion we have no right to review his ruling.
In People v. Swift, 172 Mich. 473, it was said:
“It is, however, now recognized that where rulings on such motions are a clear abuse of discretion, manifestly subversive of justice, they may be reviewed and corrected on writ of error.”
In that case it was also said:
“It is difficult, and often impossible, for appellate courts to see matters as they actually existed and appeared on the trial to the presiding judge, and that should not be overlooked in passing upon a question of the proper exercise of discretion.”
In view of the showing made, we would not be justified in holding that, in granting the motion for a change of venue, the trial court abused its discretion.
The judgment of conviction is affirmed, and the cause remanded to the circuit court for sentence.
North, Fellows, Wiest, Clark, 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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] |
Wiest, J.
Under written contract plaintiff sold and delivered to defendant gasoline filling station pumps. This suit was brought to recover the agreed price and plaintiff had judgment. Defendant reviews by writ of error. Under plea of the general issue defendant gave notice of the following special defense:
“That the plaintiff, by and through its agent, in order to induce defendant to execute the contract, wrongfully, falsely and fraudulently represented to the defendant that if the bowl was full of gasoline and a customer wished to purchase three gallons, that the attendant could serve the customer by setting the dial at number three on the pump, indicating three gallons, and still have seven gallons remaining in the bowl, and that the'attendant could go about his other business filling the radiator or furnishing oil for the same or other customers and that the pump would measure the exact amount sold.”
Counsel for plaintiff claims that the court should have directed a verdict against defendant on the ground that the alleged representations, if made, were but verbal warranties and cannot be urged as fraud. If this position is well taken, we need not consider the errors alleged by defendant. The point, however, is not tenable. The written contract between the parties governs unless it was procured by false and fraudulent statements made by plaintiff’s agent. It will be noticed that we mention both false and fraudulent. A false statement is not enough in this kind of action. It must not only have been false, but known by the agent to have been false, and, therefore, intended to deceive. This constitutes so-called scienter essential to the granting of relief under the issues here involved. If the defendant was induced to enter into the contract by the alleged false representations, and plaintiff’s agent made such representations knowing the same to be false, and for the purpose of obtaining the contract by such deceit, then the.contract was conceived in sin, born of iniquity, is unclean, and an outcast in the eye of the law.
Defendant had the burden of showing that the representations were made, were false in fact, known by the utterer to be false, made for the purpose of deceiving defendant into making the contract, and induced defendant to make the contract it would not, except for the false representations, have made. What we have said draws the line between a warranty not in a contract and fraud voiding a contract. There was no warranty of this character in the contract, and the writing excluded any previous verbal warranty, and, unless the representations claimed were fraudulent within the rule we have stated they were, even though the pumps did not meet the assurance, no more than verbal warranties and lost to defendant by omission from the writing and not to be invoked under the name of fraud. We think the evidence presented an issue for the jury. Hall v. Duplex-Power Car Co., 168 Mich. 634, 641.
The court was in error in excluding testimony offered to show that plaintiff’s agent made the same representations to another purchaser of pumps. Such testimony was not admissible as substantive proof of what the agent had said to defendant, but was admissible for its bearing upon the question of fraudulent purpose, claimed to have been entertained by plaintiff’s agent. Cook v. Perry, 43 Mich. 623; J. B. Millet Co. v. Andrews, 175 Mich. 350; Morain v. Tesch, 214 Mich. 699.
We have given consideration to the other errors al leged, and find no occasion to enter upon a discussion thereof.
For the error mentioned, the judgment is reversed and a new trial granted, with costs to defendant.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Clark, J.
The bill praying construction of a paragraph of the will of Mary E. Harvey, filed against defendant as trustee, was dismissed and plaintiff has appealed.
After making a number of bequests, chiefly of money and jewels, testatrix devised and bequeathed the residue of her estate to Security Trust Company of Detroit in trust for certain purposes, among them the paragraph in question, which we quote:
“My trustee shall then divide the residue of said trust property into three (3) equal shares or portions. One (1) of said shares shall be forthwith paid and delivered by my trustee to my daughter, Bessie M. Harvey Swartwout. One (1) of said shares shall be forthwith paid and delivered by my trustee to my daughter, Marguerite L. Harvey. The remaining one-third (1/3) share of said trust property I direct my trustee, for personal reasons, to 'hold for the use and benefit of my son, Fred P. Harvey, under the terms and conditions herein set forth. My trustee shall pay to my said son, in reasonable instalments, the entire net income from his said share of said trust property for and during the period of his natural life; provided, however, that if my said son shall be divorced from his present wife, Georgia Harvey, or in the event that she should predecease him, I direct my trustee, upon being furnished with reasonable proof of the existence of either of said conditions, to forthwith pay and deliver to my said son the entire residue of his share of said trust estate.” <
The reference to divorce is challenged as void because against public policy.
The will was admitted to probate and the estate administered thereunder. Finally, on July 24, 1924, the following order was made and entered in the cause in the probate court:
“This day having been appointed for the examination and allowance of the final account of the Security Trust Company, executor of the last will and testament of said deceased, and for hearing its petition praying that the residue of said estate be assigned to the Security Trust Company as trustee of said estate; due notice of the hearing thereof having .been given as directed by this court; upon examination:
“It is ordered that said account be and the same is hereby allowed as therein stated. And it further appearing that the debts and legacies of said deceased, the funeral charges and expenses of administration have been paid in full and said estate fully administered, and that the inheritance tax due the State of Michigan from said estate has been full paid:
“It is further ordered that the residue of said estate be and the same is hereby assigned to the said Security Trust Company, trustee of said estate, in accordance with, the provisions of said will.” * * *
No appeal from the order was taken. This bill was filed nearly a year later. The shares of the daughters have been turned over to them. The trustee retains under the will and the appointment the share of plaintiff and is paying to him the income.
Plaintiff contends that there is no trust, that the provision respecting trust of his share is void and that the bequest is his in law free from condition. This is not a case of uncertainty or ambiguity of language in which advice of the court is sought. The bill challenges directly the very existence of a trust and indirectly the validity of the order of the probate court. The probate court, by its order assigning residue to the trustee, recognized the existence of a valid trust and that the estate was to be disposed of according to the will “so far as such will may operate upon it.” 3 Comp. Laws 1915, § 13787. The order of the probate court is in effect that the provision of the will is valid. The question has been adjudicated by the court of competent jurisdiction. Such adjudication may not be ignored. Nor is it open to collateral attack.
The statutes and cases are reviewed in Chapin v. Chapin, 229 Mich. 515, where by bill a trust was attacked as offending a statute, and it was held that the matter had been adjudicated by the probate court. The case is decisive of the question here presented. See, also, Thompson v. Thompson, 229 Mich. 526; Raseman v. Raseman, 234 Mich. 237; Riebow v. Ensch, 220 Mich. 450.
Decree affirmed, with costs to appellee.
North, Fellows, Wiest, 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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Clark, J.
Defendant, a corporation, contracted to put a new roof on plaintiff’s barn, and while it, by its employees, was doing the work, the barn and some adjacent buildings and some chattels were destroyed by fire. Averring that the fire had been caused by the negligence of defendant, in that its employees
“lit matches and smoked cigarettes and pipes and carelessly, negligently, and wrongfully, cast lighted matches, the burning fag ends of cigarettes, and the burning butts of cigars in and upon said roof of said bam, and in, upon-, and about said highly combustible and inflammable materials, hay, and straw, stored in, and lying about said barn,”
plaintiff brought this suit and had verdict and judgment for $5,539. Defendant brings error.
