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Fead, C. J.
On October 28, 1926, Moses La Casse, an employee of defendant Great Lakes .Engineering Works, was injured while pursuing his work as ship carpenter. ' He later died from the injury. An award of compensation to plaintiff, his widow, was made by the department of labor and industry and is 'here for review on certiorari.
The Great Lakes Engineering Works is engaged, among other things, in building and repairing ships. On its own property a slip had been dredged, running back from the Detroit river a distance of 600 feet or more. The slip was used for floating dry docks and for all sorts of ship repairing.
Decedent had been a ship carpenter in defendant’s yard for some 20 years. About two weeks before his death he commenced work on the steamer Roumania lying in defendant’s slip. At the time of the accident he stood on a contrivance floating on the water alongside the ship. He was attempting to nail a plank to the side of the vessel when he was injured.
The Roumania was 35 to 38 years old, probably of Michigan registry, and had been carrying automobiles between Detroit and Toledo or Cleveland. The record does not show what future plans for her the owners had nor who the owners were nor how long the ship had been disabled. She was being “rebuilt,” had come into the slip about a month previously for “general repairs,” been moved to the dry dock and then put back into the slip again; her spar was off, the smoke stack had been taken down and not yet replaced, the after cabin had been torn down to permit work on the engine, the engine had been removed, and another one put aboard ship but not yet installed, although a foundation for it had been constructed; some planking was being done, and the ship was floating on her own keel.
The sole question is whether the workmen’s compensation law of the State is applicable to such an injury or whether jurisdiction is exclusively in the Federal courts under the maritime law of the United States, by virtue of article 3, § 2, of the Constitution of the United States.
The Detroit river, being a connecting stream of the Great Lakes, is navigable water within the jurisdiction of the admiralty courts. Foppen v. Peter J. Fase & Co., 219 Mich. 136, and cases cited. The de fendant’s slip, as far as it is used in maritime work, partakes of the nature of the main river, and maritime transactions therein are subject to maritime law. The Robert W. Parsons, 191 U. S. 17 (24 Sup. Ct. 8); Northern Pacific Steamship Co. v. Shipbuilding Co., 249 U. S. 119 (39 Sup. Ct. 221); O’Hara’s Case, 248 Mass, 31 (142 N. E. 844); Danielsen v. Morse Dry Dock & Repair Co., 235 N. Y. 439 (139 N. E. 567).
The authorities upon the application of State workmen’s compensation acts to injuries sustained on navigable waters are numerous, but they all revolve around a few outstanding Federal cases.
The basic case is Southern Pacific Co. v. Jensen, 244 U. S. 205, 217 (37 Sup. Ct. 524, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900), in which the Supreme Court of the United States held that maritime jurisdiction was exclusive in a situation where a workman, operating a truck in the unloading of a steamship moored to a pier but some feet away, was injured while on the gangway extending from the ship to the dock, because—
“The work of a stevedore, in which the deceased was engaging, is maritime in its nature; his employment was a maritime contract; the injuries which he received were likewise maritime; and the rights and liabilities of the parties in connection therewith were matters clearly within the admiralty jurisdiction.”
The constitutional admiralty jurisdiction over such transactions is so far exclusive as not only to prohibit the application of State workmen’s compensation laws to them but also to restrain congress from extending such State laws to jurisdiction therein. Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 160 (40 Sup. Ct. 438, 11 A. L. R. 1145), in which the court said:
“As the plain result of these recent opinions and the earlier cases upon which they are based, we accept the following doctrine: - The Constitution itself adopted and. established, as part of the laws of the United States, approved rules of the general maritime law and empowered congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. • Moreover, it took from the States all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and uniformity in its international and interstate relations. To preserve adequate harmony and appropriate uniform rules relating to maritime matters and bring them within control of the Federal government was the fundamental purpose ; and to such definite end qongress was empowered to legislate within that sphere.” .
It is urged that these rulings have been modified by subsequent decisions, but the court in Washington v. Dawson & Co., 264 U. S. 219 (44 Sup. Ct. 302), denied the modification and distinguished the later cases. Therefore, the point from which further inquiry must proceed is that State compensation laws do not apply to injuries occurring on navigable waters during employment of a maritime nature under a maritime contract.
An exception to the doctrine of the Jensen Case is noted in Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469 (42 Sup. Ct. 157, 25 A. L. R. 1008), where it was held that the workmen’s compensation law of Oregon was applicable to an injury sustained by Rohde while on the ship, building a bulkhead in a partially completed vessel then under construction, the vessel lying at a dock in navigable waters. The conclusions of the court may be best expressed in its own words:
“The contract for constructing ‘The Ahala’ was non-maritime, and although the incompleted structure upon which the accident occurred was lying in navigable waters, neither Rohde’s general employment, nor his activities at the time had any direct relation to navigation or commerce. * * * The injury was suffered within a State whose positive enactment Dre scribed an exclusive remedy therefor. And as both parties had accepted and proceeded under the statute by making payments to the industrial accident fund it cannot properly be said that they consciously contracted with each other in contemplation of the general system of maritime law. Union Fish Co. v. Erickson, 248 U. S. 308 (39 Sup. Ct. 112). Under such circumstances regulations of the rights, obligations, and consequent liabilities of the parties, as between themselves, by a local rule, would not necessarily work material prejudice to any characteristic feature of the general maritime law, or interfere with the proper harmony or uniformity of that law in its international or interstate relations. * * *
“The general do'ctrine that in contract matters admiralty jurisdiction depends upon the nature of the transaction, and in tort matters upon the locality, has been so frequently asserted by this court that it must now be treated as settled. * * *
“In Western Fuel Co. v. Garcia, 257 U. S. 233 (42 Sup. Ct. 89) we recently pointed out that, as to certain local matters regulation of which would work no material prejudice to the general maritime law, the rules of the latter might be modified or supplemented by State statutes. The present case is controlled by that principle.”
The court distinguished the Jensen and other like cases:
“In each of them the employment or contract was maritime in nature and the rights and liabilities of the parties were prescribed by general rules of maritime law essential to its proper harmony and uniformity. Here the parties contracted with reference to the State statute; their rights and liabilities had no direct relation to navigation, and the application of the local law cannot materially affect any rules of the sea whose uniformity is essential.”
And held that while—
“the general admiralty jurisdiction extends to a proceeding to recover damages resulting from a tort committed on a vessel in' process of construction when lying on navigable waters within a State,”
.yet—
“in the circumstances stated, the exclusive features of the Oregon workmen’s compensation act would apply and abrogate the right to' recover damages in an admiralty court which otherwise would exist.”
In State Industrial Commission of New York v. Nordenholt Corp., 259 U. S. 263 (42 Sup. Ct. 473, 25 A. L. R. 1013), the workman, Insana, was injured while working on the dock, engaged as a longshoreman unloading a vessel. The court, holding the State compensation act applicable, said:
“The stevedore’s contract of employment did not contemplate any dominant Federal rule concerning the master’s liability for personal injuries received on land. In Jensen’s Case, rights and liabilities were definitely fixed by maritime rules, whose uniformity was essential. With these the local law came into conflict. Here no such antagonism exists. There is no pertinent Federal statute; and application of the local law will not work material prejudice to any characteristic feature of the general maritime law.”
In its opinion, the court thus referred to the Grant Smith-Porter Case:
“The Oregon workmen’s compensation law prescribed an exclusive remedy, and the question presented was whether to give it effect would work material prejudice to the general maritime law. The accident occurred on navigable waters and the cause was of a kind ordinarily within the admiralty jurisdiction. Neither the general employment contracted for nor the workmen’s activities at the time had any direct relation to navigation or'commerce — it was essentially a local matter.”
In Washington v. Dawson & Co., supra, the court disposed of the Nordenholt Case by the observation that the injuries were received “on the dock — a matter never within the admiralty jurisdiction.”
In Millers’ Indemnity Underwriters v. Brand, 270 U. S. 59 (46 Sup. Ct. 194), the doctrine of the Grant Smith-Porter Case was applied to a maritime employment and the exception was clarified. The employee was a diver, engaged in working off a barge anchored in navigable waters, removing the timbers of an abandoned set of ways, once used for launching ships. While the facts showed a maritime tort, both from locality and character of the work, the court held the Texas compensation law applicable because—
“the matter is of mere local concern and its regulation by the State will work no material prejudice to any characteristic feature of the general maritime law.”
The court, however, confined the operation of the State law to the exception declared, and maintained the integrity of its doctrine by citing distinguishing cases:
“We had occasion to consider matters which were not of mere local concern because of their special relation to commerce and navigation, and held them beyond the regulatory power of the State in Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479 (43 Sup. Ct. 418); Washington v. Dawson & Co., 264 U. S. 219 (44 Sup. Ct. 302); Gonsalves v. Morse Dry Dock & Repair Co., 266 U. S. 171 (45 Sup. Ct. 39); Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449, 457 (45 Sup. Ct. 157).”
In the Kierejewski Case, the employee, a master boiler maker, was injured while working from a float alongside a scow, making repairs on the scow. The Dawson Case included the instances of stevedores working only on board ship, and workmen engaged at maritime work under maritime contract upon a vessel moored at a dock. Gonsalves was working on board a steamer in a floating dock, aiding in the repair of the shell plates. Dahl was doing repair work on a steamer. In the latter case, the court said:
“The alleged tort was maritime, suffered by one doing repair work on board a completed vessel. The matter was not of mere local concern, as in Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 476 (42 Sup. Ct. 157, 25 A. L. R. 1008), but had direct relation to navigation and commerce, as in Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479 (43 Sup. Ct. 418). The rights and liabilities of the parties arose out of and depended upon the general maritime law, and could not be enlarged or impaired by the State statute.”
The latest rulings of the court are that the Louisiana compensation law did not apply to an injury sustained by a helper to a boiler maker sent on board a steamer on the Mississippi river to help lengthen a smoke stack (Messel v. Foundation Co., 274 U. S. 427 [47 Sup. Ct. 695]), nor to the death of a longshoreman while unloading a vessel. Smith & Son v. Taylor, U. S. Sup. Ct. Adv. Ops. 1927-28, p. 273 (48 Sup. Ct. 228).
From the authorities we deduce:
1. If an injury occurs on land, the maritime law does not operate.
2. If it occurs on navigable waters, the jurisdiction of admiralty is prima facie exclusive.
3. If an injury occurs on navigable waters and in the performance of a maritime contract, it is certainly within the exclusive jurisdiction of admiralty unless—
(a) the contract is of merely local concern, and
(b) its performance has no direct effect upon navigation or commerce, and
(c) the application of the State law “would not necessarily work material prejudice to any characteristic feature of the general maritime law, or interfere with the proper harmony or uniformity of that law in its international or interstate relations.”
4. State workmen’s compensation laws, contractual in character, are applicable to maritime service on navigable waters when, and only when, the service is within exceptions (a), (b) and (c) above.
5. If, however, the injury occurs on navigable waters, but in the performance of a nonmaritime contract, it is, at least prima facie, local and within the operation of State laws. If there are any exceptions to this rule, they are yet to be developed.
The construction of a new vessel is a nonmaritime contract. The repair of a once completed ship is a maritime contract. Edwards v. Elliott, 88 U. S. 532; Thames Towboat Co. v. The “Francis McDonald,” 254 U. S. 242 (41 Sup. Ct. 65); Globe Iron Works Co. v. Steamer, 100 Mich. 583 (43 Am. St. Rep. 464); Danielsen v. Morse Dry Dock & Repair Co., 235 N. Y. 439 (139 N. E. 567).
The work being done on the Roumania was repairing, not constructing. New Bedford Dry Dock Co. v. Purdy, 258 U. S. 96 (42 Sup. Ct. 243, 66 L. Ed. 482, and note).
It is, of course, the purpose of repairs to enable the ship to again ply the waters and carry passengers or freight. The authorities cited are uniform in holding that the'repair of a vessel has a direct relation to commerce and navigation and is not a local matter. The same rule is not applied to ships under construction, although their ultimate purpose is water, carriage, because, theoretically, a ship is constructed on land, and, until completion, it does not become an in- . strumentality of commerce. A completed ship, once in commission, has taken and retains a definite status as a means of navigation and commerce. Nor have the courts intimated a distinction between the repair of a vessel, withdrawn from service for extensive overhauling, and of one under charter, en route, in actual commission or being fitted for a specific voyage. And counsel have not suggested in what manner the distinction may be made or limited without imperiling the harmony and uniformity of the maritime law in its international or interstate relations. In the absence of an act of congress to the contrary, the plain pronouncements that the repair of a completed ship is a maritime contract and has a direct relation to commerce and navigation must govern.
The award will be vacated.
North, Fellows, Wiest, Clark, McDonald, Potter, and. Sharpe, JJ., concurred. | [
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Clark, J.
The parties hereto were married June 1, 1916, and divorced July 17, 1925. By consent, the decree awarded the custody of the children, Mary and ' Nancy, now aged 9 and 7 years, respectively, to the plaintiff until the expiration of the school year in June, 1926, then to- defendant for the ensuing year, and thereafter alternately to the parents by school years. On April 29, 1927, defendant filed a petition for modification of the decree to award her permanent custody of the children. On May 14, 1927, plaintiff answered and filed a cross-petition seeking permanent custody of the children in himself. After hearing, the circuit court, in chancery, granted plaintiff’s cross-petition and defendant appealed. The modified decree accords the defendant and her father and sister the right to visit and be with, the children at all reasonable times, and gives defendant the right to have them with her during any reasonable portion of their vacation periods.
Each of the parties indulges in some recriminations against the other, but it would serve no good purpose to give them further publicity. It is sufficient to say that neither of them is shown to be unfit to have custody of the children, and neither is shown to be so superior to the other in personal fitness that the issue may be determined upon that qualification. The fact that each agreed, at the time of the divorce, that the other should have the children half the time impairs the force of their present claims of prior neglect or unfitness. The decision of the circuit court was properly put upon the basis of subsequent conduct and conditions.
The original divorce proceedings were, commenced by plaintiff when defendant left her home and children and went to Chicago for a time to pursue studies in commercial art. When she had custody of the children, in 1926, she cared for them in Grand Rapids, and, on her return to Chicago, in September, she attempted to establish a home in that city. She found servants untrustworthy, and, because she could not give the children the personal attention they needed, they acquired bad habits. She acknowledged her failure to provide a proper home for them, while pursuing her vocation, both frankly in writing to plaintiff and also by placing the children in a boarding school at Beaver Dam, Wisconsin. She has no present plan nor prospect for their future care other than in a boarding school, as she purposes to continue her art studies and work.
The principal attack upon plaintiff is that he is now married to a woman with whom, in 1918, while he was in army service, he had an affectionate association. However, there is no evidence that their relations were immoral, and, although they had some correspondence, they do not appear to have seen each other from 1919 until after the divorce. Defendant had possession of some of the letters long before she separated- from plaintiff, made no charges in the divorce suit because . of the relationship, and the affair is not shown to have had any effect upon the separation of the parties hereto nor upon their divorce proceedings. The circuit judge did not view the incident as disqualifying the plaintiff. On the contrary, he expressed confidence in the fitness of both the plaintiff and his present wife to-care for and properly rear the children.
The testimony establishes that the plaintiff has deep affection for his daughters, and that he has devoted much time to them. He is building a home so that he can keep them better than in an apartment. He intends to remain at Grand Rapids, where the maternal relatives, who are folks of standing and prestige, may have close and frequent association with the children. The benefit of such association cannot be overlooked.
The circuit judge had the advantage, most important in a controversy of this sort, of personal observation of the parties. The issue is, in fact, as he found it, that .of a good home against a good boarding school. In his judicial preference for a home we fully cpncur. Recognizing that the mother is, prima, facie, entitled to the custody of these children, and that no hint of impropriety of conduct is directed against the defendant, it nevertheless remains that her plans for the future do not contemplate the establishment of a home in which she will exercise personal supervision of the children. Children are entitled to parental care and affection and guidance. The initial preference for the mother, established by the statute, must give way before the higher law of the good of the child when the mother proposes to provide institutional care and the father can furnish a proper home.
The circuit judge, in his opinion, has clearly pointed out that, upon a change of conditions in the future, the decree will be subject to modification for the then best interests of the children.
The decree is affirmed, without costs.
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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WlEST, J.
Plaintiff, a boy 14 years of age, was unlawfully employed in defendant’s factory, and, while oiling a running veneer clipping machine, placed his left hand on the bed thereof, to steady himself as he leaned over to reach a low bearing, and the clipping knife came down, in the usual course of its operation, and cut and mangled some of his fingers and a part of his hand.
The employment of the boy, on account of his age, was illegal (Act No. 280, Pub. Acts 1917 [Comp. Laws Supp. 1922, § 5331]), and the proximate cause of the accident (Grand Rapids Trust Co. v. Petersen Beverage Co., 219 Mich. 208; Szelag v. Jordan, 223 Mich. 672), and defendant was guilty of actionable negligence (Gwitt v. Foss, 230 Mich. 8; Kucinski v. Cleaning Works, ante, 352). The boy was too young to come within the provisions of the workmen’s compensation act, and, therefore, the question of his contributory negligence was an issue (Gwitt v. Foss, supra). Plaintiff had verdict and judgment. Defendant reviews by writ of error, presenting as the sole question the right to an adjudication that the boy was guilty of contributory negligence as a matter of law.
Broadly stated, the boy heedlessly put his hand in a place he knew, had he given the matter any thought, was under the descending knife and would result in an injury to him.
We had occasion lately in Kucinski v. Cleaning Works, supra, to consider the question here presented, and there stated the rule with reference to minors and not to persons of mature years and discretion, as follows:
“Knowledge alone of the dangerous character of the instrumentality that 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 min'd at the time of the injury complained of ^ ^ ^
“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.’ ”
We think the evidence in the case at bar presented an issue for the jury upon the question of plaintiff’s contributory negligence.
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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McDonald, J.
This action was brought to recover damages for personal injuries which the plaintiff received by falling into an unguarded stairway in the defendant’s store. The defendant owns and operates a leather goods store in the city of Port Huron, Michigan. The first floor is connected with the basement by means of a stairway which runs lengthwise with the. store and is 25 or 30 feet from the entrance. The stairway opens toward the rear of the store and is about 5 feet in width. At the time of the accident, the front and sides of the stair railing were hidden from the view of one approaching from the front of the store. On the 23d of December, 1924, at about 11:30 a. m., the plaintiff entered the store for the purpose of purchasing a sewing basket. She passed toward the rear and discovered the article she wanted on an upper shelf. In stepping backwards to get a better view of it, she fell into the open stairway and was seriously injured. She bases her action on the negligence of the defendant, which she says consisted in maintaining an unguarded stairway obscured from the view of customers by merchandise piled about it for the purpose of display. In defense to the action, the defendant contends that the sole cause of the accident was the plaintiff’s negligence in failing to give attention to her surroundings. On these grounds, at the close of the proof, the defendant moved for a directed verdict. The motion was denied and both questions were submitted to the jury. The verdict was no cause of action. The plaintiff has brought error.
The errors assigned relate to the admission and exclusion of evidence, to the court’s refusal to submit certain of the plaintiff’s requests to charge, and to the charge as given. As we are convinced from our examination of the evidence that the plaintiff was guilty of contributory negligence as a matter of law and therefore cannot recover, it will not be necessary to discuss the errors assigned.
The maintenance of this stairway was. not in itself negligence. If there was any negligence on the part of the defendant, it was in obscuring the view of the stairway from his customers by piling merchandise about it. If there was any negligence on the part of the plaintiff, it was in failing to see the stairway, and she would not be guilty of negligence on that account if her view was obscured by the merchandise piled about the railing. It goes without saying that the dangerous part of the stairway is the opening or entrance. That was plainly visible. The testimony seems to be undisputed that at the point where the plaintiff stood when she began to move backwards there was nothing to obstruct her view of the opening. She could have seen it if she had looked. So, unless there was something sufficient to excuse her inattention, she must be held to have been guilty of negligence. She was not being waited on at the time of the accident. She had not been directed by any one to go to that part of the store, though impliedly she was invited to be there. She had gone in at a time when there were only two other patrons there. ■ She could not be immediately waited on. She moved to the rear of the store looking all the time at the shelves to discover the article which she wanted. She passed along close to the railing of the stairway without observing it, though she could have done so notwithstanding the fact that merchandise was piled about it. And while we are not holding that she was negligent in failing to see the stairway at that time, it is an important fact that neither then nor subsequently did she give any attention to her surroundings. She passed the stairway safely and stopped in front of the baskets which were on a high shelf. About at that point the accident occurred. She testified:
_ “If there were baskets displayed on the left-hand side of store as large as the one I was looking for I could have seen it if it had been as far away as that picture behind you, about 50 feet. I do not have any trouble with my eyes even if I do wear glasses. They were in good shape. I wore glasses but they were not steamed. I could see very well. * * *
“Q. You never looked away' from the north wall of the store and to the left of you from the time that you first saw that basket until you fell into the staircase?
“A. No, sir, I did not. * * *
“Q. When you got opposite the basket you were looking up toward the-high shelf, were you?
“A. Yes.
“Q. And then you stepped three or four steps back?
“A. Probably.
“Q. And while you were stepping back you were still looking at this basket?
“A. Yes, sir.
“Q. And then you stepped three or more steps back?
“A. Perhaps.
“Q. Your best judgment?
“A. Yes.
“Q. You did not look where you were stepping at all from the time you were opposite that basket?
“A. You weren’t supposed to have to look behind you in a business place, things are supposed to be safe.
“Q. If when you got opposite the basket you had looked around before you backed up you would have seen the stairway right behind you, wouldn’t you?
“A. I don’t know, I didn’t look behind me.”
A storekeeper is required to maintain his store premises in a reasonably safe condition for customers, but stairways,' such as the one in question, are not unusual, in modern store buildings. Merchants have a right to maintain them. But whether or not they ,are obscured from view by merchandise, the entrance which the merchant is not required to bar makes a place of danger for a customer inattentive to surroundings. In the instant case, the defendant was negligent in stacking goods about the railing to the stairway so it could not be seen by one approaching from the front of the store, but the plaintiff was not injured in that part of the store. The entrance to the stairs was not in the line of her passage. She had gone by the stairway and was in a position where her view was unobstructed. If she 'had looked before twice stepping backward the accident would not have happened. The law requires that normal persons of mature years, possessed of their faculties, should exercise them for their own protection. This the plaintiff failed to do, but relied on the assumption that “in a business place things are supposed to be safe.” A similar claim was urged in Larned v. Vanderlinde, 165 Mich. 464. In disposing of the question, this court said:
“The fifth request went so far as to ask an instruction that she could not be found guilty of contributory negligence ‘even though she might have seen the opening had she looked,’ upon the theory that every one has the right to assume that the floor of a store is perfectly safe. Counsel asks us to apply to stairs rules that would be quite strict enough in cases of trap doors or holes, in the floor, where there was no reason to expect them, and where naturally they would not be seen. There was no error in refusing this request.”
In the instant case, the undisputed evidence shows that the plaintiff did not observe the stairway because she did not look. She was careless in moving backward without knowing what was behind her.
The following language of Larned v. Vanderlinde, supra, is applicable:
“One is negligent if he allows such a flight of stairs to escape his notice, from no other reason than mere inattention to his surroundings.”
It is our view that the plaintiff was guilty of contributory negligence, and therefore cannot maintain her action.
The judgment is affirmed, with costs to the defendant.
North, Fellows, Wiest, Clark, and Sharpe, JJ., concurred. Flannigan, C. J., did not sit.
The late Justice Bird took no part in this decision. | [
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Clark, J.
On November 16,1925, defendant issued to Charles W. Stout a life insurance policy in the sum of $50,000, in which the wife, plaintiff here, was named beneficiary. Insured died April 5, 1926. Defendant refused payment on the ground that the policy had lapsed and was null and void under its terms. In this suit on the policy verdict was directed for defendant and plaintiff brings error.
Johnston & Clark were State agents for defendant under written contract which authorized them to—
“procure, either by themselves or by persons employed by them for the purpose,' and forward applications for life insurance in said company, to deliver policies issued thereon, to collect premiums and other moneys due the company, to deliver notes, premium receipts and other papers sent them for that purpose, and to transact the other proper business of the agency of said company in said territory,”
and which provided:
“The parties of the second part (Johnston & Clark) agree: That they will not accept notes of any kind, nor make, alter or discharge contracts, waive forfeitures, or name any extra percentage for special risks.” * * *
The State agents by contract in writing appointed Harry B. Kinsel as agent:
“To secure and forward to the general agent (Johnston & Clark) applications for life insurance in said company, and to deliver the policies issued on such applications ; and also to deliver notices, premium receipts and other papers sent him for that purpose and to transmit, account for and pay over to the general agent daily, all moneys received by him belonging to the general agent, or to the said company and to perform such other duties as may be required of him.”
Such contract speaks of Kinsel’s authority:
“The agent is not authorized to accept risks of any kind, nor to make, alter or discharge contracts, waive forfeitures, or name any extra percentage for special risks, without special authority from the company, nor to credit or remit premiums not actually received, nor to receive for the cash due for premiums anything but cash.”
The application, a copy of which is attached to the policy, contains the following:
“Insurance as set forth above is hereby applied for and it is agreed that the only statements which are to be considered as the basis of the contract are those made in this application, and any amendment thereto, and that no one except the president, vice-president, secretary, treasurer or mathematician can make, alter or discharge contracts or waive any of the company’s rights or requirements.”
And we quote a material provision of the policy:.
“Grace and Reinstatement. Any arrears of premium and interest may be paid within one month (of not less than thirty days) from the due date, or, if not so paid and the insured shall die within- said month, this policy shall be regarded as being then in force and the arrears will be deducted in the settlement thereof; * * * Or, this policy may be reinstated at any time after said month, upon evidence of insurability satisfactory to the company and upon- payment of all arrears with interest thereon at not to exceed six per centum per annum, Provided: In any case, the policy has not been surrendered to the company.”
The report of the State agents to defendant company is that the first quarterly premium had been paid by the insured in cash and in full. The fact is that insured gave to the soliciting agent Kinsel part of the premium in cash and the remainder by two notes payable to him. Kinsel indorsed the notes and discounted them with his principals, Johnston & Clark, who in turn remitted the full net amount of the first quarterly premium to the defendant. The second quarterly premium became due on February 16, 1926, and some time in advance of that date notice thereof was given to the insured by Johnston & Clark. The premium not being paid, a second notice was given on February 24, 1926, and on March 10, 1926, a third and final notice was given the insured by Johnston & Clark that the last day for payment of such premium was March 16, 1926. Defendant had forwarded to the State agents a receipt for the second quarterly premium to be delivered to the insured upon payment, which not being made, the receipt was returned by Johnston & Clark to defendant company on March 23, 1926, and on March 25th next an entry was made on defendant’s records that this insurance had “lapsed.”
Meantime Kinsel had not been idle. On February 18, 1926, he procured from the insured a 30-day note for the amount of the second quarterly premium payable to Johnston & Clark, and sought its acceptance by such agents in lieu of cash, but it was refused at once. Kinsel retained the note until March 23, 1926, when he returned it to the insured by mail, stating in a letter signed “H. B. Kinsel,” written on the company’s., stationery:
“I am inclosing herewith your note of Feby. 18 ($452.50) now past due. Have made arrangements so your insurance will remain in force until April 17, 1926, after which you will be required to pay.” * * *
We think it needless to state more of the facts.
Appellant contends that the note given to Kinsel paid the second quarterly premium and that payment of such premium in the manner provided by the policy had, in fact, been waived by defendant. In this regard the trial judge said in directing a verdict:
“Under my view of the case, however, there are no facts upon which such a waiver can be based or which will justify the conclusion that defendant was bound by Kinsel’s acceptance of the note. Johnston & Clark had expressly agreed in their agency contract that they would not accept notes in payment of premiums, and the record shows conclusively that defendant company had no knowledge of the fact that any notes had been accepted by its agents in payment of the premium until after Stout’s death. Before any waiver can be found, or defendant held bound by Kinsel’s acceptance of the note, it must be shown that defendant had knowledge of the fact that he had accepted Stout’s note or had knowingly permitted him to hold himself out as possessing such authority. There is a total absence of any proof to show that defendant had knowledge of the acceptance of the notes by its agents and under such circumstances an act by the agent, contrary to his authority, would not be binding upon defendant company.
“That Stout had knowledge of the fact that the note had not been accepted by the company in payment of the premium can not be doubted. He received three notices of the fact that the premium was due, the last of which set forth in unmistakable language the fact that the policy would lapse on March 16th if the premium was not paid. Apparently he gave no heed to the notices, and when the premium was not paid within the thirty days of grace, a notation was made on defendant’s records that the policy had lapsed. Under these circumstances I can arrive at no other conclusion than that Kinsel’s acceptance of the note did not bind defendant and the policy upon which this action is based was not in effect at the time of the death of assured.”
What is said of the note applies with equal force to Kinsel’s letter.
We are in accord with the holding of the trial judge and think it well supported by authority easily accessible and- which therefore need not be cited.
No other question demands discussion. We find no error.
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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WlEST, J.
The bill herein was filed October 8,1925, tO' set aside a final order of the probate court for the county of Wayne, made December 5, 1922, adjudging defendants Fairchild and Smith sole heirs at law of Andrew Turnbull, deceased, and assigning the estate to them. Plaintiffs claim that they are the heirs at law of Andrew Turnbull, deceased, and defendants Fairchild and Smith, while daughters of Turnbull, are illegitimate because their mother Was never divorced from her first husband, Samuel L. Collins. The bill was dismissed on the ground that the order of the probate court was res adjudicaba. Plaintiffs appealed and claim the petition for administration was false and fraudulent, and, therefore, the probate court acquired no jurisdiction. No excuse is alleged or shown by plaintiffs for not appealing from the probate order if dissatisfied therewith.
Andrew Turnbull’s wife was formerly Sarah Van Houghton, and, in February, 1863, she was married to Samuel L. Collins. About three months after the marriage Collins deserted his wife and a little later became a soldier in the Civil War and was not heard of again for nearly 50 years. One child was born of that marriage. In 1865, Sarah married Andrew Turnbull and lived with him until his death in 1896, a period of 31 years. Defendants Fairchild and Smith were born of that marriage. Samuel L. Collins died in 1918. After the death of Turnbull, Sarah married a Mr. Brown, with whom she lived but a short time when he died, and, in April, 1921, she died. Andrew Turnbull, at his death, owned real estate then worth about $1,500. After the death of Sarah, and in April, 1921, defendant Fairchild applied for administration of the estate of her father and averred that she and her sister Sarah A. Garfield (now Smith) were the heirs at law of Andrew Turnbull. The usual probate proceedings were had. September 7, 1922, Agnes Benjamin, one of plaintiffs, filed a petition in the probate proceeding, alleging that defendants Fairchild and Smith were illegitimate children, that plaintiffs herein were the true heirs at law, and asked the probate'Court to determine the legal heirs of .Andrew. Turnbull entitled to inherit the real estate. We understand from the record that testimony was taken in the probate court. The probate court adjudged defendants Fair-child and Smith to be the only heirs at law of Andrew Turnbull, deceased, and assigned to them, in equal shares, 'the real estate. No appeal was taken from this adjudication. We are satisfied that defendants Fairchild and Smith in good faith believed themselves to be legitimate children of Andrew and Sarah Turn-bull, and the proceeding to administer the estate was so prosecuted to its conclusion. By this bill plaintiffs sought to try.out the very issue presented to the probate court by the petition of Agnes Benjamin. The probate court had jurisdiction to determine the heirs at law, was petitioned to do so, and adjudicated that subject.
In the probate court one of the plaintiffs herein, in behalf of all, invoked the power of the court to determine the heirs at law. This was a recognition, and a proper one, of jurisdiction in that court, and, upon adjudication there, barred plaintiffs, except by appeal, from questioning the finality thereof. Riebow v. Ensch, 220 Mich. 450; Chapin v. Chapin, 229 Mich. 515; Thompson v. Thompson, 229 Mich. 526.
This disposition eliminates discussion of the evidence claimed to substantiate the averment that the mother of defendants Fairchild and Smith was never divorced from her husband Collins. We say, however, that our opinion in May v. Meade, 236 Mich. 109, relative to the presumption of legality of marriage, whether ceremonial or common law, is applicable to the case at bar.
The defendants Bentley are purchasing the real estate from defendants Fairchild and Smith.
The decree in the circuit is affirmed, with costs to defendants.
North, Fellows, Clark, McDonald, and Sharpe, JJ., concurred.
The late Chief Justice Flannigan did not sit.
The late Justice Bird took no part in this decision. | [
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] |
Potter, J.
Plaintiffs, children and widow of Charles Simon, deceased, sued the Cadillac Motor Car Company to recover damages alleged to have been suffered because of the failure of the defendant to pay proper compensation under the Michigan workmen’s compensation law for the death of said Charles Simon. The declaration alleges that both said Charles Simon and defendant were, at the time of his employment, and at the time of his injuries, subject to the provisions of Act No. 10, Pub. Acts, First Extra Session 1912 (2 Comp. Laws 1915, § 5423 et seq.), and amendments thereto.
Both employer and employee being subject to the workmen’s compensation law, their rights and liabilities are governed thereby. This suit cannot be maintained. Section 5426, 2 Comp. Laws 1915; Varga v. Detroit Edison Co., 240 Mich. 593.
Judgment is affirmed, with costs.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Wiest, J.
The Detroit city board of education, acting under power of eminent domain, declared it necessary to enlarge the Vetal school site, and to take, for such purpose, certain private property. The. circuit court for the county of Wayne was petitioned to summon and impanel a jury to pass upon the necessity of the taking and to fix the compensation. The jury found the necessity and awarded compensation. Believing the expense, so fixed for taking ten of the lots, not justified, the board filed a discontinuance of the proceeding against such lots, moved the court to allow the discontinuance and permit amendment of the petition and the verdict roll by excision of the rejected lots, and also filed objections to confirmation of the verdict as to such lots. The court denied the motions and confirmed the verdict. The board appealed and here contends that petitioner had a right to discontinue the proceeding against part, or all, of the property at any time before confirmation of* the verdict and the court erred in denying such right.
The Detroit city board of education is a State agency, clothed with the power of eminent domain (Act No. 37, Pub. Acts 1925). As such State agency it possessed the power to launch and prosecute the proceeding in court but was without power to discontinue the same “after the confirmation of the verdict of the jury.” 1 Comp. Laws 1915, § 370.
That statute, in providing that discontinuance may not be made after confirmation of the verdict is a clear recognition of the right to discontinue before confirmation of the verdict. The limitation in the statute relates to the time for the exercise of a right, and, until the limitation becomes operative by reason- of the designated event, the right remains. This enables public agencies to safeguard the public interest by way of not being bound to accept property at a cost not warranted by public need.
The confirmation of the verdict as to the mentioned lots is vacated and the case remanded to the circuit with direction to permit the discontinuance. Petitioner will recover costs of this court against B. E. Taylor.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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North, J.
In this case the plaintiffs, who are husband and wife, are seeking to have a transaction set aside whereby they exchanged their contract interest in two pieces of Detroit real estate on the basis of $7,500 for a one-half interest in the stock holdings of the defendant Thomas B. Redmond in the Lapeer Pressed Steel Axle Company, a Michigan corporation. The parcel of real estate referred to as the Seneca avenue property was plaintiffs’ homestead. The other parcel was located on Fourteenth avenue in Detroit. The plaintiffs had sold this parcel on a subcontract to Mrs. Elinor M. Nettleton, and their interest in it was the difference between the amounts unpaid on these respective contracts, which was approximately $4,300. The defendant Herman A. Schmidt,, a real estate broker, was authorized by Redmond to dispose of his interest in the axle company. As the result of an advertisement which Schmidt placed in the paper, he was brought into contact with the plaintiffs. After some negotiations between the plaintiffs and the defendant Thomas B. Redmond, which for- the most part were carried on through Schmidt, the plaintiffs assigned their two equities in the Detroit properties to Redmond. At the outset of these negotiations Redmond had placed the price of $15,000 on his interest in the axle company. When it developed that the plaintiffs did, not have sufficient property or means with which to purchase the whole of this interest, Schmidt arranged to join with them as a partner for the purpose of carrying on the business, and agreed that he would purchase for cash one-half of Redmond’s interest on the basis of $7,500, the same as the plaintiffs were purchasing the other one-half interest for. About the time the deal was closed with the plaintiffs, Schmidt produced a receipt signed by Redmond from which it appeared that the latter had received the $7,500 from Schmidt. Redmond’s stock in the Lapeer Pressed Steel Axle Company and all of his interest in this company were thereupon transferred to Mr. and Mrs. Reich and Schmidt by a bill of sale dated April 12, 1923. A schedule attached to this bill of sale contained an itemized list of the property transferred, including a patent covering the pressed steel axle which the plaintiffs and Schmidt were supposed to manufacture. At the same time the deal was closed with Redmond, an agreement was signed between plaintiffs and Schmidt whereby they became joint owners, of Redmond’s interest in the Lapeer Pressed Steel Axle Company. The plaintiffs gave possession of their home property to Thomas B. Redmond and wife and delivered to him the papers which evidenced their interest in the Fourteenth avenue property. Soon after taking possession, Mr. and Mrs. Redmond conveyed their interest in the homestead property to their son, Arthur J. Redmond. Through a real estate agent, the interest of the Redmonds in the Fourteenth avenue property, which, as before stated, amounted to substantially $4,300, was transferred to the defendant Dios M. Curtright for $1,000. The agent claimed he had bought this contract interest of Redmond for $500. In any event each had one-half of the $1,000 paid. The plaintiffs, after closing the deal, moved to Lapeer where the axle manufacturing plant was located. The factory had not been operated for some time, and Mr. Reich made an effort to get it into condition to resume manufacturing operations. It had been arranged or understood between the plaintiffs and Schmidt that the latter could and would secure funds with which to finance the renewed operations in manufacturing the patented steel axles. The plaintiffs were buoyed along for weeks by communications from Schmidt, but nothing of the expected co-operation ever developed. The plaintiffs finally found themselves in straitened circumstances financially, whereupon Mr. Reich began work as a painter' and his wife secured employment in a millinery shop. Further efforts to consummate the plan with Schmidt seemed hopeless and useless and were abandoned. In the meantime plaintiffs had learned of the alleged fraudulent character of the transaction as hereinafter detailed, and they filed their bill of complaint in September, 1923, asking that the transfer be set aside and their property restored, or, in the event restoration was impossible because of intervening rights of innocent third parties, the plaintiffs asked that they be decreed damages for the loss they had sustained because of the fraud perpetrated.
The trial judge found the defendants Schmidt and Thomas Redmond had deceived and defrauded the plaintiffs as alleged in the bill of complaint. It is particularly stated in the opinion filed by the circuit judge, notwithstanding the representations of these two defendants to the contrary, that because prior to this transaction the corporate powers of the Lapeer Pressed Steel Axle Company had been suspended its stock was worthless; that the representation of Redmond to the plaintiffs that the company’s, assets were worth $30,000 was false and at the time of making such representation hé must have been aware of the falsity thereof; that the patent which plaintiffs were led to believe was worth $40,000 was about to expire, and for that and other reasons was practically valueless ; that the liabilities of the axle company were many times the amount of its assets; that the receipt from Redmond to Schmidt for $7,500 “seems to' have been established beyond all doubt” to have been a “fake receipt.” A review of the record satisfies us that the circuit judge was correct in his determination that the plaintiffs were defrauded by Schmidt and Redmond and because of this the plaintiffs, are entitled to the relief sought as against Schmidt and the Redmonds. Neither Mary Redmond, the wife of Thomas Redmond, nor their son, Arthur J. Redmond, has any bona fide rights in the real estate which the plaintiffs seek to have restored.
In holding that the plaintiffs are entitled to the relief granted in the circuit, we have not overlooked the defendants’ claim that these parties dealt with each other at arm’s length; that whatever statements were made by Schmidt or Redmond were merely expressions of opinion as to future prospects of this axle manufacturing business and a legitimate “boosting” on their side of the transaction; or the fact that the plaintiffs inspected the Lapeer plant before the deal was closed, and that they endeavored for some time to carry out the plan involved in the transaction. The circuit judge found the plaintiffs were people below average intelligence, and clearly they were far from being the equals of Schmidt and Redmond in cleverness and shrewdness. That they were the victims of a frame-up between Schmidt and Redmond is quite beyond question. Notwithstanding the contention to the contrary, the plaintiffs were entitled to the restoration of their interest in the Seneca avenue property, and a decree for $500 damages against Thomas B. Redmond as repayment of the amount he received incident to the sale of plaintiffs’ interest in the Fourteenth avenue property. A money decree for $4,500 was entered in favor of the plaintiffs against the defendant Herman A. Schmidt as damages which plaintiffs had sustained by reason of the loss of their interest in the Fourteenth avenue property. Schmidt has not appealed.
The plaintiffs have appealed from the portion of the decree wherein the trial judge denied restoration to the plaintiffs of their property interest in the Fourteenth avenue property on the ground that Dios M. Curt-right and Esther M. Curtright were innocent bona fide purchasers for value of the contract interest formerly held by the plaintiffs in this property. The plaintiffs have also appealed from that part of the decree which provides that the plaintiffs shall “join in an assignment of said Balmer (plaintiffs’ vendor) contract” to the defendants Curtright. Clearly this latter provision of the decree was. not justified. The Curtrights did not file a cross-bill nor did they ask for affirmative relief of any kind. The issue covered by this part of the decree was not before the court, and it must be set aside for that reason as well as for other reasons hereinafter indicated. Village of Trenton v. Rucker, 162 Mich. 19 (34 L. R. A. [N. S.] 569); McManus v. City of Petoskey, 164 Mich. 390.
As hereinbefore stated, the Fourteenth avenue property was sold on a subcontract by the plaintiffs to Elinor M. Nettleton, and she in turn sold it on another subcontract to the defendants Curtright on June 7, 1922. A real estate agent named Bogan sold to the Curtrights for $1,000 the contract interest in the Fourteenth avenue property which the plaintiffs had previously transferred to Redmond. This transaction in effect cut the Reich contract and Mrs. Nettle-ton’s contract out of the chain of contracts covering this property, and put into the hands of the Curtrights for a consideration of $1,000 the former contract equity of the plaintiffs which on the face of the papers amounted to approximately $4,800. While we think the proofs justified the conclusion of the circuit judge that the Curtrights purchased this equity in good faith still the record presents the question as to what extent they should be allowed to profit by the fraud which Schmidt and Thomas B. Redmond perpetrated on the plaintiffs. It should be borne in mind that the Curt-rights were not misled into purchasing the Fourteenth avenue property because of anything for which the plaintiffs are responsible! The Curtrights had already bought and occupied these premises. They did not buy the contract in which plaintiffs were vendees until May 14, 1923. They were made parties defendant to the amended bill of complaint filed September 21, 1923; and we find nothing in the record which shows they did anything which will be to their disadvantage or prejudice because of having attempted to acquire this second contract interest, except they paid the consideration of $1,000 therefor. They should be protected in this expenditure of $1,000 by having it credited on the Reich-Nettleton contract, through which they should acquire this property if they secure title to it at all. They should be held to be vendees under this contract. If this is done, the Curtrights will neither gain nor lose as the result of the fraud through which Redmond or Bogan were able to offer the prior contract for sale to the Curtrights. This is the result that should be obtained, because it restores to the plaintiffs their property rights in the Fourteenth avenue property as far as can be done without injury to innocent third parties. It is true that this solution of this controversy would compel the Curtrights to pay at the rale of $125 per month instead of $100 per month, as provided in their contract from Mrs. Nettle-ton; but the relief sought by the plaintiffs as to the Fourteenth avenue property will be granted only on condition the monthly payments to be made by the Curtrights are reduced to $100 per month.
And further, in order that the relief granted maybe consistent, the decree taken in accordance with this opinion should reduce the amount of the damages decreed to the plaintiffs against the defendant Herman A. Schmidt from $4,500 to $1,000, which amount under this determination of the case represents plaintiffs’ total loss incident to the Fourteenth avenue property.
It is claimed by the defendant Redmond that the plaintiffs were active participants in a fraudulent scheme wherebjr the contract price of the Fourteenth avenue property was raised from $13,500 to $14,000 and the monthly payments were increased from $100 to $125, and that because of this irregularity and fraudulent conduct the plaintiffs are not in court with clean hands and should be denied any relief. We agree with the circuit judge that whatever part the plaintiffs had in this manipulation was wholly without knowledge of its purpose or legal effect, and that they acted under the guidance of Schmidt because of confidence reposed in him. Schmidt was the agent of Redmond, and the principal should not be allowed to use the agent’s trickery as a shield.
The decree may be modified to conform to the foregoing opinion and entered in this court. The plaintiffs will have costs of this court against the appellants, Thomas B. Redmond, Mary Redmond, and Arthur J. Redmond.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
Plaintiff H. A. Hoxie & Company is a corporation engaged in highway construction. In the summer of 1924 it entered into a contract for the construction of a portion of the highway called M 13 between Kalamazoo and Plainwell. Plaintiff Rooks was the surety on its bond given pursuant to 3 Comp. Laws 1915, § 14827 et seq. It sublet to defendant Shinville the rough or flat grading. Defendant Indemnity Insurance Company of North America was the surety on his bond. Shinville completed his contract in the late fall or early winter of 1925. Plaintiff had withheld 10 per cent, of the contract price, amounting to $3,518.13. Shinville was indebted to some 15 different persons in the sum of about $7,000 for various services and commodities furnished him in connection with such contract and some or all of which they claim constituted “material and labor” within the meaning of the statute cited and for which they claim Hoxie & Company and its bondsmen are liable to them, and which claims are styled “lienable claims” throughout the records and briefs. Defendant Ashton was one of such creditors of Shinville. Five others of such creditors assigned their claims to him, the aggregate of the six claims being the sum of $5,375.09, and he brought suit against Shinville in the Kalamazoo circuit and made Hoxie & Company garnishee defendant. It filed its disclosure showing its indebtedness on the contract in the sum of $3,518.13, that it had retained that sum to protect claims for material and labor, set out the names of the 15 parties who claimed liability as above stated, and the amount of each claim, but stated that it did not know which of such claims, if any, were for material and labor. The usual order was issued and all such creditors were brought in, and all áppeared and were represented by counsel. Judge Gilbert of the 13th circuit heard the matter. Upon the hearing counsel for Hoxie & Company requested that an issue be framed to-determine what claims were “lienable,” what were for material and labor. This request was refused, although the creditors were given- opportunity by the court to make proof on the subject as was Hoxie & Company. Counsel for the company explained to the court that the company did not have information on the subject sufficient to make the proof, that such information was in the possession of the creditors, and, therefore, it was unable to offer any proof on the subject. The creditors declined to furnish such proof or to swear any witnesses, and the court after due consideration directed Hoxie & Company to pay the sum of $3,518.13 into court for the use and benefit of Ashton, the plaintiff in the original suit. This was done and the amount so recovered was apportioned among himself and his five assigns. None of the parties appealed from Judge Gilbert’s disposition of the matter.
Later the creditors, who had not already done so, assigned their claims to Ashton and he instituted suit against Hoxie & Company and its surety claiming they were liable to him and his assignors for material and labor' furnished on the job under the provisions of the statute above cited. Thereupon this bill was filed, bringing the interested parties including the surety' company before the court. Plaintiff Hoxie & Company claims that it and its surety are not liable under the facts and law, but if they are then Shinville and his surety are liable to it for such amount as it may be called upon to respond for. No question as to the propriety of the instant proceedings is raised. The trial judge reached the conclusion that plaintiffs were not liable, his main ground of decision being based on the doctrine of res adjudicata, and restrained the further prosecution of the action at law. Defendant Ashton appeals for himself and his assignors.
Much space in the briefs is taken in the discussion of the question as to which items in the accounts of the numerous creditors are “lienable,” are for labor and material. As we View the case, it will not be necessary for us to decide the question in detail, as we are satisfied that the total “lienable” items fall far below the sum of $3,518.13, the amount involved in the garnishment proceedings. If that proceeding settled the rights of the parties then and now before the court, no other question need be considered.
If Hoxie & Company is now liable on its bond and under the statute above cited to some or all of the 15 creditors of Shinville for material and labor which went into the job, then said company was so liable to them when the hearing of the garnishment proceeding was had before Judge Gilbert. If Hoxie & Company was then liable to such creditors, it did not owe Shinville the full sum of $3,518.13; it owed; him that sum less the amount it owed the creditors, if it owed them anything, and all of such creditors were before the court, and represented by counsel. The statute under which they had been brought in (3 Comp. Laws 1915, § 13149) provided a proceeding to determine to whom the garnishee was indebted, who was entitled to the funds in its hands. In such proceeding the burden did not rest on the garnishee defendant; it rested on the claimants brought in under the provision of this section. Jackson v. Savings Bank, 120 Mich. 702; Crampton v. Crampton, 205 Mich. 233; Creedon v. Lundy, 238 Mich. 126. They declined to put in any proof although the court having refused to frame an issue nevertheless offered them an opportunity to make their proof. In the absence of any proof that any of the creditors had any claim on the funds in the hands of Hoxie & Company, or that the company owed them or any of them any sum, Judge Gilbert did the only thing he was justified in doing, i. e., directed the entry of judgment against the garnishee defendant in favor of the plaintiff in the original suit for the full, amount of the balance unpaid on the contract. This was a judgment on the merits, in a court having jurisdiction of both the subject-matter and the parties, in a proceeding designed by the statute to settle such questions, and every reason for the application of the doctrine of res adjudicata is present. These creditors had the opportunity to put in their proof, and the fact that they did not embrace it is of no consequence in applying the doctrine. In 15 R. C. L. p. 953, it is said:
“The foundation principle upon which the doctrine of res adjudicata rests is that parties ought not to be permitted to litigate the same issue more than once; that, when a -right or fact has been judicially tried and determined by a court of competent jurisdiction, or an opportunity for such trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties, and those in privity with them in law or estate.”
The decree will be affirmed, with 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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Potter, J.
Defendant William P. Kendall was an indorser on a promissory note of $2,000 due six months after date, with interest at seven per cent, made by Earl P. McNett and Anna J. McNett to the MellenWright Lumber Company, dated December 12, 1925. Suit was commenced against the co-makers and indorser by declaration, to which was attached a letter, under date of June 10, 1926, as follows:
“June 10, 1926.
“Mr. Wm. P. Kendall,
“R. F. D. No. 7, Box 898.
“Royal Oak, Mich.
“D.ear Sir: We hold note for $2,000 with interest at 7 per cent, signed by Earl P. McNett and Anna J. McNett, his wife, on which you indorsed guaranteeing payment.
“This note will be due June 12th and we are going to ask that you arrange to pay same promptly. We would appreciate this being paid by not later than Friday, June 18th.
“Kindly advise if you wish to make payment at our office or at one of our local banks.
“We are inclosing stamped envelope for reply.
“Yours very truly,
“Mellen-Wright Lumber Co.,
“J. B. Dunkel, Secretary.” •
Defendant Kendall pleaded the general issue, and gave notice that he was an indorser on the instrument sued on, and that he never received notice of dishonor as required by the statute. There was judgment for plaintiff against the makers, and for defendant Kendall of no cause for action.
The record does not show the evidence introduced. There were no written requests for findings of fact and law. The trial court found the execution and indorsement of the note, and the writing by plaintiff and the receipt by defendant Kendall of the letter of June 10, 1926, above quoted. In response to this letter, June 10, 1926, defendant Kendall called at plaintiff’s office and discussed the note with plaintiff’s manager. June 12, 1926, the day on which the note became due and payable, defendant Kendall came to plaintiff’s office and inquired for Mr. Dúnkel, plaintiff’s manager, and on the same occasion stated to one Schroof, one of plaintiff’s employees, that he was on his way to Ferndale to get some money with which to pay the note. There is nothing in the letter of June 10, 1926, about the liability or responsibility of the makers of the note or their refusal to pay it. There is no evidence of what was said by either party when the'note was discussed at plaintiff’s office. It is not disclosed that Schroof said anything about the note not being paid by the makers or either of them. It is not apparent what Schroof’s employment was. •
The. sole question upon these facts is whether the defendant is legally liable as an indorser.
An indorser of a negotiable promissory note is entitled to due notice of dishonor, and failure to notify him will release him of all liability. Stewart v. National Bank, 40 Mich. 348; Sweet v. Woodin, 72 Mich. 393; Barger v. Farnham, 130 Mich. 487.
Section 6130, 2 Comp. Laws 1915, provides:
“Except as herein otherwise provided, when a negotiable instrument has been dishonored by nonacceptance or nonpayment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged.”
That Kendall, the indorser, had notice or knowledge of the dishonor is not equivalent to, and does not excuse the giving of, notice of dishonor, which must come from one entitled to look to the indorser for payment, and must inform him that the note has been presented for payment and dishonored, and that the holder looks to the indorser for payment. 8 C. J. p. 642, § 904.
In no department of the system of law applicable to bills and notes is there required more unyielding compliance with its rigorous demands than in regard to notice of dishonor. 3 R. C. L. p. 1218.
Section 6150, 2 Comp. Laws 1915, provides:
“Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied.”
A waiver of presentment and notice, being in derogation of the statutory right of the indorser, will not be implied from doubtful acts or language of the indorser. 3 R. C. L. p. 1238.
In Sinclair v. Lynah, 1 Spears (S. C.), 244, the note was protested by a notary public, who stated that he exhibited the note at the residence of the maker and indorser, and in their absence left written notices directed to them, demanding payment, the day of payment having expired. ■ The court said:
“On reading this statement, it is plain that the notary merely informed the indorser that the day of payment had expired, and that payment was expected from him. This was no notice that payment had been demanded from Edward Lynah, and that he had failed to pay.”
The letter of June 10, 1926, was written before the maturity of the note. It. does not give hotice to the indorser that presentment had been made to the comakers or either of them, that a demand for payment had Been made upon them or either of them, that the makers could not pay, or that they had dishonored the note, and it cannot be construed as a notice of dishonor to Kendall.
In Miller v. Hackley, 5 Johns. (N. Y.) 375, 385 (4 Am. DeC. 372), it is said:
“The defendant only.said to a third person, when talking generally of all the bills, * * * that he would take care of the bills, or see them paid. Whether he used the one phrase or the other, is left in doubt; * * * It would be dangerous to fix an indorser without notice, and perhaps without knowledge of the laches of the holder, upon such-loose conversation with a third person. No case has ever gone so far.”
In Olendorf v. Swartz, 5 Cal. 480 (63 Am. Dec. 141), the indorser said he would do what was right, and it was held that this declaration, addressed to a third party not interested in the subject-matter, was not a sufficient waiver of presentment and notice to fix the liability of the indorser.
In National Bank of Poultney v. Lewis, 50 Vt. 622 (28 Am. Rep. 514), an indorser wrote to the cashier of a bank:
“I will waive protest on the note of B. Lewis & Son of $200, dated June 13, indorsed by me.”
At the time this letter was written the bank did not own the note, and it was held not to be a waiver of notice sufficient to hold the indorser.
In 8 C. J. p. 697, § 979, it is said:
“Language importing a waiver will not have the effect of a waiver when addressed to a third person unconnected with, and not interested in, the paper.”
Schroof, so far as the record shows, was a third person, unconnected with and not interested in the paper.
In Parsons v. Dickinson, 23 Mich. 56, defendant was sued as an indorser on a promissory note. The defense was that he was never legally notified of its dishonor. It appeared that defendant stated to plaintiff he had not received the notice, but he expected to have to pay the note. He wished plaintiff would try and get it from the maker. Judgment was rendered for plaintiff in justice’s court. Defendant did not appeal but removed the case to the circuit court by certiorari. It is said:
“Tim question in that court was, not whether the conclusion of the justice from the evidence was satisfactory, but whether there was any evidence from which his conclusion might be drawn. * * * Having selected the remedy by certiorari, he must show us wherein the justice erred in matter of law.”
The judgment of the circuit court was reversed and that of the justice affirmed.
In Bessenger v. Wenzel, 161 Mich. 61 (27 L. R. A. [N. S.] 516), suit was instituted against defendant, an indorser on a promissory note. Defendant pleaded the general issue and gave notice that he was an accommodation indorser; that neither at the maturity of the note nor within a reasonable time thereafter was notice of its nonpayment given him, nor was any demand made upon him for payment; that the maker had subsequently become insolvent and bankruptcy proceedings had been instituted against it. The defendant was a stockholder in a corporation. Before the maturity of the note it was talked over between plaintiff and defendant that the maker could not pay the note and it .would have to be renewed. Both plaintiff and defendant knew that there was no money in the bank to pay the note at maturity. All the corporate directors agreed the note should be renewed. The next day the interest on the note was paid and plaintiff was assured by defendant that the note was just as good as though it had been renewed. By these negotiations and transactions defendant was held to have waived notice of dishonor.
In Gelder v. Welsh, 169 Mich. 490, plaintiff sued defendant as indorser on a promissory note. Defendant pleaded the general issue and gave notice, among other things, that the note was never presented and protested for nonpayment. Defendant was secretary and manager of the Chelsea Manufacturing Company, Limited, makers of the note, and knew its financial affairs. He had notice that the note was presented at the place of payment when due, and that the company had no funds on hand to pay it and could not pay it. He asked the bank for an extension of time on the note, saying, “we don’t believe it will be in time to take care of the note on the 12th.” It is .said: “We think, under such testimony, there was evidence of waiver sufficient to submit the question to the jury.”
Judgment against defendant was affirmed.
In Porter v. East Jordan Realty Co., 210 Mich. 398 (11 A. L. R. 963), defendant, of which William Stroebel was vice-president, and Claude Mack was secretary and general manager, being indebted to Carl and William Stroebel, gave them its promissory note. Later the Stroebels sold the note to Waterman, who sold it, without recourse, to plaintiff, who left it for collection at the bank of which Suffern was cashier. When the note was due, the bank cashier, Suffern, went to Mack’s store on business connected with the defendant realty company. Suffern told Mack the note was due, and Mack said defendant could pay the interest but could not pay the note. The note was not produced by the cashier, Suffern. The refusal of Mack to pay the note was based entirely on lack of funds. The trial court held the presentment and demand insufficient to charge the indorsers.
Section 6115, 2 Comp. Laws 1915, provides:
“The instrument must be exhibited to the person from whom payment is demanded, and when it is paid must be delivered up to the party paying it.”
This court said:
“The rule of the law merchant now made statute law by 'the negotiable instruments act is for the benefit of the maker — that he may examine the instrument to determine its genuineness, the right of the holder to payment, and upon payment may take it up and destroy it or keep it in his possession. It is a provision personal to him and may be waived by him and is waived where he makes no request for its production and his refusal to pay is solely based on other grounds, i. e., lack of funds. The law does not require the doing of idle things, and such requirements as are for the sole benefit of the maker of the note may be waived by him.”
Defendant was held liable.
In Whitney v. Chadsey, 216 Mich. 604, Mr. and Mrs. Herrick of Denver loaned several thousand dollars evidenced by 12 several promissory notes to the Cedar-edge Orchard Company, which notes were indorsed by defendant who was president of the company, with the sole power to draw checks in payment of the company’s indebtedness. The company was engaged in planting and developing an orchard in Colorado. The company’s trees did not reach maturity, and it con tinued to borrow cash from Mr. and Mrs. Herrick to meet its carrying expenses. The notes were all short-time notes, given from time to time over a considerable period, and defendant continued to pay the interest thereon and did not claim he was relieved from liability as an indorser. The notes were indorsed to plaintiff for collection. The court held, under the facts, that defendant came within subdivision second of section 6156, 2 Comp. Laws 1915, and that the dealings between 'him and Mr. and Mrs. Herrick were such as might justify a finding that demand and notice were waived.
There having been no presentment to and demand for payment from the makers or either of them, no notice of dishonor to defendant Kendall, and no waiver by Kendall of notice of dishonor, he cannot be held liable as an indorser.
The judgment is affirmed, with costs.
Fead, C. J., and North, Fellows, Wiest, Glare, McDonald, and Sharpe, JJ., concurred. | [
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North, J.
(dissenting). This suit is brought by Barbara Gregory to recover for services which she claims she rendered as a domestic in and about the defendant’s household. The case was tried by a jury, the plaintiff recovered, and the defendant reviews on writ of error.
The defendant, Stephen D. McNitt, seems to have been a prosperous farmer, and in May, 1916, the plaintiff, who was then a little past 14 years of age, through an arrangement with the defendant’s wife, began work in- the defendant’s home. She continued to work there until January 23, 1924. At first her wage was $3 per week and it was to be increased as she was able to earn more. For the first four or five months, Mrs. McNitt paid the plaintiff. These earnings were demanded from her by her parents and turned over to them. Her parents were foreigners, and her home surroundings were unfortunate. She testified that they expected her to bring home something to drink, and when she failed to do so they beat her. Ill-treatment of this character gave‘rise to a plan that Mrs. McNitt should be appointed guardian for Barbara. This was done October 14, 1916. In this way Barbara’s parents were prevented from misusing her and appropriating her earnings. To some extent, at least, Barbara was treated as a member of the McNitt family, and was cared for during two or three periods of illness.
In January, *1923, the plaintiff secured work elsewhere; and about a week later, when she returned to the McNitt home for some of her possessions, she signed a paper which, at the request of Mrs. McNitt, was written by her daughter, Mrs. Frances Criderman. This paper reads as follows:
“January 23, 1924. This is to certify that I, Barbara Gregory, am satisfied with the wages and care I have received up to date from Mr. and Mrs. S. D. McNitt for the past seven years and eight months. And I, therefore, relinquish all claim on them in the future. Signed and witnessed this day, January 23rd, 1924, in the presence of Goldie Gilbert, signed Barbara Gregory.”
There is a sharp conflict in the testimony relative to the circumstances under which the plaintiff’s signature was obtained to the foregoing and as to her understanding of the purpose and purport of this paper. There had been some neighborhood gossip about Barbara, and she claims the defendant told her that her people had been to see a lawyer and had tried to make the defendant some trouble incident to this affair, and she asserts that this was given as the reason why they wanted her to sign this paper, i. e., to show her people she “had been treated all right.” She says Mr. McNitt had been guilty of no wrong conduct to-, wards her; that there was no truth in the story about her, and she was perfectly willing to sign an agreement to that effect; but that she wanted to go before the probate judge to do so. This she claims was not satisfactory to Mrs. McNitt and her daughter, and that they coerced her into signing the paper as prepared. A portion of this testimony as given by plaintiff is as follows:
“But Mrs. Cutler (now Mrs. Criderman) said — between the two of them, Mrs. McNitt was in bed and she had a little horsewhip that you get at circuses with a balloon on it, and finally Mrs. McNitt flew at me with the whip and Frances (Mrs. Criderman) took hold of my arm and said ‘You are going to sign that paper. Mother is getting worse and she will have another stroke if you don’t sign it.’ I told them I was willing to sign it if it went to the judge of probate. They talked to me about signing an agreement about showing I was treated all right in the home and my people could not cause them no more trouble, because my people, Mr. McNitt had told me, caused him some trouble about stories, and I said I was willing to sign a paper to that effect, but I wanted it to go before the judge of probate, but they drew it up themselves and made me sign it. The only money I got was $15 from Mr. McNitt. That was the only money I got for my seven years’ work.”
Notwithstanding the plaintiff signed the agreement or receipt hereinbefore quoted, she claims that with the exception of $15 paid to her by the defendant, she received nothing for her services after Mrs. McNitt was appointed guardian, October 14, 1916. On the other hand, the defendant claims that the plaintiff has been paid and, that she voluntarily and knowingly signed the paper as a receipt in full; and he asserts that the surrounding circumstances are almost conclusive of the falsity of plaintiff’s testimony. There is proof that Mrs. McNitt had suffered a stroke of paralysis less than a month previous to the1 date of the receipt; that she had only partially recovered, and was in no physical condition to threaten the plaintiff; and, further, that this incident occurred in the presence of a Miss Goldie Gilbert, a school teacher who was then residing at the McNitt home and who signed the receipt or agreement as a witness. This young lady testified that all was peace and harmony in the home, at the time this paper was executed; that Barbara was in poor health, that “she did not want to leave” the home but had to do so because, with Mrs. McNitt in ill health, it made two invalids in the household most of the time; and that there was no hesitancy on Barbara’s part about signing the receipt. Unfortunately this testimony conflicts .with that of the defendant’s daughter, Mrs. Criderman, who as a witness for her father said: “I heard her (Barbara) say to my mother she had a position at the county home and could go there to work. She said she wanted to.” The plaintiff denied that the witness Goldie Gilbert was present when the receipt was signed; but stated that she later came into the room. All this and ■ other conflicting testimony was submitted to the jurors, before whom the plaintiff prevailed.
The defendant has presented 11 assignments of error. The first has to do with the court’s refusal to sustain the defendant’s objection to the plaintiff’s testimony as to what the defendant told her concerning her people making a complaint to an attorney and giving that as a reason why her signature was wanted to a paper to show that she had been treated properly in the McNitt home. The objection made solely on the ground that it was hearsay was not tenable. This testimony was both competent and material. It purported to be the defendant’s own statement and was the plaintiff’s explanation as to her understanding of the reason why they desired .her to sign the so-called agreement or receipt.
The second assignment of error is based on the court’s refusal to sustain an objection to the following question asked' of the defendant on cross-examination relative to his loss in the bank at Ravenna:
“Q. How much did you lose?
“A. Well, at the time the bank went wrong I had about $1,800 in it.”
The objection was that this was immaterial, and in the defendant’s brief it is also urged that it was prejudicial. The force and pertinency of this cross-examination of the defendant arises from the fact that the plaintiff had testified he gave her this circumstance of his having money in the Ravenna bank as a reason why he could not then pay her. It was cross-examination of the defendant which tended strongly to corroborate the plaintiff; and, being proper cross-examination, it was none the less permissible because it may have been detrimental to the defendant’s side of the case. The objection was properly overruled.
The third and fourth assignments of error relate to rulings of the court in excluding testimony offered by the defendant. We have given this portion of the record thorough consideration and are of the opinion that the rulings were proper, and that a discussion of them here is unnecessary.
The fifth assignment involves the refusal to direct a verdict for the defendant. Counsel for defendant correctly state in their brief:
“The really important question in the ease is whether there has been a settlement between the parties and a payment in full of all that the defendant owed the plaintiff.”
On this issue there was positive testimony pro and con; and the court could not properly have directed a verdict. Counsel also state that plaintiff’s receipt should have been held to be conclusive proof against her contention, but such a holding would have been decidedly improper in view of the testimony she gave as to the manner in which and her understanding of the purpose for which the paper was obtained from her. Only a portion of the testimony on this phase of the case is hereinbefore quoted, but it unquestionably presented an issue of fact. Brusseau v. Potter’s Estate, 217 Mich. 165.
The defendant submitted the following requests to charge. They were refused and this is covered by assignments of error 6 to 9 inclusive:
“(6) The testimony of the plaintiff that she was compelled to sign the receipt by Mrs. McNitt’s threats of personal violence in view of Mrs. McNitt’s condition is so improbable that you should ignore it.
“(7) The receipt signed by the plaintiff on the 24th day of January, 1923, is a complete defense to her action unless she was forced to sign it by threats of personal violence by Mrs. McNitt.
“(8) If you find that the plaintiff signed the receipt voluntarily and not under compulsion by Mrs. McNitt your verdict must be for the defendant.
“(9) Under the plaintiff’s testimony that her guardian was to hold her wages for her until she became of age, the plaintiff is not entitled to recover for any wages earned b’y her before she was 21 years of age.”
It is elementary that the trial judge had no authority to pass upon the credibility of testimony given by the plaintiff as he was asked to do in the defendant’s sixth request; and much less could he have properly charged the jury to ignore it because it was improbable. Spray v. Ayotte, 161 Mich. 593; Vinton v. Township of Plainfield, 208 Mich. 179. The seventh and eighth requests were properly refused because each is conditioned solely on the threats or compulsion of Mrs. McNitt; whereas there is testimony that Mrs. McNitt’s daughter was present at the signing of the paper and decidedly an active participant in what plaintiff claims was coercion. A request to charge based upon an erroneous assumption of the facts, either expressed or implied, which may mislead the jury should not be given. McNetton v. Herb, 158 Mich. 525; American Seed Co. v. Cole, 174 Mich. 42. A further objection to these requests is that plaintiff claims her signature was not only obtained by threats or coercion but that she was deceived as to the purpose for which it was secured; she believing it was to exonerate the defendant from the wrongful charge of having ill-treated her. The ninth request was also properly rejected because there was no pretensé or claim of a defense that plaintiff’s wages had been paid to her guardian. The defendant testified that his wife hired the plaintiff with his knowledge and consent and he expected to pay her; and, further, he said:
“That my wife had been appointed her guardian did not make any difference as to the arrangement for Barbara’s pay; she was entitled to her wages just the same.”
One of the two remaining assignments of error relates to the circuit judge’s charge to the effect that a receipt not under seal is only an admission of payment; it may be rebutted and will not be given effect if obtained by improper influence. Considering the issues of fact involved, the above statement of the law was justified and was in no way prejudicial to the defendant. Brusseau v. Potter’s Estate, supra. The other assignment is that the court erred in denying the defendant’s motion for a new trial. We have carefully reviewed this phase of the record and find the assignment to be without merit. The questions raised incident to this motion are largely covered by the other assignments of error, of which a disposition has been above made.
The judgment of the lower court should be affirmed. The appellee should have costs of this court.
Potter and Sharpe, JJ., concurred with North, J.
WlEST, J.
The paper signed by plaintiff went beyond- a mere acknowledgment of receipt of wages, and purported to settle the very matters in suit.
In Pratt v. Castle, 91 Mich. 484, it was stated:
“Settlements are favored by the law, and will hot be set aside, except for fraud or mistake or duress.”
This was followed in Lauzon v. Belleheumer, 108 Mich. 444; Brevoort v. Partridge, 156 Mich. 359.
The paper signed by plaintiff should have been accorded probative value unless impeached; otherwise it performed no office and was a meaningless precaution. It purported to be an expression of the truth and carried verity until impeached by evidence of fraud, duress, or mutual mistake in its procurement. It was not enough to say that it “may be rebutted by parol or other evidence” without stating what the evidence must show. Of course, a mere receipt is not conclusive evidence of payment, for it may be impeached, but the signer is bound unless he unbinds ‘himself within permissible rules. If*plaintiff’s testimony impeached the receipt, then defendant had the burden of going forward with proof of payment.
I think the instruction given fell short of protecting defendant’s rights, and the judgment is reversed, with costs, and a new trial granted.
Fead, C. J., and Fellows, Clark, and McDonald, JJ., concurred with WlEST, J. | [
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WlEST, J.
Plaintiff Frank E. McPeake owned an automobile insured by plaintiff company, and, the evening of November 8, Í925, while attempting to cross defendant’s railroad tracks, in the city of Charlotte, the automobile was struck and damaged by a train backing over the crossing. The automobile was repaired at an expense of $643.12, the repair bill paid by the insurance company, and an assignment of McPeake’s right of action against defendant taken by that company. This suit was then brought by McPeake and. the insurance company to recover the damage to the automobile. During the trial McPeake was dropped as plaintiff, and judgment was rendered in favor of the insurance company for $643.12. Defendant reviews by writ of error.
Defendant claims there was an improper joinder of plaintiffs, The assignment to the insurance company stated that it was to the extent of the payment made by the company to McPeake. There was an improper joinder of parties plaintiff. The cause of action could not be split. The suit should have been dismissed as to plaintiff McPeake when it appeared that he had assigned his right of action (Heck v. Henne, 238 Mich. 198), and, as such fact was stated in the declaration, defendant was entitled to such an order at once, upon request. The request was made early in the trial and denied, and McPeake gave his direct testimony as a plaintiff, but, at the close thereof, he was dropped. His improper joinder was not fatal. 3 Comp. Laws 1915, § 12364.
It is claimed that:
“The driver of the automobile under the undisputed evidence, viewing it in the light most favorable to him, was guilty of contributory negligence as a matter of law and the trial judge should have directed a verdict in defendant’s favor.”
Counsel for defendant insist that this case falls within the line of cases where the undisputed physical facts, established by the driver’s testimony, demonstrates that had he looked with the slightest degree of care he could not have failed to see the approaching car or train. We think the evidence presented an issue of fact for the jury. Miller v. Railway Co., 234 Mich. 184.
A so-called flash-light warning signal was maintained by defendant company at the crossing, but claimed by plaintiff to have been out of order that night or not working, and the train was backed across the street without any precaution to warn persons upon the highway. McPeake was familiar with this crossing and aware of the flash-light, and claimed there was no signal by flash-light, and he looked and saw no train approaching.
The circuit judge instructed the jury:
“So if you should find that McPeake knew that the defendant maintained this danger signal there to give warning of the approach of its train, and you find McPeake knew of this signal as I said, and you find that it did not work upon this occasion, that is, give the usual signal, on the approach of its train, then these facts may be taken into consideration by you, together with all the other facts in the case, as well as the other circumstances that have been disclosed by the evidence, in determining whether McPeake was guilty of contributory negligence in approaching-the track in the manner that he did, or whether he was not.”
The effect of no warning by a signaling device at a railroad crossing has lately received exhaustive consideration in Crowley v. Railroad Co.,-Iowa,-(213 N. W. 403); reported with copious annotation in 53 A. L. R. 964. We quote from the syllabus given in A. L. R.:
“The presence and silence of an automatic signaling device at a railroad crossing do not generally relieve one approaching the crossing from the duty of exercising due care.”
The Iowa court also stated:
. “Some cases hold that the fact that an automatic signal gives no warning of an approaching train is a circumstance to be considered on the question of the traveler’s exercise of due care, and that the question, in such case, becomes one of fact to be determined by the jury;” citing, among other cases, Tobias v. Railroad Co., 103 Mich. 330.
We think the governing rule well stated in Baltimore & Ohio R. Co. v. Windsor, 146 Md. 429 (126 Atl. 119). In that case the driver of an auto truck was struck by a train at a crossing where an automatic bell failed to ring, and the driver, partly relying on the bell, also slowed up and looked and listened as an added precaution. In holding the question of contributory negligence was one of fact for the jury, the Maryland court said:
“And so the question is directly presented, must the rule, which has been so often announced in cases where a silent crossing bell was not involved, that it is the duty of one at a railroad crossing to continue to look and listen until he has passed the point of danger, and that if he fails to do so he is guilty of contributory negligence as a matter of law, be strictly applied in all cases, even where the failure of an .automatic crossing bell to ring may have induced the traveller to exercise something less than the extreme care required in ordinary cases?
“In L. R. A. 1916D, at page 788, it is said:
“ ‘It is difficult to deduce from the cases any definite rule as to the extent to which a traveler on a highway may rely upon automatic safety devices placed at railroad crossings for his protection. The cases seem to agree that the presence of such deVices at a crossing may properly be regarded as having some effect upon the care required of a highway traveler, but some of the cases, while apparently recognizing this principle, require such additional precautions upon the part of the traveler when considering a concrete example, that there seems to be no practical difference between the care required when an automatic device is present and that required when no such device is maintained.
“ ‘About all that may be said is that a traveler approaching a crossing at which he knows an automatic signal is maintained, while entitled to place some reliance upon the indication of safety which silence of the signal implies, is nevertheless bound to use such care in addition as an ordinarily prudent man would use under such circumstances.’
“See, also, note to Jacobs v. Railway Co., Ann. Cas. 1918D, at page 389; 33 Cyc. p. 1028.
“An examination of the cases cited in the above mentioned notes will verify the accuracy of the conclusion of the authors. While there is much conflict in the authorities, the last clause quoted seems to be supported by the best considered cases; and we take it to mean that the degree of care, required of one approaching a crossing, when an automatic bell of which he has knowledge is silent, is only that which an ordinarily prudent man would use under such circumstances, and not the extreme care that would be required if there were no device there to indicate safety; and that whether proper care has been exercised under such circumstances is ordinarily a jury question.”
Counsel insist the case at bar falls within the rule requiring one to stop before attempting to cross a railroad track, citing Davis v. Railway Co., 241 Mich. 166. If view of the tracks is obstructed, and, therefore, not open to observation for a distance reasonably sufficient to discover an approaching train in time to avoid risk, then the rule in the Davis Case applies, but if the view is open, then, even if the one approaching on the highway does not stop but claims to have made observation and have taken the precautions of an ordinarily prudent person, the question is one of fact for the jury. We think the evidence presented a question for the jury under the last-mentioned rule.
After the accident the local agent of defendant company appeared at the scene, and, against strenuous objection, testimony was admitted that he then said: “When the cars were switching the lights wouldn’t work,” and “He said the lights didn’t work on reverse traffic.” This was admitted on the theory of res gestae, because said within a few minutes after the accident. It was after the accident, was not res gestae, and extremely prejudicial because the driver of the automobile, and oné riding with him, had testified that there was no warning light. While this testimony was ad mitted by-the court, and should have been excluded, it is claimed by counsel for plaintiff that the error was cured by the court at the close of plaintiff’s case, and in the instruction to the jury. The court emphatically directed the jury to leave such testimony out of consideration. This testimony was erroneously admitted and bore directly upon the circumstances left to the jury in connection with the care exercised by McPeake. We are persuaded that the effect of such testimony was to leave an ineradicable impression upon the minds of the jurors and the subsequent effort by the court to cure the error cannot be said to have freed the case from the effect thereof.
As stated by Mr. Chief Justice Fead in Burns v. Kieley’s Estate, ante, 668: “The testimony did not come in casually. It was insistently presented.” Counsel for defendant, by repeated objection, endeavored to keep the testimony out, and counsel for plaintiff insistently urged its admissibility and was sustained by the court.
For the mentioned error, 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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] |
Per Curiam.
Defendant Frank Ryan (hereafter defendant) appeals as of right from a judgment entered pursuant to the jury’s verdict in favor of plaintiffs. Because we find that plaintiffs should have brought this suit as a third-party claim under the no-fault act, MCL 500.3135; MSA 24.13135, we reverse.
i
Plaintiff Edward Gunsell injured his back while working as a mail dispatcher for the United States Postal Service. Defendant is an independent contractor hired by the postal service to deliver mail. Plaintiff injured his back when he lifted the rear door of defendant’s small semitrailer, which was not working properly. Plaintiff recovered his lost wages and medical expenses under the Federal Employees’ Compensation Act, 5 USC 8101 et seq. He also filed a first- party claim for personal injury protection benefits with his automobile insurance carrier. His carrier apparently denied the claim under the parked vehicle provision of the no-fault act, MCL 500.3106(2)(a); MSA 24.13106(2)(a).
Plaintiff then brought this lawsuit against defendants Frank Ryan, the owner of the delivery company, and Wayne Fenlon, the truck’s driver, claiming that their failure to properly maintain the semitrailer door caused his injuries. Initially, plaintiff appeared to bring this suit as a third-party claim under the no-fault act. MCL 500.3135(1); MSA 24.13135(1). However, after plaintiff filed suit, federal authorities filed a lien to recover the cost of plaintiff’s federal benefits from any tort recovery. See 5 USC 8132. Plaintiff then moved to change the case designation from “NI,” which signifies a personal injury claim arising out of the use of a motor vehicle, to “NO,” which signifies all other personal, injury claims. MCR 8.117(B)(3)(a), (h). He also moved to dismiss those portions of his complaint concerning the no-fault act, so that he could proceed under a general negligence principle.
The trial court granted plaintiff’s motion. Its ruling eased plaintiff’s burden at trial, because plaintiff no longer had to prove a serious impairment of body function, and allowed him to pursue economic damages he could not have recovered under the no-fault act. MCL 500.3135(1); MSA 24.13135(1). Following a trial, the jury awarded plaintiff economic damages for lost wages and medical expenses (the amount of the federal lien) and noneconomic damages. The jury found defendant Fenlon not negligent.
On appeal defendant Ryan argues that the trial court erred in allowing plaintiff to bypass the strictures of the no-fault act, because defendant’s liability was premised on his ownership, operation, maintenance, or use of a motor vehicle. Whether the trial court erred in granting plaintiff’s motion to amend his complaint to bring this action as a straight negligence suit is a question of law; as such, we review it de novo. Frericks v Highland Twp, 228 Mich App 575, 583; 579 NW2d 441 (1998). We agree with defendant and hold that this case should have been decided under the no-fault statute with its attendant limitations on third-party liability. Consequently, the trial court erred in permitting plaintiff to bring this suit outside the no-fault act.
Under the no-fault act, a person’s personal no-fault insurer stands primarily liable for all economic damages stemming from injuries arising out of the ownership, operation, maintenance, or use of a motor vehicle. Lee v DAIIE, 412 Mich 505, 515; 315 NW2d 413 (1982). The party whose ownership, operation, maintenance, or use of a motor vehicle causes injury is liable to the injured party for noneconomic damages only if the injured party sustained a serious impairment of body function, permanent serious disfigurement, or death. MCL 500.3135(1); MSA 24.13135(1). The injured party can recover economic damages only if the damages exceed the benefits recoverable under the act, MCL 500.3135(3)(c); MSA 24.13135(3)(c). A party injured through the ownership, operation, maintenance, or use of a motor vehicle must seek recovery within the strictures of the no-fault act. See Michigan Bell Telephone Co v Short, 153 Mich App 431, 434; 395 NW2d 70 (1986).
Plaintiff argued below, and the trial court agreed, that his injury did not arise out of the ownership, operation, maintenance, or use of a parked vehicle, because MCL 500.3106; MSA 24.13106 removes the case from the no-fault act. Under that provision, certain cases involving parked vehicles are excluded from the no-fault act’s general abolition of motor vehicle tort liability. However, the statute preserves as no-fault cases those cases involving parked vehicles where the injury occurred
as a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used, or property being lifted onto or lowered from the vehicle in the loading or unloading process. [MCL 500.3106(l)(b); MSA 24.13106(l)(b).]
The statute then qualifies this exception. If the injury is covered by the Worker’s Disability Compensation Act or a “similar federal law,” then the injury did not arise from the “ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle . . . .” MCL 500.3106(2); MSA 24.13106(2). Plaintiff argues that this provision removes his case from the strictures of the no-fault act, and, therefore, the case can be properly tried under general negligence principles. We disagree.
Because plaintiff was working as a federal employee, he was compensated under the federal equivalent of Michigan’s Worker’s Disability Compensation Act, a law both parties agree meets the “similar” requirement of MCL 500.3106(2); MSA 24.13106(2). This provision of Michigan’s no-fault act is designed to prevent duplicative recovery in no-fault act cases. North v Kolomyjec, 199 Mich App 724, 728-729; 502 NW2d 765 (1993). As we stated in North, it addresses only whether a plaintiff can recover from his no-fault insurer, not whether a plaintiff can escape the limitations of the no-fault act in his suit against a third-party defendant in a case involving a vehicle as a motor vehicle. Id. In other words, the fact that plaintiff cannot recover from his insurer is not relevant to whether he can bring his third-party case outside Michigan’s no-fault act. In this case, the semitrailer was being used as a vehicle; therefore, plaintiff should have been subject to the limitations of the no-fault act.
n
Plaintiff argues that requiring him to bring this action as a third-party claim under the no-fault statute unfairly limits his net recovery to noneconomic damages minus economic damages, a result seemingly not contemplated by the Legislature. For example, if plaintiff had received worker’s compensation under state law, he would be entitled to keep that money and pursue noneconomic damages in addition to his worker’s compensation. Here, however, he must use his noneconomic damages to repay the benefits he received under the federal compensation statute. This apparent inequity between the different net recoveries under state and federal law arises because federal law preempts state law, and the federal statute under which plaintiff received his benefits requires restitution from damages recovered in a tort suit based on the same accident. The trial court expressed concern for plaintiff’s predicament when it allowed him to bring this suit outside the no-fault act. Defendant, on the other hand, argues that plaintiff has mistakenly assumed that his personal no-fault insurer properly denied him benefits under MCL 500.3106(2); MSA 24.13106(2). That is, defendant argues, the insurer should have approved plaintiff’s claim because MCL 500.3106(2); MSA 24.13106(2) does not apply where federal law requires this type of restitution. For the reasons discussed below, we agree with defendant and find on the basis of the facts contained in this record that plaintiff’s personal no-fault insurer cannot escape its obligation to pay benefits. Therefore, plaintiff is not subject to the alleged inequity; he can recover economic damages from his no-fault insurer.
The provision under which plaintiff claims his personal no-fault insurer properly denied his claim for benefits states, in pertinent part:
Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if benefits under the worker’s disability compensation act of 1969 ... , or under a similar law of another state or under a similar federal law, are available to an employee who sustains the injury in the course of his or her employment while doing either of the following:
(a) Loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the use or operation of another vehicle. . . .
(b) Entering into or alighting from the vehicle unless the injury was sustained while entering into or alighting from the vehicle immediately after the vehicle became disabled .... [MCL 500.3106(2); MSA 24.13106(2).]
Under this provision, three conditions must be met before an insurer can deny coverage. First, the vehicle must be parked. Second, benefits must be “available to an employee” under the worker’s compensation statute or similar legislation of another state or the federal government. Third, the employee must be loading or unloading the vehicle, performing mechanical work, or entering into or alighting from the vehicle when injured. In this case, we find that the second condition was not met; specifically, “benefits”—as the term is used in the statute—were not “available to an employee.” Because the second condition was not met, this section does not apply to plaintiff’s accident, and the insurance company cannot use it to deny plaintiffs claim for personal benefits.
As noted above, MCL 500.3106(2); MSA 24.13106(2) was designed to prevent injured parties from recovering worker’s compensation benefits and no-fault insurance benefits for the same accident. North, supra at 728-729. Similar provisions are found in MCL 500.3109; MSA 24.13109, which requires that some alternative forms of compensation be subtracted from the personal protection insurance benefits paid by no-fault insurers. These provisions prevent double recovery for the same accident. However, in cases like this one, where a plaintiff must repay his federal benefits from his tort recovery, our Supreme Court has held that the federal payments are not “benefits” for purposes of the statute:
[T]o the extent that the reduction in the automobile insurer’s responsibility is from a source that retrieves reimbursement from the injured person’s tort recovery, the amount so retrieved should not be deemed “benefits provided” within the meaning of the automobile no-fault act relieving the primarily liable automobile insurer of its primary responsibility to pay full benefits without reduction by reason of any tort recovery. . . .
We are persuaded that when the automobile no fault act speaks of benefits “provided,” it means benefits permanently provided. [Sibley v DAIIE, 431 Mich 164, 169-170; 427 NW2d 528 (1988).]
Therefore, the no-fault insurer must fill the void left by federal laws requiring restitution. Where the federal government requires a beneficiary to repay the compensation, the no-fault insurer must pay personal protection benefits to the extent restitution is required.
The Sibley Court’s logic applies in the instant case, even though we are faced with a different provision of the no-fault act. To the extent that plaintiff must repay his benefits, they are not “benefits available” for purposes of the statute, and one of the three conditions listed in MCL 500.3106(2); MSA 24.13106(2) remains unfulfilled. Therefore, it would be improper for the insurer to deny benefits, at least under this provision, and plaintiff is not required to accept a net recovery less than that recoverable under state law.
This holding applies only to those cases involving federal benefits. Great Lakes American Life Ins Co v Citizens Ins Co, 191 Mich App 589, 599; 479 NW2d 20 (1991). In this case, the benefits raise the federal preemption question, and we follow the holding and logic of Sibley, supra, in finding that the insurer is liable for that amount that must be repaid to the federal government.
Given our resolution of this issue, we need not address defendant’s remaining issues on appeal.
Reversed. We do not retain jurisdiction.
Margaret GunseE’s claim is for loss of consortium. For the sake of clarity, we wiE refer to Edward GunseE alone as plaintiff.
In his initial complaint, plaintiff argued that his back injury was a serious impairment of a body function, an allegation that a plaintiff makes when trying to recover from a third party under the no-fault statute. MCL 500.3135(1); MSA 24.13135(1).
Recovery under the no-fault act, with the federal lien pending, could result in a net loss for plaintiff. Under the no-fault act, he is permitted to recover only noneconomic damages. His federal compensation covered only economic damages. Unless allowed to recover economic damages in Ms lawsuit, he would be forced to repay the federal government out of Ms noneconomic recovery.
“The clear intent of the Legislature in § 3106 was to eliminate duplication of the medical and wage-loss benefits of workers’ compensation with the first-party medical and wage-loss benefits afforded by the no-fault act.” North, at 728-729.
Plaintiff argues that the semitrailer was not being used as a vehicle. However, a plain reading of the statute confounds this argument. First, under MCL 500.3106(l)(b); MSA 24.13106(l)(b), injury from a parked vehicle still falls under the no-fault act if
the injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used, or property being lifted onto or lowered from the vehicle in the loading or unloading process.
Here, the door was equipment permanently mounted on the vehicle, and plaintiff was lifting property from the vehicle in an unloading process. Although MCL 500.3106(2); MSA 24.13106(2) removes from the no-fault act those cases where worker’s compensation laws cover the damages for injuries from loading or unloading trucks, for reasons yet to be discussed we find that this section does not apply to the instant case. Because the requirements of MCL 500.3106(2); MSA 24.13106(2) are not met, the case falls under MCL 500.3106(l)(b); MSA 24.13106(l)(b).
“[T]he Sibley approach is limited to cases involving federal preemption.” Great Lakes Ins, at 599.
Federal law preempts Michigan law. Therefore, we cannot hold that the federal government’s lien is unenforceable under the no-fault statute. Sibley, supra at 170. | [
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Per Curiam.
Plaintiff brought an action seeking a declaratory judgment regarding whether it owed personal protection insurance benefits to defendant. The trial court granted defendant’s motion pursuant to MCR 2.116(C)(10) and rendered a declaratory judgment in his favor. We reverse and remand.
In October 1996, defendant was driving a motorcycle that collided with an automobile covered by an insurance policy issued by plaintiff. Although defendant purchased and took possession of the motorcycle from Ken Masta several years before the accident, defendant never registered the vehicle or purchased insurance for it. Before the sale of the motorcycle to defendant, Masta had attempted to sell the motorcycle to Joseph Wiegers. At the time, Wiegers wrote his name and address on the lines reserved for an assignee in interest. When the sale did not take place, Wiegers covered over this information with correction fluid (commonly and hereinafter referred to as “white-out”). Neither party disputes that the white-out is conspicuous and thus readily detectable.
This Court reviews decisions on motions for summary disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
A motion pursuant to MCR 2.116(C)(10) tests the factual basis underlying a plaintiff’s claim. MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to damages as a matter of law. A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Stehlik v Johnson (On Rehearing), 206 Mich App 83, 85; 520 NW2d 633 (1994).]
At the heart of this case is a disagreement over the effect that the white-out has on the purported transfer of title from Masta to defendant. Plaintiff argues that the trial court’s grant of summary disposition to defendant was based on the erroneous conclusion that the presence of white-out on the certificate of title meant that the document could not be used to transfer title to defendant. Defendant disagrees, noting that just above the white-out on the certificate of title is the following instruction: “if any alterations or erasures are made title is void” (emphasis in original). Plaintiff counters that the instruction does not have any binding effect, and that it does not accurately reflect the law. We agree with plaintiff that the instruction has no binding effect.
The Administrative Procedures Act defines a “rule” as follows:
“Rule” means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission of the law enforced or administered by the agency. [MCL 24.207; MSA 3.560(107).]
The definition also includes a number of exceptions, including the following:
(h) A form with instructions, an interpretive statement, a guideline,... or other material that in itself does not have the force and effect of law but is merely explanatory. [Id. (emphasis added).]
Historically, the subsection 7(h) exception “has been narrowly construed and requires that the interpretive statement at issue be merely explanatory.” Detroit Base Coalition for the Human Rights of the Handicapped v Dep’t of Social Services, 431 Mich 172, 184; 428 NW2d 335 (1988). Accord Clonlara, Inc v State Bd of Ed, 442 Mich 230, 248-249; 501 NW2d 88 (1993).
We believe the instruction at issue falls within the subsection 7(h) exception and therefore does not have the force and effect of a rule. Clonlara, supra at 240. Instead, the instruction expresses a position the Secretary of State’s office intends to follow as it car ries out its statutorily mandated responsibilities under the Michigan Vehicle Code. See LeDuc, Michigan Administrative Law (1993), § 4:07, ch 4, p 13. The fact that the public normally will follow the interpretation does not mean that it is binding in and of itself. Clonlara, supra at 244. Such behavior is to be expected, “ ‘since the regulation provides a practical guide as to how the office representing the public interest in enforcing the law will apply it.’ ” Id., quoting 1 Schwartz, Administrative Law (2d ed), § 4.6, p 159. Accordingly, we conclude that the presence of the white-out on the title did not by itself invalidate the transfer of title to defendant.
We now consider whether legal title was properly transferred to defendant. Legal title to a motorcycle passes when the transferor delivers the motorcycle and a properly assigned certificate of title to the transferee. MCL 257.233; MSA 9.1933; Botsford General Hosp v Citizens Ins Co, 195 Mich App 127, 132-133; 489 NW2d 137 (1992). The title remains “valid until canceled by the secretary of state for cause or upon transfer of an interest shown on the certificate of title.” MCL 257.226(7); MSA 9.1926(7).
In this case, the evidence establishes that the certificate of title was delivered to defendant several years before the accident. There remains, however, a question with respect to when Masta signed the document. Wiegers states in his affidavit that Masta signed the document at the time of the attempted sale of the vehicle to Wiegers. Conversely, Masta denies that he signed the certificate of title at that time. Instead, Masta testified that he signed the document when he delivered it to defendant. If the certificate of title was indorsed before it was delivered to Wiegers, then, given that there is no evidence that Wiegers complied with the requirements of transfer when returning the document, legal title would have remained with Wiegers. Under these circumstances, Masta could not have transferred legal title to defendant. See Kelly v Lofts, 253 Mich 552, 554; 235 NW 250 (1931) (observing that “legal ownership of [a] . . . car could not be returned . . . without a proper transfer of certificate of title”). If, however, the document was not signed by Masta until it was delivered to defendant, then the transfer of legal tile to defendant was valid.
The existence of this factual dispute means that summary disposition was improperly granted to defendant. Stehlik, supra at 85. Accordingly, we reverse the trial court’s grant of summary disposition and remand for further proceedings consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
1969 PA 306, MCL 24.201 et seq.; MSA 3.560(101) et seq.
1949 PA 300, MCL 257.1 et seq.-, MSA 9.1801 et seq. | [
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Per Curiam.
Respondent appeals as of right from a probate court order granting petitioner leave to distribute the proceeds of a wrongful death settlement. We affirm.
Matilda Kubiskey died intestate at West Shore Hospital on December 28, 1996, after medication intended for another patient was inadvertently administered to her. This case involves the distribution of the $143,000 proceeds of a wrongful death settlement resulting from the hospital’s alleged medical malpractice. Petitioner Richard Kubiskey, son of the deceased, was appointed personal representative of the estate. On September 22, 1997, petitioner, as personal representative of the estate, sought leave of the court to settle the wrongful death claim and to distribute the proceeds. The petition identified the persons who might be entitled to a share of the damages, including respondent, and set forth the relative shares that petitioner proposed be awarded to each. Peti tioner proposed that $500 be awarded to each of the deceased’s seven great-grandchildren, that $1000 be awarded to six of the deceased’s grandchildren, and that the balance of the proceeds be divided equally between the deceased’s three living children.
The deceased bore four children during her lifetime. Her eldest child, Carol Munson, died in 1976. Respondent Kim Munson is the daughter of Carol Munson and granddaughter of the deceased. Petitioner proposed that respondent receive no share of the proceeds of the wrongful death settlement. On October 3, 1997, respondent filed an affidavit with the probate court in which she requested that she be awarded twenty-five percent of the proceeds. In her affidavit, respondent explained that she left the city of Manistee for California in 1979 to pursue a career in the film industry. She kept in touch with the deceased (who gave her money on occasion) until 1983, when an argument severed their relationship. Because she had recently renewed a relationship with one of her cousins, respondent believed that she would also have renewed her relationship with her grandmother were it not for her grandmother’s untimely death.
A hearing regarding the petition for leave to settle the wrongful death claim and distribute the proceeds was held on October 16, 1997. During the hearing, petitioner testified that he discussed the distribution of the proceeds at great length with his two surviving siblings. With regard to respondent’s share, petitioner testified as follows in response to questions asked by petitioner’s counsel:
Q. And you’ve also indicated that one of the grandchildren, Kim Munson, is not to receive any money.
A. Yes.
Q. Since that is going to be a subject of contention here today, I ask that you explain this briefly to the Judge, why it is that you have decided on behalf of the estate and on behalf of the family not to give any money to Kim Munson?
A. I believe it was my mother’s wishes. She had no contact from 1983 when my father passed away. They had an argument. Kimmy wanted more money. My mother wouldn’t send her any. That was the last she heard from her. There were no cards, no birthday cards, no Christmas cards, nothing. And, I know Kimmy was here in town over the years. She spent a month here, but there was no contact.
Q. What’s your basis for saying that you didn’t think that your mother would want Kimmy to get any money?
A. She didn’t want Kimmy notified that she was in the hospital.
The deceased’s sister-in-law also testified regarding the breakdown of the relationship between respondent and the deceased.
Respondent presented no evidence at the hearing. Instead, respondent’s counsel moved to amend respondent’s objection to the proposed distribution to request one hundred percent of the proceeds. Relying on subsection 222(f) of the Revised Probate Code (RPC), MCL 700.222(f); MSA 27.5222(f), respondent’s counsel argued that respondent was the only interested party entitled to receive a share of the proceeds, because she was the only person to have presented a formal claim for damages to the personal representative. Petitioner’s counsel explained in response that he had been working with the family for “eight or ten months,” and that “the distribution was developed through some serious long negotiations.” He then offered to call every one of the proposed recipients to the witness stand to testify that they wished to “claim” a share of the proceeds. He also argued that formal claims were not necessary because “just about every family member” had formally consented to the petition for leave to settle the claim and distribute the proceeds and waived notice of the hearing. After considering the parties’ arguments, the probate court admitted that it was not familiar with the statute at issue and decided to take respondent’s motion under advisement. Petitioner’s proffered witnesses were never called. One month later, the probate court issued an opinion rejecting respondent’s argument. The court reasoned that “written” claims for damages were “not necessary considering the waivers and consents filed after notice of the intended distribution.”
On appeal, respondent first argues (1) that a formal claim for damages is required to receive a distribution of the proceeds of a wrongful death settlement under § 222 of the RPC, and (2) that the probate court erred in its determination that the actions of the personal representative and the other interested persons satisfied the requirements of the statute. We disagree. The first part of respondent’s argument on appeal presents a question of statutory interpretation to be reviewed de novo. See Rose Hill Center, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332 (1997).
In support of her contention that an interested party must present a formal claim for damages to the personal representative in order to receive a share of the proceeds under § 222, respondent relies heavily on the lead opinion released in In re Durbin Estate, 205 Mich App 113; 517 NW2d 261 (1994). That opinion lacks precedential significance, however, because it was signed by only one judge. Terzano v Wayne Co, 216 Mich App 522, 529-530; 549 NW2d 606 (1996); see also Fogarty v Dep’t of Transportation, 200 Mich App 572, 574-575; 504 NW2d 710 (1993) (explaining that where a majority reaches a decision, but does not agree on the underlying reasoning, no point of law is established by the decision). Accordingly, we are faced with what is, in effect, an issue of first impression.
Because there was no civil action pending under the wrongful death act, the distribution of the settlement proceeds was governed by § 222 of the rpc. See MCL 600.2922(9); MSA 27A.2922(9); Burgess v Clark, 215 Mich App 542, 545-546; 547 NW2d 59 (1996). Respondent relies on subsection 222(f), which provides as follows:
A person who may be entitled to damages under this section must present a claim for damages to the personal representative on or before the date set for hearing on the petition for distribution of the proceeds. The failure to present a claim for damages within the time provided shall bar the person from making a claim to any of the proceeds. [MCL 700.222(f); MSA 27.5222(f).]
The goal of statutory interpretation is to identify and give effect to the intent of the Legislature. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995); Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). The first step in ascertaining such intent is to focus on the specific language of the statute. Turner, supra at 27. The Legislature is presumed to have intended the meaning it plainly expressed. McFarlane v McFarlane, 223 Mich App 119, 123; 566 NW2d 297 (1997). Thus, if statutory language is clear and unambiguous, further judicial construction is neither necessary nor permitted, and the language must be applied as written. See Turner, supra at 27; Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992).
With respect to subsection 222(f) of the RPC, we agree with the general position advocated by the dissenting judge in Durbin, supra at 119-122 (E. C. Penzien, J. dissenting). The Legislature has plainly provided that the consequence of an interested party’s “failure to present a claim for damages within the time provided” is that the interested party is barred from “making a claim to any of the proceeds.” (Emphasis added.) “Making a claim” for proceeds is not the same thing as “receiving a distribution” of proceeds, and nowhere in § 222 does it provide that interested parties must “make a claim” in order to receive a distribution of the proceeds. The distribution of proceeds is governed by subsection 222(d):
After a hearing on the petition of the personal representative, the court shall order payment from the proceeds of the reasonable medical, hospital, funeral, and burial expenses of the decedent for which the estate is liable. The proceeds shall not be applied to the payment of any other charges against the estate of the decedent. The court shall then enter an order distributing the proceeds to those persons designated in section 2922(3) of the revised judicature act of 1961, Act No. 236 of the Public Acts of 1961 who suffered damages and to the estate of the deceased for compensation for conscious pain and suffering, if any, in the amount as the court considers fair and equitable considering the relative damages sustained by each of the persons and the estate of the deceased. [MCL 700.222(d); MSA 27.5222(d).]
By the clear language of the statute, the only prerequisites that must be met in order to receive a share of the proceeds are (1) designation in subsection 2922(3) of the Revised Judicature Act, MCL 600.2922(3); MSA 27A.2922(3), and (2) damages. Respondent’s interpretation of subsection 222(f) of the RPC would effectively add a third requirement to subsection 222(d), that being the presentment of a claim for damages. See Durbin, supra at 119-120 (E. C. Penzien, J., dissenting). This interpretation does not render subsection 222(f) mere surplusage. By barring interested parties who fail to present a claim within the time provided from thereafter making a claim, subsection 222(f) lends a substantial degree of finality to the distribution process, because it prevents notified interested parties from making claims for damages after the proceeds have been distributed.
Because we now hold that the presentment of a claim for damages is not a prerequisite to receiving a share of the proceeds of a wrongful death settlement under § 222 of the RPC, we need not address respondent’s contention that the trial court erred in its conclusion that the other interested parties satisfied the “requirements” of subsection 222(f).
Respondent next argues that the probate court erred in approving the distribution of proceeds proposed by petitioner. We disagree. An order distributing the proceeds of a wrongful death settlement is reviewed for clear error. See McTaggart v Lindsey, 202 Mich App 612, 615-616; 509 NW2d 881 (1993). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id.
Here, it is undisputed that respondent had no relationship whatsoever with the deceased during the final thirteen years of the deceased’s life. Moreover, petitioner testified that during that thirteen-year period respondent made no effort to contact the deceased in any way. Respondent presented no evidence at the distribution hearing. Given the circumstances, we cannot say that the probate court’s determination was clearly erroneous. Cf. McTaggart, supra at 616-617.
Affirmed.
On the day of the hearing, petitioner filed “Waiver/Consent” forms signed by each of the grandchildren and great-grandchildren above the age of majority, including respondent. (Respondent had earlier withdrawn her waiver and consent when she filed the affidavit claiming a right to share in the distribution of the settlement proceeds.) Six of the seven great-grandchildren were minors represented by a guardian ad litem at the distribution hearing. On October 27, 1997, the guardian ad litem filed a statement approving the proposed distribution. Petitioner’s two siblings filed “Waiver/Consent” forms at the initiation of the probate proceedings indicating their consent to the appointment of petitioner as the personal representative and waiving notice to “any and all” hearings regarding the estate. | [
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] |
Whitbeck, J.
In Docket No. 199594, defendant Chrysler Corporation appeals by delayed leave granted, challenging a trial court order that denied its motion for summary disposition of plaintiff Christopher Zine’s claim alleging a violation of the Michigan Consumer Protection Act (mcpa), MCL 445.901 et seq.) MSA 19.418(1) et seq. Zine cross appeals, challenging the trial court’s denial of his motion for class certification. In Docket No. 209281, plaintiffs T. Leonard Terry and Lois Terry appeal by leave granted a trial court order denying their motion for class certification. We reverse in part, affirm in part, and remand.
I. BASIC FACTS AND PROCEDURAL HISTORY
Zine bought a new Dodge truck in May 1994. The Terrys bought a new Plymouth minivan in July 1995. Purchasers of an automobile in some states are entitled to receive information about their rights under their state’s “lemon law.” However, other states do not require the manufacturer to provide such information. Chrysler provides one booklet in each vehicle that contains information relevant to the lemon laws of those states that require the manufacturer to provide such information. It does not contain similar information relevant to the lemon laws of other states, such as Michigan, that do not require the manufacturer to provide such information.
The booklet also contained a notice to all consumers, regardless of location. It provided in pertinent part:
To ensure customer satisfaction, Chrysler Corporation and its dealers offer a Customer Arbitration Board which supplements the other Chrysler Corporation customer relations handling procedures. This Board is independent of both Chrysler Corporation and its dealers. The Board resolves complaints through arbitration, (arbitration is the PROCESS BY WHICH TWO OR MORE PARTIES AUTHORIZE A THIRD PARTY OR PANEL TO RESOLVE THEIR DISPUTE.)
We encourage you to discuss your problem with your dealer and the Chrysler Corporation Service and Parts Zone Office before filing a complaint with the Customer Arbitration Board. You do, however, have the right to take your problem directly to the Customer Arbitration Board, which will make a determination about your problem in a fair and equitable manner. . . .
Chrysler’s dispute settlement procedure does not take the place of any state or Federal legal remedies available to you. Whether or not you decide to submit your dispute to the Board, you are free to pursue other legal remedies.
After detailing the steps that should be followed to resolve a vehicle problem, the notice goes on to state:
If you’re unable to resolve your problem through these two steps, you may choose to contact the Chrysler Customer Arbitration Board (cab) in your area. . . . This service is strictly voluntary, and you need not submit your problem to the cab before taking other actions.
Note: In some states, laws have been enacted that per- ■ mit you to obtain a replacement vehicle or a refund of the vehicle purchase price under certain circumstances. The provisions of these laws vary from state to state. If allowed by state law in your state, Chrysler requires that you first provide us with a written notification of any service difficulty you may have experienced so that we may have an opportunity to make any needed repairs before you are eligible for remedies provided by these laws. In all other states, we request that you give us a written notice of any service difficulty. . . . [Emphasis in the original.]
In February 1996, Zine filed a proposed class action, claiming that the various information documents—and in particular the lemon law booklet—that Chiysler supplied to its dealers for distribution to purchasers of new cars was misleading in that it “caused the probability that Plaintiffs would believe that the state of Michigan does not have a ‘lemon law’ and that the Chiysler Arbitration Board was or is their only remedy for defective Chrysler vehicles.” As a result, according to the complaint, Chrysler “systematically refused to provide a repurchase or replacement . . . for defective vehicles,” “Plaintiffs were led to forego seeking remedies pursuant to Michigan’s Lemon Law,” and “Plaintiffs were led to believe notice of the defect to the manufacturer was not a prerequisite to seeking redress.” Zine alleged that such conduct constituted a violation of the MCPA
In May 1996, the Terrys filed suit against Chrysler, claiming that their new car was defective and sought damages for breach of warranty (count i), breach of good faith (count m), violation of the Magnuson-Moss Warranty Act, 15 USC 2301 et seg. (count iv), and violation of the mcpa (count vn). They also sought to revoke their acceptance of the vehicle and to compel Chrysler to take it back and refund the purchase price (count n). Count vn included the same allegations pleaded by Zine relative to the lemon law. The Terry case was assigned to the same trial court to which the Zine case was assigned, and the Terrys subsequently moved to consolidate their case with the Zine case. The trial court granted that motion in early October 1996.
In the meantime, in late June 1996, Chrysler filed a motion for summary disposition pursuant to MCR 2.116(C)(10) in the Zine case, asserting that the MCPA was inapplicable because Zine purchased his truck primarily for use in his business, that it was not required to provide information regarding the lemon law to Michigan car buyers and Zine received and ignored the lemon law information provided by the Secretary of State’s office, that the information provided was not misleading, that any misleading information it did provide was not material to the sale of the vehicle because it related solely to the remedies available after sale, and that a claim under the mcpa must be predicated on affirmative representations rather than omissions. Zine responded that he purchased the truck primarily for personal use but sometimes used it for work, that Chrysler voluntarily undertook an obligation to provide information and therefore had to provide accurate information, that the information was misleading because it did not disclose information about Michigan’s lemon law, that the documents were material because they were supplied at the time he took possession of the vehicle, and that a claim under the MCPA can be predicated on omissions of fact as well as misrepresentations of fact.
