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Per Curiam.
Defendant was charged with unlawfully driving away an automobile, MCL 750.413; MSA 28.645, and brought to trial on May 1, 1979, before Clinton County Circuit Court Judge Timothy M. Green. In his opening statement, defense counsel stated to the jury that Peter Evans, a witness who defense counsel alleged was never interviewed by the police, never charged, and never arrested, would admit responsibility for the crime. During the lunch recess, and before Evans could testify, he was arrested on a Clinton County warrant which had been issued in February of 1978. Evans was arraigned, counsel was appointed for him, and, after consulting with his attorney, he decided not to testify.
Defense counsel then moved to dismiss with prejudice the case against defendant, contending that the prosecutor’s actions denied defendant a fair trial in light of defense counsel’s opening statement.
The trial court held a brief hearing during which the prosecutor alleged he arrested Evans, whom they had previously been unable to locate, because defense counsel had incorrectly misled the jury by stating that no charge had ever been brought against Evans and because Evans was about to waive his Fifth Amendment rights without benefit of counsel. The court then found that the arrest had a chilling effect upon Evans’s testimony and that defendant would be prejudiced in that he was unable to call the witness. The court granted defendant a mistrial.
When the case was again set for trial, defendant moved to quash, arguing, in part, that double jeopardy barred retrial. The trial court granted the motion to quash, noting the confusion between defendant’s motion to dismiss with prejudice and the court’s grant of a mistrial. The court accepted the blame for the confusion but commented that it felt the mistrial was in order and was granted sua sponte in lieu of defendant’s "motion for a mistrial”. The people appeal as of right.
On appeal, the people argue that the double jeopardy clause does not bar retrial.
On this record, we are constrained to affirm the decision of the trial court. Defense counsel set the stage for error in his opening statement when he stated to the jury that Evans would incriminate himself and exculpate Squires. Further, defense counsel erroneously stated that Evans was never sought by the police. The record shows that, while Evans checked with the Michigan State Police and the Ingham County Sheriff’s Department, neither he nor defense counsel checked with the sheriff’s department of the county having jurisdiction. Indeed, defense counsel does not appear to have personally ascertained if a warrant had been issued for this witness in any of the possible jurisdictions. The trial court acknowledged that it would have had to advise Evans of his Fifth Amendment right not to incriminate himself prior to any testimony. It is doubtful that Evans would have incriminated himself once he was advised of his rights. Defense counsel was treading a fine line between causing an uncounseled witness to incriminate himself and calling an accomplice witness knowing that he would claim his Fifth Amendment privilege and refuse to testify. See People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977), and People v Bashans, 80 Mich App 702; 265 NW2d 170 (1978).
The prosecutor raised the curtain when he directed that Evans be arrested before he could testify. The timing of the arrest was questionable because it seemed directed at disrupting the defense strategy outlined in defendant’s opening statement. However, there was nothing legally improper in the execution of a valid warrant at that time. For different reasons, it would also have been questionable if the prosecutor had allowed an uncounseled witness to irretrievably incriminate himself.
The trial court committed the final act in the drama when it sua sponte granted a mistrial. It is evident that the trial court wrongly believed that defendant was consenting to a mistrial by bringing his motion for "dismissal with prejudice”. From our review of the record, defendant was not entitled to either "dismissal with prejudice” or a mistrial in the circumstances presented. The trial court was forced to admit as much when it concluded that there had been no manifest necessity for a mistrial.
We affirm the trial court, because, once placed in jeopardy, a defendant has a right to a determination of guilt or innocence by the trier of fact unless he either consents to a mistrial or a mistrial is granted because of manifest necessity. People v Alvin Johnson, 396 Mich 424, 431; 240 NW2d 729 (1976), People v Benton, 402 Mich 47, 63; 260 NW2d 77 (1977).
The arrest of Evans took place after the prosecution had commenced presentation of its proofs. The defense had cross-examined and attempted to impeach Kathy Wyman, the key prosecution witness. It is not within our purview to speculate upon the trial strategy of the defendant’s counsel and what his decision might have been if given the opportunity to continue with the trial. Such an opportunity was not given, and, while the trial judge no doubt acted in good faith for the "benefit” of the defendant, it is clear that the silence or failure to object was not consent. People v Alvin Johnson, supra, 432; 240 NW2d 732, 734.
Clearly, the defendant here did not consent to a mistrial. Rather, he sought a permanent termination of the criminal proceedings via his self-styled motion for dismissal with prejudice. Not only was there no manifest necessity, but also the court failed to make any explicit finding that no reasonable alternative to mistrial existed. People v Williams, 85 Mich App 258, 264-265; 271 NW2d 191 (1978).
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T. Gillespie, J.
The parties were divorced May 15, 1973. It was a marriage of long duration and two children were over age 18 at the time of the divorce. There was one minor son, age 8, at the time of the divorce. The judgment provided that the custody of this son would be with the mother and support of $125 per week was ordered. The husband is an architect, formerly the architect for the University of Michigan but now in private practice as a sole practitioner. He remarried after the divorce and has a new family.
On June 21, 1977, the defendant filed a motion claiming reduction in income and requesting modification of his support obligation. Three hearings were held in August and September, 1978. The trial court granted defendant a reduction in child support to a minimum of $50 per week and provided for annual adjustments each year to an amount equal to 30% of defendant’s income after taxes for the prior year. The judgment also provided for $5 per week on an arrearage of approximately $5,000.
The plaintiff filed a series of motions for interest on the arrearage, attorney fees, findings of fact, and finally for new trial, all of which were denied by the court.
Plaintiff now appeals alleging a number of grounds on which the court erred.
There are some of these grounds which merit discussion. The principle thrust of plaintiff’s argument is that the evidence adduced at the hearings did not justify a finding of a change of circumstances sufficient to reduce the child support. This constitutes a clear request for de novo review. It must be conceded that there is much authority which would leave the impression that an appeal is such a complete de novo review. However, as pointed out in Causley v LaFreniere, 78 Mich App 250, 254-255; 259 NW2d 445 (1977), there is also much authority supporting the concept that there is considerable discretion in the trial court in setting amounts in child support motions. The current rule is that in child support matters the lower court’s decision is presumed correct. The appellant bears the burden of showing that decision to be a clear abuse of discretion. However, because of the history of appellate review in equity, the appellant may establish clear error here more readily than in cases historically heard at law. Hagbloom v Hagbloom, 71 Mich App 257; 247 NW2d 373 (1976). Also see Wellman v Wellman, 305 Mich 365; 9 NW2d 579 (1943), Polley v Polley, 367 Mich 455; 116 NW2d 924 (1962), Cullimore v Laureto, 66 Mich App 463, 465; 239 NW2d 409 (1976), and Moncada v Moncada, 81 Mich App 26; 264 NW2d 104 (1978).
In this case, evidence was presented which would support a finding of change of circumstances and a conclusion that the defendant’s support obligation should be modified. Specifically, the evidence before the court disclosed business reasons justifying the defendant’s restating and redistributing his income. Such reasons would not necessarily indicate bad faith by seeking to avoid child support. Moneada, supra.
As to the complaint that the court failed to make findings of fact on the defendant’s post-judgment motion to modify child support, the law is clear that the court must hold an evidentiary hearing before a modification in support is ordered in absence of agreement of the parties. There must be a record of that hearing. The judge should place on the record a brief finding of the basis of his decision, even though findings of fact are not required on motions generally. Better Valu Homes, Inc v Preferred Mutual Ins Co, 60 Mich App 315, 320; 230 NW2d 412 (1975), McCarthy v McCarthy, 74 Mich App 105, 111; 253 NW2d 672 (1977). These findings need not be elaborate or particularized but should indicate the basis of decision for appellate review. GCR 1963, 517.1, Krachun v Krachun, 355 Mich 167; 93 NW2d 885 (1959). The judge in this case gave considerable time to the hearing. He took five pages of notes and in his bench opinion he gave some of the reasons on which his decision was based, but he did not put the findings which support his conclusions in a form reviewable by this Court.
For example, did he consider the cost of additional familial obligations? If so, such was not a proper basis for reducing support payments. Renn v Renn, 318 Mich 230; 27 NW2d 618 (1947), Hensinger v Hensinger, 334 Mich 344; 54 NW2d 610 (1952), Schneider v Schneider, 30 Mich App 124; 186 NW2d 17 (1971).
These same cases, however, indicate that an increase or decrease in the father’s income is a significant fact in a determination to grant modification. Michigan law provides for modification so as "to accord with the welfare of the child within the means and ability of the father”. West v West, 241 Mich 679, 686; 217 NW 924 (1928), Hagbloom, supra, Stern v Stern, 327 Mich 567; 42 NW2d 738 (1950).
The trial court should not, however, be bound by a hard rule of actual income but should also take into consideration the father’s ability and potential to earn money. Rutledge v Rutledge, 96 Mich App 621; 293 NW2d 651 (1980), Vaclav v Vaclav, 96 Mich App 584; 293 NW2d 613 (1980).
We further find that the sum of $5 a week ordered on arrearage is insufficient. At this rate, even if regular payments were made, it would take some 19 years to eliminate the arrearage.
The case must be remanded in order that the trial judge may set forth his findings..
Another question which we should review is plaintiffs objection that the method ordered by the court to determine future support was in error. The court order entered on February 15, 1979, provides:
"IT IS FURTHER ORDERED that the child support shall be adjusted by the Friend of the Court effective January 1 of each year to a sum equal to 30% of Defendant’s net income for the prior calendar year. For purposes of this paragraph, net income shall be determined as the amount of the Defendant’s adjusted gross income as shown on Defendant’s Federal income tax return less Federal, State, and local income taxes, self-employment tax, or any other applicable tax upon the Defendant’s income. Defendant shall provide the Friend of the Court with copies of his Federal and State income tax returns for that prior calendar year; provided, however, that even if the child support determined by this method would be less than $50.00 the child support shall not be lowered below $50.00 per week.”
The plaintiff argues: (1) the «method adopted by the court is unworkable and encourages income manipulation by defendant; (2) the court’s method is tied to income alone and is therefore a clear legal error; (3) child support for a year must be based on that year and not the prior year; (4) it is legal error to set child support based on tax returns; (5) escalator clauses without a ceiling are not permitted by law and; (6) provisions for automatic adjustments by the Friend of the Court is legal error.
It must be conceded that there are some differences in decisions of the appellate courts on the use of escalator clauses and tax returns as a basis for child support judgments.
In Anneberg v Anneberg, 367 Mich 458; 116 NW2d 794 (1962), the Supreme Court upheld an escalator clause of 39.7% of gross earnings with a ceiling of $500 for the support of two children.
In Stanaway v Stanaway, 70 Mich App 294; 245 NW2d 723 (1976), a panel of this Court found that an escalator clause with no ceiling constitutes error. The opinion further finds escalator clauses per se unacceptable because they focus on the "circumstances” or income of the parent while ignoring the needs of the children. This case also condemns the use of tax returns as the tool to arrive at income.
In Hagbloom, supra, another panel of this Court also remanded an escalator clause with no ceiling, allowing the trial court to set a ceiling. Again, escalator clauses were discouraged but not forbidden. Hagbloom was a two to one decision, with Judge R. B. Burns, who authored Stanaway, concurring in the remand but holding firm against escalator clauses and tax returns in child support cases.
It is from this trilogy of cases that plaintiff argues legal error in the trial court’s order in this case.
We are aware that judges in practice have used escalator clauses in child support orders where the supporting parent has a variable income or has been the recipient of rapid promotions. This use brings about a result based on ability to pay. The real argument against escalator clauses is that they are difficult to administer if there is resistance to compliance and they are highly dependent on tax returns, which do not necessarily reflect ability to pay and do not take into account the needs of the child.
However, even though escalator clauses are sometimes used, there has been a paucity of appellate cases concerning their usage which is indicative that they do work for they are ordinarily tied to ability to pay. Escalator clauses are not appropriate in every case, but they are tools which should not be denied to judges who must find equitable solutions to difficult support problems.
The panels in both Stanaway, supra, and Hag-bloom, supra, find support in Anneberg, supra, for the requirement that there must be a ceiling on an escalator clause. We cannot find such support.
In Anneberg, the Court approved a percentage of income award which had a ceiling. When the appellant requested an award based on his earlier income, which could not be changed, the Court answered, "[t]his prayer of appellant’s, this Court will not grant”. Nowhere can we find that Anne-berg required a ceiling.
The standard enunciated in West, supra, of designing the award to accord with the welfare of the child within the means and ability of the father (or supporting parent) is a logical and fair rule to which we should adhere.
The requirement of a floor applied by the trial judge in this case has logic as protection for the child and as a hedge against manipulation and refusal to work to avoid support.
As to the balance of the plaintiffs objections, we have reviewed them carefully and find that:
. 1. The decision of the trial court provided an annual adjustment on January 1 of each year in advance. This is reasonable and workable. However, such order should consider income, ability to pay and the welfare and needs of the child, which concept encompasses more than income tax information.
2. Plaintiffs suggestion of yearly applying the support figure retroactively probably is unworkable, as arrearages could develop which might be hard to meet a year later.
3. The objection that the friend of the court will be setting child support is without merit for the carrying out of the court’s order is largely ministerial and mathematical and the annual order will be reviewed by the court, and, if there are disputes, hearings for determination can be held.
Each party shall bear his or her costs and attorney fees.
The case is remanded to the trial court for supplementation of the findings of fact in support of its conclusion that the child support order should be modified and amendment of its order in accordance with this opinion. Such supplementation and order should be accomplished within 45 days.
We retain jurisdiction. | [
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M. J. Kelly, J.
Defendant William Frank Stolze was charged with assault with intent to rob while armed contrary to MCL 750.89; MSA 28.284 and assault with intent to murder contrary to MCL 750.83; MSA 28.278, resulting from a shooting incident that occurred at Goddard’s Jewelry Store in Roseville, Michigan on September 17, 1977. On that day, the defendant and a second man were electronically permitted to enter the store through a locked front door. As a result of previous visits by defendant, the store manager’s suspicions were aroused and he armed himself and moved to a secluded place to watch the defendant. He saw the defendant draw a pistol from his pants. He ordered defendant to drop his gun, but defendant instead pointed his weapon to shoot at the manager. At that point both men attempted to fire their weapons, but each gun failed to discharge. In a subsequent exchange, the manager shot defendant in the head, from which injury he later recovered.
Defendant was referred to the Center for Forensic Psychiatry for testing, and on September 27, 1978, a hearing was held to determine defendant’s competency to stand trial. The examining physician’s report and testimony indicated that defendant could not recall the events of September 17, 1977, nor the events of several months before and after that date. The doctor’s testimony did indicate defendant understood the charges against him and the consequences of his acts. Defendandt was thus found competent to stand trial. His trial resulted in conviction on the assault with intent to rob charge and a second conviction for assault with intent to do great bodily harm less than murder, contrary to MCL 750.84; MSA 28.279. He appeals both convictions as of right.
The defendant first argues as error the trial court’s decision finding him competent to stand trial despite his amnesiac condition, a finding of the forensic examiner accepted by both parties. He contends that the amnesia rendered him incapable of providing assistance to counsel in the preparation of his defense and should have prohibited trial on the charges. MCL 330.2020(1); MSA 14.800(1020X1), MCL 330.2022(1); MSA 14.800(1022X1). We disagree.
Proceedings to determine the competency of a defendant to stand trial are governed by MCL 330.2020(1); MSA 14.800(1020X1) which provides:
"A defendant to a criminal charge shall be presumed competent to stand trial. He shall be determined incompetent to stand trial only if he is incapable because of his mental condition of understanding the nature and object of the proceedings against him or of assisting in his defense in a rational manner. The court shall determine the capacity of a defendant to assist in his defense by his ability to perform the tasks reasonably necessary for him to perform in the preparation of his defense and during his trial.”
No prior Michigan case has interpreted the above provision under a claim of amnesia covering the time of the incident. However, in People v Belanger, 73 Mich App 438, 447; 252 NW2d 472 (1977), this Court cited the test for competency to stand trial announced in Dusky v United States, 362 US 402; 80 S Ct 788, 789; 4 L Ed 2d 824, 825 (1960), as the appropriate interpretation of our own incompetency statute. The Dusky Court held:
"[T]he 'test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him’ ”.
See also Commonwealth v Lombardi, — Mass —; 393 NE2d 346 (1979), and People v Lang, 76 Ill 2d 311; 29 Ill Dec 87; 391 NE2d 350 (1979), for other cases adopting the Dusky standard.
In several Federal decisions, the question of amnesia covering the time of the criminal act has been analyzed. In United States v Borum, 464 F2d 896, 900 (CA 10, 1972), the court found no "per se deprivation of due process” in. trying a defendant claiming amnesia where the evidence of guilt was overwhelming and the loss of memory did not deprive defendant of any available defense. Another Federal court was presented with a claim of incompetency based upon drug-induced amnesia, United States v Stevens, 461 F2d 317, 320 (CA 7, 1972). In Stevens, the court quoted from United States v Sullivan, 406 F2d 180, 185-186 (CA 2, 1969), a case in which the incompetency claim rested upon the defendant’s condition as an alcoholic:
" 'If in fact [the defendant] had developed an amnesia preventing his recollection of the events of the day in question, this would not in itself be a complete defense to the charges. * * * Such a loss of memory may call for additional trial safeguards in particular circumstances, as where delay in trial has caused the loss of other evidence, but we are unwilling to hold that it is in all cases an automatic bar to prosecution for a crime amply established by competent evidence on trial.’ ”
See also United States v Mota, 598 F2d 995, 998 (CA 5, 1979).
The rationale of these cases appears sound and applicable to the case at bar. Defendant does not contend that he is not sane and rational today, but rather that his inability to remember the events bars the prosecution from bringing any criminal proceedings against him. Perhaps a case could arise where an amnesiac condition seriously prejudices a defendant and renders him incompetent to stand trial; such a situation is not presented herein. Defendant’s memory would have been of questionable help to defense counsel because of the number of witnesses and the substantial amount of extrinsic evidence implicating defendant in the assault.
Here, the defendant was able to consult with and assist his lawyer subject to the limitation imposed by the amnesia. Further, the prosecution’s case was extremely strong. Four witnesses in the store identified defendant and testified to his pulling out a gun. Under these circumstances, had defendant been able to recall the incident his testimony would have been largely cumulative. Thus, we find defendant was not rendered incompetent to stand trial by his amnesiac condition.
The defendant also alleges error in the trial court’s refusal to instruct the jury on the lesser included misdemeanor offenses of reckless discharge of a firearm, intentionally aiming a firearm without malice and assault. Review of the statutes prohibiting the above conduct, MCL 750.234; MSA 28.431, MCL 750.233; MSA 28.430 and MCL 750.81; MSA 28.276 respectively, discloses that none of the offenses carry a penalty of more than one year imprisonment. In People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975), the Supreme Court espoused the following rule limiting instructions on lesser included offenses:
"We are establishing a rule today, as a matter of policy, limiting the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense. In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less.”
See also People v Choate, 88 Mich App 40; 276 NW2d 862 (1979). Under the above rule, the trial court properly refused to instruct on these lesser offenses.
We have reviewed the remaining two issues raised by the defendant and find them to be without merit.
Affirmed. | [
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Per Curiam.
Plaintiffs brought an action against defendants for injuries and damages sustained as a result of Helen Formella’s taking the drug Tandearil. The complaint alleged malpractice on the part of Dr. Murguz in prescribing the drug. It was further alleged that Ciba-Geigy, the manufacturer and distributor of Tandearil, was jointly and severally liable for plaintiffs injuries by failing to adequately warn Dr. Murguz of the dangers of the drug and by promoting its use.
After the first day of trial, plaintiffs entered into a settlement agreement with Dr. Murguz. He was dismissed from the action and no appeal has been taken therefrom.
Ciba-Geigy moved for a directed verdict of no cause of action at the close of plaintiffs’ proofs. The motion was granted by the trial court and plaintiffs appeal.
At trial, Dr. Murguz stated that Helen Formella, an elderly woman, came to him on May 5, 1973, complaining of low back pain. He diagnosed osteoarthritis and prescribed Tandearil. She returned to Dr. Murguz’s office in two weeks, at which time he continued the drug treatment. No blood tests were conducted at this time or at any time during her treatment.
On June 19, 1973, Mrs. Formella called Dr. Murguz to complain of multiple bruises and tiredness. He stated that he immediately suspected that Tandearil had caused her to develop a blood dyscrasia. He ordered her to stop taking the drug and to report to a hospital for tests. His supicions were confirmed. Mrs. Formella was extremely ill for several weeks from the aplastic anemia which had occurred as the direct result of taking Tandearil.
Plaintiffs first assign as error the trial court’s ruling that evidence of Ciba-Geigy’s 1965 to 1973 marketing plans for Tandearil was inadmissible. The court ruled that evidence of those plans was irrelevant. Plaintiffs allege that evidence of those plans was relevant in that such evidence displayed the strategy of Ciba-Geigy in overpromoting the drug. Plaintiffs argue, in particular, that the information given to Dr. Murguz between 1965 and 1969 by "detail men”, salespersons who call on doctors in order to promote the use of that company’s drugs, is relevant in determining whether the drug company was negligent in failing to adequately warn him of the hazards of the drug.
Although we find plaintiffs’ arguments plausible in theory, we hold that the trial court did not err in excluding the evidence in this case. Dr. Murguz testified that he read the Physician’s Desk Reference manual (PDR) in part the first time that he prescribed Tandearil in 1965. After the first prescription, he no longer looked at the PDR or the quarterly supplements prior to prescribing the drug. Instead, he relied upon the statements of Ciba-Geigy detail men, who told him that Tandearil was a good drug "with a safety margin”. He stated that if a drug is on the market and being "detailed”, it must be safe.
It is obvious from Dr. Murguz’s testimony that he knew Tandearil, like all prescription drugs, has some dangers that must be guarded against by the physician. He knew that taking Tandearil for a lengthy period of time could cause blood dyscrasia, yet he never conducted a blood test on Mrs. Formella or read the PDR. Indeed, he knew from the moment Mrs. Formella phoned him, describing the symptoms, that she had contracted the disease from taking Tandearil.
We conclude from his testimony that the negligence of Dr. Murguz is the intervening, independent and sole proximate cause of Mrs. Formella’s injuries. Even if Ciba-Geigy had been negligent in overpromoting the use of the drug through its detail men, that negligence was not the proximate cause of Mrs. Formella’s injury. Love v Wolf, 226 Cal App 2d 378; 38 Cal Rptr 183, 196 (1964). Dr. Murguz simply chose to ignore what he knew: that the use of Tendearil over several weeks could cause blood dyscrasia.
In addition, our review of the record reveals that there is no evidence that the drug was overpromoted. Dr. Murguz stated he was told by detail men that the drug was good "with a safety margin”. Although some of the early literature tends to play down the possible side effects of the drug and recommends its use for extended periods of time, all of the literature submitted to this Court includes a warning that blood tests should be frequently conducted on the patient. Therefore, plaintiffs have failed to meet the burden of showing that the evidence is relevant.
Finally, plaintiffs argue that the trial court erred in granting the motion for a directed verdict. They assert that the testimony of their expert witness, Dr. Lerman, was sufficient to allow the question of negligence to go to the jury. Dr. Lerman stated that he felt the PDR warning and package inserts were lengthy and inconsistent, thereby rendering them inadequate. He cited the example of the warning that the drug should not be given to persons who are senile as being contradictory with the later warning that the drug should not be used for over a week in persons over age 60. Dr. Lerman also testified that he did not prescribe the drug to people over age 60 because the PDR and package insert information warn against such use. He concluded that the warnings were adequate, if read.
The standard of review of directed verdicts is outlined in Cody v Marcel Electric Co, 71 Mich App 714, 717; 248 NW2d 663 (1976), as follows:
"Directed verdicts, particularly in negligence cases, are viewed with disfavor. When a fact question is presented upon which reasonable persons could reach differing conclusions, the trial judge may not take the question from the jury. In deciding whether the trial court erred in entering a directed verdict, we review all the evidence presented to determine whether a question of fact existed. In so doing, we view the evidence in a light most favorable to the nonmoving party, granting him every reasonable inference and resolving any conflict in the evidence in his favor. If the evidence viewed in this manner establishes a prima facie case, we must reverse the trial court’s grant of a directed verdict. Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975).”
Plaintiffs’ cause of action against Ciba-Geigy is not based upon any defect in the drug but upon the failure of the drug company to adequately warn physicians of the hazards of the drug. When liability turns on the adequacy of a warning, the issue is one of reasonable care. Smith v E R Squibb & Sons, Inc, 405 Mich 79, 90; 273 NW2d 476 (1979). The adequacy of the warning is a question of fact, properly left to the jury. Gutowski v M & R Plastic & Coating, Inc, 60 Mich App 499, 506-508; 231 NW2d 456 (1975).
In the case at bar, we agree with the trial court’s conclusion that there is no evidence that Ciba-Geigy faffed to adequately warn physicians, through the package inserts, PDR and other publications, that the drug had possible harmful effects. The materials stated that blood tests should be conducted weekly for persons who were aged. The drug was contraindicated for persons with drug allergies, such as Mrs. Formella’s allergy to penicillin. It was recommended that older people not take the drug for more than a week. Dr. Lerman’s testimony, the only possible evidence presented that indicated Ciba-Geigy may have been negli gent, revealed that the warning was adequate, if read.
Furthermore, the fact Dr. Murguz failed to read the package inserts and PDR negates any possible negligence on the part of Ciba-Geigy in not emphasizing the hazards in those publications. Again, we find that Dr. Murguz’s negligence is the intervening, independent and sole proximate cause of Mrs. Formella’s illness.
Affirmed, costs to defendant. | [
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G. R. McDonald, J.
On January 24, 1979, defendant Jay Howard Minier was convicted by Cheboygan County Circuit Judge Richard G. Boyce, sitting without a jury, of delivery of marijuana, MCL 335.341(l)(c); MSA 18.1070(41)(l)(c).* He was sentenced to two years probation, plus costs of $240, and appeals as of right.
On June 8, 1978, Officer Marilyn McGuire of the Wayne County Sheriffs Department Narcotics Squad, on special duty in Cheboygan County, met defendant in the early morning hours at the Gold Front Lounge. The two engaged in conversation and McGuire asked defendant if he could get her some "grass”. Defendant told the officer to meet him at Snoopy’s Bar, where he worked, the following night. McGuire met with defendant as requested and again inquired about the drug. During the course of the evening McGuire went outside with defendant, where they met two other persons, Chip and Bill. After a marijuana cigarette was passed around, defendant indicated to Chip that the grass was good and he would buy a bag. Chip provided defendant with a bag for $30 and told defendant it could be resold for $35. Defendant gave the bag to McGuire. After re-entering the bar, defendant paid Chip with money from the cash register. McGuire then asked defendant if the bag was for her, indicating that she wanted all of it. McGuire testified that she paid defendant $30 for the marijuana, while defendant stated that he could not remember whether the drug was paid for or not.
On appeal, defendant initially contends that he was coerced into waiving his right to a jury trial by the Chamblis rule regarding instruction on lesser included offences. In People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), the Supreme Court held that, where a charged offense is punishable by more than two years incarceration, the jury may not be instructed on lesser included offenses for which the maximum punishment is incarceration of one year or less. The Court reasoned:
"As a matter of policy people who commit serious crimes should be punished for those offenses, and those who did not commit such serious crimes should not be tried for those crimes only to be found guilty of a much lower offense.” Id., 428.
Subsequently, in People v Brown, 87 Mich App 612; 274 NW2d 854 (1978), this Court held the Chamblis rule inapplicable to bench trials. Brown recognized that Chamblis sought to prevent jury confusion and compromise that could result from instruction on a wide array of lesser included offenses. These dangers are not present in a bench trial. Id., 616-617. Because a defendant still retains the jury trial option, the threat of prosecutorial harassment through overcharging remains guarded against after Brown.
Defendant waived a jury trial to allow the court to consider two lesser included offenses, possession of marijuana, MCL 335.341(4)(d); MSA 18.1070(41)(4)(d), and distribution of marijuana without remuneration, MCL 335.346(2); MSA 18.1070(46)(2). Although defense counsel stated this reason on the record, waiver was made before the trial court actually had the opportunity to rule on whether Chamblis would apply. While it would have been preferable for trial counsel to have requested a court ruling prior to waiver, because a fundamental right is involved we consider the question on appeal. Clearly, Chamblis was the rule of law in Michigan at the time of trial and, on its face, would have precluded instructions on the lesser offenses.
Defendant relies primarily on United States v Jackson, 390 US 570; 88 S Ct 1209; 20 L Ed 2d 138 (1968), to support his claim that the waiver was coerced. In Jackson, the United States Supreme Court invalidated the death penalty provision of the Federal Kidnaping Act, 18 USC 1201(a). The act limited imposition of the death penalty to juries, making the risk of death the price for asserting the jury trial right. This result could not be justified by the provision’s underlying objective, avoidance of the more drastic alternative of mandatory capital punishment in every case.
"The question is not whether the chilling effect is 'incidental’ rather than intentional the question is whether that effect is unnecessary and therefore excessive. In this case the answer to that question is clear. The Congress can of course mitigate the severity of capital punishment. The goal of limiting the death penalty to cases in which a jury recommends it is an entirely legitimate one. But that goal can be achieved without penalizing those defendants who plead not guilty and demand jury trial. In some States, for example, the choice between life imprisonment and capital punishment is left to a jury in every case — regardless of how the defendant’s guilt has been determined. Given the availability of this and other alternatives, it is clear that the selective death penalty provision of the Federal Kidnaping Act cannot be justified by its ostensible purpose. Whatever the power of Congress to impose a death penalty for violation of the Federal Kidnaping Act, Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right.” Id., 582-583.
The Chamblis rule also has a legitimate purpose: to protect the defendant and the state by discouraging overcharging and preventing jury confusion and compromise. The question is whether any chilling effect on the exercise of the jury right is unnecessary and therefore excessive. Our analysis leads us to the conclusion that the effect is minimal.
The alternative that confronted defendant is readily distinguishable from that in Jackson. There, the defendant faced a possible death sentence, and the pressure toward jury waiver was immense. Here, the ramifications of exercising the jury right were not so severe. Conceivably, the evidence might have shown a lesser offense, but not the charged offense of delivery. It is possible that a jury would convict in those circumstances rather than release the defendant. However, that possibility is extremely speculative and can hardly be compared to the prospect of a possible death sentence. It is noteworthy that under the statute invalidated in Jackson the death penalty could be avoided by waive. Here, while waiver permits consideration of lesser offenses, it brings no assurance that conviction under the charged offense will not occur. Thus, the impact of the Chamblis rule can hardly be described as coercive. Nor is it needless. The unnecessary encouragement of waiver in Jackson could have been cured by Congress by leaving the choice between capital punishment and imprisonment to a jury in all cases, or by other alternatives. Id., 582-583. Chamblis could be applied to both jury and bench trials to remove any tendency of encouraging jury waiver. However, this would have left defendant in no better position than that which he was in. Likewise, disgarding the Chamblis rule would carry its own cost. Neither move is justified.
As the United States Supreme Court noted in Corbitt v New Jersey, 439 US 212, 218; 99 S Ct 492, 497; 58 L Ed 2d 466, 474 (1978), "not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid”. The Chamblis rule exerts only minimal influence on the right to trial by jury, and cannot be considered to have an unnecessary or excessive effect.
Defendant also argues on appeal that the prosecution insinuated at trial that defendant was involved in large-scale drug transactions. During the direct examination of Officer McGuire, the following exchange took place:
”Q. Well, what then took place as he returned with this bag?
"A. He came back with the bag and he handed the bag to Mr. Minier. Chip then stated to Mr. Minier that it would be $30 for the bag of grass. He also stated that Mr. Minier would be able to resell it for $35. The subject Chip and Mr. Minier were talking about a swap meet that was to take place in Traverse City on June 11. And the subject Chip asked Mr. Minier if he would like some grass to sell there, that he had about half a pound. And at the time Mr. Minier said — did not indicate whether or not he was going to want part of half a pound.
"Q. Do you recall what it was that Mr. Minier indicated about the half pound?
"A. That he would talk to him about it later.”
No objection was made to the testimony and, in fact, defense counsel made further inquiry on cross-examination. Absent manifest injustice matters unobjected to at trial are not preserved for review. People v Carroll, 396 Mich 408; 240 NW2d 722 (1976). No injustice is present here. There is no indication that the prosecutor deliberately tried to inject prejudice into the trial or that the testimony in question influenced the court’s ultimate verdict. The other evidence against defendant was overwhelming. Testifying on his own behalf, defendant admitted that the transfer had taken place, but indicated that he could not remember if money was exchanged. Defendant, in effect, conceded that delivery had occurred, so any possible error was harmless. People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978).
Defendant’s final claim on appeal is that reversal is mandated because of the trial court’s denial of defendant’s motion for disqualification of the judge. The judge had previously presided over defendant’s entrapment hearing, at which the parties presented much of the same evidence that came out at trial.
Disqualification of a trial judge is warranted where the record discloses actual bias on the part of the judge or where the judge expresses a preconceived notion as to guilt or innocence. People v Gibson (On Remand), 90 Mich App 792, 796; 282 NW2d 483, 486 (1979), GCR 1963, 405.1(3). However, there must be prejudice or bias in fact. People v Rider, 93 Mich App 383, 388; 286 NW2d 881, 883 (1979). Since defendant demonstrated neither below, the court correctly denied the motion for disqualification. On appeal, defendant has failed to show that the trial court was privy to prejudicial evidence or evidence from which we could presume bias. The present situation is dissimilar in this respect to those cases in which the trial court had access to information not ultimately revealed at trial. See e.g. People v Ramsey, 385 Mich 221; 187 NW2d 887 (1971). The trial court did not err in denying the motion for disqualification.
Affirmed.
Repealed and replaced by MCL 333.7401(1); MSA 14.15(7401X1).
Repealed and replaced by MCL 333.7403; MSA 14.15(7403); and MCL 333.7410(2); MSA 14.15(7410X2).
We do not speculate at this time whether the exception to Chamblis enunciated subsequent to this trial in People v Miller, 406 Mich 244; 277 NW2d 630 (1979), would have permitted the instructions in question.
Situations may arise where the Chamblis rule encourages trial by jury. A defendant may anticipate evidence clearly showing the charge against him to be unjustified, while pointing to guilt of a lesser included crime. Such a defendant could be benefited by an "all or nothing” verdict. | [
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Mackenzie, J.
On January 10, 1974, plaintiffs filed a complaint in Genesee County Circuit Court, alleging that plaintiff Robert M. Whitney had suffered injury due to the medical malpractice of defendants Dr. J. Murray Day and certain unnamed Hurley Hospital employees. After comple tion of trial in Genesee County Circuit Court, the jury returned a verdict of no cause of action against the defendants. Plaintiffs now appeal as of right.
At trial, the testimony indicated that plaintiff Robert Whitney had been a patient of defendant Day in 1961, when plaintiff was surgically treated for a disc problem at the L-4,5 level of his spine. In 1971, following ten years of good health, plaintiff returned to Dr. Day with renewed back pain after suffering a fall while bowling. At this point, defendant Day performed a myelogram on plaintiff which involved the injection of radioactive dye in the spinal column which, on an x-ray, would pinpoint disc problems. The myelogram performed in 1961 showed a block at L-4,5. A myelogram performed November 23, 1971, showed an extradural block at the L-3,4 level due to a herniated nucleus pulposus. On November 24, 1971, surgery was performed and a ruptured disc was removed from the L-4,5 level. After this operation, a partial success was effected, but plaintiff still complained of pain and numbness in his lower extremeties.
A third myelogram was performed and a small defect was found at the L-3,4 level. Consequently, plaintiff agreed to a third operation. However, this operation did not occur as scheduled because a cardiac irregularity was found once plaintiff was taken to the operating room. After a cardiac specialist was called in to correct the problem, plaintiff was cleared for surgery.
On January 18, 1972, plaintiff was taken to the operating room. Anesthesia was administered by a nurse anesthetist, and Dr. Day had just begun performing the operation when plaintiff suffered a cardiac arrest. After plaintiff’s heart was resuscitated, the incision was closed without completing the operation and plaintiff was placed in intensive care. The cardiac problems plaintiff suffered led Dr. Day to advise the plaintiff that he could not and would not again operate, absent a life or death situation. Consequently, plaintiff continues to suffer pain and numbness in his lower back and legs; he cannot walk without artifical support; he has not been able to resume working.
At trial, plaintiffs essentially claimed that defendant Day was negligent in not removing the L-3,4 defect when he operated on the L-4,5 defect. Plaintiffs further claimed negligence on the part of the hospital, because the anesthesia was administered by a nurse anesthetist rather than a physician specializing in anesthesiology.
On appeal, plaintiffs first contend that the trial court gave an erroneous instruction concerning the standard of care of a nurse anesthetist. In its instructions to the jury, the trial court stated as follows:
"In many cases, anesthetics are administered by nurses. Nursing negligence is defined as 'failure to apply that degree of skill and learning in treating and nursing a patient which is customarily applied in treating or caring for the sick or wounded who are suffering in the same community.’ A nurse administering an anesthetic is held to the standard of care based on the skill and care normally expected of those with the same education and training.”