It is contended that there was no issue of fact with respect to negligence averred against defendant, and that as a matter of law it was not guilty of negligence. Appellant at the trial treated the- question as one of fact for the jury, made no motion for directed verdict, and preferred no requests to charge. The contention was made first on the motion for a new trial and it is discussed in the brief here. The question cannot be raised for the first time on a motion for a new trial. Not having presented -the matter to the trial court by motion to direct or by request to charge, we may not now consider it. See Tishhouse v. Schoenberg, 234 Mich. 271, and cases cited.
We find no error in the charge of the court. Appellant insists that the instructions ought to have covered specifically matter of evidence adduced by defendant relative to the negligence charged. In the absence of a request to charge in- that regard, we must decline to find error. Hartwig v. Kell, 199 Mich. 603.
The rule of damages in cases such as this is set forth. in Close v. Railroad Co., 169 Mich. 392. In admitting evidence relative to damages and in instructing the jury in regard thereto we find no serious departure from the rule. See Adams v. Railway Co., 240 Mich. 300.
We are in accord with the holding of the trial judge that the verdict is not excessive. There is nothing to indicate that it is based on anything but evidence, and it is conservatively within the range thereof. There is testimony of damage greatly in excess of the verdict. We find no reversible error.
Judgment affirmed.
North, Fellows, Wiest, McDonald, and Sharpe, JJ., eonciirred.
Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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Clark, J.
The verdict was-against the will. Proponents had judgment notwithstanding the verdict, and contestants bring error. The question is undue influence exercised by testator’s wife as against his children of a former marriage.
Pizar Kirschbaum, the testator, in 1904, was a tailor in St. Louis. In that year his wife died, leaving five children, the eldest being a daughter, Pearl, about twelve years old. The father placed three of the children in a home for orphans in Cleveland, and, with Pearl and the remaining child, came to Detroit where he opened a tailor shop. Pearl did the work at the home and aided her father in his business. In 1906 the father married Etta Kirschbaum, now his widow. The children were brought from Cleveland. The wife took charge of the home and also worked in the shop. Three children were born of the second marriage. During the period between her father’s marriage in 1906 and her marriage in 1910, Pearl was away from home part of the time. She and her stepmother quarreled from the beginning. Perhaps this is not surprising. She was old enough to remember her own mother and for two years had'been in charge of the home. It is evident that she resented the coming of the second Mrs. Kirschbaum. One may sympathize with Pearl and not excuse what she did. She was aggressive. Once when the stepmother used insulting language toward her she struck her and fought with her. The father sided with Pearl on that occasion. On another occasion Pearl, in a rage, overturned a table in the home, and there was such manifest violence that a policeman was called. The father sided with the stepmother at that time.
Pearl did not invite her father to attend her wedding. But he attended in spite of that, and there reconciliation was attempted, but it was not effectual. Pearl’s husband testified:
“The only thing he ever told me as to why there had been any recent friction of late was that the fact that they had any friction came from Pearl’s mother, being that Pearl was the oldest in the family she remembered her mother more than any of the other children and my wife, Pearl rather, always claimed that it was through his negligence that her mother died, and, she being the oldest, was the only one that could remember those things and, at times she would throw it up-to Mr. Kirschbaum and for that reason he really, from what I understood, that was the reason he cut her off the will rather than the point that was brought out on account of the wedding.”
Contestants’ case is made up chiefly of testimony to the effect that the stepmother was not kind to the children of the first marriage, especially Pearl, and was partial in the matter of food, clothing, and service to her own children.
The will was made in April, 1922. At that time testator was having a controversy with his son Max, of the first marriage, who had aided him greatly in the business. This was later to develop into litigation. Testator for a time thought of discriminating against Max in the will, but finally he decided otherwise. At the time of making the will, Pearl, the oldest child of the first marriage, was about 80 years of age' and had been away from home nearly 12 years. The youngest child of such marriage was then about 21 years old, while the oldest child of the second marriage was about 14 years of age. The will gives to Mrs. Kirschbaum certain personal effects, to Pearl $500, and the residue in trust to the following persons as trustees, Mrs. Kirschbaum, the widow, William Kirschbaum, son of the first marriage, Fred A. Behr, testator’s attorney, to pay income to Mrs. Kirschbaum during her life, and with direction that upon the death of Mrs. Kirschbaum the trust estate be divided among all surviving children except Pearl, with provision that the share of any deceased child leaving' issue to go to such issue, and with provision that the division and distribution of the estate be not before the coming of full age of the youngest child then surviving, and with further direction respecting income. The will also provides that the son Leo, of the second marriage, upon his coming of age, should also become a trustee under the will. On testator’s first visit to his attorney regarding the will, he was accompanied by his wife. Pie had a draft of a will which had been prepared by other attorneys, and on which draft he had caused to be made interlineations and erasures. He discussed the matter fully with the attorney. He said he did not want to leave Pearl anything, that she had not been a good daughter to him, but finally he concluded to leave her $500. The trust for the wife and the other children was discussed. A draft of will was prepared. Testator took it, kept it about a month, and returned alone to the attorney, the draft showing interlineation and change made by testator’s book keeper. Another draft was prepared. Testator kept that about three months, returned alone to his attorney, and executed the will in question. The trustees were also named executors. Two of them are proponents. Pearl and three other children of the first marriage are contestants.
Pizar Kirschbaum was admittedly of sound mind. He was honest and successful in business. He desired peace and love in his home. He showed breadth of character in many ways, notably in friendships with persons not of his race. Except for the claimed unpleasantness with children of the first marriage, Mrs. Kirschbaum was a faithful wife and a good mother.
The theory of contestants’ case that Mrs. Kirschbaum’s claimed partiality toward her own children and her claimed hostility toward the older children, coupled with her influence over testator, produced the. will, is met by the fact that four of the first family and the three of the second are treated alike, and William of the former group is named as executor and a trustee. Pearl alone is not favored, and, if there be infirmity in this will, it must be in this regard. But testator himself declared the reason for this, as stated, and the record does not support the averment of any other reason. The wife had opportunity to influence her husband and it may be that she disliked Pearl, but this does not make an issue of fact that the will is not that of the testator. It is not disputed that, when at the attorney’s office with her husband, and discussing a proposed provision for Pearl, Mrs. Kirschbaum said “* * * well, Pearl is his flesh and blood, and what he wants to do with Pearl is all right.” There was no issue of fact for the jury.
With respect to testimony of declarations of testator adduced to show state of mind, we quote from In re Allen’s Estate, 230 Mich. 584, 591:
“The exercise of undue influence must be established by testimony wholly independent of statements or declarations of the testator. When undue influence is shown to have been exercised, its effect may be disclosed by the state of mind of the testator and such state of mind may be shown- by his statements and declarations.”
No question of natural justice is here involved. In re Allen’s Estate, supra; and that case is decisive of this. And see Kneisel v. Kneisel, 143 Mich. 384.
Judgment affirmed.
North, Fellows, Wiest, 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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Fellows, J.