In late June 1996, Zine filed a motion for class certification. Zine asserted that the class included over 522,600 persons, making joinder impracticable, that the case involved Chrysler’s common scheme of omissions and representations by way of the documents distributed to all purchasers and thus the claims and defenses would be the same, that he was a qualified representative for the class, and that it was best to maintain the action as a class action because each purchaser received the same information and was misled about the purchaser’s rights under Michigan law. Chrysler responded that Zine could not represent the class because he could not maintain an action on his own behalf for the reasons specified in Chrysler’s motion for summary disposition and he was not a suitable representative for the class in light of his animosity toward the company and his limited finances, that individual issues dominated over common ones in that different documents were provided for different model years and would require separate minitrials for each class member’s claim and damages, which would make a class action unmanageable.
The trial court heard both motions in August 1996. The trial court rejected Chrysler’s claim that the mcpa did not apply because the evidence showed that, while Zine used his truck primarily for business, it was his only vehicle and was used for personal reasons as well. The trial court also rejected Chrysler’s argument that any representations were not material to the sale because they related to remedies after the sale, they did not induce Zine to buy the truck, and Zine would have bought the truck with or without them. Finally, the trial court rejected Chrysler’s argument that Zine could not have reasonably relied on any omissions because he received and ignored the lemon law information provided by the Secretary of State’s office. It stated:
This has been your strongest argument, I have to admit that. However, I have to keep focusing on the fact that once Chrysler accepts the responsibility for disseminating this material, I think under the Michigan Consumer Protection Act there is a cause of action if you do it in a misleading or deceptive manner and that’s the allegation of the Plaintiff here. I have to take that in a light most favorable to them. If there are any issues of material fact, which I think there are when we talk about “reasonable people” as a matter of law, I can’t say that as a matter of law . . . that the Plaintiff’s actions here were unreasonable.
The trial court also denied Zine’s motion for class certification, stating:
I agree with the Defendant here. I don’t find that, one, that this person is representative of all the members of this potential class. I don’t find that it’s so numerous that it requires that all of them be joined together, or that the awards would be similar. I think I would end up with a lot of little mini-trials here and I’m not going to do that.
The trial court entered an order disposing of both motions in early October 1996. Both parties promptly moved for reconsideration. The trial court denied Chrysler’s motion and entered the appropriate order in early November 1996. Apparently one or both of the parties made known to the trial court at that time their intent to seek leave to appeal. Pursuant to stipulation, the trial court stayed all proceedings related to count vn of the Terrys’ complaint pending this Court’s ruling.
In October 1997, the Terrys filed a motion for class certification even though their complaint had not been filed as a proposed class action and no amended complaint had been filed. The motion and brief were almost word-for-word identical to those filed by Zine the previous year. Chrysler responded that the Terrys’ motion was improper because they had not filed a proposed class action complaint, the motion should be denied for the same reasons Zine’s motion was denied, and that Mr. Terry was not a suitable representative for the class because he was not misled or deceived by Chrysler and did not incur any damages. The trial court agreed to treat the Terrys’ motion as a renewed motion for class certification in Zine with a new proposed representative and, following a hearing in early November 1997, it denied the motion for the same reasons it had denied Zine’s motion. The trial court entered an order to that effect in January 1998.
n. STANDARD OF REVIEW
A. SUMMARY DISPOSITION
This Court reviews a trial court’s ruling on a motion for summary disposition de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995). A motion brought under MCR 2.116(C)(10) tests the factual support for a claim. In ruling on such a motion, a trial court must consider not only the pleadings, but also depositions, affidavits, admissions, and other documentary evidence, MCR 2.116(G)(5), and must give the benefit of any reasonable doubt to the nonmoving party and must be liberal in finding a genuine issue of material fact. Summary disposition is appropriate only if the trial court is satisfied that it is impossible for the nonmoving party’s claim to be supported at trial because of a deficiency that cannot be overcome. Morganroth v Whitall, 161 Mich App 785, 788; 411 NW2d 859 (1987). This Court also reviews statutoiy interpretation de novo. Little Caesar Enterprises, Inc v Dep’t of Treasury, 226 Mich App 624, 627; 575 NW2d 562 (1997).
B. CLASS CERTIFICATION
This Court reviews a trial court’s ruling on class certification under the clearly erroneous standard. Mooahesh v Dep’t of Treasury, 195 Mich App 551, 556; 492 NW2d 246 (1992). Generally speaking, factual findings are clearly erroneous if there is no evidence to support them or there is evidence to support them but this Court is left with a definite and firm conviction that a mistake has been made. Featherston v Steinhoff 226 Mich App 584, 588; 575 NW2d 6 (1997); Lumley v Univ of Michigan Bd of Regents, 215 Mich App 125, 135; 544 NW2d 692 (1996).
m. BUSINESS VERSUS PERSONAL USE UNDER THE MCPA
A. INTRODUCTION
The MCPA prohibits the use of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce. MCL 445.903(1); MSA 19.418(3)(1). It defines the term “trade or commerce” as “the conduct of a business providing goods, property, or service primarily for personal, family, or household purposes and includes the advertising, solicitation, offering for sale or rent, sale, lease, or distribution of a service or property, tangible or intangible, real, personal, or mixed, or any other article, or a business opportunity.” MCL 445.902(d); MSA 19.418(2)(d). The intent of the act is “to protect consumers in their purchases of goods which are primarily used for personal, family or household purposes.” Noggles v Battle Creek Wrecking, Inc, 153 Mich App 363, 367; 395 NW2d 322 (1986).
B. CATALLO
Because “personal” means “of or relating to a particular person” and the mcpa defines “person” as “a natural person, corporation, trust, partnership, incorporated or unincorporated association, or other legal entity,” MCL 445.902(c); MSA 19.418(2)(c), this Court has ruled that office furnishings sold to a business for its own use in its own office “were primarily for personal use.” Catallo Associates, Inc v MacDonald & Goren, PC, 186 Mich App 571, 573; 465 NW2d 28 (1990).
However, this holding was criticized in Robertson v State Farm Fire & Casualty Co, 890 F Supp 671 (ED Mich, 1995), in which the court stated:
“Person” is used in the mcpa in reference to those bringing actions (i.e., plaintiffs) and to those against whom actions will be brought (i.e., defendants). Since defendant sellers will often be businesses and corporations, the Act would have to include such entities in its definition of “per son” as long as the Act continued to refer to potential defendants as “persons.” Accordingly, inclusion of corporations and other business entities in the definition of “person” serves a broader purpose and does not really aid the definition of “personal.”
Furthermore, § 3a of the Act, which addresses appliance service contracts, defines “company” as “a person engaged in trade or commerce who provides a service contract to consumers.” [MCL 445.903a(l); MSA 19.418(3a)(l)]. It would be illogical to find that the legislature’s intent was to limit the potential plaintiffs alleging unfair service contract practices to consumers (as expressly provided) while at the same time allowing anyone—consumer or not—to bring suit for unfair practices which did not involve appliance service contracts. . . .
Furthermore, Catallo’s definition of “personal” ignores the terms surrounding it: family and household. . . . Here, under [the principle of statutory construction,] noscitur a sociis, the term “personal” should be read in light of its neighbors, “family” and “household.” To view the term in isolation, as the court in Catallo did, is to give the very unintended breadth this principle of statutory construction seeks to avoid. [Robertson, supra at 679-680 (emphasis supplied in Robertson).]
The Robertson court therefore ruled that the proper focus was on the use to which the goods or services were put by the plaintiffs and because the plaintiffs sought insurance primarily for their business rather than their household, the mcpa did not apply. Id. at 680.
We conclude that the Catallo holding shifts the focus from the primary use to which the consumer puts the product to whether the purchaser intends to use the product himself, regardless of the purpose for which it was purchased, and brings within the scope of the MCPA any product purchased by a statutorily defined “person” for the person’s own use regardless of the nature of that use. Therefore, we hold that Catallo was wrongly decided and that, if an item is purchased primarily for business or commercial rather than personal purposes, the MCPA does not supply protection.
C. ZINE’S BUSINESS PURCHASE
We agree with the holding in Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 85-86; 592 NW2d 112 (1999), that Catallo was wrongly decided and find that the trial court erred in denying Chrysler’s motion for summary disposition. Zine testified at his deposition that he is self-employed as a sales representative. He stated he bought the truck “for this business application” and “primarily for my business,” he described the truck as a business asset, he had a cargo box installed for storing equipment samples, he had it modified with a hydraulic lift gate, apparently to aid in the loading and unloading of the samples, and he had the name of his company painted on the side of the truck. Zine added that it was “also for my personal needs,” e.g., going to the grocery store or post office or “haul[ing] my two sons around,” but said over eighty percent of the miles he put on the truck were attributable to business driving and admitted that he claimed a business deduction for depreciation of the vehicle.
We conclude that reasonable minds could not differ in concluding that Zine purchased the truck primarily for business rather than personal use and therefore hold that Chrysler was entitled to summary disposition on this ground.
IV. DUTY TO DISCLOSE
A. INTRODUCTION
The MCPA prohibits unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce and defines such prohibited methods, acts, or practices to include the following:
Causing a probability of confusion or of misunderstanding as to the legal rights, obligations, or remedies of a party to a transaction. [MCL 445.903(l)(n); MSA 19.418(3)(l)(n).] Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner. [MCL 445.903(l)(cc); MSA 19.418(3)(l)(cc).]
The crux of Zine’s claim is that Chrysler violated the above subsections of the MCPA by voluntarily undertaking to provide information about some states’ lemon laws without disclosing the existence or terms of Michigan’s lemon law. Some states require the manufacturer to provide information about their residents’ rights under their lemon laws. Thus, Chrysler provided the booklet containing the requisite information pertaining to those states’ laws. Michigan does not require the manufacturer to provide this information with the vehicle. Instead, it requires the Secretary of State to provide the information with the vehicle’s certificate of title. MCL 257.1408; MSA 9.2705(8).
B. EXISTENCE OF A DUTY; ASSUMPTION OF A DUTY
Motor vehicle manufacturers do not have a duty to provide lemon law information to Michigan consumers, and the MCPA does not impose any duty on them to do so. It provides only that, when such information is provided, it not be done in a misleading or confusing or otherwise deceptive manner. Clearly, had Chrysler not provided any information regarding lemon laws, it could not be charged with violating the MCPA. The trial court nevertheless found that defendant’s failure to provide that information could violate the MCPA because it interpreted Chrysler’s provision of the lemon law booklet as a voluntary assumption of the duty to provide lemon law information. We see at least two problems with this reasoning.
First, the trial court erroneously assumed that Chrysler had voluntarily assumed a duty it did not otherwise have. Chrysler did not undertake to provide any information about lemon laws to residents of Michigan or any other states in which it was not required to provide such information. It provided all consumers, including Michigan residents, with information about the company’s arbitration procedure for settling disputes. It then went on to provide information to certain consumers about their rights under their states’ lemon laws. Chrysler did this not because it was assuming a duty to provide information to residents of Michigan (or any other state) but because it was fulfilling a duty imposed by the laws of other states. It fulfilled this duty by printing one booklet for all states that had imposed such a duty and placing that booklet inside each vehicle so that, regardless of which state the vehicle was shipped to, Chrysler would have complied with the obligations imposed on it by that state.
Second, the voluntary assumption of a duty is a concept applicable to negligence law. To prove negligence, the plaintiff must first prove that the plaintiff was owed a particular duty by the defendant. Schanz v New Hampshire Ins Co, 165 Mich App 395, 402; 418 NW2d 478 (1988). “Duty is an obligation that the defendant has to the plaintiff to avoid negligent conduct.” Terry v Detroit, 226 Mich App 418, 424; 573 NW2d 348 (1997). When a person voluntarily assumes a duty not otherwise imposed by law, “that person is required to perform it carefully, not omitting to do what an ordinarily prudent person would do in accomplishing the task.” Rhodes v United Jewish Charities of Detroit, 184 Mich App 740, 743; 459 NW2d 44 (1990).
Here, Zine did not claim that Chrysler was negligent, and therefore principles relating to the imposition of a duty for purposes of negligence liability have little application. The case cited by Zine, Baker v Arbor Drugs, Inc, 215 Mich App 198; 544 NW2d 727 (1996), is distinguishable on that basis. Here, Zine’s claim that Chrysler failed to include information applicable to Michigan residents in the lemon law booklet is predicated on an alleged duty to provide that information. Because Chrysler was not obligated to provide lemon law information to Michigan consumers and was not purporting to do so by providing that information to consumers in other states as required by law, the trial court erred in denying Chrysler’s motion for summary disposition on this ground.
V. UNFAIR, UNCONSCIONABLE, OR DECEPTIVE METHODS, ACTS, OR PRACTICES IN THE CONDUCT OF TRADE OR COMMERCE
A. INTRODUCTION
As noted, the mcpa prohibits unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce and defines such prohibited methods, acts, or practices to include the following:
Causing a probability of confusion or of misunderstanding as to the legal rights, obligations, or remedies of a party to a transaction. [MCL 445.903(l)(n); MSA 19.418(3)(l)(n).]
Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer. [MCL 445.903(l)(s); MSA 19.418(3)(l)(s).]
Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner. [MCL 445.903(l)(cc); MSA 19.418(3)(l)(cc).]
B. A “TRANSACTION”
Chrysler claims that the term “transaction” as used in subsections 3(l)(n) and (cc) must refer to the sale of the vehicle and therefore anything that happens after the sale is irrelevant. We observe that the cases cited by the parties are not particularly helpful in interpreting these subsections. Further, the mcpa does not define the term “transaction.” Black’s Law Dictionary, however, defines it as:
Act of transacting or conducting any business; negotiation; management; proceeding; that which is done; an affair. It may involve selling, leasing, borrowing, mortgaging or lending. Something which has taken place, whereby a cause of action has arisen. It must therefore consist of an act or agreement, or several acts or agreements having some connection with each other, in which more than one person is concerned, and by which the legal relations of such persons between themselves are altered. [Black’s Law Dictionary (5th ed).]
Random House Webster's College Dictionary (1997) provides these definitions:
1. the act or process of transacting; the fact of being transacted. 2. something that is transacted, esp. a business agreement.
Webster’s defines “transact” as follows:
1. to carry on or conduct (business, negotiations, etc.) to a conclusion or settlement. 2. to carry on or conduct business, negotiations, etc. [Id.]
Thus, a “transaction” is the business conducted between the parties, which in this case would be the negotiations that concluded in Zine’s agreement to buy the truck. Because subsection 3(l)(cc) refers to the failure to reveal information material to the transaction, it can be reasonably understood only as referring to information withheld during the negotiations and up to the time the transaction, in this case a sale of a vehicle, is complete. Information that was not included in a disclosure made after the “transaction”—i.e., the sale of the vehicle—was completed would not be material to that transaction. Therefore, we hold that Chrysler’s disclosure of information about some states’ lemon laws while failing to disclose information about Michigan’s lemon law, which came to a buyer’s attention only after the transaction had been completed, is not actionable under subsection 3(l)(cc).
Subsection 3(l)(n), however, refers to causing a party to the transaction to misunderstand the party’s legal rights, not to representations affecting the transaction itself. Because representations made both before and after the transaction has been completed could cause a party to the transaction to misunderstand the party’s legal rights, subsection 3(l)(n) can reasonably be understood to refer to acts that occur before and after the transaction has been concluded. Therefore, we conclude that Chrysler’s argument in this regard fails with respect to subsection 3(1) (n).
C. AFFIRMATIVE statements of fact
Chrysler also claims that subsection 3(l)(n) must be read as involving an affirmative statement of fact that causes a party to misunderstand the party’s legal rights. The one case cited by Chrysler, Lesatz v Standard Green Meadows, 164 Mich App 122; 416 NW2d 334 (1987), does not support this claim. While Lesatz did predicate a claim under subsection 3(l)(n) on an affirmative statement, the Court did not discuss whether an affirmative representation was the exclusive basis on which liability could be imposed under that subsection. Id. at 126, 128. Nor is Chrysler’s interpretation supported by the language of the mcpa itself. Some subsections involve express representations, see, e.g., subsections 3(l)(b)-(l), (q), (r), (w), (y), (bb), (dd), (ee), others involve omissions, see, e.g., subsections 3(l)(s), (cc), and yet others do not speak in terms of representations or omissions, see, e.g., subsections 3(l)(a), (m)-(o), (t)-(v), (x), (z), (aa), (ff). Given the variety of deceptive practices prohibited by the act, a single act may violate more than one subsection. See, e.g., Temborius v Slatkin, 157 Mich App 587, 598; 403 NW2d 821 (1986).
It does not, therefore, logically follow from the fact that some subsections involve omissions that others must involve affirmative representations. While Chrysler claims that such a reading is necessary to prevent subsections 3(l)(s) and (cc) from being rendered meaningless, we do not find this to be the case. Those subsections do involve omissions of fact but do not specifically address deceptive practices that cause a party to misunderstand his legal rights as does subsection 3(l)(n). Because both representations or omissions could cause a party to misunderstand the party’s legal rights, subsection 3(l)(n) can reasonably be understood to encompass both. Therefore, we conclude that Chiysler’s argument fails with respect to this aspect of subsection 3(l)(n).
D. MATERIALITY
Chrysler claims that because subsections 3(l)(s) and (cc) both require that the omitted fact(s) must be “material,” the materiality of those facts must be “tested at the time of the transaction, not post-sale.” For the reasons stated above, Chrysler is undoubtedly correct about its reading of subsection 3(l)(cc). Subsection 3(l)(s) refers to omissions of material fact that mislead the consumer, but does not expressly state that those omissions must affect the transaction. In Mayhall v A H Pond Co, Inc, 129 Mich App 178, 182-183; 341 NW2d 268 (1983), this Court stated that it is proper to construe the provisions of the MCPA “with reference to the common-law tort of fraud.” One element of fraud is that the defendant made a material representation. Hi-Way Motor Co v Int’l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976). To be material, the representation need not “relate to the sole or major reason for the transaction, but... it [must] relate to a material or important fact.” Papin v Demski, 17 Mich App 151, 155; 169 NW2d 351 (1969), aff’d 383 Mich 561; 177 NW2d 166 (1970). See also Rzepka v Farm Estates, Inc, 83 Mich App 702, 710; 269 NW2d 270 (1978) (holding that the defendant seller’s omission of fact was tantamount to a representation and was material because it related to a fact crucial to the plaintiff’s decision to buy).
By analogy, then, a material fact for purposes of the MCPA would likewise be one that is important to the transaction or affects the consumer’s decision to enter into the transaction. This interpretation is supported by the dictionary definition, which defines “material” as a “[Representation relating to a matter which is so substantial and important as to influence [the] party to whom [it is] made . . . .” Black’s Law Dictionary, supra. Therefore, because the omission of which Zine complains came to light after the transaction was completed and Zine admitted during his deposition that his decision to buy the truck would not have been affected had he known about Michigan’s lemon law, the omission was not a material fact and Zine’s claim under subsection 3(l)(s) is not actionable.
E. MISLEADING OR DECEPTIVE OMISSIONS
Chrysler claims that subsection 3(l)(s) must be read as involving an omission that would mislead or deceive a reasonable consumer. This is a plain misreading of the statute. Subsection 3(l)(s) prohibits making an omission that tends to mislead or deceive any consumer, but only if the omitted fact could not reasonably be known by that consumer. Thus, the issue is not whether the omission is misleading to a reasonable consumer but whether the consumer could reasonably be expected to discover the omission at issue.
F. THE WARRANTY AND THE LEMON LAW BOOKLET
The warranty materials checklist provides spaces for the dealer to mark which items have been distributed to the buyer. One of those items is the “Consumer Law or ‘Lemon Law’ pamphlet for State of _ (Refer to Owner’s Rights Under State Lemon Law book).” That item was not checked on Zine’s checklist, although Chrysler’s omnibus lemon law booklet was in the truck. That booklet is entitled “Owner’s Rights Under State Lemon Laws” and is described as a “supplement to owner’s & warranty manuals.” The warranty manual described the limited warranties on the vehicle and added the following statement:
Note: In some states, laws have been enacted that permit you to obtain a replacement vehicle or a refund of the vehicle purchase price under certain circumstances. The provisions of these laws vary from state to state. If allowed by state law in your state, Chrysler requires that you first provide us with a written notification of any service difficulty you may have experienced so that we may have an opportunity to make any needed repairs before you are eligible for remedies provided by these laws. In all other states, we request that you give us a written notice of any service difficulty. . . .[Emphasis in the original.]
This same note appears in the lemon law booklet. Because the note clearly states that written notice of problems is required by Chrysler if state law allows it to require written notice and that written notice is requested even if state law does not allow Chrysler to require written notice, we conclude that reasonable minds could not differ in concluding that the documents clearly made it known that written notice was to be given before seeking a replacement vehicle or refund of the purchase price.
The warranty manual indicates that some states have lemon laws, the provisions of which vary from state to state. The lemon law booklet says the same thing. It then goes on to provide certain information regarding certain states’ lemon laws, but does not state that those laws are the only lemon laws in the country. Therefore, we find that the lemon law booklet was not misleading. Even if one could reasonably infer that the states omitted from the booklet did not have lemon laws, the fact that Michigan does have a lemon law should become known by any Michigan resident upon receipt of title to the vehicle. Because that normally occurs within weeks of purchase, it is the rare consumer who would not have knowledge of Michigan’s lemon law by the time the consumer experienced so many problems with a vehicle as to have a claim under the law. Therefore, we observe that the allegedly misleading nature of the booklet would not, in most cases, be a proximate cause of any damages. See Ridley v Detroit, 231 Mich App 381, 389; 590 NW2d 69 (1998) (“determination whether wrongful conduct may be considered a proximate cause of an injury involves a determination whether the connection between the wrongful conduct and the injury is of such a nature that it is socially and economically desirable to hold the wrongdoer liable”). Moreover, as noted above, because the omission was not a material fact, the misleading nature of the omission is irrelevant.
G. CONCLUSION
We hold that Zine completed the “transaction” in this case when he purchased the truck and that subsections 3(l)(n) and 3(l)(cc) of the mcpa are inapplicable. We observe, however, that because both representations or omissions could cause a party to misunderstand the party’s legal rights, subsection 3(l)(n) can reasonably be understood to encompass both. With respect to materiality, we hold that subsections 3(l)(n) and 3(l)(s) of the MCPA are inapplicable. We observe, however, that subsection 3(l)(s) of the mcpa does address the issue whether the consumer could reasonably be expected to discover the omission in question. Finally, we find that the lemon law booklet was not misleading with regard to Zine’s claim.
VI. CLASS CERTIFICATION
A. INTRODUCTION
A member of a class may maintain a suit as a representative of all members of the class only if the following requirements are met:
(a) the class is so numerous that joinder of all members is impracticable;
(b) there are questions of law or fact common to the members of the class that predominate over questions affecting only individual members;
(c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(d) the representative parties will fairly and adequately assert and protect the interests of the class; and
(e) the maintenance of the action as a class action will be superior to other available methods of adjudication in promoting the convenient administration of justice. [MCR 3.501(A)(1).]
B. ZINE AS A MEMBER OF THE CLASS
The threshold consideration for class action certification is that the proposed class representative must be a member of the class. A plaintiff who cannot maintain the cause of action as an individual is not qualified to represent the proposed class. McGill v Automobile Ass’n of Michigan, 207 Mich App 402, 408; 526 NW2d 12 (1994). We have concluded that Zine did not have a cause of action for violation of the mcpa and therefore hold that he could not serve as a representative of the class of persons who may have such a cause of action. Because Zine’s motion for class certification was subject to denial on this basis alone, the trial court properly denied the motion for class certification on this ground. McGill, supra.
C. THE CLASS ACTION FACTORS
(1) NUMEROSITY
The first factor is numerosity. There is no particular minimum number of members necessary to meet the numerosity requirement, and the exact number of members need not be known as long as general knowledge and common sense indicate that the class is large. Thomas v Christopher, 169 FRD 224, 236 (D DC, 1996); In re Consumers Power Securities Litigation, 105 FRD 583, 601 (ED Mich, 1985); Perez-Funez v Dist Director, INS, 611 F Supp 990, 995 (CD Cal, 1984). Because the court cannot determine if joinder of the class members would be impracticable unless it knows the approximate number of members, Sims v Parke Davis & Co, 334 F Supp 774, 781 (ED Mich, 1971), aff'd 453 F2d 1259 (CA 6, 1971), cert den 405 US 978; 92 S Ct 1196; 31 L Ed 2d 254 (1972), the plaintiff must adequately define the class so potential members can be identified and must present some evidence of the number of class members or otherwise establish by reasonable estimate the number of class members. Thomas, supra; see also Sandlin v Shapiro & Fishman, 168 FRD 662, 666 (MD Fla, 1996), recon den 1997 WL 155418 (MD Fla, 1997); Heartland Communications, Inc v Sprint Corp, 161 FRD 111, 115 (D Kans, 1995); Bremiller v Cleveland Psychiatric Institute, 898 F Supp 572, 576 (ND Ohio, 1995); Goodnight v Shalala, 837 F Supp 1564, 1582 (D Utah, 1993).
Neither Zine nor the Terrys identified a specific number of class members, but indicated that the class potentially included all 522,658 purchasers of new Chrysler products from February 1, 1990, onward. However, class members must have suffered actual injury to have standing to sue, Sandlin, supra at 666, so plaintiffs must show that there is a sizable number of new car buyers who had seriously defective vehi- cíes and lost their right to recovery under Michigan’s lemon law because they were misled by the documents supplied by Chrysler. Neither Zine nor the Ter-rys indicated even approximately how many people might come within this group, nor did they indicate a basis for reasonably estimating the size of the group. Therefore, both Zine and the Terrys failed to show that the proposed class is so numerous that joinder of all members is impracticable. We hold that the trial court properly denied the motion for class certification on this ground.
(2) COMMON QUESTIONS OF LAW OR FACT
The second factor is common questions of law or fact that predominate over individual questions. The common question factor is concerned with whether there “is a common issue the resolution of which will advance the litigation.” Sprague v General Motors Corp, 133 F3d 388, 397 (CA 6, 1998), cert den 524 US 923; 118 S Ct 2312; 141 L Ed 2d 170 (1998). It requires that “the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, must predominate over those issues that are subject only to individualized proof.” Kerr v West Palm Beach, 875 F2d 1546, 1557-1558 (CA 11, 1989).
The common question here is whether the new car documents supplied by Chrysler violated the MCPA. Even if that question were to be resolved in plaintiffs’ favor, the trial court would have to determine for each class member who had purchased a new vehicle whether the vehicle was bought primarily for personal, family, or household use, MCL 257.1401(a)(i); MSA 9.2705(l)(a)(i), whether the plaintiff had a defective vehicle and reported the defect to the manufacturer or dealer, MCL 257.1402; MSA 9.2705(2), had the vehicle in for a reasonable number of repairs, MCL 257.1403(1), (3); MSA 9.2705(3)(1), (3), was unaware of Michigan’s lemon law, read the documents supplied by Chrysler, and was led to believe that Michigan did not have a lemon law, and chose not to pursue a remedy under the lemon law because of that belief. These factual inquiries, all of which were subject to only individualized proof, predominate over the one common question and would render the case unmanageable as a class action. Therefore, we hold that the trial court properly denied the motion for class certification on this ground as well.
vn. CONCLUSION
We reverse the trial court’s denial of Chrysler’s motion for summary disposition and remand for further proceedings consistent with this opinion. We affirm the trial court’s denial of class certification. We do not retain jurisdiction.
Therefore, plaintiffs’ booklets provided information about the lemon laws in California, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Vermont, the District of Columbia, and Puerto Rico. It also contained a notice to consumers in Colorado, Connecticut, Georgia, Indiana, Maryland, Missouri, Montana, New Mexico, North Carolina, South Carolina, Virginia, and West Virginia, that, in order to obtain a refund or replacement/repurchase of the vehicle under those states’ laws, the con sumer must first give Chrysler written notice of the problem with the vehicle. The booklet did not provide information about the lemon laws of any other states.
Those steps being talking to the dealership and contacting the Chrysler Customer Center.
The complaint did not include a count v or count vi.
The ninety-one-day period for filing of the motion was extended by stipulation of the parties. MCR 3.501(B)(1).
According to the trial court’s docket sheet, Zine’s motion was denied in mid-February 1997, but there is no order in the file to that effect.
Language similar to that in the mcpa appears in UCC 9-109(1), MCL 440.9109; MSA 19.9109(1), which defines the term “consumer goods” as those “used or bought for use primarily for personal, family or household purposes.” In Business Modeling Techniques, Inc v General Motors Corp, 123 Misc 2d 605, 607-608; 474 NYS2d 258 (1984), the court concluded that “[t]he use of the word ‘primarily’ in the Uniform Commercial Code requires a determination of the main or chief use of a product and centers attention on the actual use by a particular individual.” Accord Richards v General Motors Corp, 461 So 2d 825, 826 (Ala App, 1984).
The Catallo case was decided in October 1990 and thus is not binding under MCR 7.215(H) even though it was approved for publication in December 1990. People v Cooke, 194 Mich App 534, 537; 487 NW2d 497 (1992). See also Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 86; 592 NW2d 112 (1999).
See Jackson Co Hog Producers, supra at 85-86:
We recognize that our holding is contrary to Catallo Associates, Inc v MacDonald & Goren, PC, 186 Mich App 571; 465 NW2d 28 (1990), in which this Court ruled that because subsection 2(c) of the mcpa, MCL 445.902(c); MSA 19.418(2)(e) defines “person” as “a natural person, corporation, trust, partnership, incorporated or unincorporated association, or other legal entity,” the concept of “personal,” as used in the definition of “trade or commerce,” contemplates those transactions “of or relating to a particular person, corporation, trust, partnership, incorporated or unincorporated association, or other legal entity.” By this Court’s reasoning in Cat-allo, because defendant supplied electricity to plaintiffs, and because plaintiffs are “persons” under the mcpa, the electricity was primarily for “personal” use. We conclude that Catallo was wrongly decided and decline to follow its analysis. First, to use the mcpa’s definition of the root word “person” to extrapolate a definition for the word “personal” is not appropriate. The two words are different, and the definition of one should not control the definition of the other. Second, the Catallo panel’s definition of “personal” ignores the context in which the word is used, i.e., “personal, family, or household purposes.” Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. MCL 8.3a; MSA 2.212(1), Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 539; 565 NW2d 828 (1997). In defining the term “trade or commerce” as it did, the Legislature intended to limit the mcpa’s applicability to a class of transactions much narrower in scope than that recognized by the panel in Cat-allo. That is, in limiting the mcpa’s applicability to “the conduct of a business providing goods, property, or service primarily for personal, family, or household purposes,” the Legislature intended to protect consumers harmed from transactions more intimate in nature than the transaction involved in this case. In construing a statute, this Court should avoid any construction that would render a statute, or any part of it, surplusage or nugatory. Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992). In our opinion, the decision of the panel in Catallo impermissibly renders the Legislature’s limiting language obsolete. Further, at least one federal court, in Robertson v State Farm Fire & Casualty Co, 890 F Supp 671, 680 (ED Mich, 1995), has expressly rejected the decision of the panel in Catallo for the reasons stated herein.
Accordingly, we reject Catallo and rule that the services that defendant supplied to plaintiffs were not “primarily for personal, family, or household purposes,” but rather were mainly for the operation of plaintiffs’ business. [Emphasis in the original.]
The notice must provide substantially the following information:
Important, ip this vehicle is defective you may be entitled under STATE LAW TO REPLACEMENT OF IT OR A REFUND OF ITS PURCHASE PRICE. TO OBTAIN REPLACEMENT OR A REFUND YOU MUST FIRST REPORT THE DEFECT IN WRITING TO THE MANUFACTURER AND YOU MAY BE REQUIRED TO FIRST ARBITRATE THE DISPUTE.
The notice must also tell the consumer what to do to protect the consumer’s rights under this law. MCL 257.1408; MSA 9.2705(8).
In Baker, supra at 204-206, this Court held that the plaintiff had stated a claim of negligence based on the defendant’s filling of two incompatible prescriptions because, although a pharmacy does not ordinarily have a duty to monitor drug usage, the defendant assumed that duty by using a computer system that detected potentially harmful drug interactions and advertising that fact to customers. While Baker also alleged a claim under the mcpa, it was not based on the duty to monitor drug interactions per se. Rather, it was based on the defendant’s false statement in its advertising that its computer monitoring system would prevent the dispensation of two incompatible drugs. Id. at 207.
Chrysler, for example, relies on various cases that involved claims based on misrepresentations made or apparently made to induce the sale but did not actually define the term “transaction.” See, e.g., Dix v American Bankers Life Assurance Co of Florida, 429 Mich 410, 412-413, n 3; 415 NW2d 206 (1987) (involving false representations about annuity policies purchased by the plaintiffs but not citing any specific subsection of subsection 3[1]); Michaels v Amway Corp, 206 Mich App 644, 651-652; 522 NW2d 703 (1994) (involving failure to reveal information, presumably at the time the plaintiffs contracted with the defendant, but not citing any specific subsection of subsection 3[1]); Temborius v Slatkin, 157 Mich App 587, 597-598; 403 NW2d 821 (1986) (involving violation of subsections 3(l)(q), (s), (bb), and (cc) based on representations that the plaintiffs car was ready for delivery upon payment of the purchase price and failure to inform the plaintiff that payment would not necessarily result in immediate delivery of the car); Mayhall v A H Pond Co, Inc, 129 Mich App 178, 180; 341 NW2d 268 (1983) (involving misrepresentations that induced the plaintiff to purchase a ring but not citing any specific subsection of subsection 3[1]). See also Price v Long Realty, Inc, 199 Mich App 461, 464, 471; 502 NW2d 337 (1993) (involving misrepresentations that induced the plaintiffs to purchase property but not citing any specific subsection of subsection 3[1]). Plaintiff relies on Mikos v Chrysler Corp, 158 Mich App 781; 404 NW2d 783 (1987), which held that breach of an implied warranty is actionable under subsection 3(l)(y), which relates in part to the “failure of the other party to the transaction to provide the promised benefits,” MCL 445.903(l)(y); MSA 19.418(3)(l)(y), an occurrence that could only become known after the transaction has been concluded.
Because Chrysler has not challenged on appeal Leonard Terry’s right to maintain a cause of action under the mcpa or his qualifications to serve as class representative, it is unnecessary to determine whether the trial court properly denied his motion for class certification on this ground. Rather, the question is whether Leonard Terry can maintain the action as a class action. As the person seeking class certification, plaintiff bears the burden of proof. In re American Medical Systems, Inc, 75 F3d 1069, 1079 (CA 6, 1996). There being little Michigan case law construing MCR 3.501, it is appropriate to consider federal cases construing the similar federal court rule (FR Civ P 23) for guidance. Brenner v Marathon Oil Co, 222 Mich App 128, 133; 565 NW2d 1 (1997).
Zine alleged in his second amended complaint that the class consisted of all purchasers of new Chrysler automobiles in the past six years and contained approximately 250,000 members
This factor ties in with the fifth factor in that if individual questions of fact predominate over common questions, the case will be unmanageable as a class action. MCR 3.501(A)(1)(e), (2)(c); Lee v Grand Rapids Bd of Ed, 184 Mich App 502, 504-505; 459 NW2d 1 (1989). | [
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Holbrook, Jr., J.
This case is before us following remand from the Supreme Court. Originally, we held that pursuant to the then recently decided case of People v Bender, 452 Mich 594; 551 NW2d 71 (1996), two ’ statements made by defendant had to be suppressed because they were made after the police failed to inform defendant that counsel had been retained to represent him. People v Sexton, unpublished opinion per curiam of the Court of Appeals, issued December 20, 1996 (Docket No. 177061). Subsequently, our Supreme Court held that the decision in Bender was only to be given prospective application, and thus was inapplicable to defendant’s case. People v Sexton, 458 Mich 43, 68; 580 NW2d 404 (1998). The Supreme Court then remanded the case to this Court for further proceedings. Once again, we reverse and remand.
I
On September 8, 1993, defendant’s cousin, Damian Phillips, was shot and killed at defendant’s residence. When the police arrived, they encountered defendant and two other males, one of whom was a juvenile. The three were placed in a patrol car, where they were questioned by one of the responding officers. The three were then transported to the Hazel Park police station, where they were asked to give written statements. None of the three were handcuffed or placed under arrest at the time.
The three arrived at the police station at about 2:00 P.M. They were taken into a secure area of the station house, where they were promptly given an atomic absorption test. They were then separated so that they could be interviewed individually. Defendant was questioned by Detective Melvin Marchlones. Defendant gave Marchlones his first statement at approximately 2:23 P.M. In this first statement, defendant denied all culpability in the killing. Approximately one hour later, defendant asked if he could telephone his father. Defendant was told that he could do so “later.” No such call was ever made. Marchlones then confronted defendant with what the detective said were inconsistencies between what defendant told the police officer who questioned him at the scene and what he had just told Marchlones. The detective also told defendant that his story was allegedly inconsistent with that told by the two other males. Defendant then gave Marchlones a second statement at about 4:00 P.M. In this second statement, defendant claimed that as he was handing the gun to his cousin, the gun slipped through his cousin’s hands, fell to the floor, and accidentally discharged.
Next, at about 5:15 P.M., Marchlones brought up the possibility of defendant taking a polygraph examination. When defendant indicated a willingness to take a polygraph test, Marchlones read defendant the Miranda warnings so that defendant would be familiar with them when they were given to him at the polygraph examination. The record indicates that defendant did not waive his Miranda rights at this time. Defendant then gave a third statement at about 5:20 P.M., after Marchlones once again told defendant that his previous statement was not in accord with the facts. In this third statement, defendant claimed that as he was holding the gun, it accidentally discharged after his cousin pointed the barrel at his own head.
In the meantime, the juvenile male returned to defendant’s house. According to defendant’s father, the boy informed him that defendant “was being held for first-degree murder.” Defendant’s father went down to the Hazel Park police station at approximately 4:45 p.m. and tried to see his son. His requests were denied. Defendant’s father then contacted his attorney, Neil Miller, at about 5:00 p.m. Soon thereafter, Miller called the Hazel Park police station from a mobile telephone. Miller identified himself as being defendant’s attorney. According to Miller, he was told that defendant was not at the station. Miller “left a message for whoever was holding Corey to” call him. No such call was made. At about 6:00 P.M., defendant was transported to the Southfield police station to undergo the polygraph examination.
Miller arrived at the Hazel Park police station at around 7:00 P.M. He was told by the desk officer that defendant was at another police station undergoing a polygraph examination. While there is some confusion in the record with regard to exactly what the officer told Miller, both men agree that Miller was misinformed about defendant’s whereabouts. The desk officer refused Miller’s request to contact Mar-chlones. Miller then left the station and returned to his office. The polygraph examiner testified that his pretest examination of defendant began at 7:13 P.M. Just before the pretest examination, the examiner read defendant the Miranda warnings, and defendant waived his rights by so indicating on a standard waiver form. Before the test began, defendant told the examiner that the shooting had been an accident. Marchlones estimated that the polygraph examination lasted somewhere between 372 and 4 hours.
During the course of the examination, the desk officer at the Hazel Park police station paged Mar-chlones. The desk officer testified that he did so because Miller was “becoming a little bit agitated and quite pressing.” Marchlones answered the page, but he did not pass on to defendant the information that an attorney had been retained to represent him. According to the testimony of Marchlones and the desk officer, their conversation took place sometime between 10:00 P.M. and 10:30 P.M. Around 10:20 P.M., Miller handed the desk officer a piece of paper on which the attorney had written, “I represent Cory Sexton. Please cease any questioning of Corey Sexton immediately.” The note was. addressed to both the desk officer and Marchlones. The desk officer testified that he “forwarded” the note on to Marchlones. After presenting the desk officer with this note, Miller then placed a number of telephone calls from his mobile telephone trying to find defendant. Miller’s attempt to locate defendant was unsuccessful.
After the polygraph examination ended, the examiner informed defendant that the polygraph indicated that defendant was not being truthful about the shooting. According to the examiner, defendant then made the following statement (defendant’s fourth statement):
. I picked up the gun and was holding the gun and aiming it at his body. ... I was about four feet away. He reached down for the gun, put it to his forehead, everything went blank, and I pulled the trigger. He didn’t pull the trigger. I did. I knew the gun was loaded. I yelled, “I killed my .... fucking cousin.”
Marchlones testified that he overheard this admission. Marchlones then placed defendant under arrest and read him his Miranda rights. Marchlones testified that defendant waived those rights and repeated the story he had told the polygraph examiner. This fifth and final statement was made at about 11:35 P.M. Defendant was then returned to the Hazel Park police station, where he spoke with his attorney for the first time at approximately 12:30 A.M.
In our previous opinion, we concluded that defendant’s first three statements could be entered into evidence. That holding was unaffected by the Supreme Court’s holding. Our analysis, therefore, is focused solely on defendant’s final two statements.
n
Defendant raises a two-pronged challenge to the admissibility of the statements. First, defendant argues that his waivers of Miranda rights were inef fective because they were involuntary. Second, he argues that the two statements were not voluntarily made.
A
We begin our analysis of the waiver issue by looking to see if defendant was in custody at the time the waivers were made. Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966) (observing that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination”). Accord People v Blackburn, 135 Mich App 509, 517; 354 NW2d 807 (1984). If defendant was not in custody at the time, then Miranda is not applicable. Oregon v Mathiason, 429 US 492, 495; 97 S Ct 711; 50 L Ed 2d 714 (1977) (observing that the Miranda warnings need be given only “where there has been such a restriction on a person’s freedom as to render him ‘in custody’ ”).
With respect to the fifth statement, there is no question that defendant was in custody when it was made, as Marchlones testified that he placed defendant under arrest just before taking this statement. The fourth statement, however, was made just before defendant was arrested. Accordingly, we must examine the totality of the circumstances surrounding defendant’s detention in order to determine if he was “deprived of his freedom of action in a meaningful way. . . . The key question is whether the defendant could reasonably believe he was not free to leave.” Blackburn, supra at 518. Accord People v Williams, 171 Mich App 234, 237; 429 NW2d 649 (1988). After reviewing the record, we conclude that defendant could have reasonably believed he was in custody when he made his fourth statement. The statement was taken from defendant at the Southfield police station. The statement was made at approximately 10:30 P.M., after defendant had undergone interrogation for approximately eight hours. See United States v McKinney, 88 F3d 551, 554 (CA 8, 1996) (noting that the length of the interrogation and the site of the interrogation are two factors to be considered when evaluating whether a detention was custodial). Further, the character of the interrogation can best be described as accusatory. See Deans v Hetzel, 15 F Supp 2d 1067, 1071 (D Kan, 1998). Defendant was repeatedly told that his version of the shooting was untrue and not in accord with the known facts. He was also told by the polygraph examiner that the examination indicated that he had been lying. See LaFave & Israel, Criminal Procedure (2d ed), §' 6.6(f), p 323 (“And surely a reasonable person would conclude he was in custody if the interrogation is close and persistent, involving leading questions and the discounting of the suspect’s denials of involvement.”). We believe a reasonable person in defendant’s place would also have understood by the time the polygraph examination was administered that he was being interrogated as a suspect, not as a witness. As the United States Supreme Court observed in Stans bury v California, 511 US 318, 325; 114 S Ct 1526; 128 L Ed 2d 293 (1994):
[A]n officer’s views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be among many factors that bear upon the assessment whether that individual was in custody, but only if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.
Defendant had just been questioned about the shooting while hooked up to a polygraph machine. He was at the second police station he had been in that night, in an area not open to the public. He had been told that the polygraph examination showed that he had lied when denying culpability in the killing. We believe that a reasonable person in the same circumstances would understand both that he was the suspect of the investigation and that his freedom to leave was severely restricted.
We also note that defendant had been held incommunicado up to the time he made his final two statements. His request to telephone his father had been denied, and both his father and his attorney had been denied access to him. Along with the other factors just examined, we believe these circumstances would convey to a reasonable person the notion that the interrogation was entirely under the control of the police. See McKinney, supra at 554 (observing that “whether the atmosphere of questioning was police dominated” is relevant to the determination if a suspect is in custody); Hetzel, supra at 1071. Finally, we believe that defendant’s arrest following the questioning also weighs in favor of finding that he was in custody when the fourth statement was made. McKinney, supra at 554.
B
“Statements of an accused made during custodial interrogation are inadmissible unless the accused voluntarily, knowingly, and intelligently waives his Fifth Amendment rights.” People v Howard, 226 Mich App 528, 538; 575 NW2d 16 (1997). Whether a waiver is deemed voluntary is determined by examining the totality of the circumstances surrounding the interrogation. Moran v Burbine, 475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410 (1986); People v Garwood, 205 Mich App 553, 556; 517 NW2d 843 (1994).
We believe that whether the Miranda waivers at issue were voluntary is a close question. As previously noted, defendant was held incommunicado for over nine hours, and subjected to a series of accusatory interrogations. This is the type of coercive police behavior that was of particular concern to the Miranda Court. Miranda, supra at 476. Conversely, defendant did expressly waive his Miranda rights in both a written and an oral statement. There is also no evidence that defendant was subjected to any physical pressure. For example, he apparently was given food and something to drink at his request. Given these circumstances, we conclude that although there is evidence of police coercion, the Miranda waivers cannot be characterized as involuntary.
m
A
A finding that the Miranda waivers were voluntary, however, does not mean that the two statements necessarily pass constitutional muster. As the United States Supreme Court observed in Miller v Fenton, 474 US 104, 110; 106 S Ct 445; 88 L Ed 2d 405 (1985), “even after holding that the Fifth Amendment privilege against compulsory self-incrimination applies in the context of custodial interrogations, . . . the Court has continued to measure confessions against the requirements of due process.” Accord Colorado v Connelly, 479 US 157, 163; 107 S Ct 515; 93 L Ed 2d 473 (1986) (“The Court has retained this due process focus, even after holding . . . that the Fifth Amendment privilege against compulsory self-incrimination applies to the States.”); New York v Quarles, 467 US 649, 655, n 5; 104 S Ct 2626; 81 L Ed 2d 550 (1984) (“As the Miranda Court itself recognized, the failure to provide Miranda warnings in and of itself does not render a confession involuntary, . . . and respondent is certainly free on remand to argue that his statement was coerced under traditional due process standards.” [emphasis added]). Defendant argues that the statements were involuntary under a due process analysis. We agree.
B
Whether a statement is deemed to be voluntary under the Fourteenth Amendment is “determined using a totality-of-the-circumstances analysis.” Sexton, supra, 458 Mich 66. Accord Haynes v Washington, 373 US 503, 513; 83 S Ct 1336; 10 L Ed 2d 513 (1963). While the issue of the voluntariness of a waiver under Miranda also requires an examination of the applicable circumstances, this does not mean that the two examinations are necessarily coextensive. In other words, the constellation of relevant circumstances are not identical for each analysis. But see Derrick v R S Peterson, 924 F2d 813 (CA 9, 1991). The difference stems from the difference in the central question being asked. In making the Miranda analysis, the question is whether the waiver was voluntary; in the Fourteenth Amendment analysis, the question is whether the confession was voluntary, or whether it was obtained in circumstances that “shock[] the sensibilities of a civilized society.” Moran, supra at 433-434.
With regard to the conduct of the police vis-á-vis a defendant’s attorney, Moran indicates that such conduct is not relevant to the question of the voluntariness of the Miranda waiver, but is relevant to the question whether the defendant was deprived of the fundamental fairness that is guaranteed by the Due Process Clause. See also Sexton, supra at 65-66.
In Moran, the defendant was unaware that (1) his sister had called the Public Defender’s Office to retain counsel for him, (2) an attorney had called the police holding the defendant and informed an unidentified person that the defendant was represented by another attorney in the office, and that the attorney on the phone would represent the defendant if he were to be interrogated, and (3) the unidentified person had told the attorney on the phone that the police would not be questioning the defendant that night. The Moran Court observed that the voluntariness of the Miranda waiver was not at issue because “the record is devoid of any suggestion that police resorted to physical or psychological pressure to elicit the statements.” Id. at 421. The Moran Court did examine the handling of the defendant’s attorney, but only did so in the context of examining whether the waiver was knowingly and intelligently made:
Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident. Nor was the failure to inform respondent of the telephone call the kind of “trick[ery]” that can vitiate the validity of the waiver. Granting that the “deliberate or reckless” withholding of information is objectionable as a matter of ethics, such conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.
[W]hile we share respondent’s distaste for deliberate misleading of an officer of the court, reading Miranda to forbid police deception of an attorney “would cut [the decision] completely loose from its own explicitly stated rationale.” [Id. at 423-424 (citations omitted; emphasis added).]
However, the Moran Court did consider the handling of the defendant’s attorney in the context of its due process examination. Id. at 432. Although the Moran Court did not find a due process violation, it did note that under different circumstances police handling of retained counsel “might rise to a level of a due process violation.” Id.
For the Fourteenth Amendment analysis, the following factors should also be considered:
the age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was physically abused; whether the suspect was threatened with abuse. [People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988).]
Looking at the totality of the circumstances, we conclude that neither defendant’s fourth nor fifth statement was voluntary. Attorney Miller first tried to contact those questioning defendant sometime after 5:00 P.M. Even after Miller arrived at the Hazel Park police station, he was intentionally kept from contacting defendant either directly or indirectly. Indeed, he was actually misinformed about defendant’s location. Ultimately, Marchlones was informed of Miller’s attempts to contact defendant. However, Marchlones decided that he would not pass that information on to defendant, who was at that time in the midst of the crucial polygraph examination. All of Miller’s requests that defendant’s interrogation be stopped until Miller could speak to him were ignored. The desk officer indicated that he delayed informing defendant about Miller’s presence because the officer did not want defendant’s interrogation to be interrupted. We agree with the Michigan Supreme Court that such behavior on the part of the police is “reprehensible.” People v Wright, 441 Mich 140, 155; 490 NW2d 351 (1992). An attorney’s attempt to consult with a client is not an unwarranted interruption to the criminal justice process, and attempts to frustrate such contact must not be encouraged.
Further, the prolonged and accusatory character of the interrogation, and the holding of defendant incommunicado, contributed to establishment of a coercive environment. See id. at 168-170 (Brickley, J, concurring), and cases cited therein; People v DeLisle, 183 Mich App 713, 721; 455 NW2d 401 (1990). Defendant, who was isolated from any familial or legal support, was repeatedly told that his statements denying culpability were unsatisfactory. There is also evidence that Marchlones was aware that defendant had no previous experience with the police, including the unique experience of undergoing a police polygraph examination.
Testimony was also presented at the hearing on the motion to suppress that defendant has a condition known as auditory processing lag. Defendant’s school psychologist testified that as a result of this disability, defendant “doesn’t always understand what is said to him. ... He hears but he doesn’t always integrate what he is hearing.” Both Marchlones and the polygraph examiner testified that they had read the Miranda warnings to defendant. The fact that defendant did not indicate to the officers that he was confused is not dispositive. As the psychologist testified, if defendant did not understand something told to him, he is likely to just acquiesce, especially when the person conveying the information is an adult. The psychologist also testified that defendant’s IQ is 72. This means that defendant’s intellectual capacity falls into the category of borderline intellectual functioning. Diagnostic and Statistical Manual of Mental Disorders (DSM-TV) (4th ed) (Washington, DC: American Psychiatric Ass’n, 1994), p 684.
Considering the totality of these circumstances, we are left with the firm and definite conviction that the trial court erred in finding that defendant’s fourth and fifth statements were voluntary. DeLisle, supra at 719. The attendant circumstances establish that defendant’s confessions were not freely and voluntarily made. Haynes, supra at 513. Therefore, we affirm our previous holding that the trial court’s order deny ing suppression of these two statements must be reversed.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Fitzgerald, P.J., concurred.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
The type of questioning that defendant was subjected to clearly fits the definition of "interrogation” established by the United States Supreme Court in Rhode Island v Innis, 446 US 291, 300-301; 100 S Ct 1682; 64 L Ed 2d 297 (1980).
In People v Hill, 429 Mich 382; 415 NW2d 193 (1987), the Michigan Supreme Court expressly rejected the so-called “focus test” of Escobedo v Illinois, 378 US 478; 84 S Ct 1758; 12 L Ed 2d 977 (1964). An examination of whether the knowledge that one is a suspect affects a reasonable person’s view of his freedom of action does not conflict with the holding of Hill. We are not examining the police officer’s subjective view of defendant, but rather whether that view “affect[s] how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her” freedom to leave. Stansbury, supra at 325.
See also United States v McCurdy, 40 F3d 1111, 1118 (CA 10, 1994) (observing that a court reviewing the admissibility of a defendant’s statements “must determine both whether the officers complied with Miranda .. . and whether the defendant’s post Miranda statements were voluntary within the meaning of the due process clause”); United States v Bradshaw, 290 US App DC 129, 133; 935 F2d 295 (1991) (observing that the Due Process Clause of the Fourteenth Amendment “requires that a confession be voluntary quite apart from whether or not Miranda’s prophylactic procedures are followed”); LaFave & Israel, Criminal Procedure (2d ed), § 6.1(c), p 293 (“This is not to suggest. . . that today the admissibility of an incriminating statement is determined only by application of the Miranda rules .... As for the ‘voluntariness’ due process test, it is always worthy of consideration . . . .”).
The Derrick court examined the voluntariness of a confession under both Miranda and the Due Process Clause of the Fourteenth Amendment. The court first concluded that the defendant’s confession was voluntary under the Due Process Clause. Id. at 819. It then stated that “because we have already concluded that [the defendant’s] confession was voluntary under the fourteenth amendment, we hold that his waiver of his Miranda rights was voluntary.” Id. at 820. We believe that this approach is misguided.
As support for its handling of the voluntariness issue, the Derrick court quoted the following passage from Connelly. “There is obviously no reason to require more in the way of a “voluntariness” inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context.” Derrick, supra at 820, quoting Connelly, supra at 169-170. We do not believe that this statement means that there is but one voluntariness examination that needs to be made under both Miranda and the Fourteenth Amendment. In Connelly, the Court was addressing the defendant’s assertion that because his “mental state ... at the time he made the confession, interfered with his ‘rational intellect’ and his ‘free will,” his confession was involuntary under both Miranda and the Fourteenth Amendment. Connelly, supra at 159. The Connelly Court concluded that absent any showing of coercive police activity, the defendant’s psychosis alone did not justify a finding that the confession was involuntary under the Due Process Clause. Id. at 164. “Only if we were to establish a brand new constitutional right—the right of a criminal defendant to confess to his crime only when totally rational and properly motivated— could respondent’s present claim be sustained.” Id. at 166.
It was in this context that the Court observed that “[tjhere is obviously no reason to require more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context.” Accordingly, we conclude that the Connelly Court was indicating that there was no reason to require that a defendant’s waiver of his Miranda rights be invalidated “whenever the defendant feels compelled to waive his rights by reason of any compulsion, even if the compulsion does not flow from the police.” Id. at 170. However, holding that the “free will” rationale would not be applied in either the Miranda or the due process examinations is not the same as saying that the two voluntariness examinations are coextensive.
While there is no direct evidence that the desk officer intentionally misled Miller about defendant’s location, there is also no evidence that the officer ever attempted to determine defendant’s whereabouts. In fact, the officer testified that when Marchlones called him around 10:00 p.m., he never asked Marchlones where he was.
We also agree with the trial court that “there is no excuse for [the desk officer’s] failure to answer honestly Miller’s inquiries as to defendant’s whereabouts.”
When asked by defense counsel if Marchlones had any knowledge of any previous contact by defendant with the criminal justice system, the officer responded that to the best of his knowledge, defendant had no such contact. | [
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Per Curiam.
Respondent appeals as of right from a judgment of the Michigan Tax Tribunal ordering respondent to refund taxes assessed from January 1, 1990, through December 13, 1990, on nonresident shareholders’ distributive shares of petitioner’s net profits. We affirm.
Petitioner is a Michigan subchapter S corporation with nonresident shareholders. On December 13, 1990, the Legislature passed 1990 PA 283, which amended subsection 110(2)(b) of the Income Tax Act, MCL 206.110(2)(b); MSA 7.557(1110)(2)(b), to provide for income tax liability for nonresident shareholders of Michigan subchapter S corporations, based on the shareholders’ distributive shares of the corporations’ net profits. Before the December 14, 1990, effective date of the amendment of subsection 110(2)(b), nonresident shareholders of Michigan sub-chapter S corporations were not subject to income tax liability for their share of the corporations’ net profits. Bachman v Dep’t of Treasury, 215 Mich App 174, 182; 544 NW2d 733 (1996). However, as amended, subsection 110(2)(b) clearly imposes tax liability on petitioner’s nonresident shareholders for their distributive shares.
The Legislature indicated that the amendment of subsection 110(2)(b) by 1990 PA 283 was to take immediate effect, which occurred when the act was filed with the Secretary of State on December 14, 1990. Pursuant to the amendment, respondent assessed and collected income tax for petitioner’s nonresident shareholders’ distributive share of the subchapter S corporation’s net profits for the entire 1990 calendar year. Petitioner paid $86,209 in income tax for its nonresident shareholders and thereafter filed a petition for a refund on the basis of its position that respondent was only entitled to collect taxes for income earned from December 14, 1990, the effective date of the amendment, through December 31, 1990. The Michigan Tax Tribunal agreed with petitioner’s position and ordered respondent to refund all the taxes paid pursuant to the amendment for the entire 1990 calendar year, except for the portion attributable to the period of December 14, 1990, through December 31, 1990.
The issue before us is whether the Tax Tribunal correctly determined that the amendment subjecting nonresident shareholders of Michigan subchapter S corporations to tax liability applied to the entire 1990 tax year or applied only to income earned from December 14, 1990, through December 31, 1990. In the absence of fraud, this Court’s review of a decision of the Tax Tribunal is limited to determining whether the tribunal erred in applying the law or adopted a wrong principle. Michigan Bell Telephone Co v Dep’t of Treasury, 445 Mich 470, 476; 518 NW2d 808 (1994). The tribunal’s factual findings are conclusive if supported by competent, material, and substantial evidence on the whole record. Id.
As amended, subsection 110(2) provides:
For a nonresident individual, estate, or trust, all taxable income is allocated to this state to the extent it is earned, received, or acquired in 1 or more of the following ways:
(a) For the rendition of personal services performed in this state.
(b) As a distributive share of the net profits of a business[ ], profession, enterprise, undertaking, or other activity as the result of work done, services rendered, or other business activities conducted in this state, except as allocated to another state pursuant to the provisions of sections 111 to 114 and subject to the credit provisions of section 256. [MCL 206.110(2)(a) and (b); MSA 7.557(1110)(2)(a) and (b).]
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). If reasonable minds can differ with respect to the meaning of a statute, judicial construction is appropriate. Adrian School Dist v Michigan Public School Employees’ Retirement System, 458 Mich 326, 332; 582 NW2d 767 (1998). Tax statutes are construed most strongly against the government where there is doubt over their interpretation. Comerica Bank-Detroit v Dep’t of Treasury, 194 Mich App 77, 92; 486 NW2d 338 (1992). Here, the language of the statute itself is not at issue. Rather, we must determine the meaning of the provision that the amendment was to take immediate effect when filed with the Secretary of State on December 14, 1990.
Respondent asserts that applying the amendment to the entire 1990 tax year is not a retroactive application of the amendment because taxes are calculated once a year at the conclusion of the tax year, and the amendment was adopted within the 1990 tax year. We disagree. A retroactive or retrospective statute “ ‘is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability with respect to transactions or considerations already past.’ ” In re Certified Questions (Karl v Bryant Air Conditioning Co), 416 Mich 558, 571; 331 NW2d 456 (1982) (citation omitted). The December 14, 1990, amendment created a new obligation and a new duty in that it required nonresident shareholders of subchapter S corporations to pay taxes on their distributive share of the net profits of the corporation when they were not required to do so before the amendment. Contrary to respondent’s argument, applying the amendment to the entire 1990 tax year would have a retroactive effect because it created a new obligation with respect to “transactions or considerations already past,” that is, payment and receipt of shareholder dividends before the effective date of the amendment.
The question to be determined, then, is whether the Legislature intended the amendment to apply retroactively to the entire 1990 tax year. Generally, statutory amendments are presumed to operate prospectively. Cipri v Bellingham Frozen Foods, Inc, 213 Mich App 32, 37; 539 NW2d 526 (1995). An amendment that affects substantive rights will not be construed to apply retroactively unless the Legislature clearly expressed such an intent. Hurd v Ford Motor Co, 423 Mich 531, 535; 377 NW2d 300 (1985); Cipri, supra. Here, the Legislature did not expressly or impliedly indicate an intent to give retroactive effect to the amendment. Significantly, the language of the amendment does not expressly indicate an intent to give retroactive effect to the amendment. Had the Legislature intended the amendment to have retroactive effect for the entire 1990 tax year, it easily could have inserted words, such as “beginning in the 1990 tax year,” to express that intent, as it has done in numerous other tax statutes. See MCL 206.508(2); MSA 7.557(1508)(2), which was also amended by 1990 PA 283, MCL 206.261; MSA 7.557(1261), MCL 206.265; MSA 7.557(1265), MCL 206.273; MSA 7.557(1273). “Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there.” Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993). Furthermore, the legislative history of the amendment indicates that, although a proposal was made to include the phrase “beginning in the 1990 tax year,” that phrase was not included in the final public act.
As already stated, the rules of statutory construction provide that an amendment is presumed to operate prospectively unless the Legislature indicates a contrary intent. Hurd, supra at 535; Cipri, supra at 37. The Legislature, which is presumed to be familiar with such rules of statutory construction, Smeester v Pub-N-Grub, Inc (On Remand), 208 Mich App 308, 312; 527 NW2d 5 (1995), did not expressly or impliedly indicate an intent to give retroactive effect to the December 14, 1990, amendment of subsection 110(2)(b). Thus, in the absence of any expression of a contrary intent, and recognizing that any ambiguity in a tax statute must be construed against the government, Comerica Bank, supra at 92, we are persuaded that the Tax Tribunal correctly determined that the amendment should not have been applied retroactively to the entire 1990 tax year and that petitioner was entitled to a refund of the taxes assessed pursuant to the amendment from January 1, 1990, to December 13, 1990.
Affirmed.
The December 14, 1990, amendment of subsection 110(2)(b) eliminated the word “unincorporated” before the word “business.” | [
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Mackenzie, P.J.
Respondent Department of Treasury appeals as of right from a Michigan Tax Tribunal judgment holding that certain fees collected by petitioner Credit Acceptance Corporation do not constitute “gross receipts” under § 7 of the Single Business Tax Act, MCL 208.7; MSA 7.558(7). We reverse.
The facts are not in dispute. Petitioner’s business involves the collection of money due under installment sales contracts executed between automobile dealerships and automobile purchasers. Petitioner’s relationship with its automobile dealer customers is set forth in a uniform servicing agreement contract into which petitioner enters with each dealer. This contract characterizes petitioner as the “servicing agent” to collect sums owed by the automobile purchaser to the dealership. In exchange, petitioner is entitled to retain as its “servicing fee” twenty percent of all collections. The parties agree that the twenty percent servicing fee constitutes gross business receipts to petitioner and is accordingly subject to single business tax.
The servicing agreement between petitioner and its dealer-customers also provides that when automobile payments become delinquent, petitioner, “on behalf of the dealers . . . shall use reasonable efforts to repossess . . . and sell or otherwise liquidate the Financed Vehicle.” In addition to its twenty percent “servicing fee,” petitioner is authorized under the contract to “reimburse” itself for all collection costs expended by it in repossessing and reselling automobiles as necessary to collect defaulted debt.
The issue in this case is whether “reimbursement” to petitioner of repossession costs constitutes gross business receipts includable within its tax base under MCL 208.7; MSA 7.558(7).
MCL 208.7; MSA 7.558(7) defines “sale” and “gross receipts” for purposes of the single business tax as follows:
(I) “Sale” or “sales” means the gross receipts arising from a transaction or transactions in which gross receipts constitute consideration: . . . (b) for the performance of services, which constitute business activities ....
(3) “Gross receipts” means the sum of sales, as defined in subsection (1), and rental or lease receipts. Gross receipts does not include the amounts received in an agency or other representative capacity, solely on behalf of another or others but not including amounts received by persons having the power or authority to expend or otherwise appropriate such amounts in payment for or in consideration of sales or services made or rendered by themselves or by others acting under their direction and control....
In Stratton-Cheeseman Management Co v Dep’t of Treasury, 159 Mich App 719, 725; 407 NW2d 398 (1987), this Court held that the “definition [of gross receipts] clearly excludes from gross receipts the amount received by a taxpayer solely in an agency or representative capacity, while including amounts received as consideration for the performance of personal services.”
We conclude that the “reimbursement” in this case constitutes consideration for the performance of personal services. Article II of the servicing agreement requires the automobile dealer to transfer retail installment sales contracts to petitioner “for administration, servicing and collection.” The dealer’s security interest in the financed vehicle is assigned to peti tioner, and petitioner’s name is placed as lienholder on all titles to financed vehicles. If any payments on an installment sales contract are made to the dealer after the contract has been transferred to petitioner, these payments must be forwarded by the dealer to petitioner. In the event an automobile purchaser defaults under a contract, petitioner is free to repossess and sell the financed vehicle, following such “procedures as it deems necessary or advisable.” Petitioner is granted a security interest in “all [rjeceivables now or hereafter transferred to [petitioner] pursuant to this Agreement . . . together with all proceeds.”
The consideration petitioner pays to its dealer-customers for their present transfer of the installment sales contracts and associated security interests is petitioner’s promise to pay eighty percent of the amounts subsequently collected or received on each contract to the originating dealer, net of all collection costs, which include those associated with repossession and sale of defaulted collateral.
In short, for all practical purposes, upon transfer of the retail installment sales contract to petitioner, petitioner becomes the contract holder, with all the incidents of a creditor under the contract, including a security interest in the financed vehicle, and all the incidents of ownership of the debt and of security for its payment. The sums petitioner subsequently collects are for its own account rather than as an “agent” for the dealer.
This Court reviews the decision of the Tax Tribunal to determine whether the tribunal made an error of law or adopted a wrong legal principle. Schubert v Dep’t of Treasury, 212 Mich App 555, 558; 538 NW2d 447 (1995). The Tax Tribunal in this case applied improper principles of contract law when it classified the relationship established by the servicing agreement between petitioner and its dealer-customers. The agreement was in fact a sales contract and not an agency agreement.
The repossession costs at issue here are funds expended by petitioner to foreclose on collateral for payment of a debt owned by petitioner pursuant to prior transfer from a dealer-customer. Amounts retained by petitioner for these repossession costs, whether they are referred to by the parties as “reimbursement” or not, constitute consideration received by petitioner for the repossession and sale of collateral, and accordingly constitute a portion of petitioner’s gross receipts just as does petitioner’s twenty percent fee.
Reversed.
Bandstra, J., concurred. | [
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] |
Per Curiam.
Defendant, Larry Lane, was charged in a two-count information with the crimes of conspiracy to utter and publish a forged check (Count I — MCLA § 750.505 [Stat Ann 1954 Rev § 28.773]) and uttering and publishing a forged check (Count II — MCLA § 750.249 [Stat Ann 1962 Rev § 28.446]). Defendant was tried before a jury in the Genesee County Circuit Court and was found guilty on both charges.
Defendant raises only one question on this appeal. He claims that the trial court abused its discretion in refusing to allow him a continuance at the conclusion of the proofs in order for him to obtain records of a justice of the peace for the purpose of impeaching a “key” prosecution witness who had previously testified on cross-examination that she had never been in any trouble. Defendant submits that because that witness’ testimony was primarily responsible' for convincing the jury of the defendant’s guilt, he should have been afforded every reasonable opportunity to impeach her and attack her truth and veracity.
A review of the record by this Court, however, does not convince us that the trial court abused its discretion. The trial court allowed a police officer to testify that the witness had one prior conviction involving bad cheek charges, and another charge pending. The witness’ ex-husband testified that she had prior involvement in bad check cases. The testimony of a bank clerk, who worked where the witness and her ex-husband had a checking account, was excluded after testimony was taken on a separate record because it was cumulative and because the bank clerk had no personal knowledge that the witness had ever been personally informed that her account was overdrawn.
The scope of the impeaching evidence of prior crimes is a matter within the sound discretion of the trial court. A conviction will not be reversed unless the discretion of the trial court is abused. People v. Ely (1943), 307 Mich 452; People v. Kruper (1954), 340 Mich 114.
Further, it is well settled that while the previous life and character of a witness may be inquired into to elicit facts which will aid the jury in determining the credence to be attached to a witness’ testimony, it is the duty of .the courts to keep such examination within reasonable bounds. In the present case there was abundant evidence already introduced which weighed heavily against the credibility of the witness. The trial judge did not abuse his discretion in deciding that further evidence would be unnecessarily cumulative.
Affirmed. | [
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Per Curiam.
Defendant William Wright and a co-defendant, Jonas Powell, were arrested and charged with robbery armed, contrary to MOLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797), following the robbery of a taxicab driver in the men’s restroom of a service station in February, 1967. Both defendants were found guilty after jury trial in recorder’s court for the city of Detroit. Defendant Wright was sentenced to from four to ten years in prison and has appealed.
Defendant questions the sufficiency of the evidence offered by the people in support of the jury’s verdict of guilty. An examination of the record on appeal indicates that the evidence was such that, if believed, a jury might find the defendant guilty as charged.
The testimony of the complaining witness as to the use of a dangerous weapon, a knife, was sufficient under the holding of this Court in People v. Boxx (1969), 16 Mich App 724.
The finding of the jury is affirmed. | [
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Per Curiam.
After a preliminary examination, the defendant, Lorenzo Carter, was bound over 'on a charge of first-degree murder of Newessie Gardner, Jr. MCLA § 750.316 (Stat Ann 1954 Rev § 28-.548). He was arraigned on the information on April 12, 1968, stood mute, and a plea of not guilty was entered for him by the court.
On June 10, 1968, Carter again appeared in court and a count was added to the information charging him with the crime of manslaughter. MCLA § 750-.321 (Stat Ann 1954 Rev § 28.553). He pled guilty to the charge of manslaughter, and on July 26,1968, was sentenced to a term of 5 to 15 years in state prison.
Carter was represented at the preliminary examination and at all of his appearances in court through sentencing by retained counsel.
By communication mailed to the trial court on August 28,1968, Carter alleged that he was indigent and requested the appointment of counsel to represent him upon appeal. On September 10, 1968, appellate counsel was appointed. On February 13, 1969, Carter filed a petition to withdraw his plea of guilty. This petition was supported by his affidavit-averring that his sense of hearing is impaired and that when he pled guilty to the charge of manslaughter, he did not understand the judge’s questions, that he thought that the charge of first-degree murder would be reduced to manslaughter, and he would have a trial on the manslaughter charge; further, he averred that he killed Newessie Gardner, Jr., in self-defense. The. petition was also supported by affidavits of two physicians attesting to Carter’s auditory deficiency, and that he requires the use of a hearing aid, which, according to Carter’s affidavit, was not functioning properly at the time he pled guilty.
An evidentiary hearing was held on March 14, 1969, at which Carter appeared and testified in support of the allegations in his petition.
When his plea of guilty was tendered, Carter was examined by the trial judge. Carter was extensively questioned and responded at length regarding the circumstances of the slaying. His responses to the judge’s questions satisfy us that he understood the questions the judge was asking. His statements at that time, .while tending to support his claim that. he was provoked by the victim, negative the claim that he acted in self-defense; when he pled.guilty, Carter .acknowledged that the victim had not threatened to do him bodily harm.
At the conclusion of the evidentiary hearing the trial''judge stated: “The transcript [of the guilty plea hearing] is demonstrative of the fact that Mr. Carter did understand everything that was said to him”, and then stated his conclusion that the petition; was without merit. The petition to withdraw guilty plea was thereupon denied.
We have examined the transcripts of the June 10, 1968, guilty plea hearing and of the March 14, 1969, post-conviction hearing and are persuaded that Cárter’s guilty plea was properly accepted, that he understood the questions put to him and the nature of the proceedings, and that the trial judge did not clearly err in so finding at the conclusion of the post-conviction hearing.
Affirmed. | [
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Danhop, J.
On January 1,1967 a double homicide was committed at a gasoline service station in Eaton county. The victims were the service station attendant and a deputy sheriff. Both men died from multiple gunshot wounds. On January 7, 1967 the 19-year-old defendant was charged with the first-degree murder of-'Harold Peterson, the service station attendant, CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548). On December 28,1967, following a 12-day trial, defendant was convicted by a jury of first-degree murder. On January 18, 1968 he was sentenced to prison for the rest of his natural life. A motion for a new trial was denied May 9, 1968.
Defendant brings this appeal as a matter of right, GOR 1963, 806.1, and presents several questions for review. Initially, he asserts that there was insufficient evidence to support the conviction. It is true that there was no eyewitness testimony that the defendant or his confederate shot Mr. Peterson. However, there was a plethora of circumstantial evidence showing that the defendant and his confederate committed an armed robbery, and that defendant or his confederate killed Mr. Peterson in the perpetration of it. Therefore, we hold that there was sufficient evidence to support the defendant’s conviction.
Defense counsel argues additionally that the trial judge erred when instructing on the felony murder law, because he did not set forth the essential elements of robbery. Thus, the jury might have thought that robbery consists merely of theft and may not have known that in order to convict one of robbery it is necessary to show that the larceny was committed by force and violence, assault, or putting the victim in fear.
However, the defense counsel said in his brief that the trial judge correctly stated the general rule as to the requisites of the felony murder law and “It would seem to necessarily follow from the evidence that if in fact there was a robbery it would have to have been armed.” We agree. We find from the evidence presented that the jury could have convicted the defendant under the felony murder law only if it thought Harold Peterson was assaulted with a gun and subjected to extreme force and violence resulting in his death by defendant and his companion acting in concert during the perpetration of an armed robbery. Therefore, we do not find any reversible error in the instructions on the felony murder law in this case, a more specific instruction than that given by the judge not having been requested and no objection to the judge’s instruction having been voiced by defense counsel. See People v. Gardner (1968), 13 Mich App 16.
The defense counsel also alleges that the trial court erred in allowing the indorsement of 18 additional witnesses on the information, and in denying defendant’s motion for an additional continuance beyond the two weeks granted on the court’s own motion. The issue is defendant’s right to adequate time to prepare his defense.
The pretrial summary statement dated July 6, 1967 reads in part:
“5. WITNESSES: A. For the Prosecution: Those endorsed on the information, together with others whose names will be furnished to the defense counsel not less than thirty days prior to trial.
“This pretrial summary statement is binding upon the parties and no changes or additions will be made after this date without the consent of this court, pursuant to written application of the parties for cause shown.”
Trial was originally set for November 27, 1967. On November 11, 1967 defense counsel received the names of 18 witnesses, including 10 police officers, whom the prosecution intended to indorse on the information. A hearing was held on the motion to indorse witnesses on November 22, 1967 at which time the motion was granted over defendant’s objection. However, the trial court continued the trial to commence December 11, 1967 so that the defense attorney would have the 30 days to prepare to rebut the testimony as agreed in the pretrial statement.
CLS 1961, § 767.40 (Stat Ann Cum Supp § 28.980) permits additional witnesses to be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine. Both People v. McCrea (1942), 303 Mich 213, and People v. Davis (1955), 343 Mich 348, reaffirmed that the ultimate question for a reviewing court is whether the trial court abused its discretion, with the burden ordinarily on the party asserting the abuse.
Defendant has shown no prejudice resulting from the indorsement of the additional witnesses. Defense counsel had the 30 days agreed to in the pretrial summary in which to interview the 18 additional witnesses. Defendant does not allege and the record does not suggest that the testimony of the additional witnesses had been previously suppressed. Therefore, we find that the trial judge did not abuse his discretion in allowing the indorsement of the additional witnesses, and in denying the defendant’s motion for an additional continuance.
The next allegation of error involved defendant’s motion challenging the array due to an imbalance in the jury panel as to sex, age, and employment. The trial court denied this motion, and we sustain his decision. The evidence falls short of proving that the jury selection statutes were not followed, or that there was a systematic exclusion of certain segments of the population from jury duty. Thus, this case is distinguishable from Robson v. Grand Trunk Western Railroad Company (1966), 5 Mich App 90.
The denial of defendant’s motion for a change of venue because of pretrial publicity is also alleged as error. While the New Year’s Day double homicide did receive extensive publicity initially, the publicity was not continuous and did not permeate the trial 11 months later. There was no denial of a fair trial such as existed in Sheppard v. Maxwell (1966), 384 US 333 (86 S Ct 1507, 16 L Ed 2d 600).
Lastly defendant alleges error in the denial of his motion to conduct the voir dire examination of prospective jurors separate and apart from one another until after a substantial number of defendant’s peremptory challenges had been exhausted. Defense counsel said in his brief that this question appears to be one of first impression in Michigan and that the voir dire examination necessarily requires the use of discretion by the trial judge. We find that the trial judge did not abuse his discretion.
The voluminous record in this case amply demonstrates that defendant’s trial was conducted in an exemplary manner. The trial judge, the people’s attorneys, and the defense attorneys all served expertly, courteously, and fairly, in the highest tradition of the legal profession.
Affirmed.
All concurred. | [
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Per Curiam.
On March 10, 1967, defendant was charged with unlawfully driving away a motor vehicle contrary to MCLA § 750.413 (Stat Ann 1954 Rev § 28.645).
At arraignment on the information, the defendant entered a plea of guilty to the lesser charge of attempted unlawfully driving away an automobile. He was sentenced and appealed this conviction on a variety of grounds, including the allegation that he was not responsible for the crime. He subsequently made a motion to withdraw his guilty plea which was heard and granted and a trial date was set in the Detroit recorder’s court. Defendant was found guilty at a nonjury trial. Upon denial of a motion for a new trial, defendant appeals.
Defendant avers in his first assignment of error that the trial judge committed prejudicial error by failing to disqualify himself after he had previously taken the defendant’s guilty plea. However, a careful review of the transcript does not reveal that any objection was made to the court’s qualification to hear this case before or during the trial. The transcript reveals that the court carefully questioned the defendant regarding his waiver of a jury trial. The defendant not only stated on the record that he did not desire a jury, but that he wished the particular judge to sit on the bench because he would be fair.
The law on this question has been clearly stated:
“Although the practice of the recorder’s court to assign a case for trial before the same judge who acted as examining magistrate is not to be commended, yet, in the absence of any claim of bias or prejudice on the part of the judge, he cannot be held to be disqualified and any question in regard thereto, not raised at the trial, will not be considered for the first time on appeal.” 2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 550, p 667.
Since the defendant did not object at the proper time in order to preserve his question for appeal, and since he demanded and received the forum he requested, it cannot be said that the failure of the trial judge to disqualify himself constituted . reversible e^ror. .
In his second allegation- of error defendant claims that the prosecution failed to establish his guilt beyond a reasonable doubt. The facts reveal that the defendant was observed taking possession of the stolen automobile and that he was inside it while it was being driven away wilfully and without authority. The finding of these elements, as set forth in People v.. Limon (1966), 4 Mich App 440, are sufficient to establish the commission of the crime.
A review of the testimony does not substantiate defendant’s claim that there was no competent, evidence upon which to convict'.the defendant. If the testimony of the witnesses was believed, the trier of fact could find that the defendant’s guilt was established beyond a reasonable doubt. People v. Dolphus (1966), 2 Mich App 229.
The judgment of the lower court is therefore affirmed. | [
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Danhof, C.J.
Defendant, Jimmie Lee Mc-Cracken, was convicted by a jury of arson, contrary to MCL 750.72; MSA 28.267, on May 31, 1977. He was sentenced on July 5, 1977, to a prison term of from 7 to 20 years and now appeals as of right.
Defendant first contends that he was denied his Sixth Amendment right to a speedy trial. In People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), and People v Collins, 388 Mich 680; 202 NW2d 769 (1972), the Michigan Supreme Court adopted the balancing test set forth by the United States Supreme Court in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). That test requires consideration of four factors in determining whether a defendant was denied his right to a speedy trial: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right and (4) prejudice to the defendant resulting from the delay. The first factor, length of the delay, is considered as a triggering mechanism whereby inquiry into the other factors in the balancing test is not made unless the delay is such that a presumption of prejudice arises. The Michigan Supreme Court has held that the presumption of prejudice arises where the delay exceeds 18 months. People v Collins, supra, 695. The 31 month delay between defendant’s arrest and trial in the present case thus triggers our application of the four-factor balancing test.
In the present case, defendant was arrested on October 28, 1974, and trial was scheduled for January 24, 1975. The trial was adjourned and rescheduled a total of 18 times during the period from January, 1975 to March, 1977. Three of the adjournments resulted from the defense counsel’s inability to attend trial on the scheduled dates, while the remaining adjournments were for "undisclosed reasons” and are therefore attributable to the state. People v Bennett, 84 Mich App 408; 269 NW2d 618 (1978). A two-month delay during the summer of 1976 was caused by defendant’s failure to appear for a scheduled preliminary examination. He was also unavailable for nearly two months in the fall of 1978 because he was being tried in an unrelated case. We find only seven months of the delay were attributable to defendant.
During the period from October 28, 1974, to April 26, 1977, defendant never asserted his right to a speedy trial. On the latter date he filed a motion to dismiss for lack of a speedy trial. The motion was argued on May 16 and 17, 1977, and denied. The trial commenced on May 17. A defen dant’s failure to assert his right to a speedy trial does not constitute a waiver of that right; however, it does make it difficult to prove that he was denied a speedy trial. People v Collins, supra, 692. The facts in the present case suggest that defendant did not want a speedy trial. He was out on bail until January of 1977, when he was incarcerated due to an unrelated offense. Defendant’s assertion that he delayed his speedy trial motion because of the presecution’s tactics is incredible in view of the overall delay between arrest and trial.
The burden is on the prosecution in the instant case to demonstrate that defendant suffered no prejudice as a result of the delay. People v Collins, supra, 695. We believe that the prosecution, in its arguments contrary to defendant’s claims of prejudice, has met its burden. Defendant claims that the delay caused the loss of two important witnesses, who would have testified in his behalf, due to death and unavailability. The first such witness, defendant’s half-brother Thomas McCracken, who had died, allegedly would have rebutted the testimony of prosecution witness Michael Thomas. Loss of this impeachment testimony was not prejudicial however, because Thomas’s testimony was corroborated by two other prosecution witnesses. Defendant claims the other lost witness, Melvin Stinson, would have testified about a suspicious car present when the fire broke out. At the hearing on defendant’s motion to dismiss, defense counsel stated that he had never interviewed Mr. Stinson, did not know whether the man was alive or dead, and had attempted to subpoena him for the first time the day before. Under these circumstances, we refuse to accept defendant’s claim regarding the substance of Mr. Stinson’s testimony and find no prejudice in the loss of this witness. We also find no merit in defendant’s allegations that the delay caused domestic strife resulting in his divorce.
We conclude, based on an overall balancing of the Barker factors, that defendant was not deprived of his right to a speedy trial. Two of the factors, length of the delay and reason for the delay, favor defendant. We find these factors out-' weighed by the defendant’s failure to assert his right and lack of prejudice resulting from the delay.
Defendant next argues that certain evidence gathered at the scene of the fire was the product of an unlawful warrantless search and seizure and was improperly admitted over objection at trial. Defendant was accused of setting fire to his Fern-dale residence on the night of September 14, 1973. The Ferndale Fire Department put out the blaze and the disputed evidence, consisting of photographs and carpet samples, was obtained during an on-the-scene investigation into the cause of the fire conducted by a city fire inspector shortly after the fire was extinguished. Defendant relies on People v Tyler, 399 Mich 564; 250 NW2d 467 (1977), where the Court held, based on Federal cases and the Fourth Amendment, that a warrant is required for subsequent reentry and search of the premises once a fire has been extinguished and the firemen have departed. The case was appealed to the United States Supreme Court, which affirmed but expressed a different opinion as to when the need for a warrant arises:
"[People v Tyler] * * * may be read as holding that the exigency justifying a warrantless entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame. 399 Mich, at 579, 250 NW2d, at 475. We think this view of the firefighting function is unrealistically narrow, however. Fire offi cials are charged not only with extinguishing fires, but with finding their causes. Prompt determination of the fire’s origin may be necessary to prevent its recurrence, as through the detection of continuing dangers such as faulty wiring or a defective furnace. Immediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And, of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and the recovery efforts of the victims. For these reasons, officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional.” Michigan v Tyler, 436 US 499, 509-510; 98 S Ct 1942; 56 L Ed 2d 486 (1978). (Emphasis added.)
We follow the United States Supreme Court in matters of Federal constitutional interpretation, People v Martin, 78 Mich App 518; 260 NW2d 869 (1977), and therefore find that the search and seizure in the present case was proper. The search occurred within a reasonable time after the blaze was extinguished. See, People v Farnsley, 94 Mich App 34; 287 NW2d 361 (1979).
The third issue raised by defendant in this appeal is whether the trial court erred reversibly by permitting improper impeachment of his testimony concerning a collateral issue. Prosecution witness James Thomas testified that he borrowed money from a bank and that defendant had cosigned for the loan. Defendant, during cross-examination, denied any recollection of whether he had co-signed for the loan, but stated that ordinarily he would know if he had engaged in such a transaction. Over objection, the prosecutor was allowed to produce a bank employee who testified that defendant had indeed co-signed for the loan. The court responded to defendant’s claim that the matter was collateral to the issue at hand by stating that the evidence showed defendant’s lack of capacity to recall facts and was thus material.
Generally, a party who raises a collateral matter during the examination of a witness is bound by the answer of that witness. People v Lauzon, 84 Mich App 201; 269 NW2d 524 (1978). The trial court erred in allowing the bank employee’s testimony in the instant case under this rule, since whether or not defendant had co-signed the note was a collateral issue. However, we find that the error was harmless under the circumstances. The prosecutor attempted to impeach defendant for what he thought was a legitimate purpose. We cannot say that the error which resulted was so offensive to the maintenance of a sound judicial process that it could never be regarded as harmless. Furthermore, in view of the overwhelming evidence that defendant committed arson, we find that the error was harmless beyond a reasonable doubt. The physical evidence clearly indicated that the fire was set by someone, and three prosecution witnesses testified regarding defendant’s involvement in planning and carrying out the arson. See, MCL 769.26; MSA 28.1096.
Finally, defendant claims that his right to a fair trial was prejudiced by certain remarks and questions- of the prosecutor. None of the allegedly improper remarks were objected to at trial; therefore, only error which resulted in manifest injustice was preserved for appeal. MCL 769.26; MSA 28.1096, People v Clemons, 91 Mich App 68, 73; 282 NW2d 838 (1979), remanded for resentencing, 407 Mich 939 (1979). We have reviewed the record and find that there was no manifest injustice.
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Allen, J.
Plaintiffs, prisoners at Marquette State Prison, sought writs of habeas corpus from the Marquette Circuit Court alleging that defendant warden had forfeited their respective good time without due process of law. Following hearings held August 8, 1979, the court ordered good time restored to all four plaintiffs on grounds that the acts complained of did not constitute "serious acts of insubordination” within the meaning of MCL 800.33; MSA 28.1403. Subsequently, plaintiff Beck committed four additional violations. Hearing on the additional violations was held Decern ber 20, 1979, following which the court ruled that the conduct did not amount to "serious acts of insubordination” and entered an order restoring Beck’s forfeited good time. Because the legal issues raised in each of the four cases are virtually identical, the cases have been consolidated on appeal.
Defendant contends that the trial court erred in holding that plaintiffs’ acts were not "serious acts of insubordination” as that term is used in § 33 of the Michigan prison code, MCL 800.33; MSA 28.1403. Section 33 authorizes two methods by which good time may be taken away:
"(5) The commission of corrections may, by rules promulgated pursuant to Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Michigan Compiled Laws, prescribe how much of the good time earned under the foregoing provisions a convict shall forfeit for 1 or more infractions of the prison rules in any month.
"(6) For a serious act of insubordination, attempt to escape, or escape, the warden may, by special order, take away any portion of the whole of the good time made by a convict up to the date of the offense.”
Under this section good time may be taken away by order of the warden if the conduct complained of is an escape, an attempt to escape or a "serious act of insubordination”. Other less serious misbehavior may result in the forfeiture of good time if it is in violation of rules promulgated in compliance with the Administrative Procedures Act. Williams v Warden, Michigan Reformatory, 88 Mich App 782; 279 NW2d 313 (1979). At the time the incidents hereinafter described took place in the instant appeal, rules had not been promulgated. Thus, all of the forfeitures ordered by the warden in the instant appeal are sustainable only if the transgressions are serious acts of insubordination. In Williams, supra, 785, this Court interpreted § 33 as follows:
"The statute authorizes loss of good time by special order for serious acts of insubordination. We interpret this to mean that the offense must fulfill both criteria to be punishable under the statute. Thus an act which is unquestionably insubordinate, but which represents little, if any, threat to institutional order, may not result in forfeiture of good time by special order. By the same token, an infraction of the rules which, though serious, does not constitute the sort of open defiance of authority which is insubordination may not be summarily punished under this provision. To hold otherwise would lead to absurd results.”
At the outset it is important to set forth the several acts for which accumulated good time was forfeited by order of the warden. Different acts occurring at different dates under different circumstances resulted in different forfeitures of good time, as summarized in footnote 1 hereunder. When Williams, supra, was released in March 1979, Judges McDonald and Quinnell of the Marquette Circuit Court communicated with the Office of the Attorney General, Corrections Division, stat ing that based upon Williams, they (the judges) felt that certain types of conduct for which good time had been forfeited did not comport with the Williams decision. Accordingly, the judges, sua sponte, ordered defendant Warden of Marquette Prison to show cause why good time, previously forfeited in certain cases, should not be restored. On August 8, 1979, hearings were held on a number of cases, including the cases of plaintiffs Butler, Bolton, Lawson and Beck. Following the hearing, Judge Quinnell stated he would issue orders restoring good time to all four plaintiffs.
On the night following the héaring August 8th, and the trial court’s statement that good time would be restored to all four plaintiffs, disturbances broke out in F block with human excrement and urine being thrown en masse at officers when they stepped near certain cells. Plaintiff Beck was an active participant in the fracas. Over a period of three days four different officers were pelted with liquid and human waste by Beck. For the several incidents, two years of accumulated good time was forfeited of which 18 months was for the stabbing incident and six months was for the several throwings of liquid and human waste. On October 8, plaintiff Beck filed a petition for a writ of habeas corpus. Hearing on the petition was held December 20, 1979 before Judge Quinnell who, after reviewing the incidents involved stated:
”We have been around the block three or four times now on the meaning of what is a serious act of insubordination, and I don’t know that it would serve any particularly useful purpose to go through it again. I have previously held that the throwing of some liquid by a resident on a staff member at a time when the resident is locked in a cell and the staff member is outside the cell does not constitute a serious act of insubordination as that phrase has been interpreted in the statute. The conduct is reprehensible, it’s not to be condoned. It ought to be punished. And as of right now, of course, it would be punished because the Department has seen fit to promulgate rules against it.
"For the sake of the record, I am in the process of writing an opinion in another case, Leach against the Warden, which addresses that topic once again. So, as to the throwing of urine incidents, the three incidents on August 10, 11 and 12th, I find that that, that the incidents happened, but that nevertheless they are not serious acts of insubordination, such as would justify the forfeiture of good time. So, the orders of forfeiture will be set aside as to those three incidents.
"And as to the incident of August 12, 1979, in which the guard was, received minor cuts on his hands and arms by being scratched with the piece of plastic; that, it seems to me is getting a little bit closer to what the Legislature had in mind when they said a serious act of insubordination, because if we actually have some physical altercation and some physical harm being done to a staff member by means of cuts or scratches, even though they may be relatively minor, that, it would seem to me is more consistent with what the Legislature had in mind when they said serious acts of insubordination. So, as to that one incident, I find that it is a serious act of insubordination and the conviction will not be set aside as to that incident.”
Pursuant to the trial court’s statement, an order was entered January 24, 1980, restoring to plaintiff Beck six months of good time previously forfeited for misconduct acts occurring on August 10, 11 and 12, 1979. From this order and the orders of restoration entered September 6, 1979, defendant appeals of right.
Defendant does not contest the lack of properly promulgated rules which, under MCL 800.33(5); MSA 28.1403(5), would permit the forfeiture of good time credits, had the rules proscribed the behavior engaged in by the instant plaintiffs. Rather, defendant argues that the act of throwing urine or human waste is, in itself, so offensive that every such act, no matter how isolated or under what circumstances, is "a serious act of insubordination” as that phrase is used in MCL 800.33(6); MSA 28.1403(6). Absent further guidance from the Supreme Court on the issue, we are inclined to agree with the defendant.
In the absence of properly promulgated rules delineating how much good time shall be forfeited for one or more infractions of prison rules in any month, good time may be forfeited by special order of the warden only for a serious act of insubordination, attempt to escape or escape. Williams, supra, 785. The behavior of plaintiffs in this case was clearly not escapes or attempts to escape. In re Evans, 352 Mich 185; 89 NW2d 535 (1958). However, we believe that their misconduct constituted serious acts of insubordination as that phrase has been interpreted by the courts in this state.
In Robinson v Gries, 277 Mich 15; 268 NW 794 (1936), plaintiff inmate brought a habeas corpus action challenging the forfeiture of his earned "good time” as a result of an assault on a parole officer while plaintiff was being taken into custody for violating his parole and as a result of six alleged violations of prison rules after his return to the state prison at Marquette. The plaintiffs principal claim was that "forfeiture of his good time earned was unwarranted by statute or rule”. Id., 18. Relying on the forerunner of the instant statute, under which forfeiture is claimed by the defendant, the Supreme Court ruled:
"We need not consider the rules adopted by the commissioner of pardons and paroles * * * as the statute provided that: 'for any serious act of insubordination, attempt to escape, or escape, the commissioner of pardons and paroles may, by special order, take away any portion or the whole of the good time made by any convict up to the date of such offense.’
"Without doubt, plaintiff, assault of a parole officer would justify the commissioner in holding him guilty of a serious act of insubordination and invest him with the discretion to cancel the good time to the time of such assault.” Robinson, supra, 18.
In Heyman v Kropp, 24 Mich App 231; 180 NW2d 47 (1970), lv den 383 Mich 816 (1970), plaintiff inmate sought a writ of mandamus ordering the prison warden to restore him the "good time” deemed forfeited as a result of his knifing assault on a fellow inmate in the State Prison of Southern Michigan. One of plaintiff’s claims was that since his assault conviction was subsequently set aside by the United States District Court, he could not be penalized for his actions by forfeiture of his statutory good time. Rejecting this claim, this Court held:
"Nothing appears on this record to indicate that the setting aside of defendant’s April 5, 1962 conviction by the Federal district court occurred because defendant did not stab Springette. [the fellow inmate]. The record does indicate that that stabbing occurred. This is suffi cient to sustain disciplinary action in the form of forfeiture of good time. CLS 1961, §800.33 (Stat Ann 1954 Rev § 28.1403).” Heyman, supra, 234.
In Williams, supra, the plaintiff inmate brought a mandamus action to compel the defendant warden to restore his good time, previously forfeited by the defendant as a result of the plaintiff’s two assaults on another inmate. Properly recognizing that the forfeiture would only be valid if the plaintiff’s actions constituted a "serious act of insubordination” (because of lack of prison rules), a panel of this Court held that "[t]he statute authorizes loss of good time by special order only for serious acts of insubordination”. In reaching this conclusion, the Court in Williams failed to consider the holdings in Robinson, supra, and Heyman, supra. In both of these cases, the courts considering the question held that an assault on a parole officer while outside the prison confines, or an assault on a fellow inmate while within the prison structure, respectively constituted a "serious act of insubordination” within the meaning of the statute under review. Yet, in Williams, a panel of this Court held that a double assault on a fellow inmate did not fall within the meaning of the statutory language.
We need not reconcile the apparently inconsistent holdings of this Court in Williams and Hey-man. In passing, we observe that the rationale offered by the Court in Williams is, in part, the more persuasive of the two decisions. Specifically, the statutory language relating to a "serious act of insubordination” is apparently designed to deter, by punishing, acts of misconduct which are so flagrant that they represent a threat to the secu rity and order of the prison institution. If the inmate’s behavior does not constitute a "threat to institutional order” or does not constitute an "open defiance of authority” then it cannot be said to fall within the meaning of the statute. Compare Williams, supra. While it might be argued that an assault on a fellow inmate constitutes a threat to institutional order, Heyman, supra, it would seem that this type of decision is best left to the sound discretion of the prison official charged by statute to deal with the problem by "special order”. Pfefferle v Corrections Comm, 86 Mich App 366, 372; 272 NW2d 563 (1976), 72 CJS, Prisons, § 21h(l), pp 890-891, see McDonnell v Wolff, 342 F Supp 616, 628 (D Neb, 1972), modified 483 F2d 1059 (CA 8, 1973), aff'd 418 US 539, 544-546, fn 2, 5; 94 S Ct 2963; 41 L Ed 2d 935 (1974).
There can be no question in the instant case that the acts committed by the plaintiffs were insubordinate. Pelting corrections officers with human waste, in addition to the other assaults which were found to have been committed by the plaintiffs, clearly is intended at least in part as an open defiance of authority. Such acts also constitute a threat to institutional order, and as a result are "serious”. The record in this case amply demonstrates the understandable effect that such acts have on the corrections officers charged with maintaining order in the prison. Institutional order is not secured simply because a prisoner remains locked in a cell when committing an assault of the type in question on an officer. An assault of such type is not merely a defiance of authority, as might be a passive refusal to obey an order. Rather it is an affirmative act by which the inmate actually and dramatically interrupts the order which prison officials are charged with preserving.
The warden is in a far better position to ascertain whether an act constitutes a threat to the institutional order of a prison than are the courts, and the judiciary should not interfere with the warden’s exercise of discretion unless that discretion has been clearly abused. Operating a correctional facility is a demanding and ofttimes dangerous job, and the judiciary should grant the warden wide latitude in making determinations as to what is or is not a "serious” act of insubordination. We are convinced that the warden did not overstep these bounds in the instant case.
Reversed.
Plaintiff Bolton: throwing urine on an officer on January 10, 1975, during a disturbance in block-5 west. February 2, 1975, nine months accumulated good time was forfeited.
Plaintiff Butler: throwing a tray of food at an officer April 3, 1975. For this offense 5 months, 15 days accumulated good time was forfeited. Urinating on an officer picking up supper trays April 19, 1975. For this offense 5 months and 15 days accumulated good time was forfeited.
Plaintiff Lawson: throwing a glass jar filled with water at an officer March 16, 1978. The jar broke and several pieces of glass struck the officer in the back. No injury resulted. Two months and five days accumulated good time forfeited. April 14, 1978, spitting on officer. Five days good time forfeited. April 16, 1978, throwing cup of urine on officer. Two days good time forfeited.
Plaintiff Beck: throwing urine on a guard June 20, 1979. Nine months good time forfeited.
August 10, 1979, throwing a cup of liquid on an officer who came to Beck’s cell to pick up a food tray.
August 11, throwing a cup of liquid in officer’s face at 12:45 a.m.
August 12, throwing a cup of feces and urine on officer who came to pick up food trays. Again on August 12, when an officer attempted to open Beck’s cell which Beck had tied shut with a blanket, the officer was stabbed in the hands by a piece of plastic broken off the tray and was struck in the face with a cup of feces and urine.
The Department of Corrections had attempted to issue rules but in so doing had issued them as guidelines and consequently, properly promulgated rules were not in existence. Williams, supra, 785.
88 Mich App 782, 785. See supra, for the full statement by the Court.
Because of the public importance of the question raised herein, we have intentionally disregarded the defendant’s claim that review should have been brought by way of mandamus rather than by writ of habeas corpus. | [
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F. F. Cavanagh, J.
The defendant was charged, tried without a jury and convicted of armed robbery. MCL 750.529; MSA 28.797. The trial court elected to delay sentencing for one year, but defendant ceased to report to his parole officer within that time period, resulting in the issuance of a bench warrant. Approximately 1-1/2 years later defendant was sentenced from 3 to 6 years in the State of New York for first-degree assault. After serving a total of 1,125 days imprisonment in New York, defendant was returned to this state and sentenced to a term of 10 to 15 years on the robbery conviction, receiving credit for 119 days spent here in custody. We are now presented with his appeal of right.
While defendant was incarcerated in New York he wrote to the Michigan trial court where he was convicted requesting that his Michigan sentence run concurrently with his New York sentence. The trial court responded that defendant had not yet been sentenced, and, therefore, there was no sen tence which could run concurrently with his term in New York. The trial court further indicated that it would be unlikely that defendant would be returned to Michigan for sentencing until after his New York sentence was completed, which circumstances obviated consideration of the issue of concurrent sentences.
Defendant now claims to be entitled to credit on his Michigan sentence for the 1,125 days that he spent in prison in New York. He bases this contention on MCL 769.11b; MSA 28.1083(2), which provides credit for time served in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which defendant is convicted. On more than one occasion this Court has held that this statute is to be given a liberal construction. People v Havey, 11 Mich App 69; 160 NW2d 629 (1968), lv den 381 Mich 756 (1968), People v Groeneveld, 54 Mich App 424; 221 NW2d 254 (1974), lv den 393 Mich 814 (1975).
The unique factor present in this case which distinguishes it from the others which involve the above statute is that the trial court delayed sentencing. Unfortunately, the trial court had no power to delay sentencing in this instance, since defendant was convicted of armed robbery, one of the crimes excepted by the probation statute, MCL 771.1; MSA 28.1131. Absent this mistake of the unauthorized imposition of a delayed sentence, we would be inclined to credit defendant with the time he spent in New York prisons. We would do so not on the basis of the statute allowing credit for jail time when bond is unavailable, MCL 769.11b; MSA 28.1083(2), but, rather, pursuant to the reasoning set forth in People v Face, 88 Mich App 435, 440-441; 276 NW2d 916 (1979). Here, too, the effect of the action of the trial court in sentencing defendant after the termination of his New York sentence was to impose consecutive sentences upon him without explicit statutory authority to do so. It is a recognized policy in this state to favor concurrent sentences. Browning v Michigan Dep’t of Corrections, 385 Mich 179, 189; 188 NW2d 552 (1971), People v Gallagher, 404 Mich 429, 439-440; 273 NW2d 440 (1979). When the trial court in this cause became apprised of the fact that defendant was incarcerated in New York, and, when later it was requested by defendant to impose concurrent sentences, it could have and should have taken the necessary steps to sentence defendant for his armed robbery conviction.
In People v Turner, 92 Mich App 485; 285 NW2d 340 (1979), a panel of this Court found that an unauthorized delay in sentencing the defendant served to deprive the trial court of jurisdiction to sentence. Even though that defendant had consented to all five adjournments which occasioned the delay, this Court held that, "[t]he trial court cannot simply postpone sentencing and retain jurisdiction, except in the most limited and unusual of circumstances”. Turner, supra, 489. Far from consenting to delayed sentencing, the present defendant explicitly requested. that he be sentenced while in prison in New York. Nor can the device used in one of the cases cited within Turner, supra, 488, be employed here, namely, to find that a sentencing court retains jurisdiction for a period of delay commensurate with the maximum applicable penalty. Armed robbery convictions are punishable by imprisonment for life or for any term of years. We are convinced that the circumstances present in this case are not "the most limited and unusual” ones which constitute an exception to Turner’s pronouncement. Accordingly, while defendant’s conviction for armed robbery stands, his sentencé is vacated. | [
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] |
Per Curiam.
This matter is before us upon an appeal taken as of right from a summary judgment of dismissal pursuant to GCR 1963, 117.2(1) by the Court of Claims, Hon. Ray C. Hotchkiss, J., on October 1,1979. We affirm.
The case arose out of a car-train collision on June 2, 1978, in which the plaintiff’s decedent, Kevin Furness, suffered fatal injuries. It appears that decedent was a passenger in a motor vehicle being driven on Barrie Road in Colfax Township, Huron County, Michigan. As the vehicle was being driven over a Chesapeake and Ohio Railroad Company grade crossing, at 11:05 p.m., it was struck by an east-bound train. It appears that Barrie Road is a county road.
The civil complaint filed March 8, 1979, asked for monetary damages as relief. The complaint contained specific allegations of negligence and nuisance. The county and the railroad were not named as parties.
The complaint is completely silent of any allegation that defendants improperly designed or revised the warning signs or that defendants considered that extra warning signs should have been ordered and neglected to order the proper authorities to install them.
Defendants responded with a motion for summary judgment of dismissal pursuant to GCR 1963, 117.2(1), inter alia. This motion was predicated upon the proposition that none of the defendants had jurisdictional authority in any of the particulars alleged with regard to this specific railroad crossing. The trial judge apparently agreed with that position in his terse oral opinion of July 18, 1979, granting the motion. The instant appeal followed the entry of the order of dismissal.
Examination of the many cases involving GCR 1963, 117.2(1), discloses a common theme. In each instance, it is held that motions under subrule 1 amount to a challenge to the pleadings alone. Each of the plaintiffs well-pleaded allegations must be taken as true. Only where the plaintiffs claims are so clearly unenforceable as a matter of law that no factual development may possibly justify a right to recovery are such motions granted. See e.g., McMath v Ford Motor Co, 77 Mich App 721, 723; 259 NW2d 140 (1977). Further, when, as in the matter at bar, the issue of governmental immunity forms the basis of the motion, the burden is put upon plaintiff to plead facts in avoidance of immunity. See Armstrong v Ross Twp, 82 Mich App 77; 266 NW2d 674 (1978).
Given the foregoing tenets, it is clear that the first basis for liability would turn upon whether defendants had jurisdiction over the said grade crossing for repair and/or maintenance purposes. We conclude that they did not.
The only applicable statute concerning the plaintiffs negligence claims is MCL 691.1402; MSA 3.996(102). That statute provides in relevant part as follows: The plain meaning of that statutory language places the duty to repair and maintain county roads squarely on the counties themselves and upon no one else. The duty is an exclusive one which cannot be superimposed upon other governmental agencies. Therefore, a governmental unit may not incur liability for negligent repair and maintenance of a highway outside its own jurisdiction. See Summerville v Kalamazoo County Road Comm’rs, 77 Mich App 580; 259 NW2d 206 (1977).
"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. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, Chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948.”_
Similarly, the duty of providing a safe railroad crossing rests with that governmental agency having jurisdiction over the intersecting highway. See Cryderman v Soo Line R Co, 78 Mich App 465; 260 NW2d 135 (1977).
In attempting to fulfill the burdens imposed upon him by the foregoing authorities, plaintiff has cursorily cited a plethora of statutory authority. To say the least, we find this authority unpersuasive. The great bulk of the cited statutes relate to jurisdiction of governmental agencies over highways and are supportive of, rather than contradictive of, the proposition that counties are the repository of jurisdiction and control over their own roads.
Two statutes warrant a brief discussion. Plaintiff has cited MCL 469.5; MSA 22.765 for the proposition that defendants have an obligation to continually monitor the safety of crossing signs. There is, however, no allegation of improper design of signs in the complaint. Moreover, the statute points to a discretionary role for the defendants in determining the safety of sign design. This would preclude liability for sign design in any event. See Summer-ville, supra, and Walkowski v Macomb County Sheriff, 64 Mich App 460; 236 NW2d 516 (1975).
The above analysis would also apply to MCL 469.8; MSA 22.768. Although it imposes a duty upon defendant state highway commission to order railroads to provide flashing lights and gong signals, this statute expressly provides that such a duty is discretionary.
In short, the asserted statutory bases of jurisdiction and hence, liability, do not read as plaintiff suggests. This failure is fatal to the negligence aspects of the plaintiff’s claim.
This leaves the question of the nuisance allegations. The gravamen of these allegations is that defendants were negligent in failing to correct a known danger (nuisance). This alleged conduct is omissive rather than commissive and would therefore fall within the category of a negligent nuisance. As such it remains protected from suit by governmental immunity. See Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978).
Affirmed.
The phrase "well-pleaded allegations” does not encompass, naked legal conclusion, see Stann v Ford Motor Co, 361 Mich 225, 232-233; 105 NW2d 20 (1960). | [
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J. H. Gillis, P.J.
Defendants appeal from an order of the lower court forfeiting the $20,000 bond that had been posted to assure compliance with a consent judgment. Defendants complain that they were deprived of either an evidentiary hearing or jury trial on the issue of whether compliance had taken place.