Plaintiffs allege that the instruction constituted a malpractice instruction, and thus violated the Michigan Supreme Court holding in Kambas v St Joseph's Mercy Hospital of Detroit, 389 Mich 249; 205 NW2d 431 (1973). In Kambas, the Court held that nurses may not be sued for malpractice, and, consequently, the two-year statute of limitations for malpractice was inapplicable to actions alleging negligence on the part of a nurse. The Court based its decision on the holding in Richardson v Doe, 176 Ohio St 370; 199 NE2d 878 (1964). According to the Richardson court:
"There is no compelling reason for a nurse to be given the protection of a one-year statute of limitations. A nurse, although obviously skilled and well trained, is not in the same category as a physician who is required to exercise his independent judgment on matters which may mean the difference between life and death. A nurse is not authorized to practice medicine. Section 4723.33, Revised Code. Her primary function is to observe and record the symptoms and reactions of patients. A nurse is not permitted to exercise judgment in diagnosing or treating any symptoms which the patient develops. Her duty is to report them to the physician. Any treatment or medication must be prescribed by a licensed physician.” 176 Ohio St 370, 373.
We are unable to conclude that the instruction given by the trial court in the instant case is erroneous under Kambas. The standard of care set forth by the trial court was taken verbatim from 8 Am Jur Proof of Facts 2d, Anesthetist Supervision and Control, § 2, p 592. As noted by the trial court, a nurse anesthetist possesses greater qualifications than an ordinary nurse. Nurse anesthetists are licensed as nurses, and then they are certified after an 18-month period of study in their specialty. Thus, they are professionals who have expertise in an area which is akin to the practice of medicine. Because a nurse anesthetist possesses responsibilities greater than those possessed by an ordinary nurse, and because those responsibilities lie in an area of expertise in which some physicians receive full residency training, we conclude that it was not error for the trial court to set forth a standard which examines the treatment given "in the same community”.
It is noted that in response to Kambas, the Legislature amended. MCL 600.5838; MSA 27A.5838, so that the malpractice statute of limitations, and as a consequence, malpractice actions, are applicable to nurses effective July 9, 1975. Thus, the plaintiffs’ reliance on Kambas is misplaced.
Plaintiffs next contend that the trial judge erred when, in response to a jury request, he read to the jury only certain portions of defendant Day’s testimony. We conclude this argument lacks merit.
As a general rule, when a jury requests that testimony be read back to it, both the reading and the extent of the reading are matters within the sound discretion of the trial judge. People v Howe, 392 Mich 670, 675; 221 NW2d 350 (1974). The trial court is not obliged to reread a witness’s entire testimony. People v Burks, 48 Mich App 484, 487; 210 NW2d 495 (1973). In the instant case, the trial court did not abuse its discretion in failing to read certain portions of defendant Day’s testimony. The portions of the testimony which were read adequately summarized Day’s explanation of why he failed to remove the L-3,4 defect when he removed the L-4,5 defect from the plaintiff’s spine.
Plaintiffs next argue that the trial court erred when it told the jury that there had been no testimony on the definitions of "incise” and "excise”. We disagree that error occurred. Although the record contains layman’s references to the term "excise”, there was no specific question as to medical definitions of "incise” or "excise”. Absent such definitions, we are unable to conclude that the court’s refusal to use the definitions designated by plaintiffs’ counsel was reversible error.
Plaintiffs next contend that the tried court improperly precluded them from calling a Dr. Ojeda as a witness. We disagree.
According to Rule 8.5 of the Local Court Rules for the 7th Judicial Circuit, Genesee County, Michigan, each party must submit a list of all witnesses known to the party or its attorney having knowledge of the facts of a case irrespective of whether they are expected to testify. Failure to include all known witnesses operates to bar their testimony at trial, except for good cause shown. Dr. Ojeda was not listed as a witness.
Initially, we note that the fact that plaintiffs listed "unnamed agents of the hospital” on the witness list did not meet the requirement of Rule 8.5. Hundreds of agents are employed by the hospital and thus the defendants are not put on notice as to which agents will be called at trial.
The trial court held that plaintiffs had an opportunity in 1975 to ascertain the identity of Dr. Ojeda, but failed to do so. It therefore appears that plaintiffs were unable to establish good cause for failing to list the witness. The trial court also noted that the testimony of the witness was of little importance to the case. We are unable to conclude that the trial judge’s ruling was an abuse of discretion.
Plaintiffs lastly contend that the trial court improperly instructed the jury that if it found that the hospital’s nurses were negligent, it "may” find the hospital liable. Plaintiffs failed to object at trial, however, and therefore this issue has not been preserved, for appeal. See Lamb v Oakwood Hospital Corp, 41 Mich App 287, 289; 200 NW2d 88 (1972).
Affirmed. Costs to defendants-appellees. | [
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A. C. Miller, J.
This is a suit arising out of an employment arrangement, the principal issue being whether it was a "fire at will” contract. On the day of trial, a motion for summary judgment under GCR 1963, 117.2(3) was granted. The court found that as a matter of law the contract was terminable at will. Compensation was granted to the date of formal termination only.
Plaintiff Hollowell and defendants, Decision Consultants, Inc., and Gary K. Brown, entered into an agreement whereby defendant corporation, Career Decisions, Inc., was to be formed as an employment agency. Plaintiff was to receive a starting salary of $24,000 per year, plus ten percent of the profits for her services as vice-president of the new corporation. Plaintiff had experience in the employment agency field. Defendant Brown was to be the president of the new corporation, while both plaintiff and Brown were to be directors. Plaintiff was also to purchase ten percent of the new corporation’s stock. Plaintiff and Brown anticipated the new corporation would start operations in January of 1978. Plaintiff started to establish the new employment agency, but in March of 1978, defendant Brown wrote to plaintiff indicating his dissatisfaction with the performance of both Career Decisions and plaintiff. Defendant Brown told plaintiff that she would no longer be compensated for her services. While the firing was for general incompetence, one principal disagreement was whether the new business should engage in the placement of employees on a temporary basis to generate immediate income, as well as permanent placement. At a subsequent board of directors meeting, defendant Brown criticized plaintiff’s performance. Plaintiff resigned as a member of the board of directors. Plaintiff initiated the present lawsuit in Oakland County Circuit Court.
Plaintiff’s amended complaint against defendants alleged: 1) breach of contract; 2) unjust enrichment; 3) fraud; and 4) slander. Summary judgment pursuant to GCR 1963, 117.2(3) was granted as to the first count, whereas summary judgment pursuant to GCR 1963, 117.2(1) was granted as to the remaining three counts. Plaintiff challenges the lower court’s resolution of each count.
I. Breach of Contract
As a corollary to plaintiff’s contention that a breach of contract claim existed against defendants, plaintiff argues that the record before the lower court was sufficient to establish a joint venture and defendants’ breach of the fiduciary duties associated with that joint venture. We note that plaintiffs amended complaint did not seek to establish liability on the basis of a joint venture. Plaintiffs argument on appeal concerning a joint venture is immaterial. Plaintiff’s ability to defeat a summary judgment motion was predicated on the contract claim appearing in plaintiffs complaint.
Summary judgment pursuant to GCR 1963, 117.2(3) requires reference to evidence beyond the pleadings to test the motion. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974). Courts are said to be liberal in finding that a genuine issue exists. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). Courts will give the benefit of any reasonable doubt to the opposing party and the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Id. The affidavit that must be filed with such a motion identifies those facts which may appear contested on the pleadings, but which cannot be disputed according to the moving party. The party opposing the motion must then come forward with a showing that there is truly a dispute. If no such showing is made, summary judgment is granted. 1 Honigman and Hawkins, Michigan Court Rules Annotated, (2d ed), p 362 and 1972 Supp, pp 81, 83. The general consideration is whether there is factual support for the claim. Brooks v Reed, 93 Mich App 166; 286 NW2d 81 (1979).
The lower court held that the agreement between plaintiff and defendants was one terminable at will according to the undisputed facts and that defendants, therefore, were entitled to summary judgment. Defendants argue on appeal that this result was proper since plaintiff never submitted an affidavit to defend against defendant’s motion and affidavit. It was not necessary for plaintiff to file an affidavit opposing summary judgment. Topps-Toeller, Inc v City of Lansing, 47 Mich App 720; 209 NW2d 843 (1973), lv den 390 Mich 788 (1973). Plaintiff was allowed to rely upon depositions in the record. Goldman v Loubella Extendables, 91 Mich App 212; 283 NW2d 695 (1979), lv den 407 Mich 901 (1979).
However, this Court’s review of the deposition relied upon indicates that the allegations contained within the plaintiff’s complaint were not supported by the deposition. The facts established by plaintiff’s own deposition indicate that a breach of contract claim could not be sustained.
It is a general rule of law that an employment contract for an indefinite period is terminable at the will of either party and will not sustain a breach of contract action. Rowe v Noren Pattern & Foundry Co, 91 Mich App 254; 283 NW2d 713 (1979), Milligan v The Union Corp, 87 Mich App 179; 274 NW2d 10 (1978), McMath v Ford Motor Co, 77 Mich App 721; 259 NW2d 140 (1977). Our reading of the Supreme Court’s recent decision in Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), indicates that this is still the general rule. In Toussaint, the Supreme Court dealt with an employment situation where the employer had made representations that employees would not be discharged without good cause. Even though the term of employment in Toussaint was indefinite, the majority of the Supreme Court held that the employer was bound by its own representation and could not terminate plaintiff’s employment without good cause.
The undisputed facts in the case at bar are inapposite. Plaintiff did not allege in her complaint or testify in her deposition that she was told that she would only be terminated for a good cause. Rather, plaintiff’s complaint alleged that her employment was to be "indefinite, but with a minimum of terms of one year or more”. (Emphasis added.) It is questionable whether this allegation would constitute a legal claim upon which relief could be granted pursuant to GCR 1963, 117.2(1). A term of "one year or more” is hardly definite.
In any case, we find that the trial court properly granted summary judgment pursuant to GCR 1963, 117.2(3). Plaintiff stated in her deposition that her relationship with Career Decisions was to be on an "ongoing affiliation”. When plaintiff was asked whether there was a term for her employment, she responded, "There was no specific time involved at any point”. Plaintiff was bound by her own admissions. Gamet v Jenks, 38 Mich App 719; 197 NW2d 160 (1972), Stefan v White, 76 Mich App 654; 257 NW2d 206 (1977). Plaintiffs admission revealed a clear hiatus in essential proof. Rizzo, supra. Plaintiff sought to establish liability based upon a breach of contract, yet plaintiffs own admission indicated that her term of employment was indefinite. Since the contract was terminable at will, she could not establish liability through breach of contract. Milligan, supra. Furthermore, it was plaintiff who breached the contract according to the admissions in her own deposition:
"Q. Did you disagree strongly with Brown after you were hired?
"A. Yes.
"Q. What was the nature of the disagreement?
"A. Mr. Brown felt that the option to hire function should be conducted by the employment agency.
"A. I thought it was entirely inappropriate * * *.
"Q. Why?
"A. * * * you have an ongoing responsibility for the performance of that person.”
This was a direct and substantial breach of the written agreement between the parties dated December 6,1977. It provided:
"The areas of operation of the business should include the placement of Data Processing personnel for fee, or even on an option to hire basis for employers who do not pay fees. Other areas of placement activity should be self-supporting, or eliminated.”
As was noted in Toussaint, supra, 624,
"The employer’s standard of job performance can be made part of the contract.”
It was in this contract and admittedly breached.
Plaintiff claims on appeal that she refused to operate on an "option to hire” basis since this would have been illegal or unethical. Plaintiffs claims are not borne out by her deposition. In her deposition, plaintiff objected because she did not feel capable of supervising data processing employees on a continuing basis. So her own deposition does not support her claim. Count I was properly disposed of on a motion based upon the law and undisputed facts.
II. Unjust Enrichment
In the second count of her amended complaint plaintiff alleged that defendants had been unjustly enriched by receiving all of the business, goodwill and other "intangible value” of Career Decisions after plaintiff left. Plaintiff argues that through certain representations, defendants Brown and Decision Consultants persuaded plaintiff to set up an employment agency, then simply seized the business from her.
The process of imposing a "contract-in-law” to prevent unjust enrichment is an activity which courts should approach with some caution. The essential elements of such a claim are (1) receipt of a benefit by the defendant from the plaintiff and (2) which benefit it is inequitable that the defendant retain. Moll v County of Wayne, 332 Mich 274; 50 NW2d 881 (1952), Buell v Orion State Bank, 327 Mich 43; 41 NW2d 472 (1950), Atlas Concrete Pipe, Inc v Roger J Au & Son, Inc, 467 F Supp 830 (ED Mich, 1979).
The lower court granted defendants’ summary judgment motion on the basis that plaintiff’s count in unjust enrichment failed to state a claim upon which relief could be granted. A motion based upon GCR 1963, 117.2(1) tests the legal sufficiency of the claim. Every well-pled allegation is assumed true and the motion is properly granted only where the plaintiff’s claims are so clearly unenforceable that no factual development could possibly justify a right to recover. Koenig v Van Reken, 89 Mich App 102; 279 NW2d 590 (1979), Southland Corp v Liquor Control Comm, 95 Mich App 466; 291 NW2d 84 (1980).
Plaintiff’s complaint was not insufficient as a matter of law. Plaintiff alleged that defendants Brown and Decision Consultants effectively took over the employment agency she established. While plaintiff did not specifically allege that this was inequitable, this could easily be inferred if plaintiff’s remaining allegations were assumed true. Rubino v Sterling Heights, 94 Mich App 494; 290 NW2d 43 (1979). Plaintiff specifically alleged unjust enrichment. Contra, Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 71 Mich App 177; 247 NW2d 589 (1976). Summary judgment pursuant to GCR 1963, 117.2(1) was consequently inappropriate. However, the lower court’s failure to indicate the proper subrule is harmless in the context of the present appeal.
Defendants filed a motion for summary judgment pursuant to GCR 1963, 117.2(3). A review of the record indicates that summary judgment was appropriate under this subrule. It is once again the plaintiff’s own admission and omissions in her deposition which form a hiatus in her essential proofs. Plaintiff testified that she received her salary up to a month before she resigned. Plaintiff failed to offer any proof to indicate that the value of the services she performed exceeded the compensation she received. Plaintiff’s complaint listed the various services she performed in trying to start the employment agency. All of these activities would appear to be within the scope of her duties for which an agreed upon compensation was paid. In fact, plaintiff admitted that her compensation exceeded the amount she had previously been receiving.
Secondly, plaintiff failed to offer any factual support that defendants actually benefited from her services. Plaintiff admitted that she retained her employment files. There was no dispute with the fact that Career Decisions quickly went out of business after plaintiff left. In sum, plaintiff failed to establish factual support that the benefit conferred upon defendant exceeded her compensation.
No unfair surprise or prejudice is present since defendants’ motion was based upon GCR 1963, 117.2(3) and plaintiff was consequently put on notice that she would have to factually support her unjust enrichment claim. Todd, supra.
III. Fraud and Deceit
The third count of plaintiff’s complaint alleged fraud and deceit. The Supreme Court has delineated the following elements as establishing fraud and deceit.
"(1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.” Hyma v Lee, 338 Mich 31, 37; 60 NW2d 920, 924 (1953).
The lower court granted a summary judgment on the basis of a failure to state a claim upon which relief could be granted. GCR 1963, 117.2(1). While it is true that summary judgment for failure to state a claim is rarely appropriate in cases involving state of mind, such as the scienter requirement of fraud, Whalen v Bennett, 67 Mich App 720; 242 NW2d 502 (1976), it was properly granted in the case at bar. Plaintiff failed to allege the scienter requirement for fraud. More specifically, plaintiff failed to allege that defendants’ statements were made knowingly and falsely or in reckless disregard for their truth. Plaintiff’s complaint alleged no more than a future promise which was not fulfilled. There is no allegation that defendant Brown’s statement concerning the financial condition of Decision Consultants was a knowingly false statement. As such, plaintiff did not properly allege a claim upon which relief could be granted. Kirk v Vaccaro, 344 Mich 226; 73 NW2d 871 (1973), Michigan National Bank of Detroit v Holland-Dozier-Holland Sound Studios, 73 Mich App 12; 250 NW2d 532 (1976). Furthermore, under GCR 1963, 117.2(3) the motion was properly granted because again the depositions do not support the allegations. There is no indication that plaintiff was ever told that defendant had ample finances. Her testimony is that the new corporation would have a capitalization of $25,000, $1,000 of which was to be contributed by plaintiff, and a line of credit; Le., a loan of $25,000 from the parent corporation. She states that she was told that "Decision Consultants would loan the new business twenty-five thousand dollars for a period of either two or three years”. There is no claim that this was a misrepresentation. There is no indication that the new corporation was financially secure. It was obviously a "shoe-string” operation. (Her own salary would consume 1/2 of available cash in one year.) Again, her own testimony does not support the allegations of her complaint. The motion dismissing Count III was properly granted.
IV. Slander
Count IV of plaintiffs complaint alleged that defendant Brown slandered plaintiff in a board of directors meeting on April 24, 1978. The lower court concluded that plaintiff failed to allege a claim upon which relief could be granted. Once again, we conclude that summary judgment was proper, but under GCR 1963, 117.2(3), not 117.2(1). The allegations contained within the plaintiffs complaint were sufficient to spell out the essentials for a cause of action for slander. If more than mere conclusions are alleged, the slander need not be spelled out verbatim. Pursell v Wolverine-Pentronix, Inc, 44 Mich App 416; 205 NW2d 504 (1973). However, summary judgment was proper pursuant to GCR 1963, 117.2(3) since plaintiff acknowledged in her deposition that she requested the board of directors to discuss defendant Brown's dissatisfaction with her performance. Plaintiff requested the very conversation which she alleges slandered her. There was no statement made at the board meeting, according to plaintiffs own allegations, that did not relate to her employment. Under the circumstances, we find plaintiff consented to the slander of which she complains. A communication regarding a person is absolutely privileged if it is consented to. Merritt v Detroit Memorial Hospital, 81 Mich App 279; 265 NW2d 124 (1978), Schechet v Kesien, 3 Mich App 126; 141 NW2d 641 (1966).
Alternatively, in Bufalino v Maxon Brothers, Inc, 368 Mich 140, 153; 117 NW2d 150 (1962), the ' Supreme Court cited the following:
"A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty, and is not restricted within any narrow limits.”
Plaintiffs’ complaint does not allege any facts from which the existence of actual malice is inferable; nor do the proofs presented support any showing of malice. See also Hayes v Booth Newspapers, Inc, 97 Mich App 758; 295 NW2d 858 (1980).
Because defendant Brown was entitled to a qual ified privilege in the statement made at the board meeting regarding the performance of Career Decisions, Inc., and because plaintiff has not alleged specific facts supporting malice such that would remove the statements from the qualified privilege, the grant of summary judgment for failure to state a cause of action was proper as to defendant Brown. No issue regarding the other corporate defendant has been raised with reference to slander. Summary judgment as to Count IV was also properly granted.
Affirmed.
It is unfortunate that busy urban circuits feel required to dispose of matters "summarily” on motion for summary judgment — particularly when the matter is at the trial stage. It is "penny-wise, dollar-foolish” in many instances both in court time and litigant expense.
The trial court’s summary judgment order awarded plaintiff one month’s salary to compensate plaintiff for the one month she worked without receiving her pay.
Plaintiffs complaint read in pertinent part as follows:
"Slander
“19. On or about April 24, 1978, at Southfield, Michigan, at a meeting purportedly convened at plaintiffs request to discuss enforcement by plaintiff and by CDI of their rights under the contract described in Count I, which meeting was attended by all directors of CDI, the attorneys for CDI and for plaintiff, and the secretary for defendants’ attorneys; defendant Brown accused plaintiff of having lied about her employment and business background and experience and accused plaintiff of incompetence in her profession.
"20. Said accusations were wholly false and were known by defendant Brown to be false or in the alternative were made recklessly without regard to the truth.
"21. Said accusations were made maliciously with the intent of humiliating and intimidating plaintiff whom defendant Brown knew to be in a highly traumatized emotional state, for the purpose of extricating defendants from their contractual obligations without performance thereof by discouraging plaintiff from pursuing her legal rights and remedies and for the gratification of said defendant’s overwhelming need to control and manipulate others and/or for other unlawful purposes the nature, scope, and depth of which are unknown to plaintiff.
"22. As a direct and proximate cause of said defendants said slander, plaintiff suffered severe and prolonged emotional trauma and damage.” | [
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Cynar, P.J.
Defendants George Billups and Robert Barnes were charged with, and convicted by a jury of, three counts of felony murder, MCL 750.136; MSA 28.548, and four counts of armed robbery, MCL 750.529; MSA 28.797. They were both sentenced to life imprisonment for the murder convictions and 40 to 60 years for the armed robberies. An accomplice, Charlene Billups, was similarly charged, but bargained for pleas of guilty to two counts of second-degree murder and two counts of armed robbery. She was sentenced to life imprisonment also and was endorsed as a prosecution witness. Defendants George Billups and Robert Barnes appeal as of right.
We are in agreement with our brother Cavanagh on all of the issues submitted for our consideration with one exception. We conclude that the trial court correctly instructed the jury regarding the element of malice in first-degree felony murder and decline to reverse on the basis of People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976). In support of our position, we maintain that the strongest argument in opposing the application of Fountain herein is contained in the proofs in the matter before us.
Mary Mathis stated that she was familiar with the building located at 2912 Belvidere, Detroit. On January 30, 1977, Ms. Mathis was at the building. John "Smitty” Smith ran a social club at this address where people would come to play cards and drink. At 7 p.m., she, John "Smitty” Smith, Alan Campbell, Virginia Stewart, Gloria Goolsby, Chuck Mills, Sidney Mills, a Mr. Tubbs, and one other person were at the building. Around 7 p.m., while Ms. Mathis was in the kitchen, she heard a knock on the door. When she turned around, she saw Charlene Billups and "that light-skinned guy” (Robert Barnes). A few seconds later, another "dark-skinned guy” also entered the building. Ms. Mathis had seen him in the past and identified defendant George Billups as the man in question. Defendant George Billups was carrying a machine gun. When Ms. Mathis saw this, she ran upstairs and hid in a bedroom. Defendant Barnes came upstairs and ordered her to go downstairs with the others. Ms. Billups was taking the money of those downstairs. At this point, defendant George Bill-ups held the machine gun, and Barnes held two handguns. These guns were pointed at the people in the building. Ms. Billups also had a gun. After the money was collected, defendants George Bill-ups and Barnes indicated that they were "fixing to kill everybody in here”. However, they were not going to "mess” with Ms. Mathis because she was pregnant. Barnes then shot Alan Campbell in the head. Following this killing, he put the gun to John Smith’s head and pulled the trigger. Ms. Mathis then ran off and climbed out an upstairs bedroom window. On the way upstairs, she heard Ms. Billups say, "Kill them all”. A lot of shooting was then heard. After the shooting, one of the men said, "Let’s get out of here”. Ms. Billups replied, "You left two of them”. However, one of the men said to forget them. Ms. Mathis then saw all three run out front.
At a lineup the next day, Ms. Mathis positively identified defendant George Billups. She also identified Barnes, but at the lineup his hair was a little different and she indicated that "it looks like him”. On cross-examination, the witness stated that the lineup included two or three light-skinned black men. However, none of the others looked like defendant Barnes.
Gloria Goolsby testified that John Smith lived at 2912 Belvidere in January 1977, and that he was her boyfriend. On January 30, 1977, she was at the Belvidere address. Around 6 p.m., Ms. Goolsby went upstairs to the bathroom to get ready to go home. She heard a lot of commotion downstairs and also saw Ms. Mathis run by. Ms. Goolsby could tell something was wrong, so she hid in a bedroom. However, Barnes found her and ordered her downstairs at gunpoint. She then saw Charlene Billups collect money from Mr. Tubbs. At this time, she also saw defendant George Billups with a machine gun. Barnes then shot Alan Campbell and John Smith in their heads. Ginny Stewart then jumped up, and a table was overturned. The two Billupses and Barnes then left the house. Several dead bodies remained in the room.
At a lineup held the next day, Ms. Goolsby was not able to identify defendant George Billups. She also indicated that the only physical difference between the other man involved in the killings and Barnes was the hairstyle.
Adrienne Adams stated that on January 30, 1977, she went to the Belvidere address to visit Ms. Mathis and Ms. Goolsby. About 7:15 p.m., she left the Belvidere house to go to the store. Near the entrance of the house, she heard gunshots. She then saw two men and a woman run out of the house. In court, she identified Barnes as one of the men she saw. She also identified Charlene Billups, but could not identify the other man involved. However this man carried a machine gun.
On cross-examination, Ms. Adams stated that, when returning from the store, she saw a 1974 gold LeSabre parked in front of 2912 Belvidere. She recognized this car as belonging to Barnes.
Lofton Stepney stated that on January 30, 1977, he was at 2912 Belvidere, otherwise known as Smitty’s place. While there, a man aimed two pistols at him and took his money. A woman told Barnes to go upstairs and get two women. Mr. Stepney stated that the "man in the yellow shirt” (Billups) shot John Smith with a rifle. At a lineup following the incident and a preliminary examination, the witness had been unable to identify any of the participants in the incident. Mr. Stepney was shot in his left buttock.
On cross-examination, Mr. Stepney indicated that his memory of the incident was better now and that he had "been dreaming about it”. According to the witness, only defendant George Billups shot anybody.
Charles Mills, Jr., stated that he was at 2912 Belvidere on January 30, 1977. About 7 p.m., there was a knock on the door. John Smith opened it, and a woman screamed "this is a holdup”. A man walked in and took a pistol the witness was carry ing from him. Some three or four minutes later, a lot of shooting erupted. When he looked up, John Smith, Alan Campbell, and his brother, Sidney Mills, were all dead. Mr. Mills was unable to identify any of the assailants.
Carrie Gilliam testified that she lived at 2916 Belvidere, "in front of Smitty’s place”. On January 30, 1977, she heard two shots. She looked out her window and saw a girl run across the street between two houses. She also saw people on Smitty’s porch "hollering and screaming”. She then observed a dark maroon car drive off quickly.
The preliminary examination testimony of Eli Tubbs was read into the record. Mr. Tubbs had been hospitalized with cancer since June 30, 1977, had undergone two operations, and could no longer speak. Mr. Tubbs had previously stated that he was at 2912 Belvidere on January 30, 1977. On this night, a shooting occurred. The witness identified defendant George Billups as having participated in robbing him of $2. The witness also identified Charlene Billups. On cross-examination, the witness had indicated that he had drunk enough to be intoxicated.
Charlene Billups stated that she was originally charged along with the two defendants in the case. However, she pled guilty to two counts of second-degree murder and to two counts of armed robbery and was now serving a life sentence. Ms. Billups stated that her brother, defendant George Billups, had not asked her to participate in the holdup with him.
Due to this testimony, the jury was excused, and the prosecutor was allowed to lay a foundation for impeachment. Thereafter, a tape was played in which Ms. Billups admitted participating in the episode. She also stated that defendant Billups had asked her to holdup "Smitty’s”. During the course of the holdup, George Billups shot John Smith and another person in the head. She also indicated that Barnes participated in the holdup and shootings with a machine gun. After hearing the tape, Ms. Billups denied its accuracy and said the statement was given under pressure.
When court was reconvened, Ms. Billups stated that a holdup occurred about 7 p.m. at Smitty’s house on January 30, 1977. However, the witness could not give details because she was "half high at the time”. Ms. Billups denied that either of the defendants were involved in the holdup or shootings. The prosecutor then showed her a statement she purportedly made on a previous occasion. She admitted signing the statement, but denied that it accurately represented what she had said.
At this juncture, Sergeant Charles McEwen of the Detroit Police Department Homicide Unit stated that on April 14, 1977, he took the taped statement from Charlene Billups. He further stated that, after hearing the tape, Ms. Billups had admitted its accuracy. The taped statement was then played before the jury. The trial court then instructed that the recording could be used for impeachment purposes only.
Charlene Billups was then recalled to the stand. She stated that she murdered nobody and that her plea was in exchange for a promise from the prosecutor to write the parole board indicating she should be released in ten years. She further stated that she pled guilty because her lawyer told her she would not prevail if she went to trial. Ms. Billups then stated that neither defendant Billups nor Barnes participated in the shootings and holdup. The prosecutor then attempted to refresh the witness’s recollection or impeach her with the statement she had given upon her arrest. Again, the trial court instructed that the prior statement went to credibility only.
Police testimony concerning various aspects of the investigation followed. Only the highlights will be touched upon. Mark Porter, a police officer employed by Wayne State University, testified that he arrested the driver of an orange Chevrolet because he saw a gun barrel protruding from a garbage bag inside the car. The man he arrested was Hershel Stewart, Barnes’ brother. Sergeant Joseph Bemke testified that Ms. Billups gave a statement admitting her complicity with defendants Billups and Barnes in the incident after having been advised of her constitutional rights.
Defendant Barnes took the stand in his own behalf. On January 30, 1977, at about 5 p.m., he was at home with his mother, sister, and possibly his brother. Between 6 p.m. and 6:30 p.m., he received a call from his cousin, Tony Patterson. After this, he went next door to the home of his woman friend, Brenda Maxwell. Twenty to twenty-five minutes later, he returned home. At this time, his mother, sister, brother, and a friend of his sister were there. About 7:45 p.m., he left his mother’s house. He then left to go to the house of a Barbara Collins in a 1973 gold Buick LeSabre. He arrived at Ms. Collins home about 8 p.m. Between 9:30 p.m. and 10 p.m., he left Ms. Collins’ house with her and another friend named Debra Hicks. The trio went to Ms. Hicks’ house and moved furniture for about two hours. They then returned to Ms. Collins’ home, and Barnes called his house and talked to his mother and sister. The witness then learned the police were looking for him, and he decided to go to the police station at 1300 Beaubien to talk to a Sergeant Davis. He went home, picked up his mother and brother, and was arrested on his way to the police department. Barnes concluded by saying he had never been to 2912 Belvidere.
Joyce Vaughn stated that Robert Barnes was her son. On January 30, 1977, she went out on a date about 5:30 p.m. At this time, Barnes was at the house. She returned about 7, and defendant Barnes was still at home. Around 8 p.m., Barnes left the house. Somewhere between 11:30 p.m. and midnight, Barnes returned home. Mrs. Vaughn, Alvin Vaughn, and Barnes then went to the police station, but were stopped by the police before they got there.
Brenda Kennedy testified that on January 30, 1977, she saw Barnes at her house sometime between 5:30 p.m. and 6 p.m.
Donna Vaughn, Barnes’ sister, stated that on the day in question, her brother left to visit Ms. Kennedy for 15 to 20 minutes. He then came back home and was there when she left about 7:30 p.m.
Alvin Vaughn stated that Barnes was his brother. About 5 p.m., Barnes visited Ms. Kennedy next door for 15 or 20 minutes. Barnes left the house again a little before 8 p.m.
Barbara Collins testified that on January 30, 1977, between 7 p.m. and 7:30 p.m., Barnes came to her house. They left about 9 p.m. to go over to Debra Hicks’ home. Ms. Hicks was also with them. After helping Ms. Hicks move, they returned to Ms. Collins’ house about 11:30 p.m.
Debra Hicks stated that she met Barnes on January 30, 1977, at Barbara Collins’ home. She asked him to help move some furniture out of her house to Ms. Collins’ home. Barnes agréed to help.
People v Till, 80 Mich App 16; 263 NW2d 586 (1977), holds that the element of malice required for conviction of felony-murder may be directly imputed as a matter of law from the underlying felony. See also, People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978), lv gtd 403 Mich 816 (1978), People v Butts, 85 Mich App 435; 271 NW2d 265 (1978), People v Lovett, 85 Mich App 534; 272 NW2d 126 (1978). Some jurists and commentators contend that the addition of larceny and extortion to the list of enumerated felonies erodes the rationale of the felony-murder doctrine, viz., that one intending to commit any of the felonies listed in the first-degree murder statute possesses a life endangering state of mind, since larceny and extortion do not usually involve behavior inherently dangerous to human life. If the addition of larceny and extortion to the list of enumerated felonies is wrong, such an issue can be submitted for judicial review when an applicable fact situation is presented. Situations have been present in the past and will exist in the future where judicial wisdom may be called upon to make an exception to the rule of People v Till and its progeny.
To follow People v Wilson, 84 Mich App 636; 270 NW2d 473 (1978), by remanding this case for entry of a judgment of conviction of manslaughter, or to give the prosecutor the option of retrying the defendants on the first-degree murder charge under the facts in this case is to glorify form over overwhelming substance. We decline to do so.
The next of the numerous errors alleged by the defendants was the prosecution’s failure to produce Carrie Gilliam, a res gestae witness. This allegation is groundless since Ms. Gilliam testified at trial.
Five of the remaining issues concern instructions to the jury, none of which was properly preserved for appeal. The instructions on aiding and abetting included all three of the required elements and, thus, were sufficient. People v Burgess, 67 Mich App 214, 220; 240 NW2d 485 (1976), lv den 397 Mich 830 (1976). The trial court did instruct upon the required element of intent in the offense of armed robbery. That instruction was more explicit in this regard than the one approved in People v Metcalf, 65 Mich App 37, 51; 236 NW2d 573 (1975). The jury instruction defining circumstantial evidence, while not particularly precise, is not grounds for reversal because defendants’ convictions stemmed from eyewitness testimony, rather than circumstantial evidence. People v Chandler, 75 Mich App 585, 591; 255 NW2d 694 (1977). There was no need for the trial court, sua sponte, to give a special instruction concerning identification of the defendants in light of several unwavering eyewitnesses’ identifications plus adequate jury instructions concerning reasonable doubt. People v Roberson, 90 Mich App 196, 203; 282 NW2d 280 (1979), lv den 407 Mich 908 (1979). Nor was there the necessity to caution the jury, sua sponte, concerning their consideration of accomplice testimony where the accomplice in this case offered no testimony that was prejudicial to defendants. Charlene Billups testified at trial that neither of the defendants participated in the shootings and holdups. Moreover, separate testimony inculpated defendants. Cf. People v McCoy, 392 Mich 231, 236-240; 220 NW2d 456 (1974).
The trial court committed no error in allowing the preliminary examination testimony of a witness to be read at trial since all counsel stipulated that the witness was hospitalized at the time of trial and was not physically able to speak. No objection was made when such testimony was admitted, the witness was subjected to cross-examination at the preliminary examination, and the testimony was not crucial inasmuch as other witnesses’ testimony was equally damaging to defendants’ cases. People v Castaneda, 81 Mich App 453, 458-459; 265 NW2d 367 (1978).
We also find that it was not error to allow impeachment of Charlene Billups, an endorsed prosecution witness, when she failed to implicate defendants in the crime as anticipated. Even though the Michigan Rules of Evidence were not in effect at the time of the trial, the requirements of MRE 607(2)(C) were fulfilled, and that rule would apply to a retrial of the defendants. Moreover, previously applicable case law supports the ruling of the trial court in this particular. People v Alphus Harris, 56 Mich App. 517, 524-526; 224 NW2d 680 (1974).
Defendant Billups presents additional arguments in a supplemental brief that address the performance of his counsel at trial. These arguments center largely on the fact that he did not testify at trial. Had he testified, however, it was possible that two armed robbery convictions obtained approximately one month prior to the trial in this case would have been admitted as similar acts. But, more importantly, no less than five witnesses identified one or both of the defendants as the perpetrators of the crimes charged. In light of these circumstances, and without substantiation of other alleged examples of trial counsel’s ineffective assistance, we conclude that defendant Billups was furnished a fair trial with able representation.
The last argument we address is the propriety of the denial of defendants’ motions for separate trials. This determination is given to the discretion of the trial court. MCL 768.5; MSA 28.1028. Such determination will not be overturned absent an affirmative showing that a joint trial prejudiced the substantial rights of the accused. People v Schram, 378 Mich 145, 156; 142 NW2d 662 (1966). Prior to the trial, both defendants filed affidavits which stated that they were entitled to separate trials since defendant Billups had already asserted, in a statement to the police, that he had acted in self-defense, while defendant Barnes had filed notice of an alibi defense. Thus, they urged, due to their inconsistent defenses, they would be denied a fair trial. We agree with the defendants that their proffered defenses were inconsistent; at the same time, the record clearly demonstrates that neither defendant incriminated the other. While defendant Billups professed initially that he had acted in self-defense, at trial he offered no defense, declining to testify. Defendant Barnes presented a vigorous alibi defense which employed several witnesses, but his counsel, in closing, carefully admonished the jury to keep defendants’ respective cases separate. Besides this reference, Billups never figured in Barnes’ defense. Under these circumstances, and especially in light of the overwhelming evidence produced against defendants, we find no abuse of discretion in the ruling that denied severance. People v Carroll, 49 Mich App 44, 49-50; 211 NW2d 233 (1973), aff'd 396 Mich 408, 414; 240 NW2d 722 (1976).