The Industrial Construction Company carried its account at defendant bank in Flint. Walter A. Windiate carried his account at the Union Trust & Savings Bank of same place. On February 8, 1926, a check on the Union Trust & Savings Bank purporting to be signed by Windiate for $1,168.75, bearing date the 5th of February, payable to the Industrial Construction Company, was deposited in' defendant bank with two other checks to the credit of the construction company. It is admitted it was a forgery; the total amount of the three checks was $2,899.75. On the same date a check for $1,200, purporting to be signed by the construction company and payable to the Flint Malleable Casting Company and purporting to be indorsed by the latter company, drawn on defendant bank, was cashed at the First National Bank of Flint. It likewise was a forgery. It was paid through the clearing house February 8th. The Windiate check went through the clearing 'house February 9th. In neither instance did the bank upon whom it was drawn discover the forging of its customer’s name until the 10th. Upon learning of the forgery the Union Trust & Savings Bank promptly demanded of defendant payment of the money paid by it on the Windiate check. The demand was refused. Plaintiff surety company, insurer of the Union Trust & Savings Bank against forgeries, paid the amount, and took an assignment of the claim against defendant and brought this action.
There is no dispute about the facts; they were stipulated in the trial court. It is doubtless true, as pointed out by defendant’s counsel, that both banks here involved were somewhat negligent in not discovering the forgeries of their customer’s signatures. Defendant passed the check held by the First National Bank as genuine and paid it, and the Union Trust & Savings Bank passed the check held by defendant as genuine and paid it. And it is quite true, as pointed out by counsel, that defendant has paid to- the First National Bank $1,200 on a forged check, and has been paid $1,165.75 on another forged cheek, the one here involved, and has therefore suffered a loss. But, except as the question of negligence bears on plaintiff’s right to recover, we fail to perceive the importance here of the transaction between the defendant and the First National Bank. There was, in a colloquy on the trial, reference made to other forgeries, but the detail of them does not appear in the record. So far as the record discloses to a certainty, there was deposited in the defendant bank on February 8th to the credit of Industrial Construction Company $2,899.75, of which $1,168.75, was the forged check here involved drawn on the Union Trust & Savings Bank, which sum that bank paid to defendant bank the following day, and that on the day of the deposit defendant bank paid to the First National Bank $1,200 on another forged check, and, we may assume, charged that amount to the account of the Industrial Construction Company.
The question before us is whether we have on this record a case justifying the recovery by bank A from bank B of the money paid by A to B on the check of its own customer, which check is admittedly a forgery. Textwriters and courts considering the question here involved hark back to Price v. Neal, 3 Burr. 1355, decided by Lord Mansfield in 1762. The case involved the duty of the drawee of a draft to know the drawer’s signature and the right of the drawee to recover the amount paid by him on a forged instrument. Lord Mansfield said:
“It is an action upon the case, for money had and received to the plaintiff’s use. In which action, the plaintiff can not recover the money, unless it be against conscience in the defendant, to retain it; and great liberality is always allowed, in this sort of action.
.“But it can never be thought unconscientious in the defendant, to retain this money, when he has once received it upon a bill of exchange indorsed to him for a fair and valuable consideration, which he had bona fide paid, without the least privity or suspicion of any forgery.
“Here was no fraud: no wrong. It was incumbent upon the plaintiff, to be satisfied ‘that the bill drawn upon 'him was the drawer’s hand,’ before he accepted or paid it; but it was not incumbent upon the defendant, to inquire into it.”
An examination of the case will disclose that it possessed three elements: (1) The duty of the drawee to know the signature of the drawer — as applied to modern banking, the duty of the bank to know the signature of its customer; (2) the bom fides of the holder; and (8) the laches of the payee before making any claim. We note that these three elements are present in the case as an examination of later cases shows a disposition of the courts to pick out one of these elements, such as may suit their fancy, as the controlling grounds of decision. The rule announced in this case received early approval in this country, and in 1825 Mr. Justice Story, writing for the court in United States Bank v. Bank of Georgia, 10 Wheat. (U. S.) 333, 354, said:
“After some research, we have not been able to find a single case, in which the general doctrine, thus asserted, has been shaken, or even doubted; and the diligence of the counsel for the defendants on the .present occasion, has not been more successful than our own. Considering, then, as we do, that the doctrine is well established, that the acceptor is bound to know the handwriting of the drawer, and cannot defend himself from payment by a subsequent discovery of the forgery, we are of opinion, that the present case falls directly within the same principle.”
An examination of the American cases is satisfying that the great majority of the (American courts have in the final analysis followed the doctrine of Price v. Neal, at least where all the elements of that case are present. Among the cases, see Bank of St. Albans v. Farmers & Mechanics Bank, 10 Vt. 141 (33 Am. Dec. 188); First National Bank v. Bank of Cottage Grove, 59 Or. 388 (117 Pac. 293); State Bank v. Trust Co., 168 N. C. 605 (85 S. E. 5, L. R. A. 1915D, 1138); Deposit Bank of Georgetown v. Fayette National Bank, 90 Ky. 10 (13 S. W. 339, 7 L. R. A. 849); Bernheimer v. Marshall & Co., 2 Minn. 78 (72 Am. Dec. 79); United States v. Bank of New York, 219 Fed. 648 (L. R. A. 1915D, 797); Trust Co. v. Hamilton Bank, 127 N. Y. App. Div. 515 (112 N. Y. Supp. 84); Levy v. Bank of United States, 4 Dall. (U. S.) 234; Missouri Lincoln Trust Co. v. Third Nat. Bank, 154 Mo. App. 89 (133 S. W. 357); Commercial & Farmers National Bank v. First National Bank, 30 Md. 11 (96 Am. Dec. 554).
However, some of the textwriters and a few of the courts apparently grew restive under its application in full force. It was argued that as a general proposition money paid under a mutual mistake could be recovered back; that money paid on a forged draft or check was paid under the mutual mistake that it was a valid draft or check, and that it should be recoverable in an action for money had and received, and it was thought the rule should no longer be recognized as controlling. See 2 Parsons on Notes and Bills, 80, 81; 2 Morse on Banks and Banking (5th Ed.), § 464; 2 Daniels on Negotiable Instruments (6th Ed.), § 1655a; 5 Am. & Eng. Enc. Law (2d Ed.), p. 1072; First National Bank of Lisbon v. Bank of Wyndmere, 15 N. D. 299 (108 N. W. 546, 10 L. R. A. [N. S.] 49, 125 Am. St. Rep. 588); People’s Bank v. Franklin Bank, 88 Tenn. 299 (12 S. W. 716, 6 L. R. A. 724, 17 Am. St. Rep. 884), (practically overruled in Farmers’ & Merchants’ Bank v. Bank of Rutherford, 115 Tenn. 64 [88 S. W. 939, 112 Am. St. Rep. 817]; First National Bank of Orleans v. State Bank of Alma, 22 Neb. 769 [36 N. W. 289, 3 Am. St. Rep. 294]; Ellis & Morton v. Ohio Life Ins. & Trust Co., 4 Ohio St. 628 [64 Am. Dec. 610], (materially modified in First National Bank of Belmont v. First National Bank of Barnesville, 58 Ohio St. 207 [50 N. E. 723, 41 L. R. A. 584, 65 Am. St. Rep. 748]; McKleroy & Bradford v. Southern Bank of Kentucky, 14 La. Ann. 458 [74 Am. Dec. 438]). The Massachusetts court did not go quite so far as some of the courts (Danvers Bank v. Salem Bank, 151 Mass. 280 [24 N. E. 44, 21 Am. St. Rep. 450]), and it recognizes the general application of the rule that the bank was bound to know the signature of its customer. Dedham National Bank v. Everett National Bank, 177 Mass. 392 (59 N. E. 62, 83 Am. St. Rep. 286).