In 1975, defendant The Stolaruk Corporation was given permission by plaintiffs board of zoning appeals to mine gravel in contravention of plaintiffs zoning ordinance. The permission was conditioned on Stolaruk’s promise to conclude the mining and restore the property involved by the summer of 1978. On May 17, 1978, the deadline was extended, at Stolaruk’s request, to December 1, 1978. When the mining continued beyond that date, plaintiff sought injunctive relief in the Oakland County Circuit Court. A consent judgment was entered into on February 16, 1979, providing that all work and restoration was to be completed by July 1, 1979, and that Stolaruk’s failure to comply would result in automatic forfeiture of the $20,000 bond. On September 11, 1979, the circuit court entered a delayed order extending the completion date to September 7, 1979.
The lower court issued a show causé order on October 19, 1979, requiring defendants to demonstrate why the bond should not be forfeited. The order was not preceded by either a written motion or supportive affidavits. Although no evidence was introduced at the October 24, 1979, hearing, the lower court concluded "as a matter of law” that the consent judgment had not been complied with. Plaintiff contends on appeal that photographs proving noncompliance were shown to the court in chambers and attaches those photos, as well as the affidavit of the photographer, to its brief. Because the materials were not made a part of the record below, we will not consider them with regard to this appeal. Philips Industries, Inc v Smith, 90 Mich App 237, 249-250; 282 NW2d 788 (1979).
Forfeiture of the bond was contingent on the resolution of a factual issue — whether Stolaruk had complied with the modified consent judgment by concluding operations by September 7, 1979. The lower court erred in ruling on the matter as a question of law. GCR 1963, 525 provides that judgment of liability on a bond may be entered "on motion and a showing that the condition has occurred giving rise to liability on the bond”. Although the proceedings below consisted of a show cause hearing, the law requires that when liability on a bond is alleged due to the breach of a condition, the burden is on the party claiming liability to prove that the breach has occurred. Young v Stephens, 9 Mich 500, 503-504 (1862). Since no evidence was entered at the hearing, it is plain that this burden has not been met and that reversal is mandated.
Defendants’ contention that a jury trial is in order is without merit. Historically, the right to trial by jury is a fundamental one and is preserved by our state constitution. Const 1963, art 1, § 14. However, the court rules provide for more summary disposition in proceedings on bonds that are ancillary to other actions. GCR 1963, 525, 763. Determination of compliance with the consent judgment is necessarily a matter for the trial court and not an issue to be presented to a jury.
Reversed and remanded for further proceedings.
The entire transcript of the show cause hearing reads:
"The Clerk: Add 1, Independence Township versus Stolaruk, number 181655.
"Mr. Zeleznik [Attorney for plaintiff]: This is brought on before this Court as a motion to show cause why the bond as posted in the above-entitled two matters should not be forfeited. Upon discussion of these matters with the Court and with Counsel, I understand that the bond will be forfeited as prayed for.
"Mr. Donovan [Attorney for defendants]: My name is William Donovan appearing on behalf of Seaboard Insurance Company and The Stolaruk Corporation. In both cases, which have been consoli dated, I’d like the record to reflect that I have demanded a jury trial. It is our position it is a factual question as to whether or not the requirements of the order have been complied with and in addition to that, the township ordinance does not permit a complete forfeiture of bond. It permits a — Any forfeiture of the bond can only be used according to the ordinance 59 of the township for restoration purposes and the only order that’s entered should provide that the bond is not forfeited, but that the bond funds may be used, or have to be used only for restoration purposes and that in [sic] the restoration is done, then the bond money, any bond money that’s turned over is to be, is to be returned to Stolaruk Corporation and in the form of a refund. And that — But the primary thing I want on the record is that we should be entitled to our jury trial.
"The Court: Well, we already made a finding that as a matter of law it’s obvious it had not been complied with and the order could read the bond is forfeited in accordance with the township ordinance covered it with respect to the use to be put to it, and then they charge—
"Mr. Zeleznik: I’ll put that language in the order and bring it up this afternoon.” | [
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Cynar, P.J.
Plaintiff filed an action seeking a declaratory judgment as to plaintiff’s right to partial recoupment from defendant for certain personal protection insurance benefits paid under a no-fault automobile insurance policy issued by plaintiff. Following a hearing, the trial court granted defendant’s motion for summary judgment made pursuant to GCR 1963, 117.2(1). Plaintiff’s motion for rehearing was denied, from which plaintiff takes this appeal as of right.
The facts relevant to this appeal are as follows: Donna Schilling, wife of Paul Schilling, died as a result of an automobile accident on October 24, 1976. At the time of the accident, she was driving a 1976 Chevrolet van. The van was jointly owned by the Schillings and was covered by an insurance policy issued by plaintiff, on which Mrs. Schilling was the named insured.
At the time of the accident, the Schillings also jointly owned two pickup trucks. Both trucks were covered by insurance policies issued by defendant, on which Mrs. Schilling was a named insured.
Plaintiff paid survivor’s benefits to Mr. Schilling until his remarriage in April, 1977. Payments totaled $1,966.25.
On appeal, the following question has been presented for our decision.
Where one person was a named insured on no-fault automobile insurance policies from different insurance companies covering different vehicles and was involved in an accident while driving one vehicle, which accident resulted in the death of that named insured, can the company which issued the policy covering that vehicle partially recoup from the other insurer personal protection insurance benefits paid?
Plaintiff, of course, contends that the question should be answered in the affirmative. In support of that position plaintiff argues that no-fault coverage is coverage of the person, not the vehicle, since personal protection benefits are payable whether the person suffers an injury in his own vehicle, as an occupant of another vehicle, or while not occupying any vehicle and that, accordingly, the trial court’s reading of MCL 500.3114(1); MSA 24.13114(1) was erroneous. Further, since Mrs. Schilling was a named insured under both policies, the limitation on recoupment contained in the above-cited section was not applicable.
Additionally, plaintiff argues that MCL 500.3115(2); MSA 24.13115(2) provides for partial recoupment where two or more insurers are in the same order of priority for provision of personal protection benefits and that the trial court reversibly erred in holding that this subsection applies only to nonoccupants, for only the application of subsection (1) of this statute is so limited. Finally, plaintiff claims that the common law also permits recoupment from an insurer that insured the same risk that has been paid for by the first insurer.
Defendant naturally urges affirmance of the trial court’s decision. Defendant contends that the no-fault act provides for the issuance of policies insuring vehicles, not persons and that coverage under no-fault policies may be extended to afford benefits to a named insured although the covered vehicle was not involved in the accident, but only in a narrow range of circumstances. Defendant argues that these narrow circumstances cover situations in which, under prior law, the injured victim frequently was left without compensation.
In addition, defendant claims that MCL 500.3115(2); MSA 24.13115(2) applies only to nonoccupants, since the subsection refers to the order of priority created in subsection (1), and subsection (1) expressly applies only to nonoccupants.
Lastly, defendant contends that plaintiff’s reliance on a supposed common law right of recoupment begs the question and that, while the common law may permit a recoupment from an insurer that insured the same risk that has been paid for by the first insurer, the question here is whether the insurers insured the same risk.
We agree with defendant that the no-fault act provides for issuance of policies insuring vehicles. See State Farm Mutual Automobile Ins Co v Sentry Ins, 91 Mich App 109, 114; 283 NW2d 661 (1979), lv den 407 Mich 911 (1979), and Belcher v Aetna Casualty & Surety Co, 409 Mich 231; 293 NW2d 594 (1980), aff'g 83 Mich App 207; 268 NW2d 349 (1978), both of which interpret MCL 500.3101(1); MSA 24.13101(1) in this fashion. Moreover, the security required under this provision must be in effect continuously during the period of registration of a motor vehicle which is required to be registered in this state. Finally, MCL 500.3102(2); MSA 24.13102(2) speaks of "a motor vehicle with respect to which security is required”. (Emphasis supplied.) Thus, it is manifest that the insurance policies issued under the act are primarily issued with respect to vehicles, not persons.
However, MCL 500.3114(1); MSA .24.13114(1) provides:
"Except as provided in subsections (2) and (3), a personal protection insurance policy applies to accidental bodily injury to the person named in the policy, his spouse, and a relative of either domiciled in the same household. When personal protection insurance benefits are payable to or for the benefit of an injured person under his own policy and would also be payable under the policy of his spouse, relative, or relative’s spouse, the injured person’s insurer shall pay all of the benefits and shall not be entitled to recoupment from the other insurer.”
This subsection of the statute applies the insurance policy to accidental bodily injury of the named insured, among others. It contains no requirement that the policy apply to any particular vehicle.
MCL 500.3114(4); MSA 24.13114(4) provides:
"Except as provided in subsections (1) to (3), a person suffering accidental bodily injury while an occupant of a motor vehicle shall claim personal protection insur anee benefits from insurers in the following order of priority:
"(a) The insurer of the owner or registrant of the vehicle occupied.
"(b) The insurer of the operator of the vehicle occupied.”
In this subsection, the statute speaks of "the insurer of the owner” not "the insurer of the vehicle”. Here, both companies were insurers of the owner.
It is clear that the Legislature’s choice of such language was not accidental. That the obligation of the insurance company to pay personal protection benefits is not tied to a particular vehicle in all cases does not, however, mean that the Legislature intended to discard all ties between the obligation to pay benefits and the vehicle.
The Legislature extended coverage to injury suffered by a named insured or certain relatives while occupying a vehicle not insured under the named insured’s policy. See MCL 500.3114(1); MSA 24.13114(1), Citizen’s Mutual Ins Co v Community Services Ins, 65 Mich App 731; 238 NW2d 182 (1975), lv den 396 Mich 834 (1976), Bierbusse v The Farmers Ins Group of Cos, 84 Mich App 34; 269 NW2d 297 (1978). MCL 500.3114(1); MSA 24.13114(1) and MCL 500.3115(1); MSA 24.13115(1) have also been held to extend coverage to injury suffered by a named insured or certain relatives while not an occupant of a motor vehicle. See, e.g., Esquivel v American Fidelity Fire Ins Co, 90 Mich App 56; 282 NW2d 240 (1979).
It must be noted that these were circumstances where, if the insurance was limited to a particular vehicle, the victim would not have been covered. Such is not the case here. Thus, the reason for the rule does not obtain. In other circumstances, the Legislature made clear that the insurer of the motor vehicle involved was responsible. See MCL 500.3114(2) and (3); MSA 24.13114(2) and (3):
"(2) A person suffering accidental bodily injury while an operator or a passenger of a motor vehicle operated in the business of transporting passengers shall receive the personal protection insurance benefits to which the person is entitled from the insurer of the motor vehicle. This subsection shall not apply to a passenger in the following, unless that passenger is not entitled to personal protection insurance benefits under any other policy:
"(a) A school bus, as defined by the department of education, providing transportation not prohibited by law.
"(b) A bus operated by a common carrier of passengers certified by the public service commission.
"(c) A bus operating under a government sponsored transportation program.
"(d) A bus operated by or providing service to a nonprofit organization.
"(e) A taxicab insured as prescribed in section 3101 or 3102.
"(3) An employee, his spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle. ” (Emphasis supplied.)
In Bierbusse, supra, 37, the court said:
"The no-fault automobile statute is remedial in nature, attempting to correct the deficiencies found in the old tort system. See, Shavers v Attorney General, 65 Mich App 355, 366; 237 NW2d 325 (1975), lv gtd, 396 Mich 869 (1976). Remedial statutes are to be construed liberally in favor of the persons intended to be benefited by the statute. Hockenhull v Cutler Hubble, Inc, 39 Mich App 163; 197 NW2d 344 (1972), Hite v Evart Products Co, 34 Mich App 247, 252; 191 NW2d 136 (1971).”
The plaintiff herein is not a person intended to be benefited by the statute and so cannot invoke the liberal construction rule. Plaintiff has not argued that the construction it advocates would benefit an injured insured. Because of the "anti-stacking” provision of MCL 500.3115(3); MSA 24.13115(3), it is self-evident that an injured insured could not benefit by having more than one policy applicable to the accident. See Beaver v Auto Owners Ins Co, Inc, 93 Mich App 399; 286 NW2d 884 (1979).
MCL 257.1104; MSA 9.2804 provides in pertinent part:
"(1) The owner or operator of a motor vehicle who operates or permits its operation upon the highways of this state shall produce, in accordance with subsection (2) of this section, upon the request of a peace officer, evidence that the vehicle is an insured motor vehicle.
"(2) An owner or operator of a motor vehicle who fails to produce evidence when requested to do so or within 72 hours thereafter is guilty of a misdemeanor. A certificate of insurance, if issued by an insurance company, stating that there is in force a liability policy meeting the requirements of this act, shall be accepted as prima facie evidence of insurance being in force until the expiration date shown on the certificate. The certificate shall state the name of each person named on the policy, policy declarations or declaration certificate whose operation of the vehicle causes the liability coverage to become void.”
It is apparent that in drafting the above section the Legislature had in mind a tie between the insurance policy and a particular insured vehicle. This section is still viable under no-fault; see MCL 500.3009; MSA 24.13009 and MCL 500.3131; MSA 24.13131. Under pre-no-fault law, the insurer could limit its coverage to a particular vehicle. 7 Am Jur 2d, Automobile Insurance, §225, pp 761-762. As has been seen, under no-fault this ability to limit coverage to a particular vehicle is no longer absolute with respect to personal protection benefits. However, it does not follow that because the Legislature abolished this ability in some instances, it meant to abolish it in all instances. If the Legislature intended that personal protection benefit coverage never be limited to a particular vehicle, it would have said so expressly.
Plaintiff is correct in arguing that the recoupment provision of MCL 500.3115(2); MSA 24.13115(2) is not limited in its application to situations involving nonoccupants. The reference to nonoccupants is contained only in subsection (1). Orders of priority are provided for in MCL 500.3114(4); MSA 24.13114(4) and implicitly in MCL 500.3114(1); MSA 24.13114(1) as well as in subsection (1) of §3115. MCL 500.3115(1); MSA 24.13115(1). Plaintiff is also correct in contending that there is a general right of recoupment under the common law for insurers that insure the same risk. 44 Am Jur 2d, Insurance, § 1818, p 743. However, to invoke these rights of recoupment, plaintiff must have insured the same risk as defendant.
We conclude that defendant did not insure the same risk as plaintiff, f.e., defendant did not insure Mrs. Schilling against the risk of personal injury while driving her van, the risk against which plaintiff did insure. Therefore, it is clear that plaintiff was in a higher order of priority with respect to providing personal protection insurance benefits and may not recoup from defendant any portion of those benefits paid under MCL 500.3115(2); MSA 24.13115(2). Concomitantly, we conclude that in a situation such as in the case sub judice, § 3114(1), MCL 500.3114(1); MSA 24.13114(1), should be read as indicated by the trial court, viz., that the insurer of the motor vehicle involved in the accident alone provides personal protection insurance benefits, without entitlement to recoupment. As defendant did not insure the same risk as plaintiff, no common law right of recoupment exists in plaintiff apart from the act.
The decision of the trial court is affirmed. No costs, interpretation of a statute being involved.
Subsections (2) and (3) of MCL 500.3114; MSA 24.13114 relate to "commercial” situations and are not applicable in the case at bar. | [
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Per Curiam.
Plaintiff filed suit in the Wayne County Circuit Court, claiming that the defendants, while engaged as police officers, had committed an assault on him. The two-count complaint alleged that defendants had committed an assault and battery upon plaintiff and had negligently failed to provide for his safety. A jury trial commencing on February 13, 1979, resulted in a directed verdict granted in favor of defendant Latimer, for the reason that he apparently was not involved in the matter, and a no cause of action verdict in favor of defendant Feld.
Plaintiff contends the trial judge committed several errors of law requiring reversal. We believe only two of the issues raised by plaintiff on appeal merit discussion and we shall consider each seriatim.
Plaintiff asserts that the trial court erred in not permitting him to testify regarding his medical expenses.
A lay witness generally may testify to something he knows and that does not require expert testimony to establish, such as the existence of a physical injury. Gibson v Traver, 328 Mich 698; 44 NW2d 834 (1950). See also MRE 701. Where, however, the contested issue involves medical questions beyond the scope of lay knowledge, such as the existence vel non of an injury, the scope of the injury or the causal link between an alleged accident and an injury, testimony by the lay witness may be improper. Leavesly v Detroit, 96 Mich App 92; 292 NW2d 491 (1980).
In the instant case, plaintiff testified that he had been in an automobile accident and had fractured his hip prior to the alleged assault. He claimed the assault exacerbated his prior hip injury and necessitated his undergoing a hip operation. At the point where plaintiff was asked to testify as to the cost of the operation, defendants interposed an objection. In accord with this Court’s recent decision in Leavesly, supra, we believe plaintiff was properly precluded from testifying about medical expenses. We doubt that plaintiff was qualified to render his opinion that his assault, and not the car accident, necessitated his hip operation.
Finally, plaintiff asserts a plethora of instructional errors, only one of which was objected to below. We note at the outset that the failure to object to a jury instruction generally precludes appellate review of that instruction. People v Barker, 97 Mich App 253; 293 NW2d 787 (1980), People v Clay, 91 Mich App 716, 723; 283 NW2d 870 (1979). GCR 1963, 516.2 provides:
"Objections. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”
Under very limited circumstances, however, our appellate Courts will review instructional errors not objected to in order to prevent manifest injustice. Hunt v Deming, 375 Mich 581, 585; 134 NW2d 662 (1965), Raatikka v Jones, 81 Mich App 428, 429-430; 265 NW2d 360 (1978). A recent decision of this Court, Berlin v Snyder, 89 Mich App 38, 41; 279 NW2d 322 (1979), delineated the standard of review for jury instructions:
"A jury charge must be considered in its entirety and if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury, we will not find reversible error. A trial judge is not obliged to give a jury charge in the manner requested so long as the jury is fully and properly apprised of the applicable law.” (Emphasis added.) (Citation omitted.)
We note that the gravamen of plaintiffs action is assault and battery and yet the record below is completely devoid of any jury instruction defining or explaining the elements of assault and battery. Without such an instruction the jury could not have possibly, if it followed its oath and applied the evidence only to the law instructed upon, rendered a verdict in favor of the plaintiff. In effect, it was left to theorize as to what acts may legally constitute an assault and battery. In short, we believe this is one of those rare cases where the failure to instruct on a controlling legal issue, even though such an instruction was not requested, is so manifestly unjust as to require reversal.
A similar case, Smith-Douglass, Div of Borden Chemical v Walch, 391 Mich 201; 215 NW2d 142 (1974), is instructive. In that case, plaintiffs theory rested on principles of agency yet no instructions were given on the applicable rules of agency. Plaintiff did not object to the charge as delivered, however, the Court ordered a new trial, stating:
"Where, however, the record is completely silent as to any instruction on the controlling legal issue supported by the testimony presented to the jury, a new trial may be ordered.” (Emphasis in original.) Smith-Douglass, supra, 204.
See also, Krajenke v Preferred Mutual Ins Co, 68 Mich App 211, 219; 242 NW2d 70 (1976).
In addition, under the standard of review established in Berlin, supra, the omission of an assault and battery instruction inescapably leads to the conclusion that the jury was not instructed on the applicable law.
Plaintiff did object to the trial judge’s refusal to give instructions on exemplary damages, thus preserving that issue for appeal. We believe this was error. For purposes of retrial, should plaintiff ask for an instruction on exemplary damages, the court should elucidate the relevant law and the permissible scope of the jury’s consideration. Krajenke, supra.
Plaintiff failed to interpose timely objections to the other instructions objected to here on appeal as required by GCR 1963, 516.2, and we are precluded, therefore, from reviewing them.
Reversed and remanded for new trial in accordance with this opinion. Costs to appellant.
The trial in this case commenced on a Thursday. The court admonished counsel to submit their requests to charge the following Tuesday. The record reflects plaintiff’s counsel presented no request to charge outside the Standard Jury Instructions.
We note that GCR 1963, 516.6(2) mandates that pertinent portions of the Standard Jury Instructions be given in civil cases where (a) they are applicable and (b) they accurately reflect applicable state law. We also note, however, GCR 1963, 516.6(4), which reads in pertinent part:
"This sub-rule does not limit the power of the court to give additional instructions on applicable law not covered by SJI.”
Since the Standard Jury Instructions do not define assault and battery, the trial court must look to applicable case law in order to summarize this tort. See, e.g., Tinkler v Richter, 295 Mich 396; 295 NW 201 (1940).
We wish to emphasize that, absent unusual circumstances, this Court will not review jury instructions unless trial counsel diligently adheres to the command of GCR 1963, 516.2. The rationale for this rule of restraint is succinctly stated in Hunt v Deming, 375 Mich 581, 585; 134 NW2d 662 (1965):
"[T]he Court will exercise its discretion in this fashion but sparingly. To do otherwise would be to encourage counsel to maintain silence in the face of correctable erroneous instructions, hoarding their objections for use in the event of an unfavorable jury verdict.” | [
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] |
J. H. Gillis, P.J.
The Second Injury Fund (Fund)* appeals by leave granted an April 13, 1979, decision of the Worker’s Compensation Appeal Board (WCAB) affirming the hearing referee’s December 29, 1978, ruling that the Fund was required to reimburse Argonaut Insurance Company (Argonaut) the entire $5,558.10 which Argonaut had paid the claimant pusuant to MCL 418.862; MSA 17.237(862), the "70% statute”.
The initial petition for hearing in this case was filed by the claimant on May 21, 1974. She alleged that she suffered work-related injuries to her back on May 21, 1970, September 23, 1971, and April 13, 1974. Aetna Casualty & Surety Company (Aetna) was the compensation insurance carrier of the employer in 1970 and 1971. Argonaut was the carrier in 1974.
The hearing took place on January 23, 1975. The hearing referee found three dates of injury, May 21, 1970, September 23, 1971, and April 13, 1974. Pursuant to that finding, the referee, in a decision mailed March 11, 1975, ordered Argonaut to pay the claimant benefits at the rate of $81.86 per week from April 14, 1974, to the date of the hearing and thereafter at the same rate until further order of the Bureau (Bureau of Workmen’s Compensation). The order concluded:
"Aetna Casualty & Surety Co. is hereby dismissed as a party-defendant and held free of any liability after 4-13-74. The liability created herein is the sole responsibility of Saginaw Osteopathic Hospital and Argonaut Insurance Co.”
Argonaut appealed to the WCAB. Concurrent with the filing of its claim of appeal, Argonaut, pursuant to MCL 418.862, commenced payment to the claimant of $57.30 per week, 70% of the $81.86 per week ordered by the hearing referee. During the pendency of the appeal these payments totalled $5,558.10.
On March 18, 1977, the WCAB modified the decision of the referee. The WCAB found that the claimant’s disability related solely to the injury suffered on May 21, 1970, and further found that her disability had terminated as of September 13, 1974. Accordingly, the open award was changed to a closed award, from April 14, 1974, to September 13, 1974, at the rate of $62.34 per week for a total of $1,361.09. The WCAB found that Aetna, not Argonaut, was liable for the closed award benefits. Argonaut was found to be free of liability.
The claimant’s applications for leave to appeal the WCAB decision were denied by the Court of Appeals on August 11, 1977, and by the Supreme Court on December 21, 1977.
On February 20, 1978, Argonaut sought reimbursement from the Fund of the $5,558.10 paid to the claimant pursuant to MCL 418.862. The Fund took the position that Aetna should pay the $1,361.09 due to the claimant under the WCAB order to Argonaut and that the Fund was liable to reimburse Argonaut only the difference between $5,558.10 and $1,361.09, $4,197.01. The Fund reimbursed Argonaut the latter amount.
On March 16, 1978, Argonaut filed a "Petition for Determination of Rights” with the Bureau. A hearing was held on that petition on October 11, 1978. In a decision dated December 29, 1978, the hearing referee directed the Fund to complete reimbursement to Argonaut by payment of the remaining $1,361.09.
The Fund thereafter appealed that decision to the WCAB. In an order dated April 13, 1979, the WCAB affirmed the referee’s decision requiring the Fund to fully reimburse Argonaut and, further, construed the WCAB’s March 18, 1977, order as requiring Aetna to pay the claimant $1,361.09.
This Court granted the Fund’s application for leave to appeal the WCAB’s April 13, 1979, decision on October 24, 1979.
The Fund claims that it is required to reimburse Argonaut only $4,197.01, that Aetna should tender $1,361.09 to Argonaut and that the claimant is entitled to receive no further benefits. The claimant claims that MCL 418.862 requires the Fund to pay the entire $5,558.10 to Argonaut and that she is entitled to the $1,361.09 from Aetna.
The primary issue is whether the claimant is entitled to actual payment of a closed award for a period preceding the hearing referee’s decision when payments in excess of that amount have already been made under MCL 418.862 and the WCAB ultimately rules that the claimant was not entitled to any benefits for the period that the 70% payments were being made. Otherwise stated, may the carrier use payments made under the 70% statute, which the WCAB has found the claimant not entitled to receive, to reduce the amount it is required to pay the claimant for the closed award which preceded the 70% payment period?
Before reaching this issue, a subsidiary one must be addressed. The claimant argues that the doctrine of res judicata bars the Fund’s claim that Aetna should pay the $1,361.09 to Argonaut rather than to her. It is claimed that the March 18, 1977, order of the WCAB already decided that Aetna must pay the benefits for the closed period to the claimant.
The doctrine of res judicata applies to worker’s compensation proceedings. However, in order for the doctrine to bar a subsequent worker’s compen sation proceeding, the precise issue of fact or law must have been at issue and decided in the preceding litigation. McKinney v Uniroyal, Inc, 82 Mich App 348, 353; 266 NW2d 820 (1978).
Our examination of the March 18, 1977, order discloses that the issue presently before this Court was not addressed in the preceding litigation. That order redetermined the claimant’s entitlement to benefits and which carrier was responsible for the payment of those benefits. It made no determination concerning whether Argonaut’s payments under the 70% statute would affect the distribution of those benefits. It made no determination of the amount which the Fund is required to reimburse Argonaut pursuant to MCL 418.862. Accordingly, we conclude that the present issue was neither at issue nor decided in the preceding litigation. The doctrine of res judicata has no application to the present case.
MCL 418.862; MSA 17.237(862) provides:
"A claim for review filed pursuant to sections 859 or 861 shall not operate as a stay of payment to the claimant of 70% of the weekly benefit required by the terms of the hearing referee’s award. Payment shall commence as of the date of the hearing referee’s award and shall continue until final determination of the appeal or for a shorter period if specified in the award. Benefits accruing prior to the referee’s award shall be withheld until final determination of the appeal. If the weekly benefít is reduced or rescinded by a ñnal determination, the carrier shall be entitled to reimbursement in a sum equal to the compensation paid pending the appeal in excess of the amount ñnally determined. Reimbursement shall be paid upon audit and proper voucher from the second injury fund established in chapter 5. If the award is affirmed by a final determination, the carrier shall pay all compensation which has become due under the provisions of the award, less any compensation already paid. Interest shall not be paid on amounts paid pending final determination. Payments made to the claimant during the appeal period shall be considered as accrued compensation for purposes of determining attorneys’ fees under the rules of the bureau.” (Emphasis supplied.)
Here, the WCAB order changed the referee’s open award to a closed one. Such change constitutes a reduction of the award made by the hearing referee. The emphasized sentence of the statute, thus, has application to the instant case.
It is undisputed that the carrier paid the claimant $5,558.10 while the appeal to the WCAB was pending. The WCAB finally determined that the claimant was entitled to receive only $1,361.09. The amount paid pending the appeal, which is in excess of the amount finally determined, is $4,197.01. The carrier is, thus, entitled to be reimbursed only the latter amount. This reimbursement can be had only from the Second Injury Fund. The claimant is not required to pay back any of the $5,558.10 even though it has been determined that she was not entitled to receive those benefits. McAvoy v HB Sherman Co, 401 Mich 419, 449-450; 258 NW2d 414 (1977), reh den 402 Mich 953 (1977).
What should be done with the remaining $1,361.09 which the WCAB found that the claimant is entitled to? Should she be permitted to retain the $5,558.10 paid but not owed by the carrier plus receive actual payment of $1,361.09 for a total of $6,919.19 when she is entitled to only $1,361.09? We hold that she should not. To hold otherwise would result in a windfall to the claimant in the amount of $5,558.10. This we will not permit.
We hold that the carrier is entitled to retain the $1,361.09; it need not be paid to the claimant. In this manner, the carrier will have paid out only that amount which it has been found liable to pay, $1,361.09. The $5,558.10 paid to the claimant pursuant to MCL 418.862 minus $4,197.01 which has been reimbursed by the Fund leaves a remainder of $1,361.09. We note that in this manner we are not requiring the claimant to reimburse the carrier for a portion of the 70% benefits in contravention of McAvoy, supra. Rather, we are limiting her right to receive benefits in the first instance.
The present case involves two carriers. Aetna holds and has been found liable for $1,361.09. Argonaut has paid that amount (and more) and has been found to be free of liability. In order to effect the distribution of the $1,361.09 in a manner consistent with the above analysis, we hold that Aetna should pay that amount to Argonaut. The fact that a transfer of funds from one carrier to another is not specifically authorized by statute is not an impediment to such payment. See Sosnowski v Dandy Hamburger, 384 Mich 221; 180 NW2d 761 (1970).
The April 13, 1979, decision of the WCAB is reversed. No costs, a statutory interpretation being involved.
MCL 418.501 et seq.; MSA 17.237(501) et seq.
See Sosnowski v Dandy Hamburger, 384 Mich 221, 226-227; 180 NW2d 761 (1970).
The case is complicated by the fact that two insurance carriers are involved. We will initially consider the matter as if only one insurance carrier was involved. | [
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Cynar, P.J.
Plaintiff, seeking judicial review of the revocation of his parole, brought this action in Jackson County Circuit Court pursuant to MCL 24.201 et seq.; MSA 3.560(101) et seq. and MCL 600.631; MSA 27A.631. Following a hearing, the trial court dismissed the suit on the ground that the court lacked subject matter jurisdiction over the action. Plaintiff appeals as of right.
Plaintiff had been convicted of attempted larceny from a person, MCL 750.357; MSA 28.589, and MCL 750.92; MSA 28.287, and was sentenced to 1-1/2 to 5 years imprisonment. Approximately six months after being incarcerated, plaintiff was released on parole to Jackson County. Slightly less than 15 months after being released on parole, plaintiff was arrested for parole violation. Three weeks after his arrest, a parole violation hearing was held, following which the parole board issued a decision revoking plaintiff’s parole.
Plaintiff sought to challenge the parole board’s decision on three grounds:
1. The board’s failure to hold a prompt preliminary hearing after plaintiff’s arrest amounted to a denial of due process and equal protection.
2. Since only two board members attended the hearing, the hearing did not meet the require ments of due process and the Administrative Procedures Act.
3. Since the board found plaintiff guilty of two parole violations which were not supported by the evidence and were contrary to the board’s expressed findings of fact, plaintiff’s parole was improperly revoked.
Plaintiff first agrues that the trial court erred in dismissing his complaint on the ground that the court lacked subject matter jurisdiction to review a parole board decision. Specifically, plaintiff contends that the Department of Corrections is an "agency” for purposes of applying the Administrative Procedures Act (APA), and that, therefore, proceedings of the department are governed by the APA. In addition, plaintiff contends that the APA provides for a right of review of agency decisions in contested cases, of which parole revocation proceedings are one type, dealing with the determination of a legal right, duty, or privilege of the parolee. Alternatively, plaintiff contends that MCL 600.631; MSA 27A.631 endowed him with a right of appeal to the circuit court.
Defendant argues that parole revocation proceedings are not contested cases, since there is no right to parole, and, moreover, actions of the parole board are exclusively discretionary. Finally, defendant claims that plaintiff’s proper remedy was mandamus.
It is beyond question that the Department of Corrections is an "agency” for purposes of the APA. Lawrence v Dep’t of Corrections, 88 Mich App 167, 169-170; 276 NW2d 554 (1979), lv den 407 Mich 909 (1979), and the cases cited therein. In an analogous context, the Court in Lawrence held that prison disciplinary proceedings are "contested cases” under the provisions of the APA, stating:
"The definition of a 'contested case’ is clear and unambiguous. The statutory provision in which we find it requires neither construction nor interpretation. Application of the plain language of the statute leads unalterably to the conclusion that a prison disciplinary hearing fits squarely within the terms of the definition. Such a hearing is certainly a proceeding in which the Department of Corrections is required to make a determination as to an inmate’s legal rights, duties or privileges and there is no question that due process requires that the inmate be given an opportunity for an evidentiary hearing. Wolff v McDonnel, 418 US 539; 94 S Ct 2963; 41 L Ed 2d 935 (1974), Wong Yang Sung v McGrath, 339 US 33; 70 S Ct 445; 94 L Ed 616 (1950).” Id., 171.
Defendant seeks to distinguish Lawrence on the basis that a prisoner has no right to parole. As such, defendant argues that the proceeding in question here is not a "contested case” under MCL 24.203(3); MSA 3.560(103)(3). We disapee. Contested cases are those which determine rights, duties, or privileges of a named party. MCL 24.203(3); MSA 3.560(103)(3). Under Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972), it is beyond peradventure that a parolee’s liberty interest is, at a minimum, a privilege, the potential termination of which by the Department of Corrections requires adherence to due process guarantees. In our opinion, this is sufficient to characterize the parole revocation proceeding as a contested case, triggering application of the APA.
It should also be noted that the Court in Lawrence relied in part on Wolff v McDonnel, 418 US 539; 94 S Ct 2963; 41 L Ed 2d 935 (1974), for the proposition that a prison disciplinary proceeding determined legal rights, duties, or privileges of the prisoner. The Court in Wolff discussed Morrissey and distinguished the earlier case on the ground that the state had a greater interest in controlling a prisoner than in controlling a parolee. The Court stated that the full range of procedures suggested in Morrissey for an alleged parole violator need not be adopted for prisoners accused of misconduct. It therefore appears that, if anything, plaintiff here has the stronger argument than the plaintiff in Lawrence that his legal rights, duties, or privileges were being determined at the revocation hearing.
The trial court relied on the existence of a specific statute governing parole revocation hearings, MCL 791.240a; MSA 28.2310(1), and held that the APA did not expressly or implicitly repeal that statute. The statute provides:
"Within 30 days after a parole prisoner has been returned to a state penal institution under accusation of a violation of his parole, other than the conviction for a felony or misdemeanor punishable by imprisonment in any jail, a state or federal prison under the laws of this state, the United States or any other state or territory of the United States, he shall be entitled to a hearing on such charges before 2 members of the parole board. Hearings shall be conducted in accordance with rules and regulations adopted by the director, and the accused prisoner shall be given an opportunity to appear personally or with counsel and answer to the charges placed against him.”
The statute does not speak to appellate review. It is not clear whether the power to promulgate rules and regulations for the conduct of hearings is inconsistent with or complementary to the APA’s contested case provisions. The Legislature has, since this action began, clarified matters by the passage of 1979 PA 139, which amended MCL 24.315; MSA 3.560(215) to read as follows:
"Chapters 4 and 6 shall not apply to the bureau of worker’s disability compensation or the worker’s disability compensation appeal board created by Act No. 317 of the Public Acts of 1969, as amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws. Chapter 4 shall not apply to a hearing conducted by the department of corrections pursuant to chapter IIIA of Act No. 232 of the Public Acts of 1953, being sections 791.251 to 791.255 of the Michigan Compiled Laws.”
Chapter 4, MCL 24.271; MSA 3.560(171) through MCL 24.287; MSA 3.560(187), regulates procedures for hearings in contested cases. Chapter 6, MCL 24.301; MSA 3.560(201) through MCL 24.306; MSA 3.560(206), provides for judicial review of contested cases. While the Legislature provided that chapters 4 and 6 do not apply to worker’s disability compensation proceedings, it only provided that chapter 4 did not apply to Department of Corrections hearings. Defendant would have this Court infer from this statute that chapter 6 never applied to the Department of Corrections hearings, apparently on the theory that otherwise the Legislature would have provided that it no longer applied. However, the better view is that the Legislature thought chapter 6 applied and wanted it to continue to apply.
Moreover, §55 of 1979 PA 140, MCL 791.255; MSA 28.2320(55), enacted subsequent to the trial court’s decision in this matter, provides:
"A prisoner aggrieved by a final decision or order of a hearings officer or of the department may file a petition for judicial review of the decision or order pursuant to chapter 6 of Act No. 306 of the Public Acts of 1969, as amended, being section 24.301 to 24.306 of the Michigan Compiled Laws.” (Emphasis added.)
Section 55 by its terms applies to final decisions of the Department of Corrections. Therefore, under current law, chapter 6 review is available for parole revocation. In Lawrence, supra, the Court expressly invited the Legislature to clarify its intentions as to the applicability of the APA. The Legislature’s response was a compromise: some parts of the APA apply and others do not. Its actions did not necessarily reflect what it had intended prior law to mean; thus, the subsequent legislation is at best equivocal as to the scope of the APA’s application prior to the passage of 1979 PA 139.
We conclude, however, that consonant with the dictates of Morrissey, supra, due process, at a minimum, requires the availability of judicial review of parole revocation proceedings and that the APA provides the proper framework therefor in chapter 6 of its provisions.
In accord with this finding we are constrained to conclude that the trial court erred in holding that it lacked jurisdiction over the subject matter of this dispute. We find that MCL 24.303(1); MSA 3.560(203X1) vests the lower court in this action with the necessary jurisdiction to hear the cause in its entirety. We, thus, find it unnecessary to decide whether MCL 600.631; MSA 27A.631 would invest the lower court with jurisdiction if the APA did not.
We reverse the decision of the court below and remand the case for trial on the substantive issues raised by plaintiff. We decline plaintiff’s invitation to decide these issues in the first instance in this Court.
Reversed and remanded.
T. Gillespie, J., concurred. | [
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Per Curiam:.
The defendant appeals as of right from his plea-based conviction on August 2, 1979, for attempted carrying a pistol in a motor vehicle, in violation of MCL 750.92; MSA 28.287 and MCL 750.227; MSA 28.424. He was sentenced on August 13, 1979, to 6 months to 2-1/2 years imprisonment, with credit for 33 days served.
The single issue raised in this appeal is whether a sufficient factual basis was elicited at the plea-taking proceeding, pursuant to GCR 1963, 785.7(3)(a).
In support of his plea, defendant stated:
"I was walking down Cass and between Canfield and Willis, and one co-defendant [sic] in the matter rode by and picked me up and asked if I would ride with him to pick up his sister. I told him yes. While I am in the motor vehicle he goes and tells me about the conflict his sister had with this guy, you know. So I rode, and when we got to the place where you just named this guy come up, and I let his sister in the car, and then the co-defendant [sic] comes out from under the seat with a pistol and pulls it on the guy, and he ran and told the police. When we saw him talking to the police we made a U-turn and started fleeing from him, and consequently we were arrested.
"Q Did you have a gun?
"A No.
"Q Did you know the pistol was in the motor vehicle?
"A Yes.”
The concealed weapons statute provides, in pertinent part:
"A person who shall carry a pistol * * * in a vehicle operated by or occupied by him, * * * without a license to carry the pistol as provided by law * * * shall be guilty of a felony.”
In People v Jerome I Smith, 21 Mich App 717, 722; 176 NW2d 430 (1970), this Court defined "carrying” as it applies to the offense of carrying a weapon in an automobile:
"The concealed weapons statute does not punish presence in a car where a pistol is found. The statute’s thrust is 'carrying concealed weapons without a license’. In other words, the point of the statute is to punish 'carrying’. Thus, to convict one who is merely present in a car necessarily rests upon two inferences: (a) an inference that he knows a pistol is present; and (b) an inference that he is carrying the pistol. Therefore, even by showing that someone knew a pistol was present should not lead automatically to a conclusion that he was 'carrying’ the pistol.”
The Court later explained:
"In its ordinary meaning, there must be evidence of participation in the act of carrying in order to convict under the statute.” People v Jerome I Smith, supra, 723.
The Jerome Smith case was cited for the proposition that "carrying” is a separate element in People v Threlkeld, 47 Mich App 691, 697; 209 NW2d 852 (1973), and in People v Meadows, 26 Mich App 675, 678; 182 NW2d 721 (1970). Similarly, "carrying” was recognized as a distinct element of the crime in People v Blalock, 44 Mich App 336, 337; 205 NW2d 185 (1973).
Participation in the act of carrying may be inferred from the fact that a defendant was found to be carrying ammunition usable in the gun in question, People v Meadows, supra, People v Hood, 37 Mich App 195, 197; 194 NW2d 472 (1971); from the defendant’s close proximity to the weapon, People v Sims, 23 Mich App 194; 178 NW2d 667 (1970); or from the fact that the defendant and others were engaged in a common, unlawful enter prise and the gun was being carried in furtherance thereof. People v Little, 58 Mich App 12, 15; 226 NW2d 735 (1975), People v Pearce, 20 Mich App 289, 292; 174 NW2d 19 (1969).
Other panels of this Court have found sufficient evidence to sustain a conviction without discussing any facts that would tend to establish the element of "carrying”. In People v Kremko, 52 Mich App 565, 574-575; 218 NW2d 112 (1974), one panel of this Court indicated that where testimony showed a shotgun and pistol were found in a car occupied by the defendant, which was parked at the side of a street with its motor running, sufficient proof of "carrying” was established. In that case, however, additional proof was presented that the defendants were engaged in a common, unlawful enterprise.
The standard criminal jury instructions reflect the requirement that "carrying” must be established. CJI 11:1:01 states, in part, that in order to convict, a jury "must find beyond a reasonable doubt that the defendant knew of the presence of the pistol and that he participating in the act of carrying the pistol”.
In examining whether the trial court abused its discretion in finding sufficient evidence to bind over a defendant on a concealed weapons charge, one panel of this Court was divided on what evidence was necessary to support the element of carrying. In People v Robert Smith, 49 Mich App 630; 212 NW2d 768 (1973), rev’d on other grounds 393 Mich 432; 225 NW2d 165 (1975), the majority noted that the standard for sufficiency of evidence to bind over is lower than that for sufficiency of evidence to convict, then found no abuse of discretion when a passenger in the third seat of a van was bound over for trial on a showing that an Ml rifle was found under the second seat and ammu nition was found in the front seat. Judge, now Justice, Levin dissented, finding insufficient evidence of carrying. Judge Levin noted that "[t]he majority apparently agree that the evidence is insufficient to convict * * * but hold that it is adequate to support the binding-over decision”. People v Robert Smith, supra, 639. He reasoned that mere presence is insufficient to support an inference of participation in a crime, noting that the inference of guilty participation cannot be drawn from mere association among persons. People v Robert Smith, supra, 638.
The Robert Smith decision on sufficiency of evidence to bind over was cited to support the sufficiency of evidence necessary to convict in People v Little, supra. In the Little case, however, there was evidence of a common, unlawful enterprise, so an inference of carrying was permissible.
In the instant case, the defendant offered no indication that he was participating or had agreed to participate in an unlawful enterprise. There was no testimony that defendant was found to be in close proximity to the gun, nor was there any evidence that ammunition for the gun was found on the defendant. Defendant merely showed that he was in a car with knowledge of the presence of a gun. Whether he gained this knowledge before or after the codefendant pulled out the gun is not clear. The record is inadequate to support his guilty plea.
Failure to establish the element of carrying requires remand. On remand, the prosecutor shall be given an opportunity to establish the missing element. If he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed. If the prosecutor is unable to establish the missing element, the judgment of conviction shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion. GCR 1963, 785.7, Guilty Plea Cases, 395 Mich 96,129; 235 NW2d 132 (1975).
Reversed and remanded. | [
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Per Curiam.
Defendant pled guilty to escape from prison, MCL 750.193; MSA 28.390, as part of a plea agreement in which the prosecutor agreed not to charge defendant as an habitual (third) offender under MCL 769.11; MSA 28.1083. Defendant was sentenced to a consecutive prison term of one to five years and now appeals of right.
Defendant seeks to withdraw his guilty plea because the prosecutor’s plea agreement was illusory. Defendant reaches this conclusion by reasoning that an escape conviction cannot be used to support habitual offender treatment because the escape statute itself requires the imposition of a consecutive sentence. If an habitual offender con viction was secured as well, defendant argues that the escape conviction would result in a twice-enhanced sentence. This sentence would be consecutive under the escape statute and longer than usual under the habitual offender statute. Absent explicit legislative authorization for such a result, defendant asserts that the two statutes cannot be applied in tandem.
We agree that a plea agreement may constitute an illusory bargain if the prosecutor agrees not to charge defendant as an habitual offender in a case where such charge could not be made in any event. People v Roderick Johnson, 86 Mich App 77, 79; 272 NW2d 200 (1978). In the case at bar, however, we do not find that the bargain was illusory.
MCL 750.193; MSA 28.390, provides in clear terms that a person who is convicted thereunder "is guilty of a felony, punishable by further imprisonment for not more than five years. The term of the further imprisonment shall be served after the termination * * * of the sentence or sentences then being served.” (Emphasis supplied.)
MCL 769.11; MSA 28.1083, provides in pertinent part that:
"(a) If the subsequent felony is punishable upon a first conviction by imprisonment for a term less than life, then the court, except as otherwise provided in this section or section 1 of chapter 11, may sentence the person to imprisonment for a maximum term which is not more than twice the longest term prescribed by law for a first conviction of that offense or for a lesser term.” MCL 769.11(l)(a); MSA 28.1083(l)(a).
The habitual offender statutes do not represent separate crimes. Rather, the application of the statutes merely operates to increase the sentence imposed for conviction of the underlying felony. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374, 390; 280 NW2d 793 (1979), People v Stratton, 13 Mich App 350, 359 n 8; 164 NW2d 555 (1968), People v Shotwell, 352 Mich 42, 46; 88 NW2d 313 (1958), cert den 356 US 976; 78 S Ct 1141; 2 L Ed 2d 1149 (1958). Thus, conviction as an habitual offender is not conviction of a second felony on the basis of one offense (the escape). Indeed, this Court has so ruled on previous occasions with regard to escape, People v Shastal, 26 Mich App 347, 351-352; 182 NW2d 638 (1970), and aiding a prisoner to escape from a county jail, People v Potts, 55 Mich App 622, 639; 223 NW2d 96 (1974), lv den 391 Mich 833 (1974).
In People v Shotwell, 352 Mich 42; 88 NW2d 313 (1958), defendant argued that the Legislature did not intend the escape statute and the habitual offender statute to be applied in tandem. The Michigan Supreme Court rejected the argument in pertinent part as follows:
"While defendant does not cite the case, we note there is some possible comfort for him in some of the things we said in People v Brown, 253 Mich 537 (82 ALR 341). Despite that case, however, we further note that substantive crimes are created and defined in our penal code whereas the statutory provisions for second and subsequent offenders are found in our code of criminal procedure. This is some indication, we think, that the legislature did not intend to make a separate substantive crime out of being a habitual criminal but rather, for deterrent purposes, intended to augment the punishment for second or subsequent felonies. Since the legislature did not except escaping prison from our second offender statute we can only infer that it intended the latter statute to apply to all felonies. This we held with little if any discussion in In re Wilson, 295 Mich 179.” 352 Mich 42, 46.
On the authority of Shotwell, supra, we feel compelled to reject defendant’s argument here. The Supreme Court’s conclusion that the second offender statute was intended to apply to all felonies, including escapes, is further strengthened by the 1978 amendment to MCL 769.11; MSA 28.1083; 1977 PA 1978. As amended, this statute now excepts major controlled substance offenses from the punishment provisions of the habitual offender act. MCL 769.11(l)(c); MSA 28.1083(l)(c). The specific exception of such offenses from the operation of the act indicates that the Legislature did not intend to except escape therefrom. Finally, MCL 769.12(4); MSA 28.1084(4) states that MCL 769.11; MSA 28.1083 "govern[s] the length of sentence to be imposed for the commission of a subsequent felony and [is] not in derogation of other provisions of law which permit or direct the imposition of a consecutive sentence for a subsequent felony”. Thus, the Legislature has evidenced its intent to sanction the use of the habitual offender statute in tandem with a consecutive sentence requirement.
Defendant’s plea agreement was not an illusory bargain.
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Hood, J.
The trial court entered a preliminary injunction that enjoined defendant from “implementing, executing, enforcing, or in any way giving effect to Revised Civil Service Rule 4-6” and preserved the status quo that existed before the effective date of the revised rule. The trial court later issued an order denying defendant’s motion for a protective order relative to plaintiffs’ request for production of docu ments. Defendant appeals the injunction and order by leave granted, and we affirm in part, reverse in part, and remand.
1. FACTS AND PROCEDURAL HISTORY
The facts of this case can be stated simply. Defendant amended Civil Service Rule 4-6 on May 8, 1997, which rule was to be effective on June 1, 1997. The rule addresses the procedures by which state agencies are to contract and pay for services from persons other than classified state employees. The revised rule retained a preauthorization provision and added language and rules to it. That procedure allows an appointing agency to authorize its own disbursements for any preauthorized services without submitting requests to defendant or obtaining defendant’s approval. Amended Rule 4-6 also added a new sub-rule, which established a procedure for “decentralized approval without prior civil service review.” Under that subrule, an appointing authority may, under certain circumstances, authorize disbursements for the personal services of person who are not classified employees of the state without the approval of the Department of Civil Service. The revised rule also included a new standard for “mixed contracts” and clarification of defendant’s appeal rules and procedures.
Plaintiff Michigan Coalition of State Employees is an alliance of collective bargaining unions representing various groups of classified state employees. The coalition filed an action to enjoin implementation of the revised rule, claiming that several portions of it were unconstitutional and specifically violated Const 1963, art 11, § 5. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), and Lynda Taylor-Lewis intervened as plaintiff. Const 1963, art 11, § 5 provides in part:
The Commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service.
No payment for personal services shall be made or authorized until the provisions of this constitution pertaining to civil service have been complied with in every particular. Violation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state. [Emphasis added.]
At the hearing regarding the preliminary injunction, the trial court determined that plaintiffs were likely to succeed on the merits of their claims that the “preauthorization” and “decentralized approval” provi sions of the rule violate defendant’s constitutional responsibility to approve or disapprove disbursements for personal services. The trial court entered the following preliminary injunction:
Now therefore IT is hereby ordered that Defendant Michigan Civil Service Commission, its officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise, be and are hereby enjoined from implementing, executing, enforcing, or in any way giving effect to Revised Civil Service Rule 4-6, adopted on May 8, 1997 and effective on June 1, 1997 and that the status quo which existed prior to the effective date of this revised rule is preserved pending further order of this Court.
Plaintiffs thereafter filed an amended complaint adding several constitutional challenges to the 1993 version of Rule 4-6. Plaintiffs then served defendant with a request for production of documents, seeking virtually all of defendant’s documents regarding decisions on disbursements for personal services rendered since October 1, 1993. Defendant moved for a protective order, which was subsequently denied by the trial court.
This Court granted leave to appeal from both the preliminary injunction and the order denying defendant’s request for a protective order.
H. PRELIMINARY INJUNCTION
Defendant first argues that the circuit court erred in granting the preliminary injunction to enjoin it .from implementing the 1997 revisions to Rule 4-6.
We review a trial court’s decision to grant injunc-tive relief for an abuse of discretion. Michigan State AFL-CIO v Secretary of State, 230 Mich App 1, 14; 583 NW2d 701 (1998).
In determining whether to issue a preliminary injunction, a court must consider four factors: (1) harm to the public interest if the injunction issues; (2) whether harm to the applicant in the absence of temporary relief outweighs the harm to the opposing party if relief is granted; (3) the likelihood that the applicant will prevail on the merits; and (4) a demonstration that the applicant will suffer irreparable ipjury if the relief is not granted. Other considerations surrounding the issuance of a preliminary injunction are whether it will preserve the status quo so that a final hearing can be held without either party having been injured and whether it will grant one of the parties final relief before a hearing on the merits. The trial court’s decision must not be arbitrary and must be based on the facts of the particular case. [Id., quoting Thermatool Corp v Borzym, 227 Mich App 366, 376; 575 NW2d 334 (1998).]
Defendant argues that the “decentralized approval” and the “preauthorization” procedures are constitutional. By making this argument, it is essentially disputing whether there was a sufficient showing by plaintiffs that they were likely to prevail on the merits of their constitutional challenge to those procedures as outlined in revised Rule 4-6.
With regard to the “decentralized approval” subrule, we find that it is facially unconstitutional and that the trial court did not abuse its discretion by finding that plaintiffs are likely to prevail on the merits of their claim regarding this provision. Under the decentral ized approval procedure, an appointing authority may authorize its own disbursements for the services of outside workers without prior approval by the Department of Civil Service. This conflicts with Const 1963, art 11, § 5, which requires the commission to approve or disapprove all disbursements. We cite with approval the reasoning of the Attorney General in OAG, 1979-1980, No 5,663, p 615 (February 14, 1980). There, the Civil Service Commission proposed a rule establishing a classified executive service composed of higher level management positions. Under the regulations accompanying the rule, changes in compensation for the positions would be determined by the appointing authorities. The Attorney General determined that allowing the appointing authorities to fix the compensation of the managers was an unconstitutional delegation of the commission’s duties:
It is a basic principle of law that duties, responsibility or power given by constitution or statute to one public body or officer cannot be delegated to another public body or officer.
“A power definitely assigned by the constitution to one department cannot be surrendered or delegated by that department or vested by statute in another department or agency.” 16 CJS Constitutional Law § 105, p 489. [Id. at 618-619.]
Because the new decentralized approval procedure allows for self-approval of disbursements to outside contractors, it is unconstitutional on its face. It shifts the constitutional duty to approve disbursements from defendant to the appointing authorities directly.
With regard to the “preauthorization” procedure, however, we conclude the opposite, that it was an abuse of discretion for the trial court to determine that plaintiffs were likely to prevail on the merits. The “preauthorization” procedure is not facially unconstitutional. Pursuant to that procedure, defendant, through the Civil Service Department, establishes a list of personal services that are automatically deemed appropriate for contract with outside providers. The appointing authority does not have to obtain permission from the department to obtain the services of outside workers when the services are included on the preapproved list. On its face, this procedure does not transfer defendant’s constitutional duty to approve or disapprove disbursements for personal services to the appointing agencies. Rather, the duty to approve or disapprove certain services is exercised by defendant when it formulates the list of preauthorized services. And, while plaintiffs may not agree with defendant’s determination that a certain service should be automatically approved in accordance with the list, this disagreement is relevant to the correctness of defendant’s decision to approve the service for outside persons, and not the improper delegation of approval by defendant. Thus, we believe that plaintiffs are not likely to succeed on the merits of the claim that the “preauthorization” procedures as set forth in revised Rule 4-6 violate Const 1963, art 11, § 5.
For purposes of reviewing the preliminary injunction only, we determine that the trial court properly concluded that plaintiffs were likely to prevail on their constitutional challenge to the “decentralized approval” procedure, although it incorrectly determined that they will likely prevail in their constitutional challenge to the preapproval provision. The trial court did not abuse its discretion in issuing a preliminary injunction to preclude the effect of the “decentralized approval” procedure. However, to the extent that the preliminary injunction blocked the implementation of the revised preapproval procedure, the trial court abused its discretion in issuing the injunction. We stress, however, that our analysis of these issues is for the purpose of ruling on the propriety of the preliminary injunction only. When the matters are tried, the actual determinations of all of plaintiffs’ claims must initially be made by the trier of fact in the trial court.
In addition to arguing that there was not a sufficient showing that plaintiffs were likely to prevail on the merits, defendant also claims that the injunctive relief caused egregious harm to the public interest. We disagree. Const 1963, art 11, § 5 expressly provides for injunctive relief to restrain violations of and enforce its provisions. See Reed v Civil Service Comm, 301 Mich 137, 151-152; 3 NW2d 41 (1942); Dudkin v Civil Service Comm, 127 Mich App 397, 404-405; 339 NW2d 190 (1983). In this case the trial court preserved the status quo when it issued the injunction. Therefore, we cannot accept an argument that the temporary injunctive relief disrupted the provision of personal services by those outside the classified service or had “a devastating impact on the operation and administration of services that benefit this State.” Disbursements for personal services could continue to be made pursuant to the 1993 version of Rule 4-6. Moreover, we also find defendant’s claim that the injunction usurped defendant’s rule-making power to be without merit. The injunction does not prevent defendant from promulgating any rules. Rather, it merely halted the effect of the 1997 revision of Rule 4-6 pending a determination whether the rule was contrary to Const 1963, art 11, § 5.
Defendant next argues that no injunction should have been ordered where plaintiffs failed to demonstrate that they would suffer irreparable injury if the injunction was not issued. It argues that “[a] bare allegation of a constitutional violation fails to demonstrate irreparable harm.” We disagree because Const 1963, art 11, § 5 specifically provides that “[violation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state.” As a matter of first impression, we believe that this language is a constitutional declaration that a violation of Const 1963, art 11, § 5, in itself, amounts to irreparable harm supporting injunctive relief.
We find support for this ruling by adopting the reasoning of the court in CSX Transportation, Inc v Tennessee State Bd of Equalization, 964 F2d 548, 551-552 (CA 6, 1992), which involved a federal railroad taxation statute:
Under traditional equitable principles for granting a preliminary injunction in this Circuit, a court must consider (1) whether the moving party has a substantial probability of success on the merits; (2) whether irreparable injury will occur if the injunction is not issued; (3) whether the injunction will have a harmful effect on third parties; and (4) whether the public interest would be served by the injunction. In addition, an injunction generally should not issue if there is an adequate remedy at law. However, since Congress has expressly authorized the granting of injunctive relief to halt or prevent a violation of [the statute], traditional equitable criteria do not govern the issue of injunctions under [the statute]. In order to issue a preliminary injunction under [the statute], a court must determine only whether there is “reasonable cause” to believe that a viola tion of [the statute] has occurred or is about to occur. [Citations omitted.]
Because the constitutional provision itself allows for the issuance of an injunction to restrain violations, an additional showing of irreparable harm is not necessary.
We also address defendant’s arguments that plaintiffs lacked standing to even bring their action. Const 1963, art 11, § 5 authorizes “any citizen of the state” to bring injunctive proceedings to restrain violations of the amendment. Defendant argues that plaintiff coalition does not qualify because it is not a “citizen.” We disagree with defendant’s conclusion.
Traditionally, private citizens have no standing to vindicate a public wrong or enforce a public right if they are not hurt in any manner differently than the citizenry at large. Detroit Fire Fighters Ass’n v Detroit, 449 Mich 629, 634; 537 NW2d 436 (1995) (Weaver, J.), quoting Waterford School Dist v State Bd of Ed, 98 Mich App 658, 662; 296 NW2d 328 (1980). The civil service amendment, Const 1963, art 11, § 5, does not enforce traditional standing principles because by its very language, it allows any citizen to enjoin a violation of the amendment. Thus, any citizen could have brought this action. Logic dictates that an organization made up of members who would have standing to sue in their individual capacities should have standing to sue for its members. See, e.g., Trout Unlimited, Muskegon-White River Chapter v White Cloud, 195 Mich App 343, 348; 489 NW2d 188 (1992).
Finally, we would be remiss if we did not note that while the trial court initially questioned whether Const 1963, art 11, § 5 ever allows any subcontract ing of jobs by defendant for the purpose of saving money, it did not rule or issue the injunction on that basis and thus reversal on that basis is not necessary. The trial court’s implication that subcontracting may be unconstitutional and inappropriate, however, is clearly not supported by law. This Court has held that the Civil Service Commission is authorized to approve disbursements for services performed by persons outside the classified service for the purposes of efficiency and economy. Int’l Union, United Automobile, Aerospace & Agricultural Implement Workers of America v Civil Service Comm, 223 Mich App 403, 406; 566 NW2d 57 (1997); Michigan State Employees Ass’n v Civil Service Comm, 141 Mich App 288, 292-293; 367 NW2d 850 (1985).
m. PROTECTIVE ORDER
Plaintiffs’ amended complaint challenged the constitutionality of portions of the 1993 version of Rule 4-6. Plaintiffs served defendant with a request for production of documents related to those allegations. Defendant argues that the trial court did not have subject-matter jurisdiction over the issues in the amended complaint and, therefore, it improperly ordered it to comply with the request for production of documents. We disagree that the trial court abused its discretion by failing to grant defendant’s motion for a protective order, and we find that the trial court had subject-matter jurisdiction over the case.
Defendant’s argument that res judicata applies to bar the trial court from asserting subject-matter jurisdiction is basically flawed. The principles of res judi-cata do not divest a court of subject-matter jurisdiction.
“[J]urisdiction over the subject matter is the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the Mnd or character of the one pending; and not whether the particular case is one that presents a cause of action . . . .” [Bowie v Arder, 441 Mich 23, 39; 490 NW2d 568 (1992), quoting Joy v Two-Bit Corp, 287 Mich 244, 253-254; 283 NW 45 (1938).]
The purpose of res judicata on the other hand “is to avoid relitigation of claims.” In re Hill, 221 Mich App 683, 689; 562 NW2d 254 (1997). It operates to bar subsequent actions between the same parties when the facts or evidence essential to the maintenance of the two lawsuits are identical and the issues and parties or privies are identical. Id. at 689-690. It is a principle of finality, see Topps-Toeller, Inc v Lansing, 47 Mich App 720, 727; 209 NW2d 843 (1973), not of a court’s abstract power to hear a case.
We emphasize that Int’l Union, supra, Michigan State Employees Ass’n, supra, and this Court’s order in United Technical Employees Ass’n v Civil Service Comm, unpublished order of the Court of Appeals, entered May 20, 1998 (Docket No. 207074), have no res judicata effect on this case. The parties in those cases are not identical to the parties in this case, and the issues addressed in those cases are not the same as the issues in these cases, specifically none of those cases addressed the constitutionality of the “decentralized approval” and preauthorization procedures.
We also disagree with defendant’s argument that the trial court lacked subject-matter jurisdiction because plaintiffs had failed to exhaust their administrative remedies. Defendant’s claim that plaintiffs had to exhaust all administrative remedies in order to challenge the decisions made under the 1993 version of Rule 4-6 fundamentally misses the point. Plaintiffs are not attempting to challenge any particular decisions regarding approval of disbursements for outside services, but are challenging the constitutionality of the procedures themselves. The administrative remedies are not in place for that purpose, but are in place to allow for challenges to the decisions themselves. Thus, defendant’s argument in this regard is disingenuous.
Finally, we note that even if we agreed with defendant’s argument that plaintiffs lacked standing, which we do not, a lack of standing does not deprive a trial court of subject-matter jurisdiction. Bowie, supra at 49; Altman v Nelson, 197 Mich App 467, 476; 495 NW2d 826 (1992).
The trial court had subject-matter jurisdiction in this case and, therefore, it had authority to order discovery. Defendant does not challenge the terms of the discovery order. Accordingly, we affirm the trial court’s refusal to grant a protective order and its accompanying order that discovery should proceed.
IV. CONCLUSION
The trial court did not abuse its discretion in entering a preliminary injunction and preserving the status quo with regard to revised Rule 4-6, specifically with regard to the decentralized approval procedure. However, to the extent that the preliminary injunction blocked the implementation of the revised preap-proval procedure, we find an abuse of discretion and remand to the trial court to vacate the injunction as it pertains to that portion of the rule. We also conclude that the trial court had subject-matter jurisdiction of plaintiffs’ claims as alleged in their amended complaint and, thus, the trial court properly ordered that discovery take place.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
We note that after we granted leave to appeal, plaintiffs filed an application for leave with the Supreme Court, which application was denied. The Supreme Court, however, ordered this Court to hear and decide this case on an expedited basis. 459 Mich 865 (1998).
Under the “decentralized approval” subrule, an appointing authority is still required to obtain defendant’s approval for disbursements if its actions in authorizing a disbursement would result in the layoff of a classified employee, or if the disbursements would exceed $500,000 in one year or $2,000,000 over the life of the contract, or if the appointing authority “has or will enter into six (6) or more separate contracts for substantially the same personal services in one fiscal year.”
It appears that defendant is challenging the injunction only as it pertains to the “decentralized approval” and “preauthorization” procedures, and not any other procedures in revised Rule 4-6. Defendant does not specifically address the revised rule as regards the new standard for “mixed contracts” or the clarified appeal rules and procedures.
The trial court also did not issue the preliminary injunction on the basis of any due process violations, and thus we find it unnecessary to address defendant’s arguments that because no due process rights have been violated, no injunction should have been issued.
According to defendant, there were approximately eleven thousand decisions made under the 1993 version of Rule 4-6 before the time of this suit. | [
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] |
Per Curiam.
Plaintiff Larry Lee Hampton appeals as of right the trial court’s order granting summary disposition in favor of defendants Waste Management of Michigan, Inc., and Northwest Market, Inc., pursuant to MCR 2.116(C)(10) in this premises liability case. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Hampton alleged in his complaint that, on October 6, 1995, at about 2:15 P.M., he was on Northwest Mar ket’s property to inspect a roof on a building adjacent to the property and that a rubbish bin (the dumpster) owned by Waste Management was located on the property. According to the complaint, as Hampton was descending a ladder, “the ladder slipped out from under him as a result of an oily substance leaking from Defendant’s [sic—Waste Management’s] rubbish bin, thereby causing [Hampton] to fall” and resulting in injury.
Hampton indicated in his deposition testimony that he fell from a ladder on Northwest Market’s property and that he “had grease and oily stuff all over [his] hands and face where [he] had hit right there at the bottom of the ladder.” Hampton believed that the substance on him leaked out of the dumpster because “there was nothing else in the parking lot [other] than that dumpster.”
Another witness, Jerry Wood, testified during his deposition that the ladder “just took off like it was on butter” at the time of the fall. Matt Gunsell, similarly indicated during his deposition that a substance like cooking oil, grease, or Crisco oil got on his clothes when he assisted Hampton after Hampton fell. Wood also described a “greasy film” on Hampton’s body or clothes after the fall. Wood testified as follows regarding the dumpster on Northwest Market’s premises:
From the dumpster, from it sitting so long. And you could see where all the drainage of anything would come out of the dumpster, whatever it would be.
Well, when .... After we had called the paramedics and everything, to stand beside the dumpster [sic].... And I do recall this. It was like from one comer to the back of the dumpster to the other comer of the dumpster it looked like it had . . . like it was . . . just like it was weeping out of it down into . . . like it was draining out.
And it looked like a little . . : . You know, it formed down to like a little river like thing. You know, after something has been sitting so long, you know. It just builds out, then down.
However, no deposition testimony or other documentary evidence presented to the trial court specifically indicated when a substance allegedly leaked from the dumpster or the identity of who may have placed the substance in the dumpster.
The trial court stated during a motion hearing with regard to defendants’ motion for summary disposition under MCR 2.116(C)(10) as part of its rationale for granting the motion that it thought “this whole case is so speculative that.... You know, you can talk about every case having some question of fact... I usually do . . . but in this one, I just ... I just can’t do it in good conscience because I really can’t see where Northwest [Market] or Waste Management did anything inappropriate.” Accordingly, the trial court entered an order granting summary disposition in favor of Waste Management and Northwest Market.
H. STANDARD OF REVIEW
This Court reviews decisions on motions for summary disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion under MCR 2.116(C)(10) tests whether there is factual support for a claim and is reviewed to determine whether the affidavits, pleadings, depositions, or any other documentary evidence establish a genuine issue of material fact to warrant a trial. Spiek, supra. On appeal, as below, all reasonable inferences are resolved in the nonmoving party’s favor. Bertrand v Alan Ford, Inc, 449 Mich 606, 615; 537 NW2d 185 (1995).
m. GENERAL PRINCIPLES OF NEGLIGENCE LAW
To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175 (1993); Swan v Wedgwood Christian Youth & Family Services, Inc, 230 Mich App 190, 195; 583 NW2d 719 (1998). Duty can arise from a statute or a contract or by application of the basic rule of common law, which imposes an obligation to use due care or to act so as to not unreasonably endanger the person or property of others. Riddle v McLouth Steel Products Corp, 440 Mich 85, 95; 485 NW2d 676 (1992). If factual questions exist regarding what characteristics giving rise to a duty are present, the issue must be submitted to the factfinder. Howe v Detroit Free Press, Inc, 219 Mich App 150, 155; 555 NW2d 738 (1996).
IV. DEFENDANT WASTE MANAGEMENT’S LACK OF DUTY UNDER PREMISES LIABILITY LAW
We may easily dispose of this appeal as regards Waste Management. Although Hampton argues that he was lawfully present on Northwest Market’s premises, there is no evidence to suggest that Waste Management possessed or controlled the premises. A claim of premises liability is conditioned on the presence of both possession and control over the premises. Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 660, 662; 575 NW2d 745 (1998). Therefore, we find, as a matter of law, Waste Management did not owe the requisite duty, Schultz, supra, to Hampton to support his claim against Waste Management. Accordingly, summary disposition of plaintiff’s claim in regard to defendant Waste Management was proper.
V PLAINTIFF’S CLAIM AGAINST NORTHWEST MARKET
The duty that a possessor of land owes to another person who is on the land depends on the latter person’s status. Stanley v Town Square Cooperative, 203 Mich App 143, 146; 512 NW2d 51 (1993). The status of a person on land that the person does not possess will be one of the following: (1) a trespasser, (2) a licensee, or (3) an invitee. Id. at 147. The parties dispute the status held by Hampton when he was on Northwest Market’s land at the time of his fall.
However, even if we assume without deciding that Hampton was an invitee entitled to the highest level of protection under premises liability law, Northwest Market would be “ ‘ “liable for injury resulting from an unsafe condition either caused by the active negligence of [itself] and [its] employees or, if otherwise caused, where known to the storekeeper or [the condition] is of such a character or has existed a sufficient length of time that [it] should have had knowledge of it.” ’ ” Berryman v K mart Corp, 193 Mich App 88, 92; 483 NW2d 642 (1992), quoting Serinto v Borman Food Stores, 380 Mich 637, 640-641; 158 NW2d 485 (1968), quoting syllabus No. 1 in Carpenter v Herpolsheimer’s Co, 278 Mich 697; 271 NW 575 (1937) (emphasis supplied).
Hampton argues that notice need not be shown where a dangerous condition is caused by a premises possessor or its employees. However, in keeping with the basic tenets of negligence law that require a breach of duty as an essential element of a valid negligence claim, Schultz, supra; Swan, supra, and the above language from Berryman and Serinto, we conclude that this principle applies only where an employee of a premises possessor creates a dangerous condition through an unreasonable act or omission that breaches a duty owed to a visitor on the land. In other words, that a reasonable act or omission of a premises possessor or its employee plays a role in the creation of a dangerous condition does not make the premises possessor liable for any injury to an invitee that is causally connected to that reasonable act or omission. While this may be so basic as not to have been expressly addressed in prior Michigan case law, this concept is inherent in the well-established principle that a possessor of land “is not an insurer of the safety of an invitee.” Stanley, supra at 150. For example, Northwest Market’s reasonable act of simply having a parking lot and a building on the land were remote causal factors in this accident. Obviously, that does not serve to impose liability on Northwest Market for any injuries that Hampton suffered in his fall from the ladder because the maintenance of a parking lot and building for business purposes is a reasonable act and thus not a breach of duty toward an invitee.
Similarly, we conclude as a matter of law that there is no evidence to reasonably support a finding that Northwest Market or any of its employees breached any duty to its invitees (or by necessary implication to its licensees or trespassers on its land) by merely having possibly placed a substance in the dumpster that leaked out. Under the circumstances of this case, it may well be highly questionable whether there was sufficient evidence to reasonably support a factual determination that an oily substance leaked from the dumpster to the area where Hampton’s ladder rested on the parking lot surface. See, e.g., Berryman, supra at 92 (a prima facie case of negligence may be established with the use of legitimate inferences, but requires more than conjecture).
Nevertheless, even if we presume that the substance did so leak from the dumpster, there is no indication that Northwest Market or any of its employees had any knowledge of material ever leaking from the dumpster in the past. Thus, there was no evidence presented to reasonably support a finding that either Northwest Market or any of its employees should have anticipated that any material placed in the dumpster would leak from it. Also, there was no evidence that Northwest Market or any of its employees knew or should have known, Berryman, supra at
92, of the alleged presence of the oily substance during the time that Hampton was working in and near its parking lot before or at the time of his fall. Thus, we conclude that the trial court properly granted summary disposition in favor of Northwest Market pursuant to MCR 2.116(C)(10) because there was no evidence of an unreasonable act or omission by Northwest Market or any of its employees that was a proximate cause of Hampton’s accident or that Northwest Market had actual or constructive notice of the alleged leak from the dumpster.
We note that the case at hand is distinguishable, both legally and factually, from Berryman, supra. In Berryman, supra at 89, the plaintiff slipped and fell in one of the defendant’s stores. This Court concluded that the trial court erred in granting the defendant’s motion for a directed verdict where the evidence supported a logical inference “that defendant’s employees had mopped the floor on which Mrs. Berryman had fallen and that they had failed to post adequate warning signs.” Id. at 93. This Court observed that the principal plaintiff in Berryman “established that defendant owed her a duty, that defendant breached that duty by creating a condition that was dangerous, that the condition created caused her injury, and that she suffered damages.” Id. at 93-94.
It is true that the Berryman Court also stated that “[b]ecause the evidence leads to an inference that defendant created the condition that caused [the principal plaintiff’s] fall, proof of notice is unnecessary . . . .” Id. at 93. However, as we noted above, the Berryman panel had previously stated the principle that a storekeeper is liable for injury resulting from the active negligence of its employees. Berryman may not reasonably be read for the extraordinary proposition, totally at odds with basic principles of negligence law, that a premises possessor may be held liable for harm that inadvertently results in an attenuated sense from a reasonable act by an employee of the premises possessor, i.e., placing trash in a dumpster in ordinary circumstances. Rather, the circumstantial evidence in Berryman would have supported a finding that the defendant’s employees failed to post adequate warnings of a floor that was wet because it had been mopped, and thus that the defendant’s employees were actively negligent. Accordingly, Berryman, supra at 92-93, stands for the simple principle that where a plaintiff invitee in a premises liability case has presented evidence sufficient to support a finding of active negligence by a defendant storekeeper’s employees that created a dangerous condition resulting in injury to the plaintiff, the plaintiff does not need to present further evidence that the defendant was on notice of the dangerous condition to avoid a directed verdict. However, because Hampton presented no evidence to support a finding of active negligence by Northwest Market or its employees in connection with his unfortunate fall, this principle from Berryman is inapplicable.
We acknowledge that in Albro v Total Petroleum, Inc, 108 Mich App 1, 4; 310 NW2d 252 (1981), a case invoked by Hampton, this Court stated, in the course of reversing a grant of summary disposition in favor of the defendant in a premises liability case, that, “[n]otice may be inferred, however, where the presence of the substance causing the accident is ‘occasioned by the proprietor or an employee.’ [Suci v Mirsky, 61 Mich App 398, 402; 232 NW2d 415 (1975)].” However, we conclude, in accordance with our above discussion, that a finding of constructive notice where an accident is “occasioned” by the act of a proprietor or its employee is limited to circumstances in which the act by a proprietor or employee that “occasions” the accident is an unreasonable act. In this regard, we note that the circumstances of Albro involved the principal plaintiffs having allegedly slipped and fallen on spilled coffee at a place of business after the building became dark because of a complete power failure. Albro, supra at 2-3.
Further, the place at which the principal plaintiff in Albro allegedly fell was near the employees’ coffee room that was supposed to be used only by employees of the defendant company, which provided sufficient circumstantial evidence to support a finding that an employee of the defendant spilled the coffee. See id. at 3-5. If an employee of a business spills coffee on a floor and fails to clean it up, this would almost always be an unreasonable act. Thus, the circumstantial evidence in Albro that an employee of the defendant in that case did exactly that was sufficient to defeat the defendant’s motion for summary disposition. Accordingly, the Albro panel had no occasion to consider a situation in which a reasonable act by a business proprietor or its employee allegedly played a direct causal role in an injury to a plaintiff.
In the case at hand, at most the evidence presented arguably supported a finding that Northwest Market or one of its employees placed trash in a dumpster and that an oily substance in that trash leaked from the dumpster. Without more, however, that is insufficient to support a finding of negligence because placing trash in a dumpster is ordinarily a reasonable act. In sharp contrast to spilling coffee on the floor of a building and failing to clean it up, placing trash in a dumpster in or near a parking lot does not ordinarily involve the creation of a direct danger to visitors to the parking lot.
In sum, the trial court properly granted summary disposition in favor of both Waste Management and Northwest Market under MCR 2.116(C)(10).
Affirmed.
Deposition testimony was also presented in relation to the circumstances under which Hampton was on Northwest Market’s property for purposes of determining Hampton’s status on the land, e.g., whether he was an invitee, a licensee, or a trespasser. However, that issue is not material to our resolution of this appeal. Charles Watmuff, an employee of Waste Management, also indicated in an affidavit that “leak testing” of the dumpster at issue found that it did not leak any water. However, we place no reliance on that affidavit in our analysis of this appeal.
In Suci, supra at 402, this Court likewise stated in dicta, “[k]nowledge of the unsafe condition is inferred where occasioned by the proprietor or an employee.” | [
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] |
Gage, P.J.
In this action to quiet title, plaintiffs appeal as of right the trial court’s grant of summary disposition to defendants pursuant to MCR 2.116(C)(4) and (10). We reverse and remand.
i
FACTS AND PROCEEDINGS
The plaintiffs in this case are Beulah Hoagland Appleton, the Beulah Hoagland Appleton Qualified Personal Residence Trust, and the Walloon Lake Countiy Club. The contested property is a 302.5-foot-long, 66-foot-wide strip of land, the center line of which is the border between Emmet and Charlevoix Counties. Plaintiff Beulah Hoagland Appleton Qualified Personal Residence Trust (the trust) holds record title to the largest portion of this land. Plaintiff Beulah Hoagland Appleton (Appleton) is the trust’s settlor and occupant of lands located both north and south of the county line, including the disputed strip of land. According to plaintiffs’ first amended complaint, plaintiff Walloon Lake Country Club is the record titleholder to approximately twenty-six feet of the disputed strip of land located in Charlevoix County, and holds an easement in the east seventy-five feet of the land lying south of the county line. Bear River Road runs east and west toward the east side of Walloon Lake, and forms a “T” intersection with Country Club Road, which runs north and south on the east side of the lake.
In November 1996, defendants, the Charlevoix and Emmet County Road Commissions each separately ordered that Appleton remove a fence running perpendicular to the county line across the disputed property, which fence Appleton averred her father installed circa 1940, on the basis that the strip of land constituted a public highway, specifically a portion of Bear River Road extending west to Walloon Lake from the point where Bear River Road intersects with Country Club Road. The following month, plaintiffs filed the instant suit seeking to quiet title to the disputed strip of land. Plaintiffs alleged that the disputed property had never been maintained, dedicated, or otherwise established as a public highway, that they held record title to the property and had openly, notoriously, and exclusively occupied it for sixty-eight years, and that therefore they possessed the superior interest in the property. Plaintiffs alternatively claimed that even if defendants had ever possessed some interest in the strip of land, they had abandoned it. As a further alternative argument, plaintiffs claimed that if it was determined that a public road existed, its width would be limited by law to that width actually utilized for road purposes.
Defendants and plaintiffs both moved for summary disposition. The trial court granted summary disposition to defendants pursuant to MCR 2.116(C)(10), finding that undisputed evidence and “common sense” indicated that Bear River Road ran to the edge of Walloon Lake, and pursuant to MCR 2.116(C)(4), finding that it did not have jurisdiction over plaintiffs’ claim that defendants had abandoned their interests in the strip of land because it was a county road subject to the exclusive jurisdiction of the county road commissions.
n
ANALYSIS
A. NATURE OF THE CASE
In an action to quiet title, the plaintiffs have the burden of proof and must make out a prima facie case of title. Stinebaugh v Bristol, 132 Mich App 311, 316; 347 NW2d 219 (1984). If the plaintiffs make out a prima facie case, the defendants then have the burden of proving superior right or title in themselves. Boekeloo v Kuschinski, 117 Mich App 619, 629; 324 NW2d 104 (1982). Actions to quiet title are equitable in nature and are reviewed de novo by this Court. Dobie v Morrison, 227 Mich App 536, 538; 575 NW2d 817 (1998). We also review the trial court’s grant of summary disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). In reviewing a grant of summary disposition pursuant to MCR 2.116(C)(4) or (10), we consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted to determine whether the defendant was entitled to judgment as a matter of law or whether the affidavits and other proofs show that there was no genuine issue of material fact to warrant a trial. Id., Walker v Johnson & Johnson Vision Products, Inc, 217 Mich App 705, 708; 552 NW2d 679 (1996).
Plaintiffs presented sufficient prima facie evidence that they did acquire and now do possess some interest, legal or equitable, in the property. Calhoun v Calhoun, 361 Mich 698, 700; 106 NW2d 158 (1960). Plaintiffs described the chain of title through which they claim ownership of the disputed strip of property. Appleton’s affidavit stated that while she had been on the property near Walloon Lake every year since 1929, she had never witnessed any utilization or maintenance of the disputed property as a public highway. She further alleged that since 1929 trees had grown within the disputed property, some of which she replanted in the 1940s, and that she installed a closed gate that has traversed the disputed property since 1983. Appleton’s son also provided an affidavit in which he alleged he had never witnessed evidence that a public right of way had ever existed within the disputed property. Photographs of the disputed property taken in 1941 and 1997 and attached to his affidavit show mature trees growing within the disputed property. Because this evidence establishes a prima facie case of plaintiffs’ interest in the property, for summary disposition in favor of defendants to be appropriate, defendants must have then illustrated that as a matter of law they held superior title.
B. SUFFICIENCY OF DEFENDANTS’ EVIDENCE REGARDING ESTABLISHMENT OF A PUBLIC ROAD
Plaintiffs first contend that the trial court erred in granting defendants summary disposition because defendants’ evidence was insufficient to establish the creation of a public highway. The trial court relied on “common sense” and the following evidence in concluding that the property was a public highway:
The plaintiffs do not dispute that various maps and surveys depict Bear River Road terminating at the water’s edge. Obviously, the townline and county line continue to the water’s edge. It would seem that to terminate the road 300’ from the water defies common sense, particularly in view of historical usage of bodies of water at road ends. Moreover, there is undisputed direct evidence that supports that conclusion.
Bear River Road was originally laid out by the federal General Land Office when the territory was divided into townships when the government, rather than private individuals, owned the adjacent parcels.[ ] The earliest recorded plat map, dated 1901, shows Bear River Road as an inter-county road dividing Charlevoix and Emmet Counties to the water’s edge of Walloon Lake. The defendants have submitted a 1902 photograph which shows Bear River Road as a dirt trail at the intersection of Howard and Bear River Roads.
Plat maps for both Melrose and Bear Creek Townships, dated 1904, show Bear River Road going to the water’s edge. A survey done in 1909 shows Bear River Road proceeding to the water’s edge. This survey was commissioned by an adjoining landowner. A 1917 map shows the road terminating at the water’s edge. Minutes from an April 20, 1925 joint road commission meeting reflect a resolution making Bear River Road a part of the county road system. It was known as County Line Road at that time. A county road tax was assessed on the road. The 1931 McNitt map shows Bear River Road as gravel and certified to the water’s edge. A 1940 General Highway Map shows the road to the water’s edge and a 1938 aerial map purports to show the same thing.
A 1949 declaration of dedicated roads includes Bear River Road to the lake. A 1951 map of the Charlevoix County Road System denotes which areas each county road commission is responsible for regarding maintenance and upkeep [ ] It show [sic] the road to the water’s edge. An aerial map from 1965 purports to show the road to the water and a 1987 survey recognizes and depicts Bear River Road continuing to the edge of the lake.
The nature and extent of usage of the road to the water is disputed by opposing affidavits. Hence, as to the usage issue there is a disputed question of fact. However, the determination of the nature and extent of usage of the road is unnecessary to the courts [sic] decision. Title to county roads cannot be adversely possessed.
Thus, the trial court found defendants’ “historical evidence” sufficient to establish that the strip of land was a public highway and that plaintiffs did not acquire title because defendants had not relinquished jurisdiction or control over the road.
For a road to become public property, there generally must be a statutory dedication and an acceptance on behalf of the public, a common-law dedication and acceptance, or a finding of highway by public user. Village of Bellaire v Pankop, 37 Mich App 50, 54-55; 194 NW2d 379 (1971). For a statutory dedication under the Land Division Act, MCL 560.101 et seq., MSA 26.430(101) et seq., the well-established rule is that two elements are required: a recorded plat designating the areas for public use, evidencing a clear intent by the plat proprietor to dedicate those areas to public use, and acceptance by the proper public authority. Kraus v Dep’t of Commerce, 451 Mich 420, 424; 547 NW2d 870 (1996). Public acceptance must be timely and must be disclosed through a manifest act by the public authority either formally confirming or accepting the dedication and ordering the opening of the street, or by exercising authority over it, in some of the ordinary ways of improvement or regulation. Id. Similarly, a valid common-law dedication of land for a public purpose requires (1) intent by the property owners to offer the land for public use, (2) an acceptance of the offer by the public officials and maintenance of the road by public officials, and (3) use by the public generally. Bain v Fry, 352 Mich 299, 305; 89 NW2d 485 (1958); Boone v Antrim Co Bd of Rd Comm’rs, 177 Mich App 688, 693; 442 NW2d 725 (1989). Finally, establishing a public highway pursuant to the highway by user statute, MCL 221.20; MSA 9.21, requires (1) a defined line, (2) that the road was used and worked on by public authori ties, (3) public travel and use for ten consecutive years without interruption, and (4) open, notorious, and exclusive public use. Bain, supra.
Defendants concede that they could not definitively establish that they had acquired ownership of the property pursuant to any of these accepted methods. They argue instead a novel theory that the trial court’s grant of summary disposition was appropriate because the undisputed historical evidence they supplied demonstrated that the disputed strip of property was a public highway. According to defendants, their provision of historical maps, surveys, affidavits, and photographs regarding the condition and use of the disputed strip of property to establish title to the disputed strip was sufficient because the historical documents were the only available evidence reflecting their claim to the property. None of the maps, surveys, affidavits, or county records provided by defendants documents the creation of a public highway along the disputed strip of land. Nor do any of the cases cited by defendants in their brief on appeal support defendants’ suggestion that a commonsense notion regarding logical road placement is sufficient to vest the counties with public highway ownership of property. Although defendants’ evidence suggests that some people believed the disputed property constituted a public highway, defendants have produced nothing to illuminate the veracity of this belief. We simply may not conclude as a matter of law that defendants hold a superior interest in the disputed strip of land when defendants have supplied no evidence establishing their interest.
In essence, defendants are asking this Court to recognize a new basis on which to establish the creation of a public highway. Defendants urge that we need not strictly hold them to the traditional methods of proving title, and that as a matter of public policy we ought to adopt an historical evidence approach to establishing interests in property, especially in cases like this in which other, more definitive, evidence is lacking. Defendants argue that public policies regarding recognition of section line roads and access to water also support adoption of an historical evidence approach. However, defendants have otherwise provided us with absolutely no authority from Michigan or any foreign jurisdiction that supports their argument concerning an historical evidence approach. Furthermore, defendants’ argument ignores the fundamental notion that a property owner should enjoy exclusive control over his land. By recognizing defendants’ proposed new approach to establishing a public road over land that had previously been purchased as, or thought of as, private property, we would undermine the right to hold property to the exclusion of others. Michigan courts have long recognized that a landowner should have free and exclusive enjoyment of his property. O’Connor v Resort Custom Builders, Inc, 459 Mich 335, 343; 591 NW2d 216 (1999) (“[0]wners of land have broad freedom to make legal use of their property.”); City of Lansing v Edward Rose Realty, Inc, 442 Mich 626, 642, n 27; 502 NW2d 638 (1993) (“A component of a private owner’s property rights is the right to exclude others.”), citing Loretto v Teleprompter Manhattan CATV Corp, 458 US 419, 435; 102 S Ct 3164; 73 L Ed 2d 868 (1982) (“The power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights.”); Vanderlip v Grand Rapids, 73 Mich 522, 533; 41 NW 677 (1889) (“The right of exclusion or the right of complete possession and enjoyment is one of the essential elements of property in land.”). Moreover, our adoption of defendants’ approach would result in the taking of private property without just compensation in derogation of the Michigan Constitution. Const 1963, art 10, § 2. We decline to undermine property rights by adopting defendants’ proposal, and thus we reject historical evidence as an independent means of establishing rights in property.
In light of our rejection of defendants’ proposed historical evidence approach, and defendants’ concession that they could locate no other evidence tending to show that the disputed strip of property was legally established as a public road, no genuine issue of material fact exists with respect to whether plaintiffs possess the superior interest in the property. Because defendants cannot show that they have superior title, the trial court erred in granting defendants’ motion for summary disposition and denying plaintiffs’ motion. Stinebaugh, supra; Boekeloo, supra. Therefore, we remand to the trial court for entry of an order granting plaintiffs summary disposition.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, a question of public policy being involved.
Although we located no determinative explanation of defendants’ motivation in seeking to open Bear Creek Road as a public highway extending to the shore of Walloon Lake, the record reflects that in 1983 the Charlevoix County Road Commission had received complaints concerning blocked access to the lake at the disputed strip of property.
Plaintiffs did not themselves produce as evidence the deeds conveying their interests. Defendants provided these to the court, however, alleging that language within the deeds described the disputed strip of property as a public highway and exempted this highway from the deeds’ transfers of property. In its opinion and order granting defendants summary disposition, the trial court did not acknowledge whether any consideration of these deeds had entered into its decision.
While defendants theorized that the federal government in its original land patents must have established Bear River Road as running to the edge of Walloon Lake, defendants failed to provide any documentation supporting their theory. To the contrary, plaintiffs did provide the trial court with an affidavit of Mary Feindt, president of the Charlevoix Abstract and Engineering Company, who asserted that she had inspected the existing records of both Emmet County and Charlevoix County regarding the original federal grants of the lands including the disputed property. According to Feindt, the descriptions of the lands conveyed by the federal patents did not identify or exempt any land along the county line as a public highway
Plaintiffs produced another affidavit of Feindt, see, n 3 supra, that included 1959 and 1995 Charlevoix County road certification maps. Feindt alleged these maps indicated that in these respective years, the county had certified 0.588 and 0.59 miles of Bear River Road west of United States Highway 131 (US 131). Feindt explained that on the basis of property surveys of this area, she had calculated the distance between the center of US 131 and Country Club Drive as 3115.01 feet, very close to 0.59 miles (3115.20 feet). Feindt concluded that therefore the county certification did not include the disputed property. We note that although county road certification cannot create a public highway out of otherwise private property, Pulleyblank v Mason Co Rd Comm, 350 Mich 223, 230; 86 NW2d 309 (1957); Missaukee Lakes Land Co v Missaukee Co Rd Comm, 333 Mich 372, 375-376; 53 NW2d 297 (1952), and thus a conclusive determination regarding the extent of the county’s road certification would not be dispositive of the instant ownership dispute, the trial court apparently improperly made a factual finding in the context of a motion for summary disposition under MCR 2.116(C)(10) when conflicting evidence existed. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994).
Although defendants do not support their public policy argument regarding lake access with any relevant Michigan statutory authority, the Legislature has recognized, in the context of abandoned road endings at a public body of water, the “overriding concern [of] retaining public access to a body of water.” Senate Fiscal Agency Analysis, SB 715-717, July 9, 1996, p 1.
To the extent this opinion fails to address plaintiffs’ argument that the trial court made several incorrect factual findings, we conclude that, in light of our decision to reverse the trial court’s grant of summary disposition to defendants, we need not address these allegations.
Given our conclusion that the trial court incorrectly granted defendants summary disposition, we need not address plaintiffs’ additional argu ment on appeal that the trial court incorrectly concluded it had no jurisdiction to determine plaintiffs’ common-law abandonment claim. | [
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Griffin, J.
Plaintiff Rex A. Cole appeals as of right an order of the circuit court granting summary disposition in favor of defendant General Motors Corporation pursuant to MCR 2.116(C)(10). We affirm.
Plaintiff is a Caucasian male who brought this claim under § 202 of the Michigan Civil Rights Act, MCL 37.2202; MSA 3.548(202), because he was excluded from a preapprentice training program that defendant instituted for women and minorities as part of an affirmative action plan. The plan was implemented pursuant to a conciliation agreement between defendant, the federal Equal Employment Opportunity Commission (eeoc), and the United Automobile, Aerospace, and Agricultural Implement Workers of America, but was not submitted to or approved by the Michigan Civil Rights Commission.
A trial court’s grant of summary disposition is reviewed de novo on appeal. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion for summary disposition is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10). See Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996). In this case, the parties do not dispute any material facts on appeal. The legality of the affirmative action plan is a question of law for the court to decide. See Betty v Brooks & Perkins, 198 Mich App 28, 29; 497 NW2d 512 (1993), aff’d 446 Mich 270; 521 NW2d 518 (1994).
Defendant claims that it was entitled to judgment as a matter of law because title VII bars “any action or proceeding based on any alleged unlawful employment practice” if the defendant proves that it acted in good faith and in reliance on an EEOC opinion. Subsection 713(b), 42 USC 2000e—12(b) (emphasis added). We agree. Subsection 713(b) of title VII “insulates employers from liability for decisions made in reliance on an EEOC opinion” when the employer acted in good faith on an affirmative action plan created in reliance on an EEOC opinion. Plott v General Motors Corp, Packard Electric Division, 71 F3d 1190, 1194 (CA 6, 1995).
In Plott, the Sixth Circuit Court of Appeals upheld a grant of summary judgment in favor of defendant General Motors in a reverse discrimination suit brought under title VII by a white male who was denied preapprenticeship training. Because a 1983 EEOC conciliation agreement with General Motors directed the defendant to “ ‘provide pre-apprentice training for minorities and women at selected facilities where openings are anticipated in the foreseeable future,’ ” General Motors created a preapprenticeship training program at its Packard Electric Division in 1987. Id. at 1192. In the year following adoption of the conciliation agreement, the EEOC sent defendant a letter stating that, in its opinion, “ ‘any action or omission of General Motors Corporation . . . taken in a good faith attempt to comply with the affirmative action or other provisions of the Conciliation Agreement . . . will not constitute a violation of any of the provisions of Title VIL’ ” Id. at 1194. The plaintiff had been on the initial list of qualified people for the program, but this list did not comport with the agreement because it contained too few women and minorities. The plaintiff was ultimately displaced from the list by women and minorities who exceeded his score after taking the preapprentice training class. Id. at 1192-1193.
The Plott court held that the EEOC’s opinion letter “met all the requirements of 29 CFR § 1601.93 (1995) and therefore qualified as an EEOC opinion under § 713(b).” Id. at 1194. The court further held that the plaintiff’s claim was barred under subsection 713(b) of title VII because General Motors made its decision in a good-faith attempt to comply with the terms of the agreement and in reliance on the EEOC opinion letter’s assurance that actions taken under the agreement would not be held to violate title VII. Id. at 1194-1195. The court finally noted that the preappren-tice program met the requirements for affirmative action plans as determined by federal case law because it did not take away white males’ seniority rights, require their replacement, or prevent them from participating in the apprenticeship program. Id. at 1195.
In the present case, both the preapprentice training program and the circumstances leading to defendant’s decision to offer it are virtually identical to those in Plott. The affirmative action plan at issue is a preapprentice training program at another plant created pursuant to the same conciliation agreement and same EEOC opinion letter as in Plott. While Michigan courts are not bound by federal title VII precedent in interpreting Michigan Civil Rights Act cases, such precedent is highly persuasive. Victorson v Dep’t of Treasury, 439 Mich 131, 142; 482 NW2d 685 (1992); DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 437; 566 NW2d 661 (1997). Furthermore, defendant has presented uncontroverted, documentary evidence that the training at issue was offered in a good-faith attempt to comply with the conciliation agreement and in reliance on the EEOC opinion letter. Plaintiff does not allege that defendant acted in bad faith in the instant case. Therefore, we conclude that, because defendant would be insulated from liability under title VII under the circumstances of this case, Plott, supra, defendant is also insulated from liability under the Civil Rights Act. Cf. Loomis v General Motors Corporation, 70 Fair Empl Prac Cas (BNA) 691 (ED Mich, 1994).
Accordingly, the trial court did not err in granting defendant’s motion for summary disposition. In view of our disposition, it is unnecessary for us to address the additional grounds for affirmance argued by defendant.
Affirmed.
Wilder, J., concurred. | [
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Whitbeck, J.
Plaintiffs Brandy and Brian Taylor, individually, and Brandy Taylor as next friend and mother of Shelby Taylor, a minor, appeal as of right the trial court’s order granting summary disposition in favor of defendants Surender Kurapati, M.D., and Annapolis Hospital with respect to their wrongful birth and negligent infliction of emotional distress claims.
With respect to their wrongful birth claim, the Taylors cite the following description of the tort of wrongful birth in Blair v Hutzel Hosp, 217 Mich App 502, 506-507; 552 NW2d 507 (1996), rev’d on other grounds 456 Mich 877 (1997):
“If a physician breaches the appropriate duty under the facts of a case, and it can be established that the parents would have avoided or terminated the pregnancy, the necessary causal connection is established. The parents should recover for their extraordinary medical expenses and the extraordinary costs of raising the child, as well as the emotional harm they have suffered.” [Quoting Proffitt v Bartolo, 162 Mich App 35, 46; 412 NW2d 232 (1987).]
With respect to their negligent infliction of emotional distress claim, the Taylors cite Wargelin v Sisters of Mercy Health Corp, 149 Mich App 75, 80-81; 385 NW2d 732 (1986), for the proposition that “Michigan has recognized a cause of action based on negligence when a parent who witnesses the negligent infliction of injury to his or her child suffers emotional distress as a consequence.”
We note that counsel for the Taylors during oral argument candidly conceded that, but for the claimed existence of the wrongful birth tort, there would be no issue relating to the statute of limitations. Thus, this case revolves around the wrongful birth tort. In this opinion, we address the basic question whether, absent legislative action, such a tort has a rightful place in our jurisprudence. We conclude that it does not. We further conclude that the Taylors failed to file their complaint within the applicable limitation period. We also conclude that the undisputed facts of this case do not support a claim of negligent infliction of emotional distress and that summary disposition was also appropriate with regard to this aspect of the case.
I. BASIC FACTS AND PROCEDURAL HISTORY
The Taylors filed their complaint in August 1996. The Taylors alleged that Brandy Taylor had a doctor-patient relationship with Kurapati, a specialist in radi ology, and Annapolis. On April 19, 1994, Brandy Taylor gave birth to the couple’s daughter, Shelby Taylor. Throughout her pregnancy, Brandy Taylor had been treated by Dr. Leela Suruli. Suruli had ordered that a routine ultrasound be performed in Brandy Taylor’s second trimester. The ultrasound was conducted on December 4, 1993, and interpreted by Kurapati, an agent of Annapolis. Kurapati concluded that the pregnancy was seventeen weeks along, plus or minus two weeks, and that there were no visible abnormalities with the fetus. A second ultrasound was conducted on March 16, 1994, and interpreted by another physician, Dr. M. B. Cash. Cash indicated that the baby’s femurs could not be adequately identified and believed that a high resolution ultrasound could be helpful for further investigation. Suruli told Brandy Taylor that the baby had short femur bones and would merely be shorter than average. Brandy Taylor decided not to have another ultrasound. Shelby Taylor was born on April 19, 1994, with “gross anatomical deformities including missing right shoulder, fusion of left elbow, missing digits on left hand, missing femur on left leg and short femur on right.” A study at the University of Michigan Hospital suggested that Shelby Taylor had femur-fibula-ulna syndrome.
In their complaint, the Taylors alleged that the standard of care in performing the initial ultrasound had been breached by Kurapati when he failed to locate all four limbs at the time of the ultrasound. The Tay-lors alleged that the ultrasound should have shown Shelby Taylor’s disabilities and that the failure to reveal the disabilities deprived the Taylors of their right to make a reproductive decision regarding the pregnancy. In addition to their claim of medical malpractice, the Taylors also alleged that, because of defendants’ negligence, they suffered emotional distress at witnessing the birth of their child.
In early April 1997, Annapolis filed a motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10). Annapolis primarily argued that the Taylors had failed to file their complaint within the statute of limitations for medical malpractice actions. Soon thereafter, Kurapati filed a similar motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10).
The trial court held a hearing regarding defendants’ motions in early May 1997. The trial court concluded that the Taylors’ medical malpractice claim was not timely filed and dismissed the complaint with regard to any malpractice claims. However, the trial court allowed the Taylors’ claim of negligent infliction of emotional distress to go forward, because the parties had not addressed the issue in their briefs. The trial court gave defendants an opportunity to submit motions for summary disposition with regard to the negligent infliction of emotional distress claim and eventually, without oral arguments, granted defendants’ motions for summary disposition of the Taylors’ claim of negligent infliction of emotional distress. The trial court also denied the Taylors’ motion for reconsideration with regard to its earlier ruling regarding the statute of limitations.
H. THE WRONGFUL BIRTH TORT
A. THE CLOSELY ANALOGOUS BIRTH-RELATED TORTS
(1) INTRODUCTION
The wrongful birth tort is within a constellation of birth-related torts and is closely related to two other such torts: “wrongful conception” and “wrongful life.” At the outset, however, we note that the relationship between the wrongful birth tort and other, more firmly established torts of birth-related medical malpractice is considerably more tenuous. Michigan has long recognized that causes of action exist in—and we use the cruel but evocative trial parlance with extreme hesitation—“bad baby” cases. In such cases, courts and juries have held physicians and other health professionals liable for birth-or pregnancy-related disabilities caused in whole or in part by their negligence. These cases generally involve negligence occurring fairly close in time to, if not contemporaneous with, the birth itself. This is unlike the wrongful birth tort that usually involves an allegation of a negli gent failure relatively early in the pregnancy to inform the parents of the risk of birth defects. Further, these cases do not involve the intermediate step of parental action. That is, they do not involve an allegation that the negligence deprived the parents of the opportunity to terminate the pregnancy. In other words, such cases are simply a typical claim of medical malpractice injuring a person. They are not wrongful birth claims because they involve no allegation that the baby involved should never have been born, but rather involve an allegation that, absent malpractice, the same baby would have been born without certain injuries.
Further, despite rhetorical similarities, the wrongful birth tort has little to do with “end of life” cases. These cases have their basis in a person’s right to make medical decisions, grounded in the common law, state statutes or state constitutions, or in the federal constitutional liberty interest in refusing unwanted medical treatment. In this regard, Michigan recognizes a right to withhold or withdraw life-sustaining medical treatment under the common-law doctrine of informed consent. In re Martin, 450 Mich 204, 215; 538 NW2d 399 (1995). Any similarity that might exist between these end of life cases and the wrongful birth tort derives not from situations involving a competent patient’s right to make such medical decisions. Rather the similarity derives from situations involving a once-competent patient, who has utilized a living will or other advance directive or a do-not-resuscitate order to proscribe certain types of treatment; a once-competent patient who has left no such instructions; or a never-competent patient. Generally, these situations involve the use of surrogates who have, or who seek, the power to make life or death decisions on behalf of the patient. There is, therefore, an analogy between these cases and the surrogate role of the parents in wrongful birth cases who have, but argue that the physician’s negligence deprived them of, the right under controlling federal precedent to terminate a pregnancy.
However, the analogy is not a close one, for several reasons. First, although much of the litigation and legislative activity in the end of life area may have its roots in a fear of liability, the actions themselves do not generally arise in a tort context. Second, courts generally recognize that the right to refuse life-prolonging procedures, whether directly or through surrogates, is not an absolute one and often balance that right against the state’s interests, including the interest in preserving life, preventing suicide, protecting innocent third parties, and maintaining the ethical integrity of the medical profession. In wrongful birth cases, however, courts often consider these interests to be inapplicable or shunt them aside. Thus, the most fruitful comparisons for analytic purposes are to the closely analogous birth-related torts of wrongful conception and wrongful life.
(2) WRONGFUL CONCEPTION
As Anthony Jackson outlines, an action for wrongful conception, also known as wrongful pregnancy, arises where the defendant’s negligent conduct failed to prevent the birth of a child in the following situations: (1) where a physician negligently performs a vasectomy or tubal ligation or when a physician, pharmacist, or other health professional provides any other type of ineffective contraception, the parents conceive, and the birth of a healthy, but unplanned, baby results; (2) where a physician negligently fails to diagnose a pregnancy, thereby denying the mother the choice of termination of the pregnancy at a timely stage, and the birth of a healthy, but unwanted, baby results; and (3) where a physician negligently attempts to terminate the pregnancy and the birth of a healthy, but unwanted, baby results. Of course, the latter two situations do not actually involve a claim that a defendant’s negligence was a factor in the conception of the child.
As noted, this Court has recognized a cause of action for wrongful conception. According to our research, the first case definitively on point was Troppi v Scarf, 31 Mich App 240; 187 NW2d 511 (1971). In Troppi, as this Court described it in Rouse v Wesley, 196 Mich App 624, 628; 494 NW2d 7 (1992), the parents had seven children and decided to limit the size of their family. The Troppis’ physician prescribed oral contraceptives for Mrs. Troppi but the defendant pharmacist negligently provided Mrs. Troppi with tranquilizers. Presumably as a result, Mrs. Troppi conceived and delivered an eighth, and healthy, child. Id. The Troppi panel permitted the Troppis to maintain an action for the costs of raising this eighth child to the age of majority.
The Troppi panel was careful to declare, at least initially, that it was not blazing new ground:
Contraception, conjugal relations, and childbirth are highly charged subjects. It is all the more important, then, to emphasize that resolution of the case before us requires no intrusion into the domain of moral philosophy. At issue here is simply the extent to which defendant is civilly liable for the consequences of his negligence. In reversing and remanding for trial, we go no further than to apply settled common-law principles. [Troppi, supra at 244-245.]
The Troppi panel then reviewed the common-law concepts of breach of duty, causation in fact, and direct and proximate causation resulting in damages and concluded:
This review of the elements of tort liability points up the extraordinary nature of the trial court’s holding that the plaintiffs were entitled to no recovery as a matter of law.[ ! We have here a negligent, wrongful act by the defendant, which act directly and proximately caused injury to the plaintiffs.
What we must decide is whether there is justification here for a departure from generally applicable, well-established principles of law:
“The general rule of damages in an action of tort is that the wrongdoer is liable for all injuries resulting directly from the wrongful acts, whether they could or could not have been foreseen by him, provided the particular damages in respect to which he proceeds are the legal and natural consequences of the wrongful act imputed to the defendant, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated. Remote, contingent, or speculative damages will not be considered in conformity to the general rule above laid down.” Van Keulen & Winchester Lumber Co v Manistee & N R Co [222 Mich 682, 687; 193 NW 289 (1923).] [Troppi, supra at 246-247.]
Having declared that the issue with respect to this new tort was whether its noncreation could be justified as an exception to common-law principles, the Troppi panel concluded that there was no valid reason why the trier of fact should not be free to assess damages “as it would in any other negligence case.” Id. at 252. Picking up speed, the Troppi panel plunged into a discussion of public policy (relying, in part, on its perception of “the State’s advocacy of family planning,” id. at 253) and then paused at midpoint to soundly endorse the application of the “benefits rule.” See id. at 252-262. The Restatement as then in effect, Restatement, Torts, § 920, p 616, expressed this rule as:
Where the defendant’s tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is considered in mitigation of damages, where this is equitable. [Emphasis supplied.]
The Troppi panel saw no problem in applying this rule in a wrongful conception case:
Since pregnancy and its attendant anxiety, incapacity, pain, and suffering are inextricably related to child bearing, we do not think it would be sound to attempt to separate those segments of damage from the economic costs of an unplanned child in applying the “same interest”[ ] rule. Accordingly, the benefits of the unplanned child may be weighed against all the elements of claimed damage.
The trial court evidently believed, as did the court in Shaheen v Knight, supra,[ ] that application of the benefits rule prevents any recovery for the expenses of rearing an unwanted child. This is unsound. Such a rule would be equivalent to declaring that in every case, as a matter of law, the services and companionship of a child have a dollar equivalent greater than the economic costs of his support, to say nothing of the inhibitions, the restrictions, and the pain and suffering caused by pregnancy and the obligation to rear the child.
There is a growing recognition that the financial “services” which parents can expect from their offspring are largely illusory.[ ] As to companionship, cases decided when “loss of companionship” was a compensable item of damage for the wrongful death of a child reveal no tendency on the part of juries to value companionship so highly as to outweigh expenses in every foreseeable case.[ ]
Our discussion should not be construed as an expression of doubt as to the efficacy of the benefits rule in cases like the one before us. On the contrary, we believe that rule to be essential to the rational disposition of this case and the others that are sure to follow. The benefits rule allows flexibility in the case-by-case adjudication of the enormously varied claims which the widespread use of oral contraceptives portends. [Id. at 255-256 (emphasis supplied).]