We find no error necessitating reversal and, therefore, affirm.
Affirmed.
V. J. Brennan, J., concurred. | [
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Cynar, J.
Defendants Alfredo Villarreal and Edward Villarreal were convicted by a jury of conspiracy to deliver heroin, MCL 750.157a; MSA 28.354(1), and MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). Defendant Alfredo Villarreal was also convicted of one count of delivery of heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a).
Trial was held in Detroit Recorder’s Court, commencing February 6, 1978. On March 2, 1978, defendant Alfredo Villarreal was sentenced to two terms of from 8 to 20 years imprisonment, the sentences to run concurrently. On the same date, the trial judge sentenced defendant Edward Villarreal to 8 to 20 years imprisonment. Both defendants appeal as of right.
Defendant Michael Fuson was convicted by the same jury of one count of conspiracy to deliver heroin, MCL 750.157a; MSA 28.354(1), and MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), and two counts of delivery of heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). On March 2, 1978, defendant was sentenced to three terms of from 3 to 20 years imprisonment, said sentences to run concurrently. He appeals as of right.
Defendants were tried along with Samuel Mendez, Arthur Sosa, Edmundo Rodriquez, Jack Sirhan, and Phillip Hayes; all of the defendants were charged with conspiracy and all defendants were represented by attorney John D. O’Connell.
At the preliminary examination, as well as during trial, the prosecutor raised the problem of a conflict of interest since attorney John D. O’Connell was representing multiple defendants.
During the preliminary examination, following cross-examination by attorney John D. O’Connell, the prosecutor suggested that the court should inquire of the defendants individually whether they understood that there definitely could be a conflict of interest and whether they were waiving any claim of conflict of interest because of multiple representation of defendants by attorney O’Connell. Attorney O’Connell, who was a veteran of the trial court arena, indicated several times a lack of knowledge as to what problems could arise in multiple representation. After further expression of concern by the court and the prosecutor, each defendant answered the inquiry of the court by stating he was satisfied with John D. O’Connell as his lawyer.
At trial, after the opening statemént of defense counsel, which immediately followed the people’s opening statement, the prosecuting attorney again raised the problem of possible conflicts of interest by asking the court to make further inquiry of defendants. The court indicated that, while at that stage of the proceeding it was not aware of a conflict of interest, such a conflict could arise later in the trial. Notwithstanding any conflict of interest that might arise during the course of the trial, all defendants indicated they wanted Mr. O’Connell as their attorney.
Numerous witnesses testified at trial. The prosecutor’s theory was that the alleged conspiracy was run by defendant Mendez out of the Golf King Recreation Center in Detroit.
Kay Lahman, a Detroit police officer, testified that on October 28, 1976, she went to the Golf King Recreation Center in Detroit where she met Gary Stewart and saw defendants Mendez and Sosa. She purchased a package of what she believed to be heroin from Gary Stewart. She had seen defendant Sosa give the package to Stewart. Defendant Mendez walked a few feet away just prior to the transaction. On November 10, 1976, Officer Lahman purchased narcotics from defendants Fuson and Alfredo Villarreal at the recreation center. When she inquired about a larger purchase, Fuson told her that he would take her to "Sammy” the next time she came by. Fuson referred to Villarreal as his partner. Officer Lahman testified that on November 23, 1976, she went to the Golf King Recreation Center and met defendant Fuson, from whom she bought narcotics after they left the center and went to 2060 Clarkdale. She testified that on December 1, 1976, she purchased narcotics from Edmundo Rodriquez (not present at trial) at the Golf King Recreation Center. Officer Lahman testified that on December 8, 1976, she met Edmundo Rodriquez at Golf King and subsequently purchased narcotics from him in front of 2129 Vinewood.
Dennis Paul Barton, a Detroit police officer, accompanied Officer Lahman during most of the transactions reviewed above and corroborated her testimony.
Police Officer Richard Graves testified that on February 21, 1977, he went to the Golf King Recreation Center with informant James Popalia, where they met defendant Ramiro Pena. Defendant Pena and Popalia walked into the men’s room together and then Popalia came out alone, handing Officer Graves two packs of suspected heroin. Graves gave him $100 in police funds with which he returned to the men’s room. Popalia and defendant Pena then exited from the men’s room at the same time. Graves testified that on March 1, 1977, he went to the Golf King Center where he met with defendant Pena and arranged a subsequent heroin purchase from defendant Sirhan, which purchase took place in front of 2103 Clark-dale.
Informant James Popalia testified that on February 21, 1977, he went with Officer Richard Graves to the Golf King Recreation Center where he purchased heroin from defendant Pena. On March 1, 1977, Popalia and Officer Graves went to the recreation center where they met Jack Sirhan and subsequently purchased suspected narcotics from him at the corner of Clarkdale and Toledo. Popalia testified that between October, 1976, and November, 1977, he went with Jack Sirhan, Ramiro Pena, and others to Kopernic Street for the purpose of picking up narcotics that were to be distributed at the Golf King Recreation Center.
Gary Stewart testified that his brother owned the Golf King Recreation Center and that he worked there on a part-time basis. Stewart testified that he contacted the police regarding a drug trafficking organization at that location which to his knowledge was run by Samuel Mendez. Stewart testified that on October 25, 1976, he went to Golf King with Officer Kay Lahman to purchase narcotics. He talked with defendant Samuel Mendez at that time who agreed to sell to him. In the presence of Officer Lahman he paid defendant Samuel Mendez and obtained the suspected narcotics from defendant Art Sosa. In December, 1976, Stewart began working for Samuel Mendez in the drug organization. His duties were to keep an eye on things when Mendez was not there, to collect money from the individuals selling drugs in and around the pool room, and to turn the money over to Mendez when he came in. Stewart testified that other persons working for Mendez at the time were defendant Jack Sirhan, defendant Phillip Hayes, defendant Freddy Villarreal, defendant Ramiro Pena, defendant Michael Fuson, defendant Art Sosa, and defendant Eddie Villarreal. Stewart then outlined the various duties and operations within the organization, as well as specific incidents of narcotics transactions that he had witnessed. He testified that defendant Alfredo Villarreal sold drugs for the organization and that defendant Edward Villarreal ran the cutting and distribution house.
Police Officers Michael Zamieski, Arthur Carrier, Stephen Ramsey, Steven Gyure, and William Stander testified regarding their handling of the narcotics evidence in this case. Police chemists Joseph Peindl, Richard Kasprzyk, and Raymond Feul testified concerning the chemical analysis of the narcotics evidence. Police Inspector Francis Allen and police accountant Gerald Honsberger testified regarding the destruction of certain narcotics evidence.
At that point the prosecution rested.
Defense witness Gilbert Hinojosa testified regarding the use and sales of narcotics by witness Gary Stewart.
Defense witness Juanita Carrizalez testified that she obtained narcotics at the Golf King Recreation Center from defendant Michael Fuson by paying witness Gary Stewart.
Lori Villaneuva testified that she had purchased narcotics at the recreation center from Gary Stewart and had witnessed other people come to see him regarding narcotics purchases. On cross-examination, witness Villaneuva testified that she had also seen defendant Mike Fuson, defendant Jack Sirhan, and Ramiro Pena sell narcotics at Golf King.
Defendant Phillip Hayes testified that he had never sold or delivered narcotics, that he never had any dealings in narcotics with Gary Stewart, and that he had never known Sam Mendez to have anything to do with narcotics.
Defendant Jack Sirhan testified that he had sold narcotics which he received from Gary Stewart. He testified that he had never known Sam Mendez to have anything to do with narcotics and that witness Stewart had instructed him to say that it was "Sammy’s stuff” if he ever got caught with the narcotics.
Defendant Samuel Mendez testified that he used to play pool at the Golf King Recreation Center. He testified that he had had arguments with witness Gary Stewart concerning pool games. He testified that he has never used or sold narcotics.
In his closing argument, defense counsel attacked the credibility of witness Stewart. He stated that there was no evidence against Phillip Hayes, Samuel Mendez, or Eddie Villarreal apart from the testimony of Gary Stewart.
Did the defendants knowingly and voluntarily waive their right to the assistance of an attorney unhindered by a conñict of interests, when the multiple representation of them at trial resulted in prejudice to the defendants?
In People v Bentley, 402 Mich 121; 261 NW2d 716 (1978), the Court noted that despite the fact that the trial judge had been made aware of the potential prejudice involved in joint representation, the judge made no attempt to determine whether the defendant was personally aware of the potential prejudice but nonetheless chose to waive his right to separate counsel. The Court concluded that the denial of the right to effective assistance of counsel was so offensive to the maintenance of a sound judicial process that it could not be considered as harmless error. The Court’s holding was predicated on the absence of a voluntary and informed waiver of the right to separate counsel. This would indicate that, in some cases, a waiver will be recognized as valid.
Whether the defendants made a valid waiver hinges on the extent of the trial judge’s duty to explain the matter to the defendants prior to taking the waiver. Michigan case law does not specify exactly what must be reviewed with a defendant before a valid waiver can be established. A number of Federal cases impose a duty on the court to explain and explore possible conflicts with the defendants, since absent such discussion the defendants may not be aware of the type and magnitude of the problems involved in multiple representation. For example, United States v Donahue, 560 F2d 1039 (CA 1, 1977) cites United States v Foster, 469 F2d 1, 4-5 (CA 1, 1972), as properly outlining the trial court’s duty:
"[W]here trial commences after the publication date of this opinion, it shall be the duty of the trial court, as early in the litigation as practicable, to comment on some of the risks confronted where defendants are jointly represented to insure that defendants are aware of such risks, and to inquire diligently whether they have discussed the risks with their attorney, and whether they understand that they may retain separate counsel, or if qualified, may have such counsel appointed by the court and paid for by the government.”
In Donahue, as in the instant case, the defendant was informed that there was no conflict of interest at that time but that one might develop later on, and the defendant was asked whether he wished to continue with his present attorney. The defendant in Donahue, as in the instant case, answered affirmatively. The court in Donahue held that the trial court had failed to adequately advise the defendant regarding joint representation, citing the failure to advise the defendant of his right to separate and, if appropriate, appointed counsel. The court then went on to outline the type of explanation that could be given a defendant, even prior to trial, when specific conflicts had not yet come to light: Other Federal cases imposing or discussing similar duties of explanation regarding multiple representation on the trial court are United States v Dolan, 570 F2d 1177, 1180-1181 (CA 3, 1978), United States v Garcia, 517 F2d 272, 278 (CA 5, 1975), United States v Lawriw, 568 F2d 98, 104-105 (CA 8, 1977). The United States Supreme Court has yet to resolve these issues. See Holloway v Arkansas, 435 US 475, 483-484; 98 S Ct 1173; 55 L Ed 2d 426 (1978).
"The court, prior to trial, should have pointed out that for each to be represented by essentially the same lawyers meant that each was foregoing his right to representation by a lawyer whose exclusive loyalty would be to him alone. The court should have advised that it was possible with respect to particular defenses and particular decisions — such as whether or not to take the stand, or to call particular witnesses, or to ask particular questions on cross-examination — that what was in one defendant’s best interest would turn out not to be in the other’s. Therefore, where the same lawyer or lawyers represented both defendants, counsel might be hampered in carrying out their duties to one client by their duties to the other. The court might also have asked whether the defendants had explored these matters with counsel; and, if necessary, have directed counsel to go over the possible disadvantages of joint representation with their clients, after which the court should have made it a matter of record, after speaking directly to each defendant, that defendant felt he understood the potential dangers of joint representation and still wished to proceed.
"Without purporting to prescribe any particular form of words, we emphasize that under Foster, the court must explain and explore the risks of joint representation.” United States v Donahue, supra, 1043-1044.
The trial court’s assertion in this instance that a conflict of interest might arise while the trial progressed and an expression by the defendants that they were satisfied with counsel would not conform with an affirmative duty to explain the risks of multiple representation to the defendants. The trial court had an affirmative duty to explore the risks of multiple representation and to give particular examples of where conflicts might arise, as well as advising defendants of the alternatives regarding separate counsel, as set forth in United States v Donahue, supra.
We determine there was an absence of a valid waiver in this area. However, it must be determined whether multiple representation resulted in ineffective assistance of counsel. In order for ineffective assistance of counsel to result from shared counsel by codefendants, there must be a showing of actual prejudice:
"Specifically, a defendant is entitled to 'the undivided loyalty of his counsel’. People v Gardner, 385 Mich 392, 400; 189 NW2d 229, 234 (1971).
"Where counsel have represented codefendants, we have required a showing of actual prejudice before finding reversal warranted. People v Jones, 64 Mich App 659, 667-668; 236 NW2d 531, 536 (1975), People v Osborn, 63 Mich App 719, 724; 234 NW2d 767, 770 (1975), People v Marshall, 53 Mich App 181, 189-190; 218 NW2d 847, 852 (1974); People v Hilton, 26 Mich App 274, 276; 182 NW2d 29, 30 (1970). This is because such relationships do not inevitably involve conflicts of interests. People v Hilton, supra.” People v Van Brocklin, 76 Mich App 427, 430; 257 NW2d 107 (1977).
See also Holloway v Arkansas, 435 US 475, 482; 98 S Ct 1173; 55 L Ed 2d 426 (1978).
In Glasser v United States, 315 US 60, 76; 62 S Ct 457; 86 L Ed 680 (1942), the Court acknowledged that multiple representation can particularly involve effective assistance of counsel in conspiracy cases where liberal rules of evidence and the wide latitude accorded the prosecution may operate harshly on a defendant. The fact that the charge in this case was one of conspiracy, then, is one factor to be considered by this Court in determining whether prejudice resulted from the multiple representation.
Another factor in determining whether the defendants were prejudiced by the multiple representation was whether the defendants lost the benefit of arguments stressing the codefendants’ links to specific evidence, or the evidence in general, as greater than defendant’s. See People v Bentley, supra. Another indication of prejudice exists when the cross-examination of an eyewitness may be inhibited by conflicting loyalties. People v Bentley, supra. In People v Gardner, 406 Mich 369; 279 NW2d 785 (1979), the Court ruled that prejudice is shown, even when the defenses are not necessarily inconsistent, when it is apparent that the testimony will portray differing degrees of culpability between the defendants, requiring counsel to draw a line of demarcation as to the relative culpability of his two clients.
Following the criteria reviewed above and apply ing it to the matter before us, it is our opinion that the defendants were prejudiced by the multiple representation in this case.
It should be noted that there was a coordinated defense strategy presented in this case. Witness Gary Stewart provided critical testimony connecting individual purchases into a specialized drug distribution organization run by defendant Mendez. The consistent defense strategy present in the case was to impeach and discredit the critical testimony of Gary Stewart. This was done by impeaching his testimony with inconsistent preliminary examination testimony regarding his drug overdose, by introducing a series of defense witnesses who testified that Stewart was operating the drug sales out of the Golf King Recreation Center and that Stewart had a motive to blame the sales on Mendez both because Mendez had humiliated him in a pool game and because Stewart was cooperating with the police in order to get charges against him dismissed.
Such defense strategy may have ignored defendant Fuson’s interests in some aspects. The testimony indicated that Fuson was a lesser figure in the organization, yet no argument was made regarding Fuson’s lesser culpability as a distant link in the chain of evidence of conspiracy. Defense counsel called witness Juanita Carrizalez who testified on direct examination that she obtained narcotics from Fuson by paying Gary Stewart. While this may have been adverse to Stewart, it implicated Fuson in narcotics sales. Defense counsel’s final argument did not refer to Fuson at all.
The defense of Alfredo Villarreal was much like that of defendant Fuson. Neither defendant Alfredo Villarreal nor the delivery charge against him were mentioned during closing argument. Like defendant Fuson, defendant Alfredo Villarreal was implicated as a seller of drugs by a defense witness called to impeach Gary Stewart. We find this more than sufficient to establish the requisite prejudice.
While the answer to the question is a close one, we find that Edward Villarreal was also prejudiced by the multiple representation. The coordinated defense strategy tended to benefit the higher echelon people in the alleged organization who were implicated only by the testimony of Gary Stewart. Defendant Edward Villarreal is much like defendant Mendez in this respect, although not alleged to be on the same echelon as Mendez. Mendez was not prejudiced by the representation received in this case. For instance, there was one noticeable difference between the defense of Mendez and that of Edward Villarreal. Defendants Phillip Hayes, Arthur Sosa, and Jack Sirhan were all asked whether they had ever known defendant Samuel Mendez to have anything to do with narcotics and all three replied negatively. No such question was asked regarding Edward Villarreal. For whatever reason, defense counsel often singled out questions regarding Mendez, thereby providing him with the strongest defense.
Defendants assert a claim of prosecutorial misconduct relating to that portion of plaintiff’s closing argument as follows:
"But there are other rights. And they are the rights of the People of the State of Michigan and everyone in this room is the People of the State of Michigan, including the defendants. And their rights demand that the streets be safe. Their rights demand that you protect their rights. And you protect their rights by doing justice.
"And as I said before, it is just as important to convict the guilty as it is to free the innocent.
"And you can protect the rights of the People of the State of Michigan in this case by rendering a just verdict. You have heard the evidence. You can decide what happened.”
Defense counsel objected to the prosecutor’s remark and the trial court gave a curative instruction.
"The attorneys in their closing arguments may have alluded to the fact that there is a social problem and wé are all citizens. That is true. But it is not part of your consideration. And I ask you to disregard any social problems which you may be curing by your deliberations. You are not here to do that. We have people you write to in Lansing and Washington and so on and so forth to make the — We are the judicial process. We are part of the judicial process. You are the jury and judges of the fact and those facts must be only as elicited in this courtroom from that witness stand.”
Defendants argue that the comment made by the prosecutor was an improper "civic duty” argument, appealing to the emotions of the jurors and detracting from the evaluation of defendants’ guilt or innocence.
The people argue that the remarks were a direct response to closing arguments made by defense counsel and, therefore, were not improper. The people also argue that any problem was corrected by the court’s curative instruction.
In some cases, a prosecutor’s appeal to the civic duty or social fears of the jurors has been held to be reversible error. For example, in People v Biondo, 76 Mich App 155, 159-160; 256 NW2d 60 (1977), lv den 402 Mich 835 (1977), this Court ruled that the prosecutor’s attempt to cajole the jury into believing that a guilty verdict would be a substantial act towards saving Detroit from financial ruin was prejudicial as not relevant to the guilt or innocence of the defendant, and, therefore, reversible error. See also People v Gloria Williams, 65 Mich App 753; 238 NW2d 186 (1975).
Even if this Court concludes that the prosecutor’s reference was an improper attempt to appeal to the jurors’ fears arising from the present crime problem, the remarks are very similar to the ones reviewed in People v Hall, 396 Mich 650; 242 NW2d 377 (1976), which the Court concluded did not create reversible error in view of the cautionary instruction given. We agree with the Court in Hall, and find the instruction here sufficient to cure the error.
Concerning the claim of erroneous instruction relating to conspiracy, the defendants failed to object to the instructions as given, thereby precluding appellate review in the absence of manifest injustice. People v Dixon, 84 Mich App 675; 270 NW2d 488 (1978), lv den 405 Mich 837 (1979). We find no manifest injustice present here.
Defendant Alfredo Villarreal argues that while there might have been sufficient evidence to connect him to a conspiracy to deliver heroin there was insufficient evidence to convict him of the heroin delivery conspiracy headed by defendant Mendez because there was no evidence connecting defendant Alfredo Villarreal with anyone other than defendant Fuson. Evidence that a defendant was aware that he was not plotting alone with common conspirators to violate the law was sufficient to raise the necessary inference that he had joined in an overall agreement. Blumenthal v United States, 332 US 539, 555, n 14; 68 S Ct 248; 92 L Ed 154 (1947).
Contrary to the assertion of defendant Alfredo Villarreal, relying on the reasoning in People v Duke, 87 Mich App 618; 274 NW2d 856 (1978), and People v Roy, 80 Mich App 714; 265 NW2d 20 (1978), lv den 402 Mich 903 (1978), we determine that there was no entrapment under the objective test, since police informers were only taking orders within a larger, preconceived criminal group or scheme.
At the end of the first day of trial, the judge was discussing certain administrative matters with the jury and preparing to dismiss them when some conversation was had between the court and a juror in open court, but unheard and unrecorded. The record reflects that the conversation was in the presence of the jurors, the defendants, and their attorney. No objection was made. Defendants argue that this conversation violated their right to be present at all stages of the proceedings. This right only extends to conferences or occurrences wherein defendants’ substantial rights may be affected. People v Bowman, 36 Mich App 502, 510; 194 NW2d 36 (1971), lv den 386 Mich 783 (1972). There is no indication that any substantial rights of the defendants were affected. No objection was lodged nor was the issue raised in any other manner. Absent the raising of an objection, we will not presume that the matter affected defendants’ substantial rights.
We reverse the defendants’ convictions and remand the cause for further proceedings. | [
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Mackenzie, P.J.
Defendant was charged with two counts of assault with intent to murder, MCL 750.83; MSA 28,278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On January 9, 1978, she pled guilty to the felony-firearm count and a lesser charge of felonious assault, MCL 750.82; MSA 28.277. On January 18, 1978, the trial court sentenced defendant to consecutive terms of imprisonment of two to four years on the felonious assault conviction with credit for 117 days served and two years on the felony-firearm conviction. Defendant appeals by leave granted.
Defendant’s allegations of error all relate to the procedure to be followed by the trial court before accepting a guilty plea under GCR 1963, 785.7. Failure to advise defendant of probation and parole consequences is harmless as this was her first offense and she was not on probation or parole. See Guilty Plea Cases, 395 Mich 96, 128; 235 NW2d 132 (1975). Nor does the trial court’s failure to inform defendant that her plea subjected her to sentence enhancement as an habitual offender require reversal. Since defendant had not previously been convicted of a felony, her guilty plea herein could not be used to trigger the habitual offender statute and there was no duty to so inform her. People v Sickmiller, 87 Mich App 332, 334; 274 NW2d 57 (1978).
Defendant’s contention that she was not informed that she was relinquishing the rights she would have at trial is not supported by the record of the plea proceeding. We are satisfied that defendant was informed of her Jaworski rights and that there was substantial compliance with GCR 785.7(l)(g). See Guilty Plea Cases, supra, 124.
Finally, defendant contends that there was an insufficient factual basis on the record to support her plea to the felonious assault and felony-firearm charges. At the plea proceeding defendant stated that she had signed a statement, which was admitted into evidence, that "[t]he gun discharged upon hitting the wall while it was pointed in my husband’s direction”. Additionally, the following colloquy ensued between defendant and the trial court:
"THE COURT: Well it says here that you had a gun and that it was pointed in your husband’s direction. And it was in your hands, * * * and it discharged and struck him; is that right?
"THE DEFENDANT: No. It did not strike him. It discharged as it struck the wall.
"THE COURT: I see. What you wrote here is true?
"THE DEFENDANT: Yes, it is.”
In reviewing the adequacy of the factual basis for a guilty plea, the requisite inquiry is whether a trier of fact could properly convict on the facts as stated by the defendant. "A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury on the facts admitted by the defendant. The fact that an exculpatory inference could also be drawn is immaterial.” People v Spry, 74 Mich App 584, 593-594; 254 NW2d 782 (1977), citing Guilty Plea Cases, supra, and People v Haack, 396 Mich 367; 240 NW2d 704 (1976).
Initially, we note the reluctance of our courts to rely on a written statement of a defendant purporting to waive his constitutional rights or establish a factual basis for the charge. See Guilty Plea Cases, supra, People v Schneff 392 Mich 15, 25-26; 219 NW2d 47 (1974) (plurality opinion), People v Napier, 69 Mich App 46; 244 NW2d 359 (1976). The court rule itself provides that "[i]f the defendant pleads guilty, the court, by questioning him, shall establish support for a finding that he is guilty of the offense charged or the offense to which he is pleading”. GCR 1963, 785.7(3)(a).
In the case at bar, defendant argues that the record does not indicate that she intended to commit the crime of felonious assault. Felonious assault is a general intent crime. The intent necessary is that required in a simple assault: either an attempt to injure or an intent to put the victim in reasonable fear and apprehension of an immediate battery. People v Joeseype Johnson, 407 Mich 196, 210; 284 NW2d 718 (1979).
Although the question here is close, we do not believe the record established that defendant aimed the gun at her husband with the intent to injure him or the intent to put him in fear of an immediate injury. The facts as recited by defendant show only that the gun happened to be pointed in her husband’s direction and discharged upon hitting the wall. She did not testify regarding her husband’s reaction to the shot.
On remand, the procedure established in Guilty Plea Cases, supra, 129, should be followed. What must be clarified is whether defendant aimed the gun in her husband’s direction and attempted to injure him or put him in reasonable fear of an immediate battery. If that is the case, defendant’s convictions should be upheld. But, if it is shown only that the gun accidentally discharged while not intentionally aimed at the victim, both of defendant’s convictions must be reversed.
Remanded for proceedings in accordance with this opinion.
D. C. Riley, J., concurred.
People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). | [
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Sharpe, J.
On November 15, 1926, Truman Marshall, a farmer living near Grand Rapids, sold a milk route he had been operating and the equipment, consisting of a boiler, sterilizer, cream separator, and other articles, to the defendant. This action was brought to recover the purchase price thereof and for milk sold to the defendant. Plaintiff had verdict and judgment, which was set aside on motion, and a new trial granted. In the meantime Marshall had died, and his administrator was substituted as party plaintiff. Marshall’s testimony on the former trial was admitted in evidence. Plaintiff had verdict and judgment for $597.92, from which the defendant has appealed.
There is no dispute about the fact that Marshall and the defendant entered into an oral agreement whereby the former sold to the latter his milk business and the equipment used therewith, and that there was delivery thereof to the defendant, and that the title thereto passed to him. Marshall allowed him to use the equipment in his milk house, and his claim that, several months later, he was refused permission to remove it, in no way affected his title thereto or his right to obtain possession of it by legal process.
The dispute arises over the price and the manner of payment. Marshall testified that he was to have $550 if paid in cash, or $600 if on terms. The defendant testified that $550 was agreed upon as the price, and that it was to be paid in monthly payments of $25 each. In answer to special questions, the jury found that the sale was on such monthly payments. Marshall admitted the receipt of four of such payments, amounting to $100.
It is also undisputed that Marshall sold milk to the defendant to the amount of $200. He credited these payments thereon. The defendant claimed that the milk was paid for by an assignment of certain accounts by him to Marshall.
In submitting the case to the jury, the trial court instructed them that the title to the property sold had passed to the defendant, and that, if the contract made was as claimed by plaintiff, and if they found that the payments made by defendant were properly applied by plaintiff on tbe amount due bim for the milk sold by him, be Avas entitled to a verdict for tbe amount claimed.
He also instructed them that if the contract price was as claimed by tbe defendant, and to be paid in monthly payments—
“tbe contract having been completed with tbe exception of tbe agreed purchase price, tbe defendant is obligated to pay tbe value of tbe things sold to bim by tbe plaintiff upon tbe theory of tbe quantum meruit or what tbe things are reasonably worth not to exceed tbe purchase price fixed in tbe contract.”
• This instruction was probably based upon tbe claim of tbe defendant that, tbe contract being an oral one and tbe last of such payments not to be made within one year, it was unenforceable under tbe statute of frauds. 3 Comp. Laws 1929, § 13417, provides that “Every agreement that, by its terms, is not to be performed in one year from tbe making thereof” shall be void unless it “or some note or memorandum thereof be in writing and signed by the party to be charged therewith, or by some person by bim thereunto lawfully authorized.”
Under tbe “uniform sales act,” 2 Comp. Laws 1929, § 9442, a contract for tbe sale of personal property may be made in writing, “or by word of mouth, ’ ’ and under section 9443 if tbe value be $100 or more it is unenforceable unless tbe buyer shall accept tbe goods sold, or a part of them, and actually receives tbe same, and that—
“There is an acceptance of goods within tbe meaning of this section when tbe buyer, either before or after delivery of the goods expresses by words or conduct bis assent to becoming the- owner of those specific goods.”
Section 9502 reads, in part, as follows:
“(1) Where under a contract to sell or a sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract or the sale, the seller may maintain an action against him for the price of the goods.”
In Scott v. Bush, 26 Mich. 418, 422 (12 Am. Rep. 311), it was said:
“Had the plaintiff in this case obtained possession from the defendant, under the verbal arrangement, the contract would have been taken out of the statute, and would not have been void. ’ ’
Both the title to the property sold and the possession thereof passed to the defendant, and—
“all that he promised to do was .to pay money and there is no law requiring such a promise to be in writing to be enforceable.” Pangburn v. Sifford, 216 Mich. 153, 155.
See, also, Davis v. Strobridge, 44 Mich. 157; Holmes v. Borowski, 233 Mich. 407.
The right to recover on the quantum meruit is restricted to cases in which the contract is void under the statute but has been fully executed by one party and the other has received the consideration and accepted the benefit. It is not based—
“upon the contract, but upon the appropriate common counts in assumpsit, and upon the duty, promise, or obligation springing from the property, money, or benefit thus conferred by the plaintiff and received and appropriated by the defendant.” Whipple v. Parker, 29 Mich. 369, 374.
See, also, Vande Berg v. Vanden Bosch, 242 Mich. 37.
If, as claimed by the defendant, the purchase price was to be paid in monthly payments and the four payments were made thereon, there was nothing due plaintiff on the contract at the time .the action was begun.
There was no special finding on the claim of plaintiff for milk sold defendant. A question for the jury was presented.
The judgment is reversed, with costs to defendant, and a new trial granted.
McDonald, O. J., and Potter, North, Pead, Wiest, and Btjtzel, JJ., concurred. Clark, J., took no part in this decision. | [
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53
] |
Sharpe, J.
The facts in this case are not in dispute. The plaintiff purchased the land in question in this case, situate in the city of Sturgis, at the annual tax sale held on May 5, 1931, for the taxes delinquent for the year 1928, paying therefor the sum of $387.83. At the tax sale in 1930 this land had been bid in to the State for the taxes of 1927, and was on the State tax land list at the time of the sale in 1931. As a condition precedent to her purchase, the plaintiff was compelled to also purchase the land on this list (1 Comp. Laws 1929, § 3462), and paid therefor the sum of $516.92. She received a certificate of purchase, which she presented to the auditor general, and received a State tax deed therefor, which she recorded on January 11,1932. On September 28,1931, she served a notice to redeem on Ella B. Tanner, the then owner of the premises, and who was in possession thereof, as required by 1 Comp. Laws 1929, § 3535. The amount necessary to redeem as stated therein was $1,038.94, plus the fees to the sheriff, stated by him to be $3.80.
On January 21, 1932, Ella B. Tanner conveyed the premises to the defendant Samuel K. Cleveland. The deed therefor was recorded on February 29, 1932. On March 10, 1932, Cleveland conveyed the premises by warranty deed to Josiah F. Crull, and on the same day Crull executed and delivered to Cleveland a land contract for the purchase thereof. Crull is now deceased, and the defendant hank is administrator of his estate.
On March 25, 1932, Cleveland deposited with the county clerk $1,042.74 for redemption of the purchase for the 1927 tax. On the same day he paid to the county treasurer $430.49 to redeem from the sale of the 1928 tax. The plaintiff, although notified by the county clerk of the payment to him of the moneys to • redeem from the 1927 tax sale, did not comply therewith by delivery to the clerk of the release and quitclaim provided for in 1 Comp. Laws 1929, § 3536, hut, when the year had elapsed for redeeming from the 1928 sale, she forwarded her certificate of purchase to the auditor general and received a State tax deed therefor, which she recorded, and on November 21, 1932, served a notice to redeem therefrom upon Ella B. Tanner, Cleveland, and Crull.
The plaintiff insists that the notice to redeem from the 1927 purchase and defendant’s ¡payment of the amount necessary to redeem therefrom to the county clerk did not preclude her from thereafter claiming the penalty fixed by the statute (1 Comp. Laws 1929, § 3536) on redemption from the 1928 purchase.
When the plaintiff caused the notice provided for in 1 Comp. Laws 1929, § 3535, to be served on the then owner of the land, she might have included therein the amount paid by her on the purchase of the 1928 tax. This she did not do, and the defendant Cleveland on redeeming therefrom was not chargeable with notice of her omission to do so. He paid to'the county clerk the amount required to redeem. He then went to the county treasurer’s office, and, finding that the land had been sold for the tax of 1928, paid to him the amount required to redeem therefrom. He was not chargeable with notice that the same person had purchased the State tax deed for the tax of 1927 and bid in the land for the tax of 1928. He had a right to rely on the notice served on his grantor and the statement of the county clerk, and plaintiff is bound thereby. O’Connor v. Gottschalk, 148 Mich. 450; Burch v. Nippress, 213 Mich. 185; Tyler v. Burgeson, 229 Mich. 268. Plaintiff had no right after such payment to the county treasurer to a State tax deed for her 1928 purchase. Redemption therefrom had been had', but apparently no report thereof had at that time been made by the county treasurer to the auditor general. ’ The provision in the decree so providing*, from which she has appealed, is affirmed.
After receiving* her tax deed for the taxes of 1927 from the auditor general and service of the notice to redeem on Ella B. Tanner, plaintiff paid to the county treasurer and to the city treasurer the taxes delinquent on said land for the years 1929, 1930, and 1931, amounting in all, with interest, to the sum of $885.72. She here seeks to have the same declared a lien upon said land. The trial court so decreed, and it is from this provision in the decree that the defendants have appealed.
When the defendant Cleveland redeemed from the tax sales for the 1927 and 1928 taxes, it does not appear that he made any inquiry as to whether these taxes were then delinquent. He did not purchase in reliance upon the fact that they had been paid. At the time he advised the plaintiff that he had made such redemption, she informed him that these subsequent taxes had been paid by her. She had paid •them under the mistaken belief that she must do so in order to protect the interest she had acquired under her tax deed. Under these circumstances the trial court was clearly right in holding that the payment by her inured to the benefit of the then owner of the land and that she was entitled to a lien upon the land therefor and enforcement of the same as provided for in the decree. G. F. Sanborn Co. v. Alston (on rehearing), 153 Mich. 456, 463.
The decree is affirmed. Both parties having appealed, no costs will be allowed.
McDonald, C. J., and Potter, North, Fead, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision. | [
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Fead, J.
The action is to recover uncollected school taxes assessed on personal property in the city of Lansing for the years 1927 to 1930, inclusive, on the ground that failure to collect was caused by default of the city treasurer in neglecting to take the measures for collection required or provided by statute. Former decision, declaring the rule of liability, is reported in 260 Mich. 405.
Plaintiff is a fractional school district embracing the whole city and also a portion of a township. It is the duty of the board of supervisors to apportion the school taxes to the different municipalities possessing territory in the district in proportion to assessed valuation. 2 Comp. Laws 1929, § 7233. The board reported that it had not sufficient data to make an accurate apportionment and it had apportioned the full amount of taxes, leaving it to the supervisors to spread the proper sums. Defendant claims that the taxes were void for failure of apportionment by the board.
On receiving the proper tax roll, the treasurer shall proceed to collect the taxes. 1 Comp. Laws 1929, § 3434. It does not rest with him to determine the validity of the taxes nor to fail to attempt collection where no property owner challenges the tax. Moreover, the duty to make apportionment was clerical and administrative. It does not appear that the proper amounts of taxes were not actually spread. At most, a delegation of the power to apportion was an irregularity which did not vitiate the tax. 1 Comp. Laws 1929, §§ 3469, 3492; 61 C. J. p. 1057; 2 Cooley on Taxation (4th Ed.), p. 1194.
Upon whom is the burden of proof of default? The city is liable for the treasurer’s default only by force of statute. It has no legal control over him with reference to the collection of school taxes. His duties are defined by law. As to collection of school taxes, the treasurer is virtually a stranger to the city. ■ Hence the rule cannot be invoked that the burden is upon the city because it has peculiar and exclusive knowledge of the facts. It is presumed that officers perform their duties. Plaintiff, charging defendant with liability for failure of duty by an officer, has the burden of proof.
Plaintiff enumerates 19 instances of uncollected personal taxes, aggregating $3,220.66, for which it asks recovery. Instead of discussing them separately, we will indicate the general considerations upon which decision rests.
It is undisputed that the city treasurer made personal demand for the taxes. The principal question is whether he was in default by failing to levy on property of taxpayers. 1 Comp. Laws 1929, § 3438. Plaintiff had the burden of proof that, by “diligent inquiry,” the treasurer could have discovered property and made the taxes by levy.
As to some of the large taxpayers, taxes of 1924, 1925, and 1926, also had become delinquent. The treasurer made an arrangement with them to make instalment payments. In one case the city agreed to forgive the city taxes if the other taxes were paid within a designated time. Large sums were collected under these arrangements, which were credited to the oldest taxes. Before payment in full, however, some concerns became insolvent, and the treasurer filed claims in their estates. Forbearance to levy on promise of instalment payments may have been good business, to enable the concerns to attempt to continue in operation and thus benefit both them and the city, but it was not good tax law. The tax law has no humanity or community spirit in its collection features. It demands its pound of flesh.