Other courts, while recognizing the rule that the bank should know the signature of its customer, reach the conclusion that it is not a hard and fast rule, precluding a bank under any and all circumstances from maintaining an action to recover money paid on the forged check of its customer, and the conclusion has been reached that recovery could be had on the particular record before the court, for instance, where there was laches in asserting the claim, where the payee had not changed his position, where the payee had been negligent in failing to require proper identification before cashing the check, where his negligence contributed to the fraud, where reliance was had on the method of the clearing house, where the drawee bank had been lulled into security by acts of the payee bank, and other grounds which have been held sufficient to stay the operation of the rule to its fullest extent. See Canadian Bank of Commerce v. Bingham, 30 Wash. 484 (71 Pac. 43, 60 L. R. A. 955); Gloucester Bank v. Salem Bank, 17 Mass. 33; American Express Co. v. State National Bank, 27 Okla. 824 (113 Pac. 711); Woods v. Colony Bank, 114 Ga. 683 (40 S. E. 720, 56 L. R. A. 929); Continental National Bank v. Metropolitan Nat. Bank, 107 Ill. App. 455; Bank of Williamson v. McDowell County Bank, 66 W. Va. 545 (66 S. E. 761, 36 L. R. A. [N. S.] 605).
While textwriters and courts have not all agreed upon the general proposition as to the right to recover the money paid by a bank on a forged check of its customer, there is substantial agreement that such recovery may be had where the payee is not a holder in due course, not a holder for value and in good faith. 5 R. C. L. p. 552, thus states the rule:
“A bank is bound to know the signatures of those who deposit with it and draw checks against such deposits; and if it accepts or pays, in the usual course of business, a check whereon the signature of the drawer is a forgery, it will be estopped afterward to deny the genuineness of such signature. This is the general rule under the negotiable instruments law as well as under the law merchant. So if a bank, in the ordinary course of its business, pays a check purporting to be signed by one of its depositors to one who, finding it in circulation or receiving it from the payee by indorsement, took it in good faith for value, the money cannot be recovered back on the discovery that the check is a forgery. It is equally well settled that the bank may recover such payment when made to one who is not a bona fide holder of the forged check.”
In 7 C. J. p. 688, it is said:
“A bank which has paid a forged check cannot recover the money from the person who received it, where the latter was a bona fide holder having no connection with, knowledge of, or reason to suspect, the forgery, unless it can be made to appear that such person will be in no way prejudiced by being compelled to make repayment to the bank. But repayment may be compelled where the person who received the money was not a holder for value, or his negligence or fault has contributed to the success of the fraud, or has misled the bank.”
The editorial writer in a note, Ann. Cas. 1912D, 495, with citation of abundant authority, says:
“It is a settled rule of law that where a bank by mistake pays to a bona fide holder a forged check pur porting to be drawn by one of its depositors, it cannot recover from the innocent holder the amount so paid, the latter not being bound to determine at his peril that the drawer’s signature is not a forgery (citing cases). It is equally well settled that the bank may recover such payment when made to one who is not a bona, fide holder of the forged check (citing cases).”
In addition to the authorities already cited see Title Guarantee & Trust Co. v. Haven, 196 N. Y. 487 (89 N. E. 1082, 1085, 25 L. R. A. [N. S.] 1308, 17 Ann. Cas. 1131); First State Bank v. First National Bank, 314 Ill. 269 (145 N. E. 382); Germania Bank of Minneapolis v. Boutell, 60 Minn. 189 (62 N. W. 327, 27 L. R. A. 635, 51 Am. St. Rep. 519).
Was defendant bank the holder of this check in due course? Had it parted with value? Was it under our decisions a bona fide purchaser? The bank did not buy and pay the cash for this check. As has been stated, on February 8th the account of the construction company was credited by defendant bank with the amount of the three checks deposited, $2,899.75. On the same day defendant cashed a forged check on this account for $1,200, leaving a balance of $1,699.75, credit for that day’s transaction. The check in question was for $1,168.75, much less than the credit. It was paid to defendant bank the next day by plaintiff’s assignor. It will be thus seen that what defendant bank did was to credit its customer’s account instead of paying cash. There is nothing in the record showing or tending to show that the account of the construction company was ever reduced below the amount of the check. It is well recognized in this jurisdiction that this does not render the bank a holder in due course unless the credit is used or at least drawn down below the face of the paper and if not entirely used, then only to the amount paid. In Title Guarantee & Trust Co. v. McGrath, 239 Mich. 404, Chief Justice Sharpe thus stated the rule:
“If plaintiff discounted the note and credited the Lynch Construction Company’s account with the proceeds, it was necessary, in view of the_ defense, for plaintiff to show that the Lynch Construction Company had exhausted that credit at the maturity of the note.”
See, also, Drovers’ National Bank v. Blue, 110 Mich. 31 (64 Am. St. Rep. 327); Central Savings Bank v. Stotter, 207 Mich. 329; Republic National Bank v. Bobo, 227 Mich. 6.
We conclude that defendant was not upon this record the holder in due course of the check in question and that under such circumstances the great weight of authority sustains the plaintiff’s right to recover in this action.
The judgment will be affirmed.
Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
This action was brought under the survival act by plaintiff as administrator of the estate of his deceased son, a boy six years old, to recover the damages incident to his injury and death. On August 14, 1926, the deceased was sitting in his father’s car, not then in motion, on the side of the road. The defendant was driving his car from the opposite direction, and, when near the car in which the deceased was sitting, it swerved and struck the other car,-causing injuries to the deceased from which he died about 24 hours thereafter. He had verdict and judgment for $12,708.83. Defendant seeks review by writ of error.
1. Counsel for the plaintiff was. permitted to ask each juryman on his voir dire examination the following question:
“Are you in any way interested as a stockholder or otherwise in the New Amsterdam Casualty Company?”
In overruling defendant’s objection the court said:
“You are aware that the Supreme Court has held in two or three cases that this is a proper question to ask if it is not pursued any further.”
It is a fact of which we cannot but take judicial notice that, in cases where jurors obtain information that the damages as fixed by them will be paid by insurance companies, the amount thereof is usually greatly enhanced. We have here a verdict for more than $12,000, allowed in most part for loss of future earnings. There is little in the record to indicate that any considerable amount of this was allowed for pain and suffering. Had he lived, it would have been 15 years before he would have begun to earn anything for himself. The court very properly instructed the jury that their allowances for losses of future earnings “are to be reduced by you to their present worth.” Without entering into a computation, it is apparent that, if this instruction was followed, the allowance before reduction would have been a sum in excess of $20,000. Contrasting' the verdict with that allowed by juries in many cases where the defendants are individuals, we cannot but infer that the amount of this verdict was largely increased by the information conveyed to the jury by the questions asked.
We have examined the cases relied on by the court and by counsel for plaintiff to sustain the statement that this court has held that a similar question to that asked is a proper one. We cannot so find.