The Troppi panel then brushed aside the problem of placing a dollar value on the companionship and services of an unwanted child. The panel stated that “difficulty in determining the amount to be subtracted from the gross damages does not justify throwing up our hands and denying recovery altogether,” id. at 261, holding that a trier of fact could find a basis for the “reasonable ascertainment of the amount of the damages,” id. This Court reached a similar result in Green v Sudakin, 81 Mich App 545; 265 NW2d 411 (1978).
However, in Rinard v Biczak, 177 Mich App 287; 441 NW2d 441 (1989), this Court reached a far different conclusion. Rinard involved a suit by the plaintiffs against the defendant physician in which the plaintiffs alleged medical malpractice for the defendant’s failure to diagnose Mrs. Rinard’s pregnancy. At trial, the plaintiffs testified that Mrs. Rinard probably would have sought to terminate the pregnancy had the defendant properly diagnosed that pregnancy. The jury awarded the plaintiffs damages for the cost of raising their healthy child. Id. at 289-290. The Rinard panel reversed, holding that neither natural nor adoptive parents can recover the costs of “raising a normal, healthy child because those costs are outweighed by the benefits of that child’s life.” Rinard, supra at 290.
In reaching this conclusion, the Rinard panel observed that Michigan is among the minority of states that allow the recovery of the costs of raising a child as an element of damages, offset by the benefits received by the parents from a parent-child relationship. Rinard, supra at 292. The panel commented that, “[i]n a substantially greater number of jurisdictions, courts have denied the recovery of child-rearing costs.” Id. (citations omitted). Further, “[i]t appears that the majority of states do not allow recovery of the costs of raising ‘a healthy, normal child’ as a element of damages in a wrongful pregnancy case.” The Rinard panel then went on to criticize the application of the benefits rule in wrongful pregnancy cases:
Courts have not allowed the recovery of the costs of raising a normal, healthy child as an element of damages for many reasons.[ ] We consider the best reason to be that the costs of raising such a child are outweighed by the value of that child’s life. In Rohm v Stroud, 386 Mich 693, 696; 194 NW2d 307 (1972), our Supreme Court stated that the value of a minor child’s services to a parent is at least as great as the amount expended by the parent on the child’s support, maintenance and education. In that wrongful death case, our Supreme Court further stated that parents are at least entitled to the presumption that a child is worth his keep, and the negligent act which snuffs out their child’s life deprives them of services at least equal to the amount of their pecuniary outlay. 386 Mich 697.
The instant case does not involve a wrongful death claim. However, allowing the costs of raising a child as an element of damages logically requires the conclusion that the nonexistence of that child would be a benefit. [Morris v Sanchez, 746 P2d 184, 188 (Okla, 1987)]. We agree with the reasoning of the Illinois Court of Appeals which stated:
“The existence of a normal, healthy life is an esteemed right under our laws, rather than a compensable wrong. [Wilczynski v Goodman, 73 Ill App 3d 51, 62; 29 Ill Dec 216; 391 NE2d 479, 487 (1979).]”
In a proper hierarchy of values, the benefit of life should not be outweighed by the expense of supporting it. [Cockrum v Baumgartner, 95 Ill 2d 193, 201; 69 Ill Dec 168; 447 NE2d 385 (1983).] A court “ ‘has no business declaring that among the living are people who never should have been bom.’ ”[ ] Proffitt, supra, p 51, quoting Smith v Cote, 128 NH 231, 249; 513 A2d 341, 353 (1986).
Another reason for not allowing the recovery of child-rearing costs as an element of damages is that, to maximize their recovery under the benefits rule, parents must demonstrate that they did not want their child and that the child is of minimal value to them. Michigan should not allow “ ‘the unseemly spectacle of parents disparaging the “value” of their children or the degree of their affection for them in open court.’ ” Cockrum, supra, p 202, quoting Public Health Trust v Brown, 388 So 2d 1084, 1086, n 4 (Fla App, 1980). A related concern is for the child who may learn that his parents did not want him to exist and sued to have the person who made his existence possible provide for his support. Wilbur v Kerr, 275 Ark 239, 242-244; 628 SW2d 568, 570-571 (1982). [Rinard, supra at 292-294 (citations omitted).]
Thus, in the 1970s and 1980s, this Court reached conflicting conclusions concerning the value of a healthy child’s life. On the one hand, the Troppi and Rinard panels assumed that a trier of fact could ascertain a “reasonable” value for that life, which might or might not exceed the expense of the child’s support. On the other hand, the Rinard panel concluded that the value of that life is at least equal to the expense of the child’s support and, further, that the benefit of that child’s life should not be outweighed by the expense of supporting it.
This Court resolved, at least partially, this conflict in Rouse, supra. Rouse was unquestionably a wrongful conception case in which the plaintiffs sued over an unsuccessful tubal ligation performed on Mrs. Rouse. Id. at 625-626. As in Troppi, presumably as a result of the fact that the surgery was unsuccessful, Mrs. Rouse thereafter conceived. She then delivered a sixth, and healthy, child. While the trial court permitted the plaintiffs to maintain the action for medical costs and pain and suffering, it granted the defendants summary disposition with respect to the plaintiffs’ claim for damages for the cost of raising the child to the age of majority, following the decision in Rinard, supra. See Rouse, supra at 625-626. Thereafter, on the plaintiffs’ motion, the trial court dismissed the remaining counts in the complaint without prejudice. The plaintiffs appealed, contending that the trial court should have permitted them to maintain an action for the cost of raising the child to majority as part of their suit for wrongful conception. Id. at 626.
The Rouse panel held that in the context of a wrongful conception action, a plaintiff may not recover the customary cost of raising and educating the child. Id. at 631-632. In reaching this narrow decision, the Rouse panel articulated a broader concept and one that we consider to be of surpassing importance:
As recognized by this Court on previous occasions, the subjects of reproduction, contraception, and the decision to avoid or terminate pregnancy are highly personal subjects fraught with controversy. It is therefore understandable that a conflict has arisen in decisions from this Court, as well as in other jurisdictions, with respect to whether parents may recover the customary cost of raising a child where, although the parents attempt to avoid pregnancy, conception and the birth of a child occurs as a result of the negligence of a doctor or other responsible person. We hold, however, that such recovery should not be available in Michigan.
We recognize that the cost of raising a child to majority is significant and may, in certain circumstances, impose a hardship upon the child’s parents. We further recognize, however, that all human life is presumptively valuable. Simply stated, a child should not be considered a “harm” to its parents so as to allow recovery for the customary cost of raising the child. Our Supreme Court has held in the context of wrongful death actions that the benefits of the services of a minor child to the child’s parents are at least as great as the cost of raising the child to majority. Rohm [supra.][ ] See also Rinard, supra, 292. Similarly, in the context of a wrongful pregnancy action, we hold as a matter of law that the value of the life of a child will always outweigh the customary cost of raising that child to majority. The benefits rule is therefore inapplicable in a wrongful pregnancy action. [Rouse, supra at 630-631 (emphasis supplied).]
We recognize that the Rouse decision did not rule out a wrongful conception action for medical costs and pain and suffering. We further recognize that Rouse dealt with an unwanted, but healthy, child while wrongful birth actions deal with unwanted, and disabled, children. We do not concede, however, that an intermediate appellate court of this state should implicitly endorse the view that the life of a disabled child is worth less than the life of a healthy child. If all life is presumptively valuable, Rouse, supra at 631, how can we say that what we really mean is that all lives except for the lives of the disabled are presumptively valuable? If we say that the benefits rule is inapplicable to the fives of healthy children, id., how can we then continue, at least implicitly, to apply that rule to the lives of disabled children? If we conclude that in a proper hierarchy of values, the expense of supporting life should not outweigh the benefit of that life, Rinard, supra at 293, how can we say that what we really mean is that such expense should not outweigh the benefit of fives of healthy children, but can outweigh the benefit of lives of disabled children? If we say that a court “has no business declaring that among the living are people who never should have been born,” id., how can we continue to say—and here virtually explicitly through the device of compensating the parents for the expenses of that “wrongful birth”—that courts can go about the business of declaring that living, but disabled, children should never have been born? To say the least, this Court’s language in its partial repudiation of the wrongful conception doctrine in Rouse raises the most troubling of questions about the continued viability of the wrongful birth tort in Michigan.
(3) WRONGFUL LIFE
As Anthony Jackson outlines:
The claim is brought by or on behalf of the child who alleges that she was born because of the doctor’s negligent failure to properly advise her parents and, as a result, has to suffer the condition. The doctor’s negligent advice causes the pain, suffering, and financial hardship experienced each day by the child.
The doctor has not caused the disability itself. But for the doctor’s negligent acts, however, the child would not have been born and, thus, would not have suffered the ensuing condition. The parents either would have decided not to conceive or, if they became aware of the condition at a later stage, would have terminated the pregnancy in accordance with the applicable law.
In Proffitt v Bartolo, 162 Mich App 35; 412 NW2d 232 (1987), this Court held that the wrongful life cause of action was not available in Michigan. Proffitt involved, in count I, the parents’ action for wrongful birth. Count n, however, was the parents’ action on behalf of their daughter, Maya Proffitt, alleging that she would be unable to earn any income and therefore seeking recovery for the “ ‘extensive medical, institutional and educational’ expenses” that she would incur after reaching age eighteen. Maya Prof-fitt’s parents also requested, on her behalf, damages for the “ ‘severe pain and suffering, emotional distress and pain, embarrassment and humiliation’ resulting from her grave congenital deformities.” Proffitt, supra at 39.
The underlying allegation of negligence involved the defendant physician Dr. Bartolo’s treatment of Mrs. Proffitt. As the Proffitt panel described it:
Dr. Bartolo sent Yasmin to Mercy-Memorial Hospital in Monroe, Michigan, for studies. On February 26, 1976, the blood studies were performed, including a test for rubella. During March, 1976, Yasmin continued under Dr. Bartolo’s care and complained of chronic headaches, fever, malaise, and gastrointestinal discomfort. On March 17, 1976, Dr. Bar-tolo again admitted Yasmin to the hospital for the treatment of a parasitic infection associated with hematemesis and headaches. Dr. Bartolo diagnosed Yasmin’s condition as a whipworm infestation and discharged her from the hospital on March 19, 1976. In the following months, Yasmin continued to complain of chronic headaches, nausea, malaise, and fever to Dr. Bartolo.
David called Dr. Bartolo on June 14, 1976, to complain about Yasmin’s high fever. At the end of the conversation, Dr. Bartolo advised plaintiffs that he could no longer provide professional services to them and that they should seek the services of another physician. Plaintiffs retained the services of another physician who delivered the child, plaintiff Maya S. Proffitt, on August 23, 1976.
Plaintiffs alleged numerous instances of negligent conduct on Dr. Bartolo’s part. Essentially, plaintiffs alleged that Dr. Bartolo failed to exercise the required degree of care and skill in diagnosing and treating Yasmin, including a failure to take an adequate history, to employ sufficient diagnostic tests, to interpret the rubella test properly, and to order additional tests to evaluate the risk of a rubella or other infection which could cause congenital fetal malformations. Plaintiffs allege that Dr. Bartolo failed to advise them of the rubella test results, the significance of those findings and the necessity of further tests, and the risk of severe congenital fetal malformations resulting from rubella or other serious infections during Yasmin’s first trimester of pregnancy. Plaintiffs also alleged that Dr. Bartolo failed to advise plaintiffs of the risks to the fetus so that plaintiffs could decide whether to terminate the pregnancy. Plaintiffs allege that, had Dr. Bartolo properly diagnosed Yasmin’s condition and adequately advised them, they would have terminated Yasmin’s pregnancy. Instead, Maya was bom with microcephaly, mental retardation, severe bilateral eye malformations resulting in blindness, and other severe congenital malformations caused by a rubella infection or another intrauterine viral, parasitic or protozoic infection transmitted to Maya during the early stages of fetal development. [Id. at 37-39.]
The Proffitt panel first noted that in Eisbrenner v Stanley, 106 Mich App 357; 308 NW2d 209 (1981), this Court had recognized the wrongful birth tort in a case involving rubella-caused birth defects. Proffitt, supra at 41. The Proffitt panel stated that “[t]he jurisdictions considering the issue have now almost uniformly adopted the wrongful birth cause of action.” Id. at 42. The Proffitt panel then reviewed wrongful birth cases from a number of other jurisdictions, including Harbeson v Parke-Davis, Inc, 98 Wash 2d 460; 656 P2d 483 (1983). See Proffitt, supra at 42-46. With respect to the wrongful birth tort, the Prof-fitt panel concluded, “[a]gainst this backdrop, we conclude that the Eisbrenner holding with regard to wrongful birth remains the law in Michigan until changed by the Legislature or the Supreme Court.” Id. at 46.
With respect to the wrongful life tort, however, the Proffitt panel reached a far different conclusion. It first noted that this Court had previously rejected this cause of action on three occasions. Id. at 47-50, citing Eisbrenner, supra, Dorlin v Providence Hosp, 118 Mich App 831; 325 NW2d 600 (1982), and Strohmaier v Associates in Obstetrics & Gynecology, 122 Mich App 116; 332 NW2d 432 (1982).
After reviewing these decisions and the decisions of other states regarding the wrongful life tort, the Proffitt panel then came to the heart of the matter:
We begin with the proposition that the wrongful birth cause of action already exists as a valid cause of action in this state and elsewhere. It follows, then, that the reasons for accepting it have also been found to be valid. As both the wrongful birth and the wrongful life causes of action generally arise out of the same factual situation, those reasons arguably apply with equal validity and relevancy to the wrongful life cause of action. Nevertheless, this Court has previously refused to allow a wrongful life claim to stand, the Supreme Court has refused to review that point of view, and the Legislature has not seen fit to act in this area. Consequently we are reluctant to resolve all of the moral and public policy arguments that others at a different or higher level have declined to address. There comes a point at which three judges on an intermediate appellate court should restrain themselves from making new law. The decision whether a life with birth defects has a greater or lesser value than no life at all is beyond such a point. Consequently we will allow the law to remain where it stands. The “wrongful birth” claim in this case must go to trial and the “wrongful life” claim will remain dismissed. [Proffitt, supra at 57-58 (emphasis supplied).]
In our view, this mixed decision elevates the principle of stare decisis over all logic. It apparently escaped the Proffitt panel that in 1981 when this Court decided Eisbrenner, neither the Legislature nor the Michigan Supreme Court had recognized the wrongful birth tort. Further, although the Proffitt panel glanced off the point, it appeared to have made no difference to that panel that, on exactly the same facts, this Court was continuing to recognize the wrongful birth tort while declining to recognize the wrongful life tort.
The net result is a misshapen jurisprudence. Simply put, if Maya Proffitt, through her parents acting as her surrogates, could not bring an action for wrongful life in Michigan because neither the Legislature nor the Michigan Supreme Court has recognized the wrongful life tort, then why should those same parents be allowed to bring an action for wrongful birth on exactly the same facts when neither the Legislature nor the Supreme Court has recognized the wrongful birth tort? The answer—and it appears to us to be a rather self-evident answer—is that, if there is any consistency to the law in this area, this Court should not have allowed the Proffitts to bring such a wrongful birth action. Again, to say the least, this Court’s rejection of the wrongful life tort in Eisbrenner, Dor-lin, Strohmaier, and Proffitt raises the most troubling of questions about the continued viability of the wrongful birth tort in Michigan.
(4) CONCLUSION
This Court has partially repudiated the birth-related tort of wrongful conception and totally rejected the birth-related tort of wrongful life. Both of these causes of action are closely analogous to the birth-related tort of wrongful birth. Nevertheless, this Court, without any action by the Legislature or the Michigan Supreme Court, has continued to recognize the tort of wrongful birth. The resulting jurisprudence defies all logic. Below, we explore the origins of the wrongful birth tort in Michigan and respond to various arguments for its continuation.
B. THE ORIGINS OF THE WRONGFUL BIRTH TORT IN MICHIGAN
(1) EISBRENNER
This Court first recognized the wrongful birth tort in Eisbrenner, supra. Eisbrenner involved facts very similar to Proffitt. The plaintiffs alleged that the defendant physician negligently failed to diagnose Mrs. Eisbrenner’s rubella, despite the fact that the defendant had seen test results that indicated she had contracted the disease. The plaintiffs further alleged that the defendant negligently failed to warn the plaintiffs of the possibility that the child would be bom with rubella-caused defects. As in Proffitt, the plaintiffs contended that had the defendant acted properly, he would have informed them of the risk, and that the family would have decided to terminate the pregnancy rather than taking a chance on birth defects. Eisbrenner, supra at 360.
The Eisbrenner panel began its analysis with a review of Gleitman v Cosgrove, 49 NJ 22; 227 A2d 689 (1967). See Eisbrenner, supra at 361-362. Gleitman involved a child with birth-related defects apparently causally related to the viral disease of German measles that Mrs. Gleitman had early in her pregnancy. The Gleitman court assumed that the defendant physician had affirmatively misled Mrs. Gleitman by telling her that the German measles she had would have no effect on her child, then in gestation. The court further assumed that Mrs. Gleitman could have terminated the pregnancy in a fashion that would not have subjected the participants to criminal sanctions, but that she did not do so because she relied on the incorrect advice of the defendants. Gleitman, supra at 27.
Despite these assumptions, the majority of the Gleitman court rejected claims of both wrongful life and wrongful birth. With respect to wrongful birth, the majority stated:
A considerable problem is raised by the claim of injury to the parents. In order to determine their compensatory damages a court would have to evaluate the denial to them of the intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional and money injuries. Such a proposed weighing is similar to that which we have found impossible to perform for the infant plaintiff. When the parents say their child should not have been bom, they make it impossible for a court to measure their damages in being the mother and father of a defective child.
We are not here faced with the necessity of balancing the mother’s life against that of her child. The sanctity of the single human life is the decisive factor in this suit in tort. Eugenic considerations are not controlling. We are not talking here about the breeding of prize cattle. It may have been easier for the mother and less expensive for the father to have terminated the life of their child while he was an embryo, but these alleged detriments cannot stand against the preciousness of the single human life to support a remedy in tort. [Gleitman, supra at 29-31.]
The Eisbrenner panel noted that the New Jersey Supreme Court had partially retreated from its position in Gleitman and declined to follow it. Eisbrenner, supra at 364. Rather, after reviewing a number of cases from around the country, the Eisbrenner panel, relying heavily on Troppi, supra, held that the trial court had properly refused to dismiss the Eisbrenners’ cause of action for wrongful birth. Eisbrenner, supra at 367-368.
We believe it critical to note that Rouse at least partially overruled Troppi, in the process stating that the benefits rule should not be applied in wrongful conception cases. Thus, we conclude that the intellectual basis in Troppi for the Eisbrenner wrongful birth decision no longer exists.
(2) POST-EISBRENNER DECISIONS
We recognize, nevertheless, that this Court continued to follow—or least mention—the Eisbrenner decision in a number of subsequent cases. The basic question, then, becomes whether this Court correctly decided Eisbrenner and its progeny. We conclude that these cases were wrongly decided.
C. WRONGFUL BIRTH: A MISSHAPEN JURISPRUDENCE
(1) MCR 7.215(H)
MCR 7.215(H) provides that this Court must follow the rule of law established by a prior published decision of the Court issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court or by a special conflict panel of this Court. While this Court decided Eisbrenner, Dorlin, Strohmaier, Proffitt, and Rinard before November 1, 1990, we decided Rouse and Blair after that date. Thus, unless one can distinguish these two cases or unless they have been later reversed or modified, we must apply them.
We can easily distinguish Rouse. The Rouse panel observed that Michigan case law has recognized a claim for wrongful birth based on a medical professional’s failure to provide information that would have led the parents of a child to opt to terminate the pregnancy before that child was bom, Rouse, supra at 626-627. However, this statement is dictum. The claim in Rouse was not a wrongful birth claim. Rather, it was a wrongful conception claim. The narrow issue in Rouse, therefore, was whether “plaintiffs, in the context of a wrongful pregnancy action, can seek to recover as part of their damages the customary cost of raising and educating the child.” Id. at 627. Thus, the Rouse summary of Michigan appellate case law regarding wrongful birth was part of a background discussion of legal principles. It was unnecessary to, and indeed not a part of, the actual rationale for the decision in Rouse. As dicta, the statements in Rouse regarding wrongful birth are not binding precedent.
The decision in Blair stands on the same ground, but for another reason. The Blair panel did hold that wrongful birth claims remain viable. However, because the Supreme Court reversed, see 456 Mich 877, the decision in Blair—even though on other grounds that were decisive of the entire case —this Court is not required to follow it. Thus, with respect to both Rouse and Blair, MCR 7.215(H) does not stand as a bar to this Court’s reconsideration of the wrongful birth tort. Therefore, we are free—albeit within the constraints of a proper regard for stare decisis—to reconsider the Troppi-based holding in Eisbrenner as carried forward in Dorlin, Strohmaier, Proffitt, and Rinard, all cases decided before November 1, 1990.
(2) ROE v WADE
The Proffitt panel articulated a separate reason for continuing to recognize the wrongful birth tort:
As long as abortion remains an option allowed by law, the physician owes a duty to furnish patients with adequate information for them to be able to decide whether to choose that course of action. Those who would eliminate such a right of recovery must first abolish the right to have an abortion—a matter not germane to this appeal. [Proffitt, supra at 46-47 (emphasis supplied).]
This line of argument is fundamentally erroneous. While currently prevailing United States Supreme Court precedent recognizes a federal constitutional right to privacy, see Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), and holds that this right to privacy “protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy,” Maher v Roe, 432 US 464, 473-474; 97 S Ct 2376; 53 L Ed 2d 484 (1997), this right to privacy “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion.” Id. at 474.
In particular, Michigan law provides for no right to an abortion and, in fact, makes a value judgment favoring childbirth. This Court has held that the Michigan Constitution does not provide a right to end a pregnancy. Mahaffey v Attorney General, 222 Mich App 325, 334-339; 564 NW2d 104 (1997). On the contrary, the public policy of Michigan, while limited by decisions of the United States Supreme Court, is to forbid elective abortion. Id. at 337. As dissenting Judge O’Connell noted in Blair, supra at 519, “Michigan refuses to publicly fund an abortion unless the abortion is necessary to save the life of the mother,” citing Doe v Dep’t of Social Services, 439 Mich 650, 678; 287 NW2d 166 (1992), and MCL 400.109a; MSA 16.490(19a). Judge O’CONNELL further observed that “[o]ur state’s public policy is manifested in numerous other ways,” citing MCL 333.17014(f) and (h); MSA 14.15(17014)(f) and (h).
Indeed, the Michigan Supreme Court has held that federal case law imposes no obligation on govern ment to be neutral regarding abortion, but rather allows a state to make a value judgment favoring childbirth over abortion. Doe, supra at 667. The core holding in Doe was that the Equal Protection Clause of the Michigan Constitution does not require the state to fund abortions for women receiving public assistance, even though the state provides financial support for childbirth to similarly situated women receiving public assistance. See id. at 681-682. Because the state has no obligation to affirmatively aid a woman in obtaining an elective abortion by paying for it, the state similarly has no obligation to take the affirmative step of imposing civil liability on a party for failing to provide a pregnant woman with information that would make her more likely to have an elective, and eugenic, abortion.
In reality, then, wrongful birth cases are not abortion cases. If the United States Supreme Court had never decided Roe v Wade, the Eisbrenner decision in Michigan would have been the same, because it takes its basic rationale from Troppi, a pre-Roe v Wade decision. Conversely, eliminating the tort of wrongful birth in Michigan would have no effect whatever on the federal constitutional right that the Roe v Wade Court recognized.
(3) THE SLIPPERY SLOPE OF THE BENEFITS RULE
At its intellectual core, the wrongful birth tort this Court created in Eisbrenner relies on the benefits rule this Court adopted in Troppi. To say the very least, continued reliance on this rule has some far-reaching, and profoundly disturbing, consequences. This rule invites the jury in wrongful birth cases to weigh the costs to the parents of a disabled child of bearing and raising that child against the benefits to the parents of the life of that child. This rule thus asks the jury to quantify the unquantifiable with respect to the benefits side of the equation. Further, to posit a specific question: how does a jury measure the benefits to the parents of the whole life of the disabled child, when the potential of that child is unknown at the time of suit? How, for example, would a hypothetical Grecian jury, operating under Michigan jurisprudence, measure the benefits to the parents of the whole life of Homer, the blind singer of songs who created the Iliad and the Odyssey? Absent the ability to foretell the future and to quantify the value of the spoken and then the written word, how, exactly, would the jury do that?
Further, the use of the benefits rule in wrongful birth cases can slide ever so quickly into applied eugenics. The very phrase “wrongful birth” suggests that the birth of the disabled child was wrong and should have been prevented. If one accepts the premise that the birth of one “defective” child should have been prevented, then it is but a short step to accepting the premise that the births of classes of “defective” children should be similarly prevented, not just for the benefit of the parents but also for the benefit of society as a whole through the protection of the “public welfare.” This is the operating principle of eugenics. James E. Bowman provides a dark, single sentence description of eugenics: “Eugenics espouses the reproduction of the ‘fit’ over the ‘unfit’ (positive eugenics) and discourages the birth of the ‘unfit’ (negative eugenics).” Paul A. Lombardo more broadly, and more charitably, defines eugenics as the idea that the human race can be gradually improved and social ills simultaneously eliminated through a program of selective procreation and describes its most enthusiastic American advocates:
Francis Galton, Karl Pearson, and others who called themselves eugenicists believed in improving the human condition through the use of science. They understood their field as the marriage of the biological sciences, including medical genetics, with the then new discipline of biostatis-tics. The most passionate of American eugenicists, such as Charles Davenport and Harry Laughlin, wished to develop a taxonomy of human traits and to categorize individuals as “healthy” or “unhealthy,” and “normal” or “abnormal,” within their classification scheme. Working under the presumption that most, if not all, human traits are transmitted genetically, the eugenicists encouraged educated, resourceful, and self-sufficient citizens to mate and produce “well-born” eugenic children. In contrast, the dysgenic were discouraged from reproducing. Harry Laughlin called dysgenic groups “socially inadequate” and defined them to include: the feebleminded, the insane, the criminalistic, the epileptic, the inebriated or the drag addicted, the diseased—regardless of etiology, the blind, the deaf, the deformed, and dependents (an extraordinarily expansive term that embraced orphans, “ne’er-do-wells,” tramps, the homeless and paupers.)
To our eyes, this concept appears simultaneously cruel and laughable, but we should remember that the concept, and the values, of eugenics had a profound effect on American society. We should also recall that the courts were not above the use of this type of rhetoric. One of the most respected jurists in American history, Justice Oliver Wendell Holmes, wrote the decision in Buck v Bell, 274 US 200; 47 S Ct 584; 71 L Ed 1000 (1927). As Lombardo describes the opinion:
Justice Holmes borrowed language directly from the Virginia law’s preamble, and repeated its conclusion that “experience has shown that heredity plays an important part in the transmission of insanity, [and] imbecility. ...” Holmes then endorsed the law’s procedures and approved the reasoning and result in the Virginia courts that reviewed the law, concluding with one of the most callous and elitist statements in Supreme Court history: “[i]t is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” In singling out the helplessly dependent genetic imbecile and the congenitally deficient criminal, Holmes emphasized the genetic determinism that eugenic theory had incorporated. Holmes’ choice of a public health law analogy wedded the imagery of a plague with the idea of cleansing the social fabric through sterilization; “[t]he principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” This statement suggests that wiping out an epidemic with a vaccine was comparable to wiping out crime and mental disease with sterilization. Justice Holmes’ most dramatic statement in the opinion included a memorable comment that posed a seemingly irrefutable public policy conclusion: “three generations of imbeciles are enough.”
Finally, we should not forget the influence that the Third Reich’s experiments with sterilization had on the American eugenics movement. As Lombardo notes, Dr. Joseph DeJamette, who testified as an expert witness in the Buck trial, made the following comments about those experiments:
No person unable to support himself on account of his inherited mental condition has a right to be born ... In Germany the sterilization law embraces chronic alcoholics, certain hereditary physical diseases, the hereditarily blind and deaf, the criminally insane, feebleminded and epileptic. [B]y December 31, 1934 Germany had sterilized 56,224 [persons].
Lombardo notes that Dr. DeJamette continued to express his admiration for Hitler’s campaign in the good doctor’s last official comment regarding sterilization in 1938:
Germany in six years has sterilized about 80,000[ ] of her unfit while the United States with approximately twice the population has sterilized about 27,869 to January 1, 1938, in the past 20 years. The death rates in Virginia from sterilization is [sic] negligible—not over one in a thousand. . . . The fact that there are 12,000,000 defectives in the United States should arouse our best endeavors to push this procedure to the maximum.
To our ears, at the close of the twentieth century, this talk of the “unfit” and of “defectives” has a decidedly jarring ring; we are, after all, above such lethal nonsense. But are we? We know now that we all have at least five potentially destructive recessive genes but, according to Bowman, when scientists map the human genome, they will unveil many more potentially harmful genes in each of us. Bowman states that “[p]sychoses, hypertension, diabetes, early- and late-appearing cancers, degenerative disorders, sus ceptibility genes for communicable diseases, genes for various mental deficiencies,[ ] aging genes, and other variations and disorders will be ascertained.” Will we then see the tort of wrongful birth extended to physicians who neglect or misinterpret genetic evidence and thereby fail to extend the option of a eugenic abortion to the unsuspecting parents of a genetically “unfit” and “defective” child? Our current acceptance of the wrongful birth tort would require the answer to this question in Michigan to be: yes.
We further note that it is but another short half step from the concept of preventing the birth of an “unfit” or “defective” child to proposing, for the benefit of the child’s overburdened parents and of the society as a whole, that the existence of the child should not be allowed to continue. Again, this sounds preposterous, but is it? As described by Bowman:
Daniel Callahan, the former President and Founder of the Hastings Center, the preeminent center for bioethics in the United States, has proposed age-based rationing of health care for elderly persons to alleviate escalating health care costs. Pain relief would be in order, but not life-saving measures, including nutrition. In short, aged individuals past their late seventies or early eighties should go quietly into the night in order that the generation to follow would have access to health care—in their early years. [Emphasis supplied.]
If the elderly have a duty to die—indeed, to be starved to death—then why not the disabled child? After all, if that child never should have been bom, then that child has no real right to go on living, thereby imposing the costs of the child’s continued existence on the parents and society. This, we conclude, is the logical end of the slippery slope inherent in the application of the benefits rule through the wrongful birth tort.
(4) CONCLUSION
We conclude that this intermediate appellate court should not continue to recognize the wrongful birth tort without the slightest hint of approval from the Michigan Supreme Court or our Legislature. At least five states have taken legislative action to prohibit “wrongful birth” suits while one state has taken legislative action to permit such suits. If society is to recognize such a tort, it should do so through the action of a majority of the legislature, whose role it is to set social policy. We therefore reconsider our pre-1990 decisions establishing the wrongful birth tort and hold that, as a matter of law, it has no continued place in our jurisprudence.
We recognize that our decision to abolish a tort cause of action for “wrongful birth” marks a substantial change from the rule of law in force since the decision in Eisbrenner, supra, in 1981. In determining whether to give an opinion that has the effect of changing a rule of law complete retroactive effect, we should consider (1) the purpose served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactive application on the administration of justice. Lincoln v General Motors Corp, 231 Mich App 262, 267-268; 586 NW2d 241 (1998). While we believe our rejection of a tort cause of action for “wrongful birth” to be a much sounder rule of law than the previous recognition of a wrongful birth tort, we also recognize that the tort was recognized for a period of many years and that attempts to apply our decision to pending litigation might have a disruptive effect on the administration of justice. Accordingly, our holding is to apply to this case (because application of the holding to this case, which our panel was already considering, will not be disruptive to the administration of justice) and to bar any cause of action for wrongful birth in a complaint filed after the release of this opinion. See Parker v Port Huron Hosp, 361 Mich 1, 28; 105 NW2d 1 (1960) (applying a new rule of law in a civil case “to the instant case and to all future causes of action arising after September 15, 1960, the date of the filing of this opinion”).
D. THE STATUTE OF LIMITATIONS
Here, the Taylors’ wrongful birth claim was essentially a claim of medical malpractice. Dorlin, supra at 836. A plaintiff in a medical malpractice action must bring the claim within two years of when the claim accrued, or within six months of when the plaintiff discovered or should have discovered the claim, whichever is later. MCL 600.5805(4); MSA 27A.5805(4), MCL 600.5838a(2); MSA 27A.5838(1)(2); Solowy v Oakwood Hosp Corp, 454 Mich 214, 219; 561 NW2d 843 (1997). Because it is undisputed that the Taylors’ wrongful birth claim is based on medical malpractice, the date of the accrual of the claim is governed by MCL 600.5838a(l); MSA 27A.5838(1)(1); Dorlin, supra at 836. A medical malpractice claim accrues “at the time of the act or omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.” MCL 600.5838a(l); MSA 27A.5838(1)(1); Solowy, supra at 220. Here, the act or omission that formed the basis of the Taylors’ claim was Kurapati’s interpretation of the ultrasound on December 4, 1993. Thus, the Taylors had until December 4, 1995, to file their claim. By filing their initial complaint on March 26, 1996, the Taylors failed to file within the applicable limitation period and summary disposition was appropriate.
The Taylors maintain that a wrongful birth claim does not accrue until the birth of the child. It is true that a tort action generally accrues when all of the necessary elements of the cause of action have occurred and can be pleaded in a complaint. Luick v Rademacher, 129 Mich App 803, 806; 342 NW2d 617 (1983). However, our Legislature created an exception to that general rule in the case of medical malpractice actions when it enacted MCL 600.5838a(l); MSA 27A.5838(1)(1). Again, under Michigan law, a medical malpractice claim accrues at the time of the act or omission that is the basis of the claim regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. MCL 600.5838a(l); MSA 27A.5838(1)(1) (emphasis supplied). Therefore, we find no merit in the Taylors’ assertion that their claim accrued upon the birth of the child. The Taylors further argue that their wrongful birth claim accrued on the last date that Brandy Taylor could have obtained an abortion. However, the Taylors have offered no authority in support of their position. MCL 600.5838a(l); MSA 27A.5838(1)(1) is controlling with respect to the accrual date. Dorlin, supra at 836.
ffl. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The Taylors argue that the trial court erred in granting defendants’ motion for summary disposition with respect to their claim of negligent infliction of emotional distress where they suffered severe emotional distress witnessing the birth of their child. We disagree. Defendants moved for summary disposition of the negligent infliction of emotional distress claim pursuant to MCR 2.116(C)(7), (8), and (10). The order granting summary disposition did not indicate under which subrule of MCR 2.116 the trial court granted defendants’ motion. We conclude that summary disposition was appropriate under both MCR 2.116(C)(8) and (10).
A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Jackson v Oliver, 204 Mich App 122, 125; 514 NW2d 195 (1994). AH factual allegations in support of the claim must be accepted as true, as well as any reasonable inferences that can be drawn from the facts. Id. The motion should be granted only where the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Id. A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim and may be granted when, except for the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment or partial judgment as a matter of law. Michigan Mut Ins Co v Dowell, 204 Mich App 81, 85; 514 NW2d 185 (1994). The court must consider the documentary evidence submitted by the parties and, giving the benefit of reasonable doubt to the nonmov-ing party, must determine whether a record might be developed that would leave open an issue with regard to which reasonable minds might differ. Id.
A plaintiff may recover for negligent infliction of emotional distress where (1) the injury threatened or inflicted on the third person is a serious one, of a nature to cause severe mental disturbance to the plaintiff, (2) the shock results in actual physical harm, (3) the plaintiff is a member of the third person’s immediate family, and (4) the plaintiff is present at the time of the accident or suffers shock “fairly contemporaneous” with the accident. Wargelin, supra at 81. The Taylors’ claim is fatally flawed where both the parents acknowledged that they did not see their child’s disabilities at or immediately after her birth. Brandy Taylor’s deposition testimony indicated that she did not know anything was wrong with Shelby Taylor and that the doctors swept the child out of the room before she had the chance to see her. Brian Taylor testified that he noticed something about Shelby Taylor’s arm, but that the child was taken out of the room before he could notice more of the disabilities. The Taylors’ physician was able to discuss the child’s disabilities with the Taylors before they saw her. The undisputed facts of this case do not support a claim of negligent infliction of emotional distress. Cf. Wargelin, supra at 86-88. Thus, summary disposition was appropriate pursuant to MCR 2.116(C)(10). In addition, the Taylors failed to allege that the shock of Shelby Taylor’s birth caused them actual physical harm. Therefore, summary disposition pursuant to MCR 2.116(C)(8) was also appropriate. Id.
Affirmed.
Smolensk, J., concurred.
Shelby Taylor’s cause of action was presumably for “wrongful life.” Michigan does not recognize a cause of action for wrongful life, and the Taylors have not raised the issue on appeal. See Rouse v Wesley, 196 Mich App 624, 627; 494 NW2d 7 (1992); Proffitt v Bartolo, 162 Mich App 35, 58; 412 NW2d 232 (1987); Dorlin v Providence Hosp, 118 Mich App 831, 835; 325 NW2d 600 (1982); Eisbrenner v Stanley, 106 Mich App 357, 367; 308 NW2d 209 (1981).
In late March 1996, in case number 96-617726 NH, the Taylors filed a complaint against defendants for medical malpractice. In an order dated August 12, 1996, the Taylors’ claim was dismissed without prejudice for failure to comply with the statutory notice of intent provisions. The order provided that “the statutory notice provision shall expire on August 19, 1996 and plaintiff may refile its complaint on August 20, 1996 and that the Statute of Limitations is tolled through August 19, 1996.” We did not receive the record for case number 96-617726 NH, and therefore we rely on the parties’ briefs to supply the procedural background. That the complaint was initially dismissed is not at issue in this case.
See Poet v Traverse City Osteopathic Hosp, 433 Mich 228; 445 NW2d 115 (1989) (suit based on alleged negligence in prenatal treatment resulting in birth of baby with permanent brain damage); May v William Beaumont Hosp, 180 Mich App 728; 448 NW2d 497 (1989) (the defendant hospital found liable for injuries to baby due to malpractice in prenatal treatment); Soto v Lapeer Co, 169 Mich App 518, 520; 426 NW2d 409 (1988) (suit alleging in part that death of two-month-old baby was due to negligent use of forceps during baby’s delivery).
See Proffitt, supra at 41, n 2: “Both causes of action [’’wrongful birth” and “wrongful life”] which we consider must also be distinguished from the situation where negligent injury to a normal fetus results in the birth of a child with birth defects.”
The phrase “terminate the pregnancy” is, of course, a euphemism; the plain English word is “abortion.” Because we do not believe that the abortion cases control the issues in this matter and because the word “abortion” is so value-laden in our society, we have elected to use the euphemism except when discussing the abortion cases directly.
See, e.g., DeGrella v Elston, 858 SW2d 698 (Ky, 1993).
See, e.g., In re Guardianship of Browning, 568 So 2d 4 (Fla, 1990).
See, e.g., Cruzan v Director, Missouri Dep’t of Health, 497 US 261, 278; 110 S Ct 2841; 111 L Ed 2d 224 (1990).
MCL 700.496; MSA 27.5496 allows an adult to designate a “patient advocate” to generally make medical decisions on behalf of the adult in the event of incapacity. However, MCL 700.496(9)(e); MSA 27.5496(9)(e) provides:
A patient advocate may make a decision to withhold or withdraw treatment which would allow a patient to die only if the patient has expressed in a clear and convincing manner that the patient advocate is authorized to make such a decision, and that the patient acknowledges that such a decision could or would allow the patient’s death.
All fifty states have some form of advance directive statute. As noted in the preceding footnote, the Michigan statute allows an adult to, in writing, name a patient advocate.
See Michigan Do-Not-Resuscitate Procedure Act, MCL 333.1051 et seq.; MSA 14.15(1051) et seq.
See, e.g., In re Quinlan, 70 NJ 10; 355 A2d 647 (1976).
Michigan law does not allow a surrogate decisionmaker to direct the withdrawal of life-sustaining medical treatment from a conscious, but incapacitated, patient without clear and convincing evidence that “while competent, [the patient] made a statement of his desire to refuse life-sustaining medical treatment under these circumstances.” Martin, supra at 233-234. Likewise, we consider it unlikely that the Michigan Supreme Court would allow a surrogate decisionmaker to withdraw life-sustaining treatment from a never-competent patient. “If we are to err . . . we must err in preserving life." Id. at 208.
See Cruzan, supra at 271, citing In re Superintendent of Belchertown State School v Saikewica, 373 Mass 728; 370 NE2d 417 (1977).
Jackson, Action for wrongful life, wrongful pregnancy, and wrongful birth in the United States and England, 17 Loy, LA Int’I & Comp L J 535, 583 (1995).
See, e.g., Cockrum v Baumgartner, 99 111 App 3d 271; 54 111 Dec 751; 99 425 NE2d 968 (1981). See also Rouse, supra at 625, 627.
See, .e.g., Troppi v Scarf, 31 Mich App 240; 187 NW2d 511 (1971).
See, e.g., Rinard v Biczak, 177 Mich App 287; 441 NW2d 441 (1989).
See, e.g., Miller v Johnson, 231 Va 177; 343 SE2d 301 (1986).
The specific costs that the Troppis claimed were “(1) Mrs. Troppi’s lost wages; (2) medical and hospital expenses; (3) the pain and anxiety of pregnancy and childbirth; and (4) the economic costs of rearing the eighth child.” Troppi, supra at 244.
The Court found that the defendant pharmacist’s conduct, in negligently supplying a drug other than the drug requested, constituted a clear breach of duty, Troppi, supra at 245.
The Court found that “[t]he possibility that she [Mrs. Troppi] might become pregnant was certainly a foreseeable consequence of the defendant’s failure to fill a prescription for birth control pills; we, therefore, could not say that it was not a proximate cause of the birth of the child.” Troppi, supra, at 245-246.
The Court found:
The medical and hospital expenses of Mrs. Troppi’s confinement and her loss of wages arose from the defendant’s failure to fill the prescription properly. Pain and suffering, like that accompanying childbirth, have long been recognized as compensable injuries. [Troppi, supra at 246.]
According to the Troppi panel, the trial court “declared that whatever damage plaintiffs suffered was more than offset by the benefit to them of having a healthy child.” Troppi, supra at 244.
The “same interest” rule is another formulation of the benefits rule, whereby if the defendant’s tortious conduct conferred a benefit to the same interest that was harmed by his conduct, the dollar value of the benefit is to be subtracted from the dollar value of the injury in arriving at the damages properly awardable. Troppi, supra at 255, citing Burtraw v Clark, 103 Mich 383; 61 NW 552 (1894); 22 Am Jur 2d, Damages, § 204, p 283; McCormick, Damages, § 40, p 146.
11 Pa D & C 2d 41, 45, 46 (1957).
The Troppi panel cited no source for this conclusion.
Again, the Troppi panel cited no source for this conclusion.
In Green, as described by this Court in Rouse, supra at 628, the plaintiff wife requested that the defendant physician perform a tubal ligation immediately following the birth of her third child. The defendant failed to perform the surgery and, according to the plaintiffs, also failed to inform the plaintiffs that the surgery had not been performed. The plaintiffs consequently failed to take birth control precautions and a fourth child was born. The plaintiffs sued the defendant, seeking in part to recover the cost of raising the child. Id. The jury awarded the plaintiffs $95,000. Green, supra at 547. The Green panel affirmed, rejecting the defendant’s argument that the award of such damages would be speculative, noting that the computation of the expense of raising a child, although difficult, should not operate to bar recovery. Id. at 547-548.
See anno: Recoverability of cost of raising normal, healthy child bom as result of physician’s negligence or breach of contract or warranty, 89 ALR4th 632, § 3, pp 640-644 & 1998 Supp, 89 ALR4th 632, § 3, p 13.
Citing Morris v Sanchez, 746 P2d 184, 187-188 (Okla, 1987), and Cockrum v Baumgartner, 95 Ill 2d 193, 198-199; 69 Ill Dec 168; 447 NE2d 385 (1983).
The phrase may have its origin in the New Testament (See Matthew, 26:24 (Holman Verse Reference Jewel Edition): “[I]t had been good for that man [Judas Iscariot] if he had not been born.”) If so, the implicit comparison between Judas, the betrayer of Jesus, and the disabled is chilling.
The Rouse panel used the tenm “wrongful pregnancy.” Rouse, supra at 632.
In a footnote, the Rouse panel stated, “This holding would seem to undermine the basic premise in Troppi, which relies upon the benefits rule.” Rouse, supra at 631, n 3.
While consideration of some of the rationale of “wrongful conception” cases is analytically crucial to our decision, the case at hand involves a claim for “wrongful birth,” not wrongful conception. Thus, we do not address the issue whether wrongful conception claims, as distinct from wrongful birth claims and as limited by Rouse, supra, remain tenable.
Jackson, supra at 536-537.
However, that seems to have. been a considerable overstatement. While the Proffitt panel cited anno: Tort liability for wrongfully causing one to be bom, 83 ALR3d 15, in support of its statement, that annotation in fact lists a number of cases in which courts in other jurisdictions have rejected theories of liability premised on damages supposedly suffered by the parents from the “wrongful birth” of a child or by a child from the child’s supposedly “wrongful life.” Id., § 3(b), pp 36-40.
In Harbeson, the Washington court appeared to adopt the benefits rule in wrongful birth cases by holding that the parents could recover for the medical expenses attributable to the child’s “defective condition” and for the emotional injury caused by the birth of the “defective” child though the jury could also consider countervailing emotional benefits attributable to the birth of the child. Proffitt, supra at 45.
The Court cited Theocritus: “ ‘For the living there is hope, but for the dead there is none.’ ” Gleitman, supra at 30.
See Berman v Allan, 80 NJ 421; 404 A2d 8 (1979), recognizing a parents’ cause of action for wrongful birth, partially based on a recognition that, under Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), the mother’s right to terminate the pregnancy during the first trimester was not subject to state interference.
See Dorlin, supra at 835 (“The Eisbrenner Court did find that the parents had a cause of action and they could seek damages for both medical expenses and mental distress.”); Strohmaier, supra at 119 (“In the Eisbrenner opinion, the panel held that, although the parents could seek damages for both medical expenses and mental distress, the child’s claim did not constitute a valid cause of action.”); Proffitt, supra at 46 (“[W]e conclude that the Eisbrenner holding with regard to wrongful birth remains the law in Michigan until changed by the Legislature or the Supreme Court.”); Rinard, supra at 290 (“A cause of action can be maintained in Michigan for failure to diagnose pregnancy.”), Rouse, supra at 626-627 (citing Rinard, supra, and Proffitt, supra, to the effect that “[w]rongM birth is a tort action brought by parents of a child with a birth defect against a doctor or other person whose negligent failure to inform the parents of the risk of the birth defect deprived the parents of the opportunity to make an informed decision to avoid or terminate the pregnancy”); and Blair v Hutzel Hosp, 217 Mich App 502, 508; 552 NW2d 507 (1996), rev’d 456 Mich 877 (1997) (after discussing Eisbrenner, Proffitt, Rinard, and Rouse, holding that “[t]he trial court properly denied summary disposition of the wrongful birth claim because that is still a viable cause of action in this state”).
We note that the only matter considered by the Blair panel of this Court was whether the trial court properly granted summary disposition in favor of the defendant hospital with regard to the wrongful birth claim brought by the plaintiff in that case. See Blair, supra at 217 Mich App 504-505. The decision of the Blair panel was to reverse the grant of summary disposition and remand the case for trial on the plaintiff’s wrongful birth complaint. Id. at 512. However, the Supreme Court reversed that decision and reinstated the trial court’s grant of summary disposition in favor of the defendant. Blair, supra at 456 Mich 877. Thus, the Supreme Court reversed the decision of this Court in Blair in its entirety, although the Supreme Court did so without addressing the Blair panel’s discussion of the continuing vitality of the wrongful birth cause of action in Michigan. Because the Supreme Court entirely reversed the Blair panel’s decision, we conclude that under the plain language of MCR 7.215(H)(1), nothing in the Blair panel’s opinion is binding precedent under that sub-rule. We observe that MCR 7.215(H)(1) establishes a bright-line test and that such a test cannot be maintained if every opinion is to be parsed into its smallest components.
The concurrence in Gleitman, supra at 44, defined a “eugenic abortion” as one based on the probability or possibility that the fetus may be born in a mentally or physically abnormal condition. By contrast, the concurrence defined a “therapeutic abortion” as an induced interruption of a pregnancy, the continuance of which will jeopardize the life or health of the mother. Id.
We also note the inherent proof problem in making a finding that an abortion would have occurred had the parents been informed of the child’s potential disability. In this regard, Weymers v Khera, 454 Mich 639, 649; 563 NW2d 647 (1997), considered the “doctrine of lost opportunity,” which allows for recovery when a defendant’s negligence “possibly” (i.e. with a probability of fifty percent or less) caused the plaintiff’s injury. The Court ultimately held that no cause of action exists for the loss of an opportunity to avoid physical harm less than death, id,., in the process stating that it refused “to discard causation” in negligence actions of the type there presented, id. at 653. In wrongful birth actions, we note the difficulty in finding causation based on after-the-fact, possibly self-serving, testimony that the parents would have sought an abortion had they known of the child’s potential disability-
See Bowman, The road to eugenics, 3 U Chic L Sch Roundtable 491 (1996).
Bowman goes on to amplify his description:
The delineation of the “fit” from the “unfit” is ancient. Ancient Greeks proposed to control mating among the guardian (upper) class to ensure that the offspring would produce the “best and the brightest.” In Plato’s Republic, Socrates explores the idea that “a life spent in the doctor’s hands is not worth having,” that medicine should only be practiced on those who have healthy constitutions and healthy habits; and “weak” parents should not be allowed to have “weak” children. The American Eugenics Movement in the 1920s targeted as “unfit” individuals with epilepsy, criminals, the crippled and deformed; persons who were mentally defective or who had low intelligence; patients with communicable diseases such as syphilis, tuberculosis, or leprosy; alcoholics and drug abusers; poor people; and Eastern European immigrants to the United States. The Nazis marked Jews, Gypsies, and other so-called non-Aryan peoples, individuals who were mentally defective, and persons with incurable or mental illnesses—to name a few. In the heyday of eugenics, sterilization, infanticide, euthanasia, or a variety of “final solutions” were tools for the prevention or elimination of the “unfit.” [Id. at 492.]
See Lombardo, Medicine, eugenics and the Supreme Court: From coercive sterilization to reproductive freedom, 13 J Contemp Health L & Pol’y 1-2 (1996).
Id. at 2-3.
Id. at 10-11.
Id. at 11-12.
Id. at 12.
Lombardo notes that the Nazi program eventually claimed between 360,000 and 3,500,000 victims, commenting that “the numbers are elusive.” Id.
Bowman, supra at 492-493.
Bowman notes:
Kay Jamison, Professor of Psychiatry at Johns Hopkins Medical School, who also serves on the National Advisory Committee for Human Genome Research, discovered an incidence of manic depressive illness among poets, composers, and other artists of from 30 to 50 percent. If we are ever able to prevent manic depressive illness by prenatal diagnosis and abortion—or cure manic depressive illness—there could be a detrimental effect on creativity. Samuel Coleridge Taylor, Emily Dickinson, T. S. Eliot, Victor Hugo, Samuel Johnson, Edna St. Vincent Millay, Ezra Pound, Edgar Allan Poe, Alfred Lord Tennyson, Walt Whitman, Hans Christian Anderson, Honoré de Balzac, Charles Dickens, William Faulkner, Hector Berlioz, Handel, Gustav Mahler, Rachmaninoff, Rossini, Tchaikovsky, Irving Berlin, Cole Porter, Charles Parker, Paul Gaugin, Vincent van Gogh, Michelango, and Jackson Pollock could have been on an unfit hit list. [Id. at 514.]
Id. at 503.
Idaho (see Idaho Code 5-334); Minnesota (see Minn Stat Ann 145.424); Missouri (see Mo Ann Stat 188.130); Pennsylvania (see 42 Pa Cons Stat Ann 8305); and South Dakota (see SD Cod Laws Ann 21-55-2).
Maine (see Me Rev Stat Ann, tit 24, § 2931[2]).
Contrary to our colleague’s statement in his separate concurrence and dissent, our decision to abolish the tort of wrongful birth is not “merely dictum with no precedential value.” Post at 361. Rather, we decide this case with two alternative holdings, neither of which may be considered dictum because both are equally decisive: (1) we affirm the trial court’s grant of summary disposition in favor of defendants with regard to the wrongful birth claim because the tort of wrongful birth is abolished, and (2) we affirm the trial court’s grant of summary disposition in favor of defendants with regard to the wrongful birth claim because the wrongful birth claim is barred by the statute of limitations. See Woods v Interstate Realty Co, 337 US 535, 537; 69 S Ct 1235; 93 L Ed 1524 (1949) (“where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum”); see also Vaught v Showa Denko KK, 107 F3d 1137, 1144 (CA 5, 1997). We note, in light of our colleague’s concern about wasting judicial time and resources, that our decision to resolve this case with two alternative holdings may serve the goal of judicial economy. In the event that the Michigan Supreme Court should decide to review this case and decides that we erred with regard to one of our two central holdings, the Court will have the benefit of our analysis with regard to the other holding, thereby conserving judicial resources in that forum.
We acknowledge that the parties did not directly raise the issue whether the tort of wrongful birth should continue to be recognized in Michigan. However, “this Court may go beyond the issues raised on appeal and address issues that, in this Court’s opinion, justice requires be considered and resolved.” Frericks v Highland Twp, 228 Mich App 575, 586; 579 NW2d 441 (1998). When a claim in a case is premised on an alleged tort, whether the tort theory underlying that claim should even be recognized as a matter of law is a basic and controlling issue in the case. Further, for the reasons we have discussed at length, recognition of a tort cause of action for wrongful birth is fundamentally unsound. We conclude that “justice requires,” id., that we take this opportunity to consider the basic issue whether Michigan should recognize a cause of action for “wrongful birth.”
As for the charge of “unnecessary judicial activism,” post at 363, we welcome our colleague’s apparent acceptance of the view that such activism is to be avoided and observe that the creation of the wrongful birth cause of action was, in the first instance, entirely a judicial act by an intermediate appellate court. We do not view the abolition of that cause of action, which has never been recognized by our Legislature or our Supreme Court, to be an example of judicial activism.
The six-month period is not at issue here, where Brandy Taylor admitted that she suspected that the ultrasound was negligently interpreted as early as the summer of 1994. | [
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Murphy, J.
Petitioner, the Department of Consumer and Industry Services, appeals as of right from a final order of dismissal issued by the Disciplinary Subcommittee of the Board of Medicine. Petitioner alleged that respondent and his solely owned professional coiporation, Cardiology Group of Lansing, P.C. (hereinafter pc), fraudulently billed Blue Cross and Blue Shield of Michigan (bcbsm) for cardiology services not actually rendered. After a separate criminal proceeding, in which the PC pleaded no contest to altering a medical record, MCL 750.492a(l)(b); MSA 28.760(l)(l)(b), petitioner charged respondent, personally, with violating seven sections of article 15 of the Public Health Code, MCL 333.16101 et seq.) MSA 14.15(16101) et seq. None of the charges alleged that respondent injured his patients or rendered inappropriate care in any way. Following a hearing, a hearing referee issued a proposal for decision, recommending that all charges against respondent be dismissed. On December 23, 1997, the disciplinary subcommittee adopted the hearing referee’s recommendation and dismissed the charges against respondent. We affirm.
Preliminarily, respondent contends that petitioner lacks standing to appeal the decision of the disciplinary subcommittee to this Court. Whether petitioner has standing to bring this appeal is a question of law that we review de novo. Oakland Co Bd of Co Rd Comm’rs v Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998).
MCR 7.203(A)(2) provides that this Court “has jurisdiction of an appeal of right filed by an aggrieved party from ... [a] judgment or order of a court or tribunal from which appeal of right to the Court of Appeals has been established by law or court rule.” Subsection 16237(6) of the Public Health Code, MCL 333.16237(6); MSA 14.15(16237)(6), provides:
A final decision of a disciplinary subcommittee rendered after the effective date of the amendatory act that added this section but before January 1, 1995 may be appealed only in the manner provided in sections 103 to 106 of the administrative procedures act of 1969, being sections 24.303 to 24.306 of the Michigan Compiled Laws. A final decision of a disciplinary subcommittee rendered on or after January 1, 1995 may be appealed only to the court of appeals. An appeal filed under this subsection is by right. [Emphasis supplied.]
Accordingly, the final order of the disciplinary subcommittee, issued December 23, 1997, dismissing the charges against respondent, is appealable to this Court as of right pursuant to subsection 16237(6) as long as petitioner qualifies as an “aggrieved party” as contemplated by MCR 7.203(A)(2).
To have standing to appeal means that a person must be “aggrieved” by a lower body’s decision. MCR 7.203(A). This Court has defined the term “aggrieved party” as “ ‘one whose legal right is invaded by an action, or whose pecuniary interest is directly or adversely affected by a judgment or order. It is a party who has an interest in the subject matter of the litigation.’ ” In re Freeman Estate, 218 Mich App 151, 155; 553 NW2d 664 (1996), quoting 6 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed, 1992), authors’ comment regarding Rule 7.203, § 1, pp 138-139. A party is not “aggrieved” if the order appealed from is in its favor. Kocenda v Archdiocese of Detroit, 204 Mich App 659, 666; 516 NW2d 132 (1994).
As an agency charged with enforcing the Public Health Code, MCL 333.16221; MSA 14.15(16221), peti tioner has a cognizable interest in ensuring that a hearing referee properly applies the law in an administrative proceeding. In other words, petitioner has an interest in the litigation because misconstruction or improper application of the law would hinder its ability to enforce the law as the Legislature intended. Compare, generally, Attorney General v Liquor Control Comm, 65 Mich App 88, 92-93; 237 NW2d 196 (1977) (the Attorney General had standing to intervene because he had broad statutory authority to protect Michigan citizens). Further, this Court has implicitly found that petitioner is an aggrieved party that may appeal to this Court a final order of a disciplinary subcommittee. See Dep’t of Consumer & Industry Services v Hoffmann, 230 Mich App 170; 583 NW2d 260 (1998).
Finally, we reject respondent’s contention that the Administrative Procedures Act (APA), MCL 24.201 et seq.-, MSA 3.560(101) et seq., prohibits petitioner from bringing the instant appeal. As indicated above, because the disciplinary committee’s decision was issued on December 23, 1995, the apa does not govern who can bring the instant appeal. MCL 333.16237(6); MSA 14.15(16237)(6).
Therefore, we conclude that petitioner is an aggrieved party with standing to appeal the decision of the disciplinary subcommittee to this Court as of right.
Turning to the merits of petitioner’s appeal, petitioner argues that the disciplinary subcommittee erred in adopting the decision of the hearing referee, who concluded that the criminal conviction of respondent’s pc cannot be used to impute culpability to respondent under the Public Health Code. Statu tory interpretation is a question of law subject to review de novo on appeal. Attorney General v Public Service Comm, 227 Mich App 148, 153; 575 NW2d 302 (1997).
Relevant to this appeal, petitioner charged respondent with violating three subsections of the Public Health Code, namely, subsections b(viii), b(iv) and h of § 16221. Section 16221 provides, in pertinent part, as follows:
The department may investigate activities related to the practice of a health profession by a licensee, a registrant, or an applicant for licensure or registration. The department may hold hearings, administer oaths, and order relevant testimony to be taken and shall report its findings to the appropriate disciplinary subcommittee. The disciplinary subcommittee shall proceed under section 16226 if it finds that 1 or more of the following grounds exist:
(b) Personal disqualifications, consisting of 1 or more of the following:
(viii) Conviction of a violation of section 492a of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being section 750.492a of the Michigan Compiled Laws. A certified copy of the court record is conclusive evidence of the conviction.
(ix) Conviction of a misdemeanor or felony involving fraud in obtaining or attempting to obtain fees related to the practice of a health profession. A certified copy of the court record is conclusive evidence of the conviction.
(h) Failure to comply with a subpoena issued pursuant to this part, failure to respond to a complaint issued under this article or article 7, failure to appear at a compliance confer ence or an administrative hearing, or failure to report under section 16222 or 16223.
The hearing referee determined that, because respondent had not been convicted of a crime and only the PC stood convicted, petitioner could not proceed against respondent under subsections b(viii) and b(ix) and respondent had nothing to report under § 16222, MCL 333.16222; MSA 14.15(16222), or § 16223, MCL 333.16223; MSA 14.15(16223), thereby precluding petitioner from proceeding against respondent under subsection h. As a result, the hearing referee recommended that the disciplinary subcommittee dismiss these charges, and the subcommittee agreed.
Both petitioner and respondent frame this issue on appeal as if this Court’s primary focus should be interpreting the Professional Service Corporation Act (PSCA), MCL 450.221 et seq.; MSA 21.315(1) et seq., and subsection 492a(l)(b) of the Penal Code, MCL 750.492a(l)(b); MSA 28.760(l)(l)(b), to determine whether petitioner may impute the PC’s criminal conviction to respondent. To the contrary, this Court must construe the sections of the Public Health Code that petitioner alleged respondent violated. To do so, this Court must resort to the rules of statutory construction. Only if the plain language of the statute itself does not clarify the Legislature’s intent regarding imputing a corporation’s criminal conviction, to its shareholders should this Court expand its analysis to incorporate other sources of authority that comment on the legal relationship between respondent and the pc, such as the PSCA. See Kiesel Intercounty Drain Drainage Dist v Dep’t of Natural Resources, 227 Mich App 327, 333-334; 575 NW2d 791 (1998); Auto- Owners Ins Co v Stenberg Bros, Inc, 227 Mich App 45, 50; 575 NW2d 79 (1997).
Subsection 16221(b)(viii) of the Public Health Code subjects a licensee to discipline if the licensee is convicted of violating subsection 492a(l)(b) of the Penal Code, which makes it a crime to alter a medical record. Subsection 16221(b)(viii) permits the department to prove that a licensee unlawfully altered a medical record by merely submitting a “certified copy of the court record” without any additional proof. This appears to create strict liability and surely stems from a policy of adjudicative efficiency. In other words, if a licensee has been determined to have violated subsection 492a(l)(b) of the Penal Code, beyond a reasonable doubt in the criminal courts of this state, it would be a waste of administrative time and resources to relitigate the issue at an administrative level.
However, the question before this Court is whether the entry of a plea of no contest by the PC for a violation of subsection 492a(l)(b) should be imputed to respondent, personally, for purposes of subsection 16221(b)(viii). We conclude that the plain language of subsection 16221(b)(viii) does not permit imputing the pc’s conviction to respondent. As reproduced above, subsection 16221(b)(viii) provides that. “[t]he disciplinary subcommittee shall proceed under section 16226 if it finds [a] . [c]onviction of a violation of section 492a of the Michigan penal code.” The Public Health Code defines “conviction” as “a judgment entered by a court upon a plea of guilty, guilty but mentally ill, or nolo contendere or upon a jury verdict or court finding that a defendant is guilty or guilty but mentally ill.” MCL 333.16103(5); MSA 14.15(16103)(5). There is no indication in either statute that the Legislature intended that a conviction of any person other than a licensee be attributed to the licensee for the purpose of disciplinary proceeding under subsection 16221(b)(viii). In this case, the PC stands convicted of a crime, not respondent.
Additionally, subsection 16221(b)(viii) states that a “certified copy of the court record is conclusive evidence of the conviction.” This supports, in our view, the narrow and explicit definition of the word “conviction,” because it helps to connect a conviction against a licensee in an unrelated criminal proceeding with the disciplinary action before the disciplinary subcommittee by identifying the defendant who was convicted in the criminal proceeding. It would be illogical for the Legislature to establish that a certified court record that does not even mention a licensee could “conclusively” establish the licensee’s liability under the Public Health Code.
Accordingly, we conclude that respondent was not “convicted” under § 492a of the Penal Code within the meaning of subsection 16221(b)(viii) and that the disciplinary subcommittee therefore did not err in accepting the hearing referee’s recommendation to dismiss this charge.
Petitioner next argues that the disciplinary subcommittee erred in adopting the hearing referee’s recommendation to dismiss petitioner’s charge that respondent violated subsection 16221(b)(ix) of the Public Health Code. Subsection 16221(b)(ix) differs from subsection 16221(b)(viii) in two ways. First, the Legislature limited discipline under subsection 16222(b)(viii) for a conviction under a particular Michigan criminal law, § 492a of the Penal Code, while subsection 16221(b)(ix) is a broad provision and subjects a licensee to discipline for any criminal conviction “involving fraud in obtaining or attempting to obtain fees related to the practice of a health profession.” Second, to convict an individual under § 492a of the Penal Code a prosecutor must prove that the individual “intentionally, willfully, or recklessly” used misleading or inaccurate information in a medical record. However, subsection 16221(b)(ix) requires proof of criminal fraud in circumstances that may or may not involve medical records.
Nonetheless, the structure of the two subsections is identical in that each is prefaced with the word “conviction” and permits a certified court record to provide conclusive evidence of a relevant conviction. Further, petitioner does not argue that the Legislature intended to give different meanings to subsections 16221(b)(ix) and 16221(b)(viii) to the extent that they both rely on the same terms. Accordingly, as with subsection 16221(b)(viii), we conclude that the Legislature did not intend to permit the disciplinary subcommittee to discipline respondent for the PC’s conviction under subsection 16221(b)(ix). Accordingly, the disciplinary subcommittee did not err in dismissing petitioner’s charge that respondent violated subsection 16221(b)(ix), because respondent had not been convicted of a crime involving fraudulently receiving or attempting to receive reimbursement for his services.
Petitioner next argues that the disciplinary subcommittee erred in adopting the hearing referee’s recommendation to dismiss the charge that respondent violated subsection 16221(h) of the Public Health Code by failing to report conduct described in subsection 16222(3), MCL 333.16222(3); MSA 14.15(16222)(3), which provides:
A licensee or registrant shall notify the department of a criminal conviction or a disciplinary licensing or registration action taken by another state against the licensee or registrant within 30 days after the date of the conviction or action. This subsection includes, but is not limited to, a disciplinary action that is stayed pending appeal.
This subsection does not attempt to subject a licensee to discipline for the substantive, underlying offense. Rather, it appears to be a way to ensure that petitioner obtains the information it must have to engage in its regulatory function. Further, a construction that only imposes a duty to report disciplinary actions outside Michigan makes sense because the disciplinary subcommittee knows when it disciplines a licensee within this state. Additionally, MCL 769.16a; MSA 28.1086(1) requires the clerk of a court to report to petitioner when an individual licensed under the Public Health Code is convicted of any felony or certain misdemeanors. As a result, there is no need to construe subsection 16222(3) in a way designed to avoid a reporting “loophole” for in-state convictions and disciplinary actions because respondent already receives this information.
Accordingly, because petitioner has never alleged that respondent was convicted of a crime or disciplined in another state, the disciplinary committee did not err in dismissing petitioner’s charge that respondent violated subsection 16221(h).
Finally, petitioner contends that because respondent is the PC’s sole owner and officer, the disciplinary subcommittee erred in refusing to “pierce the coiporate veil” in order to impute the pc’s conviction to respondent. According to petitioner, this would demonstrate that respondent had violated subsections 16221(b)(viii) and 16221(b)(ix) of the Public Health Code and would permit the subcommittee to discipline him as described in § 16226.
Michigan courts typically consider corporations legally distinct from their shareholders, even if a single shareholder owns all the stock. Bourne v Muskegon Circuit Judge, 327 Mich 175, 191; 41 NW2d 515 (1950). The same holds true for professional corporations. See Kline v Kline, 104 Mich App 700; 305 NW2d 297 (1981). “A court’s treatment of a corporate entity clearly rests on notions of equity, whether it is an action at law or at equity.” Id. at 703. Equity has the “power ‘to look through and behind the legal entity of corporate existence.’ ” Klager v Robert Meyer Co, 415 Mich 402, 411; 329 NW2d 721 (1982), quoting Gledhill v Fisher & Co, 272 Mich 353; 262 NW 371 (1935). Piercing the coiporate veil is appropriate when there is evidence of fraud, illegality, or injustice. Allstate Ins Co v Citizens Ins Co of America, 118 Mich App 594, 600-601; 325 NW2d 505 (1982). “Each case involving disregard of the corporate entity rests on its own special facts.” Kline, supra at 703.
Notions of equity and justice do not require piercing the coiporate veil in this case. Petitioner has generally alleged that respondent personally engaged in fraudulent billing practices. The Public Health Code in subsections 16221(d)(iii) and 16221(e)(i), MCL 333.16221(d)(iii), 333.16221(e)(i); MSA 14.15(16221) (d) (iii), 14.15(16221)(e)(i), explicitly provides for direct liability for licensees who engage in fraudulent billing. Specifically, subsection 16221(d)(iii) prohibits “[f]raud or deceit in obtaining third party reimbursement,” while subsection 16221(e)(i) prohibits “[misrepresentation to a consumer or patient or in obtaining or attempting to obtain third party reimbursement in the course of professional practice.” Notably, petitioner charged respondent with violating these very provisions in counts v and vi of its second amended complaint. Consequently, if petitioner had established that respondent violated these sections, the disciplinary subcommittee would have been justified in disciplining respondent without piercing the corporate veil. Petitioner, however, failed to establish violations of these subsections, and petitioner has not appealed the disciplinary subcommittee’s decision to dismiss the charges brought under those subsections. Further, we conclude that justice and equity do not require piercing the corporate veil in this case because even where a corporation is wholly owned by a single individual, it is conceivable that the conduct of a corporation that has been judged to be criminal could be attributable to someone other than the corporation’s owner, such as a member of the corporation’s staff. See People v American Medical Centers of Michigan, 118 Mich App 135, 155-156; 324 NW2d 782 (1982). In such a case, piercing the corporate veil to reach the corporation’s owner would actually foster injustice and inequity because the owner was not personally responsible for the conduct giving rise to the corporation’s conviction.
Accordingly, justice does not demand the piercing of the PC’s corporate veil so as to permit the imputation of its conviction to respond to show that respondent had violated subsections 16221(b)(viii) or 16221(b)(ix), because the disciplinary subcommittee could have directly disciplined respondent under other sections of the Public Health Code.
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Murphy, J.
Plaintiffs filed suit to enjoin defendants from collecting the four cents a gallon gasoline tax increase imposed by 1997 PA 83. The lower court denied plaintiffs’ request for an immediate injunction and dismissed that portion of plaintiffs’ suit claiming that the Legislature failed to properly give immediate effect to 1997 PA 83. The parties voluntarily dismissed the balance of plaintiffs’ claims, reserving plaintiffs’ right to appeal the lower court’s denial of injunctive relief. The sole issue on appeal is whether the lower court erred in concluding that the Legisla ture properly gave immediate effect to 1997 PA 83. We conclude that the Legislature acted properly and therefore affirm the decision of the lower court.
On June 4, 1997, HB 4872 was introduced in the Michigan House of Representatives, proposing to increase the Michigan gas tax. The House passed the bill on June 26, 1997, with the requisite two-thirds of the House voting to give the bill immediate effect. The bill then proceeded to the Senate, where the Senate passed the bill with various amendments and returned it to the House. On July 3, 1997, however, the Senate requested the return of the bill, whereupon the Senate approved a motion for reconsideration and ultimately approved Senate substitute, S-8, which provided for an increase of the Michigan gasoline tax from fifteen cents a gallon to nineteen cents a gallon. At that time, the Senate also voted to give HB 4872, as amended by S-8, immediate effect. The Senate then returned the bill to the House, where the House concurred in the Senate amendments. The House did not vote, however, whether to give the bill, as amended, immediate effect. On July 25, 1997, the Governor signed HB 4872 (S-8), which was assigned public act number 1997 PA 83. The public act was given immediate effect.
Plaintiffs argue that following the Senate’s amendment of HB 4872, the House was again required to cast an immediate-effect vote before the bill, as amended, could have immediate effect. Whether the Legislature properly gave immediate effect to the bill is a question of law that we review de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
The record in this case reveals that from approximately 1968 to 1996, the House had an informal policy that the immediate effect given to a bill, which was subsequently amended by the Senate, would lapse unless expressly renewed by the House upon the return of the amended bill from the Senate. According to an affidavit of Mary Kay Scullion, the Clerk of the House, that policy was changed in January 1997 pursuant to a decision of the Democratic leadership. The new policy provided that immediate effect would continue to attach to a bill, which was amended in the Senate and returned to the House for approval of the Senate amendments, unless the Majority Floor Leader moved in the House to give the bill immediate effect and the motion was defeated.
Plaintiffs first argue that the Democratic leadership lacked the authority to change the policy regarding immediate effect, which had been in existence before January 1997. Plaintiffs maintain that House Rule 75 required a majority vote of the members of the House to change any rule of the House. Although House Rule 75 provides, in relevant part, that “[a]ny rule of the House may be amended by a majority vote of the Members elected and sérving,” plaintiffs have presented no evidence that the previous policy of requiring a second immediate-effect vote was a House Rule subject to the procedural requirements of House Rule 75. In fact, on this record, the House policy in existence before January 1997 appears to have been merely an informal practice or procedure. Accord ingly, plaintiffs’ contention that a majority vote of the House was required to change the informal policy of requiring a second immediate-effect vote after a senate amendment is without merit.
Further, the procedure used by the House before the January 1997 change in policy was contrary to both the House Rules and case law. Specifically, House Rule 76 requires the House to defer to Mason’s Manual of Legislative Procedure in matters not addressed by the Michigan Constitution, the House Standing Rules, or the Joint Rules of the Senate and the House of Representatives. Relevant to this case, Mason’s Manual of Legislative Procedure (1989), subsection 730(3), p 502, provides as follows:
When, on the original passage of a bill, one house voted that the bill should take effect immediately and the other house, after amending the bill, passed it by a like vote, the bill took effect immediately although the first house', when it concurred in the amendments, did not vote again to make the bill effective immediately.
Accordingly, the 1997 change in policy merely brought the House into compliance with its own rules. In addition, the policy change also complies with case law.
In People ex rel Attorney General v Burch, 84 Mich 408; 47 NW 765 (1891), our Supreme Court examined a situation similar to that presented in this case. In Burch, a bill providing for the creation of an additional circuit court judge in Kent County was introduced and passed in the Senate. The Senate also ordered that the bill would take immediate effect. The bill then went to the House, where the House passed the bill with certain amendments and gave the amended bill immediate effect. On the bill’s return to the Senate, the Senate concurred in the House amendments; however, the House then requested return of the bill, where it was further amended. On the bill’s return to the Senate, the Senate again concurred in the House amendments, whereupon the bill was signed by the proper officers of both houses and approved by the Governor. The question before our Supreme Court was whether the Legislature properly gave the bill immediate effect, because the Senate did not vote again regarding immediate effect after either of the House amendments of the bill. Our Supreme Court held that the bill was properly given immediate effect.
It is shown by the journal that the Senate when concurring in the House amendments made no separate order that the bill as amended should take immediate effect. This was not necessary. When the bill was originally passed by the Senate, it was ordered to take immediate effect. The bill a!s amended by the House was by that body ordered also to take immediate effect. This being originally a Senate bill, it was not necessary, after it had once been given immediate effect, and the action of the Senate thereafter was confined to concurrence in the House amendments which had by that branch of the Legislature been ordered to take immediate effect, for the Senate again to order by a separate vote that the bill as amended should taire immediate effect. Concurrence in the action of the House as to the amendments must be considered as a concurrence in the order that such amendments take immediate effect. [Id. at 413-414.]
Therefore, pursuant to our Supreme Court’s decision in Burch, we conclude that 1997 PA 83 was properly given immediate effect. The House’s “[c]oncurrence in the action of the” Senate with respect to the Senate amendments of HB 4872, “must be considered as a concurrence in the order that such amendments take immediate effect.” Id. at 414.
Plaintiffs finally contend that the Speaker of the House allegedly ignored twenty-five House members’ demand for a roll-call vote with regard to the issue of immediate effect and that the Speaker’s actions were a violation of House Rule 12 and Const 1963, art 4, § 18. Although plaintiffs have provided documentation to support their claim, namely, an affidavit from the Clerk of the House, the Journal of the House makes no reference to the alleged demand for a vote. Parol evidence may not be used to show that the Legislature violated the constitution in enacting a statute. People ex rel Hart v McElroy, 72 Mich 446, 451-452; 40 NW 750 (1888). Rather, the Journals of the House and Senate are conclusive evidence of those bodies’ proceedings, and when no evidence to the contrary appears in the journal, we will presume the propriety of those proceedings. Attorney General v Rice, 64 Mich 385, 391; 31 NW 203 (1887).
Plaintiffs, however, urge that this case should be distinguished from McElroy and Rice because the parol evidence here is from the Clerk of the House, the person charged with keeping the Journal of the House. This argument is without merit. Our Supreme Court has held that the constitutionally imposed responsibility for keeping the required journals lies with the House and with the Senate, not with the officers charged with the clerical duties associated with keeping the journals. Turnbull v Giddings, 95 Mich 314, 316-317; 54 NW 887 (1893). Thus, the Clerk of the House has no actual or implied authority to unilaterally supplement the Journal of the House, and plaintiffs have cited no additional authority supporting their contention that this Court should disregard well-settled law and consider parol evidence to determine whether the Legislature acted properly. Further, even if the Journal of the House made reference to the alleged demand, the constitution does not require the House to vote on a matter upon demand; it merely requires that when a vote is taken, the members may demand a record roll call of that vote. Const 1963, art 4, § 18.
In sum, because the Legislature did not act improperly in giving 1997 PA 83 immediate effect, the trial court did not err in denying plaintiffs’ request for injunctive relief.
Affirmed.
The relevant portion of 1997 PA 83 has been codified at MCL 207.102; MSA 7.292, and provides as follows:
(1) A specific tax at a rate of cents per gallon determined under subsection (2) is imposed on all gasoline and diesel motor fuel sold or used in producing or generating power for propelling motor vehicles used upon the public roads and highways in this state. The tax shall be paid at those times, in the manner, and by those persons specified in this act. It is the intent of this act to impose a tax upon the owners and drivers of motor vehicles using an internal combustion type of engine upon the public roads and highways of this state by requiring them to pay for the privilege of using the public roads and highways of this state, in addition to the motor vehicle license tax.
(2) The tax rate imposed under subsection (1) is as follows:
(a) For the tax imposed on gasoline and diesel motor fuel before August 1, 1997, 15 cents.
(b) For the tax imposed on gasoline after July 31, 1997, 19 cents.
(c) For the tax imposed on diesel motor fuel after July 31, 1997, 15 cents.
(3) The state commissioner of revenue shall notify each supplier, wholesale distributor, and each retail dealer of gasoline in this state of the tax rate imposed under subsection (1) immediately after the tax rate is determined.
Const 1963, art 4, § 27 provides:
No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.
House Rule 12 provides in relevant part:
[A] roll call of the House may be demanded by one-fifth of the Members present (see Const 1963, Art 4, § 18) on any pending question and in such case the record of the votes and names of the voting Members shall be entered in the journal.
Const 1963, art 4, § 18 provides:
Each house shall keep a journal of its proceedings, and publish the same unless the public security otherwise requires. The record of the vote and name of the members of either house voting on any question shall be entered in the journal at the request of one-fifth of the members present. Any member of either house may dissent from and protest against any act, proceeding or resolution which he deems injurious to any person or the public, and have the reason for his dissent entered in the journal. | [
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Per Curiam.
Defendant was convicted by a jury of carrying a pistol in a motor vehicle, MCL 750.227(2); MSA 28.424(2), and possession of a firearm by a felon (hereinafter felon in possession), MCL 750.224f; MSA 28.421(6). Defendant was sentenced as an habitual offender, fourth offense, MCL 769.12; MSA 28.1084, to concurrent prison terms of two to five years for each conviction. We affirm defendant’s convictions and remand for resentencing.
In the early morning hours of September 2, 1996, a Saginaw city police detective was dispatched to investigate a report of a felonious assault. Persons located at the residence where the alleged assault occurred told the officer that defendant’s brother had been there carrying a handgun and threatening to shoot everyone. Defendant was also at the residence at the time of the assault. Thereafter, defendant and his brother left, riding in tandem on defendant’s motorcy- ele. The police broadcast a bulletin for officers to be on the lookout for two men riding on a motorcycle, one of whom was believed to be armed with a handgun.
Approximately one hour later, a patrol officer saw two men on a motorcycle in an area about two blocks from the residence. Defendant was operating the motorcycle. After radioing the location, the officer requested the defendant to stop the motorcycle. Other officers arrived and defendant and his brother were handcuffed and placed in the back of a patrol car. The officer who first spotted the two then examined the motorcycle. When he bent down, the officer noticed a handgun wedged in a space by the engine. Defendant and his brother were subsequently arrested.
Defendant argues on appeal that he was erroneously convicted of carrying a pistol in a motor vehicle because there was no evidence that the gun in question was in the motorcycle at the time of his arrest. We disagree. MCL 750.227(2); MSA 28.424(2) reads:
A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license.
Defendant contends that it is impossible to carry something in a motorcycle unless it is kept in a closed compartment or receptacle that is either a part of the motorcycle or attached to the motorcycle (e.g., a saddlebag). Defendant argues that while the gun may have been on the motorcycle, because there was no evidence that the gun was in a sealed compartment, he cannot be convicted under the statute.
Defendant’s argument is based on a strained reading of MCL 750.227(2); MSA 28.424(2). “Statutory interpretation is a question of law reviewed de novo on appeal.” People v Williams, 226 Mich App 568, 570; 576 NW2d 390 (1997). “The overriding goal guiding judicial interpretation of statutes is to discover and give effect to legislative intent.” People v Parker, 230 Mich App 677, 685; 584 NW2d 753 (1998). “Unless defined in the statute, every word or phrase therein should be accorded its plain and ordinary meaning, taking into account the context in which the words are used.” People v Hack, 219 Mich App 299, 305; 556 NW2d 187 (1996).
Defendant’s argument is predicated on the erroneous premise that the word in can only be properly used to describe the condition of being sealed inside some type of receptacle specifically designed to hold or carry items. The word in is defined as meaning: “l.a. Within the limits, bounds, or area of .... 6. From the outside to a point within; into . . . .” The American Heritage Dictionary of the English Language (3d ed, 1996), p 910. As this definition indicates, something may be considered to be in an object as long as it is “[w]ithin the limits, bounds, or area of” that object. Accordingly, any space created within the area of a motor vehicle, be it by design or happenstance, can serve as a receptacle for an item. Further, there is nothing in this definition that indicates that a gun must be completely enclosed to be considered in a motor vehicle. A gun lodged in a space existing near the engine of a motorcycle falls squarely within the plain meaning of the term and is thus considered to be in the motorcycle for purposes of the statute.
Additionally, we note that the general purpose behind the concealed weapon statute is “to prevent the possibility that quarrelling persons would suddenly draw a hidden weapon without notice to other persons.” People v DeLeon, 177 Mich App 306, 308; 441 NW2d 85 (1989). Accord People v Cunningham, 20 Mich App 699, 703; 174 NW2d 599 (1969). Defendant’s reading of MCL 750.227(2); MSA 28.424(2) limits the reach of the statute to such an extent that it would effectively undermine this goal and subvert legislative intent. A pistol lodged under the seat of a motorcycle in a space near the engine is readily accessible to anyone riding on that motorcycle and thus could be unexpectedly drawn and used. Indeed, we believe the threat posed in such a situation is far greater than if the pistol were sealed inside a saddlebag.
Next, defendant argues that even if the statute is applicable, there was insufficient evidence adduced at trial to establish both that the gun was in the motorcycle and that he was carrying or in possession of the weapon. We disagree. “In determining whether sufficient evidence has been presented to sustain a con viction, an appellate court is required to view the evidence in a light most favorable to the prosecution [to] determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.” People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994). “Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of a crime.” People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993). “To support a conviction for carrying a weapon in [a vehicle], the prosecution must show: (1) the presence of a weapon in a vehicle operated or occupied by the defendant, (2) that the defendant knew or was aware of its presence, and (3) that he was ‘carrying’ it.” People v Courier, 122 Mich App 88, 90; 332 NW2d 421 (1982).
After reviewing the record in its entirety, we are persuaded that there is sufficient evidence in the record to establish that defendant was carrying the weapon at the time of his arrest. See People v Adams, 173 Mich App 60, 63; 433 NW2d 333 (1988); Courier, supra at 91. Evidence was presented at trial establishing that the gun was lodged in the motorcycle in a location that made the weapon readily accessible to defendant. The evidence also established that defendant owned the motorcycle and was driving it at the time he was stopped by the police. We conclude that it is reasonable to infer from this evidence that defendant was indeed carrying the gun. See People v Emery, 150 Mich App 657, 667; 389 NW2d 472 (1986).
Next, defendant argues that his convictions should be reversed because the prosecution failed to negate every reasonable theory consistent with defendant’s innocence. Defendant misunderstands the burden of proof placed on the prosecution. As the Michigan Supreme Court observed in People v Konrad, 449 Mich 263, 273, n 6; 536 NW2d 517 (1995): “Even in a case relying on circumstantial evidence, the prosecution need not negate every reasonable theory consistent with the defendant’s innocence, but merely introduce evidence sufficient to convince a reasonable jury in the face of whatever contradictory evidence the defendant may provide.” Accord People v Wolford, 189 Mich App 478, 480; 473 NW2d 767 (1991). Accordingly, defendant’s assertion lacks merit.
Defendant further contends that MCL 750.227; MSA 28.424 is unconstitutionally vague. Again, we disagree. “We review de novo a challenge to a statute’s constitutionality under the void-for-vagueness doctrine.” People v Wilson, 230 Mich App 590, 594; 585 NW2d 24 (1998). A statute is considered to be unconstitutionally vague if it “(1) does not provide fair notice of the type of- conduct prohibited or (2) encourages subjective and discriminatory application by delegating to those empowered to enforce the [statute] the unfettered discretion to determine whether the [statute] has been violated.” Plymouth Charter Twp v Hancock, 236 Mich App 197, 200;_ NW2d_(1999). Accord Kolender v Lawson, 461 US 352, 352; 103 S Ct 1855; 75 L Ed 2d 903 (1983).
Defendant’s argument is based on the meaning he assigns to the word in. We have already rejected this meaning as not being in accord with the common understanding of the term. Therefore, contrary to defendant’s assertions, we believe the plain meaning of the statute serves to provide fair notice of the type of conduct prohibited by the statute and prevent abuses in its application. Hancock, supra at 201; Peo ple v Vronko, 228 Mich App 649, 653; 579 NW2d 138 (1998).
Defendant also argues that he is entitled to a new trial because the gun was seized pursuant to an illegal arrest. We hold this argument to be without merit. Given that defendant and his brother were suspected of having been involved in a felonious assault, and the police were operating under the belief that one of the two men was still armed with a handgun, we believe the officer’s detention of defendant was a reasonable safety precaution. See People v Zuccarini, 172 Mich App 11, 14; 431 NW2d 446 (1988). Also, the record establishes that the officer’s investigatory stop of defendant was based on a particularized suspicion that defendant had been one of the men involved in the felonious assault earlier in the evening. People v McCrady, 213 Mich App 474, 482; 540 NW2d 718 (1995). The officer who stopped defendant testified that he did so because defendant was spotted in a location near where the assault occurred, riding in tandem on a motorcycle with another man. Finally, the record clearly indicates that the police were justified in seizing the gun, which was plainly visible in the motorcycle. People v Champion, 452 Mich 92, 101; 549 NW2d 849 (1996).
In a related matter, defendant asserts that defense counsel’s failure to move for suppression of evidence of the gun evidences ineffective assistance of counsel. We disagree. To establish that he did not receive effective assistance of counsel, defendant must show that “(1) the performance of counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel’s unprofessional errors, the outcome of the proceedings would have been different.” People v Plummer, 229 Mich App 293, 307; 581 NW2d 753 (1998). Because we have determined that the gun was justifiably seized, we conclude that defendant cannot show that he was prejudiced by counsel’s inaction. See People v Warren, 228 Mich App 336, 356; 578 NW2d 692 (1998) (“Defense counsel is not required to make useless motions.”).
Next, defendant argues that he was denied a fair trial when the trial court allowed into evidence testimony that he and his brother had allegedly been involved in a felonious assault several hours before defendant was arrested. Specifically, defendant contends that the testimony constitutes bad-acts evidence and that the admission of the testimony did not satisfy the standards articulated in People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993). Initially, we note that defendant failed to raise at trial a specific and timely objection to the testimony. Consequently, appellate review is precluded “unless the error could have been decisive of the outcome or unless it falls under the category of cases . . . where prejudice is presumed or reversal is automatic.” People v Grant, 445 Mich 535, 553; 520 NW2d 123 (1994).
The Grant standard is not applicable, however, if the introduction of the evidence was not error in the first place. We see no error in the admission of this testimony. The testimony established why defendant was stopped by the officer and why he was secured before the police searched his motorcycle. The evidence was, therefore, both relevant and offered for a proper purpose. VanderVliet, supra at 74. We also do not believe that the probative value of this evidence was substantially outweighed by unfair prejudice. Id. at 74-75. Further, we note that in addition to not objecting to the evidence, defendant did not request that the trial court give a limiting instruction to the jury. Id. at 75.
Defendant next claims that the prosecutor committed misconduct at two points in the trial. First, defendant asserts that during his closing argument the prosecutor (1) argued facts not in evidence, (2) interjected his personal beliefs regarding the case, (3) shifted the burden of proof, and (4) introduced improper “gang” evidence into the proceedings. Second, defendant asserts that the prosecutor acted Improperly in introducing evidence that defendant had been convicted of escape from prison. Because defendant’s allegations are unpreserved, appellate review is precluded unless the prejudicial effect could not have been cured by a cautionary instruction or if the failure to consider the issue would result in a miscarriage of justice. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
Having reviewed in context the challenged remarks made during the prosecutor’s closing argument, we conclude that our failure to consider the issue would not result in a miscarriage of justice. In each instance cited by defendant, the prosecutor was properly arguing and commenting on the evidence introduced at trial. People v Pegenau, 447 Mich 278, 299; 523 NW2d 325 (1994). The prosecutor did not argue facts not in evidence, but rather commented on the evidence that had been presented. Nor did the prosecutor interject his personal beliefs regarding either defendant’s guilt or. the facts of the case. We also reject the notions that by commenting on defendant’s theory of the case the prosecutor somehow shifted the burden of proof, or that by asking one of the testifying police officers about his employment the prosecutor interjected into the trial irrelevant and improper evidence.
We also reject defendant’s second allegation of misconduct. In order to prove a defendant’s guilt of a charge of felon in possession, the prosecution must establish that the defendant was convicted of a felony as set forth in MCL 750.224f(2); MSA 28.421(6)(2). Parker, supra. In the absence of any evidence that defendant offered to admit or stipulate his prior felony conviction, see Old Chief v United States, 519 US 172, 186; 117 S Ct 644; 136 L Ed 2d 574 (1997), the prosecutor was within his right to introduce the challenged evidence. See United States v Kincaide, 145 F3d 771, 783 (CA 6, 1998).
Finally, we agree with defendant that the trial court acted improperly in amending sua sponte the judgment of sentence to reflect that the sentences imposed were to run consecutively to the sentence for which defendant was on parole when he commit ted the current crimes. People v Thomas, 223 Mich App 9, 11; 566 NW2d 13 (1997). We therefore remand for resentencing.
Defendant’s convictions are affirmed. We remand for resentencing. We do not retain jurisdiction.
Defendant was sentenced on June 4, 1997. The original judgment of sentence was filed with the clerk of the court on June 6,1997. On June 27, 1997, the trial court sua sponte amended the judgment of sentence to indicate that the prison terms for the current offenses were to run consecutively to a prior sentence imposed for felony escape from a prison, from which conviction defendant was on parole when he committed the current crimes.
It appears to us that under defendant’s reading of the statute, a gun lying on the front seat of a convertible might be considered to be in the car if the top was up, but not if the top was down. Indeed, stretched to its logical, albeit absurd, limits, defendant’s definition would preclude a finding that a gun was in a car if it was lying in the passenger compartment and one or more of the windows happened to be ajar.
MCL 750.227; MSA 28.424.
Under VanderVliet, bad-acts evidence may be admitted if the following standards are satisfied:
First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. [VanderVliet, supra at 55.]
Defendant mistakenly characterizes the testimony as hearsay. Because it was admitted for the purpose of establishing why defendant was stopped, detained, and searched, and not for the truth of the matter asserted, it is by definition nonhearsay. MEE 801. | [
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Per Curiam.
Defendant appeals as of right from a judgment for plaintiffs, following a jury trial, in this personal injury case. We affirm.
I. BACKGROUND facts
Plaintiff John Kubisz (hereinafter “plaintiff”) was injured while employed by Omni-Tek, an independent contractor with which defendant had contracted to perform modifications and firearms upgrades on a prototype military vehicle. The vehicle was being changed from a light-armored amphibious personnel carrier to a light-armored amphibious tank. The modifications included the removal of twelve seats used to transport personnel, the addition of a firearms turret, and the replacement of the existing diesel fuel tank with a lighter diesel fuel tank made of aluminum. On May 7, 1991, the modified vehicle was tested to see how well it would float. During the course of the day, the vehicle was driven into the water by plaintiff on three separate occasions. After the first two tests, changes were made to help stabilize the vehicle in the water. After the third test, as plaintiff was driving the vehicle back to the shop, the new fuel tank ruptured along a bottom seam. On May 8, 1991, as plaintiff was attempting to weld the fifteen-inch rupture, the tank exploded, causing severe bums to plaintiffs upper body, including his face, chest, hands and arms, and abdomen.
H. DEFENDANT’S MOTIONS FOR SUMMARY DISPOSITION AND A DIRECTED VERDICT
Defendant argues that the trial court erred in denying its motions for partial summary disposition and a directed verdict with regard to plaintiffs claim premised on an inherently dangerous activity theory. Defendant also argues that the trial court erred in denying its motion for a directed verdict with regard to plaintiffs claim premised on a theory of retained control. In each instance we disagree.
A. SUMMARY DISPOSITION
We review a “trial court’s denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law.” Terry v Detroit, 226 Mich App 418, 423; 573 NW2d 348 (1997).
A motion pursuant to MCR 2.116(C)(10),[ ] tests the factual basis underlying a plaintiff’s claim. MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact.... A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Stehlik v Johnson (On Rehearing), 206 Mich App 83, 85; 520 NW2d 633 (1994).]
“The inherently dangerous activity doctrine is an exception to the general rule that an employer of an independent contractor is not liable for the contractor’s negligence or the negligence of his employees.” Bosak v Hutchinson, 422 Mich 712, 724; 375 NW2d 333 (1985) (citing 2 Restatement Torts, 2d, § 409, p 370; 41 Am Jur 2d, Independent Contractors, § 41, p 805). Accord Rasmussen v Louisville Ladder Co, Inc, 211 Mich App 541, 548-549; 536 NW2d 221 (1995).
Under the doctrine, liability may be imposed when “the work contracted for is likely to create a peculiar risk of physical harm or if the work involves a special danger inherent in or normal to the work that the employer reasonably should have known about at the inception of the con tract.” The risk or danger must be recognizable in advance, i.e., at the time the contract is made. The Court in Bosak emphasized that liability should not be imposed where a new risk is created in the performance of the work and the risk was not reasonably contemplated at the time of the contract. [Szymanski v K mart Corp, 196 Mich App 427, 431; 493 NW2d 460 (1992), vacated and remanded on other grounds 442 Mich 912 (1993) (citations omitted).]
After reviewing the relevant documentary evidence in a light most favorable to plaintiff, we agree with the trial court that with respect to defendant’s motion for summary disposition, there existed a question of fact regarding whether the welding of the fuel tank was an inherently dangerous activity. Plaintiff presented deposition testimony by a welding expert that the welding of the fuel tank was inherently dangerous, and that defendant should have anticipated the activity and the special dangers of the activity at the time the project began. Additionally, there was evidence that defendant was aware that the activity of welding a fuel tank, which previously held diesel fuel, carried a special danger inherent to the very nature of the task. There was also evidence that known and applicable relevant safety precautions— including the use of qualified personnel—were not followed. Finally, the documents indicate that defendant knew that the process of refitting the vehicle could include unanticipated on-site adjustments.
B. DIRECTED VERDICT
“This Court reviews de novo the trial court’s decision on a motion for a directed verdict.” Braun v York Properties, Inc, 230 Mich App 138, 141; 583 NW2d 503 (1998). “When evaluating a motion for a directed ver- diet, a court must consider the evidence in the light most favorable to the nonmoving party, making all reasonable inferences in favor of the nonmoving party. Directed verdicts are appropriate only when no factual question exists upon which reasonable minds may differ.” Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997) (citations omitted).
1. INHERENTLY DANGEROUS ACTIVITY
After reviewing the record, we conclude that plaintiff presented sufficient evidence at trial to preclude a directed verdict for defendant. Undisputed evidence was presented that the activity of welding containers that previously held diesel fuel carried a serious risk of injury and involved a peculiar risk to workers unless a high degree of care was taken. In addition, there was evidence that because the blueprints were designed and drawn by defendant and the project involved removal and replacement of the diesel fuel tank, defendant should have anticipated that such welding might occur. Further, both Peter Krawieeki, defendant’s prototype shop manager, and plaintiff testified there were several instances in the past when Omni-Tek employees had to weld fuel tanks that previously held diesel fuel while working on prototype vehicles. Plaintiff’s expert witness also explained that the very existence of a variety of industry and government standards addressing the special hazard of welding a closed vessel that previously contained flammables or combustibles illustrated the inherently dangerous nature of that activity. There was also evidence that plaintiff had no formal training with welding and that defendant was aware that plaintiff had no formal training or instruction with regard to welding.
2. RETAINED CONTROL
A second main exception to the general rule of nonliability for the negligence of an independent contractor is “where the general contractor . . . effectively retains control over the work involved.” Phillips v Mazda Motor Mfg (USA) Corp, 204 Mich App 401, 408; 516 NW2d 502 (1994) (citation omitted).
Here, viewed in a light most favorable to plaintiff, the evidence was sufficient to create a question of fact with regard to whether defendant retained sufficient control over the work. At the time the motion for a directed verdict was made, there was testimony that during the time the vehicle at issue was being modified, Krawiecki had control of the daily operations at Omni-Tek, including those involving the vehicle. For example, there was evidence that Krawiecki controlled Omni-Tek’s budget, made daily work assignments, and reported directly to defendant’s chief engineer. Indeed, Krawiecki admitted that it was his job to manage the development and manufacture of prototype vehicles. Therefore, the trial court did not err in denying defendant’s motion for a directed verdict.
m. ADMISSION INTO EVIDENCE OF VARIOUS SAFETY REGULATIONS AND STANDARDS
Defendant also claims that the trial court committed error requiring reversal by admitting into evidence various safety regulations and standards. Defendant contends that because those regulations and stan dards were not used for impeachment purposes, and because their probative value is substantially outweighed by their prejudicial effect, this Court should remand the case for a new trial. We do not agree. Defendant has failed to properly preserve this issue for appellate review because its objection was based on grounds not asserted below. MRE 103(a)(1). At trial, defendant objected to their admission on the ground of relevancy. “Objections based on one ground are insufficient to preserve an appellate review based on other grounds.” In re Leone Estate, 168 Mich App 321, 326; 423 NW2d 652 (1988). Therefore, because we find no plain error and are unconvinced that defendant’s substantial rights were adversely affected, we see no reason to review this unpreserved issue. Meagher, supra at 724. See MRE 103(d).
IV. ALLEGED IMPROPER ARGUMENTS MADE BY PLAINTIFF’S COUNSEL
Finally, defendant argues that it was denied a fair trial when plaintiff’s counsel made several comments during closing argument that were designed to improperly appeal to the sympathy of the jurors, and to prejudice them against defendant.
When reviewing asserted improper comments by an attorney, we first determine whether the attorney’s action was error and, if it was, whether the error requires reversal. An attorney’s comments usually will not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial. Reversal is required only where the prejudicial statements of an attorney reflect a studied purpose to inflame or prejudice a jury or deflect the jury’s attention from the issues involved. [Hunt v Freeman, 217 Mich App 92, 95; 550 NW2d 817 (1996) (citations omitted).]
We note that defendant did not ask the trial court to give a curative instruction addressing any of the alleged improper remarks.
A. ALLEGATION THAT PLAINTIFF’S COUNSEL IMPUGNED THE INTEGRITY OF DEFENSE COUNSEL
Defendant argues that plaintiff’s counsel acted improperly when making the following comments during his closing argument:
Plaintiff’s Counsel: One of [plaintiff’s] . . . co-workers Red Mason, Randy Mason . . . told him [“]you ought to flush the tank out.[”] Now, I know we had some statements by defense counsel about that and I know he asked Mr. Whitaker [,“]didn’t you see a statement. [”] But there is a difference isn’t there between being at the—at your place of employment with your boss standing right over you with his boss standing right over him and saying [“]it was his fault, I told him not to do that[,”] and walking through the courtroom doors coming up here, swearing to tell the truth and stating it on the witness stand. You know what the difference is? Making a statement out to the boss under duress in order to cover yourself doesn’t come with the little thing called perjury. But you come in here and you say it and there’s a penalty of perjury that goes along with it if you’re not telling the truth. Maybe that’s why defense didn’t present the testimony of Red Mason.
Defense Counsel: Judge, I don’t normally object in closing argument but when counsel makes that kind of a representation to this jury that I would thwart perjury from a witness—
Plaintiff’s Counsel: Actually, I said exactly the opposite, that he would never do such a thing and that’s why he didn’t bring in the witness.
Defense Counsel: That’s what I’m saying—
Trial Court: All right, go on.
Defense Counsel: —making edifications is totally improper.
We disagree with defendant that the statements made by plaintiffs counsel impugned the integrity of defense counsel by implying that defense counsel had suborned perjury. To the contrary, plaintiffs counsel was making the exact opposite point. Rather than impugning the integrity of defense counsel, plaintiff was theorizing that the reason Mason was not produced as a defense witness to ratify statements he allegedly made was because any such ratification would be perjurious. Such commentary is proper in closing arguments. See Reetz v Kinsman Marine Transit Co, 416 Mich 97, 109; 330 NW2d 638 (1982) (observing that “it is legitimate to point out that an opposing party failed to produce evidence that it might have, and consequently the jury may draw an inference against the opposing party”).
B. ALLEGATION THAT PLAINTIFF’S COUNSEL IMPROPERLY CHALLENGED KRAWIECKTS CREDIBILITY
Defendant also argues that plaintiffs counsel acted improperly by suggesting to the jury that defendant had pressured Krawiecki to blame plaintiff for the accident. Defendant cites the following remark as evidence of counsel's improper conduct: “That’s Cadillac Gage at work here pure and simple. CYA.” We believe it is important to examine the context in which this singular comment was made.
Went to the hospital. . . right after the accident. Walked in on Mr. Kubisz where he blurted out responsibility for the accident. Just blurted it out. [“]Fm sorry, I should have listened to them, should of done what they said.[”] Why would [Krawiecki] ... do a thing like that: Come in here and tell you a cockamamie story like that? Under pressure from the boss back there in May of 1991? [“]Krawiecki, what the hell happened over there?[”] [“]Well, he didn’t—its all his fault, not my fault, not my fault. [”] That’s Cadillac Gage at work here pure and simple. CYA. But what a ridiculous story for a man to tell. Can’t remember whether or not there were any other nursing personnel present. . . . Can’t remember whether or not they were pouring saline solution on Mr. Kubisz to try and stop the burning or the continuing burning deeper. . . . And here’s this poor boy laying there with skin hanging off of him like some sort of a ghoul . . . with his throat swelling and beginning to close off his air pipe . . . and here’s Pete Krawiecki dashing in for a mad 30 seconds to get the goods. Oh yeah, it’s all your fault. Come on. Absolutely ridiculous. [Emphasis added.]
Initially, we note that defendant failed to preserve this matter for appellate review by raising a specific and timely objection to the challenged comments. Further, the matter was not raised in defendant’s motion for judgment notwithstanding the verdict, new trial, or remittitur.
In context, it is clear that plaintiffs counsel was attempting to explain the differences that existed between plaintiffs testimony and Krawiecki’s testimony regarding the matter of whether plaintiff had ever admitted fault to Krawiecki while plaintiff was initially being treated for his injuries. Counsel is allowed to “try to persuade the jury to believe then-witnesses and disbelieve witnesses of the adverse party” when a conflict in testimony exists. Wheeler v Grand Trunk W R Co, 161 Mich App 759, 765; 411 NW2d 853 (1987).
Hence, we conclude that the remarks cited by defendant did not have the effect of denying it a fair and impartial trial.
C. “VOICE OF THE COMMUNITY”
Defendant also argues that plaintiffs counsel acted improperly when he commented to the jurors that they were acting as “the voice of the community.” The record reveals that the remark came at the end of plaintiffs closing argument, as counsel was concluding his remarks concerning damages:
Mr. Kubisz today earns about $30,000.00 a year at 15 bucks an hour which is what he testified he’s currently earning times 40 times 52. It’s a little bit more than $30,000.00 per year. Is half that amount reasonable and fair for pain and suffering and scarring and disfigurement into the future—half that amount per year, 15,000? A third of that amount perhaps, 10,000, is that reasonable and fair? I think so. But again, it is up to you. You, ladies and gentlemen are the voice of the community. You decide what the damages shall be. You decide what the—whether or not the law of negligence should be enforced against Cadillac Gage. You decide whether or not the community will tolerate this kind of conduct of not ever having even read an osha regulation. . . . [Emphasis added.]
It was at this point that defendant objected, arguing that plaintiff was making an improper “conscience of the community” argument.
We are not persuaded by defendant’s argument. The “voice of the community” reference did not “appeal to the fears and prejudices of” the jury, People v Bahoda, 448 Mich 261, 285; 531 NW2d 659 (1995), nor did it “inject issues into the trial broader than those pled and brought out by the testimony below.” Joba Constr Co, Inc v Burns & Roe, Inc, 121 Mich App 615, 637; 329 NW2d 760 (1982). Therefore, we see no error requiring reversal.
Affirmed.
Although defendant mentions that it moved for remittitur in its brief, defendant does not argue the merits of the trial court’s decision or provide any argument on appeal that it was entitled to remittitur. Accordingly, that issue is not properly before this Court. A party may not merely announce a position and leave it to this Court to discover and rationalize the basis for the claim. Joerger v Gordon Food Service, Inc, 224 Mich App 167, 178; 568 NW2d 365 (1997).
The record indicates that as of the May 7, 1991, tests, the seats had been removed and the aluminum fuel tank attached. The firearms turret had not yet been attached.
Defendant’s question presented on the first issue includes a reference to its motion for judgment notwithstanding the verdict, new trial, or remittitur. In that motion, however, defendant did not argue that there was insufficient evidence to support the jury’s verdict under the theories of inherently dangerous activity or retained control. Therefore, those issues are not properly before this Court. Auto Club Ins Ass’n v Lozanis, 215 Mich App 415, 421; 546 NW2d 648 (1996).
Although defendant’s motion for partial summary disposition was premised on MCR 2.116(C)(8) and (10), because both parties and the trial court relied on matters outside the pleadings, this issue will be reviewed under MCR 2.116(C)(10). Driver v Hanley (After Remand), 226 Mich App 558, 562; 575 NW2d 31 (1997).
This portion of defendant’s argument is based on MRE 707, which reads:
To the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice, are admissible for impeachment purposes only. If admitted, the statements may be read into evidence but may not be received as exhibits.
This portion of defendant’s argument is based on MRE 403, which reads in pertinent part:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice
In addition, because defendant does not address the issue of relevancy on appeal, we decline to review that issue. See Samuel D Begola Services, Inc v Wild Bros, 210 Mich App 636, 642; 534 NW2d 217 (1995).
Furthermore, many of these remarks are simply a legitimate characterization of Krawiecki’s testimony. De Voe v C A Hull, Inc, 169 Mich App 569, 581; 426 NW2d 709 (1988). | [
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] |
Markman, J.
Defendant Kochville Township appeals as of right a declaratory judgment issued in favor of plaintiffs on October 3, 1996. The dispute arose when defendant enacted Ordinance 93-7-W to enable it to collect connection fees for hooking up users to the newly extended water supply system being constructed in the township. This ordinance was enacted after plaintiffs had successfully appealed to the Michigan Tax Tribunal the amount of special assessments imposed by defendant. Plaintiffs alleged that Ordinance 93-7-W was a subterfuge that circumvented the Tax Tribunal’s decision and that it was otherwise unconstitutional. Defendant argued that it possessed the statutory authority to build a water supply system and to collect money from affected township citizens in order to help defray the costs involved with such a system. The trial court ruled in favor of plaintiffs on the basis of its determination that the township did not have the authority to pass such an ordinance, and that the connection fee was, in fact, a special assessment in the exact same amount already held invalid with regard to plaintiffs by the Tax Tribunal. We reverse.