The testimony is undisputed. The city treasurer had employees charged particularly with the collection of personal taxes. While the treasurer testified generally that everything possible had been done to collect the taxes, the evidence of what was done in each case came from the collectors, and, of course, must outweigh a general statement not based on personal knowledge.
In the instances as to which the collector unqualifiedly testified that the taxpayer had property upon which levy could have been made, the liability of the city is established.
Where the collector stated that there was not sufficient property to make taxes above costs of levy and sale, or that there was no property known to him, the city is not liable because there was no contrary showing of the existence of sufficient property known to the collector or treasurer or which should have been known to him.' The treasurer is not bound to seize property which will not produce some taxes above costs.
Proof of property, by introduction of an inventory filed in receivership proceedings, is not sufficient to charge the treasurer with default. It must be shown that he knew of the property and could have made a levy on it, or that, by diligent inquiry, he would have discovered it.
The statute provides that the treasurer “if otherwise unable to collect a tax on personal property, may sue” the taxpayer in the name of the city. 1 Comp. Laws 1929, § 3438. The permissive “may” demonstrates that the treasurer is invested with discretion as to suit. He is not required to begin action in a "doubtful case, or where recovery is not probable, nor to incur expense where reimbursement is not clear. The showing must be one of abuse of discretion. No such showing was made at bar.
Upon these considerations, and under the undisputed testimony, we must find the city liable for the following uncollected taxes: Capital Lumber Company, New Way Motor Company, Merchants Supply Company, National Fruit Company, Walters & Son (1930 taxes), Andrews Electric Company, Heath Jewelry Company, Mahoney’s Store, Howard Jewelry Company, Marshall Jewelry Company, B. L. Bipley, Simons Dry Groods Company.
Judgment for defendant reversed, and cause remanded to the circuit court for entry of judgment in accordance herewith.
McDonald, C. J., and Clark, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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Wiest, J.
Plaintiff, when sned in the court of common pleas for the city of Detroit, for payments due under a lan'd contract, entered his appearance in the suit, pleaded the general issue, then filed the bill herein to have rescission of the contract for alleged fraud, obtained an order requiring defendant to show cause why an injunction should not issue to restrain the proceeding at law, was granted an injunction upon condition of filing a bond within a specified time, failed to file the bond, let the, case in the court of common pleas go to judgment, and took no appeal. The court held the judgment at law res judicata and dismissed the bill. Plaintiff reviews by appeal, claiming that his plea in the court of common pleas did not present the issue of fraud set up in his bill of complaint, and, therefore, there was no adjudication of the fraud now claimed.
The test by which plaintiff is bound is what he could and should have pleaded in the common pleas court. Plaintiff therein could not recover without a valid contract and an existing obligation upon the part of the vendee therein to pay instalments thereon. Plaintiff herein cites McHugh v. Trinity Building Co., 254 Mich. 202. In that case the bill was filed after suit was brought in the common pleas court, prosecution of the action at law was at first enjoined and later was permitted to proceed under command to deposit any money collected with the clerk of the circuit court, to await further order of the court. This, in effect, retained ultimate supervision and prevented the judgment in the action at law from deciding the suit in equity.
The case at bar falls within the holding in Bassett v. Trinity Building Co., 254 Mich. 207. In that case an action at law was commenced in the court of common pleas and defendant therein pleaded the gen eral issue with, notice of fraud, and, after judgment and expiration of time for appeal, filed a bill for rescission, and we held the judgment res judicata.
In the case at bar the equity court tendered restraint of the action at law if a bond was given, and plaintiff not only failed to give the bond, but also failed to defend against the action upon the contract. Plaintiff had remedy open and offered, but failed to avail himself thereof. He cannot now maintain the bill for rescission.
The decree in the circuit court is affirmed, with costs to defendant.
McDonald, C. J., and Clark, Potter, Sharpe, North, Pead, and Butzel, JJ., concurred. | [
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North, J.
In a suit prosecuted in Florida in 1927, the Bank of Fort Myers & Trust Company, a Florida corporation, obtained a money judgment or decree against defendant A. S. Lindenfeld. Subsequently (November 8, 1928), judgment thereon was obtained in the circuit court of Berrien county, Michigan, in the amount of $11,584.76. Subsequent to the time Mr. Lindenfeld became indebted to the bank, he and his wife, who is also made a party defendant herein, purchased two pieces of real estate located in Berrien county, and took title thereto as tenants by entirety. The first of those parcels, which will be referred to herein as the ‘ ‘ oil station property, ’ ’ was purchased August 15,1928. The other, herein called the “dock property,” was purchased September 24, 1928. Plaintiff caused execution to be levied upon each of these parcels and thereafter filed the bill of complaint herein to set aside both conveyances in so far as they purport to create estates by entirety, on the ground that title was taken in the name of husband and wife as tenants by entirety fraudulently and to defeat plaintiff’s rights as a creditor of defendant A. S. Lindenfeld. By introducing in evidence plaintiff’s judgment, the execution, levy, and records of conveyance, together with admissions in defendants’ answer, a prima facie case was made by plaintiff under 3 Comp. Laws 1929, § 14617. Thereupon defendants offered proof in detail as to source of the property or money used in making payment for the two properties upon which plaintiff has levied. A detailed recital here of such testimony would serve no good purpose. It was carefully reviewed and considered by the trial judge, and he came to the conclusion that defendants had established their claim, which was that none of the consideration involved in the purchase of either of the properties upon which plaintiff has levied came from Mr. Lindenfeld, and therefore plaintiff was not entitled to relief. Decree was entered dismissing the bill of complaint, and this appeal followed.
Plaintiff stresses the contention that, when property is purchased by husband and wife and title thereto taken as tenants by the entirety, a presumption arises that one-half of the consideration therefor was paid by the husband; and to that extent the property should be subject to the claims of his creditors who have been defrauded as the result of such purchase by the husband and wife. Reliance is placed upon the following propositions of law:
“Where real estate is purchased by and conveyed to a husband and wife jointly, in the absence of any showing to the contrary, the husband will be presumed to have paid one-half of the purchase price.” Newlove v. Callaghan (syllabus), 86 Mich. 297 (24 Am. St. Rep. 123).
See, also, First State Bank of Milford v. Wallace, 201 Mich, 673.
“Estates in entirety cannot be created at the expense of creditors and held in fraud of the latter’s right. Where the circumstances are such that it would be fraudulent as to the creditors of the husband to take the entire title in the name of the wife, it is no less a fraud upon them for the title to be taken in the name of husband and wife jointly.” 30 C. J. p. 574.
“It would be a gross injustice to permit debtors to apply moneys which should be applied to the payment of their debts to the creation of an estate which would be beyond the reach of their creditors. * * * In other words, estates in entirety cannot he created at the expense of creditors, and held in fraud of the latter’s rights.” Newlove v. Callaghan, supra.
The correctness of appellant’s contention relative to the legal aspect of the case must be conceded. But, as noted above, the circuit judge found against plaintiff on the facts. From the record, it appears that a substantial portion of the purchase price of these properties was paid by trading in properties to which defendants had title by entirety prior to Mr. Lindenfeld’s having become obligated to the bank; and with money which Mrs. Lindenfeld had on deposit in banks to her individual credit, and which, as the circuit judge found, was proven to be her individual property. Other portions of the consideration were derived from mortgages given by defendants upon the parcels purchased. The record is such that we think the trial judge was justified in accepting as true the following from Mrs. Lindenfeld’s testimony:
“Q. Mrs. Lindenfeld, did your husband invest any of his own money or property in either one of these two pieces of land, the dock or the gasoline station?
“A. No, he hasn’t. He has taken his money and put it into these other things.”
As we understand appellant’s brief, it is therein urged that since Mr. Lindenfeld became liable with his wife on a note to the Farmers & Merchants National Bank for $13,500, the proceeds of which went into the purchase price of the oil station property, therefore at least to the extent of one-half of the amount so invested Mr. Lindenfeld has an interest in the property. The full amount of the money borrowed from the bank is still unpaid. Its repayment is now secured by defendants’ joint note and a mort gage lien on the dock property. Until Mr. Lindenfeld makes some payment on this obligation, he will have actually invested nothing in the property. Equity must rest its decision upon the actual facts rather than upon the theory or assumption that Mr. Lindenfeld has invested something in this property when in truth he has not.
The decree entered in the circuit court in chancery is affirmed, with costs to appellees.
McDonald, C. J., and Clark, Potter, Sharpe, Pead, Wiest, and Butzel, JJ., concurred. | [
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] |
McDonald, C. J.
The American State Savings Bank of Lansing, Michigan, is in receivership. W. T. Grant Company intervened for the purpose of having certain money which it had intrusted to the bank for a specific purpose declared to- be in the nature of a trust fund and as such entitled to preference. The circuit judge denied preference and allowed the claim in the sum of $8,152.20 as to a common creditor. The intervener has appealed, and thereby seeks to have the order modified to the extent that $4,902.20 of the funds shall be declared to be a preferred claim.
From the agreed statement of facts it appears that the W. T. Grant Company operates a chain of stores, one of which is located in Lansing, Michigan. It did its banking business with the American State Savings Bank. On December 17, 1930, it addressed the following letter to the bank:
“December 17, 1930.
“Mr. Charles E. Toms,
“Vice-President,
“American State Savings Bank,
“Lansing, Michigan.
“Dear'Mr. Toms:
“For some time past we have been working on a plan for the refinement of our present system of handling the transfers from our store depositories.
“It has been our desire to effect a more efficient arrangement for the company, and at the same time provide our banks with a non-fluctuating balance, sufficient in amount to compensate the bank for their services to our stores. We believe the plan we have worked out will accomplish this purpose.
“Our new arrangements were inaugurated on December 8, 1930. Will you therefore be good enough effective immediately to remit at the close of business each day to the National Bank of the Republic of Chicago, Illinois, in Chicago exchange, all sums in our account with you in excess of $3,250, for our credit and advice.
“Our store at Lansing has opened so recently that neither you nor we know in detail the banking service to be rendered. After this plan has been in operation for a reasonable period, we should be glad to review the situation and make any adjustments that may appear to be necessary at that time.
“Thank you for your past co-operation, and we look forward to your acknowledgment of these revised instructions.
“Very truly yours,
(Signed) “John G. Byler, Treasurer.”
In pursuance of the arrangement suggested in this letter, which was accepted by the bank, the company made daily deposits, and all amounts in excess of $3,250 the bank transmitted to the National Bank of the Republic by drafts upon funds which it had on deposit in its correspondent bank in Chicago, the Central Republic Bank & Trust Company. Deposits and remittances were made in this manner until December 21, 1931. On December 22, 1931, the American State Savings Bank went into the. hands of a receiver under an order of the circuit court of Ingham county. The receiver immediately wired all correspondent banks and stopped payments on drafts. At this time the W. T. Grant Company had on deposit with the American State Savings Bank $4,902.20 for transmission to its account with the National Bank of the Republic of Chicago. It also had on deposit the $3,250 open account. It is claimed by the company that all in excess of this $3,250 was intrusted to the American State Savings Bank for the specific purpose of transmission, and, therefore, is a trust fund. The question is whether the parties intended a trust to be created. There was no express trust, and none can be implied •unless the understanding was that the money deposited for a specific purpose was not to he mingled with and become a part of the bank’s assets. It is reasonable to assume it was not in the minds of the parties that the money deposited should be physically transmitted to the National Bank of the Republic of Chicago. The contract is silent as to the manner of remittance. So it may be presumed that the parties contemplated it should be transmitted in the usual and customary way by draft on the correspondent bank. There are -no facts or circumstances to indicate that the money was intended to be set aside as a trust fund, or that the identical money deposited was to be transmitted to the Chicago bank. It is a proper presumption that the W. T. Grant Company knew the specific deposit would be mingled with other funds of the bank and 'that remittance would be made in the customary way by draft. We think the facts are not consistent with the existence of a trust but show the relationship of debtor and creditor. The fact that the money deposited was to be used for a specific purpose does not make it a trust fund. It becomes a trust fund only if deposited with the understanding that it should be set apart for a particular purpose and not mingled with other money of the bank. Great Atlantic & Pacific Tea Co. v. Citizens’ National Bank, 2 Fed. Supp. 29.
In the instant case, we think it was in the minds of the parties that the money was to be transmitted to the Chicago bank in the customary way, which is by draft, and that it was not intended to create a trust.
The judgment of the circuit court is affirmed, with costs.
Clark, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred, | [
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] |
North, J.
Plaintiff, as assignee of the beneficiary, brought this suit upon an insurance policy. From a judgment in his favor defendant appealed. The phases of the case material to this appeal appear in the portion of the charge of the circuit judge which we quote:
“The plaintiff seeks to recover the amount he claims is due upon the policy referred to, because of the accidental death of the assured (Joseph Charles G-aber), which occurred in the State of Wisconsin on the 10th of May, 1929.
“It is admitted that on April 11, 1925, the defendant insurance company issued a policy of insurance to Joseph Charles Gaber, in which-his mother, Mary Caber, was made the beneficiary. That policy provided that the company would pay for loss of life sustained by the wrecldng or disablement of any vehicle or car operated by any private carrier or private person, etc. * * *
“It is also admitted that upon May 10, 1929, the assured, Joseph Charles Gaber, met sudden death in a collision between an automobile and the motorcycle which he was riding.
“It is admitted that on or about the 20th of May, 1929, Mary Gaber, the mother, the beneficiary in the policy referred to, wrote a letter, directed to the Federal Life Insurance Company, dated Niagara, Wisconsin, May 20,1929: ‘ This is to notify you that Joseph Gaber was killed in an accident on Highway 67, May 10, 1929. Policy No. 577040. Receipt No. W248700. Date paid, 3/30/29. (Signed) Mrs. Mary Gaber, Mother.’ * * *.
“It is admitted that the defendant company received that letter on the following day. It is also admitted that the defendant company replied to that letter on the 22d day of May, which reply has been read, and it is admitted that this letter was received by Mary Gaber.
“It is claimed by the plaintiff that within about two days after the receipt of this letter she, Mary Gaber, mailed to the insurance company a newspaper, which contained an account of the collision and death of the young man; and it is denied by the defendant that it ever received that newspaper. And as I shall show you later, this raises the only question for your consideration in this case. * * *
“I said to you a moment ago that the question for your consideration was whether the newspaper in question was received by the Federal Life Insurance Company. The question really is whether or not the beneficiary, the mother, furnished the proofs of loss required by the policy and the law. The policy provides that written notice of the injury on which the claims are based, must be given to the company within 20 days after the date of the accident causing the injury, and in the event of accidental death immediate notice thereof must be given to the company.
“I charge you that the letter which has been shown in evidence shows a sufficient compliance with that provision of the policy.
“There is another provision of the policy to the effect that the company, upon receipt of such notice (notice of the death) will furnish the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not furnished within 15 days after receipt of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proofs of loss, upon submitting, within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, character and extent of the loss, for which claim is made. # * *
“It appears that no form of proof of loss was furnished to Mrs. Gaber; but that, instead, the company on May 22d, (wrote) asking, ‘That you kindly tell us just how this accident occurred, inclosing any newspaper clipping available.’
“Now it is the claim of the plaintiff that, I think, within two days — you will remember the fact — she sent a copy of the Iron Mountain News, containing an account of the collision and death of her son, and she claims that she sent this, by mail, properly addressed to defendant, with postage prepaid, and that the report of the collision and death in the newspaper fully complied with the request of the defendant to be told just how this accident occurred, and to be furnished with a newspaper clipping.
“Now the defendant claims it never received that newspaper, and that therefore the beneficiary, under whom the plaintiff, Bar stow, claims, did not do her legal duty to entitle her to recover under this policy.
“The question then for you is, was the newspaper delivered to the defendant, and did it substantially comply, if it was sent, with the request of the defendant company for further information?
“It is the generally recognized rnle of law, in these days, that proof of mailing a letter or other communication, properly addressed to the residence of the addressee, or to the place at which he usually received his mail, and otherwise conforming to the postal laws and regulations concerning postage, raises the presumption of the due delivery and receipt thereof. And when receipt is denied, it becomes a question of fact for the jury to determine; and there is your question. Did this newspaper account comply reasonably with the request of the defendant for further information, and was it received by the defendant? If you shall say yes, then the plaintiff is entitled to recover here. * * *
“The burden is upon the plaintiff to establish his claim by a preponderance of evidence, to entitle him to a verdict at your hands.”
Under the foregoing charge the jury found that the newspaper account complied substantially with defendant’s request for further proof of loss, and that it was mailed to defendant by Mrs. Gfaber and received by it. We find in the record ample proof to justify submitting this question to the jury and to sustain its verdict.
“A letter shown to have been properly addressed, stamped, and mailed is presumed to have been delivered ; and, while such presumption is not conclusive, a denial of its receipt is none the more so, but makes the question one for the jury.” Rauch v. Michigan Millers’ Mutual Fire Ins. Co. (syllabus), 131 Mich. 281.
See, also, Rowsseau v. Brotherhood of American Yeomen, 186 Mich. 101, citing numerous cases.
Appellant’s contention that the court erred in instructing the jury on the presumption of delivery and receipt of the newspaper mailed to defendant is without merit.
Both at the close of plaintiff’s proof, and again at the final closing of proofs, defendant moved for a directed verdict on the ground that the beneficiary did not furnish proof of loss in compliance with section 7, part 7, of the policy. The court’s denial of this motion is assigned as a reason for the appeal and stressed in appellant’s brief:
Section 7, part 7, of the policy, reads:
“Affirmative proof of loss must be furnished to the company at its said office in case of claim for loss of time from disability within 90 days after the termination of the period for which the company is liable, and in case of claim for any other loss, within 90 days after the date of such loss.”
In view of the record made, the ruling of the cifcuit judge in denying defendant’s motion for a directed verdict was correct. After defendant was notified of the loss, it refused or neglected to furnish the beneficiary with the usual forms on which to make proof of loss. Instead it requested that it be furnished proof of the exact character which the jury found the beneficiary forwarded to defendant and was received by it. Months later defendant denied liability because of the beneficiary’s failure to furnish proof of loss within the period specified in the above-quoted portion of .the policy. Testimony offered by plaintiff that proof of loss of the character requested by defendant was furnished presented an issue of fact; and defendant’s motion for a directed verdict was properly denied.
“The receipt and retention by the company of informal notice and proofs, without objection, or demand for further or more definite notice and proofs, constitute a waiver of objections as to their regularity.” 1 C. J. p. 479.
Judgment is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Potter, J.
William Look petitions for a writ of habeas corpus for the discharge of John G. Ferency from custody in an institution in which he was, at the time of the filing of the petition, detained in pursuance of an order of the probate court of Wayne county. An order to show cause was issued. A writ of certiorari has brought before us the papers in the proceedings relied upon to justify Ferency’s detention.
The return to the writ of certiorari contains a copy of the petition filed in the probate court which constitutes the only jurisdictional foundation for the order for petitioner’s incarceration. That petition recites:
“The following are the facts upon which the allegation of insanity is based, namely: Has attempted violence upon himself. Imagines other people are trying to harm him.”
There is no direct charge of insanity. The portions of the petition quoted above contain the only reference thereto. The allegations of fact in the petition which was made, in this case, the foundation of the order of commitment of petitioner, which deprived him of his liberty, must be such as to leave no doubt the case falls within the statute. In re Storick, 64 Mich. 685. .There are no sufficient facts detailed in the petition to justify the incarceration of petitioner. The allegations of the petition cannot be modified or amended by the voluntary ex parte conclusions of physicians. If petitioner was insane, the petition should have stated facts to support the allegation of insanity. 2 Comp. Laws 1929, § 6888.
In Re O’Neil, 239 Mich. 450, the petition alleged petitioner had strange fancies. It was said:
“The allegation of ‘strange fancies’ states no facts, but merely a conclusion, and, without the facts, might be inclusive of no more than freakish, eccentric, humorsome, or whimsical manifestations. The purpose of the statute is manifest. Facts must be stated. Such is the statutory mandate. Facts were not stated. This was jurisdictional.”
We think the petition defective in that it does not charge sufficient facts upon which to base an order adjudging petitioner insane. He should be discharged.
North, Fead, and Wiest, JJ., concurred with Potter, J.
Sharpe, J. In my opinion the averments in the petition that John G-. Ferency was insane, that he “has attempted violence upon himself,” and that he “imagines other people are trying to harm him,” were sufficient to confer jurisdiction upon the probate court to proceed to a hearing. His commitment did not rest thereon. The reports of physicians were submitted and other proceedings had, as provided for in the statute.
The petition for habeas corpus will be dismissed.
Clark, C. J., and McDonald and Butzel, JJ., concurred with Sharpe, J. | [
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] |
North, J.
This is an appeal from a judgment rendered against a garnishee defendant. May 22, 1929, plaintiff had judgment in the main suit for $2,800 damages caused by the negligent use of defendant’s electrical permanent waving machine. The judgment has not been paid. Defendants filed notice of appeal within 20 days after judgment and a stay of proceedings for that period was entered. No bond was filed, and for that reason the stay of proceedings was not continued beyond the 20 days. Subsequently a writ of garnishment was served on appellant. It made a disclosure of no liability. Plaintiff made a motion for summary judgment, also for judgment upon the garnishment disclosure. From the circuit judge’s denial of summary judgment, plaintiff appealed. There was affirmance in this court. Hoffman v. Professional Underwriters, 256 Mich. 622. After being remanded to the circuit court plaintiff filed and served a praecipe for trial of the garnishment issue, and the parties by stipulation agreed upon a day of trial. Judgment for $1,500 was entered against the garnishee defendant, and this appeal followed.
Appellant’s liability as garnishee defendant depends primarily upon appellee’s claim that the principal defendants were insured by appellant. But the latter insists that its contract with the defendants was one of indemnity, not of insurance. The policy provides that for a valuable consideration the “indemnitor” (garnishee defendant) agrees with the principal defendants as follows:
“1. To indemnify indemnitee against loss resulting from claims and suits for civil damages arising hereunder alleging damages sustained by any person or persons from error or mistake and based upon services rendered by indemnitee, or any employee of indemnitee, while engaged in the regular conduct of said business. * * *
“3. To indemnify indemnitee against loss from liability imposed by law upon indemnitee for damages on account of the use and application of all approved electrical appliances regularly employed in said business. * * *
“5. To defend indemnitee with its (indemnitor’s) attorneys in all suits for civil damages brought against indemnitee arising out of the conduct of the business above described.
“Subject to the following conditions.
“E. Indemnitee agrees not to compromise or attempt to compromise or handle any claim or suit, or contract any expense without the written authority of indemnitor.
“F. Indemnitee agrees to attend and assist in the defense or settlement of any claim or suit without expense to the indemnitor, and that in case of judgment against indemnitee said indemnitee shall perfect an appeal to such higher court or courts as indemnitor may request, by said indemnitee providing bond and said indemnitor paying reasonable costs thereof. ’ ’
Liability was limited to $1,500 in any one claim or suit. The policy requires the “indemnitee” to give immediate notice to “indemnitor” of any event or act which may lead to a claim or suit being brought against indemnitee. It does not contain a “no action clause.” Appellant’s attorneys assumed and conducted the defense in the principal case. Consideration of the terms of the policy and the evident purpose for which it was given clearly brings the conclusion that it must be held to be a policy of insurance under our decision in Kipkey v. Casualty Ass’n of America, 255 Mich. 408.
It is further urged by appellant that its policy does not cover the particular claim upon which plaintiff recovered judgment, and therefore it cannot be held in garnishment. This contention is based upon the fact that the premium of the policy was computed on the basis of defendants having only five permanent wave operators. At the time of the injury to-plaintiff defendants had a larger number of employees, but only five were operating permanent wave machines of the type which caused plaintiff’s injuries. Entirely aside from that circumstance, the policy does not specify the particular five operators covered by the policy; and by taking charge of the defense in the principal case appellant has placed its own construction on this policy as covering the particular employee, Mr. Simmel, whose negligence caused plaintiff’s injuries. We think appellant is bound by such construction notwithstanding its claim that it was not advised of the excess number of employees until the trial of the principal ease, and also notwithstanding the policy provides that it does not cover an employee for whom the regular annual premium charge has not been paid.
The other contentions made by appellant are, (1) that at the time of garnishment the judgment in the principal case had not become final and therefore would not support the garnishee proceedings; (2) that appellee was not entitled to trial of the garnishment issue because she did not technically comply with the statute (3 Comp. Laws 1929, § 14867) requiring demand of trial of the garnishment issue within 10 days after disclosure; and (3) that the record does not contain evidence fixing the amount of garnishee defendant’s liability. None of these are meritorious. The record discloses liability on the part of the garnishee defendant to the extent of $1,500, and the judgment rendered in the circuit court for that amount is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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Wiest, J.
Defendant Vernon J. Brown, a director of school district No. 1, township of Vevay and city of Mason, furnished printing and supplies, through a copartnership of which he was a member, to the school district. This was illegal on his part. The statute (2 Comp. Laws 1929,,§ 7692) provides:
“It shall be illegal for any member of the board of education * * * to perform any labor except as provided in this act, or furnish any 'material or supplies for the school district in which he is an officer, or to be personally interested in any way whatever, directly or indirectly, in any contract with the district in which he holds office. ’ ’
Plaintiff is a taxpayer in the district and filed the bill herein for an accounting and recovery of the money so expended. He invoices Act No. 94, Pub. Acts 1929 (1 Comp. Laws 1929, § 2711), which provides : '
“Any person or persons, firm or corporation, resident in any township or school district, paying taxes to such political unit, may institute suits or actions at law or in equity on behalf of or for the benefit of the treasurer of such political subdivision, for an accounting and/or the recovery of funds or moneys misappropriated or unlawfully expended by any public officer, board or commission of such political subdivision.”
This statute, instead of extending right to- recover, restricts the right to mentioned instances.
The bill was dismissed, and plaintiff appealed. The record presents no question of fraud or collusion or concert of purpose between the school board and defendants to evade the law. If it did an entirely different question would be presented. The governing rule, here applicable and barring recovery, is founded upon the fact that the school district has received services and supplies wholly legitimate for school purposes and the money paid therefor has neither been misappropriated or expended for unlawful purposes. The vice here disclosed was not in the expenditure, but in the fact, that the defendant Vernon J. Brown, as an officer of the school district,, was interested in furnishing needed and lawful printing and supplies.
This is not a case of enjoining payment because of the illegal act of defendant Vernon J. Brown. If it were, payment would be enjoined. Ferle v. City of Lansing, 189 Mich. 501 (L. R. A. 1917C, 1096); Burns v. City of Nashville, 142 Tenn. 541, 590 (221 S. W. 828), is authority for holding that recovery hack of the money paid cannot be had.
Public funds, misappropriated or paid without value or for services not within the law, may be recovered, but there cannot be recovery for services or supplies required or authorized by law and furnished, paid for, and retained by the school district.
The decree dismissing the bill is affirmed, with costs to defendants.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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] |
Wiest, J.
(dissenting). Defendants were convicted of the crime of arson, it being claimed that they engaged their employee, Eugene L. Furkas, to set fire to a paper mill in which they were principal stockholders at St. Joseph.. Furkas confessed and testified that, on January 28,1928, he visited defendants, at South Bend, Indiana, where they resided, to obtain money to pay employees at the paper mill, and, while there, was given a check by defendant Hurwich, and defendants asked him to set fire to the mill, and he did so the next day. Defendants denied asking Furkas to burn the mill, claimed he was not in South Bend on the 28th, but was there on the 26th, and defendant Hurwich, on the 26th, gave him a check to pay the employees, and neither defendant saw him on the 28th. Defendant Nicely claimed he was .in the city of Chicago on the 28th.
Counsel for the prosecution contend that no appeal has been perfected. Defendants were convicted November 21, 1930. At that time the code of criminal procedure (3 Comp. Laws 1929, § 17355 et seq.) regulated the practice for review by writ of error upon allowance by this court, and gave the trial judge power to extend the time for settlement of a bill of exceptions, not more than three months from the date of the order granting application for a writ of error, with power in this court to grant further time, not beyond one year after judgment. January 1, 1931, this court, by virtue of power vested therein by the Constitution, art. 7, § 5, * and conceded by the legislature (3 Comp. Laws 1929, § 13604), promulgated rules regulating practice and procedure in appeal cases and by Court Rule No. 66 provided that bills of exceptions be settled within 20 days after notice by the clerk of the trial court of the filing of designated subject-matter, or within such further time as the trial court might allow.
Time to settle a bill of exceptions herein was extended by the trial judge, and the bill was settled and signed within the year after verdict. The trial judge had power, under the rule, to extend the time, and, when we allowed the appeal, this court assumed jurisdiction, and the case is before us for review.
Counsel for defendants assign 157 errors, of which few have sufficient merit to call for discussion.
Defendants were evidently men of affairs. The paper mill was a valuable plant, but the business was a losing venture and needed refinancing, which was being endeavored at the time of the fire.
The principal testimony' against defendants was given by the self-confessed “fire bug” and one Victor Troyer, who claimed he was asked, along with Furkas, to burn the plant, but took no part in doing so.
We find errors assigned upon the asking of some questions, but no objections made thereto and no rulings thereon by the court. We cannot make review in such instances, for the error, if any, was want of objection by counsel. If counsel had no objection to offer, then they have no error to assign now. A question may carry,a harmful imputation or suggestion regardless of an answer thereto, but if it should not be asked it should be objected to and a ruling had for the purpose of review.
At the time of the fire Charles W. McLain was an employee of the Harwich Iron Company of South Bend, Indiana. He was called by defendants as a witness at the trial and testified to conversations he had had with Victor Troyer, one of the principal witnesses for- the prosecution. On cross-examination he was asked:
“Now, I will ask you if, at that time, you didn’t say to Troyer, in substance and effect, that you had told Mr. Schwartz, one of Mr. Hurwich’s attorneys, that they were going at this case from the wrong end * * * and that they should assume that Hurwich and Nicely were guilty, because they were guilty as hell and you knew it.”
Over objection, the court ruled the question might be answered. The witness answered “No.” The question was improper, but, considering the answer, we cannot hold it constituted reversible error.
Defendant Hurwich is a Jew. The assistant attorney general, who was aiding the prosecuting attorney, asked the following question of William Miller, a witness for the defense:
“At about the time you gave Alex DeFields this letter didn’t you say to him in substance and effect, ‘Hurwich or these people (referring to the St. Joseph Board & Paper Company) are going to go broke,’ and that ‘two bankruptcies and a fire is a Jewish fortune.’ Did you use that language?”
The witness answered: “No, sir.”
Counsel for defendants stated:
“Move the answer be stricken out as highly prejudicial to these defendants; especially defendant Nicely; said to a third party and has no connection with defendants in this case; entirely hearsay. ’ ’
The court ruled: “Let it stand.”
Counsel then stated:
“I meant to ask that the question be stricken out. I don’t care about the answer.”
The court made no further ruling.
The question was improper, called for a conversation between the witness and a third party, and, if ever uttered, was wholly inadmissible. The asking of it served as a means to convey to the minds of the jurors a senile cackle of slapstick days with prejudicial effect if not of purpose. There was no excuse for asking the question, and it should have been stricken from the record, counsel admonished, and its poisonous effect purged by instant instruction accomplishing such end.
The verdict was rendered November 21; 1930.
In his closing argument to the jury the prosecuting attorney stated:
“Thank Grod for such women as Miss Kinnamon. I tell you it takes courage to do what that girl did in this case. Down there among a bunch of criminals — that is the best you can say for them. Perjurers and liars, and that is mild! They are going to beat this case and they don’t care how; they are willing to manufacture evidence; they are willing to fabricate alibis.”
While this is assigned as error, we find no objection made, and we must, therefore, pass it, but not without stating that it is not within the office of an attorney to indulge in such invective.
At the trial defendant Hurwich was unable to produce the check he claimed was given to Furkas on the 26th, and Furkas claimed was given him on the 28th, of January, 1928. In the argument to the jury the prosecutor stated:
“There is one perfect defense in this case; one perfect defense. You remember, Furkas said the time of the conspiracy in Nicety’s office Hurwieh gave him a check to have cashed so he could pay the wages of the men at the St. Joe. plant. The defense has brought in stubs of the Hurwieh Iron Company. They are stubs of the Hurwieh Iron Company. They brought those in and brought in some checks. They did that to show there was no check written to Hurwich in that book on the 28th. Of course there wasn’t because this check was given at Nicely’s office and not at Hurwieh’s office. Hurwieh wouldn’t be carrying that big book with all those checks around in his pocket. There was never any question there. One of the defense attorneys started to misquote the evidence — this meeting in which the conspiracy took place, took place at Nicely’s office and nowhere else, and the testimony all along has been that way; therefore it couldn’t have been one of those. It was his personal check. That is the check book that Hurwieh would have in his pocket and that is the check he gave, a personal check. Why don’t they bring in the same books on his personal account. If they had brought in the same thing on his personal account and we had been unable to find a check numbered numerically, no missing check, wouldn’t that have been a defense? If we couldn’t find a check written in on that date, wouldn’t that have been a fine defense? Now do you believe that wasn’t thought of by these five attorneys. They thought of it, but why didn’t they bring it in? I’ll tell yo'u why. They didn’t dare, because that check was in existence! We couldn’t get it, of course. Those checks were asked for. Did they bring them in? Not on your life, because they would have had to do one of two things if they brought in this check. That would have convicted them and you know it. That is the biggest point in this case. Alibis manufactured! They could do that by not bringing into this court the stubs on his personal account and checks of his personal account. That would have given you something to work on. You are entitled to all the evidence in this case and you didn’t get that and didn’t get it because if it had been brought in it would have been the most damaging thing against them that could be obtained. Schwartz says there was no such check written. Why-didn’t they bring their stubs in their numbers as of that date? He wasn’t testifying; I wouldn’t take his word for it. You have a right to have those things produced here and when they don’t produce them, you are the only judge and govern yourselves accordingly. I don’t believe you are going to allow this arson gang to come into this court and buy their way out with perjured testimony.”
Motion for a new trial was filed December 10th, and denied December 15, 1930. December 29, 1930, by motion, the court was requested to extend the time for presenting a motion for a new trial, accompanied by the proposed motion showing newly-discovered facts, having an important bearing upon the quoted argument of the prosecuting attorney. Objections and counter affidavits were filed. The court refused to extend the time or to entertain the motion because the statute (3 Comp. Laws 1929, § 17356) provides that:
“Motions for new trials shall be made within thirty days after verdict, and not afterwards,” and there was no discretion vested in the court.
We have held that right to move for a new trial in a criminal case must be exercised within 30 days under the mentioned statute. People v. Wilson, 246 Mich. 282; People v. Smith, 252 Mich. 4. Defendants here asserted no such right, but requested the court for leave to move for a new trial, and tendered the motion. It is true that the right to move for a new trial had expired, but the inherent power of the court to permit the motion to he made remained, to be exercised, however, within sound discretion. In refusing to consider the request for leave to make the motion the court was in error in not exercising discretionary power. Had the court, upon due consideration, exercised discretion and have denied the request for leave, review here would be limited to détermination of whether there was an abuse of discretion. But refusal to consider the matter at all operated in denial of leave and of the motion and no discretion having, been exercised, as should have been' done, and the full record being before us, we need only say, as we shall point out, that leave to make the motion should have been granted, and the motion heard and granted. The discovered matter set up in the mentioned motion, and with which we are now concerned, related to facts directly bearing upon the argument of the prosecuting attorney quoted above. It appears from the showing in support of the motion and the counter showing that Miss Kinnamon, an employee of defendant Hurwich, abstracted the mentioned check from the office and carried it to the prosecuting officers who examined it during the trial, and, therefore, knew of its existence. Upon this we quote from the affidavit of the prosecuting attorney:
“Deponent further says that during the trial of the above-named cause, Mr. Allen or Mr. Troyer brought to deponent’s office in the city of Benton Harbor, a check for $120 dated January 26, 1928, payable to the St. Joseph Board & Paper Company signed by M. L. Hurwich' and indorsed St. Joseph Board & Paper Company, per Eugene Furkas, and indorsed by Goodman & Goldbaum of Benton Harbor, Michigan, which check was shown to deponent in the presence of Mr. Troyer, Mr. Waples, Mr. Allen and Mr. Furkas, and the attention of Mr. Furlcas was called to the fact that the check was dated January 26th instead of January 28th, and the said Furkas was asked if he could be mistaken about the date, to which the- said Furkas replied in substance that ‘he’ referring to Maurice Hurwich, ‘was too smart for us,’ and that the said Hurwich had dated the check on the 26th in order to make it appear that the conspiracy occurred on the 26th instead of the 28th, and that the said Furkas insisted that the conspiracy occurred on the 28th as he had already testified in the above-named suit.