The statute (3 Comp. Laws 1915, § 14565) provides:
“No judgment or verdict shall be set aside or reversed, * * * unless, * * * it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”
In our efforts to comply therewith, we have frequently held that unless it appears that the verdict was affected by consideration of the fact that defendant was protected by insurance, or that the amount allowed was enhanced thereby, reversal will not be had. The test which we think should be applied is, Was plaintiff’s counsel acting in good faith and without intention to secure advantage to his client in injecting into the case the fact that defendant was carrying insurance?
In Link v. Fahey, 200 Mich. 308, it was said: “The record is barren of anything tending to show that the inquiry was “ prosecuted in bad faith.” In Ward v. De Young, 210 Mich. 67, we were “unable to say that plaintiff’s counsel was intentionally seeking to get the fact that such insurance was carried before the jury.” In Church v. Stoldt, 215 Mich. 469, 479, it was said: “We are not satisfied that the questions complained of were not asked in good faith to enable plaintiff’s counsel to intelligently exercise his right of peremptory challenge.” In Morris v. Montgomery, 229 Mich. 509, 512, it was said that “the rule of exclusion” of such questions “ought not to be employed to set aside judgments except in cases of flagrant violation.” In Greenwold v. Faber, 234 Mich. 217, the court said: “It cannot be said that plaintiff’s counsel deliberately brought this subject into the case for the purpose of prejudicing the jury.” In Sutzer v. Allen, 236 Mich. 1, the fact that defendant was insured appeared in a statement made by him. The verdict was but $1,500. Reversal was denied because it did not appear that improper use was made of the fact of the insurance “thereby increasing the size of the verdict.” The holding of Chief Justice Bird in that case was quoted with approval in Oliver v. Ashworth, 239 Mich. 53, 56. No claim was made that the verdict was excessive. In all of these cases the ruling hinged upon the purpose which actuated counsel; upon his good faith. In Grubaugh v. Simon J. Murphy Co., 209 Mich. 551, 564, Mr. Justice Brooke, speaking for a majority of the Justices sitting, said:
“I am of the opinion that the colloquy set out in the opinion of the Chief Justice, between counsel for plaintiff, counsel for defendant, and the court, was in bad faith, deliberately designed to advise the jury of the fact that the real defendant was an insurance company, and not the defendant named in the pleadings. In this jurisdiction, cases are not infrequent where counsel, aware of the fact that juries are prone to be more liberal with the funds of insurance companies than with those of private individuals, have successfully sought to place before the jury the fact that the nominal defendant was insured, and therefore would not suffer by the rendition of a substantial or excessive verdict. This practice has met with the consistent disapproval of this court, as will be fully demonstrated by an examination of the authorities cited by my Brother Moore on this branch of the case.”
In most of the cases above referred to, the inquiry was made as to the juror holding stock in a mutual company. In the case before us, the inquiry referred to a foreign corporation. We feel forced to the conclusion that the purpose of counsel in asking each one of the jurors called if he was interested as a stockholder in such company was not for the purpose of obtaining information, but to impress upon their minds that the defendant was protected by insurance and would not be personally liable for any judgment entered in the case. If information alone was sought, it might easily have been obtained by asking the jury collectively if any of them were stockholders in any corporation, and, if they were, to have asked the kind of a corporation they were interested in. This method of avoiding prejudice was suggested in Simpson v. Foundation Co., 201 N. Y. 479, 490 (95 N. E. 10, Ann. Cas. 1912B, 321). In Rice v. Hotel Co., 187 Ill. App. 317, plaintiff’s counsel asked certain jurors, “Do you know any one connected with the ¿Etna Insurance Company?” This was held to be reversible error. It was said, “The harm was done when the improper questions were asked.” The following cases cited and quoted from in defendant’s brief may be read with profit: Simpson v. Foundation Co., supra; Hoyt v. J. E. Davis Manfg. Co., 98 N. Y. Supp. 1031; Mithen v. Jeffery, 259 Ill. 372 (102 N. E. 778); Starr v. Southern Cotton Oil Co., 165 N. C. 587 (81 S. E. 776); Pierce v. United Gas and Electric Co., 161 Cal. 176 (118 Pac. 700); Putnam v. Pacific Monthly Co., 68 Or. 36 (130 Pac. 986, 136 Pac. 835, 45 L. R. A. [N. S.] 338, Ann. Cas. 1915C, 256); Stratton v. Nichols Lumber Co., 39 Wash. 323 (81 Pac. 831, 109 Am. St. Rep. 881); Rice v. Hotel Co., supra; Percell v. Degenhardt, 202 Ill. App. 611.
In view of the amount of the verdict, we feel constrained to hold that reversible error was committed.
2. The following special questions were submitted to the jury at the request of defendant’s counsel:
“(1) Was the loose gravel which William C. Cole’s car struck the sole proximate cause of the accident?
“(2) Did William C. Cole, the defendant, neglect to do anything which an ordinarily prudent man would have done under like circumstances?”
The jury were instructed that they must answer them “Yes” or “No.” On their return into court the foreman announced:
“We find the defendant guilty of negligence and assess the damages at $12,708.33. The jury is not able to answer the questions on this sheet. These special questions that were asked.”
The following then occurred:
“The Court: You say you have not answered the questions? They must be answered as I instructed you. They must be answered. Your verdict is not complete unless these questions are answered.
“The Jury: We don’t understand the second question.
“The Court: The second question is: Did William C. Cole, the defendant, neglect to do anything which an ordinarily prudent man would have done Under like circumstances? If you find him guilty of ordinary negligence he therefore did not do what an ordinarily prudent person would have done under like circumstances. If you mean by your verdict that he is guilty that question is answered ‘Yes’ — that he did neglect to do what an ordinarily prudent man would have done. If you find that lie has done what an ordinarily prudent man would have done under like circumstances,, then your answer would be ‘No.’
“In law that means simply this — the definition of ordinary negligence is the failure to do) what an ordinarily prudent man would have or should have done under all the facts and circumstances of the case. So that if you say he is guilty you would answer the question ‘Yes’ — that he did neglect to do what an ordinarily prudent man would have done.
“The Jury: Would that affect our other verdict in any way?
“The Court: You will have to answer that, gentlemen, as your own judgments determine under my instuctions. If you find him guilty, why it follows that he did not do what an ordinarily prudent man would have done under like circumstances, and yout answer would be ‘Yes,’ he did neglect to do what an ordinarily prudent man would have done. If you find him not guilty then it follows that he did do what an ordinarily prudent man would have done under like circumstances.”
They later returned and announced the verdict as above stated and answered the first question “No,” and the second “Yes.”
Section 12611, 3 Comp. Laws 1915, provides for the submission of such questions. They control the general verdict.
“Their purpose is to enable the court to know what view the jury take of the material issues, and to correct their possibly wrong inferences from the facts which they find to exist.” Cole v. Boyd, 47 Mich. 98.
No objection was made to the form of the questions when submitted.
“The object of the statute in allowing such specific questions to be submitted to the jury, and requiring them to make answer thereto, was to ascertain whether the jury had, in making up their general verdict, properly applied the law, as given by the court, to the facts in the case. This can never be done if the jury are to be directed by the court what answer shall be made to each question asked, in the event the general verdict is a certain way.” Beecher v. Galvin, 71 Mich. 391, 396.