Plaintiffs own a parcel of land in Kochville Township, Saginaw County. On November 12, 1992, defendant created a special assessment district, Water District No. 3, in which defendant was going to install a new water supply system at a cost of $430,000. Plaintiffs were a part of Water District No. 3. Each parcel in Water District No. 3 was assessed a “frontage assessment charge” of $6,937.50, an additional assessment, labeled a unit charge, calculated at $1,000 a parcel, and later a supplemental special assessment of $1,250.
Plaintiffs and the owners of three other assessable parcels appealed the special assessment charges to the Tax Tribunal. On October 28, 1993, the Tax Tribunal held the assessment of $9,187.50 to be invalid with respect to plaintiffs and the other appealing landowners because the assessments would not increase the value of the landowners’ properties by the total amount of the assessments. The Tax Tribunal further held that defendant was limited to a special assessment of no more than $2,000 on plaintiffs’ lands on the basis of its determination that this was the maximum amount by which the value of the lands would increase as a result of the new water supply system.
On December 20, 1993, two months after the Tax Tribunal’s ruling, defendant enacted Ordinance 93-7-W, which established a connection or “tap-in” fee to be levied against any parcel owner who had not paid the special assessment at issue before the Tax Tribunal. The ordinance applied only to the affected property owners who had appealed the amount of the special assessment and to possible future owners of property not yet developed in the district. The fee was in the amount of $9,187.50, less any part of the $9,187.50 previously paid pursuant to the special assessment. Apparently, this fee would cover the cost of construction, engineering, testing, and administration costs of the system over twenty years, which is the “useful life of the watermain.” The fees are assessed according to the individual measurements of each parcel of land with access to the watermain and the use of the land.
In response to the ordinance, plaintiffs filed a complaint against defendant. On October 3, 1996, the trial court issued a declaratory judgment in favor of plaintiffs after it determined that Ordinance 93-7-W was in violation of MCL 41.181; MSA 5.45(1), which confers police power on townships to regulate the public health, safety, or general welfare of the community. The court concluded that the purpose of the ordinance was to regulate water connection fees and that this did not fall within the scope of the police power conferred on the township. The trial court also determined that the ordinance effectively imposed a special assessment because, although the money sought was to be applied to the water usage service, it was also to be used to fund the construction of the system. Defendant appeals from the court’s declaratory judgment.
Defendant first argues that the trial court erred in finding that defendant had no statutory authority under the township ordinance act, MCL 41.181; MSA 5.45(1), to enact Ordinance 93-7-W and that it was therefore invalid. This Court’s review of township regulations enacted under the township ordinance act is limited to determining “whether a township ordinance is within the range of conferred discretionary powers and then determining] if it is reasonable.” Natural Aggregates Corp v Brighton Twp, 213 Mich App 287, 294; 539 NW2d 761 (1995) (citation omitted). An ordinance is reasonable if there is a “rational relationship between the exercise of police power and the public health, safety, morals, or general welfare in a particular manner in a given case.” Id. Townships have no inherent powers, but have only those limited powers conferred on them by the Legislature or by the state constitution. Hanselman v Wayne Co Concealed Weapon Licensing Bd, 419 Mich 168, 187; 351 NW2d 544 (1984). The township ordinance act, MCL 41.181; MSA 5.45(1), is the basic enabling act granting townships the power to enact ordinances regulating the public health, safety, and general welfare. The statute provides, in pertinent part:
The township board of a township may, at a regular or special meeting by a majority of the members elect of the township board, adopt ordinances regulating the public health, safety, and general welfare of persons and property, including, but not limited to fire protection, licensing or use of bicycles, traffic and parking of vehicles, sidewalk maintenance and repairs, the licensing of business establishments, the licensing and regulating of public amusements, and the regulation or prohibition of public nudity and provide penalties for the violation of the ordinances. [MCL 41.181(1); MSA 5.45(1)(1) (emphasis added).]
Under the township ordinance act, “ordinances regulating a broad range of activities” have been upheld. Natural Aggregates, supra at 296, quoting Square Lake Hills Condominium Ass’n v Bloomfield Twp, 437 Mich 310, 322, n 18; 471 NW2d 321 (1991) (Riley, J., joined by Brickley and Griffin, JJ.). Indeed, the statute itself lists examples of activities covered by the act ranging from fire protection to bicycle licensing. MCL 41.181(1); MSA 5.45(1)(1). However, there is no explicit reference to water supply systems in the statute.
In the instant case, the trial court stated that, although the purpose of Ordinance 93-7-W, “to establish minimum and uniform costs and charges for the privilege of hooking up, or tapping into the Kochville Township Water Supply System, and to promote the public health, safety, morals, and general welfare and safety of the public, and the protection of the water supply system of the Township,” appeared to fall within the general scope of the township ordinance act, “the legislative grant of police power under [the township ordinance act] is limited to those kinds of things which are enumerated in the statute.” The court concluded that, since regulating water connection fees and indeed even provisions regarding water supply systems in general, were not sufficiently similar to the activities explicitly enumerated in the statute, a township could not enact an ordinance to regulate water supply systems and, therefore, defendant’s ordinance was invalid. Although we respect the court’s effort to ensure that a governmental unit’s activity is, in fact, authorized by law, we disagree with its decision in this case. The plain language of the township ordinance act states that townships may “adopt ordinances regulating the public health, safety, and general welfare of persons and property, including, but not limited to” the listed examples. MCL 41.181(1); MSA 5.45(1)(1) (emphasis added). This broad, general language is highlighted by Const 1963, art 7, § 34, which provides that provisions concerning townships “shall be liberally construed in their favor. Powers granted to counties and townships by . . . law shall include those fairly implied and not prohibited by this constitution.” Further, Justice Riley’s plurality opinion in Square Lake, supra, which this Court explicitly adopted in Natural Aggregates, supra at 297, rejected the proposition that the “including, but not limited to” language in the township ordinance act substantially restricted the authority of townships. Instead, Justice Riley determined:
When the Legislature added the language to the township ordinance act giving townships the ability to “adopt ordinances regulating the public health, safety and general welfare of persons and property,” it provided a statutory mechanism for townships to adopt and enforce regulations, purely local in nature, to enhance the health and safety within its community. [Square Lake, supra at 322 (Riley, J., joined by Brickley and Griffin, JJ.; Boyle, J., concurring); Natural Aggregates, supra at 296.]
Accordingly, we must determine here whether there is a rational relationship between defendant’s Ordinance 93-7-W and the public health, safety, or general welfare. See Natural Aggregates, supra at 294. In our judgment, it is clear that an ordinance regarding the water supply system of a township, including the fee requirements that will sustain the system, does bear a rational relationship to the public health, safety, and general welfare of the township. The availability of clean water is of paramount importance to the people of the township, affecting their health and safety, as well as the welfare of their property—as evidenced by the $2,000 increase in value to the properties affected by the new water system. Thus, we conclude that the township ordinance act did empower defendant township to enact Ordinance 93-7-W to collect fees to pay for its water supply system.
Moreover, MCL 123.742(1); MSA 5.570(12)(1) provides that a county and a township may enter into “a contract for the acquisition, improvement, enlargement, or extension of a water supply . . . system . . . and for the payment of the cost thereof by the contracting municipalities . . . .” Under such a contract, funds may be raised by the township “[b]y special assessment” or “[b]y the exaction of charges for the connection of properties, directly or indirectly, to the system or for the availability of the system to serve properties . . . .” MCL 123.742(2)(b), (c); MSA 5.570(12)(2)(b), (c). Although the trial court in this case stated that nothing in the record showed that there was a contract between defendant and Saginaw County in this case, plaintiffs stated, during oral argument on appeal, that the existence of a contract between defendant and the county has never been in contention and that plaintiffs, in fact, were in the possession of such a contract. Thus, plaintiffs conceded that MCL 123.742; MSA 5.570(12) provided the authority for the township to finance its water supply system through special assessments or connection fees. Thus, we conclude that defendant had the authority to enact an ordinance regarding the water supply system and its financing, and concomitantly possessed the authority to collect special assessments or connection fees in connection with such a system.
We next turn to defendant’s second argument, that the trial court erred in finding that the circumstances surrounding the passage of Ordinance 93-7-W show that the “fee” imposed was, in truth, a special assessment, in contravention of the Michigan Tax Tribunal’s determination that a special assessment to pay for the water supply system at issue was limited to $2,000. In order to address this argument, we must determine whether the charge imposed by the ordinance was a connection fee or a special assessment. We review this question of law de novo. Saginaw Co v John Sexton Corp of Michigan, 232 Mich App 202, 209; 591 NW2d 52 (1998).
As with the fee/tax distinction addressed by the Supreme Court in Bolt v Lansing, 459 Mich 152; 587 NW2d 264 (1998), there is also no bright-line test for distinguishing between a connection/use fee and a special assessment. “Generally, a ‘fee’ is ‘exchanged for a service rendered or a benefit conferred, and some reasonable relationship exists between the amount of the fee and the value of the service or benefit.’ ” Id. at 161 (citation omitted). A special assessment is a “specific levy designed to recover the costs of improvements that confer local and peculiar benefits upon property within a defined area.” Kadzban v Grandville, 442 Mich 495, 500; 502 NW2d 299 (1993). At first glance, it appears that either of these general definitions could apply to the charges imposed by the ordinance in this case. Thus, we turn to the criteria set out in Bolt, supra, for distinguishing a fee. Although we acknowledge that the Supreme Court in Bolt, supra, was addressing the fee/tax distinction, rather than the fee/assessment distinction as here, we believe the criteria of a fee are equally applicable to our case. According to Bolt, supra at 161-162, the three criteria of a fee are as follows: (1) a fee must serve a regulatory purpose, (2) a fee must be proportionate to the necessary costs of the service, and (3) a fee is voluntary. We note that the Supreme Court cautioned that these criteria are not to be considered in isolation, but rather in their totality, such that a weakness in one area would not necessarily mandate a finding that the charge at issue is not a fee. Id. at 167, n 16.
Accordingly, we address the criteria of a fee, in contrast to those of a tax or a special assessment, in our attempt to determine the true character of the charge at issue here. Because we agree with plaintiffs’ statement that the first two criteria are closely related, we analyze these factors together. Thus, we first look to the purpose of the charge in the case at hand and the proportionality of the charge to that purpose. Id. at 161-162. While a fee must serve a primary regulatory purpose, it can also raise money as long as it is in support of the underlying regulatory purpose. Merrelli v St Clair Shores, 355 Mich 575, 583; 96 NW2d 144 (1959); Vernor v Secretary of State, 179 Mich 157, 167; 146 NW 338 (1914). A fee also confers benefits only upon the particular people who pay the fee, not the general public or even a portion of the public who do not pay the fee. Bolt, supra at 164-165; Bray v Dep’t of State, 418 Mich 149, 162; 341 NW2d 92 (1983). Thus, revenue derived from regulation, i.e., a fee, must be proportionate to the cost of the regulation, although we presume that the amount of the fee is reasonable unless the contrary is established. Vernor, supra at 167, 168. In contrast, a tax is designed to raise revenue for general public purposes. Bray, supra at 162. Similar to a tax, a special assessment is also an exaction to raise revenue, although it is imposed on particular real property for a local purpose or improvement of direct benefit to that property. Wikman v Novi, 413 Mich 617, 633; 322 NW2d 103 (1982); 14 McQuillin, Municipal Corporations (3d ed, 1998), § 38.01, p 12. In Bolt, supra at 163-167, the Supreme Court concluded that the charge at issue served a public revenue-raising goal rather than a local regulatory goal, making the charge a tax. The charge served to pay largely for an investment in infrastructure that would benefit the entire city for many years after it was fully paid by the charge, without imposing any regulation.
Although the charge at issue here will also pay for an investment in infrastructure, the extended water line will not benefit the general public. Nor, according to defendant, will it continue to serve the public long after it is paid off by the charge. Instead, the charge will pay for the regulation of a specific part of the community’s access to a municipal water supply. Defendant, the township, has extended its water supply to a rural part of the community that formerly was served only by private wells. It seeks to pay, in part, for such extension of its water pipeline by a connection fee that is exacted when residents of this newly served community connect to the municipal water supply. By exacting the fee for connection to the water system, the purpose is clearly to regulate and control the use and distribution of water provided by the municipal system. This ordinance, through its connection charge, will regulate access to a clean, dependable water supply. Although the revenue raised by the charge will pay for the construction of the watermain extension, we find that the purpose of the charge is mainly regulatory—without the exten sion of the water line and the connection to such line, the citizens of the community served by the new line would have no access to municipal water.
Further, the construction at issue here benefits only those citizens in the community newly serviced by the water extension who connect to the water line. There is no evidence in the record indicating that the water extension would benefit anyone who does not pay for the privilege of “hooking up” to the extension, nor that anyone who did not benefit would be forced to pay the charge, in contrast to the situation in the Bolt case. Instead, this case is more similar to Contractors & Builders Ass’n v Dunedin, 329 So 2d 314, 320 (Fla, 1976), in which the Florida Supreme Court held:
Raising expansion capital by setting connection charges, which do not exceed a pro rata share of reasonably anticipated costs of expansion, is permissible where expansion is reasonably required, if use of the money collected is limited to meeting the costs of expansion. Users “who benefit especially, not from the maintenance of the system, but by the extension of the system . . . should bear the cost of that extension.” [Id., quoting Hartman v Aurora Sanitary Dist, 23 111 2d 109, 115; 177 NE2d 214 (1961) (emphasis in Dunedin).]
As in Dunedin, the payment for the expansion of infrastructure here is limited to the specific group of new users who will benefit through the expansion and ability to connect to the municipal water supply. We agree with the court in Dunedin that “we see nothing wrong with transferring to the new user of a municipally owned water or sewer system a fair share of the costs new use of the system involves.” Dunedin, supra at 317-318.
Plaintiffs argue that the charge for connecting to the expanded water supply is not proportional to the benefit because the Tax Tribunal already determined that the properties in question were benefited only by $2,000. However, plaintiffs’ argument confuses two distinct questions— the increase in value to a parcel of property resulting from the water project and the per parcel cost of the water project. A special assessment, such as the one appealed to the Tax Tribunal here, must have a direct benefit on the property assessed, but is unrelated to actual use of the goods or services provided, while a fee is related to the cost of the actual goods or services provided. San Marcos Water Dist v San Marcos Unified School Dist, 42 Cal 3d 154, 162; 228 Cal Rptr 47; 720 P2d 935 (1986). The Tax Tribunal determined that the increase in value to each parcel was $2,000 (pursuant to the criteria of special assessments), simply because the water was made available to the parcel, even without any connection. However, the Tax Tribunal did not consider the instant question regarding the proportionality of a fee. The amount of a fee must be related to the costs of the regulation, Bray, supra at 160. Here, the uncontested cost of the water extension is $430,000. Defendant set the connection charge for each parcel of land on the basis of the size and use of the land. If all the owners of the parcels at issue connected to the water main and paid their full assessed charge to do so, the amount would equal the actual cost of the improvement, according to defendant. We decline to attempt to determine with mathematical precision the relation of the connection to the charge paid by the owner of each parcel of land, since we presume “that the amount of the fee is reasonable, unless the con trary appears upon the face of the law itself, or is established by proper evidence,” and we find no evidence that the charge here is unreasonable. Vernor, supra at 168. In addition, we note briefly that defendant claims that the useful life of the watermain extension is twenty years and that the connection fee may be paid in equal installments over a period of twenty years. Thus, the fee would pay off the water extension over the life of the extension, leaving the township with no long-term benefit to the public far beyond the time that it is paid off, in contrast to the Bolt case. See Bolt, supra at 164. Thus, we conclude that the charge in question is “proportionate to the necessary costs of the service.” Bolt, supra at 162.
Finally, we address the voluntariness of the charge. A fee is voluntary, Bolt, supra at 162, 167, while a special assessment and a tax are compulsory charges, McQuillin, supra at 12; Dunedin, supra at 319, n 8. Plaintiff claims that the charge at issue is not voluntary because “the Ordinance in effect places a lien of $7,187.50 plus interest of 6% and an inflation cost of 5% on Appellees’ property and would adversely affect any future sale of that property.” However, we find no evidence of an involuntary hen in the ordinance. It appears that property owners in the new water district need pay only the amount of the previously enacted special assessment when they decide to connect to the water system. We see no evidence inhibiting property owners from retaining their current wells or drilling new wells, or in fact from using no water at all if the property is not developed and they do not require it. Thus, we conclude that the connection charge is voluntary—those who decide to con nect must pay the fee and those who choose not to connect are not required to pay the fee.
On the basis of these factors, we conclude that the connection charge at issue in this case is a fee, rather than a tax or a special assessment. Conforming to the criteria of a fee set out in Bolt, supra at 161-162, the connection fee here serves a regulatory purpose, is proportionate to the necessary costs of the service, and is voluntary. Similar to the one-time hookup fee for new sewer service in Handy v Rutland, 156 Vt 397; 598 A2d 114 (1990), and the connection fees for new water and sewer service in Dunedin, supra, the connection fee here is imposed only when new users want to connect to the expanded system. We believe that defendant may properly charge a fee where the water service will benefit only those new users on whom the fee is imposed. See Bolt, supra at 165-166. Although plaintiffs claim that allowing defendant to charge a connection fee would undermine the Tax Tribunal’s ruling and make their appeal of the special assessment futile, we disagree. In reducing the original $9,187.50 assessments, the Tax Tribunal appeal effectively fulfilled its function—plaintiffs now only have to pay $2,000 for the benefit conferred on their property by the mere availability of the municipal water line. If they choose not to connect, they need pay no more. Certainly this savings of over $7,000 makes this appeal process worthwhile. In addition, we do not believe that the successful appellate challenge to one method of financing automatically invalidates all other methods. In our judgment, local governments are not limited to one method of payment for any given improvement. Certainly these governments are accountable for their decisions at election time, which is the proper forum for plaintiffs’ dissatisfaction with what they consider to be “high cost-low benefit projects.”
We reverse.
Ordinance 93-7-W provides, in pertinent part:
The following cost connection charges or tap-in fees shall be made for a water service connection to the Township water supply system known and referred to as Water Supply District No. 3, and any subdivisions thereof.
B. The charges to be computed under the terms of said Ordinance shall apply to all parcels of land split from a previously assessed parcel, or to a parcel that was not previously assessed, or to any parcel that was in Act 116 of PA of 1974, as amended, that was not fully and completely assessed, for a water line connection in the assessment roll or rolls of said water district confirmed on November 12,1992 and June 23,1993. Any parcel of property in the Water Supply District No. 3 that has not paid, or been assessed the minimum sum of $9,187.50, or the owner of which parcel has not agreed to have that minimum sum spread over a period of years, to be paid in future installments, shall pay such additional sum, or be subject to a contract or agreement to pay the total sum of $9,187.50, plus interest, before connection can or shall be made to the water supply system. It has been determined that the minimum sum of $9,187.50 shall be paid, or an agreement to pay that minimum sum shall be made before a tap in to the water supply system is made, so as to pay for the water supply facilities constructed to service the area commonly known as Water Supply District No. 3. The Township of Kochville has determined that the minimum basic connection or tap-in fee shall be $9,187.50, plus interest, for the privilege of tapping in, or connecting to the water supply system, subject to the equivalency charges as set forth in said Ordinance, or any amendment thereto. In addition to the foregoing enumeration of costs, and charges for the tap-in privilege to the water supply system, interest shall be charged on any unpaid part or portion of such tap-in fee at the rate of six percent (6%) per annum. In addition thereto an inflation factor of five (5%) per year shall be added to the minimum tap-in fee of $9,187.50, computed from November 1, 1992, to the date of payment of the minimum tap-in fee, or until a contract is executed between the property owner and the Township, agreeing to pay such minimum tap-in fee.
See also MCL 123.742(2); MSA 5.570(12)(2): “A municipality may agree to raise all or any part of its contract obligation by any of the methods provided in this section which are available.” (Emphasis added.) | [
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Per Curiam.
Appellant Kathy Schuette appeals by leave granted an order of the Menominee Circuit Court affirming a Menominee County Probate Court order that denied Schuette’s request for a reduction in a reimbursement order. The probate court ordered Schuette to reimburse appellee state of Michigan for the cost of care and supervision during the placement of her son, Nathan Gerald Reiswitz, with the former Department of Social Services (the DSS). We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Reiswitz was bom on January 29, 1978. In 1993, Reiswitz admitted his responsibility for a charge of larceny in a building, MCL 750.360; MSA 28.592. The larceny involved Reiswitz’ theft of a bottle of arsenic from his high school and was coupled with indications that Reiswitz planned to put the arsenic in Schuette’s coffee. At a dispositional hearing in November 1993, the probate court ordered that Reis-witz be placed in the care and supervision of the DSS. Schuette indicated that she understood she would have to pay for her son’s care during this placement. The probate court ordered that reimbursement was preserved, directed Schuette to fill out a financial statement, and stated that when the statement was returned, the probate court would schedule a rate for reimbursement. Later that month, the probate court entered an order providing that Schuette pay reimbursement at the rate of $270 a week.
Schuette moved for reconsideration of this reimbursement order, contending that it had incorrectly taken into account her husband’s income and that, because her husband had no legal support obligation for her son, his income should not have been considered in determining the rate of reimbursement. At the hearing, the probate court agreed that the husband’s income should not have been considered and recalculated the reimbursement rate at $27 a week, a calculation with which Schuette agreed. The probate court therefore entered an amended order of reimbursement providing for payment at the rate of $27 a week.
Schuette then appealed from the amended order of reimbursement to the Menominee Circuit Court. Schuette did not dispute the rate of payment, but instead asserted that the probate court was without jurisdiction to order reimbursement for previously incurred costs once Reiswitz returned to his own home, an event that Schuette asserted would not occur until the end of the school year. Schuette further argued that it was unreasonable to order her to reimburse the state for the total cost of Reiswitz’ care where the payments would extend years into the future.
The circuit court appeal was stayed pending resolution by this Court of an appeal in a separate case (also arising out of the Menominee Circuit Court) that presented the same issue. Following this Court’s decision in that case, In re Brzezinski, 214 Mich App 652; 542 NW2d 871 (1995) (hereafter Brzezinski), the parties stipulated to continue the stay pending resolution of an appeal of the decision to the Michigan Supreme Court. After the Michigan Supreme Court summarily reversed this Court’s decision for the reasons stated in Judge Griffin’s dissent, In re Brzezinski (State of Michigan v Brzezinski), 454 Mich 890 (1997), Schuette apparently abandoned her first issue (which had been based on the argument that was ultimately rejected in Brzezinski), and filed a new brief raising the claim that the probate court loses jurisdiction over a child’s parents (and hence the authority to continue a reimbursement order) once it loses jurisdiction over the child. Schuette claimed that the probate court had lost jurisdiction over Reiswitz when he reached the age of nineteen on January 29, 1997. Additionally, Schuette reasserted her original second argument: that reimbursement was unreasonable if it required her to continue to repay the cost of out-of-home care well into Reiswitz’ adult life.
In July 1997, the circuit court heard oral argument from the parties and ruled that the probate court did have jurisdiction to enforce its reimbursement orders until the reimbursement was paid in full, even after the juvenile was no longer subject to the jurisdiction of the probate court. The circuit court did not address the second issue raised by Schuette. The circuit court entered a written order denying Schuette’s request for reduced reimbursement in August 1997.
n. STANDARD OF REVIEW
The issues in this matter concern questions of statutory interpretation that we review de novo. Yaldo v North Pointe Ins Co, 457 Mich 341, 344; 578 NW2d 274 (1998).
m. THE JURISDICTION OF THE PROBATE COURT
A. STATEMENT OF THE ISSUE
In this matter, the probate court entered the amended reimbursement order while the probate court had jurisdiction over the parties. However, the probate court has not attempted to exercise jurisdiction over either Reiswitz or Schuette since Reiswitz turned nineteen. Thus, the first issue in this matter is whether Schuette can avoid the requirements of a proper reimbursement order, entered by the probate court at a time when it had jurisdiction, because before Schuette had fully complied with that order, the probate court’s statutory jurisdiction over the parties had ceased. We hold that Schuette cannot avoid the effect of a properly entered reimbursement order.
B. STANDARDS OF STATUTORY INTERPRETATION
In Yaldo, id. at 346, our Supreme Court summarized the basic standards to be utilized in interpreting a statute:
The primary goal of judicial interpretation of statutes is to give effect to the intent of the Legislature. In determining legislative intent, we look first at the words of the statute. If the language is clear and unambiguous, judicial construction is not normally permitted. If reasonable minds can differ regarding its meaning, then judicial construction is appropriate. The Legislature is presumed to have intended the meaning it plainly expressed. [Citations omitted.]
C. THE PROBATE COURT’S ORIGINAL JURISDICTION OVER REISWITZ AND ANCILLARY JURISDICTION OVER SCHUETTE
The probate court is a court of limited jurisdiction. In re Macomber, 436 Mich 386, 389; 461 NW2d 671 (1990). It derives its power from statutory authority. In re Hillier Estate, 189 Mich App 716, 719; 473 NW2d 811 (1991). In this case, the probate court obtained jurisdiction over Reiswitz under MCL 712A.1; MSA 27.3178(598.1) and MCL 712A.2(a)(l); MSA 27.3178(598.2)(a)(l) as then in effect. Pursuant to MCL 712A.2a(l); MSA 27.3178(598.2a)(l), this jurisdiction terminated on Reiswitz’ nineteenth birthday. Accordingly, the probate court obtained ancillary jurisdiction over Schuette until that time. MCL 712A.6; MSA 27.3178(598.6). Schuette contends that the probate court’s authority to compel Schuette to pay reimbursement for the cost of out-of-home care ceased when its jurisdiction over Reiswitz terminated. We regard this as an issue of first impression in this state’s jurisprudence.
D. THE PLAIN LANGUAGE OF THE STATUTE
MCL 712A.18(2); MSA 27.3178(598.18)(2) granted the probate court the authority to order reimbursement. At the time of the proceedings below, the statute, in relevant part, provided:
An order of disposition placing a child in or committing a child to care outside of the child’s own home and under state or court supervision shall contain a provision for the reimbursement by the child, parent, guardian, or custodian to the court for the cost of care or service. The order shall be reasonable, taking into account both the income and resources of the child, parent, guardian, or custodian. The amount may be based upon the guidelines and model schedule created under subsection (6). The reimbursement provision shall apply during the entire period the child remains in care outside of the child’s own home and under state or court supervision, unless the child is in the permanent custody of the court. . . . Collections to cover delinquent accounts or to pay the balance due on reimbursement orders may be made after a child is released or discharged from care outside the child’s own home and under state or court supervision. ... In cases of delinquent accounts, the court may also enter an order to intercept state tax refunds or the federal income tax refund of a child, parent, guardian, or custodian and initiate the necessary offset proceedings in order to recover the cost of care or service. [Emphasis supplied.]
The plain language of this statute provides the probate court with the ability to order reimbursement for the expenses associated with providing care for a juvenile under court auspices outside the juvenile’s home. The statute also ensures that the probate court will obtain reimbursement for the care or service of a juvenile. “[T]he purpose of this statute is to obligate parties to help shoulder the costs the state incurs during the period that a child is ordered into out-of-home placement.” Brzezinski, supra at 676-677 (Griffin, P.J., dissenting). The Legislature clearly recognized that the collection of reimbursement ordered pursuant to the statute may be hampered by the inability of the obligor to pay the amount ordered and that accounts may therefore become delinquent. The Legislature, accordingly, provided for the collection of delinquent accounts, even going so far as to provide the probate court authority to intercept state and federal tax refunds and apply them to the payment of delinquencies. MCL 712A.18(2); MSA 27.3178(598.18)(2).
In Brzezinski, supra at 663-672, this Court reviewed the language and history of subsection 18(2) and concluded that the statute did not mandate that parents (or presumably any of the named parties) reimburse the entire cost of a child’s out-of-home care. The majority also concluded that, because subsection 18(2) provided for the payment of “reasonable” reimbursement based on “the income and resources of the child, parent, guardian, or custodian,” the probate court should use its discretion to determine what constitutes a “reasonable” amount. According to the majority, that amount might, in a particular case, be the entire amount of the out-of-home placement. Brzezinski, supra at 671-672.
In a dissent that was subsequently adopted by the Michigan Supreme Court, 454 Mich 890 (1997), Judge Griffin agreed with the majority’s conclusion that the statute did not establish an absolute mandate that parents reimburse the entire cost of a child’s out-of-home care. Brzezinski, supra at 675 (Griffin, P.J., dissenting). Judge Griffin further concluded, however, that the statute permitted the probate court to order that the reimbursement be made in installment payments and that the final calculation of the total reimbursement amount could be deferred until after a child was returned to in-home custody. Id. at 678-679.
Here, we take the logic of Brzezinski one step further. The plain language of subsection 18(2) is that probate courts may order and collect reimbursement for the costs incurred by the state when out-of-home placement is ordered. The statute further provides for the collection of delinquent amounts of such ordered reimbursement. Judge Griffin in Brzezinski, supra at 678, approved the use of installment payments. Such payments clearly operate to the benefit of persons such as Schuette by allowing them to avoid a large, lump-sum amount of reimbursement that might be difficult or impossible for them to pay and instead breaking that large amount into a more manageable series of payments.
Schuette, in effect, seeks to use the favorable installment payment plan as a means of avoiding an obligation to pay the amount of reimbursement determined by the probate court to be reasonable. Judge Griffin explained why the similar interpretation of subsection 18(2) urged by the appellee in Brzezinski would be contrary to the intent of the Legislature, and with a slight modification, indicated in italics below, we can apply his observations to this case:
First, the clear legislative intent of having the state reimbursed for as much of its costs as is reasonable would be partially frustrated if the outstanding portion of the reimbursement obligation must be forgiven once the parents regain custody of their child [or, coextensively, once the child reaches the age of majority]. Second, the ruling would create a clear disincentive to a probate court’s use of an installment method in attempting to ease the burden an already struggling parent will face in complying with the reimbursement obligation. [Brzezinski, supra at 678.]
Thus, we hold that a probate court may order and collect reimbursement, both before and after the juvenile reaches the age of majority, for the costs incurred by the state when out-of-home placement is ordered.
E. ADDITIONAL CONSIDERATIONS
(1) DELAY IN PAYMENT
We note that if a probate court lost the power to enforce a reimbursement order once the juvenile reached the age of nineteen, then it would always be in the parents’ interest to avoid paying as much of the reimbursement as possible, knowing that any arrear-age would be wiped out once the juvenile reached that age. This would either discourage probate courts from ordering installment payments (with the concomitant result that parents in some cases would be faced with large lump-sum payments that they would have difficulty paying), or would result in installment payments that were scheduled so as to be completed at the time jurisdiction over the juvenile terminated (thereby also significantly increasing the amount of each payment and reducing the benefits to parents of the installment payment method of reimbursement).
Even these alternatives could not prevent arrear-ages from occurring in particular cases. The period between when out-of-home care might cease and a juvenile reaches the age of nineteen might be very brief, or even nonexistent. In such circumstances, the only alternative for the probate court would be to order the immediate payment of a lump-sum amount. Further, nothing would prevent an obligor from paying only a portion of the lump-sum amount, or nothing at all. If Schuette’s interpretation of subsection 18(2) is correct, the probate court would lose any authority to compel the payment of delinquent amounts when it lost jurisdiction over the juvenile. This is clearly inconsistent with the language of the statute ensuring that delinquent reimbursement accounts could be collected by the probate court. Schuette’s interpretation of subsection 18(2) would therefore defeat the statute’s provisions for the reimbursement of costs expended in the out-of-home care of juveniles.
(2) THE ANALOGY TO CHILD SUPPORT ARREARAGES
We further note that interpreting subsection 18(2) to provide the probate court with authority to command installment payments of reimbursement that would continue beyond the date when a juvenile reaches the age of nineteen, and also to provide for the authority to collect arrearages, is consistent with the approach this Court has previously taken in the similar setting of child support arrearages. In Wasson v Wasson, 52 Mich App 91, 97; 216 NW2d 594 (1974), this Court held that a circuit court had jurisdiction to use its contempt power to enforce an order to pay arrearages of child support that accrued before a child reached adulthood, even where the contempt action was not commenced until after the child reached that age. Child support payments are similar to the reimbursement payments under subsection 18(2) in that in both cases a payment schedule has been set up to provide for a parent’s payment for the care and support of the child. Further, in both cases the court’s jurisdiction over the child ends at some predetermined age, and in both cases arrearages could easily accrue. Noting that the courts in prior cases had seemed to assume that a circuit court had the power to enforce its prior orders through the contempt power, this Court held that such authority existed and stated:
In the instant case, the support order at issue was entered during the minority of the two children. The amount at issue accrued before these children reached the age of majority. The total arrearage was in fact reduced by the trial court, and defendant failed to argue that he does not owe the requested amount. [Wasson, supra at 96.]
In this case, the probate court determined the amount of reimbursement due while Reiswitz was still within its jurisdiction. Further, the probate court entered its amended order requiring the payment of the reimbursement while it had jurisdiction over Reis-witz and, accordingly, over Schuette. MCL 712A.2(a)(l); MSA 27.3178(598.2)(a)(l) and MCL 712A.6; MSA 27.3178(598.6). Schuette did not contest the accuracy of the amount of reimbursement when it was calculated and ordered. Wasson, supra at 96, and the parallels between the statutes at issue in Was-son and this case further support our interpretation of subsection 18(2) to allow for collection of install- merit payments and arrearages after a juvenile reaches the age of nineteen.
(3) THE AMENDMENT OF THE STATUTE
We also note that the Legislature provided, in a previous version of § 18 for the probate court’s authority to impose an obligation of restitution on the juvenile as a condition of probation. The Legislature further specifically provided that the probate court could not require the payment of restitution “unless the child is or will be able to pay all or part of the restitution during the term of his or her probation.” 1990 PA 314, MCL 712A.18(7)(a)(i), and (8)(a); MSA 27.3178(598.18)(7)(a)(i), and (8)(a). However, the statute was amended with regard to that provision and now states that “[a]n order of restitution entered under this section remains effective until it is satisfied in full. An order of restitution is a judgment and lien against all property of the individual ordered to pay restitution for the amount specified in the order of restitution.” MCL 712A.30(13); MSA 27.3178(598.30)(13). While the restitution provisions are more specific concerning both the viability of the debt and the power of the probate court to compel payment, the fact that subsection 18(2) specifically indicates that “[t]he court shall provide for the collection of all amounts ordered to be reimbursed,” coupled with the fact that subsection 18(2) addresses the collection of delinquent accounts, is a clear indication that the reimbursement section establishes a legally enforceable continuing reimbursement obligation.
(4) AUTHORITY OF A COURT TO ENFORCE ITS ORDERS
We also note that interpreting subsection 18(2) to provide authority for the probate court to enforce orders for reimbursement that are entered while the court has jurisdiction over the juvenile and the juvenile’s parents is consistent with the general proposition that a court has authority to enforce its proper orders. “When a court issues an order and that order is violated, the case returns to the court for enforcement.” People v Norman, 183 Mich App 203, 206; 454 NW2d 393 (1989). MCL 600.611; MSA 27A.611 provides that circuit courts “have jurisdiction and power to make any order proper to fully effectuate the circuit courts’ jurisdiction and judgments.” Accord Wiand v Wiand, 178 Mich App 137, 143-144; 443 NW2d 464 (1989). Similarly, MCL 600.847; MSA 27A.847 provides that probate courts “have the same powers as the circuit court to hear and determine any matter and make any proper orders to fully effectuate the probate court’s jurisdiction and decisions.” The probate court had jurisdiction over the parties when it exercised its authority under subsection 18(2) to order reimbursement and thus it has the power to enforce that order. In addition, “a probate court, being a court of record, does have the contempt power, MCL 600.1416 and 600.1701(3); MSA 27A.1416 and 27A.1701(3) . . . .” Teasel v Dep’t of Mental Health, 419 Mich 390, 417; 355 NW2d 75 (1984). Therefore, the probate court had the authority, under the statute, to issue its amended reimbursement order and additionally had the authority, under its contempt power, to enforce its proper order.
(5) MODIFICATION
Finally, we note that, as Judge Griffin pointed out in Brzezinski, supra at 680, pursuant to MCR 2.612(C)(1)(f) a parent may seek a modification of a reimbursement order. That court rule permits a court to “relieve a party . . . from a final judgment [or] order” for any “reason justifying relief from the operation of the judgment.”
F. STATUTORY CONFLICTS
Schuette argues that an interpretation of subsection 18(2) such as that discussed above would cause subsection 18(2) to conflict with MCL 712A.2, 712A.2a, and 712A.6; MSA 27.3178(598.2), 27.3178(598.2a), and 27.3178(596.6) because it would provide the probate court with continuing jurisdiction over the parties after the juvenile reaches nineteen. According to Schuette, these provisions clearly state that the probate court’s jurisdiction ceases when the juvenile reaches nineteen, whereas subsection 18(2), as we construe it, would extend the probate court’s jurisdiction to enforce its reimbursement order. This argument ignores the fact that the probate court entered the reimbursement order at a time when it had jurisdiction over the parties. The probate court calculated the total amount of reimbursement while it had jurisdiction. Thus, that total amount became a fixed obligation. Subsection 18(2) provides that “ [collections to cover delinquent accounts or to pay the balance due on reimbursement orders may be made after a child is released or discharged from care outside the child’s own home and under state or court supervision.” MCL 712A.18(2); MSA 27.3178(598.18)(2). Any further involvement by a probate court therefore does not involve any exercise of jurisdiction over the juvenile or the juvenile’s parent to impose new obligations or to affect the disposition of the juvenile. Rather, the only involvement that might occur in the future would be under circumstances where the parent seeks relief from the judgment or the probate court finds it necessary to invoke its contempt power against the parent to secure compliance with the probate court’s lawful order. In such circumstances, the probate court and the parent would stand as obligee and obligor to each other. Therefore, the issue would not involve the disposition of a juvenile, but rather the satisfaction of a legal obligation.
rv. THE REASONABLENESS OF THE AMENDED REIMBURSEMENT ORDER
A. STATEMENT OF THE ISSUE
The second issue in this matter is whether, when the probate court properly exercises its discretion to determine that reimbursement ordered pursuant to subsection 18(2) should be paid by installment payments that wiÚ continue even after the juvenile is no longer under the jurisdiction of the court, such a determination automatically renders the reimbursement “unreasonable.” We hold that such a determination does not automatically render the reimbursement unreasonable.
B. THE PLAIN LANGUAGE OF THE STATUTE
Subsection 18(2) provides that a probate court may order “reasonable” reimbursement for the costs of out-of-home care. This Court held in Brzezinski, supra at 671, that the Legislature intended “that the amount of parental reimbursement [ordered under subsection 18(2) should] be a reasonable amount, taking into account the parents’ ability to pay.” Here, Schuette has not challenged the overall amount of the reimbursement; in fact, Schuette stated that she agreed with the probate court’s calculation. Moreover, Schuette requested that Reiswitz be placed outside the home and did not protest when the probate court changed the placement from a foster home to the DSS, which ultimately placed Reiswitz in a teaching family home. Nor has Schuette argued that she was unable to afford the reimbursement that was ordered, particularly given that the installment payment schedule called for payments of only $27 a week.
Instead, Schuette has argued that requiring her to pay reimbursement for years after Reiswitz became an adult was in itself “unreasonable.” Schuette suggests that it is unreasonable to require that she pay the full amount of reimbursement now that her son is an adult when he “is not being required to pay for his transgression” even though he “is potentially capable of paying.” The upshot of Schuette’s argument is that to avoid creating an obligation that would stretch unreasonably into the future, a probate court would be required either to demand a lump-sum payment of whatever reimbursement amount it had determined to be reasonable or to order an installment plan with a shorter time frame and, therefore, with significantly higher payments.
In Brzezinski both the majority and the dissent regarded the use of the term “reasonable” in subsection 18(2) as a requirement that the probate court consider the ability of the child and the parents (or the guardian or custodian, if applicable) to pay for all or some portion of the costs of out-of-home care. This interpretation accords with the plain language of the statute: “The order shall be reasonable, taking into account both the income and resources of the child, parent, guardian, or custodian.” MCL 712A.18(2); MSA 27.3178(598.18)(2).
Schuette does not argue that at the time the order was entered—or even at the present time—Reiswitz had the ability and resources to pay the required reimbursement, or even any portion of the cost of his out-of-home care. Nor does she argue that she lacked the ability and resources to pay the required reimbursement, particularly when the probate court ordered payment on an installment basis of $27 a week. Thus, we hold that the amended reimbursement order was not “unreasonable” within the meaning of the plain language of the statute.
Affirmed.
Because of statutory amendments effective January 1, 1998, jurisdiction over such juvenile proceedings is now vested in the family division of the circuit courts.
The Legislature subsequently amended MCL 712A.18; MSA 27.3178(598.18) by 1996 PA 243, 1996 PA 244, and 1997 PA 163, but the changes were minor (e.g., changing “child” to “juvenile”), and these amendments did not affect the substance of the statute.
Schuette now contends on appeal that it is “unreasonable” to require that this total amount be paid back years after Reiswitz will have attained adulthood.
An interesting question in this regard arises from the Brzezinski decision. According to the case, the juvenile’s birth date was April 6, 1979. Brzezinski, supra at 655. The Michigan Supreme Court finally disposed of the appeal on April 8, 1997, and remanded the case to the probate court “for redetermination of the amount of respondent’s debt obligation.” 454 Mich 890-891. The order of the Supreme Court was thus entered two days after the juvenile’s eighteenth birthday. The Brzezinski decision indicates that the probate court had ordered the return of the juvenile to the appellee’s custody, but it does not indicate when (or if) the probate court had relinquished jurisdiction over the juvenile. It is therefore entirely possible that the proceedings on remand occurred at a time after the probate court’s jurisdiction over the juvenile had terminated. Nevertheless, it appears clear that the Supreme Court would have ruled that the debt obligation that arose before the termination of jurisdiction would still exist and could be revisited.
The foster home cost $13.85 a day while the teaching family home cost $109.94 a day. .
Indeed, the probate court determined the amount of reimbursement using the guidelines and model schedule created pursuant to MCL 712A.18(6); MSA 27.3178(598.18)(6), and that subsection specifically provided that the guidelines and model schedule “shall take into account both the income and resources of the child, parent, guardian, or custodian.” Thus, the guidelines and model schedule appear to incorporate the reasonableness requirement of subsection 18(2).
However, Schuette has acknowledged that she can be held responsible for payment of the entire amount that was due under the reimbursement schedule up until the time of Reiswitz’ nineteenth birthday.
Of course, a variant of the second alternative would be to order a significantly smaller amount of reimbursement, at the expense of the state. | [
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] |
Per Curiam.
Defendant was found guilty by a jury of robbery armed and was sentenced to a term of 5 to 15 years in prison. CLS 1961, § 750.529 (Stat Ann 1969 Cum Supp § 28.797). On appeal defendant is represented by the same counsel who represented him at his trial.
Defendant claims that his constitutional rights were denied when he was placed in a police lineup without his counsel present, when the police showed his photograph along with others to the complaining witness for identification purposes, and when he was not given sufficient time to present his defense. Finally, defendant alleges there was not sufficient evidence to sustain the guilty verdict.
These allegations of error were not made to the trial court. They arise in this case for the first time before this appellate court.
The record establishes that there was an attorney present at the lineup. It does not establish whether or not he represented the defendant.
In People v. Childers (1969), 20 Mich App 639, this Court stated that defense counsel who waited until the close of the prosecution’s proofs to object to the admission of identification evidence which they should have known was subject to constitutional attack raised the issue in an untimely manner. A motion to suppress in advance of trial is the proper procedure so that the state may avoid new trials in such cases, and may also have orderly trials without unexpected but avoidable delays.
Thus, in the instant case where the objection to the defendant’s not having counsel present at the police lineup is made for the first time on appeal, it is made too late.
Defendant next questions the use of photographs to aid in identification. The United States Supreme Court has indicated that photographic identification is allowed. See Simmons v. United States (1968), 390 US 377 (88 S Ct 967, 19 L Ed 2d 1247). An examination of the record discloses that impropriety on the part of police officers in the use of photographs was neither alleged nor established; therefore, we find no reversible error was committed by the admission of the testimony of the photographic identification by the complaining witness of the defendant.
Additionally, error, if any, in the conduct of the police lineup or the use of photographs for identification purposes was clearly harmless. The defense was alibi, not mistaken identity.
The record clearly demonstrates that the allegation that defendant was not given sufficient time to present his defense is without merit. The granting of a continuance rests in the discretion of the trial court, GCR 1963, 503.2. In the instant case the trial court had previously adjourned the trial on one occasion in order to allow the defendant to secure his witnesses. We note also that defense counsel did not seek service of compulsory process to secure the presence of his witness. Under the circumstances a refusal to grant a continuance was not an abuse of discretion. People v. Collier (1969) 16 Mich App 695.
Finally, there was sufficient evidence which, if believed, would support the jury’s verdict of guilty.
“This Court will not disturb the verdict unless evidence fails to support the finding of fact by the jury. People v. Floyd (1966), 2 Mich App 168. We find that the jury’s verdict in the case before us is amply supported by the evidence.” People v. Arither Thomas (1967), 7 Mich App 103, 104.
Affirmed. | [
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Per Curiam.
Defendant was convicted by a jury on two counts. Count I was breaking and entering an occupied dwelling with intent to commit larceny, MCLA §750.110 (Stat Ann 1969 Cum Supp § 28.305), for which he was sentenced to a term of 2-1/2 to 15 years in prison. Count II was felonious assault, CL 1948, § 750.82 (Stat Ann 1962 Rev § 28.277), for which he was sentenced to a term of 2-1/2 to 4 years in prison. The sentences are to run concurrently.
On appeal defendant alleges (1) that the verdict on Count I was against the weight of the evidence; (2) that the prosecutor’s statement in final argument that fingerprints dould not be taken from a knife’s rough surface was prejudicial in that no testimony to support this statement appeared in the record; (3) that the prosecutor’s reference in final argument to defendant’s silence at the time of his arrest about his alibi witnesses thwarted defendant’s constitutional right to remain silent; (4) and that testimony regarding bloodstains, buttons, and a radio was inadmissible because it was the result of an illegal arrest, search and seizure.
Examination of the record reveals that during the trial no objection was made to the prosecutor’s final argument, nor was objection made to the admission of the buttons or radio. Indeed, the radio was defendant’s own exhibit number one, and de fense counsel specifically stated lie bad no objection to tbe admission of tbe buttons. Defendant did object to testimony that certain stains were blood, and tbe trial court sustained this objection. Defendant is untimely in raising issues (2), (3), and (4), and we so bold. People v. David Smith (1969), 16 Mich App 198, Laughlin v. United States (CA 9, 1969), 411 F2d 1224, People v. Childers (1969) 20 Mich App 639.
Defendant’s contention that tbe verdict on Count I was against tbe weight of tbe evidence is without merit. There was an abundance of eyewitness testimony which together with tbe testimony of defendant’s several alibi witnesses clearly presented a question for tbe jury.
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J. H. Gillis, P. J.
Defendant was convicted by a jury of breaking and entering in violation of MOLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305). His motion for new trial was denied and he appeals. The principal question presented concerns application of the principles enunciated in the identification trilogy, United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149); Gilbert v. California (1967), 388 US 263 (87 S Ct 1951,18 L Ed 2d 1178), and Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199). We have concluded that defendant’s conviction must be reversed for error in the admission of evidence identifying defendant as a participant in the crime.
The Facts
On the morning of August 15, 1967, at approximately 4:15 a.m., Dale Kuecken returned home from work. Prom his apartment window, he observed a car parked in front of a laundromat across the street. Several individuals were scurrying about the building, one of whom was wearing a white T-shirt. Kuecken heard a voice say, “We can’t get in,” and he saw someone trying to pry open the door. He called the police. Kuecken then heard glass breaking and an alarm ringing, and he saw two persons running toward his side of the street. Kuecken took his shotgun and went outside to stop them. He confronted one individual and ordered him to stop. At the same time, Kuecken observed the second individual running to his left. This second man was wearing a white T-shirt and had sandy, blond hair. Thereafter, Kuecken was struck by a tire iron thrown by the first person who then fled.
The police arrived and Kuecken directed their at tention to a car that was driving away from the scene. The police pursued this car, overtook it, and apprehended defendant and two others. When apprehended by the police, defendant was wearing a white T-shirt. The police took the three men to the police station where, approximately an hour after the breaking and entering, they were viewed by Kuecken through a one-way glass panel. At the station, where Kuecken had been brought by the police for the purpose of identifying the suspects, Kuecken identified Gerald Love as the man who had thrown the tire iron. Also, according to his testimony at trial, Kuecken identified defendant Hutton as the man he had seen running to his left.
Defendant and Love were tried together. At trial, Kuecken was asked by the prosecution to make an in-court identification of Love. Counsel for defendants objected and moved for a special record. The defense offered to show that the confrontation at the police station was held in the absence of counsel. It was claimed that the absence of counsel violated defendants’ constitutional rights; that testimony of any identifications made at the confrontation could not be admitted; and that a separate record was required in order to determine whether Kuecken could identify either Love or defendant independently of the allegedly illegal confrontation.
The trial court commenced a special record but refused defense counsel’s request to continue this record to the point of determining whether the confrontation was illegal and whether in-court identifications of either Love or defendant had sources independent of the police station confrontation. The trial judge was apparently of the view that the issue of independent source was a matter of credibility for the jury. Thereafter, the jury was recalled and on direct examination Kuecken’s testi rnony implied that he recognized defendant Hutton as the man he had seen running to his left at the scene of the crime. Kuecken also testified that he had identified defendant at the police station. Defense counsel objected to this latter testimony on the ground that it had not been shown whether the confrontation was constitutionally held.
The prosecution then called the police officers who had apprehended the fleeing car and taken defendant into custody. The officers related the details of the police station confrontation. The testimony of the officers tended to show that the suspects had been advised of their right to counsel; that they had asked to call an attorney; but that no attorney was present at the confrontation. At the close of the prosecution’s case, defense counsel moved that all testimony of identifications made at the confrontation be stricken. On special record, the trial court inquired of Hutton:
“The Court: Did you ask for an attorney?
“The Witness: Yes, sir.
“The Court: When did you ask for an attorney?
“The Witness: At the time we were picked.
“The Court: Now, were you told that there was going to be a lineup or show up?
“The Witness: No sir, we weren’t.”
The court then ruled that the confrontation at the police station was in violation of defendants’ rights. The jury was instructed to disregard the identifications made at the police station.
Defense counsel also moved that Kuecken’s in-court identification of Hutton be stricken on the ground that the prosecution had failed to show that Kuecken could identify Hutton independently of the illegal confrontation. Counsel noted: “Here we have the identification of Mr. Hutton, at the closest, I believe 30 feet, running.” The court responded: “But isn’t that a question of credibility for the jury?” The motion to strike was denied.
Application of the Wade, Gilbert, and Stovall Trilogy
On appeal, defendant contends that the trial court erred in denying his motion to strike Kuecken’s ineourt identification, since the prosecution failed to establish by clear and convincing evidence that Kuecken’s in-court identification was based on observations of Hutton other than those obtained at the police station confrontation. Defendant relies upon United States v. Wade, supra, and the exclusionary rules there adopted. See 388 US at p 240 (87 S Ct at p 1939, 18 L Ed 2d at p 1164). The people contend that the principles enunciated in Wade and companion cases are inapplicable to the facts of this case. It is argued that Hutton was not entitled to counsel at the police station confrontation and that, therefore, the exclusionary rules do not apply.
In United States v. Wade, supra, it was held that the Sixth Amendment guarantees to an accused the right to counsel at pretrial lineups conducted for identification purposes. In the present case it is clear that at the time defendant was identified at the police station he did not have the assistance of counsel. We must therefore consider whether defendant’s right to counsel had attached at the time he was identified.
The precise holdings of Wade and Gilbert apply only to post-indictment lineups conducted for purposes of identification. The people seek to distinguish the present case on the ground that no indictment had been filed against Hutton. In light of the rationale of Wade, we cannot agree with this contention. In Wade, the Court noted that a com pelled confrontation between the accused and the victim or witnesses to a crime to elicit identification evidence is “riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” 388 US at p 228 (87 S Ct at p 1933, 18 L Ed 2d at p 1158). Accordingly, it was held that such confrontations constitute a critical stage of the prosecution at which an accused is entitled to counsel. These same dangers were present when Hutton was viewed by Kuecken through the one-way mirror, and we think it clear that counsel’s presence was required, notwithstanding the absence of a formal indictment. See People v. Childers (1969), 20 Mich App 639; People v. Fowler (1969), 270 Cal App 717 (76 Cal Rptr 1); People v. Martin (1969), 273 Cal App 724 (78 Cal Rptr 552); Palmer v. State of Maryland (1969), 5 Md App 691 (249 A2d 482). In this regard, we note that in Wade the Court specifically questioned the practice of using one-way mirrors for identification purposes. See United States v. Wade, supra, note 13 at p 230 (87 S Ct at p 1934, 18 L Ed 2d at p 1159). Moreover, many passages of the Wade, Gilbert, and Stovall opinions indicate that the Court did not intend to limit their effect to post-indictment lineups.
The people also contend that the action of the police in this case constituted an in-the-field identification, one wholly different from the confrontations in Wade and Gilbert. The people rely on Commonwealth v. Bumpus (1968), 354 Mass 494 (238 NE2d 343). In Bumpus, a suspect was apprehended by the police within minutes after a robbery and returned to the victim’s apartment for identification. The court characterized this on-the-scene identification as a “reasonable confrontation * * * in the course of (or immediately following) a criminal episode,” 354 Mass at p 501 (238 NE2d at 347), at which counsel’s presence was not required. Wade and Gilbert were held inapplicable in such circumstances. See also Smith v. State of Maryland (1969), 6 Md App 23 (249 A2d 732) ; United States v. Davis (CA2, 1968), 399 F2d 948; Bates v. United States (1968), 132 App DC 36 (405 F2d 1104); Russell v. United States (1969), 133 App DC 77 (408 F2d 1280).
It is evident from a reading of Bumpus and its siblings that courts are not inclined to hold that all pretrial confrontations require the presence of counsel. For example, in United States v. Davis, supra, p 951, the court observed that it is hard to believe that in Wade the court intended to prevent a police officer from collaring a man fleeing from the scene of an assault and from immediately thereafter asking the victim whether the man was the perpetrator. See also Commonwealth v. Bumpus, supra, at pp 501, 502 (238 NE2d at pp 346, 347), The problem, then, is fashioning an appropriate dividing line between those confrontations which might be characterized as “reasonable,” see Commonwealth v. Bumpus, supra, at p 502 (238 NE2d at p 347), notwithstanding an absence of counsel and those which require the presence of an attorney.
We are in accord with the views expressed by Judge Friendly in United States v. Davis, supra, at p 952:
“A clue to tlie dividing line may be furnished by the Court’s repeated use of the term ‘accused’ and its reference in Wade, 388 US at p 225 (87 S Ct 1926, 18 L Ed 2d 1149), to Escobedo v. State of Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977). We have particularly in mind the passage in that opinion, 378 US at pp 485, 486 (84 S Ct at p 1762, 12 L Ed 2d 983):
“‘\T\he investigation had ceased to be a general investigation of “an unsolved crime” * * * . Petitioner had become the accused, and the purpose of the interrogation was to “get him” to confess his guilt despite his constitutional right not to do so. * * * It would exalt form over substance to make the right to counsel, under these circumstances, depend on whether at the time of the interrogation, the authorities had secured a formal indictment. Petitioner had, for all practical purposes, already been charged with murder.’ ” (Emphasis supplied.)
At the time of the confrontation in the present case, we think it clear that Hutton had become the “accused.” He had been arrested, informed of his rights, taken into custody, and booked. The purpose of the confrontation at the police station was to build a case against the accused by eliciting identification evidence, not to extinguish a case against an innocent bystander. In this regard, it is significant that in Bumpus the court noted that “investigation of the episode was not really over.” 354 Mass note 2 at p 500 (238 NE2d note 2 at p 346). On this ground, we think the people’s reliance on Bumpus is misplaced.
Additional elements of the confrontation in this case lead us to conclude that counsel’s presence was required. The confrontation here occurred at the police station at the direct instance of the police. See People v. Martin, supra, at p 207 (78 Cal Rptr at p 557); Palmer v. State of Maryland, supra, at p 698 (249 A2d at p 487). Compare Bates v. United States, supra, at p 1106 (on-the-spot identification) ; Bussell v. United States, supra, at p 1284 (identification at scene of the crime). That Kuecken viewed Hutton through the one-way mirror was by design rather than by happenstance. Compare Smith v. State of Maryland, supra, at p 31 (249 A2d at p 737). Also, a significant amount of time had elapsed since Kuecken witnessed the breaking and entering. It cannot be said that the confrontation occurred “in the course of (or immediately following) a criminal episode.” Commonwealth v. Bumpus, supra, at p 501 (238 NE2d at p 347). (Emphasis supplied.) See also Russell v. United States, supra, note 20 at p 1284. Finally, the record in this case fails to disclose any necessity for an immediate confrontation. See Rivers v. United States (CA 5, 1968), 400 F2d 935, 940.
In summary, we conclude that the police station identification-confrontation constituted a “critical stage” in the proceedings against Hutton. At the time of the mirror viewing Hutton was the accused; as such, he should not have stood alone against the State. United States v. Wade, supra, at p 226 (87 S Ct at p 1932, 18 L Ed 2d at p 1157). Defendant had the right to the presence of counsel at the confrontation and this Sixth Amendment right had attached at the time he was viewed by Kuecken.
The Exclusionary Rules
In Gilbert v. California, supra, the Supreme Court sought to ensure recognition of the right to counsel at confrontations like that in the present case by adopting certain exclusionary rules. One such rule is that all testimony of identifications made at an illegal confrontation offered on behalf of the prosecution is per se inadmissible. 388 US at p 273 (87 S Ct at p 1957, 18 L Ed 2d at p 1186). Since defendant Hutton Avas not afforded counsel at the police station confrontation, Kuecken’s testimony that he identified Hutton at the confrontation was inadmissible at trial. “That testimony [was] the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’ ” Gilbert v. California, supra, at p 272, 273 (87 S Ct at p 1956, 1957, 18 L Ed 2d at p 1186), quoting Wong Sun v. United States (1963), 371 US 471, 488 (83 S Ct 407, 417, 9 L Ed 2d 441, 455). The trial court should not have permitted Kuecken to so testify in the presence of the jury. In this regard, defense counsel’s request for a separate record in order to determine the legality of the confrontation was well taken. In the future such requests, if timely made, should he honored. Once a claim of an illegal confrontation is raised, an evidentiary hearing should he held to determine the merits of the claim, and this hearing should he held outside the presence of the jury. See People v. Childers, supra.
Not all testimony identifying a defendant as the perpetrator of a crime is rendered inadmissible by the per se exclusionary rule fashioned in Gilbert, however. An in-court identification may still he made if, but only if, the prosecution is first able to “establish by clear and convincing evidence that the in-court identification [is based] upon observations of the suspect other than the lineup identification.” United States v. Wade, supra, at p 240 (87 S Ct at p 1939, 18 L Ed 2d at p 1164). Again, this showing is one which must be made outside the presence of the jury. A preliminary hearing should be held in order to resolve the issue of independent source, thereby determining the admissibility of any proffered in-court identification. And, contrary to the views of the trial court in this case, the issue of independent source is, in the first instance, a question for the court, even though that question involves issues of fact. See Stovall v. Demo, supra, at pp 299, 300 (87 S Ct at p 1973, 18 L Ed 2d at p 1205). Once the trial court determines that an in-court identification is admissible, the jury should then be limited to determining the truthfulness, i.e., weight and credibility, of any testimony identifying defendant as the perpetrator. Cf. People v. Walker (On Rehearing, 1965), 374 Mich 331, 338.
In determining whether a witness’ in-court identification is admissible, the trial court is to apply the test quoted in Wong Sun v. United States, supra, at p 488 (83 S Ct at p 417, 9 L Ed 2d at p 455):
“‘[Wjhether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”
United States v. Wade, supra, at p 241 (87 S Ct at p 1939, 18 L Ed 2d at p 1165). And among the factors to be considered in applying this test are: the witness’ prior opportunity to observe the alleged criminal act; the existence of any discrepancy between any pretrial description and the defendant’s actual appearance; any identification of another person before confrontation; photogenic identification before confrontation; failure to identify the defendant on a prior occasion; and the lapse of time between the alleged act and the confrontation identification. United States v. Wade, supra, at p 241 (87 S Ct at p 1939, 18 L Ed 2d at p 1165). No doubt, the witness will be asked whether he could identify the defendant at trial had he not seen him at the deficient pretrial confrontation. Any uncertainty in the witness’ response is also, we think, a relevant-factor. See United States v. Trivette (D DC, 1968), 284 F Supp 720, 724; Clemons v. United States (1968), 133 App DC 27 (408 F2d 1230, 1242). The trial court should thus consider the witness’ own testimony and all other evidence which supports, or undermines, the assertion of an identification “purged of the primary taint.” If the court determines that an identification at trial is capable of standing on its own, we think it advisable for the court to state on the record what evidence it believes justifies admission of the in-court identification. An appellate court is then in a better position to review alleged errors in the admission of such identifications.
Where, as in this case, the admission of an in-court identification is challenged, meaningful appellate review requires that the reviewing court reach one of the following conclusions. If it appears from the record by clear and convincing evidence that the in-court identification was not tainted by the prior identification or if the evidence shows beyond a reasonable doubt that admission of that identification was harmless, and there is otherwise no error, the conviction will be affirmed. See People v. Love (1969), 18 Mich App 228; People v. Wilson (1969), 20 Mich App 410; People v. Childers, supra; People v. Bratton (1969), 20 Mich App 523; People v. Nugent (1969), 21 Mich App 58; People v. Martin, supra. If it can be determined from the record that the in-court identification was tainted and that it does not appear harmless beyond a reasonable doubt, the conviction will be reversed. See People v. Menchaca (1968), 264 Cal App 2d 642 (70 Cal Rptr 843); People v. Coldbella (1969), 31 App Div 2d 827 (298 NYS2d 40); People v. Hill (1969) 32 App Div 2d 966 (303 NYS2d 14); Mason v. United States (1969), 134 App DC 280 (414 F2d 1176). If the record does not permit an informed judgment that the in-court identification had an independent source, or was harmless beyond a reasonable clonbt, the case will be remanded for an evidentiary hearing. See United States v. Wade, supra; People v. Ballott (1967), 20 NY2d 600 (286 NYS2d 1). In each of the above postures, the reviewing court in reaching its conclusion will independently scrutinize the record, giving customary weight to the findings of the trial court. See People v. Nugent, supra.
Finally, where, as here, identifications made at an illegal confrontation are erroneously admitted into evidence, an appellate court must determine whether the error was harmless. See Gilbert v. California, supra; People v. Childers, supra.
In this case, unlike the situation in Wade, see 388 US at p 242 (87 S Ct at p 1940, 18 L Ed 2d at p 1166), the issue of independent source was fully litigated at trial. The record on appeal thus permits this Court to make an informed judgment as to whether Kueeken’s in-court identification of defendant Hutton had an independent origin. Compare United States v. Wade, supra, at p 242 (87 S Ct at p 1940, 18 L Ed 2d at p 1166); Gilbert v. California, supra, at p 272 (87 S Ct at p 1956, 18 L Ed 2d at p 1186).
On direct examination, Kuecken’s testimony implied that he recognized defendant Hutton as the man he had seen running to his left at the scene of the crime. We think the following testimony could reasonably have been so construed by the jury.
“Q. Now, do you see the party here that was wearing the white T-shirt?
“A. Yes, sir.
“Q. And who is that?
“A. Mr. Hutton.
“Q. Mr. Hutton. Now, had you ever seen any of these two parties in the courtroom before this incident?
“A. No, sir, I hadn’t.”
On cross-examination, Kuecken testified that he was sure Hutton was the man he had seen running to his left. Further questioning, however, revealed the basis of Kuecken’s in-court identification. When asked how he was so sure, Kuecken replied: “I said it before and I probably say it again that’s the fellow they had down at the police station.” Defense counsel continued:
“Q. Right, that’s the only reason you know as far as his identification, is that he was at the police station, is that correct?
“A. Yes, and that they picked him up in the car and he was one of the fellows that ran across the street.
“Q. As far as your identification goes you’re sure that Mr. Hutton was in that police station?
“A. He was in the police station, yes.
“Q. But you are not sure that he was involved in a crime?
“A. I am very sure, yes.
“Q. How are you so sure?
“A. By the description.
“Q. In other words, you are basing your sureness on a white T-shirt?
“A. Yes.
“Q. How long did you see Mr. Hutton?
“A. Briefly.
* * #
“Q. So you saw Mr. Hutton out of the corner of your eye?
“A. I looked at him.
“Q. And he got as close as thirty feet?
“A. I would say.
“Q. And you saw him from five to ten seconds?
“A. Yes.
“Q. And that is what you are basing your identification on?
“A. That is the same man I saw across the street.”
Again, Kuecken was asked how he was so sure, and he replied: “By the same clothes. I didn’t get a look at his face.” Defense counsel then asked: “Could you identify Mr. Hutton if you had never seen him between the crime and today?” Kuecken responded: “I don’t think so.”
We think it clear that the record fails to show “by clear and convincing evidence that the in-court identification [was] based upon observations of the suspect other than the [illegal confrontation] identification.” United States v. Wade, supra, at p 240 (87 S Ct at p 1939, 18 L Ed 2d at p 1164). We reach this conclusion for three reasons. First, Kuecken’s opportunity to observe the man wearing a white T-shirt at the scene was limited. Compare People v. Wilson, supra; People v. Childers, supra; People v. Bratton, supra; People v. Nugent, supra. By his own testimony, Kuecken did not see defendant’s face — an admission which on this record undermines the assertion of an identification purged of the primary taint. Cf. People v. Menchaca, supra. There was nothing particularly outstanding in Hutton’s size or build which would permit an identification notwithstanding a failure to observe his face. Although Kuecken testified that the man he saw running to his left wore a white T-shirt and had sandy, blond hair, these observations alone are, we think, insufficient to permit a positive identification. See People v. M (1969), 32 App Div 2d 732 (302 NYS2d 156).
Second, the record reveals that Kuecken failed to identify Hutton on an occasion before trial. Compare People v. Childers, supra. The occasion was the confrontation itself. Although on direct examination Kuecken testified that he pointed to Hutton at the police station, he later testified that he was able to identify Hutton at the confrontation only by his white T-shirt and color of hair — features which alone, we feel, are too sketchy to permit a positive identification. Moreover, Officer Young, who attended the confrontation, testified that Kuecken could only identify Gerald Love, although he was given the opportunity to observe three suspects. Nothing was said about the other two, including Hutton. Under these circumstances,
“Since we cannot say that the [confrontation] identification most probably rested on an independent basis, we can hardly find ‘clear and convincing evidence’ of such an independent source for the subsequent in-court identification.” Mason v. United States, supra, at p 1182.
Finally, Kuecken by his own testimony stated that he did not think he could identify Hutton at trial had he not seen him at the illegal confrontation. We hold that this testimony, even if fully credited, was legally insufficient to permit an in-court identification to reach the jury. Cf. United States v. Trivette, supra; Clemons v. United States, supra.
We conclude that it was error for the jury to hear testimony implying that Kuecken recognized Hutton at trial as one of the men he observed at the scene of the crime. One issue remains. Was the admission of Kuecken’s identification testimony harmless error? Unless we are able to declare a belief beyond a reasonable doubt that the erroneous admission of such evidence did not contribute to Hutton’s conviction, we must reverse. Chapman v. California (1967), 386 US 18 (87 S Ct 824, 17 L Ed 2d 705).
At trial, the sole issue left to the jury was the question of identification. The only direct evidence that placed Hutton at the scene of the crime was Kuecken’s testimony that he identified Hutton at the police station and that he recognized Hutton at trial. Given the overwhelming importance of the witness’ identification of Hutton, we cannot say that Kuecken’s identification testimony did not contribute to defendant’s conviction. Although the circumstantial evidence connecting defendant with the crime was substantial, still we are unable to declare that the tainted identification testimony was harmless beyond a reasonable doubt. We reverse, notwithstanding the trial court’s instruction to the jury to disregard the confrontation identification. The damage had been done and,
“There are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to defendant, that the practical and human limitations of the jury system cannot be ignored.”
Bruton v. United States (1968), 391 US 123, 135 (88 S Ct 1620, 1627, 20 L Ed 2d 476, 485).
Our disposition makes it unnecessary to consider defendant’s other contentions. They are either unlikely to arise on retrial or will emerge in a greatly altered context of evidence.
Defendant’s conviction is reversed and the case is remanded for new trial.
All concurred.
“In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basie right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” United States v. Wade (1967), 388 US 218, 227 (87 S Ct 1926, 1932, 18 L Ed 2d 1149, 1157). (Emphasis supplied.) And see Stovall v. Denno (1967), 388 US 293, 298 (87 S Ct 1967, 1971, 18 L Ed 2d 1199, 1204).
But see Rivers v. United States (CA 5, 1968), 400 F2d 935, 939.
A witness testified at a suppression hearing that her main observation of defendant was of his boots and seeing him from the rear. She never saw liim faee to face. The trial court ruled that her view was too limited and that, as a matter of law, her identification testimony was inadmissible at trial. Despite this exclusionary ruling, the trial judge permitted the witness to identify defendant at trial and found that her identification was positive and definite. The appellate court held it was error to receive and credit such identification testimony. | [
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Lesinski, C. J.
On August 21, 1968 defendant Raymond Woodward was convicted of sodomy.
The police were summoned to 3514 Fourth Street by Harry Daher who reported hearing a “moaning” coming from a passageway alongside his home and seeing a “man on his knees bending forward” over a child. According to the testimony of the two responding officers, defendant was observed straddling the complainant and “possibly” moving his buttocks. The officers further testified that upon announcing their presence, defendant jumped up, with his trousers on, and attempted to run. He was tackled and placed under arrest.
The complainant was conveyed to Detroit General Hospital where he was treated for anal lacerations. While at the hospital, the complainant was interviewed by two policewomen. At trial the complainant, a six-year-old boy, could not recall any of the details of the crime, hut one of the policewomen testified, over objection, as to the details of the complainant’s statement in the hospital.
At the conclusion of the prosecution’s presentation, the following colloquy took place:
“The Court: Do you have any other witnesses?
“Mr. Keenan: * * * There is one other witness that was endorsed on the information, Patrolman Artmore whose testimony is merely cumulative, will not add any new evidence.
“The Court: Do you waive Patrolman Artmore, Mr. Harper?
“Mr. Harper: Your Honor, I do not waive him. It is up to the people whether they feel their case is sufficient, but I can’t possibly waive any witness in this case.
“The Court: Mr. Artmore was a partner of who?
“Mr. Keenan: He was the partner of a second pair of policemen that arrived at the scene. All he did was assist in taking the defendant to the scout car.
“The Court: Very well.
“Mr. Keenan: We would like to waive that witness.
“The Court: What about Mary Marcantonio?
“Mr. Keenan: She was Policewoman Bayer’s partner at the time testimony was taken from Robert White.
“The Court: What about Mary Forst?
“Mr. Harper: I would like to submit with regard to Miss Forst—
“The Court: (Interposing) Who is Mary Forst?
“Mr. Harper: She is the policewoman with whom we have had all our contact in this case prior to the commencement of this trial. I had understood Miss Forst to be the officer in charge and all our communications and discussions have been with Miss Forst.
“The Court: Where is Miss Forst?
“Mr. Keenan: She is on furlough, your Honor, and I did not know about her furlough status until the day the trial started and Policewoman Egg’ers is filling in for her in that capacity. There is no testimony she can present to bear on the facts.
“The Court: She has no personal knowledge of anything?
“Mr. Keenan: No, your Honor, she does not.
“Mr. Harper: Very well. May I say, your Hon- or, we are entitled to benefit of the presumption we might have if the testimony of the other policewoman witness was considered by this Court. If obviously they were to be res gestae based upon statements taken from the child complainant, I think it is presumed that any statements that these other parties might have taken would be—
“The Court: (Interposing) Where is the evidence these other parties took any statements?
“Mr. Harper: It is obvious from the point of defense Miss Porst investigated this case, was charged with its investigation which I do not have to take—
“The Court: (Interposing) Counsel, you have known at least since this information was filed that Miss Porst was endorsed on here as a witness.
“Mr. Harper: Indeed.
“The Court: You could have subpoenaed her and had her here if you wanted to.
“Mr. Harper: I respectfully submit there is no need for the defense to subpoena witnesses endorsed on the information. It is believed by the defense they are endorsed because they are res gestae witnesses.
“The Court: They arc not endorsed necessarily because they are res gestae witnesses.
“Mr. Harper: I cannot see — •
“The Court: (Interposing) You are entitled to endorsement also of the witnesses whom the prosecution thinks it might call. It must endorse res gestae witnesses and it must call res gestae witnesses, but it does not have to call all of the witnesses whose names are endorsed on the information.
“Mr. Harper: The defense in this instance stands on its right to rely upon the presence of witnesses known to be material to the case if endorsed on the information.
“The Cotirt: The only additional witness you propose to call is the doctor.
“Mr. Keenan: That is correct.
“The Court: You may proceed, Mr. Harper.”
It is defendant’s contention that the trial court’s failure to require production of all of the indorsed witnesses constituted reversible error. Plaintiff’s counter argument is based upon two grounds. First, that only res gestae witnesses are required to be indorsed and produced at trial and since the witnesses in question were not res gestae witnesses, no error was committed. Second, that the defendant failed to object to the trial court’s action and is thereby precluded from complaining on appeal.
We do not find it necessary for resolution of this issue to determine whether the witnesses were res gestae witnesses. The rule as to the prosecutor’s duty after indorsement was clearly and concisely stated in People v. Kern (1967), 6 Mich App 406:
“Page was not a res gestae witness and therefore the prosecutor was not required to indorse his name on the information. See People v. Davis (1955), 343 Mich 348. However, if the prosecutor does indorse the name of such a witness he must secure his presence in court and the defendant is entitled to rely upon the prosecutor’s duty to produce him. See People v. Whittemore (1925), 230 Mich 435; People v. Lummis (1932), 260 Mich 170. Nevertheless, the prosecutor may be excused from producing that witness if he makes a showing of due diligence.” (Emphasis supplied.)
In this case the prosecutor did not make any showing upon which the trial judge could correctly conclude that the attendance of the witnesses could not be secured. There was no evidence that policewoman Mary Forst, although “on furlough,” was not available to testify. The prosecution did state that patrolman Artmore’s testimony would be “merely cumulative.” Such a statement does not amount to a satisfactory “showing of due diligence.” People v. Kern, supra. Further, the record is barren of any showing as to the reason patrolwoman Mary Marcontonio was not produced. The defendant having expressly indicated he could not waive any indorsed witnesses, it was the prosecutor’s duty to produce the police officers, at least for cross-examination, or to make a proper showing of why they were not or could not be produced at the trial. People v. Kern, supra; People v. Barker (1969), 18 Mich App 544; People v. O’Dell (1968), 10 Mich App 87.
The plaintiff’s second point was answered in People v. O’Dell, supra, at 94:
“The prosecutor claims that a defendant must request production of indorsed witnesses and his failure to do so will be deemed a waiver of their production. * * * We have already indicated it is, in general, the prosecutor’s duty to produce, and give the defendant the opportunity to examine, all indorsed witnesses, even those indorsed witnesses who are not res gestae witnesses. * * * Here it is apparent the trial judge decided the prosecutor had satisfactorily explained his nonproduction of Arthur Murry and Maria Grigorian. It would have been pointless, futile, indeed superfluous, for defendant’s counsel thereafter to enter request for their production.” (Emphasis supplied.)
In the instant case the trial court clearly indicated its conception of the relative law when it said: “You could have subpoenaed her and had her here if you wanted to.” Defense counsel attempted to disagree but was cut short by the trial court. We fail to see what further objections or requests would have accomplished.
Defendant’s next claim is that the admission of policewoman Bayer’s testimony detailing the complainant’s hospital statement was reversible error. Defendant argues that the testimony is hearsay and, therefore, admissible, if at all, as corroborative evidence only. Plaintiff argues that the testimony is admissible as direct evidence under the res gestae exception to the hearsay rule. It is necessary to remember that at trial the six-year-old complainant was unable to recall any of the events of the day in question or to identify the defendant as his assailant. Thus, the testimony of the policewoman that the complainant had stated the defendant “put his peepee in my butt” is of utmost importance.
The common-law allowed testimony establishing the fact of a complaint of a rape or other sexual crime, but refused to permit the details of the complaint to be recited. However, Michigan, in the case of People v. Gage (1886), 62 Mich 271, appeared to create an exception to this rule. In that case the mother of the ten-vear-old prosecutrix was permitted to testify, over objection, concerning what the girl told her “relative to the offense [of assault with intent to rape],” when questioned by the mother some three months after the offense. The girl also testified stating that the defendant threatened to “give her an awful whipping” if she told her father of the attack. The Court discussed the general common-law rule but affirmed the conviction stating:
“But we think the rule not an inflexible one, and ought to yield where the particular circumstances of the case make it inapplicable; as where the party outraged is of tender years, and her silence is the direct consequence of fears of chastisement induced by threats of the perpetrator of the wrong. The reason of the rule admitting the fact that complaint was made, and excluding the complaint itself, is founded, aside from its being hearsay, by those courts which do not treat it as part of the res gestae, upon the danger of allowing a designing female to corroborate her testimony by statements made by herself to third persons, and the difficulty of disproving the principal fact by the accused. But some courts hold that the evidence that complaint was made is not received merely as corroborative of the statement of the prosecutrix, hut as part of res gestae, where they are made immediately after the outrage complained of, and this is the holding of our own Court: Lambert v. People, 29 Mich 71; People v. Brown, 53 Mich 531.
“If the complaint made immediately after the occurrence constitutes part of the res gestae, it would seem that not only the fact that complaint was made, but the complaint made, should be admitted. Besides, the reason upon which the rule of exclusion is based, namely, the difficulty of disproving the accusation, no longer exists in this State, where the accused is permitted to testify in his own behalf. We think in this case there was no error in admitting the testimony of the mother of the child.”
Prom the above quoted language it appears that the statement was admitted as part of the res gestae. See, also, People v. Glover (1888), 71 Mich 303, and People v. Bernor (1898), 115 Mich 692.
However, in People v. Hicks (1893), 98 Mich 86, 89, and People v. Duncan (1895), 104 Mich 460, 464, the Supreme Court took the position that the testimony in People v. Gage, supra, was admitted not as part of the res gestae but, rather, as corroborative of the witness’ testimony because the witness was “of tender years” and because “her silence * * * was the direct consequence of fears of chastisement.”
Subsequently, in People v. Marrs (1900), 125 Mich 376, the Supreme Court made the following pronouncement :
“The witnesses were allowed to detail the statements made by the prosecutrix to them in regard to the commission of the offense. It is the well-established rule that the people may show when, where, and to whom the prosecutrix made complaint. The details of her statement are not admissible, except as they are brought out on cross-examination. * * * If the statements are so intimately connected with the times and place of the crime as to be a part of the res gestae, they are then admissible. The only other exception to the rule is in the case where the victim is a girl of tender years. People v. Gage, supra; Hannon v. State, 70 Wis 448 (36 NW 1). The complaint by the prosecutrix in this case was too remote to form a part of the res gestae. Neither did she come within the other exception to the rule. She was not of such weak mind as to bring the case without the rule. It was therefore error to permit her father, mother, and sister to state the circumstances of the commission of the crime as detailed to them by her.”
If it were not for later Michigan cases, we would hold that Michigan in fact had created two exceptions to the hearsay rule for statements of this nature, despite the language of People v. Gage, supra. However, in People v. Corder (1928), 244 Mich 274, the Court divided evenly upon the question of the admissibility of the details of complaints for statutory rape. The complaints were made to the victim’s mother and doctor seven and eight days, respectively, after the assault. Three justices cited People v. Hicks, holding that the testimony was properly admitted as corroborative of the prosecutrix’s statement. Three other justices (joined by one additional justice in result only) found that the statement was “too remote to be part of the res gestae” and since there was “no claim of coercion or threats operating to delay complaint, * * * the holding in People v. Gage does not apply.” Thus the latter justices took the position that Gage stood for the proposition that the statements were admissible if part of the res gestae and that the age of the prosecutrix and the amount of coercion went only to the question of contemporaneousness.
Shortly thereafter, however, the Court, in People v. Baker (1930), 251 Mich 322, noted the split in People v. Corder, supra, and stated:
“The admissibility of details of complaint, in the case of very young girls, has been permitted on a liberal extension of the res gestae doctrine. People v. Gage, supra; People v. Brown, 53 Mich 531. The rule in this State is that where the victim is of tender years the testimony of the details of her complaint may be introduced in corroboration of her evidence, if her statement is shown to have been spontaneous and without indication of manufacture; and delay in making the complaint is excusable so far as it is caused by fear or other equally effective circumstance.”
This case, therefore, appears to combine Gage, Hicks and Corder to create a new rule: admissible as res gestae corroborative evidence.
Finally, in People v. Bonneau (1948), 323 Mich 237, the Court cited Gage, Glover, Bernor and Baker and held:
“The details of a complaint made shortly after the occurrence of the event are admissible as part of the res gestae.
“In the instant case the girl was but seven years of age, frightened by defendant’s threats and thereby deterred from telling anyone of the offense. Under such circumstances her statement to her mother, made three days after the event, may be treated as a part of the res gestae equally as if made upon first opportunity shortly after occurrence of the offense. The mother’s testimony as to details of the girl’s statement to her was admissible.”
Although this language sounds like a broad res gestae rule, the facts of the case reveal that the testimony was actually corroborative only.
Since the modern view is towards increasing the admissibility of testimony, we opt to follow the lead of People v. Bonneau, supra, and admit the testimony of policewoman Bayer in the instant case. We do so because we consider the complainant’s statement to be part of the res gestae, having been made under the continuing excitement and effect of his emotional experience. Once the inherent trustworthiness of this type of statement is recognized the need to limit its admissibility to corroborative use only is obviated. Further, under the facts of this case, the age of the complainant and the nature of the crime charged all but eliminate the possibility of youthful fabrication.
Defendant raises one other issue on appeal. Although not necessary for our decision, it should be discussed to prevent a recurrence on retrial. Upon cross-examination of the defendant, the following colloquy took place:
“The Court: What is that you have in your hand there ?
“Mr. Keenan: This is the defendant’s prior record, your Honor.
“The Court: I don’t want to see it. How many pages have you got?
“Mr. Keenan: Three pages, your Honor.”
We cannot conceive of any necessity justifying the trial court’s question. Although we express no opinion as to the effect of the question, we trust the desire of the trial judge to prevent the inference of error will prevent recurrence of the incident.
Eeversed and remanded for new trial.
All concurred.
MCLA § 750.158 (Stat Ann 1962 Rev § 28.355).,
MOLA § 767.40 (Stat Ann 1969 Cum Supp § 28.980).
See annotation, 83 ATjB2cI 1368.
See McCormick, Evidence, Ch 35, p 626 for a discussion of the future of the hearsay rule,
The statement made by complainant to policewoman Bayer was made during the continuing investigation of the alleged assault upon the complainant. He was taken from the scene of the alleged assault in the custody of police authority, taken to his home in the presence of police authority from where in the presence of his mother lie was taken under police authority to the hospital where he was questioned by policewoman Bayer. If we were to roly on the testimony of Harry Daher, the man who reported the incident to the poliee, it occurred about noon on April 28, 1968, some 7-1/2 hours before making of the statement. If we rely on the testimony of Patrolman Gary Howell and Officer Teddy S. Proetor, the alleged assault occurred at 6:20 p.m. on April 28, 1968, some 1 hour and 40 minutes before the complainant’s statement to policewoman Bayer. In either event under the circumstances of this case the statement is not so remote in time as not to be part of the res gestae.
McCormick, supra, note 4, p 578, cites the following definition of , res gestae from the case of Allen v. Mack (1942), 345 Pa 407, 410 (28 A2d 783, 784) :
“A res gestae declaration may be defined as a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.” | [
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Per Curiam.
On August 30, 1965, a judgment of divorce was granted in St. Clair county circuit court to plaintiff which awarded him custody of two minor children. On March 31, 1966, plaintiff filed a motion to amend the divorce judgment asking for permanent custody of a minor child, Scott Ellis Damaschke, conceived by defendant Clara Jean Damaschke during the term of the marriage and born January 19, 1966, after a full-term pregnancy. Defendant had been committed to the Pontiac State Hospital in 1961.
Temporary custody was granted to the plaintiff pending the outcome of the motion. Thereafter the prosecuting attorney filed a petition praying for waiver of jurisdiction over the child to the probate court on the grounds that it was for the child’s best interest.
On the day plaintiff’s motion was to be heard, the trial court, without hearing any testimony or oral argument, but on the basis of a written report of the Friend of the Court, denied plaintiff’s motion and waived jurisdiction of the child to the probate court.
The plaintiff appealed to this Court, and in Damaschke v. Damaschke (1967), 7 Mich App 478, the judgment of the trial court was reversed on the grounds that in the absence of a stipulation of the parties a report of the Friend of the Court could not be used in evidence for the purpose of determining the custody of the child.
Pursuant to that holding a second hearing was held wherein testimony was taken. The plaintiff, his present wife, Emma Joy Damaschke, and Mary M. Fitzgerald, a professor of social work at Wayne State University, were the only persons to testify at the hearing. All three testified on plaintiff’s be half. The trial judge refused to award plaintiff custody of the child.
The social worker testified that in her professional opinion the child’s best interest would be served by leaving the child in the plaintiff’s home, and that irreparable injury would be suffered by the child if he were taken from that home. The child, now three years old, has lived with the plaintiff and his present wife since he was three months old. Both the plaintiff and his present wife desire that the plaintiff be awarded permanent custody. There is no testimony which would tend to rebut the evidence that the best interests of the child would be served by awarding his permanent custody to the plaintiff. The best interest of the child is our main concern; on this record we find that the trial judge clearly erred in denying permanent custody to the plaintiff. The circuit court had jurisdiction to determine custody of this minor child and should have granted it to the plaintiff. In re Mark T (1967), 8 Mich App 122, 142, et seq.
Reversed. Judgment for plaintiff granting him permanent custody. Costs to plaintiff. | [
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Lesinski, C. J.
Defendant Donald Asker was convicted following a jury trial for possession of marihuana, MOLA § 335.153 (Stat Ann 1957 Rev § 18.1123). This appeal is brought as of right.
It is defendant’s position that reversal is required due to application of the “180-day” rule statute, MCLA §§ 780.131, 780.133 (Stat Ann 1969 Cum Supp §§ 28.969[1], 28.969[3]).
In the instant case there were a total of seven adjournments and • postponements which delayed the commencement of trial for a full year following the preliminary examination. Arraignment on the information was not held for nearly six months after its first scheduled date. Four adjournments occurred following expiration of the statutory period.
Of the reasons presented in the record for the delays, two require attention. First, the record reveals that several of the delays were caused by the failure of defendant to be present. At all relevant times defendant was in the custody of the Department of Corrections at Jackson prison, and the prosecutor had notice of this fact. It was the position of the trial court, in denying defendant’s motion, that defendant had the duty to present himself for trial and failure to do so could not be attributable to the prosecutor. We disagree.
Where, as here, defendant is being involuntarily (though legally) detained by the state, it becomes the duty of the people to have defendant present at all essential stages of trial. When the prosecutor fails to produce defendant, thus necessitating adjournment, such does not constitute a waiver by defend ant of tbe statutory rights created by tbe “180-day” rule.
Tbe second reason given for tbe delays is that they resulted from requests of defense counsel. In People v. Hendershot (1959), 357 Mich 300, 304, tbe Court stated;
“When tbe people bave moved tbe case to tbe point of readiness for trial and stand ready for trial witbin tbe 180-day period, defendant’s delaying motions, carrying tbe matter beyond that period before tbe trial can occur, may not lie said to bave brought the statute into operation, barring trial thereafter.”
Defendant, however, denies that any of tbe adjournments were at bis request.
We are, thus, presented with a factual dispute, fundamental to the disposition of tbe case. Tbe rec ord does not provide sufficient information to resolve the matter.
We, therefore, remand for the purpose of establishing a testimonial record detailing the reasons, if any, for each of the delays in the proceedings of the instant case, and a determination as to which party initiated each delay. Upon completion of the testimonial record, the trial court shall make a redetermination of its prior ruling of defendant’s motion in the light of this opinion and the testimonial record.
In the event the “180-day” rule is found not to have been violated, the trial court shall return the record on appeal and the record established on remand to this Court for final determination of the remaining issues raised on appeal.
Remanded for actions not inconsistent with this opinion.
All concurred.
The delays referred to hereinafter do not include the adjournment of August 2, 1967, necessitated by the civil disorder in Detroit. That delay was clearly beyond the control of the prosecutor. Brief adjournments under such circumstances are consistent with good-faith diligence.
Absence from trial due to imprisonment is not voluntary within the meaning of People v. Gant (1961), 363 Mich 407, which held that voluntary absence can waive defendant’s right to be present at his trial.
The following statements by the prosecutor appear on the record below:
“Mr. Weiswasser: If your Honor please, there are certain factual matters that do not appear on the record. I have discussed this matter with the officer in charge of the ease, Mr. Kapagian, and he tells me that several times during the pendency of this particular case counsel indicated that they would like to have this matter adjourned pending the outcome of the disposition of the matters against the eodefendant, and that the police and the people were ready to proceed at any time. * * *
“Mr. Weiswasser: Yes, During all this time there were several adjournments of the examination, all at the request of defense counsel. And I can only go by what the officer tells me. He tells me that defense counsel indicated to them that they wanted to wait until there was a complete disposition on this matter involving the other codefendants; and that the only time that this motion came to being filed was when the parole board took the aetion of incarcerating the defendant for violation of parole. * * *
“Mr. Weiswasser: I know. But preliminary to this — I don’t know what 180 days he is talking about. He can’t be talking about 180 days preceding the August period, because you have had all kinds of dates set for examination which were adjourned at the request of counsel.”
Defendant denied requesting adjournments stating during argument below: “They were not adjourned at request of counsel.”
Later, when asked by the court whether he would have been prepared to try the ease on August 2, 1967, defendant’s attorney stated: “I was ready for trial. Had it not been for the riot I would have been ready for trial on that date,”
See People v. Thomas (1970), 21 Mich App 465, an appeal following a similar remand. | [
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Per Curiam.
Defendant was convicted by a jury of armed robbery, MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797). He contends on appeal that the prosecution’s failure to produce at trial an indorsed res gestae witness constituted reversible error, and also, that there was insufficient evidence to find him guilty beyond a reasonable doubt.
The wife of the complaining witness, who was also robbed, did not testify at the trial. The complainant positively identified defendant as the perpetrator of the robbery, but before trial his wife had been unable to make a positive identification. The trial had been adjourned 10 to 12 times and the wife-witness had been available until the last four times. At the time of trial, she was in Alaska, staying with relatives. A police officer testified that he had read a letter from a doctor relating the witness’s extremely nervous condition; the officer also testified that he had spoken to the doctor, who again stated that because of her nervous condition, he did not want her to testify.
The trial court ruled that reasonable efforts had been made by the prosecution to produce this witness, and instructed the jury to assume that her testimony would have been favorable to the defendant. The question of due diligence in attempting to pro duce an indorsed res geslae witness is a matter within the judicial discretion of the trial court, and the court’s ruling will not be overturned unless there is a clear abuse of its discretion. People v. Tiner (1969), 17 Mich App 18, 20. See People v. Kern (1967), 6 Mich App 406; People v. Ivy (1968), 11 Mich App 427, 430, 431, leave to appeal denied, 381 Mich 815. We find no such abuse here.
A review of the record shows sufficient evidence, if believed by the jury, to justify a finding of guilt beyond a reasonable doubt. People v. Fred W. Thomas (1967), 7 Mich App 519, 539.
Affirmed. | [
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Bronson, J.
At a nonjury trial in the Lenawee County Circuit Court, Wallace Gilbert, the defend ant, was- convicted of statutory rape. He was sentenced to a term of one year and six months to ten years in prison. Defendant then filed a motion for a new trial, which was denied. Prom this verdict, defendant appeals.
The alleged rape occurred on January 1, 1967. . Some seven months later the complainant went to the police and charged- defendant with having raped her. At this time the complainant was some seven months pregnant.
On July 28,-1967 David Snyder, a detective with the Lenawee County sheriff’s department, saw defendant driving through Cement City. Detective Snyder followed defendant to his home and there questioned him in regard to the allegations made by the complainant. On July 28, 1967 detective Snyder was in Cement City investigating a crime not connected with defendant. He was in uniform and driving a semi-marked patrol ear. Detective Snyder testified that there had been several previous attempts to contact defendant at his home; that he had talked with defendant’s mother on one occasion and with his father several times. On July 28, 1967 detective Snyder followed defendant to his home and into the driveway, walked to the' ear in which defendant and his brother were sitting and “advised him that I wanted to talk to him and asked that he come back to the patrol car with me which he did.” Detective Snyder then “told him that we were- investigating a complaint that had been made * * * and proceeded to ask him if he knew anything about the incidents as stated.”
Defendant’s defense was alibi. At trial, he claimed that he had not been with complainant on the night in question. Over objection of defense counsel detective Snyder was allowed to testify, for purpose of impeachment, that in the conversation on July 28, 1967 defendant had admitted being with complainant on January 1,1967.
In Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977), the United States Supreme Court stated:
“Nothing we have said today affects the powers of the police to investigate ‘an unsolved crime,’ * * * by gathering information from witnesses and by other ‘proper investigative efforts.’ * # * We hold only that when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession— our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.”
In Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR 3d 974), the United States Supreme Court stated:
“This was the spirit in which we delineated, in meaningful language, the manner in which the constitutional rights of the individual could be enforced against overzealous police practices. It was necessary in Escobedo, as here, to insure that what was proclaimed in the Constitution had not become but a ‘form of words,’ Silverthorne Lumber Company, Inc., v. United States (1920), 251 US 385, 392 (40 S Ct 182, 183; 64 L Ed 319, 321), in the hands of government officials. And it is in this spirit, consistent with our role as judges, that we adhere to the principles of Escobedo today.
“Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards ef fective to secure the privilege against self-incrimination.”
The Court in Miranda then went on to state that:
“By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. * * #
I am unable to say with conviction, after reading this record, that the requirements of Escobedo and Miranda are not applicable under the facts here presented.
It is urged that when sheriff’s detective Snyder “advised” defendant tó walk back to the patrol car the scope of the investigation had not narrowed so greatly as to have shifted the process “from investigative to accusatory”.
I cannot accept that argument. Ordinarily the reporting of a crime to the police is not sufficient in and of itself to transform any conversation with a possible suspect into an official accusation. However, the nature of the charge involved here is such that the accusatorial finger had most assuredly been pointed, and pointed specifically, at Wallace Gilbert and no one else. Thus Gilbert was the prime and as far as this Court knows the only suspect. There was but one accused and that one was Wallace Gilbert. The unwed complainant, already seven months pregnant at the time, had presented herself at the Lenawee County sheriff’s office and named Wallace Gilbert as the rapist.
Under the circumstances peculiar to this case, when the sheriff’s detective “advised” Gilbert that he wanted to talk to him in his police car and in formed defendant of the accusation made against him, there was sufficient custodial duress at that time to require adherence to the principles laid down in Escobedo and Miranda That the formal complaint did not issue until November 3, 1967 does not alter the fact that the accusatorial finger had already-begun by July 28, 1967 to point at the defendant. Defendant was not told by detective Snyder that he had certain constitutionally-protected rights, among which were the right to remain silent and the right to have counsel present. Due to the possible taint attached to the information received by detective Snyder on July 28, 1967 and the weight given by the trial judge to detective Snyder’s testimony, I would remand for a new trial, excluding testimony by detective Snyder as to the conversation between the detective and defendant on July 28, 1967. See People v. Marsh (1968), 14 Mich App 518.
T. M. Burns, J. concurred.
MOLA § 750.520 (Stat Ann 1954 Rey § 28.788).
“4 This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.”
See Kamisar, “Custodial Interrogation” within the Meaning■ of Miranda, in Criminal Law and the Constitution — Sources and Commentaries (1968), p 341, where Professor Kamisar states:-
“I think the Supreme Court has made it fairly plain that if a man is not in custody, is not really restrained, no warning has to be given. The function of the Miranda warnings is to dispel the coercion inherent in police custodial surroundings and the interrogation process, to relieve the suspect of anxieties generated when he is torn from a familiar environment and thrust into a police-dominated atmosphere, or to relieve him of the typically lesser but still substantial anxieties created when he is restrained ‘on the street’ by uniformed officers and questioned there or in the squad car.” (Emphasis added.)
The trial court, in its opinion, found:
“In our case, it was apparent to the court that the defendant knew about all the rebuttal witnesses except Mr. Snyder.
“The principal concern of the court here is whether or not they should have been called as part of the people’s principal case. David Snyder could not have been. In fact if the defendant hadn’t taken the stand, Mr. Snyder could not have testified. If the defendant had admitted making the statement Mr. Snyder attributed to him, Mr. Snyder could not have testified. Here the statement claimed to have been made would not have had a bearing on the merits of the case that the Supreme Court rejected testimony in the Kennedy ease did [sic]. Mr. Snyder’s testimony was valuable in adding weight to the other testimony tending to impeach the defendant.”
Upon completion of the taking of testimony the trial judge stated:
“I am convinced of this as I read these notes and as I listened to these witnesses there are two witnesses here and two witnesses alone who'I am willing to believe, who were telling it to the best of their ability the whole truth of this evening. Those two witnesses were Lotha Kelley and Dave Snyder.
“I’m convinced that David Snyder was telling the truth when he said he talked to the defendant and he said that sometime on or about January first he had been out with the complaining witness.
“I am convinced that the complaining witness and Evelyn and Tim and the defendant at times deliberately did not tell us the truth from the witness stand.” (Emphasis added.) | [
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Holbrook, J.
This is an action for mandamus by plaintiff to require defendant Wayne County Clerk to certify her election to the office of precinct delegate to the fall county convention of the Republican Party.
Plaintiff received two votes and the county clerk refused to declare her elected. Defendant refused to certify her election based on PA 1968, No 136 which provides:
“The required number of electors who receive the highest number of votes for delegates to the fall county convention of any political party, but not less than three votes, shall be declared by the board of primary election inspectors to be elected.”
The Wayne County Circuit Court ruled that the statute did not infringe upon any provisions of the state or federal constitutions, and that PA 1968, No 136 amended chapter 26 of the State election code (MCLA § 168.621 et seq. [Stat Ann 1956 Rev § 6.1621 et seq., as amended]), through construction in order to give it effect because the act purportedly amended chapter 25 (MCLA § 168.591 et seq., as amended [Stat Ann 1956 Kev § 6.1591 et seq., as amended]) which had been nullified by amendment.
The issues raised on appeal are: (1) Is PA 1968, No 136, constitutional? (2) Can PA 1968, No 136, be applied to chapter 26 of the State election code through construction?
The fundamental law, Michigan Constitution of 1963, art 2, § 1, provides:
“Every citizen of the United States who has attained the age of 21 years, who has resided in this state six months, and who meets the requirements of local residence provided by law, shall be an elector and qualified to vote in any election except as otherwise provided in this constitution. The legislature shall define residence for voting purposes.”
Michigan Constitution of 1963, art 2, § 4, provides in part as follows:
“The legislature shall enact laws to regulate the time, place and manner of all nominations and elections, except as otherwise provided in this constitution or in the constitution and laws of the United States. The legislature shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting.”
The question before us is whether the legislature has the power to require a candidate for precinct delegate to the county convention to receive a minimum number of votes in order to be elected. Plaintiff asserts that the requiring of a minimum number of votes for election as provided in the act is uncon stitutional because it destroys the votes of electors for candidates for the office of delegate to the county convention, if such candidate receives less than three votes.
The power of the legislature in regulating elections is set forth in the case of Brown v. Board of Election Commissioners of Kent County (1913), 174 Mich 477, 479, 480:
“The only limitation upon the power of the Michigan legislature to enact laws is our own Constitution and the Federal Constitution. It follows, then, that this legislation must stand, unless it can be pointed out that it infringes some provision of the State or Federal Constitution. * * * This Court has on several occasions considered the limiting force of these provisions upon legislative enactments, and the conclusion reached was that the legislature may regulate, but cannot destroy, the enjoyment of the elective franchise. * * * In commenting upon the degree of restraint of these constitutional provisions upon the power of the legislature in Common Council of City of Detroit v. Rush (1890), 82 Mich 532, Mr. Justice Grant said:
“ ‘Under these broad provisions, it has been frequently held to be the exclusive province of the legislature to enact laws providing for the registration of voters, and the time, place, and manner of conducting elections. It may regulate, but cannot destroy, the enjoyment of the elective franchise. Whether such regulation be reasonable or unreasonable is for the determination of the legislature, and not for the courts, so long as such regulation does not become destruction.’ ” Attorney General, ex rel. Edwin F. Conely, v. The Common Council of the City of Detroit (1889), 78 Mich 545.
In People, ex rel. Luther F. Conrad, v. Stone (1889), 78 Mich 635, 639, it is stated:
“In this country it is generally understood that, in the absence of any statutory provision expressly requiring more, a plurality of the votes cast will elect. It is only in cases when the statute so provides that a majority of all the votes cast is necessary to the choice of an officer. McCrary, Elec. § 197; Cush. Leg. Ass. § 118; Paine, Elec. § 571; Cooley, Const. Lim. 619. Mr. Cushing says:
“ ‘In elections in which the principle of plurality is adopted, the candidate who has the highest number of votes is elected, although he may have received but a small part of the whole.5 55
The election of precinct delegates to county conventions is provided for by our legislature under the grant of power as contained in our Constitution. This power we rule is properly exercised as long as it is regulation and does not have the effect of destroying an elector’s right to vote by not counting his vote.
The statutory requirement that a candidate for precinct delegate receive a minimum of three votes does not destroy an elector’s right to have his vote counted any more than in a situation wherein a candidate for elective office is required to receive a majority of the votes cast for that office. The same is true in the matter of certain propositions on the ballot requiring a two-thirds vote. The vote of the elector is counted and given full effect, however, the mere right to have the vote counted is not the sole basis for determining that the electors’ will shall prevail.
The legislature was constitutionally empowered to regulate elections. Within the exercise of that power, it is entitled to prescribe that elections be representative of the will of the electorate of a given district so long as it has equal application. The regulation exercised must be reasonable. We do not find that a requirement that a candidate receive a minimum of three votes for precinct delegate is an unreasonable exercise of the legislature’s power to regulate elections. The requirement has equal application in this state.
As the office of precinct delegate is fundamentally a matter of internal operation of a political party, it is not unreasonable for the legislature to provide for the manner of election to the office of precinct delegate to require a candidate for that office to receive a minimum of three votes. See Lynch v. Torquato (CA 3, 1965), 343 F2d 370.
It is argued that Reynolds v. Sims (1964), 377 US 533 (84 S Ct 1362, 12 L Ed 2d 506), has application in this case. We do not agree. The issue before us does not pose the “one man, one vote” question as the composition of the precinct delegate districts is not challenged.
Our holding in this ease is not to be read to the effect that in every instance the legislature may prescribe the minimum number of votes that shall be required to elect a candidate for public office.
We now turn to the second issue raised on appeal; can PA 1968, No 136 be applied to chapter 26 of the state election code through construction? Our decision herein is based upon the conclusion that the act amends chapter 26.
The lower court correctly stated the principle that a court will not assume that the legislature passed an act that serves no useful or intelligible purpose, if the statute is susceptible to an interpretation by which this consequence can be avoided. The courts of the state have the power to construe the laws of the state. The general intent of the act as a whole must be considered; effectuation of the purpose of a statute should, if possible, prevail over its strict letter when construing the statute. Northville Coach Line, Inc., v. City of Detroit (1967), 379 Mich 317.
Affirmed. No costs, a public question being involved.
All concurred. | [
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Per Curiam.
Convicted by jury verdict of and sentenced for robbery unarmed, MCLA § 750.530 (Stat Ann 1954 Rev § 28.798), defendant appeals. He contends on appeal that tbe trial judge erred reversibly in two instructions given to tbe jury, and be admits no requests to instruct were made nor was there objection to tbe instructions as given.
Commencing witb People v. Mallory (1966), 2 Mich App 359, this Court has consistently held that to preserve alleged errors in instructions for review, tbe mandates of GCR 1963, 516.2 must be complied witb. Tbe exceptions to tbis consistent bolding have involved omissions to instruct or errors in instructing on basie and controlling issues. In tbe latter situation, we have noted tbe error although GCR 1963, 516.2 was not complied witb to prevent manifest injustice. Tbis, we believe, is consistent witb tbe intent and philosophy of MCLA §§ 768.29 and 769.26 (Stat Ann 1954 Rev §§ 28.1052 and 28.1096) and GCR 1963, 529.1. It is also consistent witb tbe unanimous view of tbe Supreme Court. Hunt v. Deming (1965), 375 Mich 581.
In tbe case before us, defendant relies on two excerpts from the instructions. Standing alone they are erroneous on basic and controlling issues. In context witb tbe entire instruction, they are not erroneous. We view tbe instructions as a whole. People v. Fred W. Thomas (1967), 7 Mich App 519.
Affirmed. | [
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] |
R. B. Burns, J.
This case arises out of condemnation proceedings instituted under MOLA §§ 213.361-213.391 (Stat Ann 1969 Cum Supp §§ 8.261 [1]-8.261[31]).
In 1966 the road commission purchased 4.22 acres of muck land from the defendants for $7,596. The land was acquired as a right-of-way for a county road project. In the course of construction the contractor began dumping large amounts of muck excavated from this property onto defendants’ adjoining property. Aware that additional land for the right-of-way would have to be obtained from defendants, plaintiff made them an offer substantially different from that made for the property previously acquired.
In a letter dated August 20, 1968, the engineer-manager on behalf of the board stated:
“[W]e have just had a complete appraisal made of the land involved and, based upon this qualified appraisal, have reached the conclusion that the benefits to be derived from the project to your remaining land exceed any damages which might be shown for the taking of such land.”
The nature of those benefits and how they differed from those already bestowed on defendants at the time of the 1966 acquisition was not explained.
The letter offered defendants $1 for 150 feet of rigbt-of-way, i.e., an additional 5.13 acres of land. Defendants refused the offer.
Seven days later, on August 27, 1968, plaintiff initiated condemnation proceedings including the filing of a declaration of taking. MCLA § 213.367 (Stat Ann 1969 Cum Supp § 8.261[7]).
Defendants filed a motion to review necessity alleging fraud and abuse of discretion by the board. MCLA § 213.368 (Stat Ann 1969 Cum Supp § 2.261 [8]). A hearing was held wherein it -was established that the additional acreage would be used to store the muck and partially for the construction of a slope which would help support the road.
The circuit court found necessity in the taking, although it found the $1 offer “bordering upon the ridiculous.” It did not find error, fraud, or an abuse of discretion since the “offer was made on the basis of an appraisal obtained.” Neither the appraisal nor the identity of the appraiser was revealed at the hearing.
The circuit court ordered the property surrendered to plaintiff and the impaneling of a jury to determine just compensation for the taking.
Appeal to this Court was taken after a motion for rehearing below was denied.
A declaration of necessity by the condemning authority serves as prima facie evidence of the necessity and consequently makes it incumbent upon the property owner to show the contrary. City of Allegan v. Vonasek (1932), 261 Mich 16. The record in this case fails to show that the defendants have overcome plaintiff’s prima facie show of necessity by any proofs of fraud or an abuse of discretion. To the contrary, all of defendants’ arguments go to the value of the property which can be determined at the hearing on damages.
Affirmed. No costs, a public question being in volved.
All concurred. | [
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] |
Fitzgerald, J.
Defendant was arrested and charged with robbery armed, assault with intent to commit murder, and rape. All three charges grew out of an incident in Detroit on April 9,1967. It was alleged that on that date appellant entered the apartment of Mr. and Mrs. Clarence Dunning, threatened repeatedly to kill them, robbed them, beat them both severally, and raped Mrs. Dunning.