“Deponent further says that Allen on the. occasion never told Furkas that he did not want to use the check at all, ‘that it would probably hurt their ease,’ but deponent says that Mr. Waples and this deponent insisted that the check be returned to the files of the Hurwich Iron Company even though the check showed conclusively that Furkas obtained that sum of money as he had testified. ’ ’
We also quote from the affidavit of Charles B. Allen, deputy State fire marshal:.
“Deponent further says that while the trial wás in progress, Miss Edna Kinnamon at a meeting in Berrien Springs, Michigan, handed Mr. Troyer a check dated January 26, 1928, drawn on the American Trust Company at South Bend, Indiana, for $120, payable to the order of the St. Joseph Board & Paper Company and indorsed St. Joseph Board & Paper Company by Eugene Furkas, and again indorsed by Goodman & Goldbaum, and marked paid by the American Trust Company, on February 1, 1928, which check was shown to Mr. Waples and Mr. Cunningham at the office of Mr. Cunningham late one night during the trial; that either Mr. Cunningham or Mr. Waples noticed the date of the check and called the attention to (of) Mr. Furkas to the fact that it was the 26th and asked him if he could be mistaken about his testimony, to which he re plied ‘They were too smart for ns and Hurwich dated the check back on purpose,’ and Mr. Waples or Mr. Cunningham made the remark that they did not want to use any information obtained in that manner although it would strengthen the people’s case, and instructed this deponent and Mr. Troyer to return the check to Miss Kinnamon and have her replace it in the records of Mr. Hurwich, and this deponent gave the check to Mr. Troyer and Mr. Troyer gave the check to Miss Kinnamon and instructed her to place the check back where she obtained it, in Hurwich’s office.”
The affidavit of Miss Kinnamon also accompanied the counter showing, but made no mention of the check or taking it to the prosecuting officers or what she did with it thereafter.
In support of the motion was the affidavit of Mr. Furkas recanting his testimony at the trial, and stating that, during the trial, Miss Kinnamon told him that she had destroyed the check. It was evidently through Furkas that the attorneys for defendants learned that the prosecuting officers had seen the questioned check.
Considering the mentioned argument of the prosecuting attorney and the showing in support of leave to move for a new trial, the court should not only have entertained the motion but have granted a new trial. The importance of the check as a decisive factor, argued by the prosecutor to the jury, cannot now be minimized by claim that it was of little moment, considering the other evidence.
Judgment should be reversed, and new trial granted.
McDonald and Butzel, JJ., concurred with Wiest, J.
Fead, J. I do not agree with Mr. Justice Wiest that the record presents reversible error.
I agree that the question asked of witness Miller, quoted by Mr. Justice Wiest, should not have been propounded. Miller’s testimony was not so important as to justify the people in hazarding possible arousal of racial prejudice and consequent reversible error. But the question was competent as a prior inconsistent statement of the witness, as is made apparent by its setting.
An important issue was whether a fire would have profited defendants. There was considerable evidence that the business was a losing venture, with little hope of success. Miller was chief engineer, and the general effect of his testimony was that defendants were particularly zealous in guarding against fire, and that prospects for the plant were favorable.
The question was in direct impeachment of Miller’s claim. Miller had left the employ of defendants about January 1st and claimed it was to better his condition, not because of depressed condition of the business. In December he had given another enginéer, DeFields, a letter of recommendation to obtain a new position. On cross-examination he testified :
“I do not remember that I told Alex DeFields shortly before I left the St. Joseph Board & Paper Company that things were getting in such bad shape that he had better look around and get himself a new job. I might have told Alex DeFields I was looking for another job. I know he came to South Bend with me later. I do not remember that I gave him a letter of recommendation but if he asked me for one I certainly did.
“Q. I ask you to read Exhibit 30.
“A. Yes, sir, I wrote that letter. It was a letter of recommendation for Alex DeFields.
“Q. You used this remark did you not? ‘He leaves the employ of this company through no fault of his, but due to business depression.’ That is correct?
“A. Yes, sir, that was temporarily a business depression. The latter part of the time I was there I took care of the mill at night to keep it from freezing up.
“Q. At about the time you gave Alex DeFields this letter didn’t you say to him in substance and effect ‘Hurwich or these people (referring to the St. Joseph Board & Paper Company) are going to go broke,’ and that ‘two bankruptcies and a fire is a Jewish fortune.’ Did you use that language?
“A. No, sir.”
The scope of cross-examination is largely within the discretion of the court, the record does not indicate that the question was asked in bad faith nor that it affected the verdict, and, as the question was competent, it cannot be held reversible error.
I agree with Mr. Justice Wiest that the court may order a new trial in a felony case after the time within which the defendant may move for a new trial as a matter of right, under 3 Comp. Laws 1929,' § 17356. Nichols v. Houghton Circuit Judge, 185 Mich. 654 (Ann. Cas. 1917D, 100), construed 3 Comp. Laws 1915, § 15836, which reads:
“The court in which the trial of any indictment shall be had, may, at the same term, or at the next term thereafter, on the motion in writing of the defendant, grant a new trial, for any cause, for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court shall direct. ’ ’
The section was adopted verbatim into the code of criminal procedure, 3 Comp. Laws 1929, § 17355, with the italicized words eliminated.
The next section (section 17356) provides:
“Motions for new trials shall he made within thirty days after verdict, and not afterward.”
In so modifying and dividing the provisions for new trial, the legislature undoubtedly had in mind the Nichols Case and intended to confer on the court the power to order new trial without limitation of time. This construction is emphasized by the fact that in the next section the limitation of time refers only to motions for new trial and has no reference to the power of the court.
The showing on the check incident is not sufficient to justify the court in ordering a new trial. The importance of the check lies in .the time of its delivery. The people’s case of conspiracy rests upon the claim that, on Saturday, January 28th, the check was given by Hurwich to Furkas for pay roll, in lieu of Hurwich signing individual pay checks prepared by Furkas. Now that the existence of the check is admitted, its date, January 26th, is of consequence only as bearing upon the time of delivery. The testimony is undisputed that Furkas made out the individual pay roll checks on January 27th, and it is not now denied that Furkas cashed Harwich’s check at a store Saturday afternoon, the 28th, after the bank had closed for the day. The inference is that Hurwich gave Furkas the check after Furkas had prepared the pay roll checks and too late on Saturday to enable Furkas to get it cashed at the bank.
The prosecuting officers had the check in their possession only a few minutes, and sent it back to be returned to Hurwich’s files. The evidence that the check was destroyed rested upon Furkas’s affidavit that Miss Kinnamon told him she had destroyed it, and upon her failure to mention the check in her affidavit. Hurwich does not depose that it was destroyed or that he does not have it. In any event, the fact that the prosecuting officers had it in their possession a few minutes did not prevent Hurwich from offering it in evidence if he had it or offering to prove it as a destroyed check. Had he shown any indication, at the trial to offer it, either by actual production or claim it was lost, and had the people opposed the offer or quibbled about the existence of the check or its date, the situation would have been very much different.
But the record does not show that the theft of the check and its destruction, if it was destroyed, hindered defendants in their defense. The record demonstrates that defendants knew the value of evidence and were diligent in procuring it. Hurwich produced many letters, books, and checks; ledger sheets of Hurwich Iron Company, showing expenditures for the St. Joseph Board & Paper Company, the corporation owning the buildings burned; his own ledger sheets showing all of his personal contributions to the corporation; many checks of his payments for pay rolls and bills before and after the fire; and check stubs of Hurwich Iron Company to show that no check was drawn to Furkas on January 28th. He did not produce his own personal check book stubs. The stubs of a well-kept check book usually will disclose whether a check has been written out of order as to date. He had the check in his possession for many months, and it was not until the trial was well under way that it was purloined. It is straining credulity too far to assume or imagine that Hurwich did not know the fact and date of the personal check he gave to Furkas for the pay roll and its importance as evidence. At no time during the trial did he offer to introduce it or claim it was lost or destroyed. His testimony regarding the pay roll, the whole of which follows, can hardly be taken otherwise than as demonstration of his deliberate intention not to produce the check or stubs.
“On January 28, 1928, I think I had a personal bank account in South Bend besides the Hurwich Iron Company account.
“Q. And as an actual matter of fact, the check you gave Furkas was on the personal account, was it not?
“A. What check?
“Q. The check you gave Furkas was on your personal account?
“A. I don’t know what check you are talking about.
“Q. Well, how was the pay roll met for the week that ended January 28th?
“A. I don’t know.
“Q. Tou don’t know?
“A. No, sir.
“Mr. Nicely and I were paying the pay roll at that time. I don’t remember whether or not I paid it that week. I would say that I did pay it. So far as I know it was paid.
“Q. And if it was paid, the money came from you and Mr. Nicely, no question about that?
“A. It might have come from the bank. If it came from the bank that would be the money of the St. Joseph Board & Paper Company. It would be the money we put up for the St. Joseph Board & Paper Company.
“Q. Have you got all your personal check stubs and personal checks for that week in January, 1928?
“A. I have not.
“Q. So you don’t know whether it is among them or not?
“A. No, sir.
“Q. But you brought up one here you wrote it wasn’t among, namely, the stubs of the Hurwich Iron Company?
“ (No answer.) ”
The prosecuting attorney, having ordered return of the check to Hurwich, having no reason to believe that it had not been returned, having no intimation that Hurwich desired to introduce it in evidence, and having challenged the attention of the defense to the failure to produce Hurwich’s personal check stubs after it had produced the check stubs of Hurwich Iron Company, was justified in assuming that the failure to produce the stubs and check was intentional and to make the argument upon that bajfi's. No objection was made to the argument or request to charge upon it. Therefore, error cannot be assigned upon it, and it is to be considered only as a circumstance in moving the discretion of the court upon motion for new trial.
Passing to the motion for new trial, we fail to find an affidavit from Hurwich that he gave Furkas the. check on January 26th, or an offer to show by check stub or otherwise that the check was not misdated or any claim'that he cannot now produce the check or stubs. The only evidence defendants now offer to show delivery of the check on January 26th, to overcome the prior testimony and strong circumstances indicating delivery on the 28th, is the affidavit. of Furkas.
It would be an abuse of discretion to grant a new trial upon the affidavit of a confessed perjurer, whose retraction of his testimony was “without honest purpose” (People v. Furkas, 255 Mich. 533, 535), when it seems plain that, at the trial, Hurwich intentionally concealed the facts regarding the check and now, presumably having in his possession physical evidence of the date of its delivery, fails to present it to the court or offer to do so, or to deny that he is able to present it, and even fails to allege on oath that the check was not delivered on the date claimed by the people.
Judgment is affirmed.
Clark, C. J., and Potter, Sharpe, and North, JJ., concurred with Fead, J. | [
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Fead, J.
Plaintiff, claiming right of possession of a certain boiler, as mortgagee in a chattel mortgage given for its purchase price, filed a petition under the declaratory judgment law (3 Comp. Laws 1929, § 13903 et seq.), to recover possession from defendant, who claims to be the owner free of the mortgage.
The proper action is replevin. The proceeding for declaratory judgment is not a substitute nor alternative for the common-law actions. Village of Grosse Pointe Shores v. Ayres, 254 Mich. 58, 62.
Judgment for plaintiff reversed, without new trial, and without prejudice to bring the proper action. As the point -was not raised, no costs will be ordered.
Clark, C. J., and McDonald, Sharpe, North, Wiest, and Butzel, JJ., concurred with Fead, J. | [
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North, J.
The First National Bank of Royal Oak closed June 26, 1931. At that time plaintiff school district had on deposit in the savings department $54,751.15,- and it also held four certificates of deposit totaling $26,290.88. The savings certificates were “payable under the rules of the savings department.” Incident to its account the district had demanded a depository bond which was executed by the bank'as principal and by the defendant as surety. We quote it in part only :
“Now, therefore, the condition of the above obligation is such, that if the said principal shall well, faithfully and honestly keep and account for all said moneys which are on deposit or may hereafter be deposited with it by or on behalf of the obligee, and shall, without delay, pay over, deliver and account for the same and any and every part thereof, from time to timé and at any and all times, upon legal demand, and also all interest which shall accrue or be payable thereon, then this obligation to be void, otherwise to be in full force and effect.
“Provided, however, and upon the following further express conditions:
“2. This obligation shall be absolutely void provided the principal has not suspended payment prior to the time of expiration of the term of this bond.
‘ ‘ 10. The surety shall have the right to terminate its suretyship under this obligation by serving notice of its election so to do, upon said obligee, * * * and thereupon the said surety shall be discharged from any and all liability hereunder for any default of the principal occurring after the expiration of five days after the service of such notice. ’ ’
On March 21,1931, defendant served plaintiff with a notice dated March 19th, that it elected to terminate its liability on the bond ‘ ‘ after the expiration of five days from the receipt of this notice by yon.” On the date plaintiff received defendant’s notice the bank directors suspended payments on savings accounts except upon and after 60 days ’ notice by the depositor. Upon receipt of defendant’s notice plaintiff demanded payment of its deposit by the bank. Payment was refused. Demand for payment was renewed upon expiration of the 60-day period, and again refused. With the exception of $7,900, plaintiff was not permitted to withdraw its funds before the bank closed. Following the closing of the bank, and on August 7, 1931, plaintiff brought suit upon the bond. From a judgment in the circuit court for plaintiff, defendant has appealed.
The defense primarily urged is that defendant exercised its right to terminate its liability as a surety in strict accordance with the terms of the bond by giving the five-day notice and was thereby released. We think the bond cannot be so construed. It is conditioned that the bank “without delay will pay over, deliver, and account for” all moneys deposited with it by plaintiff upon legal demand being made therefor ; and the bond provides that it ‘ ‘ shall be absolutely void providing the principal has not suspended payment prior to the time of expiration of the term of this bond.” The converse of this last provision must be true, namely, that the bond would remain in full force and effect providing the bank suspended payment during the life of the bond. Before the five-day period for notice of cancellation had expired, the bank, by putting in force the restriction that savings depositors could not withdraw money from their accounts except upon 60 days’ written notice, “suspended payment” as to plaintiff within the meaning of the quoted provision of the bond. It goes without saying that the surety could not revoke its liability on the bond after the condition thereof had been breached.
Other interesting questions are presented by the record, but in view of the conclusion above indicated, their consideration would not aid appellant. The judgment entered in the circuit court is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Sharpe, J.
What is commonly spoken of as the “School code” was enacted by the legislature in 1927 (Act No. 319). It appears in the compiled laws of 1929 as § 7094 et seq. Section 7131 reads as follows:
“Whenever a majority of the qualified school electors of any organized township present and voting, vote in favor of organizing said township into a single school district, such township shall, after the election of the board of education as hereinafter provided, be a single school district and shall be governed by the provisions of this act.”
Provision is thereafter made for the presentation of a petition therefor to the township board of the township and the submission of the question to a vote of the qualified school electors therein.
At a special election, held in the township of Barry, in the county of Barry, pursuant thereto, it appeared that 183 votes were cast in favor of, and 114 against, the proposition. Members of the township school board were thereafter duly elected and assumed to act as such, whereupon the officers of the plaintiff districts commenced this proceeding by quo warranto to test the legality of the organization of the township district and the right of such persons to hold such offices. A judgment was entered for defendants, from which plaintiffs have taken this appeal.
The first question presented is thus stated by counsel for appellants:
“Can a primary school district be compelled to become consolidated without its consent?”
In our opinion, decision of this question is controlled by Perrizo v. Kesler, 93 Mich. 280. In that case the constitutionality of Act No. 176, Pub. Acts 1891 (2 Comp. Laws 1915, § 5892 et seq.), which authorized the organization of any township in the upper peninsula into a single school district upon certain steps being taken by the qualified electors of the township, was involved. One of the claims made was, “That the act destroys the essential attributes of the primary school-district, as it existed at the formation of the Constitution,” and it was held “that our Constitution expressly, relegates the primary schools to the discretion of the legisla ture.” This decision has been cited with approval in Keweenaw Ass’n v. School-District, 98 Mich. 437; Pingree v. Board of Education of Detroit, 99 Mich. 404; Attorney General, ex rel. Kies, v. Lowrey, 131 Mich. 639; Burton v. Koch, 184 Mich. 250; and is in line with our holdings as to the control of the legislature over cities and villages. See Kingsford v. Cudlip, 258 Mich. 144.
It is also urged that the notice of election given to the voters was insufficient. It was in the following form:
“Notice op Election.
“Notice to the qualified school electors of the township of Barry, county of Barry, Michigan, and the legal school electors of fractional districts the schoolhouse of which is in said township :
“The township board of said township has called a special election for the purpose of submitting the question of organizing said township into a township school district as provided under Act No. 319, Pub. Acts 1927, as amended, at the town hall of said township on the 28th day of July, A. D. 1931.
“The polls will be open at 10 o’clock a. m., and remain open until five o’clock p. m., on said above-named day and date.
“Dated this 3d day of July, A. D. 1931.
(Signed) “Vernon Webster,
“Twp. Clerk.
-^“Election to be held at the Tooles schoolhouse.”
The defect complained of is in the designation of the place for holding the election. The testimony discloses that there was no town hall in the township. In using the form the township clerk should have inserted the name of the schoolhouse in its stead, but neglected to do so, and added the words stating the place where the election would be held, with an arrow pointing to it as indicated. For general election purposes the township is divided into two election precincts, one of them being located in what is spoken of as the Dietrich building in Hickory Corners, and the other in a hall owned by the Community Club in the village of Delton. When this petition was presented to the township board, it determined that there should be but one place in the township for the holding of the election, and, as testified to by the supervisor, selected the Tooles schoolhouse therefor “because it was the nearest public building to the center of the township;” that the schoolhouse was known by that name because “there was a family of Tooles lives there in that neighborhood for a great many years.” We may take judicial notice of the fact that the township of Barry is approximately six miles square, and contains but 36 sections of land.
The election being a special one, the statutory provisions as to notice must be deemed mandatory. In Hulan v. Township of Greenfield, 229 Mich. 273, the sufficiency of the publication of a notice of a special election was involved in an ouster proceeding. In the opinion, written by Mr. Justice Steebe, the question was discussed at length, and many authorities cited and quoted from. The conclusion reached is thus stated:
“We are here dealing with an election which is past and asked to declare it void because a particular detail of the law relative to notice has not been strictly observed, without any showing that thereby any elector was deprived of his right to vote or in any way misled or that the result was affected by the irregularity complained of. The validity of an election does not involve the technical question of jurisdiction as in a case where the court is acting judicially between litigating parties. Conceding as mandatory the statutory requirements that general notice of time, place and purpose of a special election be given the public by posting and publishing for the times and in the manner outlined, the essential requirements to that end have been substantially complied with. ’ ’
The record before us does not disclose that any elector was déceived as to the place where the election would be held, or was deprived of his vote thereby. It is apparent that anyone who saw and read the notice as posted would be informed that the election would be held at the Tooles schoolhouse, a place doubtless well known to all the electors of the township. The omission to so state ip the body of the notice when it so clearly appeared in the line below, to which attention was directed by the arrow pointing to it must be deemed an irregularity only. As was said in People, ex rel. Hartwick, v. Avery, 102 Mich. 572, 574:
“The electors are not to be deprived of the result of their votes at an election by the mistake of election officers, when it does not appear to have changed the result. Under repeated decisions it is settled that the matters relied on here were irregularities, and did not invalidate the election. ’ ’
In Gardner v. Board of School District, 248 Mich. 134, 137, Mr. Justice Wiest, speaking for the court, said:
“The election was ‘called to be held in schoolhouse in said school district,’ etc. In the district are two school buildings; one used as a kindergarten, and situated across the road from the school building proper. Because of the two school buildings we are asked to hold that the place of election was indefinite. There is no evidence of confusion as to place and no possible reason for the voters not understanding where they were to vote. We are not impressed with the point urged.”
The judgment is affirmed.
Clark, C. J., and McDonald, North, Fead, Wiest, and Butzel, JJ., concurred with Sharpe, J. | [
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Potter, J.
Plaintiff sued defendants for rent alleged to be due upon a lease and supplemental lease of valuable Detroit real estate. Defendants answered, alleging several matters of defense, the principal of which was eviction. Plaintiff replied to defendants ’ answer and moved for summary judgment. Defendants filed counter affidavits and exhibits. A summary judgment for plaintiff was rendered by the trial court for $3,632.73. Defendants appeal. The trial judge filed an opinion in support of the judgment rendered which clearly states and correctly disposes of the issues. We adopt it.
“Plaintiff is suing to recover rent claimed to be due under the terms of a long-term lease and supplemental lease covering a valuable piece of property on Woodward avenue in Detroit. Defendants defend on the ground that they were evicted.
“There were substantial buildings on the leased premises, and under the terms of the original lease the lessee was obliged to replace them with a build ing costing at least $100,000, depositing securities to the extent of $100,000 before tearing down the old buildings.
“The change in real estate conditions probably brought about the supplemental lease of October 31, 1930. This new lease was between plaintiff and Angus Smith (the original lessee) and Fred L. Smith, his brother (a new party to the lease), and, among other things, it postponed the erection of the new building until 1940 and granted lessees the right to tear down existing structures and cement over the full area in order to utilize the premises for parking lot purposes. Except as modified the old lease remained in effect. All rent due up to December 1, 1930, was paid by defendants. They made preparations to tear down the buildings and convert the premises into a parking lot. It was then discovered that there were two mortgages given by lessor and consent of the mortgagees had not been obtained to razing the buildings. There is some question whether consent of the first mortgagee is in proper form, but the principal controversy centers around the second mortgage. This was held by the Briggs Company and was under foreclosure. After some negotiations a conditional consent to the razing of the building was given, the condition being that a payment of $4,500 be made on account of the mortgage. Plaintiff attempted to place the burden of raising $2,500 of this amount upon defendants, the same to be deducted from the rental to become due December 1,1930. Defendants refused to accept this proposition. They claimed that the failure of plaintiff to obtain the consent of both mortgagees to the razing of the buildings amounted to an eviction and accordingly tendered the keys and surrendered the lease.
“Plaintiff contends that he was under no obligation to secure the consent of his mortgagees, but that this obligation rested upon defendants, basing his contention in this respect upon paragraph 7 of the supplemental agreement, which reads as follows:
“ ‘7. It is agreed and understood that the operative effect of the agreement and covenants herein contained is in no way dependent or conditional upon the placing into effect of the parking lot venture mentioned aforesaid, nor upon the success of such operations. ’
“I cannot agree with plaintiff’s contention. Paragraph 4 of the supplemental agreement expressly gives defendants the right to raze the buildings and convert the premises into a parking lot. The original lease contains the usual covenant for quiet enjoyment. Combining these two provisions it seems to me to follow logically that if either mortgagee lawfully prevented the. razing of the building, it would amount to a breach of the covenant for quiet enjoyment.
“However, it appears to me that the important question to be decided is whether the steps taken by the second mortgagee to foreclose its mortgage and the refusal to give its consent except upon terms which plaintiff did not meet amounted to a breach of the covenant for quiet enjoyment. Can defendants claim to have been evicted merely because the second mortgagee expressly refused to consent to a razing of the buildings 1 It must be borne in mind that the second mortgagee had taken no steps to secure injunctive relief against any acts of the defendants. Such action might possibly-' present a more serious problem. The second mortgagee had no right to the possession of the premises. That right still remained with the lessees. Until the‘mortgage had been foreclosed and the equity of redemption had expired the purchaser at foreclosure sale could not dispossess defendants holding under their lease. At any time prior to that date plaintiff could redeem from foreclosure and thereby prevent a breach of his covenant for quiet enjoyment. Indeed, had the Briggs Company gone into court to secure an injunction against tearing down the buildings plaintiff would still have been able to prevent the issuance of the injunction by satisfying the mortgage. Consequently, in my opinion, there can be no constructive breach of the covenant for quiet enjoyment; there must be an actual dispossession of the defendants, either by actually preventing the razing of the buildings or by actually taking possession of the premises. It follows that the acts of plaintiff and his mortgagees in the instant case do not constitute an eviction which warranted defendants in surrendering their lease.
“The remaining question to be determined is whether in accepting the keys to the premises plaintiff accepted defendants’ surrender of the premises in termination of the leasing. Counsel on both sides contend that there is no question of fact to be decided in answering the question, but that its determination is one purely of law.
“The letters passing between counsel from the latter part of November until the middle of December, cover this phase of the case very fully. * * * From this correspondence it is apparent that defendants claimed an eviction, and, relying upon this claim of an eviction, announced an abandonment and surrender of the premises, tendering the keys and various papers in token of this surrender. On the other hand, plaintiff denied there had been an eviction, refused the tender, and announced the intention of holding the defendants on the lease. After this correspondence had passed one of plaintiff’s attorneys visited th.e office of defendants’ counsel and took the keys, stating that it was without waiver of plaintiff’s rights and without recognition of any surrender, but for the purpose of mitigating damages. Plaintiff subsequently razed the buildings and converted the premises into a parking lot.'
“In this situation it is evident that there was not an express surrender by mutual consent because the minds of the parties did not meet upon such a proposition. It remains to be seen, then, whether the acts of the parties constituted a surrender by operation of law; whether the taking of the keys under the circumstances related and the subsequent razing of the buildings estopped plaintiff from claiming rights under the lease.
“A taking of the keys coupled with notice that it was not in recognition of a surrender would not of itself raise a presumption of surrender by operation of law. When a landlord takes possession for the purpose of rerenting he is justified in making necessary repairs. But in the ordinary case the tearing down of all buildings on the premises would be con-. strued as an acceptance of the surrender by operation of law for the reason that such an act would usually be equivalent to an entire change in the character of the lease. The case at bar, however, is an exceptional one. The eviction claimed by defendants arises because, as they claim, they were prevented from doing this very act, viz., converting the premises into a parking lot. And it is apparent that all parties considered this as the best use to which the premises could be put under existing conditions. Viewed in this light, the plaintiff’s act in tearing down the buildings and cementing over the lot must be considered as an honest attempt to mitigate damages and not as an acquiescence in the proposed surrender by defendants.
££In my opinion, the evidence does not warrant a finding that the attempted surrender of the premises by defendants was accepted by plaintiff, either in fact or by operation of law.
££It follows that plaintiff is entitled to a judgment for the rent covered by his declaration in this case.”
Judgment affirmed, with costs.
Clark, C. J., and McDonald, Sharpe, North, Fead, and Wiest, JJ., concurred. Butzel, J., did not sit. | [
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McDonald, J.
This suit was brought to recover the purchase price of certain stock which had not been approved for sale by the Michigan securities commission. The plaintiff bought the stock from the defendants who are brokers with offices in the city of Detroit. When he learned that it had not been approved for sale, he claims to have made a tender and demanded the return of his money. On refusal he brought this suit. The defendants filed notice of set-off in which they claim damages of $3,274 for failure of the plaintiff to pay for 100 shares of tlie stock. The case was tried by the court without a jury. Findings of fact and law were filed and a judgment of no cause of action entered. Both parties have appealed.
The following questions are involved:
1. Does the so-called “knowing” clause of Act No. 220, Pub. Acts 1923, § 20, apply both to the seller of the stock and to his agent?
2. Was the sale an interstate commerce transaction so as not to come within the provisions of the blue-sky law (2 Comp. Laws 1929, § 9769 et seq.) ?
3. Was there a valid tender?
1. Does the so-called “knowing” clause of Act No. 220, Pub. Acts 1923, § 20, apply both to the seller of stock and to his agent?
Section 20 reads as follows:
“Every sale or contract for sale of any security, not accepted for filing under this act or made contrary to any order of the commission, shall be voidable at the election of the purchaser, and the person making such sale or contract for sale, and every agent of or for such seller who shall have participated or aided in any way in making such sale, knowing such sale to be in violation of this act, shall be jointly and severally liable to such purchaser, upon tender to the seller or in court of the securities sold or of the contract made, for the full amount paid by such purchaser, together with all taxable court costs in any action brought under this section: Provided, That no action shall be brought for the recovery of the purchase price after two years from the date of such sale or contract for sale. No purchaser otherwise entitled shall claim or have the benefit of this section, who, .having knowledge of the fact that such sale was made in violation of the provisions of this act, shall have refused or failed within a reasonable time to accept the voluntary offer of the person making the sale to take back the securities in question and to refund tlie full amount paid by such purchaser. ’ ’
It is the plaintiff’s contention that the “knowing” clause of this section does not apply to the seller but applies to the agent only; that it should receive a liberal construction and when so construed it leaves'" the liability of the seller as it was before the enactment. There is no occasion for a construction of the language used. There is no uncertainty or ambiguity about it. We cannot construe it contrary to the plainly expressed language of the legislature. It means just what it says; and it says that the seller and agent shall be jointly and severally liable to the purchaser if they make the sale knowing it to be a violation of the blue sky law.
Prior to the enactment of 1923, the statute contained no provision like section 20, but, without such a provision, this court allowed the buyer to recover the purchase price on the theory that the sale" was a violation of a penal statute and therefore void. Section 20 of the 1923 act gave him a new remedy but made it depend on the knowledge of the seller or his agent that the sale of the stock had not been approved by the commission. Section 20 • was amended in Act No. 136, Pub. Acts 1929 (2 Comp. Laws 1929, § 9788), by eliminating the “knowing” clause. But that clause was in the statute when the sale of stock in this case was made. As it applies to the seller, in order to make a case against him, the plaintiff must prove that he knew that the sale of the stock had not been approved by the commission. There is no evidence of that in the record. It is all to the contrary. Not having established that necessary element in his case, it follows that the plaintiff cannot recover in this action. And as this is decisive of the issue, it becomes unnecessary to discuss the other questions involved.
The judgment is affirmed, with costs to the defendants.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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North, J.
This is a suit on a promissory note signed by the defendant, Belle W. Clement, and another, Byron C. Thorpe. The defense urged is that the note is the joint obligation of the two makers, and that plaintiff cannot recover because one of them was not made a party defendant. The jury’s verdict was in favor of the plaintiff, but judgment for defendant was entered non obstante. Plaintiff has appealed.
The note in part reads:
“Chicago, Ill., February 9, 1931.
‘ ‘ Sixty days.....after date, the undersigned, for value received, promises to pay to the order of Continental Illinois Bank & Trust Company, at its office in Chicago, Ill., Twenty-four thousand dollars. * * *
“To secure the payment of this note * * * the undersigned has pledged, transferred and delivered to said bank the following property, viz: (sundry securities) and further to secure said note and liabilities the undersigned hereby pledges, assigns and transfers any and all other property now or hereafter and howsoever in the possession or control of the holder hereof. * * *
(Signed) “Byron C. Thorpe
(Signed) “Belle W. Clement.”
The negotiable instruments law of this State (2 Comp. Laws 1929, § 9266) provides:
“Where an instrument containing the words ‘I promise to pay,’ is signed by two or more persons, they are deemed to be jointly and severally liable thereon. ’ ’
“If an instrument worded in the singular is executed by several, the obligation is a joint and several one.” Dow Law Bank v. Godfrey, 126 Mich. 521 (86 Am. St. Rep. 559), citing numerous cases.
It is quite persuasive) that each of the several verbs used in this note is in form to agree with a subject in the singular, not in the plural. Conforming to this construction, the note, if stated in such words as would eliminate the seeming ambiguity, would read: Each (not both) of the undersigned promises to pay, etc. A note so drawn would clearly fall within the above-quoted portion -of the negotiable instruments law and the decisions cited. 'We think it follows that the note in suit is the joint and several obligation of the makers.
In the trial-court counsel agreed that the case should be controlled by the law of the forum rather than the law of Illinois, where the note was executed and made payable. Appellant’s brief now points out that counsel were in error in so stipulating, but appellee insists that the stipulation should be held binding upon the parties in this appeal, and that the law of Michigan should control. The same result will be reached in either ease. Section 68 of the Illinois negotiable instruments law provides:
“All parties jointly liable on a negotiable instrument are deemed to be jointly and severally liable.” Smith-Hurd Illinois Revised Statutes (1931), chap. 98, § 88.
Not only by statutory provision but by court decision it appears the rule in Illinois is that persons who sign a note joint in form are liable both jointly and severally. Hochschild v. Goddard Tool Co., 233 Ill. App. 56; Harrison v. Thackaberry, 248 Ill. 512 (94 N. E. 172).
The judgment entered in the circuit court is set aside, and the case remanded with direction to enter judgment upon and in accordance with the verdict of the jury. Costs to appellant.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Fead, J.
June 27., 1925, plaintiff’s husband was in the basement of their home, cleaning clothes with gasoline in an electric washing machine. An explosion occurred, his clothing was set on fire, and he was fatally burned. Plaintiff testified that, on hearing the explosion, she ran to a basement window, saw her husband dazed but without any fire about his person, saw the rafters on fire and that fire came down from the rafters and ignited his clothes.
The suit is upon a clause in a $1,100 accident policy held by plaintiff’s husband, which provided double indemnity—
“if the injuries are sustained by the. insured and by reason and in consequence of the burning of a building, provided the insured is therein at the commencement of the fire.”
Counsel agree that the double indemnity clause does not apply if Mr. Long’s clothes were ignited directly from the explosion or otherwise than from the burning building.
Plaintiff’s claim under the policy was handled by her brother-in-law, Roy Long, who was State agent of a life insurance company. July 2d Mr. Long gave. defendant written notice of the injury. July 17th proofs of death were prepared by him, sworn to and signed by plaintiff, making claim for double indemnity of $2,200, naming plaintiff as an eyewitness to the event causing the injury and death, and, accompanied by a separate affidavit of plaintiff, were forwarded to defendant. In none of these documents was it claimed that the insured’s clothes caught fire from the burning building. The separate affidavit of plaintiff stated that she saw her husband—
“who at the above-mentioned time and place was engaged in act of cleaning some clothes with gasoline and gasoline was ignited and exploded by a spark from the electric motor attached to washing machine in basement of his home which resulted, in the fire which caused his body to be badly burned later resulting in death. About 80 per cent, of his body being covered with second degree burns.”
Defendant admitted primary liability under the policy but denied liability for double indemnity. Negotiations between defendant and Roy Long ensued, and, in November, it left a draft for $1,100 with him, accompanied by a release, reciting that the money was “in full payment, satisfaction and discharge” of the policy. Plaintiff accepted the draft and executed the release. Over a year later she tendered back the money, the tender was refused, and she brought this suit.
The court held the release binding on her, and entered judgment for defendant.
Plaintiff claims fraud in being induced to make the settlement, in that a representative of defendant told her she was not entitled to double indemnity because her husband did not die in the building. She said she relied on.his statement of her rights. It appears, however, that she did not rely on the representation, because, after it was made, she presented claim for double indemnity, negotiations to obtain it were had by her agent, Roy Long, and she was guided by him in finally accepting settlement. There is no merit in the claim of fraud.
Plaintiff contends that the release is not binding on her because defendant did not in good faith dispute liability for double indemnity, in that defendant made no prior inquiry of plaintiff as to the facts of injury although she was the only eyewitness to the accident.
The proofs of death and accompanying affidavit, which assumed to describe the accident, did not state facts showing double liability. It is undisputed that, in negotiations for settlement, Eoy Long, plaintiff’s representative, told defendant’s adjuster that he had talked with plaintiff about the accident, that there were no eyewitnesses to it, that no one saw the deceased until he was outside the home after the accident, and that, while he claimed double indemnity on his theory of the cause of death, he had no specific evidence to support the claim. The obligation was on plaintiff, in the proofs of death and claim of double indemnity, to inform defendant of the facts which entitled her to so recover. As she failed to give the necessary information, defendant was under no obligation to assume she had not made full disclosure and to make direct inquiry of her. It had a right to rely upon the statements of the agent whom she intrusted with negotiations. It may be added that defendant honestly could have doubted plaintiff’s version of the accident as she told it in court. The record does not show that defendant’s denial of double liability was not made in good faith.
Plaintiff had only one claim under the policy, the amount of which depended upon the circumstances of the injury. The fact that part of the claim was conceded did not divide the liability into two liquidated claims. Whatever the rule in other jurisdictions, this court holds that such a claim is unliquidated and payment of the conceded amount furnishes consideration for settlement of the whole. Tanner v. Merrill, 108 Mich. 58 (31 L. R. A. 171, 62 Am. St. Rep. 687); Kern Brewing Co. v. Royal Ins. Co., 127 Mich. 39.
The settlement was binding on plaintiff, and judgment is affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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McDonald, J.
This suit was brought to recover the sum of $5,000 which the plaintiffs claim to have advanced to the defendant to enable it to purchase a certain leasehold interest from the receiver of the Detroit Mortgage Corporation. The case was tried by the court without a jury and resulted in a judgment for the plaintiffs. The defendant has appealed.
Briefly, the following are the material facts: By mortgage foreclosure, the defendant became the owner of a long-term lease on the so-called G-raystone property in the city of Detroit. The fee was in the regents of the University of Michigan. The defendant sold the lease to the Detroit Mortgage Corporation and took back a purchase money mortgage of $300,000. The Detroit Mortgage Corporation defaulted and subsequently went into receivership. Defendant began foreclosure proceedings, and, while they were pending, the receiver, Charles J. DeLand, who had secured an agreement from the owners of the fee for an extension of the lease, offered to sell his interest to the defendant for $50,000. The defendant accepted this offer, and, as a means of securing the necessary funds, entered into an agreement with a number of its directors, which agreement is the basis of this suit.