In the instructions given relative to the special questions when the jury came into court and announced a verdict for plaintiff, the trial judge coupled up the answers which they should give with the conclusion they had reached as to plaintiff’s right to recover. They were told that if they meant by their verdict that defendant was guilty of negligence, it would follow that he had neglected to do what an ordinarily prudent man would have done under like circumstances. In effect, he said to them that, unless they changed their general verdict, the second question should be answered in the affirmative. When a proper question is submitted, it should be answered as the jury find the fact to be. They should not be in structed what effect their answer will have on the general verdict they have announced, or on which they may later agree. We are impressed that they might have understood from what the court said to them that if they desired their general verdict to stand they must answer the second question in the affirmative. Were this the only error complained of, we should, however, be loath to reverse because of it.
3. In our opinion, there was sufficient evidence of defendant’s negligence to justify the submission of that question to the jury.
The judgment is reversed, with costs to appellant, and a new trial ordered.
North, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
The late Chief Justice Flannigan did not sit.
The late Justice Bird took no part in this decision. | [
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] |
Bird, J.
Plaintiff had an accident while driving his automobile on the highway. Riding with him as his guests were Charles Nungesser, Marlin Nungesser, Joe Myers, and Andrew Nelson. Charles Nungesser and Andrew Nelson were injured. Charles Nungesser soon after recovered a judgment against plaintiff on the ground of his negligence. Plaintiff held a policy of indemnity in defendant* company. Defendant was notified according to- the terms of the policy, and defended. That trial took place in the same court in which this case was tried. Soon after the conclusion of the Nungesser trial plaintiff went to Oklahoma and remained away two years. When he returned suit was begun and judgment taken against him by Andrew Nelson, for negligent operation of the car. It was to recover the indemnity on this judgment that the present suit was begun against the defendant. When plaintiff received the summons in the present case he sent it to the defendant, in accordance with the terms of the policy, with the information that it was for injuries growing out of the same accident that was involved in the Nungesser case. Defendant made no reply. It did, however, later plead the general issue in the present case, but offered no proofs. Counsel for defendant sat by and objected to plaintiff’s proofs, and at the close moved for a directed verdict because the proofs did not show that plaintiff had given the notice required by condition B of the policy:
“Condition B: Upon the occurrence of an accident, the assured shall give immediate written notice thereof with the fullest information obtainable at the time to the executive offices of the company in Detroit, Michigan, or to its duly authorized agent. If a claim is made on account of such accident, the assured shall give like notice thereof with full particulars.”
Plaintiff also moved for a directed verdict. The trial court complied with plaintiff’s request, and directed a verdict for him of $3,260.65, the amount of the Nelson judgment.
Error is assigned by defendant. Defendant’s counsel say the questions involved are: •
(1) Was notice of the accident of May 18, 1921, immediately thereafter given, and, if so, did such notice satisfy the requirements of the policy?
(2) Was the notice of the accident, as required by •the policy, waived?
Plaintiff asserts that the question involved is whether defendant can raise those defenses without giving notice thereof under the general issue.
1. If plaintiff be right in his contention, the questions raised by defendant are immaterial. Therefore, his contention should be first examined.
The judicature act provides:
“To entitle a defendant to avail himself of any matter of defense, which, according to the practice as it has heretofore existed, was required to be pleaded specially, or of which a special notice was required to be given under the general issue or other general plea, such defendant shall annex to his plea of the general issue a notice to the plaintiff, briefly stating the precise nature of such matter of defense.” 3 Comp. Laws 1915, § 12464.
The practice as it has heretofore existed has been to require notice under the general issue of such defenses. A rule of court requiring it has been in existence since 1869. This rule is still in force and provides:
“In a suit upon a policy of insurance, if the defendant shall rely, in whole or in part, upon any breach of any of the conditions, agreements, representations or warranties of the policy or application therefor, or upon the failure to perform or make good any promise, representation or warranty, or upon the failure to furnish any proof of loss, as required by the policy, there shall be added to the plea a notice, plainly indicating the nature of the defense relied upon.” Circuit Court Rule No. 23, § 4.
The view which this court has taken of the rule is found in many of its Reports. In Hare v. Protective Ass’n, 151 Mich. 225, defendant sought to show: (a) The suit was not begun within the time limited in the policy. (b) Proofs of loss were not delivered within the time limited in the policy. (c) No notice had been given that the insured had changed his occupation. This court, in holding that these defenses were not permissible, said:
“Plaintiff contends, in accordance with the decision of the circuit judge, that none of these questions can be raised under the plea of the general issue alone. We are of the opinion that the circuit judge did not err in holding that under the provisions of Circuit Court Rule 7 a special notice was required to authorize the defenses sought to be made under the plea of the general issue. Cronin v. Fire Ass’n, 112 Mich. 106; Malicki v. Guaranty Fund Life Society, 119 Mich. 151.”
The question was again discussed in O’Neill v. Assurance Co., 155 Mich. 564, and Mr. Justice Grant, speaking for the court, said:
“It is further claimed that plaintiffs cannot recover because no notice was given to the defendant of the fire, and no proofs of loss were furnished in compliance with the requirements of the policy, and that the same were not waived. These defenses are not open to the defendant because it gave no notice of them in its pleadings. Hare v. Protective Ass’n, 151 Mich. 225, and authorities there cited.”
See, also, Lessnau v. Catholic Order of Foresters, 163 Mich. 111, 121.
It is quite evident that if the section of the judicature act quoted be construed with Rule No. 23 and the holdings of the court thereon, the circuit judge was right in his conclusion. If we consider nothing but the rule of court, we think the trial court reached the right conclusion.
But counsel argue that a distinction is made between conditions precedent and conditions subsequent; that a condition subsequent requires a notice, but a condition precedent does not; that condition B is a condition precedent, and, therefore, notice was unnecessary. This is the rule in some of the States, although there is some disagreement over it elsewhere. It is clear, however, that the common-law rule does not obtain in Michigan on this question of practice. Our practice is controlled by the court rule, which provides that if defendant shall rely upon any breach of any of the conditions, etc., he shall give notice. It will be noted that no exception in favor of conditions precedent is made. The court rule covers precedent as well as subsequent conditions. The annotator of the article of insurance in Corpus Juris in stating the general rule notes the fact that the general rule is not in force in Michigan, but is controlled by a court rule. 33 C. J. pp. 100, 101.
The learned counsel for the defendant grow somewhat impatient over the fact that this is a technical point. It is a technical point, but counsel, in their zeal for their client, evidently overlook the fact that they are standing upon ground quite as narrow when they insist that notice of the accident should have been given to the defendant in writing instead of orally.
We think the trial court was right in his conclusion, and the judgment must be affirmed.
The foregoing opinion was prepared by the late Justice Bird, and is now adopted as the opinion of the court.
North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Flannigan, C. J., did not sit. | [
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Wiest, J.
An agent of plaintiff called upon defendants in the city of Adrian, and was given the following order:
“From
“Merchants Advertising Company,
315 West Maumee street,
Adrian, Michigan.
“About 12,000 feet 7-in. K. D. S4S to 1¾x6¾.
“4,000 feet 1x3 K. D. S4S to about 2¾x¾.”