At the preliminary examination, Mrs. Dunning testified as to the events, and appellant was held for trial. In July, 1967, Mrs. Dunning died.
On October 14, 1967, trial was had without a jury in the Recorder’s Court for the City of Detroit. At trial, over the objection of defense counsel, the people introduced the transcript of Mrs. Dunning’s testimony at the preliminary examination. Earlier in the trial, Mr. Dunning had testified as to the robbery and assault with intent to commit murder, but he testified that he was blindfolded and in an adjoining room when the alleged rape took place.
Defendant was found guilty of all three charges against him and sentenced to life imprisonment. He then perfected this appeal.
There is but one issue raised on appeal: did the trial court commit reversible error by admitting the transcript of Mrs. Dunning’s testimony at the preliminary examination? Defendant contends that the admission of this testimony violated his right to cross-examination and confrontation of witnesses, which right is guaranteed by the Michigan Constitution, Const 1963, art 1, § 20. He specifically points out the trial court’s remarks at the outset of the preliminary examination:
“The Court: At the outset of this case, before calling it, the court would like to request counsel on both sides, to bear in mind that this is an examination where only probable cause is necessary to be established, and that this is not a trial on the merits of the case, and with that in mind the court suggests that only questions that might be essential to the establishing of probable cause be gone into at this time.
“Now, the court does not say that with the idea of stopping you at all from going into a full and complete cross-examination of the witness, but merely to suggest that you confine your questions to the salient points only.”
Though given the opportunity, the cross-examination of the people’s witness, the deceased Mrs. Dunning, consisted of two questions, to wit:
“Cross-examination
“By Mr. Dye:
“Q: You are Mrs. Dunning, is that correct?
“A: Yes.
“Q: Would you please repeat for me what you said this party was wearing at the time ?
“A: The only thing I noticed was a light-colored jacket, and I think it was beige.
“Mr. Bye: All right, I have no further questions of the witness.”
Defendant argues that full and vigorous cross-examination was forestalled by the trial court’s opening statement to opposing counsel, and that this truncated cross-examination was a direct consequence of said statement.
Under the appropriate circumstances, Michigan criminal procedure permits the introduction of prior recorded testimony (MCLA § 768.26 [Stat Ann 1954 Rev § 28.1049]), in accordance with generally accepted rules of evidence. 5 Wigmore, Evidence (3rd Ed), § § 1395,1396,1402. However, the United States Supreme Court has declared that the 6th Amendment right to cross-examine and confront witnesses is secured to state court defendants through the 14th Amendment. Douglas v. Alabama (1965), 380 US 415 (85 S Ct 1074, 13 L Ed 2d 934). Accordingly, where a defendant has been effectively denied his rights of cross-examination and confrontation at a preliminary examination, testimony taken at the examination may not be introduced at trial. Pointer v. Texas (1965), 380 US 400 (85 S Ct 1065, 13 L Ed 2d 923).
The holding in Pointer is not authority for the instant case in that the defendant Pointer was not represented by counsel at the preliminary examination. The numerous post-Pointer Michigan cases dealing with the admissibility of preliminary examination testimony at trial all indicate that defense counsel did in fact conduct cross-examination of adverse witnesses. People v. Doverspike (1966), 5 Mich App 181; People v. Frazier (1969), 16 Mich App 38; People v. Havey (1968), 11 Mich App 69, and People v. Dusterwinkle (1966), 3 Mich App 150. The precise situation here, where defendant’s attorney conducted seemingly perfunctory cross-examination, is one of first impression in this state.
Adding to the uncertainty are dicta from two United States Supreme Court cases, Pointer, supra, and Barber v. Page (1968), 390 US 719 (88 S Ct 1318, 20 L Ed 2d 255). In Pointer, at p 407, the Court said:
“The case before us would be quite a different one had [the] statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.”
In Barber, at p 725, the Court subsequently said:
“The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial. * * '* [T]here may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause. * * * ”
The language of the Michigan cases does not amplify the situation. People v. Doverspike, supra, People v. Dusterwinkle, supra, and People v. Frazier, supra, make no reference to the “opportunity” for complete cross-examination. The holding in Havey, supra, refers to the fact that “defendant Havey’s counsel was given a complete and adequate opportunity to cross-examine * * * and in fact cross-examined the witness at length,” citing People v. Chapman (1968), 380 Mich 74, which is virtually identical to Pointer on its facts.
The California courts have grappled with the problem of the admissibility of preliminary examination testimony at trial, and their discussions are worthy of some attention. Of particular importance to the case at bar, where the nature of the preliminary examination is being challenged, is People v. Gibbs (1967), 255 Cal App 2d 739, 743 (63 Cal Rptr 471). In reversing appellant’s conviction, the court there said:
“Bare existence of an opportunity for cross-examination in a prior proceeding supplies only a limited indicator of the opportunity’s adequacy. Pointer v. State of Texas holds the opportunity inadequate when the accused has no lawyer. The presence and participation of counsel, however, do not necessarily ensure the opportunity’s adequacy. Qualitative factors play a role. The nature of the proceeding ; the character of the witness and his connection with the events; the extent and subject of his direct testimony; the time and preparatory opportunities available to the accused and his attorney — these are some of the influential factors.”
Also highly relevant to the case here is People v. Berger (1968), 258 Cal App 2d 622 (66 Cal Rptr 213). In Berger, appellant claimed that he was denied the right to cross-examination when his attorney failed to cross-examine a witness at a preliminary examination, and a transcript of the testimony was later introduced at trial. The court responded:
“ ‘Innumerable appellate court cases in California support the rule of law that where a live and otherwise competent witness is absent from the state, without any complicity to keep him from the court and his testimony has been previously given and recorded before the defendant with adequate oppor t unity by defendant’s counsel to cross-examine, the evidence so given is admissible and not violative of defendant’s constitutional rights of due process.’ Among the crucial words in the above statement are ‘adequate opportunity’ for cross-examination of the absent witness as contrasted with the present claim that such witness was not in fact subjected to adequate cross-questioning. The present contention appears to be of the hindsight variety since it goes to the matter of Dunston’s motives in testifying as he did. The constitutional guarantees do not go that far, at least in the present case, thus distinguishing it from People v. Gibbs (1968), 255 Cal App 2d 739 (63 Cal Rptr 471).”
People v. Berger was remanded to the California court by the United States Supreme Court (1969), 393 US 314 (89 S Ct 540, 21 L Ed 2d 508), to be considered in the light of Barber v. Page, supra. On remand, the California court reversed Berger’s conviction because the prosecution had made no good-faith attempt to secure the missing-witness (1969), 272 ACA 671 (77 Cal Rptr 617). In the instant case, the question does not arise, since the witness was deceased. See, also, People v. Washington (1967), 248 Cal App 2d 470 (57 Cal Rptr 487).
In accord is People v. Davis (1968), 265 ACA 889 (71 Cal Rptr 656), where the court found constitutional guarantees satisfied if, at the preliminary examination, “the witness was either cross-examined or the opportunity to so examine was available and appellant was represented by competent counsel.” See People v. King (1969), 269 ACA 35 (74 Cal Rptr 679), and People v. Green (1969), 70 ACA 696 (75 Cal Rptr 782).
Another decision to consider is Commonwealth v. Mustone (Supreme Judicial Court of Massachusetts, 1968), 233 NE2d 1. This case is similar on its facts to the one at hand. The Supreme Judicial Court of Massachusetts ruled that the transcript of testimony of a deceased, taken at a prior hearing on probable cause, was admissible at trial, despite the fact that no cross-examination of the witness had been undertaken by defendant’s counsel. The court said at p 4:
“It is not material that, as a matter of tactics, the defendants (1) may not have wished to cross-examine at the probable cause hearing in a manner which would have revealed their proposed defenses or their trial strategy, or (2) preferred to conduct some cross-examination for the first time at trial. If they failed to cross-examine any witness fully at the probable cause hearing, they necessarily assumed the risk that the witness would die or become unavailable before trial, so that his initial testimony could be admitted at trial.” (Emphasis supplied.)
An analysis of the cases discussed previously reflects the following rules enunciated by current judicial thinking and best legal authority with respect to this perplexing problem:
1. Where defendant is not represented by counsel at the preliminary hearing, all testimony given at the hearing is inadmissible at trial. (Pointer v. Texas, supra.)
'2. Where defendant is represented by counsel at the preliminary hearing, and counsel fully cross-examines a given witness, the transcript of testimony is nonetheless inadmissible at trial unless the witness in question cannot reasonably be brought before the court, or is physically or mentally incapacitated. The prosecution must satisfy the court that it in no way caused the witness to be unavailable. Barber v. Page, supra; People v. Doverspike, supra; People v. Dusterwinkle, supra; People v. Gibbs, supra; People v. Green, supra; People v. Washington, supra.
3. Where defendant is.. represented by counsel at preliminary hearing, and counsel apparently fails to cross-examine fully a given witness, the transcript of this witness’s testimony is admissible at trial if (a) the unavailability criteria of Rule 2, above, are fulfilled, and (b) the opportunity for cross-examination was available but not exercised. Any effort by the court to limit pertinent and fair cross-examination renders the testimony inadmissible at trial. People v. Havey, supra; People v. Gibbs, supra; Jones v. California (CA 9, 1966), 364 F2d 522; Commonwealth v. Mustone, supra.
Applying these standards to the facts of the case at hand, the court’s admonition at the outset of the preliminary examination failed to taint the proceedings. Admittedly, this is a fine question, but after careful study of the record it becomes apparent that defense counsel declined to cross-examine Mrs. Dunning for his own reasons. The remarks of the court were no more than a concise statement of the law and a suggestion to expedite the proceedings.
Affirmed.
All concurred.
MCLA § 750.83 (Stat Ann 1962 Rev § 28.278).
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Per Curiam.
Defendant appeals his conviction of armed robbery, MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797), and sentence to prison for a term of not less than 6-1/2 years to 15 years, He raises one meritorious issue on this appeal: was there probable cause for arresting and searching defendant and his companions without a warrant?
The record reveals that the arresting officers pursued the automobile in which the defendant was riding in response to a radio dispatch, which gave a description of the felons. The automobile was within 1.5 miles of the scene of the crime. The officers had deliberately proceeded down the street where the defendant was apprehended on the premise that that particular street could be used as an escape route. In addition, the automobile. was stopped because it had a defective license plate light. After stopping the automobile one of the police officers observed a shotgun lying in plain view in the back seat. In the course of removing the gun the knife used in the perpetration of the crime was found lying near the gun. Only then were the subjects searched at the scene and arrested.
Any police officer may, without a warrant, arrest a person when he has reasonable cause to believe that there has been a felony committed and reasonable cause to believe that the person arrested committed it. People v. Sansoni (1968), 10 Mich App 558. The officer was under no duty to close his eyes to the fact that the shotgun was in plain view. This was not an unreasonable search, People v. Kuntze (1963), 371 Mich 419. To determine whether or not the subsequent arrest without a warrant and search of the defendant and the automobile was lawful, we go to the facts and circumstances within the arresting officer’s knowledge to find if they were sufficient to constitute probable cause.
The officers at that time knew of the armed robbery which was committed within close proximity to where they were; that one of the perpetrators of the crime was described as wearing a red shirt; that a shotgun had been stolen at the scene of the crime; and that the street that they were on was a very probable escape route for the felons to use. Matching these facts of the crime with the facts and circumstances before them, we find that the officers had stopped this car legally in close proximity to the scene of the crime, in fact on one of the very probable escape routes that might well be used by the felons; that one of the occupants of the car that was stopped was wearing a red shirt matching a description of one of the perpetrators of the crime and, further, that they viewed a shotgun on the back seat of the car. We rule that at this point the officers had sufficient information of the armed robbery together with matching facts present which tied the defendant and his companions to the armed robbery to constitute probable cause, and they were entitled at that time' either before or after arrest to search the defendant, his companions and the car. People v. Kuntze, supra.
Affirmed. | [
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] |
Lesinski, C. J.
Defendant Ethen Sinclair was found guilty, following trial by jury, of armed robbery, MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797). Defendant’s motions for new trial were denied and this appeal was brought as of right.
Although several issues are raised on appeal, only one merits attention. Following his conviction, defendant moved for a new trial based solely on the grounds of newly-discovered evidence. On November 14, 1967, an inmate at Jackson prison, Ira Todd, signed an affidavit stating that he and not defendant Sinclair committed the crime here in question.
At the hearings on defendant’s motion for new trial, it developed that immediately after the Detroit Police Department learned of Todd’s confession the department took several steps to determine the truth of the statement. These included a lie detector test, reverse lineups, and the questioning of Todd along with intervieivs with the three witnesses of the crime.
The only witness at the hearings was the police detective in charge of the case, who described all the actions taken by the police and their results. At the close of his testimony, defense counsel requested that Todd be brought in to let the court determine the truth of his affidavit. The request was denied.
On appeal defendant argues that the hearings on his motion were fundamentally unfair, thereby violating his right to due process. Two aspects of the hearings require us to agree and to remand for a new hearing.
At the first hearing the fact that Todd was given three polygraph tests was brought out by a question from the Court. When defense counsel made his first indication that he would challenge the tests, the trial court stated that the results of the tests usually are not admissible evidence and the only purpose for which the tests would be considered is to determine whether the police had made an investigation of Todd’s statement. At the second hearing on the motion, however, the court made the following remark in its last statement of record:
“They did put Mr. Todd on a polygraph to determine whether or not there was any substance to his story. Although the results of a polygraph are not admissible in a proceeding in court, nevertheless, it was the conclusion of the polygraph operator and the police that this was a fabrication on the part of Mr. Todd merely to wipe off an offense for defendant Sinclair.”
This statement, together with the fact that it was upon questioning from the court that the polygraph test was first admitted into evidence, clearly indicates that weight was given it below.
In People v. Paul F. Baker (1967), 7 Mich App 471, 475, this Court stated:
“It is well settled in this State that the results of a polygraph test are not admissible into evidence. See People v. Becker (1942), 300 Mich 562. Neither are the conclusions of the person administering the test admissible. See People v. Welke (1955), 342 Mich 164. However, so far as we can determine, the question whether the fact that a polygraph test has been made is admissible has not been passed upon. We hold that because the results of a polygraph test are incompetent evidence, the fact that such a test was made is immaterial, and reference thereto should be excluded upon proper objection.”
It was, therefore, error to admit the test and give weight to the results. See, also, People v. Brocato (1969), 17 Mich App 277.
The second difficulty with the hearing on defendant’s motion held below was the refusal of the court to require the attendance of Todd following defendant’s request that Todd be produced. Within the setting of the instant case, the question below was whether there was sufficient cause to believe Todd’s confession so as to make probable a different result at a new trial. This was a factual matter. See People v. Semchena (1967), 7 Mich App 302.
In denying defendant’s request to have Todd produced the court responded: “I don’t think that it is necessary in view of the facts before the court at the present time.” The only fact before the court, however, was the police officer’s testimony denying the truth of Todd’s statement. The court, there fore, effectively delegated tlie fact-finding process to the police department.
The prosecutor argues that People v. Czarnecki (1928), 241 Mich 696, is determinative and requires affirmance. In People v. Mosden (1969), 381 Mich 506, however, the Court stated at p 512:
“We are not unaware of the decision of this Court in People v. Czarnecki, 241 Mich 696, handed down in 1928, long before the 1963 decision of the United States Supreme Court in Townsend v. Sain [(1963), 372 US 293 (83 S Ct 745, 9 L Ed 2d 770) ]. Csarnecki is, at all events, distinguishable from the instant case in that there the defendant did not, as here, seek to have the absolving prison inmate brought into court to testify in his behalf at the hearing, nor did the trial court indicate in any way that such request would have been denied. Thus the question in the instant ease as to whether such denial is error was not there involved.”
This point of distinction, the first of three noted by the Court, is directly applicable to the instant case.
The case is affirmed on all matters save those discussed in this opinion and the case is remanded for a rehearing on defendant’s motion for new trial. If upon hearing, the trial court finds that there is sufficient evidence of the falsity of Todd’s confession that his testimony would not have made a different result probable, the motion for new trial should be denied. It otherwise should be granted.
All concurred.
The affidavit reads:
“People vs. Ethen Sinclair, No. A — 128917. State of Michigan, County of Jackson. Ira Todd, being first duly sworn, deposes and says that on February 11, 1966, he held up the Ward’s Liquor Store at 3126 Fenkell, Detroit, Michigan.
“Deponent further says that Ethen Sinclair, who is now serving 7-1/2 to 20 years in Jackson Prison, Michigan, is not guilty of the above crime.”
Ira Todd’s signature was notarized.
See People v. Keiswetter (1967), 7 Mich App 334, for the four elements required for a new trial based on newly-discovered evidence. | [
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V. J. Brennan, J.
Richard Elwood Nugent was convicted by a jury of forcible rape and sentenced to a prison term of 12-1/2 to 40 years. On appeal the only issue is whether the trial court erred by ruling that the rape victim was able to identify the defendant at the trial independently of her observation of the defendant during a lineup conducted without the benefit of counsel and therefore illegally under United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149) and Gilbert v. California (1967), 388 US 263 (87 S Ct 1951, 18 L Ed 2d 1178).
Around noon of August 14, 1967, the complainant was returning with her two-year-old daughter from the swimming pool to her apartment when she was forced into her apartment at knife-point and raped. The complainant twice observed her assailant’s features, once as she entered the building and saw him standing in the lobby, and again when he temporarily removed a bedspread he had placed over her head. According to the description she gave to the Genesee county sheriff’s department, her assailant was a white man, about five feet, nine inches tall and weighing 150 pounds, with long dark hair, and was wearing a rust-colored shirt, blue jeans, and loafer-style tennis shoes spotted with grease. He carried a chrome and silver-colored knife. In a brief conversation held after intercourse, the man told his victim that he was 26 years old and married. The complainant gave the investigating officers a bail-point pen dropped by her assailant during the scuffle.
On the following day, the sheriff’s department arrested a man — the defendant here — substantially meeting the above description, including the clothing, who was carrying a chrome- and silver-colored knife. It was soon learned that the ball-point pen belonged to the defendant, that the defendant was employed on a construction site near the complainant’s apartment house, and that a fellow-employee had seen the defendant enter the apartment house around noon of the day in question. Without being-advised of his right to the presence of an attorney, the defendant was placed in a lineup with four other men between the ages of 25 and 40. Of the men wearing work clothes, neither was of the same age or physique as the defendant; and of those of the same age and physique, neither was wearing-work clothe.s, The defendant was identified by the complainant as her assailant, and, after a preliminary examination, was bound over for trial.
Prior to trial, the court suppressed any and all evidence dealing with the lineup identification and barred the complainant from identifying the defendant in the absence of a hearing establishing her ability to do so independently of the lineup. No hearing was requested. A second jury was selected when the trial ended in a hung jury, but this time the prosecution moved that an evidentiary hearing be held. After hearing the testimony of the complainant, the court ruled that the prosecution had met its burden under Wade and Gilbert, supra, and permitted the complainant to point the defendant out at the second trial.
The claim by the defense that the in-eourt identification was without a source independent of the lineup is based on two allegations:
1) Any impressions the complainant might have gained of her assailant’s face merged with the impressions of the defendant’s face gained during the lineup, the preliminary examination, and the two-day trial, and therefore it was impossible for her to discern the former impressions from the latter, her testimony to the contrary notwithstanding; and
2) The complainant identified the defendant at the lineup not by his face, but by his clothing, which was like that worn by her assailant and unlike that worn by an other man in the lineup of the same age and physique.
In support of the second allegation, the defense quotes the following from the transcript of the preliminary examination:
“Q. This one man’s clothes were quite a bit different then [sic] everyone else’s clothes?
“A. Yes, sir.
“Q. The way you recognized him, was it by the clothes ?
“A. Uh-huh.”
In Wade, the United States Supreme Court noted that whether an in-court identification can be said to be based on observations independent of the illegal lineup depends on various factors, among them:
“the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.” 388 US 218, 241 (87 S Ct 1926, 1940, 18 L Ed 2d 1149, 1165).
The Court also noted that it is “relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.” At the hearing in the present case, the complainant related the two opportunities she had for seeing her assailant’s face, repeated the description she had given to the sheriff’s department, and told the court that at no time did she either fail to identify the defendant or identify a different person as her assailant. She admitted saying at the preliminary examination that she identified the defendant at the lineup by his clothing, but explained that this means of identification was not to the exclusion of identifying him by his facial features. She had taken special note of the clothing because such dress was unusual for the lobby of her apartment house. She also testified, first on direct examination:
“Q. Now do you. have a present recollection of the face and general-body build of this man, based upon the observations that you have just testified to? [the observations made in the apartment house]
“A. Yes.
“Q. On the basis of that present recollection, are you able to identify this man?
“A. Yes, I am.
“Q. Do you see this man in the courtroom today?
“A. Yes, I do.”
and on cross-examination:
“Q. Would you say by looking at him right now your identification, shall we say, is more positive because of the preliminary examination and the trial?
“A. No, not necessarily.
“Q. At the lineup what was the basic way that you identified Mr. Nugent?
“A. The hair, the build, the clothes that he wore and his facial structure.
“Q. Wasn’t basically the clothes?
“A. Not necessarily.
* * *
“Q. No, you couldn’t see him clearly, could you? You never did see the man clearly, did you, until the day of the lineup?
“A. Yes, I did.
* * *
“Q. Without that lineup you wouldn’t be positive?
“A. I would be positive. If — if I had seen him on the street I could have identified him.”
and again on re-direct examination:
“Q. Are you positive in your mind that the identification that you have made here in this courtroom today are [sic] made on the basis of the observations yon made on August the 14th 1967?
“A. Yes, sir.”
It seems to us that on the present record the complainant’s testimony if believed, sustains the trial court’s finding and consequently its ruling. The question whether there was an independent source thus narrows to one of credibility. This Court will not substitute its judgment on the credibility of a witness for that of the trier of fact. People v. Szymanski (1948), 321 Mich 248; People v. Williams (1966), 3 Mich App 272. The trial court, sitting as the trier of fact at the hearing, chose to believe the complainant’s testimony. Accordingly, we find no error in allowing the complainant to identify the defendant in the presence of the jury.
Affirmed.
All concurred.
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Per Curiam.
The issue on this appeal, which is from defendant’s conviction and sentence for receiving and concealing stolen property over the value of $100, is stated by defendant as: “Was the defendant denied the effective representation of counsel at his trial in this cause?”
The basis for defendant’s contention that he was denied effective representation by trial counsel is that failure of trial counsel to object to the admission in evidence of the stolen property on the strength of an alleged illegal search and seizure resulted in defendant’s conviction. This Court has recently decided that such a contention is not the basis for holding that a defendant is denied the effective assistance of counsel in the constitutional sense. See People v. Degraffenreid (1969), 19 Mich App 702.
Defendant’s reliance on People v. Ibarra (1963), 60 Cal 2d 460 (386 P2d 487, 34 Cal Rptr 863), is misplaced. The property there seized was the product of warrantless arrest and a warrantless search. In the present case, defendant was arrested on a valid warrant and the stolen property was found in the automobile occupied by him at the time of arrest and search.
Affirmed.
MCLA § 750.535 (Stat Ann 1969 Cum Supp §28.803). | [
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Lesinski, C. J.
Defendant George Cooper Andrews appeals his jury conviction on the charge of carrying a concealed weapon.
The records of the preliminary examination and the trial reveal that defendant was arrested in an area where a murder had occurred six or seven hours earlier. The arresting officer testified that defendant “fit the description” of one of the murderers. Upon arresting the defendant, the officer searched the defendant and discovered a .38-caliber blue steel Cobra revolver in his pants pocket. Prior to trial, defendant moved to suppress this evidence as being the product of an unreasonable search and seizure. The motion was denied without an evidentiary hearing or written opinion. At trial defendant renewed his motion. The trial court again denied the motion stating:
“This does not involve the question at this time as to the validity of the arrest. This raised the question as to the admissibility of the evidence. All of the matters were disposed of and under the constitutional proviso, article 1, section 10, [sic] I believe, of the Constitution of 1963, and decided in the case of the People v. Vanlandingham of 6 Mich App 128 and in the Blessing case and other decisions of the Michigan Supreme Court, the proviso is that after referring to the protection of a person from unreasonable searches and seizures — and I will read it for purposes of the record: ‘Article 1, section 11. The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The protection of this section shall not apply to bar from evidence in any criminal proceeding any narcotic drugs, firearm, bomb, explosive or any other dangerous weapon seised by a peace officer outside the curtilage of any dwelling house in this state.’
“This has been passed upon by our Court of Appeals. The constitutionality of our constitutional proviso has been upheld. The Michigan Supreme Court has upheld this. This court is obliged to follow the decisions of the Court of Appeals, of the Supreme Court of this state, and of the United States Supreme Court. Let the record indicate that this constitutional proviso was adopted by the delegates to the constitution following the decision of Mapp v. Ohio, that the Court of Appeals in the Vanlandingham case and the Supreme Court have upheld the proviso and there has been no decision of law on the part of any court which has jurisdiction over our appeals that would indicate that our proviso is not constitutional and under its term the evidence is admissible.” (Emphasis supplied.)
The evidence was admitted.
During trial plaintiff objected to defense counsel’s attempted questioning of the arresting officer regarding the basis of defendant’s arrest. In the absence of the jury the court stated:
“The court already ruled that regardless of the reasonableness of [sic] probable cause for the arrest, that this evidence is admissible because of the constitutional proviso and the court pre-trial also indicated that in its opinion there was probable cause here and I am not going to go into this again.” (Emphasis supplied.)
In the court’s instructions to the jury, reference was again made to the search and seizure:
“I do want to charge you as a matter of law that that has bearing in this case at all because, regardless of the validity of the arrest, a firearm seized outside the curtilage of a dwelling by a peace officer comes within the search and seizure proviso of ar-. tide 1, section 11 of our 1963 Constitution, following an amendment adopted by the people in 1963 and-which was continued from the old constitution into the present one, and the search and seizure amendment reads as follows: [Reading Const 1963, art 1, § 11.]
* * #
“So the court, as a matter of law, has ruled that the evidence that was introduced as Exhibit 1 was properly introduced as evidence under' the search and seimre proviso.” (Emphasis supplied.)-
The various rulings and statements of the trial court have placed the issue of the constitutionality of the last sentence of Const 1963, art 1, § 11, squarely before this Court.
In Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933), the United States Supreme Court declared that the exclusionary rule, implementing the Fourth Amendment prohibition of unreasonable search and seizures, applies to the states through the Fourteenth Amendment. In a separate opinion in People v. Barker (1969), 18 Mich App 544, 549, Judge Charles Levin spoke critically of the consistent refusal of the courts of this state to consider the applicability of Mapp to the cited provision of the Michigan Constitution;' The result has been to set Michigan apart as the one state in the union refusing to protect the constitutionally-guaranteed rights of criminal, defendants subjected to unreasonable search and seizures in this limited area. A review of the record in the instant case convinces us that passive acceptance of the validity of the constitutional provision is no longer permissible. The trial judge, relying on Michigan case authority, refused to decide the issue of the legality of defendant’s arrest (and hence, the reasonableness of the warrantless search of defendant’s person ) holding that the revolver was admissible into evidence in any event under the terms of the last sentence of Const 1963, art 1, § 11. This position cannot prevail. The last sentence of article 1, § 11 of the Constitution of 1963 conflicts with the Fourth Amendment to the United States Constitution. In such an instance the Supremacy Clause controls.
In reaching our decision today, we are mindful of the fact that on January 5,1970 the United States Court of Appeals for the Sixth Circuit decided Lucas v. Michigan (CA 6, 1970), 420 F2d 259, a case arising on a habeas corpus proceeding, wherein it was held “that the last sentence of article 1, § 11 of the Michigan Constitution of 1963 is in conflict with the Fourth Amendment to the Constitution of the United States as applied to the states in Mapp v. Ohio.” 420 F2d 259, 263. Since the Federal Court of Appeals also indicated that state (of Michigan) prisoners aggrieved by trial court rulings incorrectly applying art 1, § 11, would no longer be required to exhaust state remedies before seeking Federal relief, we find it most important to settle the instant question to avoid the unseemly situation where “Michigan litigants find it necessary to seek the protection of the Federal courts for vindication of rights enjoyed without question by all in the other 49 states.” People v. Barker, supra, at 558.
In view of the possible erroneous admission of evidence and the clearly erroneous instruction to the jury, we reverse. In the event the motion to suppress is once again renewed, the trial court shall hold a full evidentiary hearing and determine the admissibility of the evidence in accordance with this opinion.
Reversed and remanded for new trial.
All concurred.
MCLA § 750.227 (Stat Aim 1962 Rev § 28.424).
The officer apparently had “heard from other officers [involved in the murder investigation]” that the suspeets were two male Negroes. One was a “light-skinned male Negro, tall slim build with an Afro-American haircut”. The other was “a male Negro, smaller than [the first man], huskier, and dark complexion”. Both “were wearing dark elothing”. Defendant was “light-skinned” and ivas wearing a “fairly dark blue smoking jacket”. His hair was in an “Afro-American” eut. The officer testified that outside of a description and the defendant being in the Six Mile Road — Dequindre area, ho was not doing anything which eaused the officer to believe he had been guilty of a felony. The officer arrested defendant immediately upon seeing him.
Defendant argued in the trial court (as he does on appeal) that his arrest was made without probable cause and that, therefore, the subsequent search violated US Const, Ams 4, 14, as applied to the states by Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933).
US Const, Am 4.
US Const, Am 14.
See United States v. Sabinowitz (1950), 339 US 56 (70 S Ct 430, 94 L Ed 653).
See Lucas v. Michigan (CA 6, 1970), 420 F2d 259.
Reynolds v. Sims (1963), 377 US 533, 583 (84 S Ct 1362, 12 LEd 2d 506). | [
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Per Curiam.
Defendant’s jury trial on a charge of armed robbery resulted in his conviction of the offense charged. He was sentenced, his motion for a new trial on the basis of newly discovered evidence was denied, and he appeals. The appeal raises two issues:
1. Should the trial court have granted defendant’s motion for a new trial based on newly discovered evidence ?
2. Did defendant have adequate representation?
The grant of a motion for new trial on the basis of newly discovered evidence is discretionary, People v. Bauman (1952), 332 Mich 198. Appellate relief from a denial of a motion for new trial on the basis of newly discovered evidence is granted if it is demonstrated that the trial court abused its discretion in such denial. As this Court said in People v. Wolschon (1966), 2 Mich App 186,188:
“The term discretion itself involves the idea of choice, of our exercise of will, of a determination made between competing considerations. In order to have an ‘abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but the defiance thereof, not the exercise of reason but rather of passion or bias.”
By this well established standard of judicial discretion, the record before us demonstrates not an abuse of discretion but the exercise thereof. There is no showing that the claimed newly-discovered evidence could not have been discovered with reasonable diligence and produced at trial. People v. Bauman, supra; People v. Keiswetter (1967), 7 Mich App 334.
Defendant also contends that his retained counsel was so incompetent that defendant was deprived of effective counsel and was thus denied due process of law. This record does not demonstrate that defendant’s representation was so lacking in competence that it became the duty of the court or the prosecution to observe it and correct it, nor does it demonstrate that the circumstances surrounding the trial shocked the conscience of the court and made the proceedings a farce and a mockery of justice. People v. Davison (1968), 12 Mich App 429.
Affirmed.
MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797). | [
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Lesinski, C. J.
Defendant Herman Clark was convicted after a jury trial of carrying a concealed weapon, MCLA § 750.227 (Stat Ann 1962 Rev § 28.424). Defendant brings this appeal as of right.
On November 18, 1968, defendant was arrested while on his job at the plant of an industrial corporation. At trial Patrolman Asper, one of the arresting officers, testified:
“As Patrolman Raymond advised Mr. Clark that he was under arrest, I noticed that Mr. Clark was standing with one hand upon a counter, the other one in his right — I guess you call it an ‘overcoat pocket’ — and I asked Mr. Clark what he had in his pocket, and he said, ‘Nothing.’ And as he said this, his pocket came open and I could see down between the inside of his pocket in his hand a white pearl, which looked like grips on a gun. And Patrolman Raymond and I both grabbed his arms, and I reached into his pocket and between his hand and the object that I had seen in his pocket, and I pulled out a pistol.”
The gun, which was unloaded, was confiscated. After being taken to the police department, a clip of bullets for the pistol was found in another pocket.
The concealed weapons statute, under which defendant was prosecuted, reads in pertinent part:
“[A]ny person who shall carry a pistol concealed on or about his person, or whether concealed or otherwise, in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to so carry said pistol as provided by law, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than 2,500 dollars.”
Two issues are raised on appeal. First, whether the pistol was a “concealed weapon” within the meaning of the statute. Second, whether defendant is exempt from prosecution by the statutory provision allowing possession of a weapon in a “place of business.”
Defendant argues that as the police officers could see the weapon before they searched him, it was not a “concealed weapon.” It is also argued that since the pistol was unloaded, it could not be considered a dangerous weapon.
In People v. Johnnie W. Jones (1968), 12 Mich App 293, 295, this Court stated: “we do not think that the word ‘concealed’ as used in the statute means total concealment.” And at p 296 the Court noted:
“The evident statutory purpose is reflected in the general rule applied in other jurisdictions that absolute invisibility is not indispensable to concealment of a weapon on or about the person of a defendant, and that a weapon is concealed when it is not discernible by the ordinary observation of persons coming in contact with the person carrying it, casually observing him, as people do in the ordinary and usual associations of life.” (Emphasis supplied.) (Citations omitted.)
In the instant case the officer could see the pistol only after defendant’s pocket came open and the officer looked down, inside the pocket. The pistol in defendant’s pocket was a concealed weapon. People v. Johnnie W. Jones, supra. See, also, People v. Stirewalt (1969), 16 Mich App 343.
The fact that the gun was unloaded is legally irrelevant. MCLA § 750.222 (Stat Ann 1962 Rev § 28.419), defines “pistol”:
“ ‘Pistol’ as used in this chapter means any firearm, loaded or unloaded, 30 inches or less in length, or any firearm, loaded or unloaded, which by its construction and appearance conceals it as a firearm.” (Emphasis supplied.)
Moreover, in People v. Williamson (1918), 200 Mich 342, defendant was arrested for carrying a concealed gun which was unloaded and for which defendant had no cartridges in his possession. The Court stated at p 349: “The authorities are agreed that a revolver or pistol need not be loaded to come within the statute.”
Defendant argues that he was arrested at his place of employment and that he, therefore, falls within the statutory exception for those in their “place of business.” We disagree.
It is hornbook law that statutes must be read so as to facilitate the intent of the legislature. People v. Bailey (1968), 10 Mich App 636. “The purpose of the concealed weapons statute was to prevent men in sudden quarrel * *' * from drawing concealed weapons and using them without prior notice to their victims that they were armed.” People v. Jones, supra, at p 295. And in People v. Bailey, supra, beginning at p 639, we stated: “the basic intent of the legislature as indicated in the concealed weapons statute was that weapons should not be carried where they might be used to take lives.”
It is within the light of this legislative intent that we read the statutory exemptions for “his dwelling' house or place of business or other lands possessed by him.” The purpose of the exemptions was to allow persons to defend those areas in which they have a possessory interest. This is the clear import of the prhase “possessed by him” which modifies the three areas set forth in the statute. United States v. Waters (D DC, 1947), 73 F Supp 72.
The defendant was employed by the Dana Corporation at the time of his arrest. The nature of his employment does not appear in the record; there is nothing to show that he had the requisite possessory interest to bring him within the statutory exception. MCLA § 776.20 (Stat Ann 1969 Cum Supp § 28.1274 [1]), provides:
“In any prosecution for the violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the biirden of establishing any exception, excuse, proviso or exemption contained, in any such act shall be upon the defendcmt but this does not shift the burden of proof for the violation.” (Emphasis supplied.)
In examining the record we find no miscarriage of justice.
Affirmed.
All concurred. | [
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Holbrook, J.
Plaintiffs are owners, as land contract purchasers pursuant to contracts dated January 29, 1966, of two adjacent parcels of vacant land located on highway M-59 in section 21, Highland township, Oakland county, Michigan which, taken together, contain slightly more than 200 acres, the surface composition of which is sand and gravel. The properties to the north, east and west of plaintiffs’ parcels are vacant land, with the exception of an area of land approximately 100 feet frontage by 500 feet in depth, located to the west of plaintiffs’ property, used by a construction company. To the south of plaintiffs’ land, on the south side of highway M-59, are located a small number of homes fronting on the highway.
These cases were consolidated for trial purposes. They involve actions to restrain enforcement of defendants’ zoning ordinance, wherein plaintiffs’ property is zoned “Agricultural”, with the exception of that part of each parcel 500 feet in depth, fronting on highway M-59, which is zoned “Commercial” and the rear 500 feet of the smaller, or easterly, parcel which are not involved in the present controversy.
Defendants’ 1960 zoning ordinance was adopted on August 2 of that year through compliance with the proper legal procedure. At the time plaintiffs entered into the land contract in 1966 to purchase the subject property, the zoning ordinance was in effect and provided in §§5.1(5) and 8.2 thereof as follows:
“5. A trailer coach park, other than that already in existence in this township, will not be permitted.
# * #
“Section 8. Agricultural District.
* * *
“Section 8.2 Use of trailers. Trailers may be used in this district as a temporary dwelling by persons connected with the farming operations bnt not for more than one year unless extended by the Board of Appeals.
Plaintiffs’ complaint alleged in part as follows:
“7. That plaintiff Walter D. Anderson, on behalf of himself and the other plaintiffs, applied to the township of Highland and to the Highland Township Zoning Board requesting that a zoning change be made, and that plaintiffs be permitted to construct mobile homes on the property above described, except for the south 500 feet fronting on M-59, which had been zoned for commercial purposes. That this request for zoning change, or authority to construct mobile homes in accordance with the state laws permitting same, was unlawfully turned down.
* -X-
“9. That as applied to acreage owned by plaintiffs, which is a substantial distance from area that could be effected, other than beneficially, the aforesaid prohibition is unreasonable and could not have a good faith relationship to the purposes for which the police power can be exercised.
“10. That mobile homes parks are lawful and specifically authorized by statute and, therefore, cannot, as such, be prohibited in a township.”
Defendants’ amending ordinance, effective October 27, 1967, purported to provide for trailer coach parks within the township as follows:
“Trailer Coach Park District ‘TR-l’
“Section ‘TR-l’ District. The following uses and no other shall be deemed ‘TR-l’ district uses and shall be permitted in all ‘TR-l’ districts:
“A. Trailer and Mobile Home Parks. No trailer or mobile home park shall be permitted in High land township unless the same complies with the Highland township trailer park ordinance and then only in a ‘TB-1’ district.” (Emphasis supplied.)
In their supplemental answer defendants interposed as an affirmative defense the following:
“[Defendants allege that the plaintiffs have not applied for a change of land use classification, nor for a zoning compliance permit as provided in a duly adopted amendment to the zoning ordinance of the township of Highland, and therefore have not exhausted their administrative remedies.”
However, defendant Charles S. Toy, secretary of the defendant township zoning board, testified that no ordinance had been passed by the township designating any property in a “trailer coach park district”.
The trial court, without a jury, entered a final judgment in favor of plaintiffs. Defendants appeal from the decision of the circuit court, raising several contentions of error. The issue to be determined is restated as follows:
Did the trial court commit error in determining that defendant township’s 1960 zoning ordinance, prohibiting the construction of mobile home parks within said township, and the 1967 zoning ordinance amendment, purporting to create a “trailer coach park district” without allocating land for said district, are invalid?
The trial judge made certain findings of fact which are amply substantiated by the record. We quote with approval the trial court’s opinion, wherein it is stated:
“An examination of the amending ordinance discloses that provision is made for trailer coach parks and for the control of their use. Under the amendment a person seeking such zoning must obtain a zoning compliance permit from the township clerk. Approval of the size and shape of trailer coach lots is left to the township zoning board. However, insofar as the record indicates no land has been set aside in the township for trailer coach parks nor is such nse included in any identifiable district or area. Such a patchwork approach to zoning would not be based upon a plan designated-to promote the public health, safety and morals of the community, as required by statute, and if a mobile home park were permitted by the township clerk the result would be spot zoning and therefore improper.
* * #
“It is apparent from the record in these causes that the township board and the citizens of the community who approved the original zoning ordinance, are determined to prevent the development of mobile home parks regardless of community need or their propriety as established by state act. It is the opinion and finding of this court that the amending ordinance is an attempt on the part of the township board to continue that purpose by a different approach. The restrictions upon the use of mobile home parks, the control of their development, and particularly the failure to set aside specific areas for such purposes, all point to' the fact that the township simply does not want mobile home parks and every effort is being used to prohibit their development.
“Prom 1958 when the first interim zoning ordinance was adopted until late in 1967 when these two causes were scheduled for trial, no mobile home parks were permitted under the provisions of the township zoning ordinance. During the last two years of that period plaintiffs acquired their land in section 21, prepared plans to utilize the land as a mobile home park, which in their opinion, was its most productive use, and applied for permission to so utilize their land. Suddenly the township through its elected officials decided to amend the ordinance to permit mobile home parks under certain restricted conditions. Regardless of whether the plaintiffs have established a vested interest in the use of their lands for a mobile home park, it would seem to this court to be inequitable for the township to throw further road blocks in the path of the plaintiffs’ effort to make their lands productive. Plaintiffs’ request for permission to use their land in a statutorily approved manner should be tested as of the time that the original request was made.
* # #
“Prom the testimony it appears that the land has not been used for farming purposes for the past five years despite the fact that it has been zoned for such purposes. That .admitted fact would indicate that the zoning authorities have not been realistic in their evaluation of the property. If those who know the land and live nearby find it unsuited to agricultural purposes, certainly no governmental enactment can make it useable as farm land.
“Testimony further indicates that there is no present demand for the use of the property for residential purposes even though it is not so zoned. On the other hand creditable testimony was offered indicating a need in the community for mobile home sites.
“In the face of those undisputed facts the township board has held to a regulation prohibiting the development of mobile home parks. Mobile home parks have been recognized by the state as a needed and efficient means of providing homes for its residents. No one can say that the use of land for such purposes is injurious to the public health, safety or morals. It is therefore the opinion of this court that to deny to the plaintiffs this proper and needed use of their lands is an arbitrary taking of the plaintiffs’ property without compensation, and hence a denial of the plaintiffs’ constitutional rights.”
Our state legislature, through the enactment of the Trailer Coach Park Act of 1959, PA 1959, No 243, MCLA § 125.1001 et seq. (Stat Ann 1961 Rev § 5.278[31] et seq.) has recognized properly operated mobile home parks as lawful. The act provides for state licensing and regulation of such parks, subject to full compliance with all “applicable codes, regulations or ordinances not in conflict with this act”. MCLA § 125.1016 (Stat Ann 1961 Rev § 5.278 [46]).
In Gust v. Township of Canton (1955), 342 Mich 436 the Supreme Court considered the forerunner to the present Trailer Coach Park Act of 1959, supra. The Gust case cited by both parties, is factually similar to the instant case. There it was stated at p 438:
“Trailer camps may lawfully be operated in Michigan under CL 1948 and CLS 1954, § 125.751 et seq. (Stat Ann 1953 Cum Supp § 5.278 [1] et seq.), which provide for the licensing and regulation thereof.”
In Dequindre Development Co. v. Charter Township of Warren (1960), 359 Mich 634, cited by plaintiffs, and analogous to the case at hand, the Supreme Court stated at pp 640, 641 as follows:
“[S]tatutorily supervised trailer coach life so far has received due approval as a matter of State policy. Such mode of life cannot be outlawed by local act for reasons given in Gust v. Township of Canton (1955), 342 Mich 436, followed in Smith v. Plymouth Township Building Inspector (1956), 346 Mich 57, and Clark v. Lyon Township Clerk (1957), 348 Mich 173,”
Defendants’ 1960 zoning ordinance, by its terms, prohibited trailer coach parks within the township. This prohibition is not controverted by defendants. In Gust v. Township of Canton, supra, the Court, speaking of such prohibition by means of local ordinances, stated at pp 438, 439:
“Here the ordinances and record disclose the exclusion of trailer camps from the entire township. From the record and opinion in the former Gust Case [(1953), 337 Mich 137] and the record here, it is evident that the present character of the township, and particularly of the area in which plaintiff’s lands are situate, is largely agricultural and open country, that plaintiff’s lands are not in a residential section nor near industrial plants and that there is no industrially developed area in the entire township; that the nature and extent of the development of the township, or lack of it, are such that it cannot be said that zoning plaintiff’s 33 acres of land partially into a 2-family residential zone, partly into a country home classification, and partly into a general industrial zone and prohibiting trailer camps therefrom bears a real and substantial relationship to present public health, safety, morals or general welfare. It is not seriously contended that it does. To so hold would be tantamount to declaring trailer camps detrimental to the public health, safety, morals or general welfare under every condition and circumstance and on that account subject to exclusion from every area in the State by local governing bodies. That would hardly square with the legislative intent expressed ® * * authorizing their operation in Michigan.”
In Kremers v. Alpine Township (1959), 355 Mich 563, the Court stated at pp 568, 569:
“The zoning ordinance of Alpine township, by virtue of a rezoning provision contained therein, purports to give the board of appeals power to exclude trailer parks from the township. Such a provision in a township or municipal ordinance which is in conflict with the trailer coach park act (CL 1948 and CLS 1954, §125.751 et seq. [Stat Ann 1955 Cum Supp § 5.278(1) et seq.]) is invalid. National Amusement Co. v Johnson (1935), 270 Mich 613; Richards v. City of Pontiac (1943), 305 Mich 666; Gust v. Township of Canton (1953), 337 Mich 137.”
Defendants’ attempt to prohibit trailer coach parks, as is reflected in the zoning ordinance of 1960, renders the ordinance invalid as applied to construction of such parks within the township.
Defendants contend that the township zoning-ordinance, as amended, does not prohibit trailer parks in the township provided that permits to construct such parks are obtained pursuant to the provisions of the ordinance amendment of 1967. While the amendment does, as indicated, make reference to a trailer coach park district, the record shows, as the trial court found, that, in fact, the township has set aside no land for trailer coach parks. In this regard the case of Dequindre Development Co. v. Charter Township of Warren, supra, is relevant.
In Knibbe v. City of Warren (1961), 363 Mich 283 the Supreme Court stated at p 285 as follows:
“ ‘It is apparent that the defendant city desires to and has made every effort at dissuading or flatly prohibiting mobile home courts or trailer parks. By its ordinance No 60, adopted in 1952, in effect, trailer parks were prohibited. By its ordinance No 76, adopted by the now city rather than township government, the defendant has in effect, again prohibited trailer parks by, on the one hand, making them lawful and on the other by failing to give substance to their intent by not zoning any property within the city limits to an B.-4 district. Certainly, it must be further assumed that the defendant is fully cognizant of the general property conditions in the area involved and its unsuitability to the purposes of the district zoning now in effect.
“ ‘The only logical conclusion to be drawn from these sundry facts is that the refusal of the defendant to rezone any parcel to R-4, regardless of location and suitability, and in particular as to this plaintiff’s property, is arbitrary and capricious, and that ordinance No 76 is, in its application to plaintiff’s property, unreasonable, and confiscatory.’ ”
The plaintiffs commenced these suits on May 9 and 11,1966. The amending ordinance was adopted with full knowledge of the deficiencies in the original ordinance. The amending ordinance was adopted more than a year and five months after plaintiffs’ actions were commenced. As we read the amending ordinance there is no provision for the granting of a trailer coach park permit unless and until a “TR-1 district” has been established in the township. The original ordinance prohibited trailer coach parks. The amending ordinance in effect still prohibits trailer coach parks, by reason of the failure to create a “TR-1 district”. We agree with the able trial judge who stated in his findings, as follows :
“[T]hat the amending ordinance is an attempt on the part of the township board to continue that purpose by a different approach. The restrictions upon the use of mobile home parks, the control of their development, and particularly the failure to set aside specific areas for such purposes, all point to the fact that the township simply does not want mobile home parks and every effort is being used to prohibit their development.”
We rule that the validity of the 1967 zoning ordinance amendment is governed by the Knibbe and Dequindre cases. Having so determined, we con- elude that the trial court did not commit error in ruling that defendants’ 3960 zoning ordinance and the 1967 amendment of that ordinance are invalid and of no effect as applied to the construction of mobile home parks within the township.
Arguendo, if the township board had in mind, in their ordinance amendment, to provide for approval or rejection of an applicant’s land for trailer park purposes, as the applications are presented from time to time, this would result in illegal spot zoning. In 8 McQuillin, Municipal Corporations (3d ed), § 25.83, pp 223, 224, “spot zoning” is defined as follows:
“Although not denounced by any hard and fast rule, zoning in a haphazard manner is not favored and, on the contrary, zoning should proceed in accordance with a definite and reasonable policy. Thus, a zoning ordinance or an amendment of a zoning ordinance to permit piecemeal or haphazard zoning is void, and so-called ‘spot zoning,’ where it is without a reasonable basis, is invalid. The legislative intention in authorizing comprehensive zoning is reasonable uniformity within districts having in fact the same general characteristics and not the marking off, for peculiar uses or restrictions of small districts essentially similar to the general area in which they are situated.” (See cases cited therein).
The trial court ruled that defendants’ 1967 amending ordinance was invalid for failure of defendant township to comply with the notice requirements set forth in MOLA § 125.284 (Stat Ann 1969 Cum Supp § 5.2963 [14]) for adoption of zoning ordinances. We find it unnecessary to rule upon this question or the other questions raised by defendants in view of our decision herein.
Affirmed. Costs to plaintiffs.
All concurred. | [
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] |
Per Curiam.
This is an appeal from a decision of the Macomb county circuit court, which allowed recovery on the dismemberment clause of an accidental death and injury, nonrenewable, five-day term insurance policy, issued November 14, 1963, to the plaintiff. On November 15, 1963, the plaintiff suffered an injury to his left eye while chopping sticks for a deer-hunting campfire. Plaintiff’s doctor indicated in his reports, which were admitted into evidence,. that there was a visual reduction in the left eye, which was correctable to 20/200. Counsel for plaintiff contends that this represents an 80% sight loss. The report of another doctor, also admitted into evidence, states that the “patient [plaintiff] is at present able to obtain a vision of about 75% of normal.” It was established that there was a scar of the cornea and a traumatic cataract present, and a partial dislocation of the lens of the left eye.
The question of law presented to the trial court was the interpretation of the term in the insurance policy which provided that $5,000 would be paid “for loss of * * * [the] sight of one eye.” The policy definition provides that “loss” means the “irrecoverable loss of the entire sight.”
The trial court found that the plaintiff’s injured eye was inadequate for normal visual functions, and that such injury was included within the reasonable meaning of the policy requirements, and granted judgment to plaintiff in the amount of $5,000 in accordance with the payment provisions of the insurance policy.
Defendant contends that plaintiff’s loss does not come within the coverage of the policy, inasmuch as the plaintiff did not suffer the irrevocable loss of the entire sight of the left eye. The policy defines eye loss to mean the “irrecoverable loss of the entire sight” thereof. Defendant further contends that the plaintiff had correctable vision up to 75% of his normal vision, according to one doctor, and to 20/200 •according to another doctor; and that such sight loss does not fall within the policy terms.
The plaintiff contends that the proper reading and interpretation of the policy language would place the coverage upon the loss of useful sight, and that •loss of sight in the literal sense of utter blindness is not necessary in order to recover under the policy. He further contends that the Federal government’s formula for total blindness, as applied to the Federal income tax, states as follows:
“If the central visual acuity does not exceed 20/200 in the better eye with corrective lenses, you are blind.” Publication No. 17, U. S. Treasury Department, Your Federal Income Tax, 1968 Edition.
“The entire sight is lost although it is not completely destroyed, if what sight is left is of no practical use or benefit.” Pan-American Life Insurance Co. v. Terrell (CA 5, 1928), 29 F2d 460, 461.
This Court is asked to determine that “useful sight” or “practical use” is the test, rather than “entire loss of sight..” Case law in Michigan does not disclose a definition of “irrecoverable loss of the entire sight of the eye.” However, the courts on many occasions have spoken very definitely upon the language construction of insurance policies.
“In Kingsley v. American Central Life Ins. Co. (1932), 259 Mich 53, 55, the Court quoting Imperial Fire Ins. Co. v. Coos County (1893), 151 US 452, 463 (14 S Ct 379, 38 L Ed 231) stated:
“ ‘Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense.’ ” Economy Mills of Elwell, Inc. v. Motorists Mutual Insurance Company (1967), 8 Mich App 451, 461.
The Michigan Supreme Court reversed the trial judge in a non-jury judgment in favor of the plaintiff in Edgar’s Warehouse, Inc. v. U. S. Fidelity & Guaranty Co. (1965), 375 Mich 598. This involved the language of a burglary policy and the coverage thereof. The Supreme Court affirmed Michigan’s adherence to the rule laid down by Sturgis National Bank v. Maryland Casualty Co. (1930), 252 Mich 426, where it was said that no forced or strained meaning would be given words in an insurance policy and the court would not make a new contract with the parties under the guise of construing the existing contract:
“There are exceptions to the rule that the wording of an insurance policy will be construed most strongly in favor of the insured. * * * that no forced or strained meaning will be given to words that is contrary to the obvious intent of the parties. * * *
“The court will not make a new contract for parties under the guise of a construction of the contract, when in so doing it will ignore the plain meaning of words.” 252 Mich 426, 429.
If it appears that the insured still has some sight in the injured eye, he is not entitled to recover under a provision in the policy which provides that the loss of an eye shall mean the irrecoverable loss of the entire sight thereof. Under the present Michigan law, a 75% or 80% loss of an eye is not loss of the entire sight, as required by the terms of the policy in question. Such an injured eye may have little practical use and it may come within the meaning of industrial loss of vision, but for this Court to find such a total loss of sight, we would have to change the meaning of the policy language, vis., “irrecoverable loss of the entire sight.”
The terms of the policy in the instant case are not ambiguous; the insured did not suffer an irrecoverable loss of the entire sight of his eye, within the terms of the policy under which his claim is made.
Judgment of the trial court is reversed. Costs to appellant. | [
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] |
J. H. Gillis, P. J.
Plaintiff, Muriel Hurt, appeals from a final order of dismissal entered by the circuit court for the county of Saginaw in favor of defendant, Vernal Cambridge, dismissing with prejudice plaintiff’s suit for lack of prosecution.
On May 5, 1965, plaintiff commenced this medical malpractice action against defendant physician. Defendant’s answer, together with a motion for summary judgment and to strike portions of the complaint, was filed on May 24, 1965. Two days later, plaintiff demanded trial by jury. Thereafter, no action was taken by either party and on July 14, 1966, the case appeared on the trial court’s no-progress calendar for dismissal on September 12, 1966.
On August 29, 1966, plaintiff filed a motion seeking removal of the ease from the no-progress calendar. Accompanying this motion was an affidavit wherein plaintiff’s attorney asserted that the case was ready for immediate trial. On the same date, plaintiff praeciped the case for trial. Subsequently, on August 31,1966, the trial judge, without affording defendant an opportunity to he heard, signed an order submitted by plaintiff removing the case from the no-progress calendar.
On September 12, 1966, defendant filed a motion to set aside the court’s order removing the case from the no-progress calendar and to dismiss the case for lack of prosecution. A notice of hearing accompanied the motion, but it was not praeciped at this time. It was defendant’s contention that the affidavit accompanying plaintiff’s motion to remove was insufficient under the local court rule, since no reasons for lack of progress were set forth in the affidavit. Plaintiff’s attorney then filed a supplemental affidavit in support of the motion to remove, asserting that the lack of progress was the result of his inadvertent failure to praecipe the case for trial.
On August 15, 1968, 23 months after it was filed, defendant praeciped the motion to vacate and to dismiss for hearing and on August 19, 1968, oral arguments were presented on the motion. In a written opinion dated January 23, 1969, the trial court granted defendant’s motion to set aside the prior order of removal and dismissed the action for lack of progress. This appeal followed.
On appeal, both parties suggest that the question which we must decide is whether the trial court abused its discretion in dismissing plaintiff’s action for lack of prosecution. Both parties address their arguments to the situation as it existed upon plaintiff’s motion to remove the case from the no-progress docket. Plaintiff contends that the failure to praecipe the case for trial is not such a want of prosecution as would justify dismissal. Defendant contends that the explanation offered by way of plaintiff’s supplemental affidavit for failure to praecipe is not such an excuse as would justify removal of the case from the no-progress docket.
We agree with the suggestion of the parties that the controlling question on this appeal is whether the trial court abused its discretion in dismissing plaintiff’s action. As this case reaches us, its posture is comparable to that which exists upon a motion to reinstate a cause after dismissal for lack of progress pursuant to GCR 1963, 501.3. In the latter situation, the question of reinstatement is a matter within the discretion of the trial court. Robinson v. Washtenaw Circuit Judge (1928), 242 Mich 548; Hoad v. Macomb Circuit Judge (1941), 298 Mich 462; Reynolds v. Dobbertin (1962), 366 Mich 162; Corley v. Krawcsalc (1969), 16 Mich App 176. The trial judge must determine whether good cause has been shown why an order reinstating the case should issue. We think issuance of an order, such as in this case, denying removal of a case from the no-progress docket is likewise within the trial court’s discretion. It follows that we cannot reverse the order here challenged unless we are satisfied that the trial court abused its discretion in denying removal and dismissing plaintiff’s action. Moreover, as defendant suggests, our review is restricted to determining whether there is any justification in the record for the ruling of the trial court.
“ ‘To warrant such interference, the abuse ought to be so plain that upon consideration of the facts upon which the trial judge acted, an unprejudiced person can say that there was no justification or excuse for the ruling made.’ ” Hoad v. Macomb Circuit Judge, supra, at 468, quoting Cooper v. Carr (1910), 161 Mich 405, 412.
Defendant contends that plaintiff’s failure to praecipe the case for trial justifies an order denying removal from the no-progress docket. On the record before us, we cannot agree.
At common law, the failure to prosecute a cause with due diligence exposed neglectful parties to judgments of nonsuit and non prosequitur. 3 Blackstone, Commentaries (1768), 295, 296. In Abe Stein Co. v. Wood (1908), 151 Mich 657, the Court construed a statutory provision codifying the common-law practice. Plaintiff’s action, as in this case, had been dismissed for lack of prosecution. As here, the ground relied upon as justifying dismissal was plaintiff’s failure to notice the ease for trial. The Court, however, noted that under rules of practice then in effect a defendant had equal rights to praecipe for trial. Since defendant had likewise failed to notice the case for trial, he was “ ‘deemed tacitly to assent to the delay.’ ” 151 Mich at 660, quoting 1 Green’s New Practice (2d ed), p 499. Accord, Joy v. Two-Bit Corporation (1938), 287 Mich 244. The Court concluded:
“We are therefore of the opinion that since the adoption of Rule 54 [permitting defendant to praecipe for trial], the reason for dismissing a cause for want of notice * * * no longer exists, and that some neglect to bring said cause to trial, other than a mere failure to notice the cause, should be shown before a nonsuit should be ordered.” 151 Mich at 661. (Emphasis supplied.)
In the present ease, it is clear that defendant possessed equal rights to notice the case for trial. The case was at issue, and under the local rules of practice then in effect, “any attorney desiring to obtain a trial or hearing thereof shall fill a praecipe for hearing with the clerk * * * .” Saginaw County Circuit Court Rules, Part I, Rule No 3. (Emphasis supplied.) That no proceedings were taken in this case within one year of plaintiff’s demand for jury trial cannot be attributed to plaintiff alone. Defendant himself failed to praecipe the case for trial. Abe Stein Co. v. Wood, supra; Joy v. Tivo-Bit Corporation, supra.
In Sayre v. Detroit, G. H. & M. R. Co. (1917), 199 Mich 414, the Court, by way of dictum, answered the very question now before us. In Sayre, plaintiff’s action had been dismissed for lack of progress. A statute then in effect provided for dismissal of actions where no action had been taken for more than one year, unless cause was shown to the contrary. As in the present case, the action appeared on the no-progress calendar as a result of plaintiff’s failure to notice the case for trial. In reversing the dismissal, the Court noted at 421, 422:
“But when the motion of defendant was made in the case at bar, it stood in form upon the records of th'e court at issue, ready for trial. A notice from either party would have placed it upon the trial docket. * * * Assuming that [the trial court] had authority and that the question of judicial discretion and its abuse is before us, no default of plaintiff except failure to bring the cause on for trial is involved, for which defendant at all times had a remedy by itself bringing the cause on for trial." (Emphasis supplied.)
Both Abe Stein Co. v. Wood, supra, and the Sayre case appear to require the conclusion that it is an abuse of discretion for a trial court to deny removal of a case from the no-progress docket, or to deny reinstatement after dismissal, solely on the ground that plaintiff failed to praecipe for trial. "We need not, however, decide whether defendant’s failure in this case to notice for trial, standing alone, required removal of the case from the no-progress docket. "We hold only that defendant’s acquiescence in the year’s delay was one among other relevant circumstances to be considered upon plaintiff’s motion to remove.
In its opinion granting defendant’s motion to dismiss for lack of prosecution, the trial court, although the question was before it, did not expressly decide whether plaintiff had shown sufficient justification for removal of the case from the no-progress docket. We find it necessary, however, to decide the question of justification since the issue is properly before us and, if resolved in defendant’s favor, it affords grounds for affirmance.
Both G-CB. 1963, 501.3, and the circuit court rules for the county of Saginaw justified -placement of plaintiff’s action on the trial court’s no-progress docket. It is undisputed that no proceedings were taken in this case within one year of the last calendar entry — plaintiff’s demand for a jury trial. However, upon plaintiff’s timely motion for removal from the no-progress docket, the case was not subject to dismissal,
“If at the call it is shown that the failure to take steps or proceedings is not due to the plaintiff’s fault or lack of reasonable diligence on his part * * * .” GCR 1963, 501.3.
Likewise, under the rule of practice for the county of Saginaw, the cause was not subject to dismissal if plaintiff explained the lack of progress to the satisfaction of the trial court. Under both rules, what is required is some showing of good cause why the action should not be dismissed. See generally 3 Callaghan’s Michigan Pleading & Practice, § 32.55.
In his supplemental affidavit accompanying plaintiff’s motion to remove, plaintiff’s counsel explained that he was unaware of the local court rule requiring a party to file a praecipe in order to secure trial. He asserted that all of his court experience had been in Genesee county where, under local rules of practice, cases were automatically advanced on the trial docket without the filing of praecipes. On appeal, the facts contained in counsel’s affidavit are not disputed. However, defendant contends that the explanation offered is legally insufficient to justify removal of the case from the no-progress docket.
In Michigan, the neglect of an attorney is generally regarded as attributable to his client. See White v. Sadler (1957), 350 Mich 511, 522. Nevertheless, at times courts have held that counsel’s inaction, explained on the ground of inadvertence, constituted sufficient excuse for failure to prosecute a claim with diligence. See Anno: “Attorney’s Inaction as Excuse for Failure to Timely Prosecute Action,” 15 ALR3d 674.
In Marquette Appliances, Inc. v. Wexler (ED Penn, 1960), 27 FRD 484, plaintiff’s action appeared on the court’s no-progress docket as a result of counsel’s failure to notice the case for trial. The failure was explained on grounds of inadvertence. Plaintiff’s original attorney had withdrawn and succeeding counsel was unaware that the case had never been noticed for trial. The court held the explanation sufficient and removed the case from the no-progress docket. We think the situation in the present case is comparable.
Nothing in this record suggests that counsel’s failure to praecipe for trial was a deliberate omission. This is not a case where the lack of progress is due to the obstinate refusal of a party to abide by the rules of court. See generally, 3 Callaghan’s Michigan Pleading & Practice, § 32.53. Nor is it a case where counsel’s omission is wholly unexplained. Compare Banta v. Serban (1963), 370 Mich 367.
In Luplow v. Aubry Cleaners & Dyers, Ine. (1962), 366 Mich 353, a default judgment was entered against defendant for nonappearance at pretrial. On appeal, the default was vacated. The circumstances which persuaded the Court to remand the case for trial on the merits were noted at 358:
“The cause was at issue under the pleadings, a jury had been demanded, and the explanation of defendant’s counsel as to his failure to appear at the pretrial, which apparently was not disputed, indicated that his omission to attend the pretrial was not deliberate or premeditated but resulted from the fact that he was engaged in the trial of another case and overlooked the pretrial. For suck omission defendant should not be penalized * * * .” (Emphasis supplied.)
In this case the same circumstances were present when plaintiff’s attorney sought to remove the ease from the no-progress docket. "We conclude that sufficient justification for removal had been shown. Plaintiff should not have suffered the “drastic sanction,” see Banta v. Serban, supra, at 369, of dismissal with prejudice because of her counsel’s inadvertent failure to praecipe for trial. In this regard, we are persuaded that the policy of the law favoring disposition of litigation on the merits required removal of the case from the no-progress calendar.
An additional consideration leads us to conclude that plaintiff’s action should not have been dismissed for lack of progress. The record in this case indicates that at the time defendant’s motion to dismiss was heard plaintiff was prosecuting her claim with diligence.
On September 12, 1966, defendant filed his motion to vacate the order of removal and to dismiss for lack of progress. No praecipe for hearing on the motion was filed, however, until August 15, 1968 In the interim, defendant submitted interrogatories to plaintiff which were promptly answered. On June 16, 1967, plaintiff’s attorney inquired of the court when the ease would be reached for trial. He ivas informed by the clerk that it would take another year to reach trial. On July 5, 1968, plaintiff completed and filed with the court a pretrial information form. Thereafter, plaintiff attended a pretrial conference. Immediately after the hearing on defendant’s motion to dismiss for lack of progress, plaintiff filed an amended complaint which was answered by defendant. The record also reveals that the depositions of several medical witnesses were taken by plaintiff. All of these actions indicate plaintiff’s interest in and desire to prosecute her case.
In Robinson v. Washtenaw Circuit Judge, supra, at 550, the Court noted that the purpose of no-progress dismissals is “ ‘to clean up the deadwood which accumulates in circuit courts.’ ” We fail to see how the dismissal in this case served to eliminate deadwood from the trial court’s docket. Unlike the situation in cases relied on by defendant, plaintiff moved promptly to have her case removed from the no-progress docket, filed the requisite praecipe, and thereafter prosecuted the case with diligence.
Defendant contends that we should affirm on.the ground that he has been prejudiced by the long-delay in this case. The trial judge found as a fact that several physicians who had treated plaintiff before and after the alleged malpractice had died. Apparently, the trial judge concluded that the unavailability of such testimony justified dismissal. We cannot agree.
Defendant’s motion to set aside the order of removal and to dismiss for lack of prosecution was filed on September 12, 1966. The motion raised a question of law for the court and it was then defendant’s burden to secure a prompt hearing on the motion. No hearing was held, however, until August 19,1968. In the interim, the deaths now relied on by defendant as justifying dismissal occurred.
We think it apparent that defendant himself was responsible for the allegedly prejudicial delay. Since defendant failed to obtain a prompt hearing on his motion to vacate the removal and to dismiss for no progress, we hold that he thereby acquiesced in the delay. Cf. Abe Stein Co. v. Wood, supra, at 660; Joy v. Two-Bit Corporation, supra, at 251. Plaintiff should not have been charged with delay occurring after defendant’s motion had been filed. See 3 Callaghan’s Michigan Pleading & Practice, § 32.54. Nor was dismissal justified on the ground that the defense had been prejudiced.
In summary, we are satisfied “ ‘upon consideration of the facts upon which the trial judge acted * * * that there was no justification or excuse for the ruling made.’ ” Hoad v. Macomb Circuit Judge, supra, at 468.
The order of the trial judge dismissing the action is vacated. The case stands removed from the no-progress calendar, and we remand for further proceedings. Costs to plaintiff.
All concurred.
Plaintiff’s motion was filed pursuant to Saginaw County Circuit Court Eules, Part I, Eule No 16, then in effect. (Now Saginaw County Circuit Court Eules, Part I, Eule No. 6.) The rule then in effect was as follows:
“Pour weeks prior to the opening of each term of court, a list of cases to be dismissed under the statute for want of prosecution shall be provided by the clerk and shall be published in the Saginaw Press in its issue of that week and three following weeks. The cases listed in the no-progress calendar shall be dismissed by the presiding judge on the first day of the term of court unless the attorneys interested in said eases and desiring to have them removed from the ‘no-progress’ calendar shall take the following steps before the first day of the term.
“(a) Praeeipe, file and serve a motion on opposing counsel or the opposite party if no counsel appears, praying, that the cause may be taken from the no-progress calendar, accompanying the same with an affidavit setting forth the reasons for lack of progress. Pile proof of service of the above motion with the clerk. Notice said hearing for the opening day of each term of court.” (Emphasis supplied.)
And see GCE 1963, 501.3.
Under the local circuit court rules then in effeet, eases were not automatically placed on the trial docket. A party desiring to obtain a trial was required to file a praeeipe for hearing with the assignment clerk.
“Whenever any cause either at law or in chancery shall be at issue as to all parties, any attorney desiring to obtain a trial or hearing thereof shall file a praeeipe for hearing with the clerk * * * .” Saginaw County Circuit Court Eules, Part I, Eule No 3.
Plaintiff had noticed the motion to remove for hearing on September 12, 1966. It is apparent from the record that defendant had not seen the proposed order before its entry, nor had defendant waived notice of entry on plaintiff’s motion. A copy of the letter enclosing the proposed order was, however, sent to defendant’s counsel.
Por purposes of this appeal, we assume that the initial order removing the case from the no-progress docket was invalid. The order was ex parte; defendant was not given the opportunity to be heard. Cf. Sayre v. Detroit, G. H. & M. R. Co. (1917), 199 Mich 414. However, any error in this regard was subsequently cured. Defendant was given full opportunity to be heard upon his motion to vacate the prior order of removal, See text, infra,
See fn 1, supra.
The trial court’s order vacated the prior order of removal and thus related baek to the situation as it existed upon plaintiff’s motion to remove. We treat the order setting aside the removal as equivalent to a denial of plaintiff’s motion to remove.
“When an issue of fact shall be joined in any cause, and the plaintiff shall neglect to bring such an issue to trial, according to the course and practice of the court, such eourt, on the application of the defendant, may give the like judgment for the defendant as in eases of nonsuit, or may, upon just terms, allow a further time for the trial of such issue.” CL 1897, § 10252.
“Lee [defendant] neither praeciped the principal ease for trial nor sought an early hearing and, therefore, he acquiesced in the delay.” 287 Mich at 251.
Compare Stone v. Stone (1910), 162 Mich 319, 322.
“All'causes in which no action has been taken or progress made for more than one year unless by reason of the business of the court the same shall not have been reached, shall be plaeed upon said calendar separate and apart from all other causes, under the following heading: ‘Causes in which no progress has been made for more than one year;' and on the 'first day of each term, any cause appearing under this heading shall be dismissed by the eourt for want of prosecution, but without prejudice, at the cost of the party by whom it was brought into eourt, unless cause be then and there shown to the contrary.”
CL 1915, § 12574. Compare OCR 1963, 501.3.
See fn 2, supra.
In Meeker v. Rizley (CA 10, 1963), 324 E2d 269, plaintiff’s action was dismissed for his failure to appear at a court-ordered pretrial conference. Compare GCR 1963, 504.2. The court of appeals reversed, noting at 271:
“There is no indication in the record that the plaintiff had been * * * inclined to deliberately disobey any order of the court foi the purpose of delay. Plaintiff’s only infraction was his failure to appear at a hearing on pretrial * * * . While we cannot excuse the failure to be present when these matters were noticed for hearing, still, if we treat the court’s action as a dismissal, such action, under the circumstances of this ease, was too drastic and a clear abuse of discretion.” (Emphasis supplied.)
Aeeord, Castlegate, Inc., v. National Tea Company (D Colo, 1963), 34 FRD 221, 225. Compare Link v. Wabash R. Co. (1962), 370 US 626 (82 S Ct 1386, 8 L Ed 2d 734).
“The trend of our jurisprudence is toward meritorious determination of issues.” Walters v. Arenac Circuit Judge (1966), 377 Mich 37, 47. See also Abe Stein Co. v. Wood, supra, at 660; Rudd v. Rogerson (1963), 152 Colo 370 (381 P2d 995, 15 ALR3d 668); Meeker v. Risley, supra, fn 11 at 271, 272.
At the hearing on defendant’s motion to dismiss, both the trial judge and the parties confined their review of the case to the situation as it existed upon plaintiff’s motion to remove. On appeal, the parties likewise fail to consider the posture of the ease as it existed when defendant’s motion to dismiss was heard. In our view, the total history of the litigation, ineluding prosecution after plaintiff’s motion to remove, should be considered. See Burton v. Snow (1911), 165 Mich 530, 534. This is true here, since the aetion had been removed from the no-progress calendar and defendant failed to secure a prompt hearing on his motion to vacate the order of removal and to dismiss for lack of progress. See text, infra. In the interim, plaintiff prosecuted the aetion with diligence. Unless the entire history of the litigation is considered, an important factor is overlooked. Namely, by her subsequent diligence, plaintiff demonstrated her interest in and desire to pursue this aetion.
By court rule, the filing of a praecipe for all motions was required. Saginaw County Circuit Court Rules, Part I, Rule No 12.
In Burton v. Snow, supra, at 534, there was “no evidence of preparation or of purpose to bring the cause to a hearing.” In Robinson v. Washtenaw Circuit Judge, supra, at 551, “no attention whatever was given to the plaintiff’s case from March 1, 1926, when it was dismissed, until November 27, 1926, the date of filing the motion to reinstate.” See also Reynolds v. Dobbertin, supra (eight months elapsed before motion to reinstate filed.)
Defendant first filed a praeeipe for hearing on the motion on August 15, 1968, approximately 23 months after the motion was filed. Such action was necessary in order for defendant to secure a hearing. See fn 14, supra. | [
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N. J. Kaufman, P.J.
The American Association of University Professors (hereinafter AAUP) is party to a collective bargaining agreement with Eastern Michigan University (hereinafter EMU), governing the terms and conditions of employment of members of the bargaining unit. On March 26, 1979, AAUP commenced an action in Washtenaw County Circuit Court for damages and specific performance as a result of defendant Robert W. Morgan’s failure to comply with Article VI of the agreement, infra. Plaintiff sought an order directing defendant to pay association dues or to make an equivalent contribution to the EMU scholarship fund as required by the agreement. The court, on December 7, 1979, granted plaintiff’s motion for summary judgment and denied defendant’s motion for summary judgment. It is from this grant that defendant now appeals.
The facts of the instant case are not really in dispute. Briefly, it is uncontested that plaintiff union negotiated a collective bargaining agreement with Eastern Michigan University which in Article VI contained a union security provision, which read as follows:
"During the term of this labor agreement, Faculty Members shall either become members of the Association, or pay a fair share of the expense incurred by the Association due solely to the negotiation and administration of this Agreement as set forth below, or contribute an equivalent amount to the general scholarship fund of EMU.
"For those Faculty Members who are not members of the Association, the monthly fee or contribution shall be an amount equivalent to the monthly dues paid by Association members, less any amount paid for membership in the national AAJJP and less any amount which may presently or in the future be expended by the Association from membership dues for political purposes, or any other purposes not directly related to the cost of negotiation and administration of the labor agreement; in no event shall the annual fee or contribution be more than .75% of a Faculty Member’s base salary less the amounts speciñed above.
"EMU and the Association recognize and respect the rights of any Faculty Member to decline becoming a member of the Association or paying a fee to the Association. Any such Faculty Member who so declines may satisfy his or her obligation hereunder by paying the above specified contribution to the general scholarship fund of Eastern Michigan University.
"The Association shall protect and save harmless EMU from any and all claims, demands, suits, or any costs or fees related thereto by reason of the provisions of this section.
"EMU and the Association agree that the terms provided in this section are not subject to the arbitration and grievance procedure. The parties further agree that the only means for enforcement of the obligations speciñed herein are by civil action for damages or [other] equitable enforcement.
"The dues, fees, or contributions provided herein shall be paid on a monthly basis either by payroll deduction or by direct payment to the Association or scholarship fund commencing with the month following the month in which the Faculty Member completes sixty (60) days of service, or the ratification of this Agreement by both parties, whichever occurs later.” (Emphasis supplied.)
It is further uncontested that defendant is not covered by the Michigan teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq. Both parties also agree that said unit is the exclusive representative of EMU professors. Both the plaintiffs and the defendant’s motions for summary judgment concerned the interpretation and the legality of the above quoted provisions.
On appeal, defendant first contends that he is not contractually bound by the provisions negotiated in the collective bargaining agreement between his employer, EMU, and his bargaining representative, AAUP. He argues that a contract between the employer and the union creates no obligation upon him.
First, it is important to note that AAUP is recognized as the exclusive bargaining agent for employees in the bargaining unit to which defendant belongs. Section 9 of the public employment relations act (PERA) authorizes employees in the public sector to organize for the purpose of collective bargaining. Section 11 of PERA confers upon the exclusive bargaining representative, in this case AAUP, authority to bind employees in the bargaining unit to the terms of the agreement negotiated on their behalf. Section 9 of PERA provides:
"It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representa tives of their own free choice.” MCL 423.209; MSA 17.455(9).
Section 11 of PERA provides:
"Representatives designated or selected for purposes of collective bargaining by the majority of the public employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the public employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment, and shall be so recognized by the public employer: Provided, That any individual employee at any time may present grievances to his employer and have the grievances adjusted, without intervention of the bargaining representative, if the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect, provided that the bargaining representative has been given opportunity to be present at such adjustment.” MCL 423.211; MSA 17.455(11).
These provisions of PERA are essentially identical to Section 7 and Section 9(a) of the National Labor Relations Act (NLRA). Section 7 provides:
"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section [15]8(a)(3).” 29 USCA 157.
Section 9(a) provides:
"Representatives designated or selected for the pur poses of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.” 29 USCA 159(a).
Recognition of the right of an exclusive bargaining agent to bind all unit employees and to act in their interest is a fundamental principal of Federal labor policy. Subordination of the individual employee’s rights to the collective interest of the unit is justified by the increased bargaining power which results when employees pool their economic strength and bargain through a representative. This principle was enunciated by the United States Supreme Court in NLRB v Allis-Chalmers Mfg Co, 388 US 175; 87 S Ct 2001; 18 L Ed 2d 1123 (1967).
Michigan courts have generally relied on the construction given Federal statutes to interpret analogous provisions of state law. Rockwell v Crestwood School Dist Board of Education, 393 Mich 616; 227 NW2d 736 (1975). Our courts have, in fact, recognized the right of an exclusive bargaining agent in the public sector to provide for an "agency shop” in accordance with the provisions of subsection 10(l)(c) of PERA, MCL 423.210; MSA 17.455(10), Ball v Detroit, 84 Mich App 383; 269 NW2d 607 (1978). An arrangement whereby an employee is required to either join the association or pay his fair share of the cost incurred by the association in collective bargaining and administration of the agreement is known as an "agency shop”.
Recognizing the validity of agency shop clauses, appellant nevertheless denies the power of the union to create a financial obligation on the part of a nonunion employee. However, in view of the well-established authority of a bargaining agent to bind all members of the bargaining unit, the significance of defendant’s nonunion status is unpersuasive. Nonunion members are as much "parties” to a bargaining agreement as union members, with the same rights and duties. In fact, they may not be treated differently. Vaca v Sipes, 386 US 171; 87 S Ct 903; 17 L Ed 2d 842 (1967).
The "agency shop” arrangement in the contract in question is specifically authorized by subsection 10(l)(c) of PERA, MCL 423.210; MSA 17.455(10). In 1973, the Michigan Legislature enacted an amendment to § 10 of PERA giving this authorization. This amendment was adopted in response to a decision of the Michigan Supreme Court in Smigel v Southgate Community School Dist, 388 Mich 531; 202 NW2d 305 (1972), which held that Michigan law prohibited an "agency shop” in the public sector. Section 10 of PERA, as amended, provides:
"(1) It shall be unlawful for a public employer or an officer or agent of a public employer (a) to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section 9; (b) to initiate, create, dominate, contribute to, or interfere with the formation or administration of any labor organization: Provided, That a public employer shall not be prohibited from permitting employees to confer with it during working hours without loss of time or pay; (c) to discriminate in regard to hire, terms or other conditions of employment in order to encourage or discourage membership in a labor organization: Provided further, That nothing in this act or in any law of this state shall preclude a public employer from making an agreement with an exclusive bargaining representative as defined in section 11 to require as a condition of employment that all employees in the bargaining unit pay to the exclusive bargaining representative a service fee equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative; (d) to discriminate against a public employee because he has given testimony or instituted proceedings under this act; or (e) to refuse to bargain collectively with the representatives of its public employees, subject to the provisions of section 11.
"(2) It is the purpose of this amendatory act to reaffirm the continuing public policy of this state that the stability and effectiveness of labor relations in the public sector require, if such requirement is negotiated with the public employer, that all employees in the bargaining unit shall share fairly in the financial support of their exclusive bargaining representative by paying to the exclusive bargaining representative a service fee which may be equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative.” (Emphasis added.) (Footnotes omitted.)
This amendment allows for an agreement requiring the payment of service fees by nonunion members in an effort to promote effectiveness of the bargaining unit and to discourage "free riders”. See Detroit Board of Education v Parks, 98 Mich App 22; 296 NW2d 815 (1980).
Defendant’s second argument is that specific performance is not an appropriate remedy to enforce payment of service fees. Section 10 of PERA does not require that an agreement put the nonunion employee on notice that he is subject to discharge if he fails to pay this fee. Although discharge is the sanction most often employed, it is definitely not mandated by the statute. "When a statute provides a beneficial right but no civil remedy for its securance, the common law on its own hook provides a remedy, thus fulfilling law’s pledge of no wrong without a remedy.” B F Farnell Co v Monahan, 377 Mich 552, 555; 141 NW2d 58 (1966). We agree that agency shop fees may be collected from objecting employees by means of a civil suit. It seems that instituting a civil suit to recover agency shop fees from all objecting employees is a more cumbersome method than discharge, and thus rarely used, but certainly not prohibited. See Detroit Board of Education v Parks, supra.
The United States Supreme Court has likewise held that requiring payment of agency shop fees as a condition of employment is constitutionally permissible to the extent that such fees are used for collective bargaining purposes. Abood v Detroit Board of Education, 431 US 209; 97 S Ct 1782; 52 L Ed 2d 261 (1977). Defendant takes the words "as a condition of employment” to require the employer to discharge any nonpaying employee, interpreting participation in the "agency shop” as the only condition upon which continued employment may rest.
While § 10 of PERA does approve the requirement of payment of a service fee as "a condition of employment”, we prefer to give this terminology a liberal interpretation. We do not construe this language as mandating discharge as the only remedy against one who refuses to pay. If the contract, as in the case before us, provides for a civil suit, such suit, while more cumbersome to the union, is certainly more beneficial to the employee. See Detroit Board of Education v Parks, supra. We, therefore, reject the narrow construction defendant has placed upon the statute.
As stated, § 10 of PERA does not mandate any one sanction. This section is, in fact, without its own enforcement mechanism. This is in contrast to the sections on which defendant relies for his argument on exclusivity of remedy. For example, in support of his contention that discharge is the only sanction authorized by PERA, defendant cites Lamphere Schools v Lamphere Federation of Teachers, 67 Mich App 331; 240 NW2d 792 (1976), aff’d 400 Mich 104; 252 NW2d 818 (1977). Lamphere arose under § 6, the antistrike provision of PERA. In that case, when an action for damages was instituted by the school district against the collective bargaining representative, the Court of Appeals ruled that the detailed procedures set forth in §6 for dealing with strikes by public employees evidenced a legislative intent to preclude any sanction other than discharge.
We find Lamphere distinguishable from the case in issue on several grounds. First, the Court, in its decision, relied on § 6 of the PERA, in which discharge is the stated sanction against striking teachers. Unlike the involved scheme of § 6, in § 10 the Legislature has not enacted any complicated mechanisms for dealing with an employee’s refusal to comply with an "agency shop” clause. Because of this absence of specific sanctions, the contract or collective bargaining agreement is not fettered in providing for one enforcement mechanism or another. It is this freedom to contract which is the second ground on which we find Lamphere distinguishable. In addition to the specificity of § 6 of PERA, the contract in question in Lamphere provided for discharge as the remedy against striking teachers. The contract in the case at bar calls for civil suit as the sanction against nonpaying employees. The contract could have provided for discharge, see Detroit Board of Education v Parks, supra, but it did not. Absent any specific prohibition in § 10 of PERA, this Court feels that the agreement’s preference for civil suit is entirely reasonable, and we are loathe to interfere with the plain provisions of the contract.
Another recent case which can be distinguished from the case at bar is Detroit Board of Education v Parks, supra. In this case there was a conflict between the "agency shop” clause and the Michigan teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq. The tenure act prohibited the discharge of a tenured teacher for noncompliance with an "agency shop” clause. The Court held that discharge of a teacher for noncompliance with the clause was permissible, without regard to the tenure act. Here again, we have two factors not present in our case. First, in Parks, we have the tenure act. Defendant Morgan and members of his unit are not covered by such act. Secondly, and again, most importantly, we have in Parks a contract which, unlike the contract in question, calls for discharge as a sanction. Parks, supra, fn 2. Again, the parties in the case at bar could have contracted for discharge as an exclusive remedy, but they did not. As with Lamphere, supra, discharge in Parks was pursuant to a provision of the agreement, a provision not included in the contract between AAUP and EMU.
The final matter for our discussion is defendant’s contention that enforcement of Article VI of the collective bargaining agreement will interfere with his first amendment rights. In Abood v Detroit Board of Education, supra, the Supreme Court of the United States clearly established the bargaining agent’s right to collect association dues. The Court did note, however, that compulsory union dues may impact upon employees’ constitutional rights. It, therefore, held that while employees may be compelled to financially support the union, which has been recognized as their exclusive bargaining agent, they may prevent the union from making political contributions or expressing political views unrelated to its duties as bargaining representative.
Defendant has not alleged any illegal expenditures, neither has he said he has paid into the scholarship fund, the alternative provided for in the agreement. Therefore, defendant’s constitutional attack is probably not ripe for adjudication. However, since Article VI of the agreement provides that no portion of any dues of an employee who is not an association member may be used for political purposes or purposes unrelated to the collective bargaining process, we feel a remand on this issue is appropriate.
In conclusion, we hold that an "agency shop” agreement such as that adopted by AAUP is a lawful union security device, specifically authorized under the Michigan public employees relations act. We further hold that defendant Morgan may be lawfully compelled to live up to the provisions of the agreement through a civil action for damages or specific performance. We do, however, remand to the circuit court on the issue of whether any part of said dues or fees were paid for any purposes other than those stated in the contract. In all other respects, the judgment of the circuit court is affirmed.
Affirmed in part and remanded in accordance with this opinion. This Court does not retain jurisdiction. No costs, neither party having fully prevailed. | [
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Per Curiam.
This appeal was brought to resolve a dispute concerning the priority of a mechanics’ lien over a subsequent mortgage.
In March and April of 1974, John Baas contacted Lewis Weaver, a salesman for Portage Realty Corporation (hereinafter Portage), and discussed the possible construction of several houses, which he intended to resell at a profit. On April 8, 1974, while negotiations with Weaver continued, Mr. Baas entered into an agreement with a salesman from Ford Realty to purchase three vacant lots located on Loves Shore Drive, Algansee Township, Michigan. On May 16, 1974, Baas purchased a fourth lot from Ford Realty, this one located in Hailwood Estates, Coldwater, Michigan. Both purchase agreements stated that John Baas alone was the purchaser of the property.
On May 29, 1974, John Baas executed several agreements with Portage for the construction of houses on the four lots which he was in the process of purchasing. The contracts were written on preprinted forms supplied by Portage and were signed by John Baas as "owner” of the properties. Construction under the contracts was to begin within 14 days from receipt of a letter from the lending institution acknowledging the signing of a mortgage note. Preliminary soil samples were included as part of the contract work to be undertaken by Portage. Mr. Baas paid $200 as an initial deposit for each lot. When the agreements were signed, Portage gave Baas copies of the contracts and general construction plans and specifications, which he submitted to the First National Bank of South Central Michigan to examine for his loan application.
On June 13, 1974, Robert Prestine, a licensed surveyor employed by Portage, completed a topological survey on the four vacant lots. The tests included: soil borings, which required digging a hole three inches in diameter and seven feet deep; percolation tests, which required digging another hole, six inches in diameter and two feet deep; and other tests to determine the elevation of the ground. The results of these tests were submitted to Portage on June 15, 1974. Portage paid Prestine in full for this work.
On June 19, 1974, Weaver, the salesman at Portage who had dealt with Baas, telephoned Daniel Ward, an officer at First National Bank, to discuss the financing of the construction project. Weaver did not mention Prestine’s topological surveys. Ward told Weaver that the Baas loan was approved, that a mortgage agreement would be concluded within two weeks, and a commitment letter to this effect would be sent to Portage.
On June 20 and June 21, 1974, the four lots were deeded to John Baas and his wife Dorcas, as tenants by the entireties. The deeds were recorded with the Register of Deeds on those same dates. A copy of these deeds were mailed to Portage.
On July 1, 1974, Portage delivered blueprints of the final construction plans for each lot to Mr. Baas. The plans also contained the topographical data which had been obtained from Prestine’s surveys.
On July 9, 1974, Mr. and Mrs. Baas executed mortgages on the four parcels of land to the defendant First National Bank in the amount of $20,000 each for the three houses on Loves Shores and $25,000 for the house on Hailwood Estates. Ward, the bank officer, sent Portage a letter informing Portage of the loans "for Mr. John J. Baas”. The mortgages were recorded on July 11, 1974.
On July 13, 1974, Weaver notified his home office that, at John Baas’s request, the construction payments would be made by him rather than by the bank. The defendant bank had deposited the mortgage funds into the John J. Baas Trust Account, which could be withdrawn at any time by either John or Dorcas Baas.
On July 30, 1974, Robert Prestine staked the properties. Excavation work commenced on July 31, 1974. The construction work was performed as scheduled in the agreements, but payments by Baas did not follow the periodic draw requests. Although all of the moneys were withdrawn from the trust account, the funds were not used to pay Portage. Portage did pay all of its suppliers and employees in full according to the prearranged schedule. Portage did not made any inquiry of the defendant bank concerning the nonpayment of its draws until November 25, 1974, when all of the money had already been withdrawn from the trust account. On December 6, 1974, when construction was completed, Portage was owed $50,186. Four mechanics’ liens were filed on January 27, 1975, and the requisite notices were posted.
The bank later sold the properties and discharged the mortgages on August 25, 1975, September 15, 1975, September 22, 1975, and December 24, 1975. The money was placed in an escrow account due to the pending lawsuit.
A trial was held before the Branch County Circuit Court in August of 1976. In a decision issued on June 21, 1978, the trial court determined that the mechanics’ liens did not have priority over the mortgages. The trial court found that there was no express or implied agreement by the bank to assure that Mr. and Mrs. Baas would make the construction progress payment. Furthermore, the trial court stated that the topographical tests did not constitute a "commencement” within the meaning of the mechanics’ lien statute, since the bank had no visible notice that construction had begun. Alternatively, the trial court determined that a valid lien could not attach to these properties because the contracts had been signed by John Bass alone, and the title to the property was held by John and Dorcas Baas. The trial court found that Portage was derelict in failing to deter mine who held title to the property. The trial court did enter a judgment of $50,186 for Portage against Mr. and Mrs. Baas. Portage now appeals that portion of the trial court’s decision which pertains to its mechanics’ liens.
The first issue we consider on appeal is whether the mechanics’ liens could attach to the entireties property where only the husband had signed the construction contracts.
Michigan’s mechanics’ lien statute contains the following provision dealing with land held by the entireties, MCL 570.2; MSA 26.282:
"Sec. 2. In case the title to such lands upon which improvements are made is held by husband and wife jointly, or in case the lands upon which such improvements are made are held and occupied as a homestead, the lien given by this act shall attach to such lands and improvements if the improvements be made in pursuance of a contract in writing signed by both the husband and wife.”
Apparently, the purpose of this provision is to protect the nonsigning spouse from a debt to which he or she did not agree, and indeed, of whose existence he or she may be completely unaware. See Wallich Lumber Co v Golds, 375 Mich 323, 328; 134 NW2d 722 (1965).
However, at the time that John Baas signed the construction agreements with Portage, the property was not yet owned by John and Dorcas as tenants by the entireties. Indeed, John Baas alone had an equitable interest in these lots. The owner of an equitable interest in land holds a property interest to which a lien may attach. Wyoming Park Lumber & Fuel Co v Vander Ark, 291 Mich 496, 501; 289 NW 228 (1939).
In Leverenz Lumber & Building Co v Rickels, 251 Mich 57; 231 NW 112 (1930), Mr. Hoppe signed a construction agreement with a building contractor. Several days later, the land was bought and deeded to Hoppe and his wife, but this deed was not recorded. The materials and labor were supplied subsequent to execution of the deed. The Court upheld the validity of the mechanics’ lien, saying that the lien claimants had a right to rely on the title as it stood at the time the construction contract was signed, absent actual or constructive knowledge that title to the property had been taken by the entireties. The Court said that to hold otherwise would allow a dishonest owner to avoid the lien by signing a contract and thereafter conveying the property to himself and his wife and withholding the deed from record.
In Lewis Manufacturing Co v Lee, 268 Mich 383; 256 NW 457 (1934), the sole vendee under a land contract signed an agreement to purchase construction materials prior to the execution and recording of the deed to the vendee and his wife. The Court found that the contractor’s liens were valid, although his claim was refused for failure to comply with the notice requirement of the statutes.
The appellee would distinguish these cases because Portage had actual knowledge that title to the property was by the entireties, having received a copy of the deeds. However, under Leverenz, supra, this would only be true if no work had been done until after title had changed.
On May 29, 1974, when Mr. Baas signed the contracts with Portage, he had the sole interest in the property. The deeds which passed an interest to John and Drocas were not executed until June 20 and 21, 1974. Certainly, this change of ownership could not defeat any claim if work had com menced prior to June 20, otherwise the contractor, laborers, and materialmen would be required to periodically check on the status of the title and obtain new contracts each time. We do not think this was contemplated by the mechanics’ lien statute, which at MCL 570.1; MSA 26.281 allows a lien to attach "to the extent of the right, title and interest of such owner, part owner or lessee at the time work was commenced, equipment leased or materials were begun to be furnished by the contractor under the original contract.”
In order to resolve this issue, therefore, we must determine whether work had "commenced” prior to the time that the deed was executed.
In Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184, 188-189; 253 NW2d 646 (1977), the Supreme Court rejected prior restrictive interpretations of the mechanics’ lien law and stated that this was a remedial statute designed to protect those who furnish labor and materials in connection with the improvement of land, and must therefore be liberally construed.
Section 1 of the mechanics’ lien act, MCL 570.1; MSA 26.281, includes engineering services within its scope. Portage performed engineering services in the form of soil samples and topological surveys prior to the time that Mr. and Mrs. Baas acquired title to the land by the entireties. Therefore, we find that the mechanics’ liens in favor of Portage were valid and had attached to the property.
The next issue for our determination is whether the mechanics’ liens had priority over the mortgage in favor of First National Bank.
Under the Supreme Court’s recent pronouncement in Williams & Works, Inc v Springñeld Corp, 408 Mich 732; 293 NW2d 304 (1980), the priority provision of the mechanics’ lien act, MCL 570.9; MSA 26.289, was unchanged by amendments to § 1 of the act, which were revised to include the furnishing of engineering services as lienable work. The relevant portion of MCL 570.9; MSA 26.289 provides:
"Third, They [mechanics’ liens] shall be preferred to all other titles, liens or incumbrances which may attach to or upon such building, machinery, structure or improvement, or to or upon the land upon which they are situated, which shall either be given or recorded subsequent to the commencement of said building or buildings, erection, structure or improvement.”
The Court held that in order to take precedence in a priority dispute, the mechanics’ lien must be based on some visible, on-site activity which occurred prior to execution of the mortgage instrument.
Furthermore, the Supreme Court said that the mortgage lender’s actual knowledge of, or even its utilization of, any off-site or nonvisible engineering services or plans which were performed prior to the giving of the mortgage would not alter the result vis-a-vis commencement. Thus, the fact that First National had a copy of the contracts which Baas had signed with Portage and which clearly provided for soil testing and other engineering services does not constitute a waiver or estoppel on the part of the bank.
Affirmed. Costs to defendants. | [
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] |
D. E. Holbrook, Jr., P.J.
Plaintiff brought this action for damages caused by the negligence of Rogers and Harold V. Sanders in the operation of their automobiles. On the date of the accident, Rogers had had two beers and was drinking a beer while driving. Such evidence went to the jury. He was driving above the speed limit and stayed in the passing lane after passing another automobile. Rogers testified that he noticed Sanders’ vehicle moving up rapidly from behind and was somewhat nervous because it appeared to be traveling at a high rate of speed. Sanders bumped Rogers’ car, braked, and then shot into the on-coming traffic and collided with plaintiffs automobile. Sanders was killed and plaintiff was seriously injured. A jury awarded damages of $40,000 against both defendants. Rogers appeals as of right.
The primary basis of defendant Rogers’ negligence is that he slowed his vehicle down while in the passing lane even though he was aware that a car was approaching rapidly from behind. A jury might reasonably have found that Rogers’ consumption of beer added to his careless conduct of slowing down.
Rogers argues that he is entitled to a new trial because the trial court erroneously excluded evidence of a blood alcohol test of Sanders performed by a medical examiner after the accident. He contends that had the jury known that Sanders was under the influence of alcohol, they would have been more likely to find Sandérs totally to blame for the collision. We agree. A clinical toxicologist testified at an evidentiary hearing that the blood alcohol sample from Sanders was .21 by weight. This level is twice the level for a legal presumption of driving under the influence and would significantly affect the ability to drive an automobile. There would be visual disturbances in gauging distances and motion, and in some cases there would be double vision. Motor skills such as braking, steering coordination, and reaction time would be severely affected.
In a negligence action, in order to show proximate cause, the plaintiff must prove that the injury was a probable, reasonably anticipated, and natural consequence of the defendant’s negligence. Proximate cause is not established where there is an intervening and superseding cause of the injury. An actor’s negligent conduct will not be a legal cause of harm to another unless that conduct was a substantial factor in bringing about the harm. When the jury found Rogers guilty of negligent driving it did not have knowledge of all the relevant facts. Evidence of Sanders’ consumption of alcohol was relevant to the issue of negligence and proximate cause. Such evidence could likely have resulted in the jury’s finding that the negligence of Harold Sanders was an intervening and superseding cause.
In Hubenschmidt v Shears, 403 Mich 486; 270 NW2d 2 (1978), deaths occurred in trafile accidents where the use or abuse of alcohol or other substances may have been a factor. The removal of blood from a dead body for purposes of testing was found not to be unreasonable under the circumstances and did not shock the conscience or the court’s sense of justice. Issues such as search and seizure, right to privacy, security of person, or statutory construction which could be raised in cases dealing with extraction of a blood sample from a living person do not apply. The right to privacy is a personal one ending with the death of the person to whom it is of value. It may not be claimed by his. estate or by his next of kin. In Hubenschmidt, supra, 490, the Court stated:
"Evidence of the consumption of alcohol by the decedents in these wrongful deaths could potentially be relevant to the issue of contributory negligence raised as an affirmative defense by each defendant. If the proponents of the evidence can show the requisite foundation establishing the integrity of the test results and the evidence is determined to be relevant by the trial judge, the results may properly be admitted into evidence at trial.”
In the instant case, there is no question as to the integrity and reliability of the test results. The requisite foundation was established. Defendant Rogers was severely prejudiced by the admission of evidence regarding his drinking of alcoholic beverages while similar and more damaging evidence relating to the codefendant’s decedent’s consumption of same was withheld from the jury. As in Hubenschmidt, supra, such evidence was relevant to the issue of negligence and proximate cause. It should not have been excluded.
Having examined defendant Rogers’ remaining allegations of error, we find them to be without merit.
Reversed and remanded. Costs to appellant. | [
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Per Curiam.
Plaintiff was involved in an accident on January 28, 1977, while driving a truck in the course of his employment for Chevrolet Motor Division of General Motors Corporation. His employer’s truck was insured by defendant Royal Globe Insurance Company. At the time of the accident, plaintiff’s private vehicle was insured by defendant Citizens Mutual Insurance Company.
Plaintiff requested payment of benefits from both defendants under the personal injury protection provisions in each no-fault insurance policy. Both defendants refused payment. Plaintiff filed a complaint for declaratory relief in Genesee County Circuit Court July 2, 1979, for a determination of which of the two defendants was responsible for providing him with personal protection insurance benefits from the date of the accident, plus attorney fees.
Service of the summons and complaint were made upon defendant Royal Globe by leaving a summons and a copy of the complaint with an employee of Royal Globe’s Flint claims office on July 9, 1979.
Defendant Royal Globe filed a motion for accelerated judgment on July 18, 1979, pursuant to GCR 1963, 116.1(5), stating that the service of the summons and complaint upon its agent at its Flint office was not in compliance with GCR 1963, 105.4, which requires service by delivery or registered mail to the commissioner of insurance of two summonses and a copy of the complaint. Royal Globe asserted that plaintiff failed to provide it with written notice of the injury within one year following the date of the truck accident and that plaintiff’s action was barred by § 3145(1) of the no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq.
Defendant Royal Globe filed an affidavit of the manager of its Flint claims office who averred that, from personal knowledge and a review of the company records and files, he was unable to recall or find any record of a written notice of injury and claim for personal insurance protection benefits from the plaintiff. The manager stated that Royal Globe’s first notice of plaintiff’s claim was the summons and complaint served on July 9,1979.
Plaintiff filed no counter affidavits. Shortly before the hearing on the motion, defendant Royal Globe’s counsel was shown a carbon copy of a letter plaintiff’s counsel said was mailed to defendant on December 13, 1977, claiming personal protection benefits for plaintiff. Plaintiff’s counsel read the contents of this letter into the record at the hearing. Defendant Royal Globe denied having received the letter, and argued that service was defective under GCR 1963, 105.4 and that plaintiff’s action was barred by § 3145(1) of the no-fault act.
The trial court granted defendant Royal Globe’s motion for accelerated judgment and dismissal of Royal Globe from plaintiff’s suit. Plaintiff appeals the trial court’s grant of the defendant’s motion. Defendant Citizens Mutual takes no part in this appeal.
Defendant Royal Globe argues that the motion for accelerated judgment was properly granted because the method of service of the summons and complaint was defective under GCR 1963, 105.4. We are precluded from reviewing this issue because the trial court ruled in plaintiffs favor on this issue, and defendant-appellee failed to file a cross-appeal on this issue.
Plaintiff relies on the letter dated December 13, 1977, which he claims was mailed to defendant, to avoid § 3145(l)’s bar to the action. MCL 500.3145(1); MSA 24.13145(1) requires:
"An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury.”
The trial court heard plaintiffs argument that the letter claiming benefits and giving defendant notice was mailed to defendant within one year from the date of the accident. Defendant denied receipt of the letter, the trial court determined that the notice required by MCL 500.3145(1); MSA 24.13145(1) was not given and so the action was barred. This determination by the court was not clearly erroneous and so will not be set aside by this Court.
Affirmed. Costs to appellee Royal Globe. | [
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Bronson, P.J.
The facts are well stated in the dissenting opinion and need not be repeated here. The issue in this case is whether the magistrate’s decision to suppress the sole incriminating evidence in this case was clearly erroneous. In this regard, we believe the point on which this case turns is the testimony of the arresting officer, who stated that he had encountered coin envelopes of the type seized here 800 or 900 times in the same general area during his experience as a police officer and that such envelopes usually contained heroin. Based on this testimony, which is additionally supported by a countless number of cases yearly confronting both the trial and appellate bench, it is or should be clear by now that coin envelopes of the sort seized from the defendant are not simply innocuous, folded pieces of paper.
This Court stated in People v Ridgeway, 74 Mich App 306; 253 NW2d 743 (1977), lv den 401 Mich 831 (1977), that an officer’s knowledge that tinfoil packets often contained narcotics provided the strongest support for a finding of probable cause to seize such a packet. Although it is true that the officers in Ridgeway also smelled the odor of burning marijuana, the significance of this added factor' was slight. Id., 313-314. See People v Young, 89 Mich App 753, 764-766; 282 NW2d 211 (1979), lv den 407 Mich 877 (1979) (Gillis, J., dissenting).
Accordingly, we hold the magistrate’s decision to suppress the evidence to be clearly erroneous. Based on the testimony presented, the officer had probable cause to seize the coin envelopes.
Reversed.
V. J. Brennan, J., concurred. | [
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D. F. Walsh, J.
Plaintiff appeals a circuit court order granting accelerated judgment, based on the expiration of the statute of limitations.
Plaintiff, who was 50 years old, sought employment with the City of Muskegon in July, 1973. another applicant, who was 21 years old, was hired on September 5, 1973, but did not commence working until September 13, 1973. Plaintiff filed a complaint with the Michigan Department of Civil Rights on December 12, 1973, alleging unlawful age discrimination by the city in its employment decision. Defendant city moved for accelerated judgment on the ground that plaintiff failed to bring her claim within 90 days of the act of discrimination. The trial court granted defendant’s motion.
Michigan’s Fair Employment Practices Act [FEPA], since repealed, provided the following period of limitations:
"Any individual claiming to be aggrieved by an alleged unlawful employment practice may * * * make, sign, and file * * * within 90 days after the alleged act of discrimination, a verified complaint in writing * * MCL 423.307(b); MSA 17.458(7Xb).
In Pompey v General Motors Corp, 385 Mich 537; 189 NW2d 243 (1971), the Supreme Court enunciated the general rule that one who sues to enforce this statutory right is restricted by the statutorily prescribed limitation period of 90 days. Strict adherence to the statutory limitation period was subsequently mandated by this Court in Chrysler v Civil Rights Comm, 68 Mich App 283; 242 NW2d 556 (1977). Based on this authority, plaintiff was required to file her claim within 90 days after the alleged act of discrimination.
All parties assume in this case that the act of discrimination occurred on September 5, 1973, the date on which the new employee was advised that she was hired. We reject that assumption and find, instead, that the act of discrimination occurred on September 13, 1973, the date on which the new employee actually assumed her duties. We find support for this conclusion in several Federal cases which have considered the issue.
In Egelston v State University College at Genesco, 535 F2d 752 (CA 2, 1976), the court ruled that the statutory limitation period began to run when the claimant discontinued her teaching functions and not when she was notified that her contract would be terminated. In Noble v University of Rochester, 535 F2d 756, 758 (CA 2, 1976), a sex discrimination case, the second circuit ruled that a promotion was not consummated until the employee "took actual command of [his duties] * * * and the time limit was not triggered until then” regardless of when the promotion decision had been made and the parties advised. In Ricks v Delaware State College, 605 F2d 710 (CA 3, 1979), the third circuit ruled that the period of limitations did not begin to run until the employee ceased to render further services to the employer and not when the decision not to renew his contract was communicated to him.
The rationale underlying these decisions is that a seemingly final decision may be reconsidered and sometimes reversed and it is not desirable to encourage the initiation of litigation which could preclude the possibility of reconsideration; and, more importantly from a practical point of view, a rule which requires an employee actually to cease or begin employment in order to trigger the running of the statutory limitation period serves as a bright guideline for both the courts and the victims of discrimination. See Ricks, supra, 712. Such a rule makes unnecessary a "date of discovery” rule, with all of its attendant uncertainties, since the date on which an employee begins working or discontinues working or assumes the responsibilities of a new position following promotion is readily apparent to all concerned.
We are persuaded that the rationale of the foregoing cases is applicable with equal validity to cases arising under Michigan’s Fair Employment Practices Act. We rule, therefore, that the statutory limitations period did not begin to run in this case until September 13, 1973, when the new employee actually began performing services for the defendant city and that consequently the complaint was timely filed on December 12,1973.
The trial court’s order granting accelerated judgment is reversed and the case is remanded for proceedings consistent with this opinion. No costs, a public question. | [
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] |
Beasley, J.
On December 6, 1976, defendant City of Lathrup Village revoked plaintiff merchant’s license and certificate of occupancy. This decision was affirmed by both the zoning board of appeals of Lathrup Village and the circuit court. Plaintiff now appeals as of right.
On October 28, 1976, plaintiff applied to the City of Lathrup Village for an initial merchant’s license. On the application, plaintiff represented that it would be operating a retail record and tape store along with "any incidental business permitted by law”. Plaintiff was then issued a certificate of occupancy and a merchant’s business license to operate a retail record and tape store.