The plaintiffs, designated as subscribers, signed this agreement and paid the $5,000 pledged. Both were stockholders; Harry Frank was a director. The subscribers paid in a total of $55,000 with which the defendant purchased the interest of the Detroit Mortgage Corporation. . In the agreement it was stipulated that the subscribers should have a 60-day option to purchase the lease from the defendant for $150,000; and if the option were not exercised by that time, the defendant might sell the lease for the best price obtainable and apply the proceeds in the following manner:
“First: To the payment of the expenses- of sale including any broker’s commission actually incurred or paid.
“Second: To the payment of the sum of $150,000 to you and pay over any surplus then remaining, together with any part of the sum of $60,000, not ex pended as herein authorized, unto the subscribers hereto. ’ ’
The option was not exercised by the subscribers. No time for performance as to the sale was specified in the contract. For a period of one year the defendant attempted in good faith to carry out its agreement in respect to the sale. A sale was impossible. The directors then caused to be organized by some of their number the Graystone Properties Corporation and transferred the lease in payment of the capital stock of that company. It was arranged that sufficient preferred stock should be issued to the subscribers to the original contract in payment of the amounts they had contributed to purchase the lease. The plaintiffs refused a tender of $5,000 of this stock and demanded a return of the money they had invested. On refusal, they filed a bill in the Wayne circuit court to have the contract reformed so as to show that the $5,000 paid by them was merely a loan to the defendant. On the hearing, the court found no cause for reformation, and transferred the case to the law side.
In the declaration there filed, the plaintiffs claim the right to recover on the ground, first, that the contract, not being signed by the defendant, was void under the statute of frauds (3 Comp. Laws 1929, § 13411); second, if the contract was not void, it was breached by defendant in transferring the lease to a néw corporation instead of selling it; and third, that the money advanced by them was a loan.
These three propositions are urged in their brief in support of the judgment and require our consideration.
1. Was the contract void under the statute of frauds because not signed by the defendant?
The plaintiffs contend that the contract involves the sale of an interest in real estate and is void because not signed by the vendor. The agreement was not properly signed,by the American Trust Company, but it was at least partially performed, and, under the well-settled rule in equity, partial performance excepts such a contract from the operation of the statute of frauds.
2. On the claim of recovery for breach of contract, counsel for .the plaintiffs states their theory as follows :
“If the court should come to the conclusion that the company did accept the offer, then we will ask the court for damages for breach of contract because under the contract, if the court finds there was a valid contract, the defendant breached the contract because they never sold the leasehold interest but organized a new corporation and transferred the assets, these leasehold assets from the American Trust Company to the new corporation without the consent or ratification of the plaintiffs, Frank. Therefore, the contract was breached, if there was one, and the measure of damages would be the amount the plaintiffs paid in, namely, $5,000 plus interest.”
There is considerable doubt as to whether defendant’s action constitutes a breach of the contract. But it is not necessary to discuss that question. Conceding the breach, as claimed by the plaintiffs, we find no evidence that they were damaged thereby. Their damages are to be measured by the terms of the contract. The question is, What did they lose by the failure of the defendant to carry out its promise? If the lease had no value and could not be sold, they lost nothing. They had no interest in the lease itself. By the terms of the contract, they were to be paid nothing unless, the lease was sold for an amount in excess of $150,000. It was provided that in case of a sale they were to share with the other subscribers in the proceeds after deducting $150,000, which was to be retained by the company. On the theory of a breach, the amount of their damages would depend on the value of the lease at the time of the breach. If it had no value in excess of $150,000 they are entitled to nothing. The only evidence that the lease had any value was the fact that it was assigned to the new corporation at a value of $255,000. That evidence is not conclusive. It is contrary to all the other evidence. The plaintiffs did not testify as to its value. They knew it could not be sold. They knew it had become necessary to charge it off the defendant’s books; that it was marked down and carried at a value of $1. It did not produce sufficient revenue to pay the ground rent to the lessors. It was an increasing burden and expense to the defendant. "We agree with the witnesses who testified that it had no value. If it had no value or if its value was not in excess of $150,000, the plaintiffs have sustained no damages. The evidence will not permit a recovery on the theory that the contract was breached.
3. Was the advancement of $5,000 by the plaintiffs intended by both parties as a loan?
The chancery court settled that question adversely to the plaintiffs ’ claim when it refused to reform the contract.
Under no theory are the plaintiffs entitled to recover. It quite conclusively appears by the record that they and the other subscribers, all of whom were financially interested in the American Trust Company, pledged and paid in their money in order to help the company out of an embarrassing position in reference to the Graystone lease. The money invested in that lease appeared to be a total loss. The company could carry it no longer and could not sell it. But it was thought that by acquiring the receiver’s right to an extension the probability of a sale would be enhanced. The company could not put up any more money. The plaintiffs were fully aware of the situation. They and the other subscribers paid in their money with no expectation of getting any of it back unless the company succeeded in selling the lease for more than $150,000. For a year and upwards the company did its utmost to sell but was unable to do so. Plaintiffs do not claim that a sale could have been made. They knew it was impossible. They invested $5,000 in a highly speculative venture. They hardly expected a return of their money. They lost and should take their loss as gamely as the other subscribers have done.
The judgment is reversed, with costs to the defendant, without a new trial.
Clark, C. J., and Sharpe and Wiest, JJ., concurred with McDonald, J. Potter, North, and Fead, JJ., concurred in the result. Butzel, J., did not sit. | [
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Fead, J.
February 26, 1931, judgments in replevin, for value on waiver of return of property, were entered against the principal defendant and the sureties on his replevin bonds. One of the sureties was Leontine Pantos, now sole appellant, a married woman. She did not appeal from the judgments, but, on March 18th, filed motion to set them aside on the ground that, being a married woman, she was not liable on the bonds. The motion was denied July 16th. August 8th, appellant filed notice of appeal from an order denying the motion to set aside the judgments. Plaintiff moved to dismiss the appeal.
Appellant took appeal as of right. The time for appeal from the judgments had expired. Court Eule No. 57, § 1. A motion to vacate a judgment is addressed to the discretion of the trial court. 34 C. J. p. 364. Appeal from the order may be had only by leave of court, and, there having been no leave granted, the appeal must be dismissed.
Moreover, the record contains no showing upon which a leave to appeal would be justified, either, in the nature of delayed appeal, under Court Eule No. 57, § 2, nor of mandamus for abuse of discretion of the court. Appellant sets up no facts to excuse the failure to appeal from the judgments nor is it shown that in the replevin suit she raised the defense of her coverture. Wilson v. Coolidge, 42 Mich. 112.
The appeal is dismissed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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Wiest, J.
A father and mother deeded their, property to their son, reserving a life estate therein. The father died, and the son and his wife died leaving minor children. Defendant was appointed guardian for the minors, and, during the life of the surviving tenant, he paid taxes and insurance and made repairs on the mentioned premises. The probate court, and, upon appeal, the circuit court, followed the strict rule requiring a life tenant to pay taxes, maintain insurance, and prevent waste, and charged the guardian with the money so expended. The guardian prosecutes this appeal.
In 1915 Anthony Ringle, the grantee in the- mentioned deed, and his wife died, leaving seven chil dren, and John Schultz was appointed guardian for the children. The estate of the minors consisted of about $3,000 in a bank and a farm of about 40 acres, subject to the mentioned life estates of the grandparents of the wards. The guardian paid the taxes on the farm, repaired buildings, built fences, and paid the expenses thereof out of the 'funds of his wards, and asked credit therefor in his final account.
The guardian claimed that the grantee verbally agreed, as a part of the consideration for the deed, to support and maintain the grantors. The grantors were old and unable to conduct the farm. The farm was their sole means of support. A brother of the grantee testified that the grantee told him “he (grantee) had to maintain and support them (grantors) as long as they lived, and after their death the farm was his. He had to support and maintain the old people.” This testimony was taken subject to objection, but evidently rejected in reaching decision. The testimony related to the consideration for the deed. The witness was not in any sense an opposite party. This testimony was uncontradicted and is convincing, for the old people had reached the point where they could not work the farm, and the farm was all they had, and they needed support as well as a place to live, and, in giving their all to their son, it is more than probable that he agreed to support and maintain them.
In Lockwood v. Lockwood, 124 Mich. 627, an aged mother deeded her property to her son and his children, reserving a life estate, without any written agreement by the son to pay the taxes and insurance or to maintain and support his mother. For nonperformance of a verbal agreement to do so the deed was set aside. Upon this subject the opinions in Power v. Palmer, 214 Mich. 551; Lewandowski v. Nadolny, 214 Mich. 350; and Smith v. Jackson, 239 Mich. 197, may he read with profit.
The general rule is that a life tenant must pay the taxes which are a lien upon the fee of the property (Stroh v. O’Hearn, 176 Mich. 164), and make repairs to prevent waste. Smith v. Blindbury, 66 Mich. 319. This rule, however, is not without exceptions. One release from its operation exists when the life tenants become such by reservation in their deed, and, as a consideration for the deed, the grantee, as remainderman, agrees to support and maintain them during the term. Meier v. Meier (Iowa), 178 N. W. 360.
In the case at bar, performance of the grantee’s obligation toward the grantors has been made, in part at least, by the guardian of the heirs-at-law of the grantee, and thereby the deed saved from cancellation, and now the guardian ought not to be refused credit for funds of the estate used to save and conserve the property for the wards. The guardian is entitled to credit for taxes and insurance premiums paid and moneys expended for needed repairs, but not for wiring the dwelling house for- electric current purposes. . ''
The judgment in the circuit court is reversed, with costs to appellant, and judgment in accord with this opinion is to be entered in the circuit court and certified to the probate court.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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Fead, J.
Plaintiff, while a customer in defendant’s store and following the manager to the rear of the store to be shown some goods, stepped on a hot-air register located near a counter about the center of the store. . The heel of her shoe went through a hole in the register and she was thrown and injured. She had verdict of a jury and judgment for damages. Defendant asks judgment non obstante for lack of negligence on the part of defendant and for contributory negligence of plaintiff.
Plaintiff’s heels were high and about three-quarter inch by one inch across the bottom. She had worn similar shoes for nine years and they were in common use. by a great many women. She had been in defendant’s store nearly every day for a year and knew the location of the register. The meshes in the hot-air register were about one inch square, some variations occurring in manufacturing, and, on experiment, it was found that the heels of plaintiff’s shoes would go through several but not all of the openings.
The register was of standard construction, so recognized in the heating trade, and of size and character commonly used in floors of stores and buildings frequented by the public. Defendant was lessee of the store, had maintained it four years, had served 1,800 or more customers per week, most of whom were women and most of whom had walked on the register, and there had been no prior accident. It was not shown there had been any accident anywhere on similar registers.
Counsel agree upon the rule that a storekeeper is not an insurer of safety of his customers but that it is his duty to use reasonable care to provide a reasonably safe place for them on his premises.
The cases on the rule have been annotated exhaustively in 58 A. L. R. 136; 46 A. L. R. 1111; 43 A. L. R. 868; 33 A. L. R. 181; L. R. A. 1915F, 572; 21 L. R. A. (N. S.) 456, and, seemingly, cover nearly every conceivable state of facts except the one before us.
The register was not out of repair nor in an unusual condition.. So, the question of defendant’s negligence depends upon whether the register was so constructed and placed that a reasonably careful person would have anticipated that injury to customers would he liable to result from its use in the floor.
The fact that the register was of standard construction, of a kind in common use in public places, while not an absolute defense (Hill Grocery Co. v. Hameker, 18 Ala. App. 84 [89 South. 850]), is evidence that an ordinarily prudent person would not have deemed it dangerous. Steggall v. W. T. Knapp & Co., 241 Mich. 260; 45 C. J. p. 1241. The further fact that a multitude of women customers had walked over the register during defendant’s occupancy of the store without accident and the lack of similar accident elsewhere are added evidence that danger need not be apprehended from it. Mullen v. Sensenbrenner Mercantile Co. (Mo.), 260 S. W. 982 (33 A. L. R. 176).
Defendant’s negligence must be predicated upon the theory that it was bound to know the size of the holes in the register, the size of heels of shoes customarily worn by many of its customers, and, as a reasonably prudent person, should have anticipated that the kind of accident which occurred to plaintiff was likely to happen to customers using reasonable care for their own safety.
By the same token, plaintiff, as a reasonably prudent person, would be chargeable with knowledge of the size of her heels and the size of the holes in so common a thing as a hot-air register, of whose existence and location she knew, at least'to the extent of apprehending that the heels might go through the holes. In addition, plaintiff had the duty to make reasonable observation about her. Rice v. Goodspeed Real Estate Co., 254 Mich. 49. Her attention was not distracted. Ordinary care would have dis closed to her the necessity of special caution iu stepping with small heels on a register full of holes.
Some of my Brethren think that defendant was not guilty of negligence to its customers in maintaining the register. Without deciding that issue, we agree that, under the circumstances here, if defendant was negligent, plaintiff also was negligent and cannot recover.'
Judgment reversed, and cause remanded for entry of judgment non obstante for defendant, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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Fead, J.
Defendant was convicted of embezzlement of an order for payment of $178, drawn by the auditor general of the State upon the State treasurer, and described in the information both as money and as a check.
In 1927 and 1928, defendant was superintendent of maintenance, in Saginaw county, for the State highway department. As part of his duties, he kept a time book of the labor of men employed under him. From the time book, his wife made daily report sheets which defendant filed in the Saginaw office of the department, where pay roll vouchers were compiled from them. Upon the vouchers, individual pay checks were issued by the auditor general and sent to defendant, who distributed them to the employees.
The check in question was issued to W. M. Brown and bears indorsement in his name. It was further indorsed by defendant and applied by him in payment of his personal debt to a merchant. He said he had paid Brown the money, in pursuance of a somewhat general practice of advancing money to his men or cashing their checks for them.
In general, the people presented testimony that there was no W. M. Brown on the State highway work under defendant’s charge; that Brown’s name appeared on daily reports some 122 times in 1927 and 1928; that several employees listed on defend ant’s reports as working on the same section with Brown at different times and others having general duties in the county did not know him, hut would have known him if he had been employed as shown by the reports; that in 16 instances Brown’s name appeared at the bottom of the daily reports as though added after the reports were made, the name being in handwriting different from Mrs. Dixon’s and similar to defendant’s; that defendant cashed all of Brown’s checks, usually at the same time and place as he cashed his own; that defendant listed a fictitious F. H. Brown as an employee, and when delivery of his check was attempted by another representative »of the department accompanying defendant, defendant claimed to have paid Brown in advance so he could go away; that defendant had received and cashed four other checks, three of the payees in which denied receipt of the check or money or right thereto, and, the other being dead, similar testimony as to his check was given by his wife and son. A handwriting expert gave his opinion that the indorsement of W. M. Brown’s name on the various checks and of F. H. Brown’s name and the additions of the names to the daily reports were in defendant’s handwriting.
Defendant claimed W. M. Brown was a genuine employee and checks to him represented actual labor. Several witnesses testified they knew Brown, that he worked for defendant, and that F. H. Brown was also an employee. Defendant explained that the four other checks disclaimed by the payees represented purchase of materials, and, to avoid delay, were handled as labor bills in a manner which, while irregular, contained no actual wrong to the State. He said Brown’s indorsements were genuine and the daily reports were wholly in his wife’s handwriting.
In addition, the witnesses testified to many details, and, of course, displayed the common lapses of memory, contradictions, indications of Mas and favoritism which are ordinary incidents of a long trial. The credibility of witnesses was an important consideration, and the testimony on both sides was strong enough to present a clear issue for the jury and prevent a ruling that, the verdict was against the great weight of the evidence.
Testimony of the disposition of other checks by defendant was offered and received upon the question of his intent and was strictly so confined in the charge. It was competent. 3 Comp. Laws 1929, § 17320.
In the opening statement, the people charged that W. M. Brown, as an employee of the department, was a fictitious person. Upon this statement, defendant argues that the check, therefore, had no payee, was not valid, and could not be the subject of embezzlement. He cites no authority for the position. A check or order for the payment of money is valuable only if and because money can be obtained on it. Embezzlement of a check or order intrusted to an agent does not depend upon the technical validity or effect of the instrument, but occurs when it is misappropriated by the agent to the injury of the principal. People v. Hanaw, 107 Mich. 337.
The court properly denied defendant’s motion, made at the close of the proofs, to strike the testimony of the handwriting expert on the ground that he had not given his reasons for his opinion of the signatures. In re Lembrich’s Estate, 243 Mich. 39. The record is that the witness gave his reasons and stated the grounds. upon which his opinion was based.
On defendant’s request, the court charged the jury, in substance, that they could reject the expert’s opinion as to any signatures for which he had not given his reasons. Defendant now contends that this cast on the jury the function of the court to pass upon the competency of testimony. As the court properly had permitted the testimony to stand, the charge was more favorable to defendant than was his due.
Defendant made motion for a new trial upon the ground that a new witness had been discovered who knew W. M. Brown, and that information of Brown’s whereabouts had been obtained. The new witness was merely cumulative, and it is not conceivable that his testimony would have changed the result. Defendant’s attorney received a letter purporting to be from W. M. Brown, written from Nelson, British Columbia. The attorney undertook to find Brown, by letter and telegram, but was unable to do so. The showing contained no assurance of the genuineness of the letter, the existence of Brown, or the probability or even possibility of his being produced as a witness on a new trial. The showing was insufficient.
We discover no reversible error in the record, and judgment is affirmed, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
Plaintiff in his declaration alleged that on January 31,1927, he employed the defendant “to crate and pack the furniture and household belongings of the plaintiff, and to ship them to plaintiff’s new residence in Upper Darby, Pennsylvania; ’ ’ that defendant represented that it was “fully covered by insurap.ce,” and that it “would assume full responsibility of the goods while in its care, and that the plaintiff need have no fear of any of them being stolen, or lost;” that defendant did “pack and crate the belongings of the plaintiff,” and shipped them to his new residence, but that when they arrived there a box containing jewelry of the value of $2,258 was missing, and that its loss was caused by “the careless, negligent and reckless manner in which same was handled by the said defendant, its agents, servants or employees. ’ ’ To this the common counts were added. The plea of the defendant was the general issue.
On trial before the court without a jury, the plaintiff had judgment for $1,858, from which defendant has appealed.
Plaintiff’s right to recover rests entirely on the testimony of his wife, Yesta Gaines Berry, except that her statement that the jewelry box was not in the shipment when it arrived at Upper Darby is corroborated by that of her daughter, who assisted her in unpacking it. Her testimony may be summarized as follows: That defendant’s employees came to their home and were engaged in the packing on the day they left; that she just packed her own personal things, and left everything else in the apartment; that they were assured that “everything would be all right,” and gave them the key to the apartment; that she next saw the goods when they arrived by train in Upper Darby; that she intended taking the box of jewelry with her, that she had kept this box, which was about 4x4x6 inches in size, “in the horn or back of the horn” in their victrola; that on the morning of the day they left, her son Jack, 13 years old, asked for some money belonging to him that she had and had kept in the box; that she “told him where it was and when he got his money out to take my box and put it in my hat box; ’ ’ that on their way to the depot to take the train she asked him if he had put it in the hat box, and he said he had left it on the window seat; that when at the depot she did not call the apartment and tell the packer that the jewelry box had been left on the window seat, nor in any way notify the defendant of the fact that it had been left there, until the box was missing when the shipment arrived at Upper Darby; that the jewelry box was not locked, although there was a lock on it, and that she did not personally see the boy leave it on the window seat.
John Novak testified that he was at that time employed by the defendant as a “packer and furniture repair man;” that he packed all of the household goods left in the house by the plaintiff, a part on the day the family left and the balance the next day; that the key to the apartment was left in the door, and he locked it when he left; that “the party downstairs had a key to the bottom door and they let me in in the morning. The top door, I had a key to that;” that the goods were taken to the ware house and some repairs made and there crated for shipment; and that before he left he swept the floor at plaintiff’s request, and was sure nothing was left behind.
The record contains several letters sent by plaintiff to defendant relative to the jewelry box. In the first, written at the time it was first missed, he stated that it was left in the sounding horn in the victrola. In another he stated that—
“It could not have been left on the window seat, as we have checked everything else that we remember having seen there with it, and everything else was sent. It could not have been left behind, as it was in plain view with the other things being put into the barrels and boxes by the packer. We can only conclude that the packer or some one who had access to our belongings in your warehouse, found the box and took it. * * *
“It was there when we left, and the statement that your packer made that he did not remember seeing it at all, seems unreasonable in itself. On the way to the train the day we left, Mrs. Berry said that she had left the jewelry box in the dining room, taking only two of her rings with her, and rather than to have the taxi turn around and possibly miss the train, I reassured her as to the honesty of your employees and the responsibility of your company for all the things left in your care for forwarding to us here.”
And in another he stated:
“In questioning the children, they say that they saw it on the window seat in the dining room, instead of in the Edison phonograph.”
These statements tend strongly to contradict the testimony of Mrs. Berry, above referred to, that she told her son to get it out of the victrola and put it in her hat box, and that he told her he left it on the window seat.
In the contract between plaintiff and defendant, as alleged in the declaration, the defendant agreed “to crate and pack the furniture and household belongings of the plaintiff, and to ship them to plaintiff’s new residence” in Pennsylvania. This contract is in no way qualified by the testimony submitted. It should be held to include everything that is usually found in a dwelling house tending to the comfort and enjoyment of the household. Webb v. Downes, 93 Minn. 457 (101 N. W. 966). It certainly would not include a small box containing jewelry of the value of about $2,000. In re Kimball’s Will, 20 R. I. 619 (40 Atl. 847).
The defendant did not knowingly become a bailee of this box of jewelry. It was not specially intrusted to its care for the purpose of shipment, nor can it be said, in the absence of proof, that it assumed, or was chargeable with, any special duty to protect the plaintiff against its loss. The plaintiff did not intend to leave it in the house to be shipped with the other goods. His wife supposed that it had been placed with other personal effects which she was taking with her, and, as she testified, first knew that it had been left behind when, on their way to the depot, she was informed by her son that he had left it on the window seat in one of the rooms.
The contract was one of bailment for hire. Under it the defendant was “bound to keep and preserve the property with ordinary care — that care which a prudent man ordinarily takes of his own property. ’ ’ Hofer v. Hodge, 52 Mich. 372, 375 (50 Am. Rep. 256, 1 Am. Neg. Cas. 661). It was in no sense an insurer. Taylor v. Downey, 104 Mich. 532 (29 L. R. A. 92, 53 Am. St. Rep. 472). Contracts must be construed with reference to their subject-matter. Defendant was bound to bestow upon the goods included in the contract that degree of care which their known nature and intrinsic value demanded. See Smith v. American Express Co., 108 Mich. 572; D’Arcy v. Adams Express Co., 162 Mich. 363; Riggs v. Bank of Camas Prairie, 34 Idaho, 176 (200 Pac. 118, 18 A. L. R. 83); Waters v. Beau Site Co., 114 Misc. Rep. 65 (186 N. Y. Supp. 731). No duty was imposed on it to protect the plaintiff against the loss of this jewelry. Such loss may well be said to have been attributable to the neglect of the plaintiff to return to the apartment and get it, or at least to have informed the defendant at the earliest possible moment that it had been left there.
The judgment for plaintiff will be reversed and set aside, with costs to appellant, and the cause remanded with direction to enter a judgment for the defendant.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Clark, C. J.
This is habeas corpus with accompanying certiorari to test commitment of defendant for contempt in disobedience of a decree for payment of money.
Plaintiff resided in Poland and her husband in Detroit. He, ill at defendant’s home, made change of beneficiary in a policy of life insurance for $2,000, naming defendant instead of plaintiff. Defendant received the $2,000, paid funeral expenses and other charges in connection with the death and burial, in all the sum of $600. She also used practically all of the remainder of the fund in paying other bills of herself or her husband.
Upon bill, answer, and proof, decree was entered, finding tbe change of beneficiary procured by undue influence and to be void, and giving credit for the $600.
The decree is:
“1. That the change of the beneficial interest in said policy from the plaintiff to the defendant by said Anthony Klimek is not the act of the deceased and is therefore void and of no effect.
“2. That the said defendant, Helen Borkowski, be permanently enjoined from disposing of the proceeds of the aforesaid insurance policy except in accordance with the terms of this decree.
“3. That the said Helen Borkowski is hereby declared to be trustee of the proceeds of said insurance policy for and in behalf of the plaintiff, Mary Klimek, in the amount of $1,400.
“4. That the said Helen Borkowski account for and pay to the plaintiff, Mary Klimek, forthwith, the sum of $1,400 with costs to be taxed. ”
Defendant’s response to order to show cause is not important beyond facts above stated.
The case is ruled by Mast v. Washtenaw Circuit Judge, 154 Mich. 485, as contended by defendant, and not by Carnahan v. Carnahan, 143 Mich. 390 (114 Am. St. Rep. 660, 8 Ann. Cas. 53), as contended by plaintiff. In the latter case there was a specific fund, then on deposit in the name of the defendant and equitably belonging to the complainant, to be turned over in specie. Under the rule that attachment for contempt for failure to comply with an order to pay money will lie only when payment cannot be enforced by execution (North v. North, 39 Mich. 67; Haines v. Haines, 35 Mich. 138; 13 C. J. p. 13), it is obvious that in the Carnahan Case an execution in ordinary form could not have accomplished what was attempted* viz., the laying hold of a particular fund beyond the jurisdiction of the court and turning it over to the complainant.
We may read the decree before us with reference to the issue it was intended to determine. People v. La Mothe, 331 Ill. 351 (163 N. E. 6, 60 A. L. R. 316). There is no claim of showing at hearing that there was any specific money anywhere upon which defendant could have given check or which she could have assigned or that she actually had control of the money at the time. She merely had received and used money for which she should account. Perhaps she might lie held a trustee ex mala fides, but, as was said in the Mast Case:
“We think something more than this was necessary to be shown to bring the case within Carnahan v. Carnahan, 143 Mich. 390 (114 Am. St. Rep. 660, 8 Ann. Cas. 53), and that this is an attempt to enforce a money decree by proceedings for contempt, when the remedy by execution is open. ’ ’
See, also, People v. La Mothe, supra.
That the decree before us does not provide for execution is not decisive, quoting again from Mast Case:
“It is to be noted, first, that the form of the order in the decree should not be held to conclude inquiry as to whether the remedy of execution is still open to the party. See Swarthout v. Lucas, 102 Mich. 492. The fact that the decree fails to contain an order for an execution does not determine the complainant’s rights in that respect. If by law he is entitled to an execution on such a decree, application for a modification of the decree might be made.”
Writ granted, with costs. Defendant discharged.
McDonald, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
P. J. Marutiak, J.
Defendants appeal as of right from a judgment entered on a jury award in favor of plaintiff in the amount of $850,000. Plaintiff’s suit alleged race discrimination in violation of the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against his former, employer, the Southeastern Michigan Chapter of the American Red Cross, and two of its employees, A. William Shafer, M.D., and Duane E. Johnson.
Plaintiff began his career at the Red Cross in 1948 as a Staff Technologist in the blood program. By 1958, he had advanced to Chief Medical Technologist. In 1964, he was appointed Assistant Administrator of the blood center. Over the years, plaintiff received excellent evaluations from his supervisors. In 1970, he was promoted to Blood Program Administrator. Executive Director Robert G. Wick, plaintiffs supervisor during those years, praised him for his performance in that position on several occasions.
As Blood Program Administrator, plaintiff was responsible for the entire Red Cross Blood Center. His duties included heading donor resources development, the nursing department, the blood center laboratory, blood distribution, vehicle maintenance, donor records, electronic data processing, supplies and purchasing, and overseeing the mobile unit assistance drivers.
In the fall of 1974, Wick was succeeded as Executive Director by defendant Johnson. Defendant Shafer became Medical Director and plaintiffs immediate supervisor in October, 1975. Shafer was responsible for operating the entire blood center. Shafer immediately took over responsibilities which had previously been plaintiffs, and by 1975, plaintiffs areas of responsibility had greatly decreased.
Shafer did not evaluate plaintiffs job performance in 1975 or 1976, and plaintiff received merit pay increases in those years. On June 5, 1977, Shafer issued plaintiffs first critical evaluation, in which he criticized plaintiff for inadequate supervision, overestimation of his subordinates and inadequate formulation and adherence to plans. Plaintiffs June, 1977, evaluation was the only negative one handed down by Shafer; the other department heads were deemed adequate or more than adequate in all areas.
Plaintiff responded that the evaluation was not a fair assessment, that he had not been permitted to function in the role of administrator, and had not been provided with specific information about his asserted deficiencies. Plaintiff protested the evaluation to Personnel Director Waymon Hughey. In October, 1977, plaintiff and Shafer met, and the new position of Director of Blood Program Relations was discussed. Shafer indicated that the salary would be equal to plaintiff’s current salary and that he would receive use of a car and a small expense account. Shafer urged plaintiff to accept the position.
Plaintiff told Shafer on October 19, 1977, that he was not interested in the position. Shafer said that he was dissatisfied with plaintiff’s performance as Blood Program Administrator and wanted to find another position for plaintiff so that he could hire a new administrator. Plaintiff told Shafer that he did not want to be forced into a fast decision about his career. Shafer said he expected an answer by November 7, 1977. On November 18, 1977, Shafer stated that plaintiff would have to either accept the transfer or resign.
Plaintiff met with defendant Johnson, who eventually determined that Shafer had acted within the scope of his authority. Plaintiff then requested a hearing before the Chapter Appeal Board, and the hearing was held in December, 1977. In the meantime, plaintiff commenced sick leave from his position as Blood Program Administrator.
In March, 1978, the appeal board chairman advised plaintiff that his new position awaited him. Johnson warned plaintiff on March 22, 1978, to accept the new job or be deemed to have resigned. Plaintiff wrote to Johnson on March 24, 1978, that he would not report to Shafer and would not resign. On June 23, 1978, plaintiff was terminated for failure to report to work.
I
Defendants’ motions for directed verdict at the close of plaintiff’s proofs and at the close of all proofs, and motion for judgment notwithstanding the verdict, were denied by the trial court. Defendants contend that they were entitled to a directed verdict or judgment notwithstanding the verdict because plaintiff failed to produce enough evidence to establish a case of race discrimination sufficient to send to the jury.
This Court’s review of a denial of a motion for a directed verdict is limited to whether the party opposing the motion offered evidence upon which reasonable minds could differ. Perry v Hazel Park Harness Raceway, 123 Mich App 542, 549; 332 NW2d 601 (1983). The test is whether, viewing the facts in a light most favorable to plaintiff, reasonable persons could reach a different conclusion. If so, the case is properly one for the jury. Plaintiff must be given the benefit of every reasonable inference that could be drawn from the evidence. Anderson v Gene Deming Motor Sales, Inc, 371 Mich 223, 229; 123 NW2d 768 (1963). The same standard of review applies where a motion for judgment notwithstanding the verdict has been denied. Anderson, supra; Goins v Ford Motor Co, 131 Mich App 185, 191-192; 347 NW2d 184 (1983).
It was plaintiff’s theory that defendants constructively discharged him and destroyed his 30-year career with the Red Cross in violation of § 202 of the Elliott-Larsen Civil Rights Act, MCL 37.2202; MSA 3.548(202), which provides in part:
"(1) An employer shall not:
"(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
"(b) Limit, segregate, or classify an employee or appli cant for employment in a way which deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.”
The burden of proof in an employment discrimination case was stated in Texas Dep’t of Community Affairs v Burdine, 450 US 248, 252-253; 101 S Ct 1089; 67 L Ed 2d 207 (1981), reaffirming the holding of McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973):
"First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ * * * Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.”
In Michigan, there are at least two approaches for establishing a prima facie case of race discrimination: the disparate treatment theory and the intentional discrimination theory. These were described in Schipani v Ford Motor Co, 102 Mich App 606, 617; 302 NW2d 307 (1981):
"(1) Disparate treatment. To make a prima facie showing of discrimination, the one alleging disparate treatment must show that he was a member of the class entitled to protection under the act and that, for the same or similar conduct, he was treated differently than one who was a member of a different race. Pompey v General Motors Corp, 385 Mich 537, 542, 549; 189 NW2d 243 (1971). (2) Intentional discrimination. Here, plaintiff must show that he was a member of the affected class, that he was discharged, and that the person discharging him was predisposed to discriminate against persons in the affected class and had actually acted on that disposition in discharging him. Civil Rights Comm v Chrysler Corp, 80 Mich App 368, 373, fn 3; 263 NW2d 376 (1977).”
Plaintiff retains the burden of persuasion at all times. Burdine, supra, p 255. Plaintiff’s burden is to show by a preponderance of the evidence that he was constructively discharged because of race, but he need not show that race was the exclusive cause. See Gallaway v Chrysler Corp, 105 Mich App 1, 5-6; 306 NW2d 368 (1981), lv den 413 Mich 853 (1982). A prima facie case may be established by circumstantial evidence.
Under the McDonnell Douglas formula, the plaintiff’s initial burden is to show by a preponderance of the evidence that a prima facie case of discrimination exists. See Clark v Uniroyal Corp, 119 Mich App 820, 824; 327 NW2d 372 (1982). If plaintiff satisfies the burden, it shifts to defendants to articulate some legitimate nondiscriminatory reason why plaintiff was rejected, or someone else preferred. Burdine, supra, p 254; Clark v Uniroyal, supra, p 824. Plaintiff then has the opportunity to prove by a preponderance of the evidence that the legitimate reasons articulated were not defendants’ true reasons, but were a pretext for discrimination. Plaintiff may demonstrate pretext either directly, by persuading the jury that a discriminatory reason more likely motivated the employer, or by showing that the proffered reason is not worthy of credence. Burdine, supra, p 255; Clark v Uniroyal, supra, p 825. Plaintiff may introduce evi dence tending to show other discriminatory treatment by the defendants toward the plaintiff or other similarly situated employees, or a general pattern of discrimination against such employees. Clark v Uniroyal, supra, p 825, citing Boyd v Madison County Mutual Ins Co, 653 F2d 1173, 1178 (CA 7, 1981).
Applying these standards and viewing the evidence at trial in a light most favorable to plaintiff, we are persuaded that plaintiff carried his burden of proof sufficient to support an inference that defendants intentionally discriminated against him on the basis of race, or that defendants’ actions against plaintiff were motivated by racial considerations.
Plaintiff’s position was that he was constructively discharged from his employment and that defendants’ actions were motivated by racial prejudice. Viewing the evidence in a light most favorable to plaintiff, a reasonable factfinder could determine that defendants intentionally made plaintiff’s job difficult, and then used his difficulties as a pretext for unfavorable evaluation and demotion. Reasonable minds could differ as to whether plaintiff was treated differently for the same or similar conduct as that of non-minority department heads. We believe that there was sufficient evidence of disparate treatment and racial animus to justify submission of the case to the jury. The trial court did not err in denying the motions for directed verdict and for judgment notwithstanding the verdict.
II
Defendants next contend that the jury award should be set aside because plaintiff failed to mitigate his damages by accepting the proffered posi tion of Director of Blood Program Relations. Defendants assert that the job offered to plaintiff was substantially equivalent to his former position as Blood Program Administrator. Defendants assert that plaintiff was not constructively discharged, because no reasonable person in his position would have felt compelled to resign. Defendants conclude that the trial court erred in submitting the issue of pecuniary damages to the jury. We do not agree.
Constructive discharge may be found where working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign. Held v Gulf Oil Co, 684 F2d 427, 432 (CA 6, 1982); Clark v Marsh, 214 US App DC 350, 355; 665 F2d 1168, 1173 (1981); Jacobs v Martin Sweets Co, Inc, 550 F2d 364 (CA 6, 1977), cert den 431 US 917 (1977); LeGalley v Bronson Community Schools, 127 Mich App 482, 487; 339 NW2d 223 (1983). A finding of constructive discharge depends on the facts of each case. Held, supra; Jacobs, supra. Constructive discharge requires inquiry into the intent of the employer and the reasonably foreseeable impact of the employer’s conduct on the employee. Held, supra. An employer is held to intend the reasonably foreseeable consequences of his conduct. Id. Plaintiff can make a jury-submissible case for constructive discharge by showing discrimination plus aggravating circumstances. See Bourque v Powell Electrical Manufacturing Co, 617 F2d 61 (CA 5, 1980); Clark v Marsh, supra, 214 US App DC 350, 355-356; 665 F2d 1168, 1173-1174.
In the present case plaintiff was told that he would have to either accept the position of Direc tor of Blood Program Relations or resign. The proffered position involved responsibility for hospital-client relationships, responsibility for the blood center distribution department, involvement in blood center planning and development, and involvement in analysis and development of blood center relationships with regional and national blood programs. The job was originally budgeted at a $20,000 annual salary, but was subsequently offered to plaintiff at his $30,000 salary. The position was ultimately filled 1-1/2 years later at a salary of $17,500. The position no longer exists, although defendant Shafer testified that the functions are still in existence.