This order was sent by the agent to the home office of plaintiff at Jackson, Alabama, and from there notice of acceptance was sent to defendants. The lumber was shipped from Alabama to Adrian, Michigan, and, upon arrival of the car at Adrian, defendants took out some of the lumber, and in working it up, found that it was not sufficiently kiln dried for their purposes, and notified plaintiff of their rejection of the shipment. The railroad agent also notified plaintiff of the re jection by defendants, and was directed by plaintiff to rebill the car to parties at Dayton, Ohio. Later defendants notified the railroad agent that they would accept the car, and plaintiff was so informed and consented. After taking the lumber, defendants refused to accept a draft for the shipment and laid claim to damages. This suit was brought by the seller to recover the agreed price of the shipment. Defendants, under plea of the general issue, gave notice of damages sustained .by them because the lumber was not sufficiently kiln dried, and asked to have the same allowed in recoupment. At the close of the proofs the circuit judge, on motion of counsel for plaintiff, directed a verdict in favor of plaintiff for the amount of his claim. Defendants review by writ of error and claim the court was in error in so directing the verdict.
The order for the lumber was given in Michigan, to be sent to Alabama for acceptance, and, upon acceptance there, was an Alabama contract. Dudley A. Tyng & Co. v. Converse, 180 Mich. 195. When the ear arrived at Adrian and the lumber was inspected and found unfit for use, defendants were, to say the least, put to an election to either reject or accept the shipment. They first rejected and then accepted, and, as their acceptance was unconditional, they are liable for the agreed price. At the time of acceptance defendants were aware of the condition of the lumber and could not take it unconditionally and, when sued, set up, by way of recoupment, a claimed breach of the contract and recover damages occasioned thereby. Plaintiff’s agent who took the order was aware of the fact that the lumber was to be used in making clock cases and had to be dry. From this, defendants claim, there arose an implied warranty that the lumber would be very dry, and, therefore, suitable for clock cases. The lumber was .kiln dried, but it seems that the usual kiln drying is not sufficient for defendants’ purposes. The order called for kiln dried lumber, and, in the absence of particular specification, this was met by the usual trade kiln drying. We do not think an implied warranty can be raised under the circumstances here disclosed.
What we have in mind upon the subject of implied-warranty is well expressed in 2 Mechem on Sales, § 1349, adopted by this court in Amos v. Walter N. Kelley Co., 240 Mich. 257, and approved in many States as a true exposition of the common law:
“If, therefore, a known, described, and defined article is agreed upon, and that known, described, or defined article is furnished, there is no implied warranty of fitness even though the seller is the manufacturer and the buyer disclosed to him the purpose for which the article was purchased.”
This is also the common-law rule in Alabama.
In Gachet v. Warren & Burch, 72 Ala. 288, it was said:
“But, if a manufacturer, or dealer, contracts to sell a known and described thing, although he may know the purchaser intends it for a specific use, if he delivers the thing sold, there is no implied warranty, that it will answer, or is suitable for the specific use, to which the purchaser intends applying it.”
Defendants rely upon the Michigan uniform sales act (3 Comp. Laws 1915, § 11900), and it is said in their behalf that they elected to accept or keep the lumber and set up against plaintiff a breach of warranty by way of recoupment, and it would appear, under the wording of the statute, that they had an absolute right to do this.
Counsel for defendants also direct attention to section 11880, 3 Comp. Laws 1915 (uniform sales act). The contract and remedies thereunder do< not come within the provisions of the Michigan uniform sales act, except to the extent that act speaks the common law, for it was an Alabama contract and there was not, at that time, a uniform sales act in the State of Alabama. Therefore, the liability of defendants is the common-law one resting upon acceptance, with full knowledge of the claimed breach. There was no express warranty, and an implied one cannot be found.
Upon this record there was no issue for1 the jury, and the judgment is affirmed, with costs to plaintiff.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Clark, J.
Defendant, convicted of murder on April 28, 1927, reviews on exceptions before sentence, complaining that the court erred in declining to entertain her defense of justifiable homicide, and in refusing to admit evidence offered to support and to establish it, and in directing a verdict of guilty. The court instructed the jury that “this killing is neither excusable nor justifiable homicide but * * * is felonious homicide.” The charge gave to the jury the sole duty of determining degree of guilt. It does not contain the words “not guilty.” It leaves to the jury no choice of verdict as between guilty and not guilty. In effect, the jury was instructed to return a verdict of guilty and to determine the degree of guilt. That defendant is guilty is the verdict of the judge, not of the jury, and cannot be sustained. Murder is a major charge involving intent. The plea of not guilty having been entered and being undetermined, finding a verdict was for the jury. The constitutional right of trial by jury remains (section 13, Art. 2, State Constitution), and defendant was entitled to a verdict of the jury impaneled to try and determine the cause. See People v. Heikkala, 226 Mich. 332, where the matter is considered at length.
Defendant shot and killed her husband in their home in Flint on February 13, 1927. She defended on the sole ground that the shooting was in self-defense. Early in the trial the court indicated that the defense would not be entertained, for the reason that there was “no overt act on the part of the deceased toward her at that particular time,” and that deceased was not at that moment engaged in an assault upon her. To support the defense, evidence was offered of threats made by deceased to defendant shortly before the shooting, of assaults made by him upon her, of her physical injuries, and of his brutal and violent treatment of her for some time prior to the event in question, which offer was refused in part at least.
The shooting occurred toward midnight. Near 7 o’clock of that evening deceased became violently enraged, without just cause, and choked defendant, leaving bruises on her throat. He struck her and otherwise bruised and injured her. He threatened to kill her. She was crying. He had a pistol and two shotguns with shells for them in the room where they slept. He cleaned and loaded the pistol. He held it close to her, saying “I got to kill you.” He said he would kill her before morning. He hung the loaded pistol in a holder on a nail near his bed. A shotgun and shells were also near. He went to bed near 9 o’clock. Their children were in bed in the same room. After defendant had lain in bed about two or three hours, not sleeping, as she testified, there being no light in the room, and believing deceased to be asleep, she arose, went around his bed, took the pistol from the holder and started to leave the room to go to the home of a neighbor. She testified:
“I was going to neighbor because he told me he want to kill me. * * *
“Q. Did you think he was going to kill you as he said he was?
“A. Sure. * * *
“Q. That is what made you shoot, because you were afraid he would kill you if you did not?
“A. Yes. * * *
“Q. This was right after he had told you, that is, the same night he told you he would kill you before morning?
“A. Sure he would do, because he started in the morning pretty near kill me every morning before he go to work.”
As she was leaving deceased made a noise and the bed squeaked and she thought him awakened and getting up. She testified:
“I cannot run. because I got my house locked, fire, he come on me, kill me, because he got another gun in bedroom, you see he got this gun, see? He kill me.”
She then, though not accustomed to using a pistol, shot and killed him. There is evidence by the autopsy tending to support, it seems, her belief that deceased was getting up when she shot.
She went to a nearby home of a relative and told what she had done, then started for the police station, and, meeting a policeman, related the matter to him. There is nothing in the record tending to discredit seriously her testimony. Although deceased had long been brutal and violent toward her, the record does not show that she was revengeful. • Nor does it show before the shooting any act of violence or misconduct on her part. Tears and sorrow seem to have been her portion. The record suggests no reasonable explanation of this shooting except that advanced by the defendant herself.
If defendant killed deceased two or three hours after he had abandoned his assault upon her, there would not be ground for the defense here sought to be made.