On November 16, 1976, the Lathrup Village City Attorney filed a complaint against plaintiff alleging that plaintiff obtained its license and certificate by fraudulent misrepresentation. Specifically, defendant city alleged that plaintiff at all times intended to operate as its main business a pinball arcade and not a record and tape store. A hearing was held by the building inspector and the city clerk on December 1, 1976, and, after hearing testimony, plaintiff’s certificate of occupancy and merchant’s license were revoked on December 6, 1976.
On that same day, December 6, 1976, plaintiff filed suit in circuit court seeking declaratory and injunctive relief against defendant, the City of Lathrup Village. The court granted plaintiff a temporary restraining order. Plaintiff then filed an appeal of the revocation of its certificate and license with the zoning board of appeals of defendant city.
In April, 1977, the zoning board of appeals held initial hearings on this matter. By resolution, the board adopted the rules of procedure of the Michigan Administrative Procedures Act of 1969. Board member Goray was appointed as a hearing officer in the event that one was needed._
On May 24, 1977, the board decided to expedite the hearing procedure by having the rest of the witnesses give their testimony before hearing officer Goray, who would, in turn, transmit it to the full board for consideration and decision. The hearings proceeded from May 25, 1977, through July 14, 1977, approximately ten sessions. On September 27, 1977, at the conclusion of the hearings, the board issued its opinion, signed by four of the six board members, affirming the revocation of plaintiffs certificate of occupancy and merchant’s license.
Meanwhile, plaintiff had amended its declaratory judgment complaint in circuit court to allege that the decision of the zoning board of appeals affirming revocation was unreasonable, arbitrary and capricious. On August 16, 1978, the circuit court affirmed the findings of fact of the zoning board of appeals and ordered plaintiff to cease and desist from the operation of its business in Lathrup Village. On appeal, plaintiff raises four issues.
First, plaintiff argues that the zoning board of appeals lacked authority to appoint a hearing officer to take testimony and to receive evidence. Initially, we note that the zoning board of appeals is empowered by ordinance 18, § 9.4(c) to hear and decide appeals as follows:
"Such Board [Zoning Board of Appeals] shall hear and decide appeals and review any order, requirement, decision or determination made by any administrative official charged with the enforcement of this Ordinance.”
Section 9.5 of ordinance 18 further empowers the board to "adopt general rules and regulations relating to its procedure”. Pursuant to this section, the board adopted the rules of procedure of the Michigan Administrative Procedures Act. Specifically, the board adopted and implemented a rule whereby it could appoint a hearing officer to receive evidence and prepare a report to be submitted to the board and upon which the board could make its decision. The plaintiff argues that this method of hearing was improper. We do not agree.
In the absence of a statute or ordinance which specifies the manner in which zoning appeals should be heard, the procedure applicable to administrative agencies in general should apply. As stated in 8A McQuillin, Municipal Corporations (3d ed), § 25.263, 233:
"* * * if no particular method of procedure for the conduct of hearings before the zoning board of appeals is provided for either in the state zoning act or in the zoning ordinance of the city, its hearings must be governed by established rules of procedure applicable generally to administrative tribunals.” (Footnote omitted.)
In this case, the board adopted the rules of procedure expressly provided for state administrative agencies. Moreover, this procedure, the appointment of a hearing officer, is a proper one which does not violate due process. As stated in 2 Am Jur 2d, Administrative Law, § 407, p 218:
"Whether or not expressly authorized by statute, it is permissible, and does not render a hearing inadequate or unlawful, for an administrative agency to employ the panel method of hearing in which one or more of the members of the agency takes the testimony in the matter before the agency, or to employ other persons, such as an examiner, investigator, or referee, to obtain the evidence and conduct the hearings, and make a report to the agency upon which the agency makes its decision. Such procedure is a practical necessity.” (Footnotes omitted.)
Accordingly, we hold that under the city ordinance, the board of zoning appeals has the power to adopt reasonable procedures to facilitate the "hearing and deciding of appeals”, such as the hearing officer procedure authorized under the Michigan Administrative Procedures Act.
However, plaintiff argues that defendant city is restricted by § 9.11 of ordinance 18. Plaintiff reads this section to require that at least four members of the board be present when any evidence is adduced. That section reads as follows:
"All Board meetings shall be open to the public. Meetings of the Board shall be held at the call of the Chairman, and at such other times as the Board may determine. Such Chairman, or in his absence, the Vice-Chairman, may administer oaths and require the attendance of witnesses, compel testimony and the production of books, papers, files, and other evidence pertinent to the matter before it. The Board shall keep minutes of its meetings which shall be made a public record. Four members of the Board shall constitute a quorum for a conduct of its business.”
After carefully reviewing defendant city’s ordinance, we conclude that plaintiffs argument is unpersuasive. Reading § 9.11 in conjunction with §§9.4 and 9.5 indicates that four members of the board must be present at meetings for the conduct of the board’s business. The board’s business is to hear and decide appeals.
Although the entire board may, at its option, hear evidence at their meetings, the ordinance does not make it mandatory that they must do so. In fact, although listening to testimony and being physically present for the admission of evidence might be one way for the board to hear an appeal, it is not the only way. Another way, and the one adopted by the board in this case, is to hear and decide plaintiff’s appeal by reviewing the transcripts and the evidence adduced at prior hearings. We find that, although the full board did not sit for all ten sessions of hearings, this was unnecessary under the ordinance, since they did, nonetheless, conduct their business, hear and decide plaintiff’s appeal at a proper meeting.
If the city council or, for that matter, the Legislature had intended that all of the evidence and testimony be taken before the full board, they could easily have so specified. However, they did not. Accordingly, we conclude that the defendant was not precluded from adopting hearing provisions included in the Michigan Administrative Procedures Act. We further find that the hearing examiner procedure utilized by defendant in this case does not violate due process. Therefore, we hold that, under the facts of this case, the procedure followed by defendant city did not constitute reversible error.
Plaintiff next argues that the zoning ordinance which effectively restricted pinball operations in commercially zoned districts was unequally and discriminatorily applied to deny them equal process. Plaintiff reasons that defendant city, itself, had five pinball machines operating in its Teen Center in City Hall at the time plaintiff was operating and that this use was not prohibited.
In support of its argument, plaintiff relies upon Township of Blackman v Koller. In that case, the Court held that the enforcement of a zoning ordinance against one party while an identical noncomplying use of other property in the immediate zoned area had been permitted and continued to be permitted constituted a denial of equal protection.
We believe that, if the city’s pinball use and its operation were so similar as to constitute an identical noncomplying use and the ordinance was applied to prohibit only plaintiffs use while allowing defendant’s, a difficult equal protection issue would exist. However, under the facts of this case, we find that the two uses were so dissimilar and disparate that they could not be considered identical noncomplying uses.
In this case, defendant city operated five pinball machines in its basement, while plaintiff operated 50 as its main business. Defendant city limited the number of people to approximately 15 in its recreation center, while plaintiff permitted as many as 170 people to occupy its establishment. The city closed the pinball operation down by 9 p.m., while plaintiff operated until 1 or 2 a.m.
Accordingly, although the record does not reflect whether defendant city had obtained a zoning variance to operate its machines, we find that, if the city had been granted a variance, we would have no difficulty in concluding that the grant did not violate equal protection.
We also note that, even if defendant city was itself violating an ordinance, that fact would not serve to estop the city from enforcing the zoning ordinance against others.
Plaintiff’s last two issues were not raised in the trial court. Accordingly, they will not be considered for the first time on appeal. 6
Affirmed.
MCL 24.201 et seq.; MSA 3.560(101) et seq., MCL 24.279; MSA 3.560(179), in particular.
Bundo v Walled Lake, 395 Mich 679; 238 NW2d 154 (1976), Baruk v Rogovein, 356 Mich 476; 96 NW2d 785 (1959).
357 Mich 186; 98 NW2d 538 (1959).
Fass v City of Highland Park, 326 Mich 19; 39 NW2d 336 (1949).
Magnotta v Michigan Millers Mutual Ins Co, 35 Mich App 450; 192 NW2d 553 (1971), Midwest Bridge Co v Highway Dep’t, 24 Mich App 151; 180 NW2d 117 (1970). | [
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V. J. Brennan, J.
Plaintiff filed a complaint in district court for property damage to his motorcycle resulting when it collided with an automobile owned and operated by defendant. The jury returned a verdict of $563.17, together with interest of $130.92 and costs of $39.
Defendant’s motion for a new trial was denied, the court ruling that the "no-fault statute abolishes tort liability in many circumstances involving the use of motor vehicles. Motorcycles are specifically not motor vehicles and thus tort liability is not abolished for damages arising out of the use of motorcycles.”
Defendant appeals from an Oakland Circuit Court decision aflirming the district court. Two questions are raised. The first is whether § 3135 of the Michigan no-fault act, limiting tort liability arising out of the ownership, maintenance or use of motor vehicles, applies to motorcyclists.
Section 3135 of the no-fault act, MCL 500.3135; MSA 24.13135, provides in pertinent part:
"(1) A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement._
"(2) Nowithstanding any other provision of law, tort liability arising from the ownership, maintenance or use within this state of a motor vehicle with respect to which the security required by section 3101(3) and (4) was in effect is abolished except as to:
"(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his or her act or omission, the person does not cause or suffer such harm intentionally if he or she acts or refrains from acting for the purpose of averting injury to any person, including himself or herself, or for the purpose of averting damage to tangible property.
"(b) Damages for noneconomic loss as provided and limited in subsection (1).
"(c) Damages for allowable expenses, work loss and survivor’s loss as defined in sections 3107 to 3110 in excess of the daily, monthly and 3-year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his or her liability by the amount of taxes that would have been payable on account of income the injured person would have received if he or she had not been injured.”
Plaintiff argues, and the lower court found, that the Legislature never intended § 3135 to deny a motorcyclist his tort remedies for damages to his motorcycle. In support of this position plaintiff points to § 3101(2) of the act which states that the term "motor vehicle” as used in the act does not include two-wheeled vehicles. Section 3101(1) requires that the owner or registrant of a motor vehicle obtain no-fault coverage; the exclusion of motorcycles from the definition of motor vehicles exempts motorcycle owners from the obligation of obtaining no-fault insurance.
The act’s distinction between motorcycles and automobiles withstood constitutional attack in Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978). Shavers held that the equal protection clause is not violated by the act’s exclusion of motorcycle owners from the requirement of purchasing no-fault coverage. The Supreme Court based its decision on "actuarial data” which indicated that, while motorcycles are rarely at fault in motor accidents, cyclists are seriously injured at a disproportionate rate. Accordingly, insurance premiums for no-fault coverage for cyclists would have been prohibitive.
"The thrust of plaintiffs’ complaint is that the No-Fault Act, by limiting coverage to those vehicles with 'more than 2 wheels violates equal protection because it impermissibly treats owners of two-wheel vehicles (i.e., motorcycle owners) differently from owners of vehicles with more than two wheels.
"We disagree.
"The actuarial data in the record tends to show that motorcycles are rarely at fault in motor vehicle accidents. Also, there was extensive testimony to the effect that in accidents involving motorcycles the drivers and passengers of motorcycles are killed or severely injured at a rate twice exceeding that of those involved in automobile accidents. Thus the inclusion of motorcycles in a no-fault system would result in insurance premiums so high as to preclude most motorcyclists from purchasing insurance. We believe these are, for purposes of satisfying equal protection, legitimate governmental interests. The exclusion of motorcycles from coverage under the No-Fault Act is, quite evidently, reasonably related to these legitimate interests.
"We therefore hold that § 3101(2) of the No-Fault Act, in excluding two-wheel vehicles from coverage under the act, does not violate equal protection.” (Footnotes deleted.) 402 Mich, 633-634.
Where Shavers left off on this issue, Underhill v Safeco Ins Co, 407 Mich 175; 284 NW2d 463 (1979), picks up. Underhill was a consolidation from two appeals. In the first case, the plaintiff was injured when the motorcycle he was riding collided with an automobile. That plaintiff did not own an automobile insured with no-fault coverage. In the second case, the plaintiff was injured when his motorcycle was struck by an automobile. That plaintiff lived with his father, who owned a car insured with no-fault coverage. The first issue presented was whether motorcyclists were entitled to "personal protection insurance benefits” (for work loss, allowable expenses and survivors’ loss) commonly referred to as PIP ("no-fault benefits”), when involved in a collision with a motor vehicle. The Court answered in the affirmative.
"The act may not be construed as excluding the motorcyclist from its coverage for all purposes merely because motorcycles are excluded from the statutory definition of motor vehicle.
"We hold that under the terms of the no-fault act, motorcyclists are entitled to claim no-fault benefits when they are injured in accidents involving motor vehicles.” (Emphasis in the Original.) 407 Mich, 186.
We find Underhill helpful in resolving the question now before us. The argument in Underhill was that, based upon the statutory definition of motor vehicles, motorcyclists should in all cases be treated differently and, in fact, should not be subject to the no-fault act. As noted, this argument was rejected. In the instant case, appellee argues that since motorcycles are not "motor vehicles” pursuant to § 3101(2) motorcyclists retain their common law remedy in tort.
We are not so persuaded.
In drafting the no-fault act, we do not believe the Legislature intended that motorcyclists be excluded from § 3135. As Shavers noted, this legislation "was offered as an innovative social and legal response to the long payment delays, inequitable payment structure, and high legal costs inherent in the tort (or 'fault’) liability system. * * * Under this system, victims of motor vehicle accidents would receive insurance benefits for their injuries as a substitute for their common-law remedy in tort.” 402 Mich, 578-579.
The exclusion of motorcycles from the act’s definition of motor vehicles does not illustrate a legislative intent to exempt motorcyclists from the effect of the abolition of tort liability by § 3135. Had the Legislature intended that § 3135 not apply to motorcycles and motorcyclists, it could have used clearer and more definitive language. The only intent of the Legislature is the intent to exclude motorcycle owners from the requirement of obtaining no-fault insurance. In view of the act’s recognized purpose, and the Supreme Court’s determination in Underhill that motorcyclists suffering bodily injuries as a result of an accident with a motor vehicle are entitled to no-fault benefits, we do not believe the Legislature intended that a motorcyclist be permitted to collect no-fault benefits in addition to retaining their common-law remedy in tort.
The second issue presented on appeal is raised by appellee. Is a no-fault automobile insurer liable under § 3121(1) for damage to a motorcycle which results from colliding with the insured automobile?
Section 3121(1) of the act provides that an insurer is liable under property protection insurance to pay benefits for accidental damage to tangible property caused by the insured automobile.
Section 3123(l)(a) sets forth the full exclusion as to property damage:
"Damage to the following kinds of property is excluded from property protection insurance benefits:
"(a) Vehicles and their contents, including trailers, operated or designed for operation upon a public highway by power other than muscular power, unless the vehicle is parked in a manner as not to cause unreasonable risk of the damage which occurred.”
The definition in this provision is similar to the definition of motor vehicle in § 3101 except for the lack of the distinction between two-wheeled vehicles and other vehicles.
Courts must give effect to a statute’s plan and unambiguous language. People ex rel Oakland Prosecuting Attorney v Bureau of Pardons & Paroles, 78 Mich App 111; 259 NW2d 385 (1977). When a court construes a statute, legislative intent must be determined from consideration of all provisions of the enactment in question. Detroit v General Foods Corp, 39 Mich App 180; 197 NW2d 315 (1972). We reject appellee’s argument based upon these rules of statutory construction.
The plain language of § 3123(l)(a) includes motorcycles, which are vehicles designed for operation on a public highway by power other than muscular power. The fact that this provision is identical to the provision defining motor vehicles, except for the exclusion of two-wheeled vehicles in the latter, indicates that the exclusion was intentionally omitted in § 3123(l)(a). Consequently we conclude that the definition of "vehicle” in § 3123(l)(a) clearly includes motorcycles. Accordingly, plaintiff is not entitled to no-fault property damage benefits. Degrandchamp v Michigan Mutual Ins Co, 99 Mich App 664; 299 NW2d 18 (1980).
Reversed and remanded for entry of judgment in favor of defendant.
MCL 500.3101(2); MSA 24.13101(2) provides:
"(2) 'Motor vehicle’ as used in this chapter, except for section 3103, means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels, but does not include a moped as defined in section 32b of Act No. 300 of the Public Acts of 1949, being section 257.32b of the Michigan Compiled Laws.”
MCL 500.3101(1); MSA 24.13101(1) states:
"The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security shall be in effect continuously during the period of registration of the motor vehicle.” | [
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Cynar, J.
Plaintiff, Elizabeth Wilcox, appeals from the child custody provision as well as the property settlement and alimony in gross award in a judgment of divorce granted February 13, 1979. The court ordered joint custody of the two children to be held by the plaintiff and defendant, Kent Wilcox, with the parties to exchange physical custody of both children weekly unless the parties agreed otherwise.
The parties were married on or about October 5, 1968, in East Lansing, Michigan, and as a result of this marriage, one child, Frank Sterling Wilcox, was born on December 17, 1969. The child of the plaintiff by her former marriage, Marni Darr Holmes Wilcox, born February 8, 1966, was adopted by the defendant.
The parties were separated for several months prior to the filing of the complaint for divorce in March, 1978. During the separation, the plaintiff had custody of the minor children.
As found by the circuit court, one of the main precipitating factors in the dissolution of the mar riage was the defendant’s decision to find a new partner.
In an ex parte order entered March 28, 1978, custody was awarded to the plaintiff. This order was modified to "joint custody” on May 24, 1978. The nature of this "joint custody” was to have the two minor children stay one week with the plaintiff and then stay one week with the defendant.
At trial, testimony was first taken from Dr. Garry E. Stollak, a certified consulting psychologist and professor of psychology at Michigan State University. Dr. Stollak worked with the parties prior to trial in an effort to work out a suitable plan for custody of the children, both before and during the pendency of the divorce.
Dr. Stollak testified that beginning in September 1978 Marni became dissatisfied with the shared custody arrangement, preferring to reside only with the plaintiff. He also observed that Frank, the younger child, had a healthy relationship with both parties and that he did not want to be forced to choose with which parent he would, live. In later testimony, Dr. Stollak stated that the plaintiff’s negative attitude to an alternate custodial arrangement had affected the children’s views of it. Finally, he testified that the children would not have difficulty meeting the standards of conduct for each separate home, that an alternate custody arrangement could be beneficial to the children and that the presence of a female friend in the defendant’s home would not adversely affect the children’s development.
Testimony was also heard at trial from Lynn Keller, a mental health therapist with the Capital Area Counseling Center. Ms. Keller, who previously interviewed and counseled Marni, expressed the opinion that Marni preferred to live with her mother and that the maternal relationship was more important to Marni than that with her stepfather. She also said the children preferred to live together, but that no negative effects would arise if they lived apart. Ms. Keller testified as to counseling sessions held with the children and the defendant, concluding that the defendant loved his children very much and that he had no desire to force an undesired custody arrangement on Marni. In response to questions posed by the trial court, Ms. Keller stated that an alternate custodial arrangement involving periods of time longer than one week is generally preferable. However, Ms. Keller stated further that alternate custody, even with longer periods of time, would not work in this case.
Plaintiff testified that she was a better parent than defendant. She described the defendant as an "extreme authoritarian” to the point that Marni would urinate involuntarily if he yelled at her. The plaintiff also stated that when Frank returns to her custody under the week-to-week arrangement, he is greatly withdrawn and hangs onto her for three or four days. Finally, in the plaintiffs opinion, the divorce was brought about by an adulterous relationship of the defendant with another woman.
Defendant admitted at trial to Marni’s dislike of alternate custody. He expressed the further opinion, however, that Marni’s opinion was strongly affected by the negative suggestions of the plaintiff and that under the guidance of Lynn Keller his relationship with Marni had improved dramatically. Defendant also denied that an adulterous relationship caused the parties’ marital breakup. Finally, he suggested that alternate custody would be in the best interests of the children and that such an arrangement would permit the children to maintain close personal bonds with both parents.
The court in an oral opinion applied the factors set forth in § 3 of the Child Custody Act, MCL 722.23; MSA 25.312(3), discussing each factor enumerated therein. With respect to subsection (a), which is concerned with love, affection, and other emotional ties, and under subsection (b), which is concerned with capacity and disposition of competing parties to give the child love, etc., the court found the parties equal. With respect to subsection (c), which looks at the capacity and disposition of parties to provide the child with food, clothing, etc., the court found that there was no problem with either parent. As to factors listed in subsection (d), relating to length of time the child lived in a satisfactory environment, the court indicated that the parties had not been separated very long and that joint custody had been carried out to some extent. With respect to subsection (e), the court found that permanence as a family unit did not appear to be totally applicable in this case; while, with respect to subsection (f), the court noted that, while it may have been contended that Mr. Wilcox was less morally fit, the situation will resolve itself. As to the factor recited in subsection (g), there was no problem with the mental or physical health of either parent. With respect to subsection (h), there was no difficulty around the neighborhood, and the children were doing well in school. With respect to subsection (i), Marni preferred to be in the custody of her mother but Frank had not expressed a preference one way or another.
In the disposition of property, the trial court awarded to the plaintiff full title to the marital home and a jointly owned seven-unit apartment building. The equity in the marital home was divided equally between the parties but was not made payable to the defendant until the plaintiff moved, sold or assigned her interest in the home, remarried, died, or the youngest child of the marriage reached 18 years of age. The plaintiff also received full title to a second apartment building owned by the parties which had an equity of $3,000. The trial court then added the equity of the third property to that of the seven-unit building, a total of $73,000 in equity. After deducting $15,000 from this total based upon the plaintiff’s original investment in the seven-unit building, the trial court divided the remaining equity value into equal $29,000 shares. Out of the defendant’s share $7,500 was ordered to be paid to the plaintiff as alimony in gross.
Approximately one half of the states have enacted legislation concerned with the issue of joint custody. Some 23 states have equalized parental rights in child custody through legislation. Under California’s 1980 custody statutes, joint custody is the court’s first and preferred alternative, and the court is required to enumerate its reasons if it refuses to award joint custody. Joint custody under the California code is defined as "an order awarding custody of the minor child or children to both parents and providing that physicál custody shall be shared by the parents in such a way as to assure the child or children frequent and continuing contact with both parents; provided, however, that such order may award joint legal custody without awarding joint physical custody”.
The Michigan Child Custody Act of 1970 nei ther prevents nor requires joint custody. In Schilleman v Schilleman, 61 Mich App 446; 232 NW2d 737 (1975), lv den 395 Mich 769 (1975), the Court indicated that, while it did not generally favor orders which alternate the custody of the children between parents for equal periods of time, the trial court’s decision in that case was affirmed because the Court could not say that the trial court committed a palpable abuse of discretion in awarding such alternate custody.
Viewed from the standpoint of the best interests of the child, joint custody, when workable following a divorce, affords access and continuity to a parent and active participation in the life of a child following a divorce. We are in accord with our colleague that, where divorcing parents can agree that joint custody is the arrangement that serves the best interests of the child, trial courts should give approval, except, perhaps, in the unusual case where a trial court finds evidence that such an arrangement is contrary to the best interests of the child. However, we are not in total agreement that, where a parent in good faith does not believe that joint custody will serve the best interests of the child, joint custody should not be awarded over such an objection. First, it is necessary to define the term joint, alternative, or shared custody, since the understanding of its meaning may differ. There is a difference between joint legal custody, which is concerned with making decisions which significantly affect the life of a child, and joint physical custody, which is concerned with the child living with the parent. There are multiple situations where legal custody awarded to a sole parent deprives the other parent of sharing in making decisions concerned with the child’s education, dental, other health care, as well as other decisions in the life of the child. Whether the plaintiff agrees to joint custody or not, the facts support an award of joint legal custody of the children in this case.
Under MCL 722.25; MSA 25.312(5), a dispute between parents over custody of a minor child is to be decided on the basis of the "best interests of the child”. No doubt § 3(j), which provides for consideration by the trial court of "any other factor considered by the court to be relevant to a particular child custody dispute”, was added to encompass significant and unique fact situations which otherwise might be overlooked or not considered. Certainly, the "best interests of the child” cannot be viewed in a vacuum but, rather, must be viewed from the standpoint of how things actually are in a specific case.
The granting of joint custody is not agreed to by both parents in this case. We have a situation where the plaintiff, embittered by a number of events, several of which are mentioned here, is opposed to the award of joint custody. It does not matter whether there is acceptance or rejection of the life style of the defendant, who took on another mate. Defendant has his side of the story. However, when viewed from the plaintiff’s position, the strong feelings she has are accurately illustrated by her indication that she will give up custody altogether rather than accept joint custody.
Further, plaintiff’s viewpoint differs from the defendant’s in regard to the property division. The plaintiff is not willing to accept the property division, particularly as it concerns the Woodruff Street apartment building, which has an equity of $70,000. Plaintiff contends that: (1) the initial investment came from her side of the family; (2) during part of the marriage the defendant was a student; and, (3) defendant’s yearly earnings were meager except for the last year or two of the marriage. This factor exacerbates the tension between the parties relative to the child custody issue.
Even under a more favorable setting, alternate physical custody, although workable, may have its problems. Here, the custody order provides the parties shall exchange physical custody of the minor children on Friday of each week or make whatever other arrangement is mutually agreeable to the parties. With what is mutually agreeable we have no difference on the facts before us. However, the transfer of physical custody from one parent to the other on alternate weeks can only be compared to the travel of a tennis ball back and forth from one side of the tennis court to the other. Such movement of the children is not in their best interests.
It is our finding that the trial court was correct in ordering joint legal custody in both parents. Nonetheless, we find that the trial court erred in awarding alternate or joint physical custody of the minor children in this case. The trial court’s order to exchange physical custody of the minor children on Friday of each week is set aside and physical custody of both minor children awarded to Plaintiff, Elizabeth Wilcox, subject to reasonable visitation rights in defendant, Kent Wilcox.
The authority of the trial court to divide marital property between the parties to a divorce arises under MCL 552.19; MSA 25.99, and the court’s authority to order alimony is statutorily provided in MCL 552.23; MSA 25.103.
It is well settled that a division of marital property or an award of alimony is a matter within the discretion of a trial court. Johnson v Johnson, 346 Mich 418; 78 NW2d 216 (1956), Pinney v Pinney, 47 Mich App 290; 209 NW2d 467 (1973), Van Ommen v Van Ommen, 25 Mich App 652; 181 NW2d 634 (1970). In Johnson v Johnson, supra, 431, the Supreme Court held:
"The division of property in a divorce action is not governed by any rigid rules or mathematical formula. Each case depends on the particular facts involved. * * *
"The portion of property awarded to each party depends upon all the equitable factors involved, including the following: source of property, contribution towards its acquisition, the years of married life, the needs of the parties, their earning ability and also the cause for divorce.”
Further, this Court will not reverse an award of property or alimony unless it is convinced that, had it occupied the trial court’s position, it would have reached a different result. Paul v Paul, 362 Mich 43; 106 NW2d 384 (1960), Simmons v Simmons, 58 Mich App 480; 228 NW2d 432 (1975), Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974).
And although a property award need not meet any specific numerical standard, it "must be fair in light of the overall financial circumstances of the parties”. McDermott v McDermott, 84 Mich App 39, 41; 269 NW2d 299 (1978).
While we view the trial court’s decision to award alimony in gross to the plaintiff and its division of marital property as a very close question in this case, the trial court did not abuse its discretion. A review of the record discloses no reversible error.
We affirm the property settlement and alimony in gross provisions, as well as the joint legal custody in both parents. However, we reverse the joint physical custody determination and award physical custody of both minor children to plaintiff, Elizabeth Wilcox, subject to reasonable visitation rights in the defendant, Kent Wilcox. Therefore, this case is remanded to the trial court for a determination of child support and reasonable visitation rights. No costs are awarded.
Danhof, C.J., concurred.
Foster & Freed, Joint Custody: Legislative Reform, 16 Trial 22 (June, 1980).
See Cal Civ Code §§ 4600, 4600.5 (West).
MCL 722.21 et seq.; MSA 25.312(1) et seq.
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Bronson, J.
This action presents one claim in a complex suit involving the Woodvale Condominium Project in Southfield, Michigan. John Casey Development Company (Casey), the general contractor, sought to foreclose on its mechanics’ lien. Continental Mortgage Investors (C.M.I.) opposed foreclosure on the ground that Casey’s lien was unenforceable for failure to comply with the residential builders’ act, or, in the alternative, that C.M.I. had a prior mortgage which superseded the lien. The matter was heard on cross-motions for summary judgment, and the trial court granted summary judgment for C.M.I.
The matter was appealed to this Court, where a majority held (Chief Judge Danhof dissenting) that Casey’s substantial compliance with the provisions of the residential builders’ act was sufficient to allow maintenance of an action to foreclose the lien. On the priority issue, the majority held that because engineering services were performed prior to the giving or recording of the mortgage, the lien took preference under MCL 570.9; MSA 26.289, MCL 570.1; MSA 26.281, as construed in Williams & Works, Inc v Springfíeld Corp, 81 Mich App 355, 362-363; 265 NW2d 328 (1978). Michigan Roofing & Sheet Metal, Inc v Dufty Road Properties, 90 Mich App 732; 282 NW2d 809 (1979).
C.M.I. sought leave to appeal to the Supreme Court, which ordered the application held in abeyance pending decision by that Court in the Williams & Works case. Williams & Works was recently decided by the Supreme Court, 408 Mich 732; 293 NW2d 304 (1980), and the instant case has since been remanded for reconsideration in light of that case.
Williams & Works was concerned with:
"[T]he sole question whether off-site engineering services rendered before the beginning of actual, on-site construction qualify, pursuant to § 9(3) of the Michigan mechanics’ lien law, as 'the commencement of said building or buildings, erection, structure or improvement’ so as to give priority to mechanics’ liens over a mortgage recorded after the provision of such services but prior to the beginning of any visible, on-site construction”. Id., 734-735, (footnotes omitted).
It thus appears that the Supreme Court’s remand affects only our holding on the priority issue, and we expressly reaffirm our prior holding on the issue of the sufficiency of Casey’s compliance with the residential builders’ act.
In Williams & Works the Supreme Court held, after extensive review of the mechanics’ lien act and prior case law, that regardless of when a lienable act was actually performed the lien does not take priority over a mortgage unless visible, on-site construction which could be said to signal the "commencement” of the building, erection, structure, or improvement has taken place. See MCL 570.9 (third); MSA 26.289 (third). The purpose of the visible commencement requirement is to place potential lenders or purchasers on constructive notice that mechanics’ liens may exist. The Supreme Court was of the opinion that this purpose would be defeated if mechanics’ liens were granted priority as of the date of lienable but off-site services such as the rendering of engineering plans.
"We also believe that our decision, in continuing to key ’commencement’ into the concept of constructive notice, is based on sound public policy. Were we to adopt appellees’ position and rule that the 'commencement’ of a building, erection, structure or improvement could be triggered by the rendering of off-site, non-visible engineering plans, mechanics’ liens could relate back to a long time before any visible signs of construe tion existed to inform prospective lenders inspecting the premises that liens had attached. Under such circumstances, construction financing would become exceedingly difficult.” Williams & Works, Inc, supra, 751.
One Michigan commentator has reconstructed the policy considerations behind selection of the date of visible "commencement” as the date for fixing priorities in the following manner:
"But what date? That is a critical question for outsiders, — for example, the bank which lent money on mortgage of this land prior to the completion of the building. Here our lawmakers have split. Most of them have given all contractors, laborers and materialmen liens which relate back to the time the job was begun by visible operations on the land. The rationale is found in certain policy factors. A lien having priority as of a later date would give no assurance to one who was asked to furnish labor or materials at the beginning of the job. Do we want to impose that risk upon them, or repair the 'owner’s’ credit facilities to the extent that they refuse to assume that risk? On the other hand, a lien as of an earlier date would be a wallop for anyone who had dealt with the 'owner’ on the faith of his title, as yet unencumbered but later subjected to the antedated lien. To give the lien priority as of the date when visible operations began is stiff, but we can at least say that it was possible for anyone dealing with the 'owner’ to see the operations, and so to understand what was likely to ensue, assuming knowledge of the law. It should be added that prudence requires inspection of the land in any case, by reason of the doctrine of notice from possession. So, by a process of elimination, we come to the date of visible operations. Other statutes, however, have ignored the notice point, and date the liens from the execution of the 'owner’s’ contract, without requiring the contract to be recorded. Apparently there is no way to guard one’s self against the hazard created by that type of statute.” Durfee, Priorities, 57 Mich L Rev 459, 476-477 (1959).
The question that remains is just what sort of activity is sufficient to signal commencement. Although the Supreme Court declined to intimate a specific view on this point, Williams & Works, supra, 754, fn 13, guidelines were offered:
" 'Commencement’, then, as defined by early case law and commentary, required an act of such a character that it was notice to all of the existence of mechanics’ liens.” Id., 742.
"In short, visible, on-site construction, such that it is obvious from the work done on the premises that a building, erection, structure or improvement is in progress, is still required in order to signal 'commencement’.” Id., 749. (Footnote omitted.)
Resolution of the instant case depends on whether sufficient visible on-site construction had taken place prior to the mortgage so that the mechanics’ lien would take priority. If not, the mortgage would supersede the lien and the trial court would have been correct in granting summary judgment to C.M.I.
The record in the instant case reveals that C.M.I.’s mortgage was granted on May 2,1972, and recorded on May 26, 1972. Prior to this time, at least by March 17, 1972, labor and construction materials were furnished to the construction site. Although there appears to be a split of opinion in this country over whether such acts are sufficient to signal commencement, Anno: What constitutes '*commencement of building or improvement” for purposes of determining accrual of mechanics’ lien, 1 ALR3d 822, 835-836, Michigan case law holds that the furnishing of construction materials to the jobsite is sufficient to constitute a commencement. Williams & Works, Inc v Springfield Corp, 76 Mich App 541, 550; 257 NW2d 160 (1977), lv den 402 Mich 908 (1978). See Wallich Lumber Co v Golds, 375 Mich 323; 134 NW2d 722 (1965). This position has been adopted by other states as well. A unanimous California Supreme Court stated the general rule as follows:
" 'Thus the general rule is that such a lien does not attach unless and until construction has been undertaken by the doing of actual visible work on the land or the delivery of construction materials thereto.’ ” Walker v Lytton Savings & Loan Ass’n of Northern California, 2 Cal 3d 152, 156-157; 84 Cal Rptr 521; 465 P2d 497 (1970) (emphasis in original), quoted in Williams & Works, Inc v Springñeld Corp, 408 Mich 750-752.
We also believe that the delivery of construction materials to the jobsite satisfies the guidelines of the Supreme Court’s decision in Williams & Works. When construction materials are visible on a jobsite, it is obvious that a building, erection, structure, or improvement is in progress so that all who happen by the site have constructive notice of the existence of mechanics’ liens.
Because the delivery of construction material preceded the giving and recording of the mortgage, the liens take priority over the mortgage. The trial court’s grant of summary judgment in favor of C.M.I. is reversed, and the case remanded for further proceedings.
Reversed.
Beasley, J., concurred.
MCL 338.1501 et seq.; MSA 18.86(101) et seq.
Although the purpose of selecting the date of commencement as the date for fixing priorities appears designed to give constructive notice to lenders and purchasers of the potential existence of mechanics’ liens, the Supreme Court, perhaps curiously, rejected the argument that a mortgagee’s actual notice of the prior performance of lienable services was sufficient to accord priority to the lien. Williams & Works, Inc v Sprinfield Corp, 408 Mich 753-754. This rejection seems to be based on the statutory language and longstanding judicial construction requiring a "commencement”, leading to reliance by lenders on the date of commencement as the date for fixing priorities regardless of the reasons for selecting that date.
At least two other sorts of on-site work occurred prior to the giving and recording of the mortgage. Beginning on March 7, 1972, soil borings were conducted by Michigan Drilling, a subcontractor. The Supreme Court, however, has held that such activity is insufficient to signal commencement. Williams & Works, Inc v Springfield Corp, 408 Mich 735, fn 2. In addition, on April 13, 14, 16, and 17, 1972, demolition of existing structures on the construction site was accomplished by another subcontractor. There is a split of authority over the question whether such demolition constitutes a commencement, Anno: What constitutes "commencement of building or improvement" for purposes of determining accrual of mechanics’ lien, 1 ALR3d 822, 828-829, but no Michigan cases have yet addressed this issue. Because we hold, based on existing Michigan authority, that the delivery of construction materials is a sufficient commencement, there is no need to address the question of whether demolition would also be sufficient. | [
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] |
Talbot, J.
Defendants B. C. General Contractors, Inc. (BC), and Horizon Cablevision, Inc., appeal as of right from a judgment for plaintiff Thomas Cande-laria, III, as personal representative of the estate of Thomas Candelaria, Jr., deceased, entered after a jury trial. We reverse and remand.
I
Defendant Horizon, a company in the business of providing cable television service, hired defendant BC, as an independent contractor, to install cable television service in certain areas of Ingham County. BC, in turn, hired Bob Rego, also as an independent contractor, to perform a portion of the work involving aerial construction. Rego employed plaintiff’s decedent, Thomas Candelaria, Jr. (hereafter Candelaria). Part of Rego’s job involved laying cable wire across the surface of state trunk line M-106 in Ingham County. On the day of the accident, Rego’s foreman and Candelaria were the only workers at the site. When the foreman needed more cable to work with, he asked Candelaria to release some slack from the reel. Instead of pulling slack from the reel by hand, which was the standard procedure, Candelaria turned the reel on its side and began pushing it like a wheelbarrow. Because the foreman was concerned that Candelaria’s action might tighten the cable rather than create slack, he ran to the reel and flipped it back to its usual position. Just as the foreman turned the reel, a passing car snagged a portion of the cable that had become elevated from the surface of the highway. This caused the reel to jerk forward into Candelaria, killing him instantly.
Plaintiff filed a wrongful death action against defendants, alleging that their negligence caused Candelaria’s death. At the close of the proofs, plaintiff’s theory with respect to BC was that it could be held liable in negligence on the basis of its retention of control over the work performed by Rego. Plaintiff’s theory with respect to Horizon was that it could be held liable in negligence pursuant to a nondelega- ble duty arising by virtue of the fact that it had obtained a permit issued by the Michigan Department of Transportation (mdot). Defendants moved for directed verdicts and their motions were denied. The trial court granted plaintiffs motion for a directed verdict against Horizon with regard to the issue of its negligence. The jury found (1) that Horizon’s negligence was a proximate cause of the accident, (2) that BC was negligent and that its negligence was a proximate cause of the accident, and (3) that Candelaria himself was negligent, that his negligence was a proximate cause of the accident, and that he was fifty percent at fault. The final judgment entered against defendants was in the amount of $248,248.48.
n
On appeal, BC argues that the trial court erred in denying its motion for a directed verdict. We agree. BC moved for a directed verdict on the ground that it did not retain and exercise sufficient control over Rego’s work to be held hable for Candelaria’s injury. The trial court reasoned that, although there was not a “great deal” of evidence of BC’s control, there was enough to present the issue to the jury.
This Court reviews de novo a trial court’s decision with regard to a directed verdict. Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997). When evaluating a motion for a directed verdict, a court must consider the evidence and ah legitimate inferences arising from the evidence in a light most favorable to the nonmoving party. A directed verdict is appropriate only when no material factual question exists upon which reasonable minds could differ. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975).
A
As a general rule, when an owner or general contractor hires an independent contractor to perform a job, the owner or general contractor may not be held liable in negligence to third parties or employees of the independent contractor. See Bosak v Hutchinson, 422 Mich 712, 724; 375 NW2d 333 (1985); Funk v General Motors Cow, 392 Mich 91, 101-102; 220 NW2d 641 (1974), overruled in part on another ground by Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982); Samodai v Chrysler Cow, 178 Mich App 252, 255; 443 NW2d 391 (1989); 2 Restatement Torts, 2d, § 409 & comments, pp 370-371. Instead, the independent contractor is immediately responsible for job safety. Funk, supra at 102; Samodai, supra at 255. There are, however, certain circumstances under which an owner or general contractor may be held liable for either the independent contractor’s negligence or for its own negligence. One commonly recognized exception to the general rule is the “doctrine of retained control.” See, e.g., Funk, supra at 101-109; Plummer v Bechtel Constr Co, 440 Mich 646, 648-673; 489 NW2d 66 (1992) (opinions of Levin, J., and Boyle, J.); Samhoun v Greenfield Constr Co, Inc, 163 Mich App 34, 45; 413 NW2d 723 (1987). Although the doctrine is often recognized, our review of the cases reveal some confusion accompanying its application.
The concept of “retained control” is pertinent to two distinct theories of liability: (1) the vicarious liability of an employer pursuant to the doctrine of respondeat superior, and (2) the direct liability of an owner or general contractor pursuant to the doctrine of retained control. In the former case, evidence of an employer’s retained control is relevant to the issue whether there was in fact a contractee-contractor relationship. An independent contractor is defined as “ ‘one who, carrying on an independent business, contracts to do work without being subject to the right of control by the employer as to the method of work but only as to the result to be accomplished.’ ” Kamalnath v Mercy Memorial Hosp Corp, 194 Mich App 543, 553; 487 NW2d 499 (1992) (citation omitted); cf. 1 Restatement Agency, 2d, § 2, p 12. If the employer of a person or business ostensibly labeled an “independent contractor” retains control over the method of the work, there is in fact no contracteecontractor relationship, and the employer may be vicariously liable under the principles of master and servant. See, e.g., Brinker v Koenig Coal & Supply Co, 312 Mich 534, 539-540; 20 NW2d 301 (1945); Alar v Mercy Memorial Hosp, 208 Mich App 518, 527; 529 NW2d 318 (1995); Jenkins v Raleigh Trucking Services, Inc, 187 Mich App 424, 428-429; 468 NW2d 64 (1991); Janice v Hondzinski, 176 Mich App 49, 53; 439 NW2d 276 (1989); see also 2 Restatement Torts, 2d, § 414, comment a, p 387.
In the latter case, the owner or general contractor’s retention of supervisory control provides the basis for the imposition of an independent duty on the part of the owner or general contractor to exercise its retained control with reasonable care. The focus is not on the legal status of the relationship between the owner or general contractor and the independent contractor, but rather on the manner in which the owner or general contractor acts or fails to act in relation to the safety of the injured party. The “doctrine of retained control” refers to this second sort of retained-control liability. The seminal case in Michigan regarding the doctrine of retained control is Funk, supra, in which our Supreme Court reasoned that a landowner or general contractor could be “held responsible for its own negligence in failing to implement reasonable safety precautions,” where its “retained and exercised” control over a project was sufficient to create a corresponding duty to implement such precautions. Funk, supra at 108 (emphasis added); see also Plummer, supra at 669 (Boyle, J.).
The doctrine of retained control applies only in those situations involving “common work areas.” Plummer, supra at 666-668 (Levin, J.), 669 (Boyle, J.); see also Groncki v Detroit Edison Co, 453 Mich 644, 662; 557 NW2d 289 (1996) (Brickley, C.J.); Hughes v PMG Building, Inc, 227 Mich App 1, 5-6; 574 NW2d 691 (1997); Samhoun, supra at 45-46; Erickson v Pure Oil Corp, 72 Mich App 330, 336; 249 NW2d 411 (1976). This limitation is rooted in our Supreme Court’s initial explanation of the doctrine’s rationale:
Placing ultimate responsibility on the general contractor for job safety in common work areas will, from a practical, economic standpoint, render it more likely that the various subcontractors being supervised by the general contractor will implement or that the general contractor will himself implement the necessary precautions and provide the necessary safety equipment in those areas.
* * *
We regard it to be part of the business of a general contractor to assure that reasonable steps within its supervisory and coordinating authority are taken to guard against readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen. (Funk, supra at 104 (emphasis added).]
In order to have a “common work area,” there need not be multiple subcontractors working on the same site at the same time. All that is required is that the employees of two or more subcontractors eventually work in the same area. See, e.g., Hughes, supra at 6.
There is no specific test to determine the degree of control sufficient to create an independent duty of care in an owner or general contractor under the doctrine of retained control, and the descriptions are somewhat varied. See Phillips v Mazda Motor Mfg (USA) Corp, 204 Mich App 401, 408; 516 NW2d 502 (1994) (“There must be a high degree of actual control; general oversight or monitoring is insufficient.”); Burger v Midland Cogeneration Venture, 202 Mich App 310, 317; 507 NW2d 827 (1993) (“[T]he owner must retain at least partial control and direction of the construction work, beyond safety inspection and general oversight.”); Samodai, supra at 256 (“The requisite nature of this standard requires that the owner retain at least partial control and direction of actual construction work, which is not equivalent to safety inspections and general oversight.”); Miller v Great Lakes Steel Corp, 112 Mich App 122, 127; 315 NW2d 558 (1982) (explaining that “some sort of substantive control must be maintained by the owner over the contractor’s work in order to render the owner liable for an injury to a contractor’s employee”); Erickson, supra at 339 (holding that an owner’s mere retention of the contractual right to terminate employment of those not in compliance with its rules and regulations was not sufficient). Again, the Supreme Court’s reasoning in Funk, supra, is instructive:
[Defendant’s representative] and Ms assistants did more than observe whether the contract was being properly performed. In many instances, what they said, or left unsaid, determined how the work would be performed. In the area of job safety their knowing acquiescence in nonperformance encouraged, if not legitimized, the derelictions of the sub- and general contractors. Having assumed a dominant role in tMs construction job, [Defendant] can properly be held responsible for the failure to implement adequate safety precautions. [Funk, supra at 108 (emphasis added).]
Although formulations such as “high degree of actual control” and “dominant role” suggest a fact-specific inquiry, one clear rule can be gleaned from Funk and its progeny. At a minimum, for an owner or general contractor to be held directly liable in negligence, its retention of control must have had some actual effect on the manner or environment in which the work was performed.
B
In this case, plaintiffs claim against BC was not brought on a theory of respondeat superior. Instead, plaintiff advanced a claim that BC could be held liable for its own negligence under the doctrine of retained control. Therefore, we need not consider whether BC could properly be held liable as an employer under the principles of master and servant.
With respect to the doctrine of retained control, there was no evidence to suggest that Candelaria’s work for Rego was performed in a common work area. To the contrary, the evidence suggested that Rego was the only subcontractor working for BC on the project. Consequently, BC could not properly be held liable pursuant to the doctrine of retained control. This particular failing, however, was not the basis for BC’s motion for a directed verdict. Instead, BC argued that it did not retain sufficient control over the performance of the work to be held liable. On this basis too we conclude that BC could not properly be held liable. When viewed in a light most favorable to plaintiff, the evidence did not permit a finding that the control retained by BC had any effect on the manner or environment in which the work was performed. Cf. Funk, supra at 108. While Rego testified that his relationship with BC was such that, if BC’s representative had “come out” to the work site and “seen something he didn’t like, ... he could stop what I was doing,” the evidence was uncontroverted that, as a matter of fact, nobody from BC ever went to the job site or directed the manner in which the work was to be performed. Similarly, while BC’s representative acknowledged, without explication, that BC had “control” over Rego’s work with respect to correcting “unsatisfactory” work or behavior, there was no evidence that this control was ever exercised in any way. Cf. Burger, supra at 317 (“Contractual provisions subjecting the contractor to the owner’s oversight alone are not enough to retain control.”); Erickson, supra at 339. Therefore, the trial court erred in concluding there was sufficient evidence to present the issue to the jury.
For the reasons stated, we hold that the trial court erred in denying BC’s motion for a directed verdict.
in
Horizon argues that the trial court erred in denying its motion for a directed verdict and in directing a verdict in favor of plaintiff regarding the issue of Horizon’s negligence. We conclude that, under the unusual circumstances of this case, neither Horizon nor plaintiff was entitled to a directed verdict.
By statute, Horizon was required to obtain “the consent of the state highway commissioner” before commencing the cable construction work over state trunk line M-106. See MCL 247.184; MSA 9.264. On the day of the accident, Horizon applied for a permit from the mdot that would allow it to perform the work described. Twelve days later the permit was issued subject to various conditions. Among these conditions were the following:
3. The permittee agrees as a condition of this permit to:
d. Provide and maintain all necessary precautions to prevent injury or damage to persons and property from operations covered by this permit.
e. Furnish, install and maintain all necessary traffic controls and protection during permittee’s operations in accordance with the Michigan Manual of Uniform Traffic Control Devices and any supplemental specifications set forth herein.
The permit also provided that “[c]ommencement of work set forth in the permit application constitutes acceptance of the permit as issued.” Finally, the permit provided that “[t]he permittee is solely and fully responsible for all activities undertaken pursuant to the permit” and that “[t]he permit is not assignable and not transferable unless specifically agreed to by the [mdot].” It is undisputed that the “necessary traffic controls” referred to in the permit were lacking.
As noted, Horizon contracted with BC to perform the work described in the mdot permit; BC, in turn, contracted with Rego to perform that portion of the work at issue in this case. Accordingly, Horizon took no action with respect to the actual construction work, having delegated those responsibilities to BC. Plaintiff’s theory with respect to Horizon was that it owed Candelaria a nondelegable duty arising by virtue of the fact that it had obtained the mdot permit. The mdot could not create a nondelegable duty in tort owed by Horizon to Candelaria simply by including a nonassignability provision in the permit issued to Horizon. The only conceivable basis for imposing a nondelegable duty on Horizon under which plaintiff could proceed in negligence is that described in § 428 of the Second Restatement of Torts:
An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity. [2 Restatement Torts, 2d, § 428, p 420.]
This rule, or some variation of it, has been adopted in several other states. See, e.g., Eli v Murphy, 39 Cal 2d 598, 599; 248 P2d 756 (1952); Hamid v Metro Limo, Inc, 619 So 2d 321, 322 (Fla App, 1993); Barry v Keeler, 322 Mass 114, 126-127; 76 NE2d 158 (1947). The rationale for the rule is that it is contrary to public policy to allow a party given special permission by the state to engage in a particular activity to escape liability arising from that activity by contracting it away to others. See, e.g., Eli, supra at 599-600; Barry, supra at 127. Whether this rule, or a variation, should be adopted in Michigan presents a novel question that we cannot answer in this appeal.
At trial, plaintiff relied on Restatement Torts, 2d, § 428 in support of his claim that Horizon could be held liable under a nondelegable duty and Horizon argued against application of the rule. Nevertheless, when the trial court denied Horizon’s motion for a directed verdict, it did so not on the basis of § 428, but rather on what can best be described as a third-party beneficiary theory based on the mdot permit. The trial court reasoned that specific conditions imposed by the mdot permit defined the scope of a nondelegable duty owed by Horizon to the people of Michigan, including (presumably) Candelaria. After endorsing the “third-party beneficiary” theory, the trial court declined to rule on plaintiffs request to be allowed to proceed under § 428 as well. It then granted plaintiffs earlier motion for a directed verdict of negligence against Horizon on the ground that Horizon did not comply with the specific conditions imposed by the moot permit. Because the trial court directed a verdict of negligence in his favor, plaintiff had no incentive to challenge the trial court’s decision not to rule on the validity of his § 428 argument or to encourage the trial court to instruct the jury regard ing an additional theory under which Horizon might be found negligent.
The unique theory forming the basis for the trial court’s decision to deny Horizon’s motion for a directed verdict, and to direct a verdict of negligence against Horizon, was not a viable theory of liability in this case. This is so primarily because the mdot permit was not a contract, but rather a grant of permission. In order for a third-party beneficiary to enforce a promise, the promise must be made “by way of contract.” See MCL 600.1405; MSA 27A.1405. Moreover, plaintiff pleaded a claim sounding in negligence rather than in contract. By directing a verdict of negligence on the basis of Horizon’s failure to meet a specific condition of the mdot permit, the trial court essentially ruled that Horizon’s “violation” of the permit condition constituted negligence per se. Michigan does not subscribe to the doctrine of negligence per se. Zeni v Anderson, 397 Mich 117, 128-129; 243 NW2d 270 (1976). Therefore, we hold that the trial court erred (1) in relying on the “third-party beneficiary” theory as the basis for denying Horizon’s motion for a directed verdict and (2) in directing a verdict of negligence against Horizon on the basis of its failure to meet a specific condition of the mdot permit.
To prevail in this case, plaintiff was required to overcome the general rule of nonliability for contract-ees already discussed in part n of this opinion. The rule described in Restatement Torts, § 428, if applicable, would allow plaintiff to do so by imposing a non- delegable duty on Horizon. Because plaintiff relied on § 428 below, we cannot determine whether Horizon was entitled to a directed verdict without first deciding whether § 428, or a variation of that rule, should be adopted in Michigan and applied in this case. As noted, the trial court made no ruling regarding this issue. Appellate review is generally limited to issues decided by the trial court. E.g., Bowers v Bowers, 216 Mich App 491, 495; 549 NW2d 592 (1996). Although we could resolve the issue, given that it is a question of law and the facts necessary for its resolution have been presented, see, e.g., Frericks v Highland Twp, 228 Mich App 575, 585; 579 NW2d 441 (1998), we decline to do so because the issue has not been briefed by Horizon. To attempt to decide this relatively complex issue of first impression without the benefit of briefing from both sides would force us to construct and then evaluate our own “arguments.” That is certainly not a proper role for this Court. Moreover, we think it would be inappropriate to request supplemental briefing in the absence of a ruling on the issue by the lower court. Thus, we are unable to determine whether Horizon was entitled to a directed verdict.
The judgment against Horizon is reversed because the trial court erred in directing a verdict of negligence on the basis of Horizon’s “violation” of the mdot permit. Plaintiff’s only remaining theory of liability against Horizon is its argument based on Restatement Torts, 2d, § 428. We offer no opinion regarding the viability of that theory in Michigan or its applicability to the facts of this case.
IV
Horizon also contends that if plaintiffs recovery was based on Candelaria’s status as a third-party beneficiary of the mdot permit, his recovery should have been limited to actual damages. Because we reject the notion that plaintiff can recover under any sort of third-party beneficiary theory, we need not consider this issue further.
Both defendants also argue that the trial court erred in instructing the jury that the violation of certain regulations under the Michigan Occupational Safety and Health Act, MCL 408.1001 et seq.) MSA 17.50(1) et seq., would constitute evidence of negligence. Read in context, we think it is clear that this particular instruction was made applicable to BC only. Because we now hold that the trial court should have granted BC’s motion for a directed verdict, we need not consider this issue further.
Finally, given the disposition of this appeal, we need not consider defendants’ argument regarding the mediation sanctions awarded in the final judgment.
We reverse the judgment of the trial court and remand for a new trial with regard to defendant Horizon and for entry of an order dismissing the case with regard to defendant BC. We do not retain jurisdiction.
McDonald, P.J., concurred.
Many of this Court’s prior opinions have erroneously cited Funk (or cases relying on Funk) for the proposition that the doctrine of retained control subjects a contractee to liability for its contractor’s negligence. See Reeves v Kmart Corp, 229 Mich App 466, 471; 582 NW2d 841 (1998); Phillips v Mazda Motor Mfg (USA) Corp, 204 Mich App 401, 407; 516 NW2d 502 (1994); Szymanski v K mart Corp, 196 Mich App 427, 429; 493 NW2d 460 (1992), vacated 442 Mich 912 (1993); Little v Howard Johnson Co, 183 Mich App 675, 681-682; 455 NW2d 390 (1990); Wolfe v Detroit Edison Co, 156 Mich App 626, 627; 402 NW2d 16 (1986); Perry v McLouth Steel Corp, 154 Mich App 284, 296; 397 NW2d 284 (1986); Locke v Mach, 115 Mich App 191, 193-194; 320 NW2d 70 (1982). As noted, the focus of this sort of claim is properly on the contractee’s own duty and breach. See Funk, supra; Plummer, supra at 669-670 (Boyle, J.). Accordingly, these opinions are somewhat misleading. See Misiulis v Milbrand Maintenance Corp, 52 Mich App 494, 498-499; 218 NW2d 68 (1974) (discussing the possibility of confusion arising from a disregard of the distinction between claims based on vicarious and direct liability).
Any doubt that this was the basis for plaintiff’s claim at trial is removed by the fact that, in responding to defendant BC’s argument on appeal, plaintiff relies exclusively on the doctrine of retained control described in Funk, supra.
The dissent reasons that “[b]ecause the trial court specifically ruled that there was no contract in this case, I do not think it is fair to charac terize the trial court’s ruling as a ‘third-party beneficiary’ duty.” Post at 90. We do not characterize the trial court’s ruling as being a third-party beneficiary theory based on a contract, but rather as being a novel third-party beneficiary theory based on the permit. Our characterization is borne out by that portion of the trial court’s ruling excerpted in the dissenting opinion.
Plaintiff moved for a directed verdict of negligence against Horizon after Horizon conceded in its opening statement that “the traffic control was not what it should have been.” The trial court declined to rule with regard to plaintiffs motion before hearing the evidence. After the proofs were taken, the trial court instructed the jury as follows:
It was the duty of Horizon Cablevision to comply with the conditions and specifications of mdot permit 38051-79-94-0637 issued by the Michigan Department of Transportation in connection with the cable stringing work that Thomas Candelaria was performing on the day he was killed. In that connection, I charge you that it was the duty of Horizon Cablevision to provide and maintain all necessary precautions to prevent injury or damages to persons from operations covered by this permit.
I also charge you that it was the duty of Horizon Cablevision to furnish, install and maintain all necessary traffic controls and protection during permittees [sic] operations, and in accordance with the Michigan Manual of Uniform Traffic Control Devices. I instruct you that Horizon did not satisfy those duties and that this constituted negligence.
As to Horizon, you need only determine whether its negligence was a proximate cause of Plaintiffs damages, and what those damages are, if any.
In Michigan, a violation of a statute creates a rebuttable presumption of negligence, while the violation of an ordinance or administrative regulation constitutes evidence of negligence. E.g. Johnson v Bobbie’s Party Store, 189 Mich App 652, 661; 473 NW2d 796 (1991).
Horizon does not address § 428 in its brief on appeal. In its reply brief, Horizon contends only that plaintiff’s argument regarding § 428 is irrelevant because plaintiff did not file a cross appeal challenging the trial court’s decision to “reject” the theory at trial. While Horizon is incorrect in its assertion that the trial court rejected plaintiff’s § 428 theory, we do not deem the issue to have been forfeited because the question was not addressed below. With respect to plaintiff’s failure to raise the issue in the context of a cross appeal, we note that a cross appeal is not necessary to urge an alternative ground for affirmance, even if the alternative ground was considered and rejected by the lower court. See In re Herbach Estate, 230 Mich App 276, 284; 583 NW2d 541 (1998).
Horizon makes one argument on appeal that is not dependent on plaintiffs underlying theory of liability. Horizon contends that, under the defective Mghway statute, MCL 691.1402; MSA 3.996(102), only the state itself can be held liable for a failure to keep M-106 reasonably safe and fit for public travel. This argument is without merit. On its face, the statute is inapplicable to the facts of this case.
The dissent describes plaintiffs “theories” as being one based on the common law and another based on § 428. We disagree with this characterization. A careful reading of the record reveals that plaintiff advanced one theory based on the specific language of the permit and another based on the general common law as described by § 428. | [
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Kelly, J.
The prosecution appeals by leave granted the April 14, 1997, order of the trial court allowing the prosecution to use statements made by defendant during plea negotiations for rebuttal purposes only and not in the prosecution’s case in chief. We affirm.
In the early morning of May 7, 1988, Sue Garrison, a desk clerk at a motel, was killed. Police Officer Douglas Nelson was dispatched to the motel at 12:54 A.M. on the same day. The victim was discovered lying in a pool of blood and breathing. She later died from severe brain injury caused by a fractured skull.
In the summer of 1996, defendant was incarcerated on charges unrelated to the instant events. A prisoner in the cell next to defendant informed police officers that defendant admitted killing the victim in an attempt to steal money from the motel office. Allegedly, when the victim began screaming, defendant repeatedly hit the victim on the head with a metal pipe he or another perpetrator had brought from their car into the motel office. Pursuant to this information, the prosecutor issued an investigative subpoena and interviewed defendant on February 18, 1997. Defendant invoked his Fifth Amendment right not to incriminate himself and refused to answer any questions relating to the death of the victim.
After the interview, defendant requested an opportunity to again speak with the investigators. Defendant contacted Detective Brown and informed him that he wanted to change his answers and incriminate himself in exchange for a plea bargain. An agreement was reached whereby defendant would plead guilty of second-degree murder for the Mlling of Susan Garrison. A maximum sentence of at least thirty-five years would be recommended. In addition, the prosecution would agree not to charge defendant’s brother with any crime stemming from the events of May 7, 1988. Defendant’s brother apparently had been involved in the planning but not the execution of the robbery. In return, defendant would testify against his accomplice, Gerald Hudson, who had already been charged as a participant in the killing.
On April 28, 1997, defendant, two detectives, defendant’s attorney, and an assistant prosecuting attorney met in the prosecuting attorney’s office where the plea agreement was discussed. Defendant agreed to testify truthfully and to take and pass a polygraph examination. Defendant stated that he, his brother, and Hudson parked their car in front of the motel and went in separate directions to see what they could possibly steal. Defendant stated that after walking around for a while, he saw Hudson in the motel office beating the victim with a metal pipe. Defendant failed the polygraph examination.
After the April 28 interview, defendant contacted Detective Brown. Defendant stated that he wanted to speak with Brown outside the presence of his attorney. At a May 6, 1997, meeting, after being informed of his Miranda rights, defendant admitted killing the victim by beating her with a metal pipe. A meeting was scheduled for the following day between defendant and his attorney and the prosecuting attorney. Defendant was offered the same plea agreement offered at the April interview. Again, defendant admitted killing the victim by striking her with a metal pipe.
On May 19, 1997, a hearing was held in the Saginaw Circuit Court during which the prosecuting attorney apprised the court of the plea agreement between the parties. The trial court reviewed the agreement and asked defendant if he understood the rights he would be waiving if the court approved the agreement. At the end of the court’s questioning, defendant stated that he had changed his mind and that he did not want to accept the plea agreement. The court then refused to accept a guilty plea. Trial on one count of first-degree, felony murder was set.
Before trial, defendant moved for an evidentiary hearing to determine the admissibility of statements he made to the prosecution during the plea negotiations. During the hearing, defendant testified that he did not kill the victim and that he said he did only because he was coerced by the police. Defendant also argued that his statements were inadmissible because MRE 410 barred the admission at trial of statements made in the course of plea negotiations. The prosecu tor argued that MEE 410 applies only to statements made to attorneys, and not to statements made to police officers. Therefore, the prosecutor argued, the statements defendant made to Detective Brown outside the presence of the prosecutor were admissible. Also, the prosecutor argued that defendant waived any objection to the admissibility of his statements to the prosecutor by acknowledging that if he did not tell the truth and plead guilty, his statements would be used against him.
The trial court held that the statements made by defendant to Detective Brown, outside the presence of the prosecution, were admissible because the statements were not coerced. Further, the trial court held that the statements made to the prosecution during the plea negotiations could be used for rebuttal purposes, but could not be used in the prosecution’s case in chief.
The prosecution’s sole claim on appeal is that the trial court erred in limiting the introduction of defendant’s plea negotiation statements to rebuttal uses only and not for use in the prosecution’s case in chief. We disagree. Proper construction of a rule of evidence is a question of law. Questions of law are reviewed de novo by this Court. People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998).
This is an issue of first impression in Michigan. In United States v Mezzanatto, 513 US 196, 210; 115 S Ct 797; 130 L Ed 2d 697 (1995), the Supreme Court held that “absent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of the plea-statement Rules is valid and enforceable.” Although the Supreme Court was interpreting the Federal Rules of Evidence, we note that FRE 410 is identical to MRE 410. The relevant facts of that case involved a defendant who, upon commencing plea negotiations with the prosecutor, orally agreed to and signed a written waiver indicating that if the negotiations failed, the defendant’s statements would be used for impeachment purposes at any later proceedings. Mezzanatto, supra at 198. In reaching its conclusion, the Court did not specifically state that its holding would apply equally to the admission of plea-negotiated statements in the prosecution’s case in chief. In fact, the three-justice concurrence states that the Court’s decision does not address the applicability of such statements being admitted in a prosecution’s case in chief. We follow the majority and concurring opinions in Mezzanatto and leave for another panel of this Court or our Supreme Court the question whether a defendant can validly waive the explicit barrier to the introduction of plea negotiation statements in the prosecution’s case in chief.
Turning to the instant case, in order for defendant’s plea negotiation statements to be admissible for impeachment purposes, defendant must have knowingly and voluntarily waived his Fifth Amendment right to be free from self-incrimination. In determin ing if defendant waived this right, a trial court must focus on the following nonexhaustive factors: (1) the age of the accused, (2) his intelligence level, (3) his previous experience with the police, (4) the nature and length of the questioning, (5) the length of detention of the accused before giving a statement, (6) the lack of advice to the accused of his constitutional rights, (7) whether the accused was injured, in poor health, or intoxicated or drugged, (8) whether the accused was deprived of sleep or medical attention, and (9) whether the accused was physically abused or threatened with abuse. People v Sexton, 458 Mich 43, 66; 580 NW2d 404 (1998).
During the May 7, 1997, meeting between defendant, his attorney, and the prosecutor, the following information was conveyed to defendant by the prosecutor:
You [defendant] have been subpoenaed to testify regarding this investigation. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything you do.say may be used against you by State prosecutor[s] in a subsequent legal proceeding. If you have counsel and you do have Mr. George Thick here present, you will be permitted a reasonable opportunity to consult with counsel if you so desire. In other words if you have any questions and wish to talk to your attorney before answering any questions, just let me know and we will make a room available for you to talk with your counsel in private. Furthermore, this is a criminal investigation conducted in cooperation with the Saginaw Township Police Department and Saginaw County Prosecutor’s Office. You will be given an oath to tell the truth and your testimony is subject to possible prosecution for perjury should you knowingly make any false statement. The maximum penalty for perjury is 15 years. However, in a homicide charge it could be up to life.
On the basis of the foregoing dialogue during the May 7, 1997, meeting, we conclude the trial court did not err in determining defendant’s statements of guilt to have been knowingly and voluntarily made. Therefore, we affirm the decision of the trial court in admitting defendant’s inculpatory statements for rebuttal purposes only.
Affirmed.
During the interview, the following exchange took place between the prosecutor and defendant:
[Prosecutor]: Okay. I should tell you if you ... don’t perform, I’ve already read to you as part of your rights that anything you say today can be used against you. Remember that? When I was reading you the stuff.
[Defendant]: (Inaudible)
[Prosecutor]: If you don’t perform your part of the agreement that is either if you end up not pleading guilty as you’ve agreed or if you lie to us then it’s our position that we’re not bound by the agreement. Is there any problem with that?
[Defendant]: No.
[Prosecutor]: And . . . we would then feel free to withdraw from that agreement and to use against you anything you tell us that would incriminate you. Understand that?
[Defendant]: Yes. I understand.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
MRE 410 states in relevant part:
Except as otherwise provided in this rule, evidence of the'following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
Justice Ginsburg’s concurrence, joined by Justices O’Connor and Breyer, states in full:
The Court holds that a waiver allowing the Government to impeach with statements made during plea negotiations is compatible with Congress’ intent to promote plea bargaining. It may be, however, that a waiver to use such statements in the case in chief would more severely undermine a defendant’s incentive to negotiate, and thereby inhibit plea bargaining. As the Government has not sought such a waiver, we do not here explore this question. [Mezzanatto, supra at 211 (emphasis added).]
We note that defendant’s confession made on May 6, 1997,; resulted from conversations held outside the presence of the prosecuting attorney and initiated by defendant. Thus, MRE 410 does not apply. The record clearly shows defendant waived his Miranda rights and confessed to the killing of the victim. We find no error in the trial court’s thorough analysis of the facts and determination that defendant’s May 6, 1997, confession was knowingly, intelligently and voluntarily made. People v Cheatham, 453 Mich 1, 11 (Boyle, J.), 44 (Weaver, J.); 551 NW2d 355 (1996); People v Abraham, 234 Mich App 641;__ NW2d_(1999). Therefore, the statements made on May 6, 1997, by defendant may be used by the prosecution in its case in chief. | [
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Neff, J.
Defendants W. A. Thomas Company (hereafter defendant) and Dennis Arquette appeal as of right from the trial court’s judgment for plaintiff in this sexual harassment case involving an alleged hostile work environment. We affirm in part, vacate the judgment in part, and remand for further proceedings consistent with this opinion.
i
Plaintiff began working for defendant in March 1994. Plaintiff testified that from the very beginning Arquette, her supervisor, subjected her to continuous sexual harassment. We do not deem it necessary to describe in detail the specific conduct described by plaintiff. It is sufficient to note that plaintiff testified that Arquette’s alleged conduct toward her included sexually explicit comments and unwanted kissing and groping; Plaintiff testified that she complained about Arquette’s conduct to another supervisor and to the plant manager, and that these men personally witnessed some of Arquette’s sexual conduct in the workplace, but that no action was taken to punish Arquette for the sexual harassment or to prevent further occurrences.
Plaintiff testified that after Arquette began berating her for things such as her attitude, work output, and attendance record, she quit. Plaintiff testified that defendant sent her a copy of a newly formed sexual harassment policy and ordered her to return to work. Plaintiff complied, but found the harassment had turned from sexual to something more hostile. After four days back on the job, plaintiff quit again. She described for the jury the emotional distress she suffered, including a suicide attempt and various physical ailments.
Defendants denied that plaintiff was subjected to a sexual and hostile work environment. Arquette stated that although he may have touched plaintiff, or given her a casual hug on occasion, he denied ever touching her in a sexual manner. In addition, defendant’s plant manager denied witnessing any inappropriate conduct by Arquette and denied that plaintiff ever complained of sexual harassment before quitting. Defendants presented evidence regarding their investigation of Arquette’s conduct, which failed to reveal any corroboration of plaintiff’s allegations.
Defendants also presented evidence that plaintiff, rather than Arquette, was the one who made crude, sexual comments and engaged in offensive behavior in the workplace. In addition, defendants presented the testimony of some of plaintiff’s former employers, who testified that the reasons for plaintiff’s leaving previous employment were insubordination and poor attendance, contrary to plaintiff’s representations on her employment application with defendant.
Plaintiff filed a complaint alleging a hostile work environment pursuant to the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq. On defendants’ motion, plaintiff’s constructive discharge claim was summarily dismissed, thus leaving only her claim for emotional distress damages. A mediation evaluation for $125,000 was accepted by plaintiff and rejected by defendants.
After a six-day jury trial, the jury found defendants liable and awarded plaintiff $80,555 in emotional distress damages. The court awarded plaintiff $43,376.66 in attorney fees and costs, and $37,827.50 in mediation sanctions, bringing the total judgment to $192,684. This appeal followed.
n
Defendants raise several challenges to the instructions given to the jury. A trial court’s decisions regarding jury instructions are reviewed for an abuse of discretion. Lagalo v Allied Corp (On Remand), 233 Mich App 514, 519; 592 NW2d 786 (1999). We review the instructions in their entirety and will not reverse a court’s decision regarding supplemental instructions unless failure to vacate the verdict would be inconsistent with substantial justice. Nabozny v Pioneer State Mut Ins Co, 233 Mich App 206, 217; 591 NW2d 685 (1998).
A
Defendants first argue that the trial court erred in its instructions regarding the effect of defendants’ investigation of plaintiff’s complaints and subsequent remedial action. We disagree.
As defendants correctly note, an employer may avoid liability under the CRA “if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment.” Downer v Detroit Receiving Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991); see Radtke v Everett, 442 Mich 368, 396; 501 NW2d 155 (1993). However, the duty to investigate arises only if the employer has actual or constructive notice of the alleged offensive environment. Downer, supra at 234-235.
In the recent cases of Burlington Industries, Inc v Ellerth, 524 US 742; 118 S Ct 2257; 141 L Ed 2d 633 (1998), and Faragher v Boca Raton, 524 US 775; 118 S Ct 2275; 141 L Ed 2d 662 (1998)—both decided after trial in the present case—the United States Supreme Court held that an employer is vicariously hable for a supervisor’s creation of a hostile environment unless the employer can prove, by a preponderance of the evidence, both elements of the following affirmative defense:
(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. [Ellerth, supra, 118 S Ct 2270; Faragher, supra, 118 S Ct 2293.]
This affirmative defense is not available where the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Id.
On appeal, defendants complain that the trial court erred in refusing to give their proposed instruction regarding this subject in its entirety. We find no abuse of discretion in the trial court’s decision. Although the court’s instructions perhaps were not as detailed as defendants may have liked, they fairly and accurately advised the jury of the applicable law. The jury was instructed that it must determine whether defendant, once it knew or should have known of the alleged harassment committed by Arquette, adequately investigated and implemented prompt and appropriate corrective action. On its verdict form, the jury specifically found that defendant did not. The result of this determination by the jury, whether viewed as an element of plaintiff’s claim or as a part of an affirmative defense, is vicarious liability for defendant. Consequently, substantial justice does not require reversal of the jury’s verdict on the basis of the trial court’s failure to read instruction 36 in its entirety.
B
Defendants also argue about the trial court’s rulings regarding defendant’s proposed instructions 33 and 34, which focus on evidence of plaintiff’s own sexual activities in the workplace. The trial court gave the first paragraph, but not the second, of each of these instructions:
33. DEFINITION OF UNWELCOME SEXUAL CONDUCT OR COMMUNICATION
The threshold for determining that sexual conduct or communication is unwelcome is that the employee did not solicit or incite it, and the employee regarded the sexual conduct or communication as undesirable or offensive.
Evidence of an employee’s participation and/or initiation in the sexual conduct or communication is relevant to determining whether the employee found the sexual conduct or communication of others unwelcome. An employee’s participation and/or initiation in the sexual conduct or communication will defeat an employee’s allegation of unwelcomeness unless the employee establishes a point at which her participation and/or initiation stopped and at which she made known to her coworkers or supervisors that the sexual conduct or communication would henceforth be considered unwelcome.
34. DEFINITION OF INTIMIDATING, HOSTILE, OR OFFENSIVE WORK ENVIRONMENT
Not all sexual conduct or communication constitutes hostile environment sexual harassment. To sustain a claim of hostile environment sexual harassment, the harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.
Evidence of an employee’s active contribution in the sexual conduct or communication is relevant to determining whether a hostile working environment existed. An employee’s active contribution in the sexual conduct or communication- will defeat an employee’s allegation of hostile work environment.
In the present case, plaintiff bore the burden of establishing the following elements of a hostile work environment:
(1) the employee belonged to a protected group;
(2) the employee was subjected to communication or conduct on the basis of sex;
(3) the employee was subjected to unwelcome seocual conduct or communication;
(4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and
(5) respondeat superior. [Radtke, supra at 382-383 (emphasis added).]
Defendants presented evidence in support of their claim that plaintiff often engaged in sexual conduct herself. Plaintiffs own conduct was therefore relevant to the question whether Arquette’s alleged acts were “unwelcome.” See, e.g., Balletti v Sun-Sentinel Co, 909 F Supp 1539, 1547 (SD Fla, 1995) (“Where a plaintiff’s action in the work place shows that she was a willing and frequent participant in the conduct at issue, courts are less likely to find that the conduct was ‘unwelcome’ or ‘hostile.’ ”) However, plaintiff’s participation in sexual behavior or comments, standing alone, does not necessarily defeat a claim of hostile work environment. To the contrary, it is merely a factor to consider when determining whether the conduct or comments at issue were “unwelcome.” For this reason, the second paragraph of defendants’ proposed instruction 34 is an incorrect statement of the law and was properly rejected by the trial court.
Regarding the second paragraph of instruction 33, we note that the last sentence is a reasonable paraphrase of a footnote in Loftin-Boggs v City of Meridian, 633 F Supp 1323, 1327, n 8 (SD Miss, 1986). Accordingly, had the trial court chosen to give this portion of the instruction, it would have been a proper exercise of discretion. See Radtke, supra at 381-382 (Michigan courts often turn to federal precedent interpreting title VII for guidance when interpreting the cra).
However, the trial court’s refusal to give the second paragraph of instruction 33 does not require reversal. The first paragraph of this instruction, which was read to the jury, advised that in order for the conduct at issue to be “unwelcome,” plaintiff herself must have found the conduct at issue to be offensive. The court also instructed the jury regarding the other elements of a hostile work environment claim, including the requirement that the alleged harassment be so severe as to substantially interfere with plaintiff’s employment or create an intimidating, hostile, or offensive work environment. Read in its entirety, the corut’s charge represented a fair and adequate statement of the applicable law. Murdock v Higgins, 454 Mich 46, 50; 559 NW2d 639 (1997).
c
Defendants next challenge the trial court’s refusal to instruct the jury, pursuant to the after-acquired evidence rule, that plaintiff’s compensatory damages should be limited as of the date defendants discov ered certain false statements on her employment application. We disagree.
i
In McKennon v Nashville Banner Publishing Co, 513 US 352; 115 S Ct 879; 130 L Ed 2d 852 (1995), an age discrimination case, the United States Supreme Court resolved a split in the circuit courts of appeal regarding whether after-acquired evidence of wrongdoing by an employee could bar recovery against an employer who had illegally discriminated against the employee. The Court unanimously held that after-acquired evidence of wrongdoing that would have resulted in termination did not bar all relief for an employee discharged in violation of the adea, but rather operated to limit the relief available.
The Court concluded that, as a general rule, neither reinstatement nor front pay is an appropriate remedy because it would be “both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.” Id. at 361. Back pay, however, may still be appropriate: “[t]he beginning point” for determining back pay “should be calculation of back pay from the date of the unlawful discharge to the date the [evidence of the employee’s misconduct] was discovered.” Id. at 362. This Court has adopted these general guidelines in the context of an action under the CRA. Smith v Union Twp (On Rehearing.), 227 Mich App 358; 575 NW2d 290 (1998) (failure to hire); Horn v Dep’t of Corrections, 216 Mich App 58; 548 NW2d 660 (1996) (wrongful termination); Wright v Restaurant Concept Management, Inc, 210 Mich App 105; 532 NW2d 889 (1995) (sexual harassment).
2
Neither McKennon nor the Michigan authorities cited above address the question whether the after-acquired evidence rule applies to noneconomic damages such as those for emotional distress. In the one federal case decided after McKennon that addresses the issue, Russell v Microdyne Corp, 65 F3d 1229 (CA 4, 1995), the court assumed, without explanation, that the plaintiff would be eligible for both compensatory and punitive damages despite the application of the after-acquired evidence rule. The Russell court further described an “after-acquired evidence” case as follows:
In contrast to the narrow analytic distinctions between the indirect single-motive case and the mixed-motive case, the “after-acquired evidence” case stands on completely different ground. While the current label has become widespread, it is something of a misnomer, for consistency and accuracy would title it the “after-acquired motive” case. In such a case, the employer does not assert that it had in its mind a legitimate non-discriminatory reason that explains its challenged action and that would insulate it, to whatever extent, as in the mixed-motive case; instead, the employer argues that it has acquired evidence since the time of that action that, had it known it at the time, would have led it to do exactly what it did, except for a legitimate reason rather than an illegal one. Thus, unlike the two styles of cases, there is no dispute as to the motivating force behind the decision as made; instead, the employer attempts to demonstrate that there was what can only be called a “constructive motive” for the decision that should insulate its action from attack. [Id. at 1237.]
In the present case, we find that the trial court did not err in refusing to instruct the jury regarding the after-acquired evidence rule. Equitable in nature, the rule is usually applied in a situation involving termination or another adverse employment action to ensure that an employee does not benefit from the employee’s own misconduct or misrepresentation. The rationale of the cases applying the rule is that a plaintiff who was not entitled to the employment in the first place cannot claim economic damages for the loss of it. Thus, the general rule announced in McKennon—that front pay and reinstatement are barred, and back pay stops as of the date the employee’s misconduct is discovered—represents a reasonable balance of the CRA’s dual goals of deterring employers from discrimination and compensating employees for injuries caused by the prohibited discrimination. McKennon, supra at 358; Wright, supra at 112-113.
In a case involving an allegation of emotional distress damages, however, the situation is much different. As noted by the court in Baab v AMR Services, Corp, 811 F Supp 1246, 1262 (ND Ohio, 1993), where a plaintiff seeks emotional distress damages, “the injury is to one’s person and plaintiff is entitled to be free of that injury regardless of her status as a dis-chargeable employee.” Moreover, emotional distress damages are not as easily quantified as economic damages: they are, as the trial court noted, of a continuing nature, and it would be inequitable to treat them the same as claims for back pay, reinstatement, or front pay. Consequently, we find that a claim for emotional distress damages should be treated differently from one for purely economic damages with respect to the after-acquired evidence rule.
For these reasons, we conclude that the trial court properly refused to instruct the jury that plaintiffs emotional distress damages could be terminated as of the date defendants learned that she had made false statements on her employment application.
m
Defendants next challenge certain trial court decisions regarding the admissibility of evidence. We review such matters for an abuse of discretion. Sackett v Atyeo, 217 Mich App 676, 682; 552 NW2d 536 (1996).
A
Defendants argue that the trial court erred in excluding the testimony of what they call a rebuttal witness. We disagree.
The trial court correctly noted that because defendants did not file a counterclaim, they were not permitted to present rebuttal evidence after resting their defense. Moreover, the proposed rebuttal testimony— regarding plaintiffs own sexual conduct in the workplace—would have been cumulative to evidence already presented by other defense witnesses. Under these circumstances, the trial court did not abuse its discretion in refusing defendants’ request.
B
Defendants also argue that the trial court erred in permitting plaintiff to testify that she felt compelled to quit, her job, and in excluding from evidence the court’s previous order stating that, as a matter of law, plaintiff was not constructively discharged.
We first note that because defendants failed to object at trial, they have waived any challenge to plaintiff’s testimony that she felt compelled to quit her job. Napier v Jacobs, 429 Mich 222, 227-228; 414 NW2d 862 (1987). Regarding defendants’ assertion that the actual order should have been admitted into evidence, we find that the trial court was properly concerned about not distracting the jury with extraneous matters. MRE 403. The jury was carefully instructed that plaintiff’s sole claim was for emotional distress damages. To admit an order that mentions another claim, only to dismiss it, would have great potential for juror confusion. Accordingly, the trial court’s ruling was not an abuse of discretion.
c
Defendants argue that the trial court erred in qualifying plaintiff’s treating therapist, Domenic Tamboriello, MSW, CSW, as an expert witness and permitting him to render his opinion regarding plaintiff’s symptoms of posttraumatic stress disorder (ptsd). Defendants insist that because Tamboriello is a certified social worker, and not a psychologist or psychiatrist, he was not competent to testify about PTSD. We disagree.
Pursuant to MRE 702, a person may be qualified to testify as an expert witness by virtue of his knowledge, skill, experience, training, or education in the subject matter of the testimony. Michigan has long endorsed a broad application of these requirements for qualifying an expert, Dudek v Popp, 373 Mich 300, 306; 129 NW2d 393 (1964), and the question whether a particular witness qualifies as an expert is left to the trial court’s discretion. Price v Long Realty, Inc, 199 Mich App 461, 468; 502 NW2d 337 (1993).
Tamboriello testified that during his fourteen years of clinical experience, he counseled victims of sexual, physical, and emotional abuse. He further described his lengthy history of experience with clients suffering from anxiety, depression, and ptsd. The mere fact that Tamboriello is not a medical practitioner does not render him unqualified as an expert witness. See People v Beckley, 434 Mich 691, 712 (Brickley, J.), 742 (Boyle, J.); 456 NW2d 391 (1990) (finding no error in the trial court’s qualification of a certified social worker as an expert to testify regarding sexually abused children). Any hmitations in Tamboriello’s qualifications are relevant to the weight, not the admissibility, of his testimony. Triple E Produce Corp v Mastronardi Produce Ltd, 209 Mich App 165, 175; 530 NW2d 772 (1995).
IV
Defendants next challenge the trial court’s postverdict award of attorney fees, costs, and mediation sanctions.
A
Defendants contend that the trial court abused its discretion in awarding $42,000 in attorney fees pursuant to the cra. Specifically, defendants argue that the court failed to consider the facts that plaintiff lost her constructive discharge claim, that she received much less damages than she had asked for, and that she and her counsel had a contingent fee agreement. We disagree.
Whether to award attorney fees pursuant to the CRA is left to the trial court’s discretion. Wilson v General Motors Corp, 183 Mich App 21, 42; 454 NW2d 405 (1990). Where attorney fees are to be awarded, the court must determine the reasonable amount of fees according to various factors, including (1) the skill, time, and labor involved, (2) the likelihood, if apparent to the client, that the acceptance of the employment will preclude other employment by the lawyer, (3) the fee customarily charged in that locality for similar services, (4) the amount in question and the results achieved, (5) the expense incurred, (6) the time limitations imposed by the client or the circum stances, (7) the nature and length of the professional relationship with the client, (8) the professional standing and experience of the attorney, and (9) whether the fee is fixed or contingent. Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982); Head v Phillips Camper Sales & Rental, Inc, 234 Mich App 94, 114; 593 NW2d 595 (1999).
In fashioning its attorney fee award, the trial court was mindful that plaintiff’s constructive discharge claim had been dismissed and that the jury verdict was less than the mediation evaluation. However, the court opined that the pretrial cost and effort put forth by plaintiff’s counsel would not have been substantially different had plaintiff not raised the constructive discharge claim at all. The court thus declined to apportion the fee according to the number of claims actually won.
The trial court also noted, correctly, that the existence of a contingent fee agreement does not automatically preclude an award of attorney fees under the CRA. Rather, such an arrangement is only one of the factors to be considered when determining a reasonable attorney fee. King v General Motors Corp, 136 Mich App 301, 308; 356 NW2d 626 (1984). The court rejected defendants’ suggestion that plaintiff’s contingent fee agreement satisfies the purposes of the CRA’s attorney fee provision. If this were true, the court stated, there would rarely be an award of attorney fees, noting that most civil rights actions are brought pursuant to contingent fee agreements.
Contrary to defendants’ argument, the trial court clearly and carefully considered the question of the results achieved, and the existence of a contingent fee arrangement, in determining a reasonable attorney fee. We find no abuse of discretion in the court’s award.
B
Defendants next argue that the trial court erred in awarding attorney fees as mediation sanctions pursuant to MCR 2.403 in addition to the fee awarded pursuant to the cra. In light of our Supreme Court’s recent decision in McAuley v General Motors Corp, 457 Mich 513; 578 NW2d 282 (1998), we find that the trial court’s award of attorney fees pursuant to MCR 2.403 must be vacated.
As a general rule, a party who rejects a mediation evaluation is subject to sanctions if the party fails to improve its position at trial. Meagher v McNeely & Lincoln, Inc, 212 Mich App 154, 157; 536 NW2d 851 (1995). MCR 2.403(O)(l) provides in relevant part:
If a party has rejected an evaluation and the action proceeds to verdict, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation.
If sanctions axe appxopriate, the costs to be chaxged axe those taxable in any civil action plus a xeasonable attorney fee. MCR 2.403(O)(6).
When the trial court granted plaintiff’s motion for mediation sanctions, controlling authority permitted the award of attorney fees under both the cra and MCR 2.403. Howard v Canteen Corp, 192 Mich App 427; 481 NW2d 718 (1991). Recently, however, our Supreme Court held in McAuley, supra, that a prevail ing party may not recover a second award of attorney fees under MCR 2.403 where the party has already been compensated for reasonable attorney fees under a fee-shifting statute.
In reversing the double award of attorney fees in the case before it, which involved the Handicapper’s Civil Rights Act (HCRA), the Court stated that both the mediation court rule and the HCRA were compensatory, rather than punitive, in nature. Both provisions were intended to compensate the prevailing parties for the reasonable costs of all or part of the litigation, and not to impose a penalty or to permit a party to recover an amount in excess of a reasonable attorney fee. Id. at 519. Consequently, where the prevailing party has already been fully reimbursed for reasonable attorney fees through the operation of a statutory provision such as the HCRA, there are no “actual costs” remaining to be reimbursed to the party under the court rule. Id. at 523. So-called “double recovery” under both the statute and the court rule is thus neither warranted nor required. Id. at 525. Applying this analysis to the present case, we find that the pur pose of the attorney fee award provision in the CRA, like that of the hcra, is compensatory rather than punitive. Likewise, the mediation court rule is compensatory in nature. As our Supreme Court has stated, a plaintiff cannot be “compensated” twice. Id. We find nothing in the record to suggest that the trial court awarded plaintiff anything less than a “reasonable” attorney fee under the cra. Accordingly, the attorney fee award provisions of the cra and the mediation rule cannot be applied together to impose a penalty on defendants, and the trial court’s award of attorney fees pursuant to MCR 2.403 must be vacated.
In light of our holding, we find moot defendant’s alternative argument that, pursuant to MCR 2.403(O)(3), the “adjusted verdict” was more favorable to defendants than the mediation evaluation. We note briefly, however, that the trial court properly inteipreted this subrule, and added to the verdict all assessable costs, including attorney fees, rather than only those costs for the period between the filing of the complaint and the date of the mediation evaluation. See Dale v Beta-C, Inc, 227 Mich App 57, 69; 574 NW2d 697 (1997) (“[I]t is a general rule of statutory, as well as grammatical, construction that a modifying clause is confined to the last antecedent unless a contrary intention appears.”).
c
Defendants also challenge the trial court’s imposition of prejudgment interest on the award of attorney fees and costs. We find their argument to be without merit.
Interest on civil money judgments is provided for in MCL 600.6013; MSA 27A.6013. As amended in 1993, this statute provides in relevant part:
(1) Interest shall be allowed on a money judgment recovered in a civil action . . . . '
(6) . . . for complaints filed on or after January 1, 1987, interest on a money judgment recovered in a civil action shall be calculated at 6-month intervals from the date of filing the complaint at a rate of interest that is equal to 1% plus the average interest rate paid at auctions of 5-year United States treasury notes during the 6 months immediately preceding July 1 and January 1, as certified by the state treasurer, and compounded annually, pursuant to this section. Interest under this subsection shall be calculated on the entire amount of the money judgment, including attorney fees and other costs. However, the amount of interest attributable to that part of the money judgment from which attorney fees are paid shall be retained by the plaintiff, and not paid to the plaintiffs attorney. [Emphasis added.]
Contrary to defendants’ argument on appeal, the last sentence of subsection 6013(6) does not render ambiguous the sentence immediately before it. There is nothing ambiguous about the statute’s mandate that interest be awarded on plaintiff’s money judgment, including costs and attorney fees. That plaintiff, rather than her counsel, is entitled to the interest on the portion of the judgment representing the attorney fee does not change this fact. Accordingly, the trial court properly awarded prejudgment interest on the entire judgment, including plaintiff’s costs and attorney fees.
v
In her prayer for relief, plaintiff requests that this Court award reasonable appellate attorney fees. The purpose of the CRA’s attorney fee provision is to encourage persons deprived of their civil rights to seek legal redress, to ensure victims of discrimination access to the courts, and to deter discrimination. Howard, supra at 441; Collister v Sunshine Food Stores, Inc, 166 Mich App 272, 274; 419 NW2d 781 (1988). Moreover, this Court has held that an award of appellate attorney fees is proper under the CRA. Schellenberg v Rochester Elks, 228 Mich App 20, 56; 577 NW2d 163 (1998); McLemore v Detroit Receiving Hosp & Univ Medical Center, 196 Mich App 391, 402-403; 493 NW2d 441 (1992). Accordingly, we remand this case and instruct the trial court to determine and award plaintiff reasonable appellate attorney fees. In determining its award, the court is instructed to consider all appropriate factors, including the fact that plaintiff did not prevail in full on appeal. See Head, supra at 114.
Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Arquette did receive a written reprimand from the company, however, for touching and telling dirty jokes to two other female employees.
The trial court read the first paragraph, and rejected the remainder, of the following proposed instruction:
36. SEXUAL HARASSMENT: EMPLOYER AVOIDANCE OF LIABILITY—ADEQUATE INVESTIGATION, PROMPT AND REMEDIAL ACTION
If you decide that a hostile work environment did in fact exist, you must then decide whether Defendants adequately investigated and took prompt and remedial action upon notice of the alleged hostile work environment.
Adequate investigation and prompt remedial action are established where: the employee admits no further harassment occurred; the employee fails to complain of further harassment subsequent to employer’s remedial efforts; or the employer’s remedial efforts were both timely and reasonably likely to prevent the alleged conduct or communication^) from recurring.
Your verdict will be for the Defendants if you find that W.A. Thomas Company adequately investigated and took prompt and remedial action.
Your verdict will be for the Plaintiff if you do not find that W.A. Thomas Company investigated and took prompt and remedial action.
This conclusion is supported by the evidence presented by plaintiff that not only did she complain during the summer months to both a supervisor and the plant manager, but also that these supervisors actually witnessed some of Arquette’s offensive behavior and yet took no action until after plaintiff quit.
We note that defendants did not tender a proposed jury instruction with regard to this issue. However, the court advised the parties, before the beginning of trial, that it would not instruct the jury regarding the after-acquired evidence rule and its application to plaintiff’s claim for emotional distress damages.
Emotional distress damages are among the broad range of remedies available under the cea. Hyde v Univ of Michigan Bd of Regents, 226 Mich App 511, 522; 575 NW2d 36 (1997).
This is particularly true here, where plaintiffs employment was not terminated, either constructively or otherwise. As stated by the court in Russell, supra, the after-acquired evidence rule excuses (at least to some degree) a discriminatory action, such as termination, because of the existence of employee misconduct even though the employer did not know about the misconduct at the time of termination. In the present case, plaintiff alleged that she suffered severe emotional damage stemming from the oppressive atmosphere caused by Arquette. We refuse to conclude that, merely because plaintiff Med on her employment appMcation, defendants were free to cause her emotional harm by subjecting her to an otherwise illegal, hostile, work environment; plaintiff was not fair game for harassment even though she might have been less than candid on her employment appMcation.
In Howard, this Court held that because each provision served an independent policy and purpose, double recovery was appropriate:
The policy behind the mediation sanction rule is to place the burden of litigation costs upon the party who insists upon trial by rejecting a proposed mediation award. The purpose of the civil rights attorney fee provision is to encourage persons deprived of their civil rights to seek legal redress, to ensure victims of employ-merit discrimination access to the courts, and to obtain compliance with the act and thereby deter discrimination in the work force. [Howard, supra at 441.]
The Supreme Court expressed its agreement with this general proposition in McAuley, supra at 522.
MCL 37.1101 et seq.-, MSA 3.550(101) et seq.
The Supreme Court declined to overrule the result in Howard, supra, stating only that it “neither indorsed nor condoned” the result reached in that case. McAuley, supra at 522.
Indeed, it appears that all parties, as well as the trial court itself, relied on then-controlling case law (Howard, supra) and proceeded under the assumption that double recovery under the cra and the mediation rule was appropriate
Plaintiff argues that because the trial court reduced her requested attorney fees from nearly $70,000 to $42,000, she was not fully compensated, and, thus the court’s award of mediation sanctions was not punitive. A similar argument was rejected by the Supreme Court in McAuley, supra at 523-524. We thus find no merit in plaintiffs attempt to avoid the result dictated by McAuley, that is, the vacation of the trial court’s award of mediation sanctions.
MCR 2.403(O)(3) provides in part:
For the purpose of subrule (0)(1), a verdict must be adjusted by adding to it assessable costs and interest on the amount of the verdict from the filing of the complaint to the date of the mediation evaluation, and, if applicable, by making the adjustment of future damages as provided by MCL 600.6306; MSA 27A.6306. | [
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] |
Lesinski, C. J.
On June 24,1951 at 1 a.m., James Ramsey suddenly ran into the yard of his apartment house residence with his clothing and body in flames. Defendant Willie Jackson appeared in the yard with Ramsey and threw him to the ground in an attempt to extinguish the fire. Ramsey subsequently died of burns received at this time while the defendant suffered first, second and third-degree burns during the incident. Police officers, arriving on the scene, interviewed various witnesses and arrested Willie Jackson. On June 29, 1951, after lengthy interrogation, defendant was arraigned on a charge of first-degree murder.
On March 18, 1952, following a jury trial and conviction, defendant was sentenced to life imprisonment. After numerous motions for new trial were denied, we granted leave to file a delayed appeal.
Defendant’s first claim of error is that the criminal information was defective in that it did not charge the statutory element of premeditation. In support of this contention defendant cites People v. Gologonoff (1967), 6 Mich App 332. In that case the jury verdict was “guilty in manner and form as the people have in their information in this cause charged.” We reversed “because the charge here involved lacks the element of premeditation. [I]t does not charge first-degree murder as defined in § 316 [MOLA § 750.316]. The verdict does not support the conviction of first-degree murder.” While the information in the instant case is substantially the same as the one in Gologonoff, the jury verdict here was:
“Guilty of murder in the first degree.” (Emphasis supplied.)
Thus the problem discussed in Gologonoff does not arise and the verdict was valid. See, also, People v. Dupuis (1963), 371 Mich 395; Cf. Attorney General v. Recorder’s Court Judge (1954), 341 Mich 461, 469.
Defendant’s second allegation of error concerns the admission into evidence of the purported dying declaration of James liamsey. It is fundamental that before a dying declaration may be received in evidence there must be clear proof that the declarant believed in his impending death, and that he perceived no hope of recovery. People v. Johnson (1952), 334 Mich 169. The record here discloses no such proof. The only evidence of the declarant’s state of mind was his vague response to two leading-questions asked in the hospital by the assistant prosecuting attorney. This same kind of evidence was rejected as insubstantial in Johnson. Where, as here, the other evidence against defendant is purely circumstantial, the prejudicial effect of the erroneous admission of a purported dying declaration by the alleged victim is certain to be substantial. A new trial is mandatory.
Defendant also claims certain statements elicited from him by police were involuntary, being the product of an illegal detention. In the absence of a Walker hearing, we are unable to determine the validity of this allegation. In the event the statements are offered during the retrial of this cause, the court shall order a Walker hearing to determine the voluntariness of the statements. At that time the effect of People v. Hamilton (1960), 359 Mich 410, upon the legality of the interrogation, shall be considered, bearing in mind that Hamilton applies to all trials commenced after the date of that decision. People v. Besonen (1966), 4 Mich App 131; People v. Allen (1967), 8 Mich App 408. It might he wise to note also that the inculpatory or exculpatory nature of the statements is unimportant. As we said in People v. Besonen, supra, at p 138, “the real test to he applied is whether the statement turned out to he incriminating.”
Reversed and remanded.
All concurred.
MOLA § 750.316 (Stat Ann 1954 Kev § 28.548).
People v. Walker (On Rehearing, 1965), 374 Mich. 331, made expressly retroactive. See People v. Allen (1967), 8 Mich App 408.
Among other factors to be considered at the Walker hearing is defendant’s allegation that the police withheld information of Bamsey’s death until various statements had been elicited from defendant. This type of claim was discussed in People v. Allen, supra fn 2, where we said:
“One other allegation of defendant merits, discussion. Although the police knew the day after his arrest that a man had died as a result of the fire, they withheld this information from defendant until he had made his incriminating statements. Const 1908, art 2, § 19, in effect at the time of defendant’s arrest, provided that the accused in a criminal prosecution shall be informed of the nature of the accusation against him. We need not comment on this argument, except to say that any withholding from defendant of information that he was facing a murder charge prior to obtaining incriminating statements from him is another factor for the trial judge to consider in conducting a Walker-type hearing for the purpose of determining whether such statements can be said to be voluntary.” 8 Mich App 408, 413.
See, currently, Const 1963, art 1, § 20.
Since we reverse on other grounds, the significance of defense counsel’s failure to object to the admission of the statements in the lower court is lessened. Nevertheless, we would consider the issue in any event to determine whether a fair trial was given defendant. People v. Spells (1969), 16 Mich App 609. | [
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Per Curiam.
This case is submitted on the people’s motion to dismiss or affirm, properly a motion to affirm under GCR 1963, 817.5(3).
Defendant was tried and convicted of breaking and entering (MCLA § 750.110 [Stat Ann 1968 Cum Supp § 28.305]) by Recorder’s Judge George W. Crockett, Jr., sitting without a jury, and was sentenced to serve 6 to 15 years in prison. On appeal, defendant raises three claims of error.
First, defendant claims the court erred in denying his request to dismiss his appointed counsel without ordering, sua sponte, a separate hearing into the effectiveness of counsel. "While defendant may have been dissatisfied with his appointed counsel, he failed to avail himself of the opportunity to obtain retained counsel. No other attorney was ready or even named to undertake defendant’s cause. In People v. Stinson (1967), 6 Mich App 648, this Court held that a denial of defendant’s request for a continuance to enable defendant to obtain his own counsel was not error. As in the instant case, the defendant in Stinson was dissatisfied with his appointed counsel and sought an adjournment at the outset of the trial to obtain other counsel. See also People v. Edwards (1969), 18 Mich App 526.
Second, defendant claims he was deprived of his right to a fair and impartial trial when the trial judge, sitting as the trier of fact, failed to disqualify himself, sua sponte, after indicating his disbelief in defendant’s claims in support of his request to dismiss counsel. An examination of the record reveals no request to disqualify the judge; on the contrary, the record reflects defendant’s desire for the same judge to hear the case when he stated: “I want for you to hear it.” Under these circumstances and in the absence of any request at trial, this question is not preserved for appellate review. People v. Piotrowski (1966), 4 Mich App 510. See also People v. Miller (1922), 217 Mich 635 and People v. Turner (1952), 333 Mich 547.
Third, defendant claims the court erred in failing to declare, sua sponte, a mistrial when a witness testified to overhearing certain statements of defendant’s accomplice implicating defendant. The argument, based upon Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476), lacks merit. An examination of the transcript reveals the testimony was stricken from the record in response to defendant’s objection. Even if the testimony remained, the admission of such testimony would have been harmless error since there was overwhelming evidence of guilt. Bearden v. United States (CA 5, 1968), 403 F2d 782; People v. Pelow (1969), 24 NY2d 161 (247 NE2d 150), and Ignacio v. Guam (CA 9, 1969), 413 F2d 513.
Motion to affirm is granted. | [
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T. M. Burns, J.
Defendant was found guilty of the crime of robbery armed, MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797), by a jury, and was given a prison sentence of 8 to 20 years. The complaining witness was a gas-station attendant. He testified that he was held up at gunpoint, and forced to follow the robber from the station. After going a short distance, the robber ran away and went out of sight between buildings. Police were called and captured the defendant as he was crouching in shrubbery nearby. A toy pistol and the complainant’s money changer were found close to where the defendant was arrested and were used as evidence. When the police arrested defendant, one said to defendant, “You robbed the gas station, didn’t you?” The defendant replied, “Yes.” The defendant was subsequently identified as the holdup man by the station attendant victim, in a police lineup. Defendant filed an indigency affidavit, and counsel was appointed by the court. This attorney was defendant’s counsel throughout the trial. He was also appointed appellate counsel over the objection of defendant and filed a claim of appeal with this Court. After the filing of this claim of appeal, there was a substitution of attorneys. Although this Court had jurisdiction over the cause by reason of the claim of appeal, GCB, 1963, 802.1, the new attorney filed a motion with the trial court to vacate the verdict and order a new trial. This motion was denied. To alleviate procedural difficulties, the defendant’s counsel filed a motion to set a new time for appeal alleging that the claim of appeal had been prematurely filed. This Court, by its order, allowed a new time for a claim of appeal by right to be set. An amended claim of appeal was then timely filed.
The defendant asserts that a trial court is required to ascertain that lineup procedures are constitutionally fair in the absence of competent evidence to the contrary, and that a trial court is required to conduct a Wallcer-type hearing on its own motion concerning the voluntariness of a statement. The defendant further asserts that he was deprived of a fair trial by the alleged lack of diligence of his court-appointed counsel.
An in-court identification of the defendant was made by a witness, who had previously identified the defendant in a lineup, without objection. Defendant contends that the record is silent on the procedures used in the lineup, and therefore, under United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149), there must be a compulsory “revelation at trial” of lineup procedures and fairness. This contention is clearly refuted by the record as the procedures used are clearly established therein. Police detective Bourke’s affidavit stated that the defendant had been advised of his constitutional rights, including the right to have an attorney at the lineup, and that defendant waived this right. In the absence of any material proof that the lineup was .unfair, or of any request for a hearing on the waiver, or of any motion to suppress after notice, the court concluded that there was a waiver on the basis of the police affidavit. Under these circum stances, accepting an in-conrt identification without objection cannot be classified as an abuse of discretion.
An additional reason for allowing the in-court identification was given by the court:
“As a matter of fact, an independent source is pretty well indicated by the trial testimony of Falk, ■who indicated the identification was based upon examination of the defendant’s face and the scar on his left arm.” (Emphasis added.)
The surrounding circumstances indicate that the lighting at the scene of the crime was extremely good and that the victim being close to the robber for some time had ample opportunity to observe him at length. In the light of the totality of the surrounding circumstances, the witness had ample opportunity to observe not only defendant’s features but also identifying marks, and to make positive identification by means sufficiently distinguishable from and unconnected with the lineup. People v. Love (1969), 18 Mich App 228, 231.
Regarding defendant’s admission of guilt in response to the police question, no objection to the admissibility of the answer was made either during or before trial, although a notice of intent to use admissions was furnished to defense counsel before trial. The defense made no request for a Walker - type hearing on this question. No steps were taken to suppress, nor was any proof offered that it was involuntary. No objection was made and there was evidence to establish that the confession or admission was in fact voluntary. People v. Gollman (1966), 3 Mich App 463; People v. Fore (1966), 5 Mich App 132.
In People v. Carabell (1968), 11 Mich App 519, the Court held that objection to the use of defend ant’s prior admissions and confessions at trial is waived by failure to take proper procedural steps before and during trial, when notice was given that they would be used.
Likewise, there was no objection to the receipt of testimony regarding the lineup. Consequently, it was not saved to assign the same as error on appeal. People v. Hughes (1968), 14 Mich App 308. For, in the absence of a notable abuse of discretion or of an obvious miscarriage of justice, “error cannot be assigned upon testimony received at trial without objection.” People v. Guise (1933), 262 Mich 72; People v. Bobine (1963), 371 Mich 593.
The court is not required to hold a Walker-typo, hearing on its own motion. If we were to require the court to intercede under the circumstances presented here, we would be placing a truly unwarranted burden upon the court. Defendant has cited no authority which would compel such a procedural innovation. We consider that it would be injudicious for us to do so here.
Defendant’s contention that trial counsel was so ineffective or incompetent as to deprive him of a fair trial is unpersuasive. Appellate courts try never to second-guess trial counsel on matters of strategy. People v. Martin (1919), 210 Mich 139; People v. Foster (1920), 211 Mich 486; People v. Crosby (1969), 19 Mich App 135; see also People v. Hoy (1968), 380 Mich 597.
The record clearly discloses that the trial was neither a sham nor a mockery of justice. People v. Wynn (1968), 14 Mich App 268, 269.
“The grant of a motion for new trial is discretionary with the trial court. People v. Poole (1967), 7 Mich App 237. Neither the record nor defendant’s arguments persuade us that the trial judge abused bis discretion in denying the motion for new trial in tbis instance.” People v. Love, supra, p 231.
Affirmed.
All concurred. | [
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Lesinski, C. J.
Plaintiffs filed suit to recover under the uninsured motorist provision of their insurance contract with Allstate. Defendant Allstate Insurance Company moved for summary and/or accelerated judgment. After Allstate’s motions were denied by the trial court, this Court granted leave to appeal. The trial court held that the insurance contract between the parties did not preclude plaintiffs from bringing suit against defendant Allstate before submitting their claim to arbitration.
The basic facts are not in dispute. Plaintiffs were insured with defendant Allstate and carried uninsured motorist coverage. Emily Bradt was involved in an automobile accident with an uninsured motorist and alleged that she sustained an injury. She attempted to collect from Allstate but the parties could not resolve their differences.
Allstate demanded arbitration and proceeded to arrange for hearings before the American Arbitration Association. This action was taken under the following contractual provision:
“Determination of Legal Liability and Amount of Damages.
“The determination as to whether the insured shall be legally entitled to recover damages, and if so entitled the amount thereof, shall be made by agreement between the insured and Allstate.
“In the event of disagreement and upon written demand of the insured, the matter or matters upon which the insured and Allstate do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The insured and Allstate each agrees to consider itself bound and to be bound by any award made by the arbitrator(s) pursuant to this Section II (uninsured motorist section).”
The record reveals that plaintiffs never demanded arbitration. Moreover, they expressed dissatisfaction with the arrangements made by Allstate. Twice they had the arbitration hearing postponed. They sent several letters attempting to get the hearing-moved from Detroit to Port Huron for the reason that the witnesses to the accident resided in the Port Huron area. This request was refused by the American Arbitration Association on the grounds that: “A. The respondent is the moving party. B. An earlier hearing date can be scheduled in Detroit.” They were then informed by the Association that all further requests for postponements would be denied.