Shafer originally told plaintiff that the job was equivalent to jobs held by other department heads and that it was an important position. Shafer told a civil rights investigator that the job was a demotion and that the car and expense account were added to induce plaintiff to view it as a promotion.
Defendants argue that there was no constructive discharge because the position offered to plaintiff was the substantial equivalent of his position as Blood Program Administrator. The "substantial equivalent” of the position from which a claimant is discriminatorily discharged must give him virtually identical promotion opportunities, compensation, job responsibilities, working conditions and status. Rasimas v Michigan Dep’t of Mental Health, 714 F2d 614, 624 (CA 6, 1983), citing Ford Motor Co v Equal Employment Opportunity Comm, 458 US 219; 102 S Ct 3057; 73 L Ed 2d 721 (1982). The claimant need not accept a demotion to avoid forfeiture of his right to a back pay award. Rasimas, supra, p 624.
In view of the testimony that the new position offered to plaintiff was a demotion and that his responsibilities were severely reduced after Shafer arrived, we believe a reasonable factfinder could conclude that the new position was not the substantial equivalent of the position of Blood Program Administrator.
We conclude that a finding of constructive discharge is supported by the evidence and that plaintiff was not required to accept the position offered to him. A reasonable juror could conclude that the foreseeable impact of defendants’ conduct was that plaintiffs working conditions would become so difficult and unpleasant that he would be compelled to resign.
Ill
Defendants next contend that the jury award must be set aside because it was based on speculation and passion. Defendants assert that the verdict was excessive and that the trial court erred in denying their motion for remittitur.
This Court will reverse a trial judge’s decision to grant or deny remittitur only if there was an abuse of discretion. Stevens v Edward C Levy Co, 376 Mich 1, 6; 135 NW2d 414 (1965); Gillispie v Board of Tenant Affairs of the Detroit Housing Comm, 122 Mich App 699, 704; 332 NW2d 474 (1983) , lv den 417 Mich 1100.37 (1983). A reviewing court will substitute its judgment for that of the jury only where the verdict has been secured by improper methods, prejudice or sympathy, or where it is so excessive as to "shock the judicial conscience”. Gillispie, supra. Where a verdict is within the range of evidence produced at trial, this Court will not reverse it as excessive and against the great weight of evidence. Kovacs v Chesapeake & OR Co, 134 Mich App 514, 542; 351 NW2d 581 (1984) .
Upon a review of the record, we conclude that the trial judge did not abuse his discretion in denying remittitur. It is well established that victims of discrimination may recover for humiliation, embarrassment, outrage, disappointment and other forms of mental anguish which flow from the discrimination. See Slayton v Michigan Host, Inc, 122 Mich App 411, 416-417; 332 NW2d 498 (1983). In this case, assuming that the jury accepted plaintiffs calculation of $362,000 for lost wages, approximately $500,000 of the verdict was for noneconomic damages. We find that the evidence of plaintiffs damages supports the award. Defendants have failed to assert facts which suggest any impropriety or prejudice on the part of the jury. Gillispie, supra.
IV
Defendants next contend that the trial court erred in failing to dismiss individual defendants Johnson and Shafer. We do not agree.
An employer is defined in the Elliott-Larsen Civil Rights Act as a person who has one or more employees, and it includes an agent of that person. MCL 37.2201(a); MSA 3.548(201)(a). Defendants Johnson and Shafer moved for a directed verdict on the ground that they were not employers within the meaning of § 201(a). The trial court denied the motions, relying on Munford v James T Barnes & Co, 441 F Supp 459 (ED Mich, 1977).
We find that Munford controls and that the trial court properly denied the motions for a directed verdict. The Munford court construed Title VII of the Civil Rights Act of 1964, 42 USC 2000e(b), which defines an employer as one who has 15 or more employees and includes any agent of such a person. The court held that if a person has responsibility for making personnel decisions for the company, he is an agent within the statutory definition of an employer, at least for that purpose. Munford, supra, p 466. We find that, under Mun-ford, defendants Shafer and Johnson were responsible for making personnel decisions affecting plaintiff, and were agents within the meaning of § 201(a). This Court has examined defendants’ attempts to distinguish Munford and policy arguments against application of Munford in the present case, and finds them to be without merit.
V
Defendants finally contend that the Elliott-Larsen Civil Rights Act is in violation of the single-object and equal protection clauses of the Michigan Constitution. Const 1963, art 1, § 2, and art 4, § 24. For the reasons set forth in Seals v Henry Ford Hospital, 123 Mich App 329; 333 NW2d 272 (1983), we reject that contention.
VI
Plaintiff argues in his cross-appeal that the trial court abused its discretion in failing to award reasonable attorney fees under the Elliott-Larsen Civil Rights Act. MCL 37.2802; MSA 3.548(802) provides:
"A court, in rendering a judgment in an action brought pursuant to this article, may award all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, to the complainant in the action if the court determines that the award is appropriate.”
The decision to grant or deny an award of attorney fees under this section is discretionary with the trial court. King v General Motors Corp, 136 Mich App 301, 308; 356 NW2d 626 (1984). The purpose of the provision is to encourage persons deprived of their civil rights to seek legal redress, to ensure victims of employment discrimination access to the courts, and to obtain compliance with the act and thereby deter discrimination in the work force. King, supra, pp 307-308.
In the present case, we find that the trial court properly exercised and did not abuse its discretion in declining to award attorney fees. Wood v Detroit Automobile Inter-Insurance Exchange, 413 Mich 573, 588; 321 NW2d 653 (1982); King, supra.
Our resolution of this case makes it unnecessary to address the remaining two issues raised in plaintiffs cross-appeal.
Affirmed.
The lawsuit was commenced in August, 1979, against defendants-appellants and two volunteer chapter chairmen of the Red Cross. In addition to race discrimination, plaintiff alleged age discrimination, tortious interference with contract relations, injurious falsehood, libel and conspiracy. At the close of plaintiff’s proofs, all claims against the chapter chairmen were dismissed and all claims except race discrimination were dismissed against defendants-appellants.
It is appropriate to rely on federal precedent in deciding discrimination cases. See Civil Rights Comm v Chrysler Corp, 80 Mich App 368, 375, fn 4; 263 NW2d 376 (1977).
Plaintiff did mitigate his damages to some extent by accepting a position as Wayne County Rat Inspector at an annual salary of $17,500. | [
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J. H. Gillis, J.
Plaintiff appeals as of right from the entry of a judgment granting defendant’s motion for summary judgment for failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1).
Pursuant to a judgment of the Macomb County Circuit Court, the marriage between plaintiffs daughter and the defendant was dissolved on September 27, 1976. Under the terms of the divorce judgment, defendant was awarded custody of the couple’s two minor children, and specific visitation rights were granted to the plaintiff’s daughter.
Plaintiff commenced this action in Oakland County, where the defendant now resides with his children, seeking an order granting the same specific visitation rights which were granted to her daughter under the terms of the divorce judgment. Plaintiff alleged that her daughter’s employment required that she travel extensively outside the state, and as a result she has been unable to take full advantage of her specific visitation days. Plaintiff relied upon the so-called "Grandparent Visitation Act”, MCL 722.27b; MSA 25.312(7b), to support her request for visitation rights. The circuit court, however, found the statute cited by plaintiff to be inapplicable to the facts of this case and thus granted defendant’s motion for summary judgment. We agree and therefore affirm this aspect of the lower court’s ruling.
A motion for summary judgment brought under GCR 1963, 117.2(1) for failure to state a claim upon which relief can be granted is designed to test the legal sufficiency of the claim as determined from the pleadings alone. The factual alle gations of the complaint are to be taken as true, along with any inferences or conclusions which may fairly be drawn therefrom. The motion should be granted only where the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Borsuk v Wheeler, 133 Mich App 403, 406-407; 349 NW2d 522 (1984).
The statute here at issue, MCL 722.27b; MSA 25.312(7b), provides a means by which a grandparent may seek an order of visitation from the circuit court in the county in which the child resides. However, the circumstance under which such an order of visitation may be available is strictly limited. Section 27b(l) of the statute provides that a grandparent may seek an order of visitation "only if a child custody dispute with the respect to that child is pending before the court”. A "child custody dispute” is then defined under § 27b(2) as a proceeding in which any of the following occurs:
"(a) The marriage of the child’s parents is declared invalid or is dissolved by the court, or a court enters a decree of legal separation with regard to the marriage.
"(b) Legal custody of the child is given to a party other than the child’s parent, or the child is placed outside of and does not reside in the home of a parent, excluding any child who has been placed for adoption with other than a stepparent, or whose adoption by other than a stepparent has been legally finalized.” MCL 722.27b(2); MSA 25.312(7b)(2).
It should be obvious that neither of the definitions of a child custody dispute set out in the statute are applicable in the instant case. Subsection (a) does not apply since the marriage of the plaintiffs daughter and defendant had been dissolved by the Macomb County Circuit Court as of September 27, 1976. Further, the children’s father was given custody under the terms of the divorce judgment, thus rendering subsection (b) inapplicable. Since the language of the statute is clear and unambiguous, judicial construction is neither required nor permitted. Perry v Sturdevant Manufacturing Co, 124 Mich App 11, 15; 333 NW2d 366 (1983). The trial court correctly granted defendant’s motion for summary judgment.
Although not necessary for the resolution of this case, we wish to take this opportunity to express our concern over certain procedural and jurisdictional problems we perceive as arising from the provisions of MCL 722.27b; MSA 25.312(7bj. Subsection (3) of this statute requires that an action for visitation must be brought in the circuit court of the county in which the grandchild resides. We believe that such a requirement will, in some cases, violate the traditional rule which grants to the trial judge who presided over a divorce action, or his successor, the continuing authority to oversee the parties’ compliance with the terms of the divorce judgment. For example, MCL 552.17a; MSA 25.97(1) extends to the trial court having jurisdiction over the parties to a divorce the authority to direct an order of custody and support governing children of the marriage. Further, pursuant to MCL 552.17; MSA 25.97, the court also retains continuing authority to modify the provisions of a previously issued judgment of divorce. San Joaquin County, California v Dewey, 105 Mich App 122, 128; 306 NW2d 418 (1981). Due to the special nature of divorce cases, we believe that requests for modifications in divorce decrees and child custody disputes are best heard and decided by the court already familiar with the facts and special circumstances of each case. To the extent that MCL 722.27b; MSA 25.312(7b) requires a dif ferent court to hear a request for an order of visitation, we consider the statute to be unwisely written.
We conclude that the trial court ruled correctly in granting the defendant’s motion for summary judgment, since no child custody dispute was pending before the court. We note, however, that pursuant to MCL 552.17; MSA 25.97, plaintiff might have been more successful had her daughter petitioned the Macomb County Circuit Court judge who presided over the divorce of the plaintiff’s daughter and the defendant, or his successor, to modify the terms of the divorce judgment to authorize plaintiff to pick up the children in her daughter’s place whenever the daughter was unable to exercise her visitation rights.
The next question presented is whether the trial court erred in granting costs and attorney fees to the defendant on the grounds that plaintiff’s claim was "frivolous”. Defendant’s brief suggests that the trial court’s actions were authorized by GCR 1963, 111.6, which provides:
"If it appears at the trial that any fact alleged or denied by a pleading ought not to have been so alleged or denied and such fact if alleged is not proved or if denied is proved or admitted, the court may, if the allegation or denial is unreasonable, require the party making such allegation or denial to pay to the adverse party the reasonable expenses incurred in proving or preparing to prove or disprove such fact as the case may be, including reasonable attorney fees.”
However, as noted in the Court in Minor v Michigan Education Ass’n, 127 Mich App 196, 200; 338 NW2d 913 (1983), "[njothing in GCR 1963, 111.6 confers any authority to award attorney fees or costs incurred in disputing an adverse party’s position as to issues of law”, but rather applies only to the steps taken by an opponent to establish disputed matters of fact. The Minor Court further stated that:
"We cannot condone the principle of allowing a trial court to apply GCR 1963, 111.6 to reimburse a party for time spent in disputing questions of law, no matter how improbable or novel the legal theory involved. Such an application not only contravenes the narrowly drawn language of GCR 1963, 111.6 as demonstrated supra, but more importantly carries with it the potential for deterring even good-faith litigants from seeking legitimate relief in the courts.” 127 Mich App 200-201.
There can be no doubt that the case at hand, involved a question of law, i.e., plaintiffs contention that she is entitled to visitation rights under the terms of MCL 722.27b; MSA 25.312(7b). While we have concluded that plaintiffs contention lacks merit, it involved only a legal interpretation and did not involve unwarranted factual allegations. Therefore, defendant was not forced to prepare proofs to dispute any allegations of fact. GCR 1063, 111.6 does not confer authority to award attorney fees in such a case and thus the award of costs and fees must be reversed.
Affirmed in part; reversed in part. No costs to either party. | [
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Per Curiam.
Defendant appeals by leave granted from a September 7, 1983, order of the Oakland County Circuit Court denying defendant’s motion to set aside a default.
This case involves a medical malpractice action brought by plaintiff for treatment allegedly rendered by defendant. Plaintiff is the personal representative of the estate of Walter Mason, her deceased husband. On December 23, 1980, defendant allegedly gave Walter Mason a shot of penicillin, and Mason had an anaphylactic shock reaction and died.
A complaint was filed on December 21, 1982, and after several futile attempts to serve defendant, plaintiff learned he was then residing in Zaire, Africa. On May 12, 1983, an order for substituted service was entered in the Oakland County Circuit Court. The order stated:
"It is hereby ordered that service of process on defendant, Percy S. Marsa, be effected by personally serving Phyliss Jeroux [sic] or any other suitable agent, servant, employee, etc., with copies of the summons and complaint, together with the sending of copies of the same said summons and complaint by registered or certified mail addressed to the said defendant at his last known address, 785 or 829 North Lapeer Road, Lake Orion, Michigan and PB7983 Kinshasa I, Zaire, Africa.”
A proof of service dated June 14, 1983, shows that on June 9, 1983, copies of the summons, complaint, and jury demand were served on defendant by certified mail to the Lake Orion address and by registered mail to the Zaire address. No answer was received, and plaintiff filed an affidavit of default on July 12, 1983. Defense counsel entered his appearance on August 23, 1983, and on August 31, 1983, a motion to set aside the default was filed. It was accompanied by three affidavits and a brief in support.
After a hearing conducted on September 7, 1983, the circuit judge entered his order denying with prejudice the motion to set aside the default. The judge held that neither good cause nor a meritorious defense had been established. Defendant moved for a rehearing on the ground that his correct mailing address in Zaire was BP4004, Kinshasa 11, Zaire, Africa. The circuit court denied the motion for rehearing, but did certify his order as involving controlling questions of law as to which there was substantial ground for difference of opinion and that an immediate appeal from the order might materially advance the ultimate termination of the litigation. By order of this Court, leave to appeal was granted.
Defendant claims error in the trial judge’s denial of his motion to set aside the default, and we agree.
Under GCR 1963, 520.4:
"A proceeding to set aside default or a default judgment, except when grounded on want of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.
"Good cause within the meaning of this provision would seem to include (1) a substantial defect or irregularity in the proceedings upon which the default was based, (2) a reasonable excuse for failure to comply with the requirements which created the default, or (3) some other reason showing that manifest injustice would result from permitting the default to stand.” Harrison v VMC Building Corp, 71 Mich App 458, 460; 248 NW2d 584 (1976), citing 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Comments pi 662.
The purpose of the default procedure is to keep the dockets current, to expedite the disposal of causes so as to prevent a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. Bigelow v Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974).
In Daugherty v Michigan (After Remand), 133 Mich App 593; 350 NW2d 291 (1984), this Court held that under factor (3) above, manifest injustice would result from a defendant in default being unable to assert its meritorious defense if the default were not set aside. As in Daugherty, supra, defendant here has, through his affidavits, shown a meritorious defense, i.e., that he had provided plaintiffs decedent with care and treatment which was within the applicable standard of medical practice.
We are not prepared to say that the showing of a meritorious defense by itself is sufficient in all cases to warrant setting aside a default. However, we further find that defendant qualifies under factor (2) above as he has shown a reasonable excuse for failure to appear within the time limited in the summons. At the time he received the summons by mail, defendant was working halfway around the world as a medical missionary, with a mail address different from that described in the summons, in a country where the mail service almost assuredly does not match our own. The time from issuance of the order for substituted service until defense counsel entered his appearance was less than three months. Such a period could hardly be a factor in creating a stale docket or impeding the expeditious disposal of a cause. Thus the purpose of the court rule would not be ill served if the default entered against defendant in this case were to be set aside.
Reversed and remanded for further proceedings consistent with this opinion. | [
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] |
Per Curiam.
The parties were divorced pursuant to a judgment entered May 5, 1980. That judgment provided, inter alia, that plaintiff husband pay alimony to defendant wife in the amount of $1,000 a month for 121 months. On December 22, 1982, defendant wife filed a petition for an order to show cause why plaintiff had not been making the required alimony payments. The order to show cause was issued on April 5, 1983. Plaintiff promptly responded to the show cause order and additionally filed his own petition to terminate alimony. The trial judge heard arguments of counsel for both parties and held that plaintiff was to continue making the alimony payments and refused to hold a hearing on whether defendant’s economic circumstances had changed sufficiently to warrant a modification or termination of alimony. Plaintiff is appealing as of right.
On appeal plaintiff contends that defendant is now cohabiting with another man and that the cohabitation is equivalent to a remarriage which should terminate the alimony. Plaintiff also asserts that defendant’s cohabitation should at least be sufficient to constitute a modification of her alimony as her circumstances have changed.
We decline plaintiff’s invitation to equate cohabitation with remarriage. Crouse v Crouse, 140 Mich App 234; 363 NW2d 461 (1985). We do not find that the Legislature intended to equate cohabitation with remarriage, MCL 552.28; MSA 25.106, nor does the divorce agreement reflect any such intent by the parties. After our de novo review, we cannot say that the trial court abused its discretion. Carlson v Carlson, 139 Mich App 299; 362 258 (1984).
Plaintiff’s assertion that he should be given an opportunity to prove that defendant’s economic well-being has improved due to her meretricious relationship is well taken. A modification of an alimony award may be permitted upon a change of circumstances and a hearing to establish such a change. Dresser v Dresser, 130 Mich App 130, 135; 342 NW2d 545 (1983). Plaintiff has pleaded new facts that have arisen since the divorce and the circumstances may now require revision. Schaeffer v Schaeffer, 106 Mich App 452, 460; 308 NW2d 226 (1981). The party moving for the modification has the burden of showing sufficiently changed circumstances to warrant the modification. Graybiel v Graybiel, 99 Mich App 30, 33-34; 297 NW2d 614 (1980). Accordingly, plaintiff should be afforded the opportunity to substantiate his claims as defendant’s economic situation may have been improved by her cohabitation. While a meretricious relationship alone is not sufficient in and of itself to modify an alimony award, the surrounding circumstances may be. Therefore, we remand this cause for a determination of whether the alimony award should be modified.
Affirmed in part and remanded for the trial court to proceed in accordance herewith. No costs. Neither party having prevailed in full. | [
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] |
M. J. Kelly, P.J.
Defendant was jury tried and convicted of felonious assault, MCL 750.82; MSA 28.277, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced on June 6, 1983, and appeals as of right, alleging that he was improperly found competent to stand trial.
Defendant was arrested in March of 1980 for assaulting with a revolver Kenneth Warren Beall, an attorney for the bank which held the mortgage on defendant’s trailer. The offense occurred in Tuscola County on March 18, 1980. On March 2, 1981, a hearing was held to determine defendant’s competence to stand trial on the assault and felony-firearm charges and on an unrelated larceny charge. A report by Dr. Poythress, a psychiatrist from the Center for Forensic Psychiatry, was entered at the hearing by stipulation of the parties. It was Dr. Poythress’s opinion that defendant was incompetent to stand trial because there was "some doubt” that defendant would be able to assist his counsel in a reasonable and rational manner. The court accepted the opinion and found defendant incapable of standing trial. The court determined, however, that treatment and therapy could remedy the incapacity.
At that first competency hearing, defense counsel argued that the 15-month period after which the charges in Tuscola County must be dismissed pursuant to § 1044 of the Mental Health Code, MCL 330.2044; MSA 14.800(1044), should run from the December, 1980, date on which defendant was "originally” adjudicated incompetent in a federal court criminal proceeding. According to defense counsel, defendant had been found incompetent to stand trial in an unrelated federal district court criminal proceeding conducted subsequent to defendant’s arraignment on the Tuscola County charges. Counsel asserted that the federal court finding of incompetence in December of 1980 should be used for calculating the duration of defendant’s incompetence to stand trial in the Tuscola County proceedings. Counsel then reasoned that the state court charges against defendant would have to be dismissed if the defendant remained incompetent past the middle of March, 1982. The trial court reserved its ruling on this issue and requested the parties to submit briefs on whether the period of incompetence established in the federal court could be tacked onto the period of incompetence established in the state court. An order placing defendant in the care and custody of the Department of Mental Health was signed and filed on July 22, 1981.
A second competency hearing was held before the Tuscola County Circuit Court on January 21 and 25, 1982. The sole prosecution witness was defendant’s treating clinician, psychiatric social worker Barbara O’Neal. Defendant did not object to Ms. O’Neal’s testimony and the court found her qualified to testify as an expert as to defendant’s competence. Ms. O’Neal testified that she first began treating defendant on November 12, 1981, and continued to see him twice a week until the date of hearing. According to Ms. O’Neal, defendant was a "model patient” and got along well with the staff and other patients. Ms. O’Neal revealed that there were some problems in communicating with the defendant. Specifically, she noted that defendant was often loud and overbearing, spoke in a rapid forced manner, and discussed, at length, his interpretation of the law and the unfairness of the actions instituted against him. Ms. O’Neal also testified that defendant was suffering from cardiovascular problems and from "Korsakoff’s Disease”, which was related to defendant’s long history of alcohol abuse and which caused defendant to experience some memory deterioration. In order to compensate, defendant had a tendency to "confabulate”, or unconsciously fill in the gaps in his memory with untrue information. Despite the communication problems, Ms. O’Neal opined that defendant understood and was aware of the significance of the charges against him and also understood the roles of the attorneys, judge and jury. She admitted that it would be tedious for an attorney to work with defendant, but explained that defendant could aid in his defense if he were first given an opportunity to speak as he wished.
Psychologist Dale Fowler, called by defendant, testified that defendant was incompetent to stand trial. Mr. Fowler had previously evaluated defendant pursuant to a federal court order issued in regard to the federal criminal charges. Mr. Fowler had administered the Minnesota Multiphasic Personality Inventory test and found defendant to be well outside the normal range in impulse control, judgment, and reality testing. Mr. Fowler noted that defendant had an extremely low tolerance for frustration and a great deal of difficulty focusing his attention. Mr. Fowler admitted that defendant understood the nature of the charges against him, but asserted that defendant would not be able to rationally assist counsel. Mr. Fowler also stated that the prognosis for improvement in defendant’s ability to communicate with his attorney was not good. In support of this conclusion, he noted that defendant’s behavior had deteriorated since the federal court proceedings.
The attorney who had represented defendant in the federal court proceeding testified about his experience and buttressed the conclusion of the psychologist the defendant was irrational, uncontrollable and incompetent to stand trial.
Defendant himself, however, testified that he was ready to go to trial. He insisted that he was entitled to a speedy trial and that if he wasn’t given a trial immediately the charges against him would have to be dismissed. He rambled at length about the federal and state "conspiracy” against him and his brother.
At the conclusion of the hearing, the trial court determined that defendant was suffering from a substantial disorder of thought and mood which rendered him incapable of competently assisting counsel. Accordingly, he was again declared incompetent to stand trial.
On July 15, 1982, defense counsel moved to dismiss the charges against defendant on the ground that defendant remained incompetent 15 months after the original determination of incompetency, and thus that the charges must be dismissed pursuant to the mandate of § 1044 of the Mental Health Code. Defense counsel argued that 17 months had elapsed since the trial court’s initial finding of incompetency on March 2, 1981. Counsel further argued that two prior determinations of defendant’s incompetency had been made and that the passing of more than 15 months from the date of both those determinations also required dismissal of the charges pending against defendant in Tuscola County. One of the prior findings of incompetency occurred in the federal criminal proceedings already alluded to. Apparently, defendant had also been adjudicated incompetent to stand trial for charges filed in Lapeer County Circuit Court, though defense counsel did not on the record before us reveal the details of those proceedings.
The trial court held that the prior federal and state findings of incompetency were irrelevant to a determination of whether 15 months had passed for purposes of the Tuscola County proceedings. The trial court also found that less than 15 months had passed since its own determination of defendant’s incompetency because the operative date under § 1044 was not March 2, 1981, the date its opinion was rendered on defendant’s competency, but rather, July 22, 1981, the date the order was entered placing defendant in the custody of the Department of Mental Health. Accordingly, the court concluded that the charges against defendant need not be dismissed until October, 1982.
A third competency hearing was held on September 1, 1982, at which the prosecution introduced the testimony of three expert witnesses. The issue was closely drawn and the main thrust of the witnesses’ testimony was that defendant could be expected to understand the proceedings, assist his attorney and behave appropriately if he was administered 1200 milligrams of lithium per day. The trial court found defendant competent to stand trial, but ordered that defendant should be maintained on lithium prior to and on the day of trial. A jury trial followed in March pf 1983 resulting in defendant’s conviction. On June 6, 1983, he was sentenced to a prison term of from 32 to 48 months on the felonious assault count and to a consecutive two-year term on the felony-firearm count. Credit was given for 634 days already served.
We hold that the trial court erred in finding that less than 15 months had elapsed between the date on which defendant was determined incompetent and the date on which he was subsequently found to be incompetent. We reverse defendant’s conviction.
Section 1044 of the Mental Health Code provides:
"(1) The charges against a defendant determined incompetent to stand trial shall be dismissed:
"(a) When the prosecutor notifies the court of his intention not to prosecute the case; or
"(b) Fifteen months after the date on which the defendant was originally determined incompetent to stand trial.
"(2) When charges are dismissed pursuant to subsection (1), the same charges, or other charges arising from the transaction which gave rise to the dismissed charges, shall not subsequently be filed against the defendant, except as provided in this section.
"(3) If the charges were dismissed pursuant to subsection (1) and (b) and if the crime charged was punishable by a sentence of life imprisonment, the prosecutor may at any time petition the court for permission to again file charges. In the case of other charges dismissed pursuant to subsection (l)(b), the prosecutor may, within that period of time after the charges were dismissed equal to 1/3 of the maximum sentence that the defendant could receive on the charges, petition the court for permission to again file charges.
"(4) The court shall grant permission to again file charges if after a hearing it determines that the defendant is competent to stand trial. Prior to the hearing, the court may" order the defendant to be examined by personnel of the center for forensic psychiatry or other qualified person as an outpatient but may not commit the defendant to the center or any other facility for the examination.” MCL 330.2044; MSA 14.800(1044). (Emphasis added.)
The appellate courts of this state have not yet specifically ruled on whether the 15-month period in § 1044 is to be calculated from the date the trial court delivers its opinion as to a defendant’s competency or from the date, following a finding of incompetency, on which the court enters a written order committing a defendant to the Department of Mental Health. In People v Davis, 123 Mich App 553; 332 NW2d 606 (1983), after remand 129 Mich App 622; 341 NW2d 776 (1983), however, this Court was presented with the problem of determining whether a written order committing the defendant for competency evaluation or whether the subsequent finding of incompetence by the trial court marked the commencement of the 15-month period. This Court determined that the 15-month period began to run "after an accused is adjudicated incompetent, not after he is [first] ordered committed for diagnostic examination”. 123 Mich App 557. The 15-month period was thus calculated from the date of the hearing at which the defendant in Davis was found incompetent. We approve the holding and analysis of Davis and apply it in the instant case. Because more than 15 months had elapsed from the date on which the trial court found defendant to be incompetent to stand trial, the charges against him must be dismissed under § 1044.
Our construction of § 1044 is influenced by two additional considerations. First, and as a general rule, procedures for determining a criminal defendant’s competence to stand trial are ultimately rooted in principles of due process. People v Vokes, 134 Mich App 62, 64; 349 NW2d 819 (1984); People v Davis, supra, 123 Mich App 557-558. Provisions of the Mental Health Code should thus be interpreted in a manner that protects incompetent defendants from indefinite denials of liberty. Second, general rules of statutory interpretation require us to give effect to the terms of a statute where those terms are unambiguous. Dep’t of Treasury v Campbell, 107 Mich App 561, 568; 309 NW2d 668 (1981), lv den 413 Mich 935 (1982).
In construing § 1044 in light of these two principles, we find it instructive to consider several other provisions of the Mental Health Code which apply once a defendant has been adjudicated incompetent. Section 1032 of the code authorizes the trial court to order treatment for defendants found to be incompetent, including commitment to the custody of the Department of Mental Health. MCL 330.2032; MSA 14.800(1032). Where treatment is ordered following an initial finding of incompetency, § 1040 allows the trial court to rehear and redetermine issues of competency, particularly upon receipt of any progress reports from the treatment provider and to continue or modify treatment as deemed useful and necessary. MCL 330.2040; MSA 14.800(1040). Section 1034, however, limits the period during which the state may hold the defendant for treatment:
"No order or combination of orders issued under section 1032 or 1040, or both, shall have force and effect for a total period in excess of 15 months or 1/3 of the maximum sentence the defendant could receive if convicted of the charges against him, whichever is lesser; nor after the charges against the defendant are dismissed.” MCL 330.2034(1); MSA 14.800(2034X1).
According to the unambiguous language of § 1034, the period during which "orders” for treatment will be given force and effect is limited to 15 months. It is thus true, as determined by the trial court, that the Department of Mental Health had 15 months within which to treat defendant.
Section 1044, on the other hand, governs the time during which an incompetent defendant may be forced to await the docketing of a case for trial. Once a defendant has been found incompetent to stand trial, the right to be found guilty or not guilty of the pending charges would be indefinitely suspended without the limitation of § 1044, regardless of whether the Department of Mental Health retained custody for treatment. In order to protect defendants from an indefinite suspension of their right to trial, as opposed to an indefinite suspension of their right to liberty, § 1044 requires that charges be dismissed 15 months after the determination of incompetency. Thus, § 1044 refers to determinations of incompetency rather than to orders of treatment, as does § 1034. Given the different purposes served by §§ 1034 and 1044 and the difference in language, it is apparent to us that the Legislature intended the date on which a defendant is "determined incompetent”, as used in § 1044, to be the date on which the court made its finding and not, as under § 1034, the date on which the court issued an order remanding a defendant to the custody of the department.
The prosecutor in the instant case failed to prepare and submit an order committing defendant to the custody of the Department of Mental Health following the trial court’s determination of incompetency. The prosecution’s lapse placed defendant in limbo for a period of 4-1/2 months. During this time, defendant received no treatment or further psychiatric evaluation, and, since he was laboring under a determination of incompetency, his case could not be scheduled for trial. If we were to accept the prosecution’s interpretation of § 1044, competency proceedings could delay trial as long as 2-1/2 years following a finding of incompetency. Under § 1044, a defendant could be prevented from proceeding to trial 15 months after being adjudicated incompetent. At 15 months, the prosecution could obtain an order of treatment from the trial court, thus delaying defendant’s right to proceed to trial as long as another 15 months under § 1034. We find that such an interpretation is contrary to the intent of the Legislature in imposing 15-month limitations both on suspensions of liberty and on the right to trial. Since in this case more than 15 months had passed between the original determination of incompetence on March 2, 1981, and September 1, 1982, the date on which defendant was finally adjudicated competent to stand trial, the charges against this defendant should have been dismissed.
We find it unnecessary to decide whether the findings of incompetence in the federal court and in the Lapeer County Circuit Court also require dismissal of the charges against defendant in this case. However, the language in § 1020 of the Mental Health Code, MCL 330.2020; MSA 14.800(1020), that "a defendant to a criminal charge shall be presumed competent to stand trial” suggests to us that the presumption is renewed with the institution of each charge against the defendant. We would find that a period of incompetence in one criminal proceeding could not be continued over into a different proceeding.
We find it unnecessary to address defendant’s challenge to the sufficiency of evidence supporting the trial court’s finding of competency.
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Per Curiam.
On December 6, 1974, by judgment of divorce entered in Wayne County Circuit Court, Matthew Allen, Jr., was divorced from Delores G. Allen, and Matthew was ordered to make child support payments through the Friend of the Court, defendant herein. On November 18, 1983, Matthew was in arrears in the sum of $760.57 on this obligation. On December 12, 1983, the Michigan Bureau of Workers’ Disability Compensation entered a final order of redemption in Matthew’s favor against the City of Detroit, plaintiff herein, in the sum of $2,452.25. On December 15, 1983, the circuit court entered an order appointing defendant Friend of the Court as receiver for workers’ compensation funds due or which might be due Matthew from the city. The city received notice of this order on January 3, 1984, but nevertheless forwarded the compensation award to Matthew on January 9, 1984, contrary to the order appointing a receiver. On June 16, 1984, at the behest of the Friend of the Court, the Wayne County Circuit Court entered judgment against the city in the amount of the redemption order. We affirm.
The city’s appeal challenges the subject matter jurisdiction of the circuit court over the final order of redemption of the bureau. The challenge here, where plaintiff asserts that the Worker’s Disability Compensation Act places the resolution of all compensation disputes in the bureau, is different from that raised in Petrie v Petrie, 41 Mich App 80; 199 NW2d 673 (1972), where appellant asserted that the workers’ compensation act placed compensation payments beyond the reach of the employee’s debtors. That part of the act on which plaintiff here relies is § 841, and it provides:
"Any controversy concerning compensation shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau. The director shall be deemed to be an interested party in all workmen’s compensation cases in questions of law.” MCL 418.841; MSA 17.237(841).
Panozzo v Ford Motor Co, 255 Mich 149; 237 NW 369 (1931), and Solo v Chrysler Corp (On Rehearing), 408 Mich 345; 292 NW2d 438 (1980), are cited by the city to support its claim that the imposition by the circuit court of a lien on workers’ compensation awards constitutes an alteration of the award. If this were so, § 841 would probably apply. But the imposition of a lien on the proceeds of the award in no way alters the award.
In this case, the controversy is between the Friend of the Court, acting on behalf of the wife, and her former husband. There is no controversy between the husband and his employer, City of Detroit. As stated under similar facts in Davis v Davis, 137 Mich App 291; 358 NW2d 6 (1984),
"Ford had no interest in the money sought to be collected, other than the responsibility of delivering it to either the receiver or defendant Davis.” 137 Mich App 294.
The city further asserts that, by failing to obtain a lien against the husband for the proceeds of the final order of redemption, the Friend of the Court has made it impossible for the husband to assert any defenses which he might have as a party to the original divorce action. Aside from the fact that the city has no standing in the divorce action to raise this issue, we only note that the husband can always assert his defenses to his former wife’s claim in proceedings supplemental to the divorce.
Relying on Evans v Evans, 98 Mich App 328; 296 NW2d 248 (1980), the city next argues that a lien can attach to the proceeds of a redemption order only if the redemption occurs during the marriage so that it can be treated as an asset of the marriage. Evans, supra, did not deal with the proceeds of a redemption order occurring after the marriage has terminated, as does this case, and the former wife’s claim here is not for a share of the marital assets, as in Evans, but is for unpaid child support. This very factual situation was before this Court in Petrie, supra, and its response laid the question to rest in the following words:
"Our Supreme Court, in discussing the legislative intent of the Michigan Workmen’s Compensation Act (in another context) opined:
" 'The act was originally adopted to give employers protection against common-law actions and to place upon industry, where it properly belongs, not only the expense of the hospital and medical bills of the injured employee, but place upon it the burden of making a reasonable contribution to the sustenance of that employee and his dependents during the period of time he is incapacitated from work. This was the express intent of the legislature in adopting this law.’ Lahti v Fosterling, 357 Mich 578, 585 (1959). (Emphasis supplied.)
"It would indeed be a queer inversion of statutory construction to hold that an act passed for the benefit of a workman and his dependents places the amounts paid under an award of the commission beyond the reach of the dependents it is supposed to help support.” (Emphasis in original.) Petrie, supra, p 83.
We find no merit in the city’s claim that six days notice was insufficient time for it to retrieve the award check to the husband from its check processing system.
Affirmed. Costs to appellee. | [
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Per Curiam.