“The right of self-defense commences when necessity, real or apparent, begins, and ends when it ceases.” Wharton on Homicide (3d Ed.), 378-382;
The rule obtaining in this State is:
“That the circumstances must be viewed from the standpoint of accused alone, and that if they are sufficient to induce in him an honest and reasonable belief that he is in danger of great bodily harm or loss of life, he is justified or excused in killing,” 30 C. J. p. 63.
It is said in 1 Michie on Homicide, p. 1029:
“Evidence of the conduct of the deceased is admissible to show the reasonableness of the defendant’s apprehension of danger.”
and on p. 1027:
“Upon the issue of self-defense, any evidence, which, according to the common experience of mankind, tends to show that the defendant had reasonable cause to apprehend great bodily harm from the deceased is admissible.”
and on p. 1014:
“In a prosecution of a wife for the murder of her husband, in which she set up self-defense, evidence that the deceased had on other' occasions beat her is admissible.”
“The reputation of the deceased for ferocity, brutality and vindictiveness, so far as defendant had been informed thereof before the affray, was competent upon the question of whether such knowledge, together with knowledge of specific acts along the same lines, afforded defendant reasonable grounds for entertaining the belief that he was in imminent danger of death or great bodily harm.” People v. Walters, 223 Mich. 676.
See People v. Farrell, 137 Mich. 127.
Evidence that deceased was physically superior (1 Michie on Homicide, 1028), and had made threats to her (2 Wharton’s Criminal Evidence [10th Ed.], p. 1713), and evidence tending to show surrounding circumstances as they appeared to defendant at the time and to show mental attitude (Wharton on Homicide [3d Ed.], p. 383), was admissible.
After beating defendant deceased said he would kill her before morning. It was not yet morning. He had hung the loaded pistol within reach. He had other guns and ammunition near and in the room. Defendant had suffered his violence and brutality. She-knew him. Her fear would not be lessened by her apprehension of being discovered in her attempt to leave the home. Viewed from her standpoint of the time, or from any standpoint, it cannot be said as a matter of law that'he had abandoned his declared purpose to kill her, nor that the circumstances were not sufficient to induce in defendant an honest and reasonable belief that she was in danger of great bodily harm or loss of life. The case of People v. Mondich, 234 Mich. 590, is somewhat similar in facts, and it was held that the claim of self-defense was án issue of fact for the jury. See, also, State v. Peterson, 24 Mont. 81 (60 Pac. 809); Wallace v. State, 44 Tex. Crim. Rep. 300 (70 S. W. 756) ; Roberts v. State, 68 Ala. 156; 13 R. C. L. p. 820; People v. Harris, 95 Mich. 87; Patten v. People, 18 Mich. 314 (100 Am. Dec. 173); Pond v. People, 8 Mich. 150; People v. Tillman, 132 Mich. 23.
It follows that defendant ought to have been permitted to adduce evidence tending to show justifiable homicide, and that she was entitled to have her defense submitted to the jury under proper instructions.
Conviction set aside, and cause remanded. New trial granted.
North, Fellows, Wiest, McDonald, and Sh-arpe, JJ., concurred.
Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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] |
Wiest, J.
Plaintiff received serious and permanent injuries in a fall, claimed to have been caused b'y a defective cement sidewalk, and had verdict and judgment for $15,000. Defendant reviews by writ of error.
Plaintiff, a married woman, 55 years of age, the 10th day of June, 1924, .at about 5 o’clock in the afternoon, was walking in an easterly direction upon the cement sidewalk on the northerly side of Holden avenue in the city of Detroit, between the intersections of Forsythe and Hamilton avenues. Workmen, employed in factories in that locality, were in large numbers upon the sidewalk, going westerly, hurrying to car lines or their homes, and plaintiff, in meeting them, had “to wedge her way through the crowd.” While doing this she stepped with her left foot upon the edge of a hole in the sidewalk, her foot went into the hole and she was thrown and injured. This hole was occasioned by a break in the cement walk, extending to a point about 18 inches inward from the outer edge, was several feet long and at least 4 inches in depth, and had existed for more than a year. Plaintiff was not familiar with the walk. Defendant conceded that, by actual measurement made by one of its employees, the break in the walk was 5 feet long, 18 inches wide,, and 4 inches deep, and insists that the walk, with such a defect in it, was, in a condition reasonably fit and safe for public travel. One witness for plaintiff, who measured the hole with a pocket rule the day following the accident, testified that it was 8 inches deep, while other witnesses for plaintiff estimated the depth at from 5 to 8 inches. If the hole was of the depth and dimensions admitted by defendant it cannot be said, as a matter of law, that the walk was in a condition reasonably fit and safe for public travel, Wadkins v. City of Albion, 201 Mich. 130. The evidence presented an issue for the jury.
We are asked to hold plaintiff guilty of contributory negligence because she was not observing the condition of the sidewalk as she walked along. We cannot so hold. Plaintiff testified that she had never been over the walk before, did not know of the defective condition, and her attention was necessarily directed to making her way against the crowd she encountered. Under the evidence, the question of her contributory negligence was for the jury.
It is claimed that the verdict is excessive. Defendant moved for a new trial on this ground and requested the filing of reasons if the motion was denied. The motion was denied, but the record does not disclose the reasons, if any, filed, and does not show an exception to the denial. Whether the verdict is excessive or not requires consideration of the evidence and calls for our review of the denial of the motion. We cannot review denial of the motion for a new trial without an exception. The subject is covered in Tishhouse v. Schoenberg, 234 Mich. 271. In that case we said:
“There is an insuperable objection to reviewing the 'denial of the motion for a new trial. No exception was taken to his order overruling the motion. Under these circumstances, the question is not before us;” citing section 12635, 3 Comp. Laws 1915, and cases.
Defendant claims there was a fatal variance between the notice of the accident given the city and the proofs at the trial.
Section 4591, 1 Comp. Laws 1915, with reference to the notice to the city, provides:
“The notice will specify the location and nature of said defect, the injury sustained, and the names of the witnesses known at the time by claimant.”
Defendant’s charter, tit. 6, chap. 7, § 12, requires the same notice.
In the notice to the city plaintiff stated the location and nature of the alleged defect and alleged that her right foot slipped off the outer edge of the broken section of the walk and was precipitated downward into the depression and she fell in such a manner as to fracture the bones of her left hip. In the declaration it was alleged that her right foot slipped on the broken edge of the cement sidewalk, into the hole or depression, and caused her to fall and suffer a fracture of her left hip. At the trial it appeared that it was her left foot that stepped on the edge of the broken walk and not her right foot. Neither the statute nor the charter required a description of the manner in which the accident happened. The variance was not fatal.
At the trial two witnesses were called by plaintiff, and, their names not having been included in the notice to the city, an objection was made to* their giving testimony. An issue of fact was raised upon whether plaintiff knew of the witnesses at the time of the giving of notice to the city and this issue was submitted to the jury, with instructions that, unless the jury found these witnesses were unknown to plaintiff' at the time the notice was given, their testimony should not be considered. We find no error in this.
There was no injury to plaintiff’s right leg, but in the course of treatment of the injury to the left hip both limbs were inclosed in a cast during the first month, and defendant insists it was error to give testimony of discomfort arising from such treatment. If the treatment was essential because of the injury to the left hip there was no error in permitting plaintiff to show the suffering occasioned by the injury and treatment.
We find no reversible error, and the judgment is affirmed, with costs to plaintiff.
Fead, C. J., and Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. North, J., did not sit. | [
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