Plaintiffs then commenced this suit, seeking an order enjoining Allstate and the American Arbitration Association from proceeding with arbitration and damages under the uninsured motorist provision. The trial court granted a preliminary injunction. Defendant Allstate then moved for summary and/or accelerated judgment on the damages suit and for dismissal of the injunction.
The questions presented on appeal are whether plaintiffs’ suit for damages was properly brought before arbitration and whether the injunction was properly granted.
MCLA § 500.2254 (Stat Ann 1957 Rev § 24.12254), provides in pertinent part: “That any reasonable remedy for adjudicating- claims established by such [insurance] company or companies shall first be exhausted by the claimant before commencing- suit.” In the instant ease Allstate has provided plaintiffs with the r" ht to binding arbitration, a remedy long recognized as reasonable under Michigan law. Bone v. Grange Mutual Fire Insurance Co. (1921), 215 Mich 396. The validity of this provision and similar provisions in other insurance contracts is well accepted. Norton v. Allstate Insurance Company (ED Mich, 1964), 226 F Supp 373; Stagray v. Detroit Automobile Inter-Insurance Exchange (1965), 1 Mich App 321. Since the arbitration remedy has not been exhausted, the instant suit for damages is premature and must be dismissed. Stagray v. Detroit Automobile Inter-Insurance Exchange, supra; Van Horn v. State Farm Mutual Automobile Insurance Co. (CA 6, 1968), 391 F2d 910.
Allstate’s motion below also sought dismissal of the injunction obtained by plaintiffs. The issue thus raised is: whether Allstate had a right under the contract to initiate arbitration.
While the question may appear academic, since plaintiffs will ultimately have to go to arbitration themselves if they are to have a remedy, it has procedural importance. The importance is illustrated in the case at bar where Allstate has attempted to force plaintiffs to arbitrate at a time and place unsatisfactory to the plaintiffs.
The controlling clause in the contract reads as follows:
“In the event of disagreement and upon written demand of the insured, the matter or matters upon which the insured and Allstate do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association.” (Emphasis supplied.)
Like any other contract clause this must be interpreted under the general rules of construction. 2 MLP, Arbitration, § 2, p 459.
Beyond the obvious necessity of a dispute, the plain meaning of the clause requires a written demand by the insured as a condition precedent to arbitration. Allstate apparently concedes as much in its brief, where it states: “What the policy does is to provide a protection for the insured: The company cannot force an insured into arbitration if the insured is not ready to arbitrate his case. * * * The insured under the Allstate policy may decide when to arbitrate.”
When Allstate commenced arbitration, it was clearly without contractual authority. Moreover, the result of this action was to undermine the very purpose which Allstate concedes existed: i.e., the right of the insured to determine when to arbitrate. Therefore, Allstate was correctly enjoined from proceeding without plaintiffs’ written demand.
While it might be argued that G-CR 1963, 769.2(2) precludes this result, such is not the case. That rule provides: “On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate.” Although there was an agreement to ultimately arbitrate in the instant case, there never existed an agreement to allow Allstate to commence arbitration without the plaintiffs’ written demand.
The trial court’s denial of Allstate’s motion is, therefore, affirmed in part and reversed in part. The canse is remanded to the trial court for action consistent with this opinion.
All concurred.
Leave was granted by order on December 13,1968.
The question of whether the actions taken by plaintiff amounted to a submission to the jurisdiction of the American Arbitration Association is not raised on this appeal by the concession of the defendants.
This is to be distinguished from such eases as Stagray v. Detroit Automobile Inter-Insurance Exchange (1965), 1 Mich App 321, where the insurance contract provided for arbitration “upon written demand of either.” Significantly this distinction is recognized by Allstate when it states in its brief: “Because of this difference in language the court no doubt would have been justified in permanently enjoining Allstate’s demand for arbitration since there is no basis in the policy for Allstate to demand arbitration.”
Nurney v. Fireman’s Fwn d Insurance Company (1886), 63 Mich 633. There the Court held that an insurance policy clause providing for arbitration of a dispute upon the written demand of either party made such a demand a condition precedent to arbitration.
Significantly, it might be noted that Allstate’s actions also had a heavy influence on the location of the arbitration hearing, much to the inconvenience of plaintiffs’ ease. The first reason given by the American Arbitration Association for denying plaintiffs’ request for a change of location was that plaintiffs were the respondents in the arbitration. This reason would not have existed if the contractual provision had been met. | [
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] |
Per Curiam.
Convicted by a jury and sentenced for assault with intent to rob and steal being armed, defendant appeals on the basis of three alleged reversible errors.
Defendant was arraigned on the warrant January 12, 1967, at which time his preliminary examination was set for January 27, 1967. Defendant contends this violated the mandatory requirement of MCLA § 766.4 (Stat Ann 1954 Eev § 28.922) that examination be set not exceeding ten days after arraignment on the warrant, and that this violation constitutes reversible error.
There is nothing in the record to indicate why the magistrate set the preliminary examination 15 days after defendant was arraigned on the warrant. Failure to comply with the statutory ten-day requirement above mentioned was error, hut it was a procedural error and it is not reversible error unless a miscarriage of justice resulted from it. People v. Collins (1968), 380 Mich 131.
Defendant was tried March 18, 1967, so he was not denied a speedy trial. He has demonstrated no prejudice to him by the five-day delay. This Court has recently held that a delay of the type presented here is not reversible error. See People v. Linscott (1968), 14 Mich App 334.
On the basis of an eseerpt taken from the prosecuting attorney’s rebuttal argument to the jury, defendant claims a violation of the rule against “golden rule” jury argument, namely: asking the jury to place itself in the position of the complainant. Assuming the argument was objectionable, it was not objected to and it is not properly before this Court. People v. Hider (1968), 12 Mich App 526. The language complained of is not as objectionable as that approved in People v. Laker (1967), 7 Mich App 425.
Finally, defendant urges as reversible error the trial judge’s efforts to correct an improper verdict as announced by the jury foreman. We find that the trial judge was not only justified to, he was obligated to obtain an accurate verdict, People v. George Baker (1967), 7 Mich App 7.
Affirmed.
MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). | [
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Per Curiam.
Defendant was convicted by a jury of assault with intent to commit murder, CL 1948, § 750.83 (Stat Ann 1962 Rev § 28.278). He was sentenced to a term of 8 to 15 years in prison.
On appeal defendant questions the admissibility into evidence of the gun-used by him in shooting the complainant, claiming that the gun was the fruit of an illegal search and seizure. The trial .court asked defense counsel if he had any objection to the admission of the gun and he answered, “No objection.” Therefore, this issue has not been preserved for appellate review. People v. Wilson (1967), 8 Mich App 651.
Furthermore, admission of the gun into evidence was not prejudicial as defendant testified that he shot the complainant accidentally in attempting to defend himself. . ,
Finally, People v. Shaw (1968), 9 Mich App 558, relied on by defendant, is distinguishable from the instant case since defense counsel in the Shaw case did object to the admission of the evidence in question.
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Levin, J.
The defendant appeals his conviction of armed robbery. We reverse because of instructional error concerning the intoxication defense.
The people’s evidence showed that the defendant and George Moore entered a drug store at 8:30 p.m. and held it up using revolvers.
At the trial the defendant testified that for several days before the robbery he had been drinking heavily. He claimed that after drinking 20 to 25 bottles of beer during the morning of the day the crime was committed he drove his car to Moore’s house to buy some insulation from him. After purchasing the insulation the defendant and Moore made two automobile trips to the defendant’s house transporting the insulation. The defendant further testified that he continued to drink throughout the morning; he said that he and Moore consumed some 24 bottles of beer transporting the first load of insulation, and that additional beer was consumed delivering the second load. The defendant said he then took a couple of benzedrine capsules to “appease” Moore. The defendant claimed that he had no recollection of anything that occurred that day after taking the benzedrine owing to an alcoholic blackout. Thus, he said, he could not recall his participation in the robbery.
The defendant also provided an extensive history of alcoholism beginning at the age of 15, reflected in military service and civilian criminal records. In 1956 he was convicted' of armed robbery; he was intoxicated when that offense was committed. He said, however, that he had an awareness of his actions at that time which he did not have at the time the currently charged robbery was committed.
He stated be could recall only one previous incident of overtly antisocial behavior after blacldngout due to intoxication, when, as a soldier and while grossly intoxicated, he was removed from a machine gun behind the lines and struck the company commander in a fight. The defendant said he had experienced many blackouts of an uneventful nature. He had previously committed at least one crime while sober.
The defense in this case was that by reason of intoxication the defendant was not aware of, and, therefore, was not criminally responsible for, his actions at the time the crime was committed.
At common law, a trespass was not criminal unless the actor entertained that culpable state of mind termed mens rea. This element of every common-law crime is sometimes referred to as general intent. The universally accepted rule in this country is that general intent cannot be negatived by evidence that the actor was intoxicated at the time the crime was committed. This doctrine is expressed in the oft-repeated maxim that “voluntary intoxication is no excuse for crime.”
The rigor of this doctrine has been relaxed where the people must prove that the actor entertained a specific intent in addition to general intent. Thus, although, intoxication is not a defense where only general intent needs to he shown, e.g., where the crime charged is involuntary manslaughter or statutory rape, the Michigan Supreme Court has held that it can he shown to negative the requisite specific intent where the crime charged is assault with intent to murder, assault with intent to rape and assault with intent to do great bodily harm less than the crime of murder. And since larceny “does not consist in the wrongful taking of the property, for that might he a mere trespass; but it consists in the wrongful taking with felonious intent,” intoxication can he shown to negative that felonious intent. Following fundamentally the same analysis, the Court has also held that burglary and brealring and entering are specific intent crimes.
In this case the prosecutor concedes, the trial judge charged the jury and we agree that armed robbery is a specific intent crime. Robbery is larceny committed by assault or putting in fear and, as we have already seen, larceny is a specific intent crime.
The intoxication defense was first discussed by the Michigan Supreme Court in People v. Garbutt (1868), 17 Mich 9. Garbutt was convicted of mur tier. The Court held that the trial judge had correctly refused to charge tbe jury that they must acquit the defendant if they believed that he was intoxicated to such an extent that he was not conscious of what he was doing at the time the offense was committed. The Court stated that to recognize intoxication as a defense (p 19):
“would be a most alarming [doctrine] to admit in the criminal jurisprudence of the country, and we think the recorder was right in rejecting it. A man who voluntarily puis himself in condition to have no control of his actions, must be held to intend the consequences. The safety of the community requires this rule. Intoxication is so easily counterfeited, and when real it is so often resorted to as a means of nerving the person up to the commission of some desperate act, and is withal so inexcusable in itself, that the law has never recognized it as an excuse for crime.” (Emphasis supplied.)
Two years later, in Roberts v. People (1870), 19 Mich 401, the Michigan Supreme Court for the first time drew the distinction between general and specific intent. Eoberts was convicted of assault with intent to murder. The Court referred to Garbutt and stated that the consequence which a man who voluntarily becomes intoxicated is held, as a matter of law, to intend is (pp 416, 417) “the crime actually committed; and not in this case the intent charged, if the defendant was at the time incapable of entertaining it, and did not in fact entertain it.”
In People v. Walker (1878), 38 Mich 156, the defendant’s conviction of larceny was reversed because the trial judge refused to charge that intoxication could be a defense. The Supreme Court declared (p 158):
“"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. In larceny the crime does not consist in the wrongful taking of the property, for that might be a mere trespass; but it consists in the wrongful taking with felonious intent; and if the defendant, for any reason whatever, indulged no such intent, the crime cannot have been committed. This was fully explained by Mr. Justice Christiancy in Roberts v. People (1870), 19 Mich 403, and is familiar law.”
In People v. Guillett (1955), 342 Mich 1, Guillett’s conviction of assault with intent to commit rape was reversed by the Michigan Supreme Court because the trial judge gave a charge modeled on Garbutt and not on Roberts. The Court observed (p 6):
“It is important in this decision to emphasize that intoxication may only negative the existence of specific intent. Examination of the cases reveals that where the rule was applied, it was done so in cases where the crime charged also involved a specific intent.” (Emphasis by the Court.)
In the case now before us the trial judge charged the jury:
“Now concerning intoxication and intent, I instruct you that an inability to remember as the result of amnesia, whether it was caused by alcohol or otherwise, is not a defense to a crime; that is to say, a person does not have to remember. A person who voluntarily puts himself in a state of intoxication must be held to have intended the consequences which actually ensued, the crime actually committed. However, the crime of armed robbery includes the intent to steal and to take money or other property from the person, or the property of another without any claim or color of right. And if the respondent’s mental faculties were so far overcome by intoxication that he wasn’t conscious of what he was doing, or if he did not know why he was doing it, then he could not have such an intent; that would mean, he would be too drunk to have such an intent.
“However, I also instruct you that if the respondent had knowledge that when he drinks he may lose his faculties, and without control over his actions commit a crime, then such prior knowledge of criminal propensity would be a basis for your finding that he intended to do what he did.”
The first paragraph of the judge’s instruction is a correct statement of the law. A person who voluntarily puts himself in a state of intoxication is deemed to intend the consequences which actually ensue, the crime actually committed, in this ease armed robbery. Or, to state it differently, as a matter of law, voluntary intoxication may not be shown for the purpose of establishing that the defendant did not entertain the general intent (mens rea or culpability) necessary to commit the crime.
Since armed robbery is, as we have previously stated, a crime of specific intent, the trial judge properly went on to charge that if the defendant’s mental faculties were so far overcome by intoxication that he was not conscious of what he was doing, or he did not know what he was doing, then he could not entertain that specific intent and, therefore, in the words of the Walker Court, there being “no such intent, the crime cannot have been committed.”
The last sentence of this portion of the instructions, vis.:
“However, I also instruct you that if the respondent had knowledge that when he drinks he may lose his faculties, and without control over his actions commit a crime, then such prior knowledge of criminal propensity would be a basis for your finding that he intended to do what he did.”
was, however, erroneous. This portion of the charge seems to be modeled on Roberts, but mistakenly.
In the situation hypothesized in Roberts, a defendant “had formed the intent” to commit the crime before he became intoxicated. It is not claimed, however, that the defendant Kelley while he was sober formed the specific intent requisite to the commission of the crime of which he was convicted. Moreover, this case was not submitted to the jury on the theory that the defendant while sober decided to commit armed robbery. A different question would be presented if, on the basis of evidence that the defendant had formed that intention while sober, the judge had instructed the jury that if they credit that evidence intoxication would not be a defense.
It was, therefore, incorrect to charge that intoxication would not be a defense if Kelley knew before he began to drink that if he became drunk he might commit “a crime” — any crime. Under Roberts, to entirely eliminate intoxication as a defense, a defendant must, while sober, have formed the specific intent requisite to the commission of the particular crime he is charged with committing.
The defendant in Roberts also claimed insanity but introduced no evidence tending to show insanity distinct from and independent of the effects of in toxication. Tbe Supreme Court ruled that if the jury found that Boberts knew that intoxication would trigger a dormant tendency to insanity, then insanity would be a defense only if the defendant was insane without regard to his intoxication. That cannot be read, as the trial judge appears to have read it in this case, as meaning that if the defendant Kelley had knowledge that when he drinks he may lose his faculties and without control over his actions commit “a crime,” such prior knowledge of criminal propensity would be a basis for a finding that he entertained the intent required to commit the particular crime he was convicted of committing. The Roberts opinion states only that intoxication may not be relied upon to establish a defense other than intoxication when the actor knows before he begins to drink that drinking may cause a condition which would create a factual basis for that defense. This did not create an exception to the intoxication defense itself.
The instruction given in this case eliminates the very distinction drawn in Roberts, the distinction between general intent and specific intent. The judge’s charge that the intoxication defense is unavailable if the jury finds that the defendant knew while sober that when he drinks he may commit a crime, any crime, means that a defendant’s knowledge of a propensity to commit when drunk, say, the crime of blasphemy, or gambling, or gross inde cency, or murder, would eliminate the defense even if the crime actually charged is, say, armed robbery or some other crime of specific intent. That is not the law. Prior knowledge of a propensity to commit some crime cannot be made the basis of a finding by a jury that a defendant while sober entertained the requisite specific intent to commit a particular crime.
The prosecutor argues that Kelley must be held to intend the consequences of his actions because he voluntarily became intoxicated. Putting aside the question whether an alcoholic drinks voluntarily, under present law the consequence which a voluntary drinker is deemed as a matter of law to intend is the crime committed, not that he will entertain any specific intent requisite to its commission. Indeed, the essence of the exception for specific intent crimes to the general rule that intoxication is not a defense is that specific intent will not be implied as an intended consequence of voluntary intoxication.
During the discussion of his proposed jury charge with counsel for the parties the trial judge expressed the view that a man with the defendant’s history of intoxication should be deemed fully accountable for the crimes he commits while intoxicated. We agree with the judge that one who has a history of committing serious crimes when he drinks is a threat to the safety of the community and that in the spectrum of moral responsibility one who has such a history and commits a crime in that condition is generally more heinous than one who commits a crime while intoxicated but who has no such history.
The question before us, however, is one of criminal responsibility, not moral responsibility. Present law simply does not differentiate between wrongdoers based on their propensity for crime, holding one with a prior history of committing crimes while intoxicated to a higher standard of criminal responsibility than one who has no such history.
It has been suggested that the law needs revision. One commentator would eliminate the intoxication defense where a normal drinker knows of his propensity to commit crime while intoxicated ; but that innovation would not be of much value when the drinker, like the defendant Kelley, is an alcoholic.
It has also been suggested that a person who has a prior history of commission of crime while drunk and nevertheless drinks and commits a crime should not be held responsible for the commission of that crime, but rather for the crime of drinking knowing of that propensity; that he should be charged with the commission of a newly created offense of reckless or negligent intoxication in lieu of the offense which he committed while drunk.
A somewhat related proposal is that we adopt the approach of the German penal code and hold those who commit crimes while drunk to a lesser, as it has been termed, a “diminished responsibility.”
It has also been maintained that the availability of the intoxication defense should not depend on whether a court chooses to characterize an element of the crime charged as separate from the element of general intent. It has been observed that neither common experience nor psychology knows of any such phenomenon as “general intent” distinguishable from “specific intent.” It does seem incongruous to make the admissibility of mitigating evidence depend on whether the statutory definition of a crime includes a separately stated intent, and other methods of defining specific intent are highly manipnl able.
The clumsiness of the exculpatory device has been criticized. A defendant who is charged with a specific intent crime may go free if he can prove he was intoxicated; this result contrasts sharply with the absolute denial of relief to the intoxicated offender charged with a crime of general intent.
If the function of the general/specific intent distinction is to eliminate the defense as to lesser included offenses, e.g., assault and battery, but to retain it for the more serious offenses, e.g., armed robbery, and in that manner mitigate the general rule that intoxication is not a defense, then manifestly this should be done on a consistent basis. The right to interpose this defense should depend on something more substantial than a technical distinction that was seized upon by a judge 130 years ago and adopted by other judges to reach results thought sound in the cases then before them.
We recognize the contrariety of present law and the need for reappraisal of the intoxication defense. Some of the proposals that have been made would, however, require legislation. Others would require reshaping precedent which has become so well established that it is accepted dogma both in encyclopedias and in carefully worked out recent revisions of State penal codes. It is beyond our function, as an intermediate appellate court, to inject policy considerations into our deliberations in a case such as this where the common law has taken on a symmetry of its own, however incongruous that symmetry appears upon analysis.
As long as the general/specific intent distinction is conceptually the controlling one, proof of the actor’s general recklessness cannot be made to substitute for proof of his specific intent to commit a particular crime. Under existing precedent if the crime charged cannot be committed unless the actor entertained a specific intent at the time the crime was committed, he is not guilty if he did not entertain that intent by reason of intoxication.
At the conclusion of the discussion between the judge and counsel of his proposed jury charge, the judge stated the intoxication instruction that he would give. The prosecutor expressed his satisfaction and defendant’s trial counsel stated, “I think that is a fair instruction. I disagree, I don’t like the instruction, but I think it is a fair instruction.”
We find it unnecessary to attempt to fathom what defendant’s counsel meant by that ambiguous statement for two reasons. Firstly, the judge stated that he saw great inconsistency in the law and expressed the view that an appellate opinion might be helpful. Secondly, in People v. Guillett, supra, pp 7, 8, the Michigan Supreme Court has ruled that where an erroneous instruction on the intoxication defense is given, then, even in the absence of requests to charge, the case must be reversed and a new trial ordered.
It is necessary to consider two additional assignments of error as they concern questions which will arise upon the new trial.
The defendant argues that his courtroom identification was tainted because he was viewed in a lineup before trial in the absence of counsel. The lineup took place before the United States Supreme Court decided United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149). In Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199), the United States Supreme Court declared:
“AYe hold that Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date.”
Our Court has held that this means that Wade applies only to lineups which take place after the date Wade and Stovall were decided.
The defendant also contends that the warrant obtained for his arrest was invalid because it was authorized by an assistant prosecuting attorney rather than by the prosecuting attorney himself. In People v. Jarboe (1968), 10 Mich App 476, 479, we rejected the contention that an assistant prosecutor can perform the prosecutor’s duties only during his absence or disability.
AYe see no need to address ourselves to the defendant’s claim that evidence illegally seized was erroneously admitted. The defendant did not file a motion to suppress in advance of the trial and the relevant facts have not been developed. Since the case will be retried, this claim can be considered before the new trial if a motion to suppress is filed in advance of trial.
Eeversed and remanded for a new trial.
Bronson, J., concurred.
MCLA § 750.529 (Stat Ann 1909 Cum Supp § 28.797).
“After numerous overindulgenees some drinkers may begin to experience mental blackouts. After a certain point in a drinking bout they are unable to remember what happened. They do not pass out or beeome unconscious, but their intelligence is as clouded as that of a psychotic, and their control is equally impaired.” Deddens, Volitional Fault and the Intoxicated Criminal Offender, 36 U Cine L Bev 258, 259 (1967), citing a study of the Public Health Service, TJ. S. Department of Health, Education and Welfare.
A killing may be accidental. A battery may be only tortious. A taking of property may be a mere conversion. “A criminal intent is a necessary ingredient of every crime.” Pond v. People (1860), 8 Mich 150, 174; 21 Am Jur 2d, Criminal Law, § 81, p 162. See, also, Morissette v. United States (1952), 342 US 246 (72 S Ct 240, 96 L Ed 288), which traces the development of the mens rea requirement and the application of this concept to statutory crimes. Cf. People v. Sybisloo (1921), 216 Mich 1, 4, 5.
See, generally, 21 Am Jur 2d, Criminal Law, § 107, pp 185-187; 22 CJS, Criminal Law, §§ 66, 68, pp 214-219; Deddens, op cit, fn 2.
Nineteen states have statutes on intoxication. All these states, except Texas, do not allow voluntary intoxication as a defense unless it disproves the existence of a state of mind which is an essential element of the crime charged. In those states without a statute the common law reaches the same result, except for Missouri and Vermont. Note, Intoxication as a Criminal Defense, 55 Colum L Rev 1210 (1955); Deddens, op eit, fn 2, pp 267, 270.
See fn 4.
See People v. Townsend (1921), 214 Mich 267, 280.
See People v. Murray (1888), 72 Mich 10, 13.
See Roherts v. People (1870), 19 Mich 401; People v. Jones (1924), 228 Mich 426.
See People v. Guillett (1955), 342 Mich 1.
See People v. Berryhill (1967), 8 Mich App 497.
See People v. Walker (1878), 38 Mich 156. Cf. People v. Cummins (1882), 47 Mich 334.
See People v. Eggleston (1915), 186 Mich 510; People v. Depew (1921), 215 Mich 317.
See People v. Royce Alexander (1969), 17 Mich App 30, 31.
Garhutt was distinguished in People v. Guillett, supra, on the basis that (p 6) “the crime involved in that case was murder, not a specific intent crime.” But, see, People v. Toner (1922), 217 Mich 640, 649.
On the ground that intent to kill is not a necessary element of murder, eourts in some jurisdictions have taken the position that murder is not a crime of specific intent. But even those jurisdictions, as a rule, permit intoxication to be shown to negative the premeditation and deliberation necessary to convict one of first degree murder. Still other courts, in recognition of the fact that when a killing is deemed murder without proof of intent to kill it is because that intent is implied from reckless behavior (Moreland, Law of Homicide, pp 15, 16, 18, 19, 35, 36), have allowed the defense to negative murder and to reduee the crime to voluntary manslaughter. The eases are collected in Anno: Voluntary Intoxication as Defense to Homicide, 12 ALE 861; 79 ALR 897. Similarly, see Deddens, op oit, fn 2, pp 272, 273; Note, Intoxication as a Criminal Defense, 55 Colum L Rev 1210, 1214, 1215 (1955); Hall, General Principles of Criminal Law (2d ed), pp 534, 546.
Although this is a correct statement of the law, it should not be stated in jury instructions unless a defendant injects the intoxication defense before the jury and the defense is not available either because the crime charged is not a specific intent crime or as a matter of law there is insufficient evidence of intoxication (see, e.g., People v. Kirk [1908], 151 Mich 253, 258). To tell a jury that intoxication is not a defense in one breath and in the next that it may negative specific intent is to ask the jury to comprehend a distinction which takes considerable time for the trained legal mind to grasp and, once comprehended, defies rational explication. See fn 25 and accompanying text. Although a correct statement of the law, this portion of the instruction was confusing and misleading. “[T]he 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 ease.” Hill v. Harbor Steel & Supply Corporation (1965), 374 Mich 194, 208. (Emphasis supplied.)
See Roberts v. People, supra, p 418. Judicial statements of tliis rule are frequently framed in terms of the effect of intoxication on the mental capacity to form an intent rather than in terms of whether the actor entertained the requisite intent. See Roberts v. People, supra; People v. Peterson (1911), 166 Mich 10. Contrast People v. Walker, supra, and People v. Guillett, supra. This is a misplaced emphasis since the degree of intoxication which would render a person mentally incapable of entertaining the requisite intent is unlikely to be short of that which renders him unconscious. If the jury were to follow sueh an instruction literally, it is doubtful that intoxication could ever be a defense. Note, Intoxication as a Criminal Defense, 55 Colum L Rev 1210, 1212, 1214, (1955).
Similarly a different question would be presented if it were shown that the defendant had decided while sober to commit larceny. Since the requisite specific intent for the commission of armed robbery is a larcenous intent, arguably it should not make any difference that the defendant did not know when sober from whom ho would attempt to steal or whether he would attempt to steal by burglary, robbery or in some other manner.
We have examined the cases referred to in the annotations cited in footnote 14 and other eases. Innumerable cases state as dietum or holding that intoxication is not a defense if the intent to commit the crime was formed while the aetor was sober. However, we found no suggestion in the cases that the intoxication defense is not available to one who merely has knowledge of a propensity to commit crime while intoxicated, that knowledge of that propensity is enough to negative the defense even though the actor does not while sober form the specific intention requisite to the commission of a particular crime.
The Roberts Court stated (p 416) “that if the defendant had formed the intent while in possession of his mental faculties, and entertained it before and at the time he became intoxicated, his subsequent voluntary intoxication to whatever extent, would not shield him from a conviction of the offense charged, including the intent, nor even for murder had death ensued from the assault.” See, also-p 406, proposed instruction four, and discussion of the “intent charged,” i.e., the intent to kill, on pp 414-416.
The Roberts Court stated that (p 422): “if, from his past experience or information, he [the defendant] had, while sane and before drinking, on that day, good reason to believe that, owing to a dormant tendency to insanity, intoxication would be likely to produce an extraordinary degree of mental derangement beyond the effects likely to be produced upon persons clear of any such tendency, he must be held to have intended this extraordinary derangement as well as the intoxication and the other results produced by it. And the same degree of mental incompeteney would be required to render him incapable of entertaining the intent, whether caused by the intoxication combined with the insanity thus produced, or by the intoxication alone.”
Cf. People v. MeKeighan (1010), 205 Mich 367, 373.
See Hall, General Principles of Criminal Law (2d ed), p 557.
Some would treat alcoholics differently than normal drinkers in recognition of the involuntary behavior of the alcoholic. Deddens, op oit, fn 2, p 303.
Two recent eases have broken new ground by reversing convictions for public intoxication on the grounds that the defendant was not allowed to assert alcoholism as a defense. See Easter v. District of Columbia (1966), 24 App DC 33 (361 F2d 50) ; Driver v. Hinnant (CA4, 1966), 356 P2d 761. Contrast People v. Hoy (1966), 3 Mich App 666. The reasoning was that to convict an alcoholic of drunkenness is to punish him for a symptom of a disease, and would therefore be eruel and unusual punishment in violation of the Eighth Amendment rights inherent in the due process clause. Although both eases were careful to assert that they recognized alcoholism as a defense only to erimes which were fundamentally sympomatie of a disease, recognition of the compulsive character of the alcoholic’s behavior could undermine judicial statements which defend the traditional rule by arguing that the intoxicated offender has voluntarily incurred the risk that he will engage in antisocial conduct.
While it is entirely true that a man heavily under the influence of alcohol or nareotics (see 21 Am Jur 2d, Criminal Law, § 109, p 188, concerning narcosis as a defense) may not entertain the intent requisite to the commission of a particular crime, it is difficult to justify freeing a person who has a history of pronounced antisocial conduct while under the influence of such sedation. Such persons represent a serious threat to the safety of the community. It is, of eourse, unlikely that a jury would bring in a verdiet which would release such a person; nevertheless, a reappraisal of the criminal responsibility of drunkards and drug addiets is clearly required.
Entirely rational and workable would be legislation delineating a new crime to wMeh a defense based on lack of criminal responsibility attributable to addiction could not be interposed: the crime of committing crimes under the influence of drugs or liquor. The crime could be graded depending on the extent and the gravity of the antisocial aet(s) previously committed in a comatose condition, and on the antisocial conduct immediately involved. In this manner the humanity and sound policy of allowing the defense would be retained; however, in a ease where a person with such a criminal history has again committed a serious crime, the prosecutor could charge him appropriately, e.g., those with a history of committing serious crime while drunk could be charged with reekless intoxication; those with a history of committing minor crime in that condition with negligent intoxication. And, as just mentioned, there could be additional variations depending on the gravity of the current con-duet; and, also, on whether the actor is an alcoholic.
Professor Glanville Williams would hold one who commits a homicide while grossly inebriated for the offense of being “drunk and dangerous.” Williams, Criminal Law, p 573 (2d ed). Professor Jerome Hall would reduce the charge to manslaughter. Hall, General Principles of Criminal Law (2d ed), p 557; see, generally, pp 554-557. See discussion of grading in German Penal Code in Heddens, op oit, fxi 2, pp 289, 290.
gee German Hraft Penal Code of 1962, translated in 11 The American Series of Foreign Penal Codes (Ross translation, 1966). See Mueller, The Gorman Hraft Criminal Code 1960 — An Evaluation in terms of American Criminal Law, 1961 U of 111 L F 25 (1961); Heddens, op cit, fn 2, p 287 et seq.
It has been argued that a system of law which does not hold an insane man criminally responsible cannot reasonably and logically hold criminally responsible a man whose condition at the time he commits the crime is equivalent to insanity. See Heddens, op cit, fn 2.
See Hall, Intoxication and Criminal Responsibility, 57 Harv L Rev 1045, 1064 (1944).
Hall, General Principles of Criminal Law (2d ed), pp 142-145, 546.
The murderer intends to kill or to do an act so wanton as to justify the implication that when he acted he contemplated the talcing of human life (see footnote 14). A kidnapper intends to eonfine his victim; the arsonist intends to burn property, and so on.
The diversity of judicial analysis of particular crimes appears upon an examination of Anno: Modern Status of the rules as to Voluntary Intoxication as Defense to Criminal Charge, 8 AHR3d 1236. Similarly, see Clark and Marshall, Crimes (6th ed), § 6.09, p 389, stating that the defense has been allowed to negative knowledge of essential facts, e.g., that an instrument is forged, that money was counterfeit.
The defense was recognized in People v. Haley (1882), 48 Mich 495, where the defendant was convicted of obstructing an officer, and People v. Peterson, supra, fn 16, where the defendant was convicted of the eareless use of a firearm. Cf. People v. Counts (1947), 318 Mich 45 (felonious assault).
We note that Garbutt, Townsend and Murray are the only Michigan eases which have refused to recognize the defense; those decisions may be explained without regard to the general/specifie intent distinction. Garbutt was the first Michigan case discussing the intoxication defense and was decided in the infancy of the defense before it became widely known. The seminal ease actually allowing the defense (there is dictum in earlier cases) is Regina v. Cruse (NP 1838), 8 C & P 541 (173 Eng Rep 710). Townsend was a case of involuntary manslaughter arising out of an automobile aeeident; allowing the defense in automobile cases may be thought to present special problems. Murray was a ease of what is eommonly called statutory rape, an offense where the intent of the aetor is of minimal significance as the crime can be committed even if the girl represents herself to be and appears to be well past 16 years of age.
See Deddens, op eit, fn 2, pp 274-276, .285-287; Ha11, Intoxication and Criminal Responsibility, 57 Harv L Rev 1045, 1061-1063 (1944).
See People v. Allie (1921), 216 Mich 133, 136.
See footnote 4.
The traditional formulation making a distinction between general and specific intent is reflected in § 715 of the proposed Michigan Revised Criminal Code (final draft, September, 1967) : “Intoxication of the actor is not a defense to a criminal charge, except as provided in subsection (3) [concerning involuntary or pathological intoxication], but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged.”
The proposed Michigan provision is based on § 2.08 of the Model Penal Code (1962), which has been the model for many recent revisions of State penal codes.
See Hollerud v. Malamis (1969), 20 Mich App 748, 758, fn 21; soe, also, p 753, fn 6. See, also, Abendschein v. Farrell (1968), 11 Mich App 662 (Levin, P. J., dissenting), affirmed Abendsohein v. Farrell (1969), 382 Mich 510.
The principle of the Guillett ease has been followed by the Michigan Supreme Court after the promulgation of the General Court Rules of 1963. See People v. Liggett (1967), 378 Mich 706, 714; see, also, People v. Oberstaedt (1964), 372 Mich 521, 526; and has been followed by our Court in People v. Sherman (1968), 14 Mich App 720, 723; People v. Bowen (1968), 10 Mich App 1, 18; People v. Price (1970), 21 Mich App 694. In Price we relied on People v. MacPherson (1949), 323 Mich 438; People v. Liggett, supra, and People v. Bowen, supra. See, also, People v. McIntosh (1967), 6 Mich App 62, 69; People v. Pearson (1968), 13 Mich App 371, 377. An early ease stating the same principle is People v. Murray (1888), 72 Mich 10.
See People v. Kaczor (1968), 14 Mich App 724.
See Gouled v. United States (1921), 255 US 298, 312, 313 (41 S Ct 261, 266, 65 L Ed 647, 654), and Amos v. United States (1921), 255 US 313, 316 (41 S Ct 266, 267, 65 L Ed 654, 656).
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Holbrook, J.
This is an action brought for an accounting and to vacate deeds to a valuable farm in Washtenaw County, Michigan. We deem it necessary to state some of the facts in the background of this contested action to better understand the controversy. In 1950 the property in question was owned by three parties, Grace B. Singer, Jessie Leonard and Cora Kelley. In July, 1950, Jessie Leonard passed away leaving her one-third interest to her surviving sisters. Her estate was probated by Claude H. Buzzard, an attorney at Plymouth, Michigan. Mrs. Cora Kelley lived with Grace B. Singer in 1952 when George Bakhaus, the defendant herein, became acquainted with Grace B. Singer. They became friends and the defendant was asked to do menial tasks and errands by Mrs. Singer. Mrs. Kelley was ill and bedridden a part of the time. Defendant performed these acts of kindness which were pleasing and helpful to Mrs. Singer.
Defendant visited the sisters two or three times a week and invariably performed services according to their needs. On December 31, 1954, Cora Kelley and Grace Singer went to Glande EL Buzzard’s law office and bad the title to the farm land in question placed in their names, jointly, and to the survivor, through a strawman-deed holder, Mrs. Buzzard, the wife of the attorney. On March 30, 1955, Cora Kelley passed away at the University Hospital at Ann Arbor.
The defendant continued to do many menial tasks and errands requested of him by Grace Singer. In July, 1955, unbeknownst to defendant, Grace Singer visited Mr. Buzzard’s office again and caused the title to the farm to be placed in her name and the defendant’s name, as joint tenants, and to the survivor of them, through the use of the same strawman-deed holder, Mrs. Buzzard. At this time, Mrs. Singer was in her seventies and defendant in his thirties. About 30 days thereafter, Mrs. Singer told the defendant what she had done. Commencing in August, 1955, the defendant’s name was put on a joint bank account with Mrs. Singer. This bank account was always under the control of Mrs. Singer and the book was given to the defendant on occasion so that he could make deposits and withdrawals in accordance with her instructions. Mrs. Singer, during all this period of time and until about 1965 when she fell and broke her hip, conducted her own business, dealt in real estate and consulted with her attorney on these transactions, collected rent on seven or eight houses and consulted with her certified public accountant from time to time on tax matters. After she broke her hip she was put in a convalescent home and defendant was called upon to perform more errands and more services. During all of this period defendant visited Mrs. Singer four to five or more times a week and performed the menial needed tasks requested of him by Mrs. Singer.
Mrs. Singer was a childless widow and her closest relatives were two cousins living in Williamston and Lansing, Michigan. These two cousins did visit Mrs. Singer occasionally during this period of time, hut were not close to her.
On October 28,1966, Grace B. Singer was declared a mentally incompetent person in the probate court for Wayne county and William Fenkell was appointed guardian. At that time the defendant turned over to Mr. Fenkell at his request the balance in the bank account of $22,822.26.
Thereafter, the guardian brought this action and, as a basis for relief, he alleged in his complaint that defendant was in a position of trust and confidence and acted in a fiduciary capacity for Mrs. Singer before and at the time the property was placed in their names jointly with right of survivor-ship ; that there was no consideration for the placing of the property in their names jointly and that defendant used pressure and misrepresentation and exercised undue influence on Mrs. Singer to cause the deeds covering the property to be signed. The defendant, in his answer, denied these allegations of wrongdoing and denied that he was ever acting in a fiduciary capacity for Mrs. Singer, but only performed menial tasks and errands always at the express request and under the direction of Mrs. Singer. Further, that he did not request nor influence Mrs. Singer to execute the deeds; that, in fact, he knew nothing about them for about a month after they were signed and recorded. After hearing the testimony on behalf of both plaintiff and defendant, the trial judge, Honorable Neal Fitzgerald, denied the plaintiff any relief and dismissed the complaint. Plaintiff appeals and raises several questions which we restate as follows:
1 .Was a fiduciary relationship between Mrs. Grace Singer and defendant established?
2. Was defendant required to sustain the burden of proof in proving the fairness and propriety of the deed in question?
3. Was the judgment of the trial court against the weight of the evidence?
These questions are discussed and disposed of later in this opinion. The trial judge in determining the case stated as follows:
“Well, the general rule in a case like this is that one may do with their property as they wish. The claim in this case is that the plaintiff’s mentally incompetent ward was not doing what she wished, but was doing what she did because she was under the influence of the defendant.
“I took great pains during this trial myself to query the witnesses with regard to the mental condition of the woman who is now incompetent. All of the testimony without exception indicated that she was mentally in very good condition. She handled her own business. She was sharp. She knew what she was doing. And there was no testimony produced by the plaintiff to indicate that she was in any other condition, at the time this deed was executed and for some years thereafter, than in excellent mental condition. I am sure that if there had been any weakness in her mental makeup during that period there would be testimony in here to indicate it. But there hasn’t been any produced. She did her own business. She handled her own transactions. She made use of her own lawyers. And she handled real estate deals on several occasions as indicated by the evidence in this court.
“The defendant comes into the picture; and it isn’t explained how the relationship arose very well, I have to concede. But it is pretty plain from the record that he was good to this old woman. She was 76 years old at the time, or right around that age, and he was good to her.
“The plaintiff says that there was a fiduciary relationship between the two of them. I don’t believe that because I recollect clearly that the plaintiff’s attorney, during most of his cross-examination of the defendant, took the position — which was indicated by the type of questions he asked, and so forth —that this man had done practically nothing for this woman. And that is what he set out to establish. I agree with him, from what he produced in that testimony, that this man had not done an awful lot for this woman. He had done menial things like buying her groceries, and so forth; but this court is not convinced that he handled her business for her at all. I don’t think it was established. And I do not think that any confidential relationship or fiduciary relationship between the two of them was established. I think this woman was lonesome. I don’t think anybody paid much attention to her. And I think probably she was flattered when somebody did. She did not have anybody who was the natural object of her bounty. She didn’t have any children. She didn’t have any husband. She didn’t have any very close relations. I am not sure what her relationship was with the cousins who are in the background of this picture, hut from the testimony in this case I must conclude that they were not very close. In other words, she had the usual choice that goes to women or to old women who are alone to give their money to charity, to give it to distant relations, or give it to someone they like. She chose the latter alternative.
“There is no indication whatsoever in this case of him exercising any undue influence over her at all,— no testimony whatsoever. And there is no testimony that lie urged her to make this deed, or that he ever suggested it to her. In fact, the only evidence in the record is that he didn’t know it had happened until 30 days afterwards. And what is particularly significant under the circumstances is that this transaction was made by, and in the presence, and with the advice of an attorney, Mr. Buzzard. It wasn’t done by this man. It wasn’t done by this woman alone. It wasn’t a homemade deal. It was done in a lawyer’s office with a lawyer’s assistance and through the intermediary of a straw man, which indicates that everybody knew what was going on. And there were a long series of transactions that this woman entered into through the medium of this same attorney handling this property and other properties. She knew exactly what she wanted to do. She knew enough to go to an attorney to have it done; and presumably, having consulted with this attorney over a period of years, she discussed this matter with him. Now, the wife of this attorney was served with a subpoena to appear in this ease and didn’t appear. It is not the defendant’s fault that she didn’t appear. At the same time it is of some significance, though not very much, that the plaintiff’s mental incompetent was here in the courtroom or in the corridor, and she didn’t testify. "Why, I don’t know, because the cases indicate that their testimony is of some value in a matter like this. But she did not testify, although she was present. The reason I don’t know.
“The court generally takes the position that this beneficiary was good to this woman. She liked him for that reason. He put himself out to be nice io her. That, in my opinion, is no small thing in this day and age, — to be nice to an old woman. It is a little difficult for the average party, whether there is a thought of gain or not. This man has been consistently good to this woman from the time she made the deed and before she made the deed, for many years, and he went out of his way to be so. I think that she believed that he was a natural object of her
bounty, inasmuch as God had given her any natural object of bounty, and she acted accordingly.
“I have looked over the LaForest v. Black case, [(1964), 373 Mich 86] and I am familiar with the Woods case [(1964), 374 Mich 278]; and I note that in the LaForest v. Black ease it was only seven months before this woman became an incompetent that she made this transaction. That is pretty close. She was probably in shaky mental condition. This woman was in no shaky mental condition from eight to ten years after this conveyance. She had all of that time to change her mind if she saw fit.
“In the LaForest case it was also noticeable that the conveyor testified to the undue influence upon her. She said, this woman worked on me until I began to believe what she said was true; and the court took great notice of that. In the Woods case we had a case of a 91-year-old man and a secretary who had been with him for many years and who handled practically all of his business transactions. That case points out that the presumption may be rebutted by advice to the donor by an attorney, which was secured in this case. Then it becomes a question of fact, and as a matter of fact this court finds that there was no undue influence exercised in this case.
“The deposition of Mrs. Sherwood, which was read during the argument, shows that the mental incompetent at that time, being in sound mental condition, indicated to a friend that she had no close relatives to whom she felt she should leave her property, and that she did like the defendant Bakhaus and that she intended to transfer her property to him. She did so.
“To return to the first statement that I made in this opinion, one may do with one’s property what they wish. This woman did so. I don’t think she did it because of any undue influence. Therefore, I am going to dismiss the complaint of the plaintiff, with costs.”
We have carefully reviewed the testimony and find ample evidence in the record to justify the findings of fact of the trial judge.
(1) There was no evidence showing a fiduciary relationship between Mrs. Singer and defendant at least for a period of three years before the deed was signed and for nearly ten years thereafter. At no time during this period was any action taken by Mrs. Singer to set aside the deed. The finding of the trial judge that she was competent before and at the time of the signing of the deed and for nearly ten years thereafter not only is fortified by the evidence but also there is no evidence to the contrary.
The defendant agrees with plaintiff’s cited rule of law found in the case of In re Wood Estate (1965), 374 Mich 278, 285:
“Once such a relationship [fiduciary] is established and the fiduciary or an interest which he represents benefits therefrom, the law recognizes a presumption that he in whom trust was reposed exercised his influence unduly.”
Defendant also agrees with the plaintiff’s quoted rule of law stated in the case of Mettetal v. Hall (1939), 288 Mich 200, 215:
“ ‘It may be stated as settled law, that whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and reasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside.’ ”
Neither of these cases are applicable herein because there was no fiduciary relationship present between Mrs. Singer and defendant George Bakhaus. Mrs. Singer was a very competent person, one who was conducting her own business all of the period of time in question and who was not suffering from any weakness of mind. Plaintiff failed to establish that the defendant used any undue influence of any kind upon Mrs. Singer. See, also, In re Jennings’ Estate (1952), 335 Mich 241 and Fish v. Stilson (1958), 352 Mich 437.
(2) Because the plaintiff failed to establish a fiduciary relationship between defendant and Mrs. Singer, it was incumbent upon plaintiff who asserted the invalidity of the deed based on the claim of the use of undue influence by defendant to prove that fact. Kouri v. Fassone (1963), 370 Mich 223. The trial judge found that plaintiff failed to establish this fact. We agree with his determination.
(3) Plaintiff’s claim that the decision of the trial court was against the weight of the evidence must also fail.
It is true that in reviewing a chancery matter we hear it de novo, LaForest v. Black, supra; however it is appropriate that we reiterate what was stated therein at pp 93, 94:
“ ‘The trial judge heard the witnesses, observed their demeanor, and was in the best position to determine their credibility and to conclude what the facts in the case really were. Although this Court on appeal hears chancery cases de novo, on the record in this case this Court cannot say that we would have arrived at a different conclusion in the event we had been in the position of the circuit judge of hearing the witnesses testify and observing their demeanor on the stand.’ Straith v. Straith (1959), 355 Mich 267, 277.”
Witnesses testified that Mrs. Singer was a strong-willed person, that she was a very competent person, that on occasion she had told them what she had done, i.e., as to the placing of the title to the property jointly with defendant, and that, at least on one occasion, she had explained that she had made it that way so that it would be the property of George Bakhaus without going through court.
We conclude that the trial court properly disposed of the matter.
Affirmed. Costs to defendant.
All concurred.
The plaintiff’s witnesses were: George Herbert Bakhaus, the defendant; William Fenkell, guardian; and James _C. Cutler, an appraiser; the defendant’s witnesses were Dunbar Davis, an attorney and acquaintance of Mrs. Singer; Don Sherriek, a shareholder of the farm for Mrs. Singer; George Graham, a renter of one of Mrs. Singer’s houses; Buby Daugherty, an employee of Mrs. Singer; Daisy Mae Mills, a housekeeper for Mrs. Singer, and Crystal Sherwood, a friend of Mrs. Singer’s for 35 to 40 years. | [
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Per Curiam.
Plaintiff’s complaint against Reliance Insurance Companies was filed July 22, 1966; Reliance Insurance Companies answered. Subsequently, upon stipulation of the attorneys for the plaintiff and Reliance Insurance Companies, an order was entered February 27, 1968 adding as a defendant The Manhattan Fire and Marine Insurance Company. On February 28, 1968, a complaint was filed by plaintiff against The Manhattan Fire and Marine Insurance Company; the added defendant answered.
On March 20, 1968, defendant Reliance Insurance Companies moved for summary judgment which was granted by order dated July 1, 1968, on the ground that the complaint failed to state a claim upon which relief could be granted.
Claim of appeal was filed by plaintiff July 23,1968.
The summary judgment did not contain “an express determination that there is no just reason for delay and * * * an express direction for the entry of judgment.” Under GCR 1963, 518.2, in the absence of such determination, a judgment adjudicating fewer than all the claims, rights and liabilities of fewer than all the parties is, not a final judgment. Accordingly, the summary judgment was not appealable as of right; an appeal from such judgment before the entry of a final judgment disposing of all claims of all parties can only be obtained upon leave granted. No application for leave to appeal was filed in this case, and this Court is without jurisdiction to entertain this appeal. See City of Dearborn v. Pulte-Strang, Inc. (1968), 12 Mich App 161; Earp v. City of Detroit (1968), 11 Mich App 659; Hope v. Weiss (1968), 12 Mich App 404.
The appeal is therefore dismissed. No costs. | [
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T. M. Burns, J.
The defendant was charged with committing armed robbery in violation of CL 1948, § 750.529 (Stat Ann 1969 Cum Supp § 28.797) and found guilty as the result of a jury trial April 18, 1967. The defendant claims on appeal that errors were committed in the admission of evidence by the trial judge. He also claims he was denied the right to effective counsel.
The trial court, in deciding against defendant’s motion for new trial, found that the shotgun which was introduced into evidence at trial was not located by an unreasonable search, and, consequently, it was not error to allow it to be introduced. We find that the record supports this ruling of the court below. The weapon was in plain view.
It was located not by a search but merely by the exercise of the officer’s senses. We agree with the trial court, therefore, on the basis of People v. Mallory (1966), 2 Mich App 359, that there was no search.
Defendant contends that it was reversible error to permit a police officer to testify over defendant’s objection as to the admission which the officer overheard the defendant give to the prosecuting attorney. The defendant objects to the admission of his statement and would have us strike that portion of it which concerns his prior convictions. The rule in this state is clear, however, and once any part of the statement is testified to, the jury is entitled to have the entire statement. People v. McElheny (1922), 221 Mich 50. Voluntary statements are always admissible and the jurors may give them such credit as they think them entitled to, even though a part of the statement may tend to show the commission of other crimes. See 1 Gillespie Michigan Criminal Law & Procedure, § 465, p 576. See also People v. Farrell (1904), 137 Mich 127.
Before trial, the defendant was notified that his statement would be used against him and he did not move to suppress under GCR 1963, 785.5(3) 376 Mich xlv. In any event, the defendant took the stand and testified as to his past record. Further, the jury was instructed that his prior record could only be taken into account regarding his credibility, not his guilt or innocence.
There is here, however, a further question involving scope of the right to counsel under Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974) and People v. Whisenant (1968), 11 Mich App 432. This case is strikingly similar to the Whisenant case in that although defendant was informed of his right to counsel, “. . . nowhere does it appear (in the record) that he was informed of his right to have counsel, retained and appointed present during questioning and the giving of his statement.” People v. Whisenant (supra, p 437).
We feel constrained to remand for a Walker hearing on the question of whether there was a voluntary waiver of right to counsel after being fully informed of his right to have such counsel present at questioning in line with Miranda v. Arizona, supra, and the decisions of this court.
Bemanded for a Walker hearing.
Holbrook, J., concurred.
New, effective July 27, 1965; repealed, effective June 8, 1967.
See also People v. Whisenant (1969), 19 Micli App 182; (On Rehearing, 1970), 21 Mich App 518, for continuing vitality of this rule in faee of Federal Omnibus Crime Control Act. Title II, 18 USC § 3501.
See People v. Walker (On Rehearing, 1965), 374 Mich 331. | [
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] |
T. M. Burns, J.
Plaintiffs Leonie Pederson and Helen Pederson are the owners of approximately 18 acres of land situated on the west side of Jefferson Avenue in the Township of Harrison, a municipal corporation. Plaintiff Gronick, a real estate developer, holds a tentative purchase agreement on the Pedersons’ land, which agreement was made contingent upon a resolution of this litigation in plaintiffs’ favor. The property at issue is zoned “one-family residential”. Plaintiffs sought to have the property rezoned “multiple-family residential”. Although the zoning of land adjacent to plaintiffs’ on the north had been recently changed to “multiple dwelling”, the township denied the application. Plaintiffs, by their complaint, allege that it is neither practical nor feasible to use the land for single-family residences as presently zoned, but that the land in question is ideally suited for multiple-family residential purposes. The Pedersons allege that they have been unable to sell this land because of the present zoning restriction; that although other land in the vicinity has been recently rezoned to allow multiple-family dwellings, the defendant refuses to allow them equal treatment; and that the value of the land is now $1,000 per acre, but if rezoned the value per acre would increase to $6,500. Plaintiffs contend that the zoning ordinance as it is being applied to them is unreasonable, confiscatory, inequitable, arbitrary, without just cause, and contrary to their rights.
By answer, defendant township asserts that its planning commission denied the rezoning application because the entrance to the proposed multiple-dwelling project did not follow good planning procedure j because of envisioned difficulties of ingress and egress to the project, on both public and private roads; and because of speculated inadequacies of sewers, snow removal, law enforcement, and fire protection.
The board considered single-residence zoning better suited to the area. The board felt that the project did not comply strictly with the present township master plan and that there was already an over-abundance of high-density structures in the township.
The trial court found that:
“The single-family zoning in this instance is arbitrary and capricious and not consistent with the reasonable use of the land. The zoning as to this parcel is deemed arbitrary and confiscatory, and the defendants should be enjoined from interfering with plaintiffs’ proposed uses.”
From this injunction, defendant appeals.
Zoning ordinances, when reasonable in their provisions and application, are a valid exercise of the police power. Bowman v. City of Southfield (1966), 377 Mich 237, 245; Austin v. Older (1938), 283 Mich 667. Reasonableness is the test of their legality. Hitchman v. Township of Oakland (1951), 329 Mich 331; Sisters of Bon Secours Hospital v. City of Grosse Pointe (1967), 8 Mich App 342, 355. Zoning-cases snch as this must be determined on the basis of their own facts and circumstances, Senefsky v. City of Huntington Woods (1943), 307 Mich 728; Biske v. City of Troy (1969), 381 Mich 611, with the burden of proof resting- with the party challenging the ordinance. Northwood Properties Company v. Royal Oak City Inspector (1949), 325 Mich 419; Township of Farmington v. Scott (1965), 374 Mich 536. However, zoning ordinances are not sacrosanct, and plaintiffs, here, present much more than a debatable question. See Brae Burn, Inc., v. City of Bloomfield Hills (1957), 350 Mich 425, 432; compare Krause v. City of Royal Oak (1968), 11 Mich App 183. The evidence introduced by the plaintiffs in the instant case is more than sufficient to rebut the presumption of validity.
“The controlling legal principle in zoning matters is that for an ordinance restricting an owner’s use of his property to be valid it must bear a real and substantial relationship to the public health, safety, morals or general welfare.” Edwards v. Township of Montrose (1969), 18 Mich App 569, 572. (Emphasis added.) The trial judge found no reasonable basis for defendant’s refusal to rezone plaintiffs’ property from single to multiple dwelling. The trier of fact found that defendant had not proven the requisite relationship in the present case. In Gust v. Township of Canton (1955), 342 Mich 436, 442, it was stated:
“If the action of a township hoard in zoning property in a manner which would otherwise be arbitrary and unreasonable under present conditions is rendered valid by the fact that the board anticipates that in the future conditions will develop under which such zoning would not be arbitrary and unreasonable and believes that it will be conducive thereto, then the only limit on the board’s powers in that regard would seem to be the measure of its expectations and beliefs. The extent of the owner’s right to the free use of his property in the manner deemed best by him is not to be determined by such speculative standards. The test of validity is not whether the prohibition may at some time in the future bear a real and substantial relationship to the public health, safety, morals or general welfare, but whether it does so now.”
See, also, Biske v. City of Troy, supra, and House v. City of Bloomfield Hills (1969), 18 Mich App 184. Defendant township has already deviated from its present master plan by zoning the land north of the proposed project suitable for multiple residences. Plaintiffs offered evidence that multiple dwellings would be suitable and practical for the land in question.
The trial court determined from the evidence that the ordinance as it applied to the Pedersons’ property was confiscatory. Although difference in value alone does not prove confiscation, Muffeny v. City of Southfield (1967), 6 Mich App 19, 23, 24, it is an element which must be considered by the court in determining whether in fact there is what amounts to a confiscation. Smith v. Village of Wood Creek Farms (1963), 371 Mich 127; Krause v. City of Royal Oak, supra. (See City of North Muskegon v. Miller [1929], 249 Mich 52, where the Court held that a zoning ordinance which renders property almost worthless is unreasonable and confiscatory, hence, illegal.) Tbe trial judge found that the possible difference in value ($6,500 — multiple dwelling versus $1,000 per acre as zoned) as proven was an indicium of confiscatory hardship.
Plaintiffs introduced evidence at trial which indicated that they had tried to sell the land but were unable to do so because of the unusual shape of the parcel, which in light of the zoning restriction, seriously restricted, if not prohibited, its use for single-family dwellings. Such lack of marketability amounts to confiscation, as the property cannot be reasonably used as presently zoned.
A debatable question cannot be established where the question presented is whether the zoning is unreasonable because it is confiscatory, for as was said in Alderton v. City of Saginaw (1962), 367 Mich 28, 33:
“The debatable question rule as presented in Brae Burn, Inc., v. City of Bloomfield Hills (1957), 350 Mich 425, does not mean such question exists merely because there is a difference of opinion between the zoning authority and the property owner in regard to the validity of the ordinance. If this were the case, no ordinance could ever be successfully attacked.”
The question of unreasonable or confiscatory taking is one of fact which can be proved before the trial court like any other fact. It is not necessary for one claiming confiscation to prove the fact beyond dispute.
The trial court found that under the particular set of facts and circumstances presented, defendant, by denying plaintiffs’ requested rezoning, has applied its general plan of zoning in an unreasonable, arbitrary, and confiscatory manner.
Having examined the entire record, I find myself in agreement with the trial court’s conclusions.
The snow removal, law enforcement, fire protection and sewer problems, averred to by the defendant, are anticipatory; and there is no proof that these problems would prove insuperable. None of the other issues sought to be presented by defendant merits discussion.
Affirmed. Costs to plaintiffs.
Bronson, J., concurred.
At the planning commission’s suggestion plaintiff Gronick has purchased land immediately adjacent to the parcel in question and so revised his plans to allow for a boulevard-type entrance to his proposed project.
The board was in the process of reviewing the master plan and felt that it would be able to better assess the situation in two years when that plan was completed.
Although chancery cases are heard de novo, considerable weight is given to findings of fact made by the trial judge. Biske v. City of Troy (1969), 381 Mich 611; House v. City of Bloomfield Hills (1969), 18 Mich App 184. See, also, 2 Honigman & Hawkins, Mich Court Buies Annotated (2d ed), authors’ comments, pp 595-597. | [
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R. B. Burns, J.
Defendant -was convicted by a jury of assault with intent to commit murder, MCLA §750.83 (Stat Ann 1962 Rev § 28.278). On appeal he raises several objections to the proceedings below.
Defendant argues first that although the trial court sustained objections to certain hearsay testimony, the court committed reversible error by failing to order the jury to disregard this testimony, and by failing to order the testimony stricken from the record. The record discloses that the trial court was not requested by counsel to do these things. Accordingly, we will not review its failure to do so upon appeal. People v. Bauman (1952), 332 Mich 198; People v. Dobine (1963), 371 Mich. 593.
Defendant next asserts that the evidence was insufficient to sustain a verdict of guilty beyond a reasonable doubt. "We have reviewed the record carefully, and conclude that the prosecution presented credible evidence of every element of the crime. That there were conflicts in the testimony does not concern us, as the jury was free to believe one witness as opposed to another. People v. Petrosky (1938), 286 Mich 397; People v. Askar (1967), 8 Mich App 95.
Defendant urges that his conviction be overturned because the warrant for his arrest was issued upon the information and belief of the investigating police officer. We have said, however, that this is not of itself a ground for reversal. People v. Andriacci (1968), 11 Mich App 482; People v. Roney (1967), 7 Mich App 678.
Finally, defendant contends that he was denied the right to counsel at a showup after his arrest. We are certainly mindful of the questions this raises under United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149). However, on the facts of this case, where this objection is raised for the first time on appeal, where there was no attempt to introduce pretrial identification evidence at trial, and where there is overwhelming evidence that the in-court identifications of defendant had independent origins, we find no need to remand for further hearing.
Affirmed.
All concurred. | [
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J. H. Gillis, J.
Defendant was convicted in a non-jury trial of breaking and entering a building with intent to commit larceny therein. MCLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305). The only issue presented is whether the evidence was sufficient as a matter of law to support the trial court’s finding of larcenous intent beyond a reasonable doubt.
The building involved was a motel. Its desk clerk testified that, according to the motel’s register, on the evening of the alleged offense room 110 was unoccupied by guests. The testimony of a police officer, Joseph Hudy, however, placed defendant and six other youths in room 110, the scene of crime, on the same evening at approximately 11:15 p.m. Officer Hudy testified that, while on patrol, he noticed that a screen covering a window of room 110 had been torn. After stopping to investigate, Officer Hudy observed defendant and the other youths in room 110 through the same window. When observed, the youths were apparently milling about the room, drinking hot chocolate. The officer then entered the room, but he found no one present. Immediately thereafter defendant was apprehended in front of the motel by a second police officer, Officer Hudy’s partner. According to the arresting officer’s testimony, defendant, when apprehended, was running from the motel. Nothing was found on his person, however, that had been taken from the room.
Further evidence established that a television set was in room 110 shortly before Officer Hudy entered. None was found, however, after the officer entered the room. The defendant testified on his own behalf. He denied being in room 110. It was defendant’s testimony that, when apprehended, he was returning from a visit with a friend who resided in room 204.
In rendering its verdict, the trial court noted:
“I am satisfied he was in that room and that he had no authority to be in there and the television set is missing. You don’t have to show who took it, if he is in there participating in any way, in the removal of any property, whether they even got it out of there or not. It wouldn’t matter if, whether he took it out or somebody else did, even if he stood in the window or even if he stood outside and watched for the police, it wouldn’t make any difference if he ivas participating in any way.” (Emphasis supplied.)
We agree that if the people had shown that defendant was a participant in an unlawful enterprise, an inference of larcenous intent might then have been drawn. No such showing appears on the record before us, however. Nothing suggests the existence of any common plan to commit larceny. Nor can it fairly be said that the evidence warrants a finding beyond a reasonable doubt that defendant entertained the requisite criminal intent. At best the evidence supports an inference that someone committed the offense charged. More is required. See People v. Barron (1968), 381 Mich 421. The prosecution failed to meet its burden of proving every element of the crime charged beyond a reasonable doubt. People v. Gadson (1957), 348 Mich 307. We find no evidence in the record which supports a conclusion that negates every reasonable theory consistent with defendant’s innocence of the crime charged. People v. Johnson (1966), 4 Mich App 205.
We have reviewed People v. Curley (1894), 99 Mich 238, People v. Boyce (1946), 314 Mich 608, and People v. Lambo (1967), 8 Mich App 320, cases which arguably support defendant’s conviction as charged. In each, however, the accused, unlike defendant here, was alone when discovered at the scene of the crime. Thus an inference of intent to commit larceny could be drawn from the mere unexplained presence of the accused at the scene. See People v. Lambo, supra, at p 324. No such inference is permissible here.
Eeversed without new trial.
All concurred. | [
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] |
Per Curiam.
A jury convicted defendant of armed robbery, MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797), and he was sentenced. On appeal, defendant contends he was denied a fair and impartial trial because of the rulings and comments of the trial judge.
The excerpts from the transcript cited by defendant in his brief in support of his position on appeal, standing alone, lend some support to that position. In context with the entire transcript, they demonstrate performance of the statutory duty of a judge at trial, MCLA § 768.29 (Stat Ann 1954 Rev § 28.1052).
Limitation of repetitive questioning is not an improper restriction of cross-examination, People v. Lloyd (1967), 5 Mich App 717. Prevention of counsel from testifying in formulating questions is proper, and the allowance of leading questions is discretionary, MCLA § 768.24 (Stat Ann 1954 Rev § 28.1047). MCLA § 768.29, supra, requires a trial judge to expedite trials.
The record does not demonstrate a clear abuse of discretion by the trial judge in controlling the conduct of this trial. People v. Shaw (1968), 9 Mich App 558.
Affirmed. | [
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Per Curiam.
This appeal disputes a judgment of absolute divorce, granted to plaintiff by the circuit court on the grounds of extreme and repeated cruelty.
The court found that plaintiff had met the required proof for a judgment of divorce. Defendant contends that statutory grounds for divorce were not established, since there were only unruly tempers, human weaknesses, and minor misconduct involved, which amounted to incompatibility, and which did not entirely subvert the family relations.
Clearly, incompatibility is not a statutory ground for divorce. Niskanen v. Niskanen (1963), 371 Mich 1. However, the record contains ample factual support, clearly more than that asserted by defendant, for a finding of extreme and repeated cruelty on the part of the defendant, as pleaded by plaintiff. We are not convinced that we must-have reached a different conclusion had we occupied the position of the lower court under like circumstances. Reeves v. Reeves (1952), 335 Mich 193; Butgereit v. Butgereit (1967), 8 Mich App 246.
Affirmed. | [
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Per Curiam.
About 1:30 a. m. on August 18,1963, plaintiff was a passenger in an automobile driven by Ms wife. He was injured when that automobile collided with a center-of-the-road pedestal which supported a railroad crossing flasher signal placed and maintained by the defendant railroads pursuant to an order of Michigan Public Utilities Commission dated April 11, 1928.
Plaintiff commenced this action to recover for his injuries on February 17, 1964. It was plaintiff’s contention that defendants were jointly negligent in maintaining the center-of-the-road pedestals contrary to CLS 1961, § 469.5 (Stat Ann 1963 Cum Supp § 22.765) and CL 1948, § 469.8 (Stat Ann § 22-.768), and that they were liable for maintaining a nuisance thereby. Pursuant to jury verdict a judgment of no cause of action entered. Plaintiff’s motion for new trial was denied, and he appeals from the judgment and denial of the motion for new trial.
CLS 1961, § 469.5 (Stat Ann 1963 Cnm Snpp § 22-.765) relates to crossbuck signs and has no application to the flasher signals and pedestal involved in this case. The placing of center-of-the-road signals was pursuant to the order of the administrative authority charged with the duty and authority to order the same. We find no statutory violation with regard to the placement or maintenance of the center-of-the-road pedestals, nor can their maintenance constitute a nuisance.
Plaintiff has raised many other alleged errors relating to admission of evidence, instructions requested and not given, and to an instruction given. We have examined each in context with the record. Since plaintiff has failed to maintain his burden of proving a cause of action, none of the alleged errors would be ground for granting appellate relief, (ICR 1963, 529.1, and we decline further comment thereon.
Affirmed with costs to defendants. | [
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Bronson, J.
Plaintiff is the owner of property located within the city of Clawson, a home-rule city. Before June 6, 1967, plaintiff’s property was zoned for single family use. On that date, the city amended its zoning ordinance and rezoned plaintiff’s property for the use of multiple family residences.
Pursuant to the applicable provisions of the city charter, referendary petitions were filed seeking to suspend the amending of the ordinance pending repeal by the city council or final determination by the electors. Before the council acted on the petitions, however, a preliminary injunction was issued by the Oakland county circuit court restraining any further action by the city. Upon the city’s failure to contest-the restraining order, defendant citizens were permitted to intervene. The sole issue presented is whether the general initiative and referendum provisions in the charter of a home rule city give rise to a right to repeal an amendatory zoning ordinance by referendum.
There is no provision in the Constitution of 1963 reserving to the people the power of initiative and referendum with respect to local ordinances. Such power exists only by virtue of section 4-i of the home-rule act, which provides:
“Each city may in its charter provide:
* # #
“(6) For the initiative and referendum on all matters within the scope of its powers * * * .”
Similarly, the zoning power of a city is derived from Act No 207 of the Public Acts of 1921, as amended, known as the city or village zoning enabling act. This act was passed in response to the holding in Clements v. McCabe (1920), 210 Mich 207, that the power derived by a municipality by virtue of the home-rule act does not include the “evolutionary and comprehensive police power of zoning.”
Section 16.07 of the charter of the city of Claw-son provides:
“An ordinance may be initiated by petition, or a referendum on an ordinance enacted by the council may be had by a petition, as hereinafter provided.”
Defendants contend that the charter provision in no way restricts the broad statutory grant of the power of initiative and referendum contained in the home rule act. They conclude that, since no type of ordinance is excluded, all matters within the scope of the city’s powers plainly includes zoning ordinances and that such right can only be limited by constitutional or other statutory provision.
Even in jurisdictions in which the power of initiative and referendum on local legislation has been constitutionally reserved, defendants’ seemingly logical argument has clearly been rejected with respect to the power of initiative.
“ ‘It is the established law of this state that an ordinance proposed by the electors of a county or of a city in this state under the initiative law must constitute such legislation as the legislative body of such county or city has the power to enact under 'the law granting, defining and limiting the powers of such body. * '* * The zoning law vests in the legislative body of the city broad discretionary power, but when the method for the exercise of the power is prescribed by the statute such method is the measure of the power to act. * # * The legislature may have considered, and very properly so, that in the enactment of a zoning ordinance property rights might be seriously affected. * * * the requirement, of notice and hearing provided by the statute may not be treated lightly or at all disregarded. When the statute requires notice and hearing as to the possible effect of a zoning law upon property rights the action of the legislative body becomes quasi-judicial in character, and the statutory notice and hearing then becomes necessary in order to satisfy the requirements of due process and may not be dispensed with.
“ Whether the requirements of the zoning act as to notice and hearing could be complied with in the enactment of an ordinance by the board of trustees pursuant to the demand of the initiative petition that the proposed ordinance be passed without alteration or amendment need not be passed upon. It would seem to be an idle proceeding for the board of trustees, after an initiative petition is presented to it, to enter upon an investigation as to a proper zoning plan, give notice and conduct hearings for the benefit of interested property owners and the public in general and at the conclusion of its deliberations have no power to change the terms of the proposed ordinance. The initiative law and the zoning law are hopelessly inconsistent and in conflict as to the manner of the preparation and adoption of a zoning ordinance. The zoning act is a special statute dealing with a particular subject and must be deemed to be controlling over the initiative, which is general in its scope.’ ” Dewey v. Doxey-Layton Realty Co. (1954), 3 Utah 2d 1 (277 P2d 805), citing Burst v. City of Burlingame (1929), 207 Cal 134 (277 P 308).
See, also, State ex rel. Bunzicker v. Pulliam (1934), 168 Okla 632 (37 P2d 417, 96 ALR 1294); Kelley v. John (1956), 162 Neb 319 (75 NW2d 713); Laguna Beach Taxpayers’ Association v. City Council of the City of Laguna Beach (1960), 187 Cal App 2d 412 (9 Cal Rptr 775); State v. Donohue (Mo, 1963), 368 SW2d 432; City of Scottsdale v. Superior Court of the State of Arizona (1968), 103 Ariz 204 (439 P2d 290).
Courts have recognized other limitations as well on the applicability of direct legislation to local ordinances in general and zoning ordinances in particular. See Kelley v. John, supra; 5 Utah L Rev 413 (1957); Dewey v. Doxey-Layton Realty Co., supra; 5 McQuillin Municipal Corporations (3d ed), § 16.43 et seq., p 199; McKinley v. City of Frazer (1962), 366 Mich 104.
However, the rationale for withdrawing the power of initiative from zoning legislation has not been applied to the power of referendum. A local legislative body, in enacting a zoning ordinance upon which a referendum is sought, may very well have complied with the procedural due process requirements of the zoning statute. Therefore, if the power of referendum with respect to local legislation has been constitutionally reserved to the people, its exercise on zoning ordinances has been upheld.
“[I]t would undoubtedly be conceded that, had the board of trustees of the city of Burlingame adopted a zoning ordinance, as provided by the statute, "its final action would be subject to the referendum provisions of the constitution and laws of the state, for the obvious reason that there is embodied in the enactment of a zoning ordinance such elements of legislative action as to subject the ordinance when adopted to the reserved legislative power of the electors of the city, when properly invoked, to approve or reject it. * * *” Hurst v. City of Burlingame, supra, 207 Cal at p 142 (277 P 312).
“Whenever the council acts in its legislative capacity, the action it takes is subject to the constitutional right of referendum unless such action falls into one of the exceptions provided for in the constitution.
“The right of referendum with respect to zoning-ordinances is essential for the protection of the rights of the electors of each city. A zoning ordinance can and does have a more direct and lasting-effect upon property values and property owners within a city than almost any other type of ordinance. What is done with respect to one piece of property of necessity has an effect, good or bad, upon adjacent or nearby property.” Johnston v. City of Claremont (1958), 49 Cal 2d 826 (323 P2d 71), following Hurst v. Burlingame, supra. Accord: Hilltop Realty, Inc. v. City of South Euclid (1960), 110 Ohio App 535 (164 NE2d 180).
In jurisdictions like Michigan in which the power of initiative and referendum on local legislation is not constitutionally reserved hut is delegated by statute as a permissible charter provision, the judicial construction of applicable laws has led to diverse conclusions as to whether and to what extent zoning ordinances are subject to the power of referendum. 5 McQuillin Municipal Corporations (3d ed), § 16.57, p 221.
If the referendum provision in question is contained within the applicable zoning enabling act itself, it has been given full force and effect. Stadle v. Township of Battle Creek (1956), 346 Mich 64. Cf. Minneapolis-Honeywell Regulator Company v. Nadasdy (1956), 247 Minn 159 (76 NW2d 670).
More closely approximating the present case, however, are those instances in which the referendum sought is not pursuant to a provision in the zoning enabling act, but to a section in the city charter providing for a referendum generally on local ordinances.
In Elkind v. City of New Rochelle (1957), 5 Misc 2d 296 (163 NYS2d 870), aff’d (1958), 5 NY2d 836 (181 NYS2d 509), the court held that such a general referendary provision did not authorize a referendum on a zoning ordinance or an amendment thereto.
“In the first place, the charter was adopted as a local law pursuant to the city home rule law. Section 15 of this latter law expressly states the instances where it is mandatory to hold a referendum. Section 17 sets forth the instances in which a referendum may be secured by petition. In neither of these sections does the city home rule law grant any authority to a city to provide for a referendum on a zoning ordinance, or an amendment thereto.
“The Court of Appeals has passed on this question in McCabe v. Voorhis, 243 NY 401, at p 413 (153 NE 849, at p 851), where Judge Pound, writing for a unanimous court, said:
“ ‘The power to provide for a referendum must be found in the city home rule act. * * * Otherwise it is unauthorized. Direct legislation in cities must always rest on some constitutional or statutory grant of power. Government by representation is still the rule. Direct action by the people is the exception. The test of validity, therefore, is whether local law no. 16 has been adopted as a local law coming within the powers delegated to the city by such law. The power asserted by the city must fail unless the local law squares itself with the restrictions therein contained.’ ”
The Ellcind case is distinguishable in that the New York home rule act does not contain a provision comparable to the general referendum provision of our own statute. However, the provision of the zoning- enabling act considered therein closely resembles MCLA § 125.584 (Stat Ann 1969 Rev § 5.2934) from which the power of the city of Clawson to adopt and amend a zoning ordinance is derived:
“The legislative body of any city or village may provide by ordinance for the manner in which such regulations and boundaries of districts or zones shall be determined and enforced, or from time to time amended, supplemented or changed: Provided, however, That a public hearing shall be held before any such regulations shall become effective: And provided further, That not less than 15 days’ notice of the time and place of such public hearing shall first be published in an official paper or a paper of general circulation in such city or village, and that not less than 15 days’ notice of the time and place of such public hearing shall first be given by registered United States mail to each public utility company and to each railroad company owning or oper ating any public utility or railroad within the districts or zones affected, and a hearing be granted any person interested at the time and place specified. In cities having a population of 25,000 or more according to the last federal or state census, the legislative body may appoint a commission to recommend in the first instance the boundaries of districts and appropriate regulations to be enforced therein. Such commission shall thereupon make a tentative report and hold public hearings thereon at such times and places as the legislative body shall require before submitting its final report. In cities having a population of 25,000 or more according to the last federal or state census, said legislative body shall not in the first instance determine the boundaries of districts nor impose regulations until after the final report of a commission so appointed. In cities having a population of 25,000 or more according to the last federal or state census, the hearing as above provided before the legislative body shall not take place until such final report of such commission has been received, nor shall the ordinance or maps be amended after they are adopted in the first instance until the proposed amendment has been submitted to such commission and it has made report thereon. In either case the legislative body may adopt such ordinance and maps with or without amendments, or refer same again to the commission for a further report. "Where a city has a city plan commission or corresponding commission the legislative body may appoint such commission to perform the duties above specified. After the ordinance and maps have in the first instance been approved by the legislative body of a city or village, amendments or supplements thereto may be made from time to time as above provided, but in case a protest against a proposed amendment, supplement or change be presented, duly signed by the owners of 20 per centum or more of the frontage proposed to be altered, or by the owners of 20 per centum or more of the frontage immedi ately in the rear thereof, or by the owners of 20 per centum of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by the 3/4 vote of such legislative body.’’ (Emphasis supplied.)
In considering the New York counterpart of the above statute, the court in Ellcind stated:
“This method and procedure established by the legislature for all cities would be completely nullified if a referendum were to be substituted for the safeguards provided by this section.
* # #
“These statutes require that any zoning law shall be based on a well-considered and comprehensive plan by means of which the land in the municipality may be used for purposes for which it is best suited and all reasonably necessary uses may be provided for. If, after the adoption of a zoning ordinance, meeting these requirements, some of its provisions may be deleted by a referendum of the electors, the comprehensiveness mandated by the legislature could well be destroyed. Essential uses, such as for churches and schools, could be barred from the municipalities.
“In the instant case, while the common council may comply with section 83 of the general city law in amending the New Rochelle zoning ordinance, as it here did, its legislation and the city’s compliance with the said section could be completely nullified if such acts were subject to a referendum of the electors of the city. This would create, as it has here, a situation where there has been formal but ineffective compliance. This would exalt form above substance.” (pp 301, 302)
The same result was reached in the recent case of Hancock v. Rouse (Tex Civ App, 1969), 437 SW2d 1. As in Ellcind, a referendum on an amendatory zoning ordinance was sought pursuant to the gen eral referendary provision of the city charter. Prefatorily, the court stated at p 3:
“The charter of the city of Bellaire provides that all of the powers granted to cities by Arts. 1011a to lOllj, inclusive, Texas Rev Civ Statutes, 1925, are adopted and ‘made a part of’ the charter. Necessarily the charter also includes the restrictions of the legislative power of the city found in those articles.” (Emphasis supplied.)
After setting forth the relevant provisions of the applicable zoning enabling act, again similar to our own, the court concluded:
“These general laws, which have been incorporated by reference into the charter of the city of Bellaire, contemplate that comprehensive zoning ordinances, and ordinances having the purpose of changing, amending, or repealing such ordinances, will be enacted by the local legislative body, i.e., the city council. This is clear from the requirement that this action must be preceded by a study made by the zoning commission after public hearings resulting in recommendations to the council by the commission, and by a public hearing before the city council. While the city council may . authorize a joint public hearing, both the zoning commission and the city council must give those interested the opportunity to attend a hearing. While the report of the zoning commission is advisory, the council must await that report before taking final action. The preparation of a comprehensive zoning ordinance, which would meet the objectives set out in the statute, requires careful study, the accumulation of masses of detailed information concerning land use within the city, and is a matter concerning which the professional advice of one experienced in city planning would be most helpful. It would be very difficult to present the information necessary to evaluate a proposed zoning ordinance to tbe voters in an intelligible manner. (Citations omitted.)
“Notice and hearing, as well as reference to the zoning commission, are also required before an ordinance adding to, changing or repealing the comprehensive zoning ordinance can be enacted. In addition, in event of a proper protest, Art lOlle requires passage by a three-fourths’ majority of all the members of the legislative body. While the citizens of a city are acting in a legislative capacity when voting' pursuant to the initiatory process, the qualified voters of such a city would not constitute a ‘legislative body’. The words ‘legislative body’ in Art lOlle clearly refer to the city council, and these words, when used in other sections of the same act, and in amendments thereto, will be presumed to have the same meaning.
“These provisions of the general law, adopted into the charter of the city of Bellaire, by implication, have withdrawn the subject of zoning from the field in which the initiatory process is operative and have reserved this subject from referendum.” (Citations omitted.) (pp 3, 4) (Emphasis in original.)
It is urged that Stadle v. Township of Battle Creek, supra, reflects judicial recognition of a legislative policy favoring an optional referendum with respect to amendatory zoning ordinances. Cf. Hilltop Realty, Inc. v. City of South Euclid (1960), 110 Ohio App 535 (164 NE2d 180). To the contrary, tbe bolding in Stadle was simply one of statutory construction. As noted above, the statute there in question, the township zoning enabling act, specifically provided for a referendum:
“Within 30 days following the passage of such zoning ordinance, a petition signed by a number of qualified and registered voters residing in the township equal to not less than 8 per cent of the total vote cast for all candidates for governor, at the last preceding general election at which a governor was elected, in. the township may he filed with the township clerk praying therein for the submission of such ordinance to the electors residing in the township for their approval or rejection. Upon the filing of such petition, such ordinance shall not take effect until the same shall have been approved by a majority of the electors residing in the township voting thereon at the next regular election which supplies reasonable time for proper notices and printing of ballots, or at any special election called for that purpose. The township board shall provide the manner of submitting such ordinance to the electors for their approval, and determining the result thereof.” CL 1948, § 125.282 (Stat Ann 1949 Rev § 5.2963 [12]).
The Court rejected the argument that the referendum be confined solely to the initial question of whether the township should be governed at all by a comprehensive zoning ordinance. In holding that the right of referendum applied as well to the type and kind of zoning ordinance proposed, including amendatory zoning ordinances, the Court expressed the following concern:
“This act as construed by the trial court would give to the township board an opportunity to pass a zoning ordinance acceptable to the residents of a township and then after 30 days had expired, without protest by referendum, to amend the ordinance in such a way as to be unacceptable to a majority of the residents. We cannot so construe this statute.” (p 69)
The referendary provision upheld in Stadle is conspicuously absent from the city zoning enabling act. Defendants contend that there was no need for such provision inasmuch as the same right was conferred by the general referendary provision of the home-rule act. We cannot agree.
Initiative and referendum provide an effective means of protecting the rights of citizens with respect to the enactment of general legislation. Zoning legislation, however, poses special problems. The protection of private property rights must be balanced with the community’s need for a comprehensive and flexible zoning plan. The general referendary provision of the Clawson city charter imposes no time limit in which a referendum on a proposed ordinance must be brought. Such an initiative and referendary plan without time limitation tends to destroy the comprehensiveness and coordination of zoning legislation. If zoning ordinances were subject to such provision, what reliance could be placed upon such ordinances by owners or prospective purchasers of property!
To. this extent,
“[T]he legislature has delegated the power to zone to the legislative bodies of cities and towns, so that the need for a comprehensive plan might be met, and provided means for the protection of private property through notice and public hearings.
“The state legislature has here acted within its powers and unless that general law is affected by repeal or amendment by the legislature, or by referendum or initiative by the people of the state, the statute guides the zoning process of the cities and directs the means by which it is to be accomplished.” Dewey v. Doxey-Layton Realty Co. 3 Utah 2d 1, 7 (277 P2d 805, 809).
For the reasons expressed in Elkind and Hancock, supra, we affirm the judgment of the trial court. The statutory scheme specifically designed for amending city zoning ordinances properly emphasizes the high level of expertise required for the efficient administration of such complex legislation. In addition, it wisely limits the availability of pro test to those property owners most likely to he directly affected by a change in the zoning law. The protection of private property rights which concerned the Supreme Court in Stadle, supra, has been provided for in a manner appropriately suited to the circumstances.
Affirmed.
All concurred.
MCLA § 117.4Í (Stat Aim 1969 Cum Supp § 5.2082).
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] |
Bronson, J.
James C. Turner was found guilty of contempt of court in Livingston County. Such finding was by way of summary judgment. These proceedings arise out of a statement read by Turner at a meeting of the Industrial Committee of the Howell Chamber of Commerce, and out of a statement printed in an issue of “Today” magazine. Today” magazine is published by Turner. Soon after Turner’s statements were made, he was served with a petition and then with an ex parte order to show cause why he should not he adjudged in contempt of court. Pleadings were filed with the trial court and the trial judge then disqualified himself from hearing the case and requested that the Michigan Supreme Court Administrator assign another judge to hear the matter. During the course of the' argument, defendant Turner made a motion to dismiss, which was denied. He also made a demand for a jury trial, which was denied. At the show cause hearing, the court offered as evidence three exhibits.
Exhibit A reads:
“State of Michigan gg
“County of Livingston
“Robert E. Kleeb, being first duly sworn, deposes and says:
“That he resides in the city of Howell, and is a practicing attorney maintaining offices in said city.
“That on or about the 13th day of February, 1968, that he attended a meeting of the Industrial Committee of the Howell Chamber of Commerce. That present at that meeting were citizens and residents of the City of Howell in the County of Livingston. That also present at said meeting was one James C. Turner, the publisher of a magazine known as ‘Today’, and having some circulation in the county of Livingston. That during the course of said meeting, the said James C. Turner read excerpts from a letter purportedly written by one Hiram R. Smith, and thereby orally published the contents thereof. That the substance of such publication was as follows :
“ ‘That the control which Martin J. Lavan exercises over the courts of Livingston county is more vicious than the control exercised by the Mafia in New York and Chicago.’
“Further this deponent sayeth not.
“/s/Robert E. Kleeb
“Subscribed and sworn to before me this 8th day of April, A. D. 1968.
/s/Margaret H. Gtorte
Notary Public, Shiawassee County, Michigan, acting in Livingston County, Mich.
My commission expires Oct. 18, 1970.”
Exhibit B reads:
“State of Michigan
“County of Livingston
“Wilfred H. Erwin, being first duly sworn, deposes and says:
“That he is a member of the State Bar of Michigan and maintains offices for the practice of law in the city of Howell, Livingston county, Michigan.
“That one James C. Turner resides in the city of Howell.
“That on April 5, 1968, there appeared on the news stands in the city of Howell the April issue of a magazine known as ‘Today’, published by the said James C. Turner. That this deponent is in possession of a copy of such issue, and has read the contents thereof. That on page four thereof, under the heading, ‘A Letter from the Publisher,’ and in paragraph five appears the following:
“ ‘Martin J. Lavan, who did this to Orpha Bowe has almost totally corrupted the entire judicial system in Livingston County. We believe the judges and most of the attorneys either live in fear of this man, or, for some reason, are afraid or won’t speak out against the system.’
“Further this deponent sayeth not.
“/s/WhiPrbd H. Erwin
“Subscribed and sworn to before me this 8th day of April, A. D. 1968.
/s/Margaret H. G-qrte
Notary Public, Shiawassee County, Michigan, acting in Livingston County, Mich.
My commission expires Oct. 18, 1970.”
Exhibit C is a copy of “Today” magazine, [vol 1, no 5]. Plaintiff offered no additional evidence or proof at the hearing below other than exhibits A, B, and C.
Defendant Turner testified that he believed his stated charges of corruption against the judiciary in Livingston county were true when he made such charges, and that he still believed them to be true at the time he gave testimony at the show-cause hearing. Turner, through his attorney, filed a statement with the court on May 29, 1968, in which he stated his intention:
“ * * * to show by testimony of various persons and by the introduction of affidavits and copies of public records and other evidence the following by way of explanation of the general situation and' attitude regarding the opinion and concern of many toward the judicial system in Livingston county and the action or lack of action on the part of the County Bar Association.
* * *
“Testimony will also be forthcoming from various public officials and/or administrator regarding their past contacts with judicial officers and courts regarding their function or lack of activities in areas deemed important and proper to the community at large.”
A careful scrutiny of the transcript and record indicates that defendant did not infill his intentions. At no time did he testify to any facts which could form a foundation for such belief.
Defendant Turner was found guilty of contempt of court, fined $150 and ordered to jail for 15 days. From this verdict, he appeals.
On appeal this Court is called upon to resolve two questions:
Is a person who is cited for contempt of court for statements or publications made outside the view and presence of the court which allege the corruption of the entire judicial bench of a county circuit court entitled to a jury trial?
Did the lower court err in finding the respondent guilty of contempt of court?
For purposes of this decision, we need only consider the latter.
“The evils envisioned in the contempt by publication cases are disrespect to the judiciary, and interference with the administration of justice. Through the years, the Supreme Court has not allowed the exercise of the contempt power in the former instance. Their rationale has been that judges should be above personal attack, and that popular respect is less apt to be gained from the exercise of the contempt power than from exemplary judicial standards subject to free criticism. ‘The assumption,’ Justice Black noted, ‘that respect for the judiciary can be won by shielding judges from published criticism wrongly appraised the character of American public opinion.’
“Though recognizing the possibility of contempt treatment in the second category of press comments (intereference with the administration of justice) courts have been chary to find the instance where the need to protect the fairness of trials overrode the value to be gained from allowing free discussion. These cases indicate that the courts in their decisions are more concerned with the free press-fair trial civil liberties conflict than with developing a consistent doctrine with respect to the power to punish contempts by publication on theories bedded in the contempt power itself. ‘The Supreme Court’s formula seems to grant the press a virtual immunity from contempt rather than resolve its historic struggle with the courts.’ ”
Ronald L. Goldfarb, The Contempt Power (Columbia University Press, 1963) ch 4, p 189.
Plaintiff recognizes that in order to sustain a contempt conviction Turner’s allegations must be found to concern the outcome of pending cases. See Bridges v. California (1941), 314 US 252 (62 S Ct 190, 86 L Ed 192), Pennekamp v. Florida (1946), 328 US 331 (66 S Ct 1029, 90 L Ed 1295) and Craig v. Harney (1947), 331 US 367 (67 S Ct 1249, 91 L Ed 1546 ).
In Bridges v. California, supra, the United States Supreme Court dealt with convictions resting “upon comments pertaining to pending litigation which were published in newspapers”. In Bridges the Court stated, p 263:
“What finally emerges from the ‘clear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Bights. For the First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.”
The court, in Bridges, looked to the particular utterances in question and to the circumstances under which they were published in order to determine “to what extent the substantive evil of unfair administration of justice” would likely result.
“The substantive evil here sought to be averted has been variously described below. It appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice. The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however, limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.
“The other evil feared, disorderly and unfair administration of justice, is more plausibly associated with restricting publications which touch upon pending litigation. The very word ‘trial’ connotes decisions on the evidence and arguments properly advanced in open court. Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper. But we cannot start with the assumption that publications of the kind here involved actually do threaten to change the nature of legal trials, and that to preserve judicial impartiality, it is necessary for judges to have a contempt power by which they can close all channels of public expression to all matters which touch upon pending cases.” Bridges v. California, supra, pp 270, 271.
In Pennekamp v. Florida, supra, the United States Supreme Court reversed a contempt conviction based upon publications (again concerning pending cases). There the court in amplification of Bridges stated:
“Whether the threat to the impartial and orderly-administration of justice must he a clear and present or a grave and immediate danger, a real and substantial threat, one which is close and direct or one which disturbs the court’s sense of fairness depends upon a choice of words. Under any one of the phrases, reviewing courts are brought in eases of this type to appraise the comment on a balance between the desirability of free discussion and the necessity for fair adjudication, free from interruption of its processes.” Pennekamp v. Florida, supra, at 336.
In discussing the clear and present danger test applied in Bridges, the court in Pennekamp (pp 348, 349) said:
“What is meant by dear and present danger to a fair administration of justice? No definition could give an answer. Certainly this criticism of the judges’ inclinations or actions in these pending nonjury proceedings could not directly affect such administration. This criticism of their actions could not affect their ability to decide the issues. Here there is only criticism of judicial action already taken, although the cases were still pending on other points or might be revived by rehearings. For such injuries, when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants.”
The United States Supreme Court in Craig v. Harney, supra, based its decision on Bridges and Pennekamp. The facts were similar to those cases but the lower court concluded that they satisfied the clear and present danger rule of the Bridges case. The United States Supreme Court, in reversing, interpreted the words “clear and present danger” in terms of the language published:
“This was strong language, intemperate language, and, we assume, an unfair criticism. But a judge may not hold in contempt one ‘who ventures to publish anything that tends to make him unpopular or to belittle him * * * ’ See Craig v. Hecht (1923), 263 US 255, 281 (44 S Ct 103, 108, 68 L Ed 293, 301), Mr. Justice Holmes dissenting. The ve bemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not he remote or even probable; it must immediately imperil.” Craig v. Harney, at p 376.
In adhering to the belief that “free discussion of the problems of society is a cardinal principle of Americanism — a principle which all are zealous to preserve”, we conclude that inaccurate comment, false comment, even vicious comment regarding the court which does not affect pending litigation must not be dealt with by the contempt power as a means of assuring the just exercise of the judicial process. See Pennekamp v. Florida, Frankfurter, J., concurring, at p 368.
Forceful arguments are presented by each side in the present controversy.
When two fundamental and integral parts of the democratic process clash head on, as in the case here, the vindication of the proponents on the one side must seemingly be to the detriment of the proponents on the other sided In the present action, if we uphold the right of the press to make what may well be unfounded allegations, we expose the Livingston County bench to possible further attack which could result in the diminishment of the stature of a whole bench. If, on the other hand, we find Turner to have been in contempt, we dimin ish the right of the people to he free from prior censorship and restraint. “We must, therefore, [carefully] weigh the right of free speech which is claimed * * * against the danger of the coercion and intimidation of courts in the factual situation presented by this record.” Pennekamp v. Florida (1946), 328 US 331, 346 (66 S Ct 1029, 1037; 90 L Ed 1295, 1303).
In reaching our decision we are guided by the rule set out in Pennekamp v. Florida, at p 347, that:
“Courts must have power to protect the interests of prisoners and litigants before them from unseemly efforts to pervert judicial action. In the borderline instances where it is difficult to say upon which side the alleged offense falls, we think the specific freedom of public comment should weigh heavily against a possible tendency to influence pending cases. Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.”
In the present action it is vigorously argued by plaintiff that, as there were some 500 cases pending at the time of Turner’s attacks, each case then before the court was sufficient to support a conviction for contempt of court.
In his brief plaintiff asserts:
“[Defendant] says, in effect, * * * that a blanket charge that a court is corrupt can have no effect on the orderly, unbiased administration of justice in that court in the disposal of the cases then pending. If such be true, then a corrupt judge in no way prejudices the rights of citizens who appear before him except when the charges are made concerning a case presently before him for final determination. This argument of the appellant assumes that because these charges were general charges of corruption not specifically aimed at a case being tried or having been tried and awaiting final determination, that such a charge does not affect a pending case, and does not therefore affect the orderly administration of justice. That such assumption or argument is fallacious is easily apparent. In effect, it says that what one may not do specifically he may do generally.
“It is the position of the appellee that a charge that a court is corrupt taints every case then pending or which may possibly come before the court for determination with the possibility that fair and impartial justice will be denied in the final determination of such cases. Such a charge, in effect, poisons the clear waters of justice by which every litigant is entitled to be refreshed. A poisoned well is a useless, dangerous well. A corrupt court is equally useless, dangerous, and is bound to destroy a people’s faith in the integrity of its courts and its other democratic institutions. Therein lies the clear and present danger to those institutions (our courts) which have hitherto been deemed to be the best guardians of civil liberty.”
While recognizing the strong appeal made by plaintiff, we cannot accept the mistaken syllogism that allegations of corruption in and of themselves create corruption. Plaintiff needs no defense of his position other than an impeccable reputation as a jurist.
Even if the attacks against the Livingston County judiciary by Turner are in fact irresponsible or scurrilous, we see no effect upon pending cases. As the United States Supreme Court stated in Pennekamp v. Florida (pp 347-349):
“The comments were made about judges of courts of general jurisdiction — judges selected by the people of a populous and educated community. They concerned the attitude of the judges toward those who were charged with crime? not comments on evidence or rulings during a jury trial. Their effect on juries that might eventually try the alleged offenders against the criminal laws of Florida is too remote for discussion. Comment on pending cases may affect judges differently. It may influence some judges more than others. Some are of a more sensitive fiber than their colleagues. The law deals in generalities and external standards and cannot depend on the varying degrees of moral courag'e or stability in the face of criticism which individual judges may possess any more than it generally can depend on the personal equations or individual idiosyncrasies of the tortfeasor. The Germanic (1905), 196 US 589, 596 (25 S Ct 317, 318, 49 L Ed 610, 613); Arizona Employers’ Liability Cases (1919), 250 US 400, 422, 432 (39 S Ct 553, 556, 560, 63 L Ed 1058, 1067, 1071, 6 ALR 1537, 1545, 1546, 1551). We are not willing to say under the circumstances of this case that these editorials are a clear and present danger to the fair administration of justice in Florida. Cf. Near v. Minnesota (1931), 283 US 697, 714, 715 (51 S Ct 625, 630 631, 75 L Ed 1357, 1366, 1367).
* # #
“It is suggested, however, that even though his intellectual processes cannot be affected by reflections on his purposes, a judge may be influenced by a desire to placate the accusing newspaper to retain public esteem and secure reelection presumably at the cost of unfair rulings against an accused. In this case too many fine-drawn assumptions against the independence of judicial action must be made to call such a possibility a clear and present danger to justice. For this to follow, there must be a judge of less than ordinary fortitude without friends or support or a powerful and vindictive newspaper bent upon a rule or ruin policy, and a public unconcerned with or uninterested in the truth or the protection of their judicial institutions. If, as the Florida courts have held and as we have assumed, the petitioners deliberately distorted tbe facts to abase and destroy tbe efficiency of the court, those misrepresentations with the indicated motives manifested themselves in the language employed by petitioners in their editorials.”
It is error to assume that because a court is charged with corruption it is incapable of acting in any other than a corrupt manner. It is plaintiff’s contention that in the eyes of the people a court so charged is suspect in its decisions. Accordingly, what we are being asked to consider here is not the integrity of the court in its handling of those 500 pending cases, but rather the manner in which those opinions would be received.
Plaintiff contends that every decision in those cases would be suspect in the eyes of the public and the losing party. We believe otherwise. Subsequent finding that Turner was guilty of contempt will not cleanse nor vindicate the bench in the eyes of those who choose to believe his allegations.
As previously stated, the requisite showing of contempt in a case such as the one before us is an immediate peril of undue influence or coercion upon pending litigation. The United States Supreme Court said in Bridges v. California (1941), 314 US 252, 262 (62 S Ct 190, 193, 194, 86 L Ed 192, 203), that:
“[T]he likelihood, however great, that a substantive evil will result cannot alone justify a restriction upon freedom of speech or the press. The evil itself must be ‘substantial,’ Brandeis, J., concurring in Whitney v. California (1927), 274 US 357, 374 (47 S Ct 641, 647, 648, 71 L Ed 1095, 1105); it must be ‘serious’, id. 376.”
Here we are dealing with a general accusation leveled at an entire bench. What is the best course of action for a judge, a member of the bench so accused? Tbe answer must, we feel, be nothing, “for 'public meu, are, as it were, public property,’ and 'discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled.’ ” New York Times Co. v Sullivan (1964), 376 US 254, 268 (84 S Ct 710, 720, 11 L Ed 2d 686, 699).
The Livingston bench was made the subject of disparaging statements. The best defense judges may present to the public is the unsullied performance of their judicial duties. For ultimately it is that very public trust and confidence which plaintiff fears the erosion of, which must be depended upon to vindicate the court.
"Reversed. No costs, a public question being involved.
All concurred.
Frankfurter, J., in a concurring opinion in Pennekamp v. Florida, supra, wrote, pp 366-369:
“The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exereise. It is a condition of that function — indispensable for a free society — that in a particular controversy pending before a court and awaiting judgment, human beings, however strong, should not be torn from their moorings of impartiality by the undertow of extraneous influence.”
“The Florida Supreme Court referred to the eases criticized as ‘pending.’ But it did not define the scope of ‘pending’ nor did the grounds of its decision have any particular dependence on the requirement that a case be pending. The finding by a State court that a case is ‘pending’ in the sense relevant to the power to punish for contempt does not, of course, bar its review here. Otherwise a State court could foreclose our protection of the constitutional right of free speech by putting forth as a non-federal ground of decision that which is an essential aspect of the federal question. Union Pac. R. Co. v. Public Service Commission of Missouri (1918), 248 US 67, 69, 70 (39 S Ct 24, 25, 63 L Ed 131, 132, 133, 1919B PUR 315, 316-318) ; Ward v. Board of Boad Commissioners of Love County (1920), 253 US 17, 22 (40 S Ct 419, 421, 64 L Ed 751, 758) ; Davis v. Wechsler (1923), 263 US 22 (44 S Ct 13, 68 L Ed 143).
“If it is contemptuous to bring the courts of a State into disrepute and generally to impair their efficiency, then it ean make no difference on what oecassion or with reference to what event, that effeet is achieved or attempted. But when it is understood what is meant by a 'pending’ ease, it becomes plain that for purposes of punishing for contempt as interference, the cases were not actively pending.”
See, also, Craig v. Barney, supra, wherein the Court stated pp 377, 378:
“The editorial challenged the propriety of the court’s procedure, not the merits of its ruling. Any such challenge, whether made prior or subsequent to the final disposition of a case, would likely reflect on the competence of the judge in handling eases. But as we have said, the power to punish for contempt depends on a more substantial showing. Giving the editorial all of the vehemence which the court below found in it we fail to see how it could in any realistic sense create an imminent and serious threat to the ability of the court to give fair consideration to the motion for rehearing.
“There is a suggestion that the case is different from Bridges v. California, supra, in that we have here only private litigation, while in the Bridges case labor controversies were involved, some of them being criminal eases. The thought apparently is that the range of permissible comment is greater where the pending case generates a public concern. The nature of the ease may, of course, be relevant in determining whether the dear and present danger test is satisfied. But, the rule of the Bridges and Bennelcamp cases is fashioned to serve the needs of all litigation, not merely select types of pending cases.” (Emphasis added.)
“Bridges v. California fixed reasonably well-marked limits around the power of courts to punish newspapers and others for comments upon or criticism of pending litigation. The ease placed orderly operation of courts as the primary and dominant requirement in the administration of justice. Pp 263, 265, 266. This essential right of the courts to be free of intimidation and coercion was held to be consonant with a recognition that freedom of the press must be allowed in the broadest scope compatible with the supremacy of order. A theoretical determinant of the limit for open discussion was adopted from experience with other adjustments of the conflict between freedom of expression and maintenance of order. This was the clear and present danger rule. The evil consequence of comment must be ‘extremely serious and the degree of imminence extremely high before utterances can be punished.’ P 263. It was, of course, recognized that this formula, as would any other, inevitably had the vice of uncertainty, p 261, but it was expected that from a decent self-restraint on the part of the press and from the formula’s repeated application by the courts, standards of permissible comment would emerge which would guarantee the courts against interference and allow fair play to the good influences of open discussion. As a step toward the marking of the line, we held that the publications there involved were within the permissible limits of free discussion.
“In the Bridges case the clear and present danger rule was applied to the stated issue of whether the expressions there under consideration prevented ‘fair judicial trials free from coercion or intimidation.’ P 259. There was, of course, no question as to the power to punish for disturbances and disorder in the court room. P 266. The danger to be guarded against is the ‘substantive evil’ sought to be prevented. Pp 261-263. In the Bridges ease that ‘substantive evil’ was primarily the ‘disorderly and unfair administration of justice.’ Pp 270, 271, 278.
“While there was a division of the court in the Bridges case as to whether some of the public expressions by editorial comment transgressed the boundaries of a free press and as to the phrasing of the test, there was unanimous recognition that California’s power to punish for contempt was limited by this court’s interpretation of the extent of protection afforded by the First Amendment.” Pennekamp v. Florida, supra, at pp 334-336.
We are not unaware that public officials will take but little solace in their reliance upon libel and slander actions against those who defame them. See New York Times Co. v. Sullivan (1964), 376 US 254 (84 S Ct 710, 11 L Ed 2d 686).
Pennekamp v. Florida, at p 346.
“Were we to sanction the judgment rendered by the court below we would be approving, in effect, an unwarranted restriction upon the freedom of the press. That freedom covers something more than the right to approve and condone insofar as the judiciary and the judicial process are concerned. It also includes the right to criticize and disparage, even though the terms be vitriolic, scurrilous or erroneous. To talk of a clear and present danger arising out of such criticism is idle unless the criticism makes it impossible in a very real sense for a court to carry on the administration of justice. That situation is not even remotely present in this ease.
“Judges should be foremost in their vigilance to protect the freedom of others to rebuke and castigate the bench and in their refusal to be influenced by unfair or misinformed censure. Otherwise freedom may rest upon the precarious base of judicial sensitiveness and caprice. And a chain reaction may be set up, resulting in countless restrictions and limitations upon liberty.” Pennekamp v. Florida, at pp 369, 370, Murphy, J., concurring.
“Courts and judges therefore cannot be put altogether beyond the roach of misrepresentation and misstatement. That is true in any ease, but perhaps more obviously where the judiciary is elective, as it is in most of our states, including Florida. See Storey v. People (1875), 79 Ill 45, 52 (22 Am Rep 158, 164); 41 Harv L Rev 254, 255 (1927). The question, and the standard, must be one of degree and effects. It cannot be placed at mere falsity, either in representation or in judgment. The statement, whether of fact or of opinion, must be of such a character, whether true or false, as to obstruct in some clear and substantial way the functioning of the judicial process in pending matters. Bridges v. California (1941), 314 US 252 (62 S Ct 190, 86 L Ed 192, 159 ALR 1346). It is not enough that the judge’s sensibilities are affected or that in some way he is brought generally into obloquy. After all, it is to be remembered that it is judges who apply the law of contempt, and the offender is their critic.” Pennekamp v. Florida, at p 372, Rutledge, J., concurring.
“The press does have the right, whieh is its professional function, to criticize and to advocate. The whole gamut of public affairs is the domain for fearless and critical comment, and not least the administration of justice. But the public function which belongs to the press makes it an obligation of honor to exercise this function only with the fullest sense of responsibility. Without such a lively sense of responsibility a free press may readily become a powerful instrument of injustice. It should not and may not attempt to influence judges or juries before they have made up their minds on pending controversies. Such a restriction, which merely bars the operation of extraneous influence specifically directed to a concrete case, in no wise curtails the fullest discussion of public issues generally.” Pennekamp v. Florida, at p 365, Frankfurter, J.. concurring.
“In securing freedom of speeeh, the Constitution hardly meant to create the right to influence judges or juries. That is no more freedom of speeeh than stuffing a ballot box is an exercise of the right to vote.” Pennekamp v. Florida, at p 366, Frankfurter, J., concurring.
“I believe that the importance of the problem raised by this case cannot be overemphasized. A free press lies at the heart of our democracy and its preservation is essential to the survival of liberty. Any inroad made upon the constitutional protection of a free press tends to undermine the freedom of all men to print and to read tin truth.” Craig v. Harney, supra, Murphy, J., concurring.
“Since at the core of our problem is a proper balance between two basic conditions of our constitutional democracy — freedom of utterance and impartial justice — we cannot escape the exercise of judgment on the particular circumstances of the particular case.” Pennekamp v. Florida, at p 367, Frankfurter, J., concurring.
“Silence and a steady devotion to duty are the best answers to irresponsible eritieism; and those judges who feel the need for giving a more visible demonstration of their feelings may take advantage of various laws passed for that purpose which do not impinge upon a free press. The liberties guaranteed by the First Amendment, however, are too highly prized to be subjected to the hazards of summary contempt procedure.” Craig v. Harney (1947), 331 US 367 (67 S Ct 1249, 91 L Ed 1546), Murphy, J., concurring at pp 384, 385.
See Pennekamp v. Florida where the Court stated at pp 349, 350:
“The Florida courts see in this objectionable language an open effort to use purposely the power of the press to destroy without reason the reputation of judges and the competence of courts. This is the clear and present danger they fear to justice. Although we realize that we do not have the same close relations with the people of Florida that is enjoyed by the Florida courts, we have no doubt that Floridians in general would react to these editorials in substantially the same way as citizens of other parts of our common country.
“As we have pointed out, we must weigh the impact of the words against the protection given by the principles of the First Amendment, as adopted by the Fourteenth, to public comment on pending court eases. We conclude that the danger under this record to fair judicial administration has not the clearness and immediacy necessary to close the door of permissible publie comment. When that door is closed, it closes all doors behind it.”
Because of the decision reached on the issue of contempt we find it unnecessary to consider the question of defendant’s having been denied a jury trial. | [
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