Summary disposition was granted in favor of defendants James Knake, Elizabeth Copland, and St. Joseph Mercy Hospital with regard to plaintiff’s claims arising out of the alleged medical malpractice of defendants in their treatment of plaintiff’s decedent. Plaintiff appeals as of right, and we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
Plaintiff, as the personal representative of her deceased husband’s estate, filed suit alleging that defendants failed to accurately read x-rays taken of the decedent’s hip in January 1995 and failed to properly diagnose his condition. Instead of diagnosing a metastasized cancer pursuant to the Januaiy 1995 x-rays, either defendant Knake or defendant Copland reported that the decedent suffered only from very minimal arthritis in the hip. Although the parties dispute when the cancer was actually diagnosed, plaintiff alleged that it was not diagnosed until April 1995. The decedent died in July 1995.
In her second amended complaint, plaintiff alleged that as a result of defendants’ failure to timely render a proper diagnosis, the decedent was not immediately afforded aggressive treatment that may have prolonged his life. She also alleged that defendants’ malpractice caused a loss of certain retirement and lifelong medical benefits to the decedent and his dependents. Apparently, decedent and his family would have been entitled to certain enhanced benefits if his employer had been given a full five-month notice of the decedent’s terminal condition. The employer was not given a full five-month notice because of the delay in diagnosis.
Defendant hospital moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that plaintiff did not allege a valid medical malpractice claim. Defendant Copland filed a concurrence and defendant Knake, orally during the motion hearing, joined in the motion. The trial court granted summary disposition, and a stipulation was thereafter entered dismissing defendant Huron Valley Radiology, RC.
On appeal, we review de novo a grant of summary disposition pursuant to MCR 2.116(C)(8). Beaty v Hertzberg & Golden, PC, 456 Mich 247, 253; 571 NW2d 716 (1997). All factual allegations in support of the claim are accepted as true, as are any reasonable inferences or conclusions that can be drawn from the facts. Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995); Smith v Stolberg, 231 Mich App 256, 258; 586 NW2d 103 (1998). The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Simko, supra.
There are two basic issues that must be resolved. First, we must decide whether plaintiff was entitled to file a claim for medical malpractice arising out of the alleged untimely diagnosis of the decedent’s cancer. Second, we must decide whether, assuming plaintiff was entitled to file a claim, a valid malpractice claim was pleaded to the extent that the grant of summary disposition pursuant to MCR 2.116(C)(8) was inappropriate.
We find that plaintiff was clearly entitled to bring the medical malpractice cause of action against defendants. MCL 600.2921; MSA 27A.2921 provides:
All actions and claims survive death. Actions on claims for injuries which result in death shall not be prosecuted after the death of the injured person except pursuant to the next section. If an action is pending at the time of death the claims may be amended to bring it under the next section. A failure to so amend will amount to a waiver of the claim for additional damages resulting from death.
Defendants take the position that only pending claims survive death pursuant to the statute. The trial court agreed, stating, “[t]alking about all actions and claims survive death. That section requires that the claim be filed prior to the death of the individual.” We strongly disagree with this interpretation of the statute.
The goal of statutory construction is to interpret and apply the statute in accordance with the Legislature’s intent. Mahrle v Danke, 216 Mich App 343, 348; 549 NW2d 56 (1996).
Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning; technical terms are to be accorded their peculiar meanings. Nothing will be read into a statute that is not within the manifest intention of the Legislature as gathered from the act itself. The first criterion in determining intent is the specific language of the statute. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. [Vanderlaan v Tri-County Community Hosp, 209 Mich App 328, 332; 530 NW2d 186 (1995) (citations omitted, emphasis added).]
In this case, the plain language of the statute states that “[a]ll actions and claims survive death.” It does not state that all pending actions and claims survive death. To read the term “pending” into the statute would amount to judicial construction where none is warranted.
In Hardy v Maxheimer, 429 Mich 422, 436-438; 416 NW2d 299 (1987), the Court discussed the history of § 2921. It noted that early in the legislative development of the survival act, several causes of action, including actions for fraud, deceit, and negligent injuries to persons were allowed to survive the death of a person who could make the claim. Hardy, supra at 436. The list of actions that survived a claimant’s death was expanded in 1948. Id. at 437. The Court also noted that in 1961, however, the Legislature abandoned the “laundry list” approach to the survival act and enacted the current version of the statute, which allows all claims to survive death. Id. The intent of the Legislature was stated in the Committee Comment accompanying the revised survival act:
“This section drastically changes the present law, CL (1948) 612.32. At common law, personal rights of action died with the person. This seemed manifestly unfair in certain cases, so Survival Acts were written to allow certain actions to survive. There is no good reason for allowing some actions to survive, and not others, apart from cultural inertia. Since the actions which have not survived in the past are tort actions, it is pertinent to consider the theory of tort damages.
“One purpose of damages in tort is to compensate the injured party. This purpose is defeated if the action does not survive the death of the injured party, or the death of the wrongdoer. Damages in tort are also thought to serve an exemplary purpose, even when not denominated ‘punitive.’ This purpose is defeated if the action does not survive.
“This section is a logical advance in the legislation in this area. That it has not been made earlier may be due to the unfortunate approach of the statutes in listing those actions which do survive, and thus overlooking those which the statute failed to cover. This section has the added advan tage of simplicity in application.” [Id. at 437-438, quoting the Committee Comment (emphasis in original).]
The Court declared that the language of § 2921 was sweeping and unambiguous and was “universally applicable to all actions and claims which arise under the Revised Judicature Act.” Id. at 438 (emphasis in original).
In this case, any medical malpractice claim that the decedent had against defendants survived his death. See Falcon v Memorial Hosp, 436 Mich 443, 469; 462 NW2d 44 (1990) (Levin, J.). There did not have to be an action pending at the time of his death. When a person dies without having filed any claims or actions that he may have, the decedent’s personal representative may file the surviving action. See MCL 600.5852; MSA 27A.5852.
[T]he personal representative of a deceased who asserts a cause of action on behalf of a deceased stands in the deceased’s place for all purposes incident to the enforcement of that claim, including rights and privileges personal to the deceased in his lifetime. [McNitt v Citco Drilling Co, 60 Mich App 81, 88; 230 NW2d 318 (1975) (emphasis in original).]
Thus, we find that plaintiff had the right to file any malpractice action that the decedent may have had.
In making this ruling, we would be remiss if we did not address the parties’ arguments with regard to the wrongful death statute, MCL 600.2922; MSA 27A.2922. Plaintiff relies on § 2922 to find support for her request for certain economic damages and wrongfully concludes that pursuant to § 2921, she was required to file suit in accordance with § 2922. Defendants also advance various theories with regard to plaintiff’s claims under the wrongful death statute. The wrongful death statute has no bearing on this case and citation of it under the circumstances is not only curious, but also creates confusion. We believe that the confusion stems from the fact that in addition to providing that all actions and claims survive death, § 2921 provides special instructions with regard to claims for injuries that result in death. It directs that those claims must be pursued under § 2922. It also provides that if an action is pending at the time of death the claims may be amended to bring the action in compliance with § 2922, and if the action is not amended to comply, no additional damages resulting from the death can be obtained. Neither of the provisions apply to this case. This is not a wrongful death case. Plaintiff readily concedes that she is not alleging that defendants’ conduct caused injuries that resulted in death. Rather, she is alleging that defendants’ conduct caused economic injuries and that defendants’ conduct caused pain and suffering and failed to prolong the decedent’s life. Moreover, this is not a case where the decedent had a cause of action for his injuries pending at the time of death and the action needed to be amended when he succumbed to death from those injuries. The wrongful death statute is inapplicable, and further discussion of it is unwarranted.
Pursuant to § 2921, plaintiff was entitled to bring any medical malpractice action that her decedent would have had. Pursuant to § 5852, she simply needed to prosecute that action in her own name as personal representative of the decedent’s estate. Thus, we turn our attention to the issue whether there is a viable medical malpractice action.
The elements of an action for negligence include the existence of a duty, a breach of the standard of care, causation in fact, legal or proximate causation, and damages. Malik v William Beaumont Hosp, 168 Mich App 159, 168; 423 NW2d 920 (1988), citing Mon-ing v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). In a medical malpractice case, the duty owed arises from the physician-patient relationship. Malik, supra. Here, plaintiff alleged that defendant physicians owed a duty to the decedent, and she alleged sufficient facts to demonstrate that there was a relationship between the defendant physicians and the decedent to the extent that a duty arose. Plaintiff also alleged a breach of the standard of care. She alleged that defendants owed a duty to interpret the January 24, 1995, x-rays in a manner consistent with that of reasonably prudent radiologists and failed to do so. She alleged that while the defendants interpreted the x-rays as showing “very minimal arthritis” in the decedent’s hip, the x-rays really showed the presence of a metastatic malignancy. Plaintiff also alleged that defendants’ conduct caused injury and damages:
Had Defendants found and disclosed the metastatic malignancy present in the x-rays of John Theisen taken by Defendants on January 24, 1995, John Theisen and his dependents would have been entitled to certain retirement and life-long medical benefits and health coverage from the decedent’s employer ....
Had Defendants properly diagnosed the metastatic malignancy on January 24, 1995, John Theisen would have been subject to treatment which would have diminished or con trolled the spread of cancer, prolonged his life and otherwise permitted him to maximize the remainder of his life.
As a result of Defendants’ breach of duty and the applicable standard of care, John Theisen suffered economic and non-economic injuries including, but not limited to, loss of certain retirement benefits, loss of certain disability payments from his employer, life-long medical benefits and health coverage for his dependents, pain and suffering, anxiety, agony, humiliation, and loss of the enjoyments of life.
We find that plaintiff clearly alleged all the necessary elements for a medical malpractice claim. However, keeping in mind that this is a survival action, if the damages alleged by plaintiff were not damages that could have been recovered by the decedent had he lived and filed this suit on his own behalf, plaintiff has failed to state a claim. Recall that plaintiff is standing in the shoes of the decedent and prosecuting his action for him. McNitt, supra.
Our review leads to the conclusion that not all the damages alleged by plaintiff would have been recoverable by the decedent had he filed this action himself. Plaintiff was not entitled to pursue her claim with regard to the alleged loss of enhanced benefits for the decedent’s dependents. Plaintiff’s theory is that the postdeath benefits from the decedent’s employer are less than they would have been had the malpractice not occurred. Logically, the decedent could never have pursued damages for the loss of enhanced benefits for his dependents because the damages were contingent on the timing of his death. Recovery is not permitted in a tort action for remote, contingent, or speculative damages. Law Offices of Lawrence J Stockier, PC v Rose, 174 Mich App 14, 33; 436 NW2d 70 (1989). Therefore, we hold that plaintiff failed to state a claim with respect to those damages.
To the extent, however, that plaintiff alleges that the malpractice caused the decedent to receive less benefits while he was alive and on disability, there is a claim. In other words, if the delay in diagnosis caused the decedent economic harm while he was still living, plaintiff may, if the other elements of the case are proved, recover those damages. Plaintiff may also be able to recover any pain and suffering damages related to the malpractice. Damages recoverable in malpractice actions include pain and suffering. Penner v Seaway Hosp, 169 Mich App 502, 508-509; 427 NW2d 584 (1988), quoting Stewart v Rudner, 349 Mich 459, 467-468; 84 NW2d 816 (1957). In so ruling, we note that there might not be a question of fact with regard to these damages because it appears that the decedent may not have suffered economic injury himself or pain and suffering related to the malpractice itself because plaintiff apparently concedes that the death would have occurred even if the proper diagnosis had been made in January. However, plaintiff has alleged these damages, which may be recoverable, and thus the grant of summary disposition pursuant to MCR 2.116(C)(8) with regard to those parts of plaintiffs action was inappropriate.
We also note that plaintiff failed to properly plead that the decedent would have been entitled to collect damages for loss of opportunity to prolong his life. MCL 600.2912a(2); MSA 27A.2912(1)(2) states that a plaintiff cannot recover for the loss of an opportunity to achieve a better result unless the opportunity was greater than fifty percent. Plaintiff here did not plead that had the cancer been diagnosed in January, it would be more likely than not that the decedent’s life would have been prolonged or the cancer controlled.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
We agree with defendants that there was no duty between the defendants and plaintiff to support a medical malpractice action.
Falcon, supra, found that a loss of opportunity to survive was actionable where the loss of opportunity to survive was 37.5 percent. That hold ing however was superseded by the “greater than 50%” language of MCL 600.2912a(2); MSA 27A.2912(1)(2). | [
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Saad, P.J.
Plaintiff Capital Region Airport Authority (craa), a state agency charged with operating Capital City Airport, brought this suit against the Charter Township of DeWitt claiming exemption from DeWitt’s zoning ordinance so that it could develop a business park on airport grounds. The trial court held that DeWitt was not authorized to regulate airport land use and that the CRAA was not subject to DeWitt’s land-use ordinances. DeWitt now appeals from the trial court’s order granting summary disposition in favor of the craa pursuant to MCR 2.116(C)(10). We reverse and remand for further proceedings.
i
PACTS AND PROCEEDINGS
The CRAA is the airport authority charged with operating Capital City Airport pursuant to the airport authorities act, 1970 PA 73, as amended, MCL 259.801 et seq.-, MSA 10.380(1) et seq. Airport authorities, including the craa, were statutorily created in 1970 to assume the powers and responsibilities set forth in the Aeronautics Code, MCL 259.1 et seq.] MSA 10.101 et seq. Before the enactment of 1970 PA 73, these powers and responsibilities were held by the Michigan Aeronautics Commission. MCL 259.809; MSA 10.380(9). Capital City Airport occupies land in three counties (Ingham, Clinton, and Eaton) and four municipalities (defendant DeWitt Township, Delta Township, the city of Lansing, and Watertown Township). The Aeronautics Code allows the CRAA to lease airport lands for nonaeronauticai purposes, and the CRAA has apparently done so in the past without pro test or interference by DeWitt. MCL 259.105; MSA 10.205.
This conflict arose when the craa articulated its plan to develop airport lands in DeWitt contrary to DeWitt’s zoning ordinance. The CRAA decided to subdivide a portion of Capital City Airport into a development to be known as the “Capital City Airport Business Park.” At least some of these lots were slated for lease to nonaviation-related businesses. The CRAA also negotiated plans with an existing tenant to construct a tortilla processing plant on airport grounds. These proposed developments were contrary to the zoning ordinance DeWitt promulgated pursuant to its authority under the Township Zoning Act (tza), MCL 125.271 et seq.\ MSA 5.2963(1) et seq. Some of the anticipated tenants for the business park balked because they were unable to obtain DeWitt’s zoning approval to operate on the airport grounds. The CRAA also made an unsuccessful attempt to obtain rezoning for the tortilla plant. DeWitt maintained that the tza allowed DeWitt to enforce its zoning ordinance with respect to the craa’s land use. DeWitt also argued that the craa was obligated to submit to DeWitt a “development plan” and to comply with the requirements in the Land Division Act (formerly the Subdivision Con trol Act of 1967), MCL 560.101 et seq.; MSA 26.430(101) et seq., in order to subdivide the land in question. The craa denied that DeWitt had the authority to regulate the CRAA’s land use: it argued that the aeronautical statutes conferred on the CRAA the exclusive jurisdiction over airport property and operations. The craa sued DeWitt for declaratory relief to establish the CRAA’s right of exclusive jurisdiction over airport land use.
Both parties moved for summary disposition. The CRAA asserted that the Capital City Airport property was exempt from DeWitt’s zoning regulations and the Land Division Act because the Legislature intended for the CRAA to have sole jurisdiction over the airport. DeWitt gainsaid the CRAA’s assertion, contending that none of the relevant statutes exempted the craa from local regulation. The trial court ruled for the craa and held that the Airport Authorities Act, MCL 259.801 et seq.; MSA 10.380(1) et seq., conferred on the craa exclusive jurisdiction over all airport operations, including land use, and therefore exempted the craa from both the zoning regulations and the Land Division Act. This appeal ensued.
We heard oral argument on August 12, 1998, one month after our Supreme Court granted leave to appeal in Burt Twp v Dep’t of Natural Resources, 227 Mich App 252; 576 NW2d 170 (1998), lv gtd 458 Mich App 865 (1998), aff’d 459 Mich 659; 593 NW2d 534 (1999). Because Burt Twp also involved the issue of a state agency’s alleged immunity from local land-use control, we anticipated that the Supreme Court’s ruling would be dispositive of the controlling issue here. Therefore, we held this matter in abeyance pending our Supreme Court’s opinion. The Supreme Court issued its opinion on June 2, 1999.
n
analysis
The CRAA and DeWitt assert competing rights and interests under the aeronautical statutes and the land-use regulation enabling statutes, respectively. This presents a question of law, which we review de novo on appeal. Faircloth v Family Independence Agency, 232 Mich App 391, 401; 591 NW2d 314 (1998).
A
STATE AGENCIES’ OBLIGATION TO COMPLY WITH LOCAL LAND-USE ORDINANCES
In our analysis of DeWitt’s authority to regulate airport property, we begin with our Supreme Court’s landmark decision in Dearden v Detroit, 403 Mich 257; 269 NW2d 139 (1978). Dearden involved a conflict between the city of Detroit’s zoning regulations and the Department of Corrections’ plans to operate a halfway house on leased property in a neighborhood zoned for two-family residential use. The city of Detroit refused to issue a variance permit for this use. Id., 260. The Department of Corrections challenged this decision, contending that because it was a state agency, it was exempt from local zoning regulations.
Our Supreme Court rejected the proposition that all state agencies are inherently immune from local zoning regulations, and ruled instead that the question was one of legislative intent. Id., 264-265. The Court noted that the Legislature, in establishing the department’s jurisdiction, “expressly provided” that “[sjubject to constitutional powers vested in the executive and judicial departments of the state, the department shall have exclusive jurisdiction over . . . penal institutions.” Id., 265; MCL 791.204; MSA 28.2274. The Court read this language as a “clear expression of the Legislature’s intent to vest the department with complete jurisdiction over the state’s penal institutions, subject only to the constitutional powers, of the executive and judiciary, and not subject in any way to any other legislative act, such as the zoning enabling act.” Dearden, supra, 265. The Court further noted that the statute allotted to the Michigan Corrections Commission the power to “determine all matters relating to the unified development of the penal institutions.” Id, 266. The Court concluded:
[T]he zoning enabling act does not indicate whether or not the Legislature intended to subject the department to local zoning ordinances. We can find no expression of a legislative intent in the language of that act to subject the department’s exclusive jurisdiction over the state’s penal institutions, and its duty to coordinate and adjust those institutions as an integral part of a unified, general correctional system, to the many and varied municipal zoning ordinances throughout the state. If the department were subject to those ordinances, the underlying policies of the general correctional system could be effectively thwarted by community after community prohibiting the placement of certain penal institutions in appropriate locations. A careful reading of the statute establishing the department evidences a contrary legislative intent.
We hold that in enacting MCL 791.201, et seq.; MSA 28.2271, et seq., the Legislature intended to grant the Department of Corrections immunity from local zoning ordinances when establishing state penal institutions. Consequently, defendant’s zoning ordinance is void to the extent that it attempts to prohibit the use of the subject property as a rehabilitation center. [Id., 266-267.]
In sum, Dearden established that the question of state agency authority versus local land control is decided according to the legislative intent for the particular situation, rather than a set rule favoring either the agency or the municipality.
This Court’s attempts at discerning legislative intent for purpose of the Dearden analysis has resembled a Hegelian dialectic. As will be seen in the following discussion, this Court was initially disposed to find agency immunity where the agency’s enabling statute authorized it to engage in the particular activity in question, absent specific statutory language to the contrary. In later decisions, this Court switched its position, and became disposed to find local government authority over the state agency absent specific statutory language that the agency enjoyed exclusive jurisdiction over the particular activity. Ultimately, our Supreme Court clarified Dearden and called on courts to discern legislative intent through examination of the various statutory provisions rather than emphasis on “particular talismanic words.” Burt Twp v Dep’t of Natural Resources, supra, 459 Mich 669.
The first noteworthy post-Dearden decision regarding this issue came in Marquette Co v Bd of Control of Northern Michigan Univ, 111 Mich App 521; 314 NW2d 678 (1981). Although this case actually dealt with a state agency’s inununity from the State Construction Code, MCL 125.1501 et seq.; MSA 5.2949(1) et seq., rather than a local regulation, this Court held that the issue should be decided according to the Dearden analysis. Northern Michigan, supra, 526-527. In Northern Michigan, a regional university contended that its status as a state agency immunized it from the requirements of the State Construction Code. This Court agreed, citing the university’s enabling legislation, MCL 390.553, 390.558; MSA 15.1120(3), 15.1120(8), which provided the regional university's control board with the authority to “acquire land or acquire or erect buildings, or alter, equip or maintain them, to be used as residence halls . . . and other educational facilities.” The Northern Michigan Court inferred from this language that the legislation provided the universities “with a kind of exclusive jurisdiction,” which, under Dearden, exempted the university from compliance with the construction code. Id., 525. According to the Northern Michigan rationale, statutory authorization for an agency activity, by itself, served to immunize the agency from local control (or other generally applicable regulations), absent specific statutory language to the contrary.
Ultimately, this Court abandoned the Northern Michigan rationale in favor of an approach that assumed—at least implicitly—that state agencies are subject to local regulations unless the agency’s enabling statute expressly conferred “exclusive jurisdic tion” on the agency. Cody Park Ass’n v Royal Oak School Dist, 116 Mich App 103; 321 NW2d 855 (1982); Addison Twp v Dep’t of State Police (On Remand), 220 Mich App 550, 558; 560 NW2d 67 (1996). In Cody Park, supra, 105, a local school district claimed exemption from a city zoning ordinance with respect to using property for vehicle repair and parking. The school district relied on the School Code of 1976, which gave local school boards the authority to “[l]ocate, acquire, purchase, or lease in the name of the school district site or sites ... for schools, libraries, administration buildings . . . ,” Ruling against the district, this Court concluded that the School Code “fails to disclose the same specificity found by the Michigan Supreme Court in the Dearden ruling, to-wit, that there is language showing a legislative intention that school districts would have exclusive jurisdiction.” Id, 107. This Court found “nothing in this authorization which indicates exclusive school district jurisdiction” that would exempt the board from the local zoning ordinance. Id., 108. The Court stated that “[t]he mere fact that the Legislature has specified the designated decision-making authority for such purposes cannot be extended to support an interpre tation that such authority is exclusive and thus not subject to local zoning ordinances.” Id.
Similarly, in Addison Twp, supra, 558, the Court held that the Department of State Police was subject to a local zoning ordinance in constructing a communications tower because there was “no indication” in either the tza or the state police act “that the Legislature intended to exempt the state police from local zoning ordinances, such as Addison Township’s, when constructing communications towers.”
Finally, in Burt Twp, supra, 227 Mich App 254, this Court considered Burt Township’s claim that the Department of Natural Resources (dnr) was required to comply with Burt Township’s zoning ordinances in constructing a boat launch. In support of its position to the contrary, the DNR argued that the Natural Resources and Environmental Protection Act (nrepa) authorized the dnr to construct recreational boating facilities. Id., 258. The Court rejected the dnr’s argument that general language authorizing the DNR’s activities was sufficient to confer on it exclusive jurisdiction. Id., 258-259. Applying the Cody Park Ass’n and Addison Twp analyses, this Court concluded that “[t]he passages of the NREPA ... do not show a clear legislative intent that the dnr’s activities be exempt from local zoning ordinances.” Id., 260.
Reviewing this Court’s decision in Burt Twp, the Michigan Supreme Court affirmed the result, but clarified the proper application of the Dearden analysis. Burt Twp, supra, 459 Mich 669-671. The. Michigan Supreme Court rejected the focus on “exclusive jurisdiction” language:
While the presence of such terms as “exclusive jurisdiction” certainly would be indicative of a legislative intent to immunize the dnr from local zoning ordinances, we decline to require that the Legislature use any particular talismanic words to indicate its intent. The Legislature need only use terms that convey its clear intention that the grant of jurisdiction given is, in fact, exclusive. Whatever terms are actually employed by the Legislature, our task is to examine the various statutory provisions at issue and attempt to discern the legislative intent in enacting them. [Id., 669.]
The Court then concluded:
The dnr places great emphasis on the mandatory nature of the duties expressed in the nrepa, as evidenced by the Legislature’s repeated use of the term “shall,” as well as the fact that the dnr is given the “power and jurisdiction” to manage and control lands under the public domain. However, we are not persuaded that the Legislature, in directing that the dnr engage in certain governmental functions, intended that the DNR be authorized to do so in any manner it chooses. According the dnr “power and jurisdiction” to manage land within its control is not the same as granting it exclusive jurisdiction. Thus, the fact that the dnr is mandated to create recreational facilities on public land it manages and controls does not indicate a legislative intent that the DNR may do so in contravention of local zoning ordinances. [Id., 669-670 (emphasis in original).]
The Court also considered the tza, with its broad grant of authority to townships to regulate local land use, and the Township Planning Act (TPA).
The [tza] broadly vests authority in townships to regulate land development “to meet the needs of the state’s citizens for . . . recreation . . . and other uses of land . . . MCL 125.271(1); MSA 5.2963(1)(1). The [tza] further provides that zoning ordinances shall be based on a plan designed to, among other things, “conserve natural resources.” MCL 125.273; MSA 5.2963(3). Indeed, the status and force of this zoning authority is enhanced by our state constitution. Const 1963, art 7, § 34 provides that statutory provisions relating to townships “shall be liberally construed in their favor.”
In addition to the broad grant of regulatory authority contained in the [tza], we also believe the township planning act (tpa), MCL 125.321 et seq.; MSA 5.2963(101) et seq., to be particularly relevant in this case involving waterfront development. The tpa provides that a basic zoning plan shall show the planning commission’s recommendations for the development of the township and include certain subjects pertinent to the future development of the township, including the general location, character, and extent of, among other things, “waterways and water front developments.” MCL 125.327(2)(b); MSA 5.2963(107)(2)O).
These statutory provisions reveal that-the [tza] and the tpa provide townships with extensive authority to regulate the use and development of land within their borders, including waterfront property. Moreover, this Court in Dearden declined to adopt a rule that state agencies have inherent immunity from local zoning ordinances. Dearden, supra at 261. Thus, we conclude that it is incumbent upon the dnr to establish a clear legislative intent to exempt the dnr’s activities from the Burt Township zoning ordinance. [Burt Twp, supra, 459 Mich 665-666 (citations omitted).]
The Court concluded that the “nrepa and the [tza] appear to provide coextensive statutory rights concerning the protection of natural resources in general and the development of recreation facilities and other waterfront developments in particular.” Id., 671. The Supreme Court therefore affirmed this Court’s decision, albeit by a different analysis.
Following Burt Twp’s mandate, we will review the various aeronautics statutes and the tza in order to discern legislative intent.
B
CAPITAL REGION AIRPORT AUTHORITY’S OBLIGATION TO COMPLY WITH DEWITT TOWNSHIP’S ORDINANCE
The craa contends that its exclusive jurisdiction over airport lands is provided by §§ 1, 7, and 9 of the airport authorities act. MCL 259.801, 259.807, 259.809; MSA 10.380(1), 10.380(7), 10.380(9). Section 1 provides for the creation of airport authorities, including the CRAA, but does not specify the authorities’ powers and limitations. MCL 259.801; MSA 10.380(1). Section 7 provides:
The authority shall be a public body corporate with powers to sue or be sued in any court of this state and have the power and duty of planning, promoting, extending, owning, maintaining, acquiring, purchasing, constructing, improving, enlarging and operating all publicly-owned airports and airport facilities hereinafter established to be operated within the territorial jurisdiction of the authority. Any existing publicly-owned airport or airport facility now or hereafter within the jurisdictional confines of the authority may elect to come within the operational jurisdiction of the authority unless prohibited by legal restrictions or limitations, upon acceptance by the authority under mutually agreeable terms and conditions. [MCL 259.807; MSA 10.380(7) (emphasis supplied).]
On the basis of this provision, we find no indication that the Legislature intended for the craa to exercise exclusive jurisdiction over the airport. This provision is comparable to the nrepa: Just as the nrepa’s grant of authority to the dnr with respect to boating facilities did not relieve the dnr of its obligations to comply with local land use regulations, § 7’s grant of authority to the craa with respect to airport facilities does not so relieve the CRAA.
Section 9 of the airport authorities act, MCL 259.809; MSA 10.380(9), grants to the CRAA all the authority previously held by the Michigan Aeronautics Commission pursuant to the Aeronautics Code, and the community airport act. Section 1 of the Aeronautics Code provides, in pertinent part:
It is hereby declared that the purpose of this act is to further the public interest and aeronautical progress by providing for the protection and promotion of safety in aeronautics; by cooperating in effecting a uniformity of the laws relating to the development and regulation of aeronautics in the several states; by revising existing statutes relative to the development and regulation of aeronautics so as to grant to a state agency such power and impose upon it such duties that the state may properly perform its functions relative to aeronautics and effectively exercise its jurisdiction over persons and property within such jurisdiction, may develop a statewide system of airports, may cooperate with and assist the political subdivisions of this state and others engaged in aeronautics, and may encourage and develop aeronautics .... [MCL 259.1; MSA 10.101 (emphasis supplied).]
Although phrases such as “exclusive jurisdiction” do not appear in this provision, nonetheless, this provision demonstrates a legislative intent to endow the state agency (first, the commission, now, the airport authority) with exclusive jurisdiction over aeronautical activities on airport property. The phrase stating that the purpose of the act is to “further the public interest and aeronautical progress ... by cooperating in effecting a uniformity of the laws relating to the development and regulation of aeronautics in the several states” declares an intent for the agency to cooperate with other states in developing uniform aeronautical regulations in order to promote aeronautical progress for the public good. Clearly, this goal would be thwarted if the agency’s aeronautical activities were subject to local land-use ordinances. This would hamper uniformity not only from airport to airport, but also within an individual airport where, as here, the airport grounds lie in more than one municipality. Furthermore, the language stating that the Aeronautics Code will fulfill its purpose “by revising existing statutes relative to the development and regulation of aeronautics so as to grant to a state agency such power and impose upon it such duties that the state may properly perform its functions relative to aeronautics and effectively exercise its jurisdiction over persons and property within such jurisdiction” reveals an intent to keep aeronautical supervision at the state level. This language indicates that when the Legislature enacted the Aeronautics Code, it did not intend to merely enable the agency to operate airports. Rather, this language expresses a legislative intent to charge the agency with the responsibility of promoting aeronautical activities for the public good, and to confer on the agency all the power necessary to perform this function. This legislative goal would be substantially undermined if the agency’s authority over aeronautics were subordinated to a local govern- merit’s land-use regulations. Indeed, DeWitt has not attempted to regulate any of the craa’s aeronautical activities.
While the Aeronautics Code, by virtue of § 9 of the airport authorities act, confers on the CRAA exclusive authority over aeronautical operations at Capital City Airport, it makes no mention of the agency’s authority over nonaeronautical activities conducted on airport grounds. The CRAA relies on § 101 of the Aeronautics Code, which provides that the airport authority
may, on behalf of and in the name of this state, acquire by purchase, gift, devise, lease, condemnation proceedings, or otherwise, property real or personal, for the purpose of establishing and constructing airports, landing fields, and other aeronautical facilities, and may acquire in the same manner, own, control, establish, construct, enlarge, improve, maintain, equip, operate, regulate, and police these facilities, within this state. The [craa] may dispose of any property acquired under this section, in accordance ■with the laws of this state governing the disposition of other similar property of the state. [MCL 259.101; MSA 10.201 (emphasis supplied).]
The craa also relies on § 105, which grants the craa the authority to lease the Capital City Airport property for periods not exceeding fifty years, for aeronautical as well as nonaeronautical purposes. MCL 259.105(a), (e); MSA 10.205(a), (e).
We find that neither of these provisions expresses a legislative intent that the craa have exclusive authority over the acquisition, development,, sale, or lease of airport land in conjunction with nonaeronautical uses. Section 101 speaks only of land related to aeronautical functions. Although § 105 authorizes the CRAA to lease airport property for nonaeronautical pur poses, we find no statutory language evincing a legislative intent for the craa to have exclusive jurisdiction over these leases and developments. Section 105 merely authorizes the craa to engage in this activity, which is not sufficient to immunize the craa from local regulation. Burt Twp, supra, 459 Mich 670. In Burt Twp, the Supreme Court was “not persuaded that the Legislature, in directing that the dnr engage in certain governmental functions, intended that the dnr be authorized to do so in any manner it chooses.” Id., 669-670. Analogously, we are not persuaded that the Legislature intended for the CRAA to have authority to lease airport land in contravention of local zoning. Accordingly, we find no legislative intent to exempt the craa from local land-use ordinances with respect to lease or development of land for nonaer-onauticai functions.
Our review of the tza further supports our conclusion that the craa enjoys exclusive authority over aeronautical functions, but not over nonaeronautical functions. The TZA provides, in pertinent part:
The township board of an organized township in this state may provide by zoning ordinance for the regulation of land development and the establishment of districts in the portions of the township outside the limits of cities and villages which regulate the use of land and structures-, to meet the needs of the state’s citizens for food, fiber, energy, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land; to insure that use of the land shall be situated in appropriate locations and relationships; to limit the inappropriate overcrowding of land and congestion of population, transportation systems, and other public facilities; to facilitate adequate and efficient provision for transportation systems, sewage disposal, water, energy, education, recreation, and other public service and facility requirements; and to promote public health, safety, and welfare.... [MCL 125.271(1); MSA 5.2963(1) (emphasis supplied).]
The tza thus enables the township to plan development and regulate land use in furtherance of the public interest. This public interest is no less implicated by airport development than it is by development elsewhere. We therefore find nothing in the tza that suggests that a township’s zoning authority does not extend to nonaeronautical airport development.
Moreover, like the Burt Twp Court, we find it noteworthy that while the tza is silent with respect to airports, it nonetheless contains specific exemptions for uses such as oil and gas wells and licensed residential facilities. Burt Twp, supra, 459 Mich 670; MCL 125.271(1) and 125.286(a); MSA 5.2963(1)(1) and 5.2963(16a). Under the maxim “expressio unius est exclusio alterius,” (the expression of one thing is the exclusion of another), this Court has stated that the express mention of one thing in a statute implies the exclusion of other similar things. United States Fidelity v Amerisure Ins Co, 195 Mich App 1, 6; 489 NW2d 115 (1992). Thus, by making express exemptions in the TZA for wells and residential facilities, the Legislature precluded findings of implicit exemptions for other land uses. In the words of the Burt Twp Court, “the Legislature has demonstrated that it was aware of overriding land-use issues that warranted specific exemption from local regulation but provided no such exemption for the dnr’s activities. This fact provides additional assurance that there was no legislative intent to exempt the dnr here.” Burt Twp, supra, 459 Mich 670-671. Likewise, we find no legislative intent to exempt airports in the TZA.
In sum, with respect to the craa’s proposed development of airport lands for nonaeronautical uses, we find no legislative intent for the CRAA to be exempt from local regulation. We also find that such development implicates DeWitt’s zoning authority under the tza. This is analogous to the relationship between Burt Township’s zoning authority and the dnr’s authority to construct boating facilities. Accordingly, we conclude that DeWitt and the CRAA share coextensive authority over nonaeronautical development of the land at Capital City Airport.
We are unable to discern, from the record before us, the extent to which the craa’s proposed uses are aeronautical in nature and therefore exempt from the zoning ordinance. At least two of the uses specifically discussed in the briefs—the tortilla processing plant and the small animal kennel—are clearly unrelated to aeronautics. However, we remand so that the trial court may make appropriate findings in accordance with our decision.
c
CAPITAL REGION AIRPORT AUTHORITY’S OBLIGATION TO COMPLY WITH THE LAND DIVISION CONTROL ACT
DeWitt also argues that the trial court erroneously determined that the CRAA is exempt from the requirements of the Land Division Act. We agree.
We find no merit to the craa’s argument that as a state agency, it may divide its land free of any obligation to comply with the Land Division Act, MCL 560.101 et seq.; MSA 26.430(101) et seq. As we discussed in the preceding section of this opinion, the CRAA’s exclusive authority over the airport’s aeronauti cal activities does not endow the craa with exclusive authority over airport, land used for nonaeronautical purposes.
The Land Division Act regulates the division or subdivision of tracts of land into smaller parcels. Proprietors who wish to divide or subdivide land must obtain local government approval in accordance with MCL 560.109; MSA 26.430(109). The Land Division Act states that the purpose of the act is to “regulate the division of land; to promote the public health, safety, and general welfare.” The caption also lists more specific purposes of the act, such as proper surveying and floodplain regulation. 1967 PA 288. As with the TZA, we find that the public interests served by the Land Division Act are valid with respect to airport lands. We therefore find no indication in the Land Division Act that the Legislature intended for airport lands to be exempt.
Furthermore, § 103 of the Land Division Act, MCL 560.103; MSA 26.430(103), provides for certain exceptions, none of which is applicable here, for plats of retracement or boundary surveys made by a government agency. Again, we rely on the maxim “expressio unius est exclusio alteráis,” United States Fidelity, supra, 6, and conclude that if the Legislature had also wished to exempt all state-owned lands from the Land Division Act, it could have done so.
The CRAA also contends that it is not a “proprietor” within the meaning of the statute. We disagree. The statute defines “proprietor” as
a natural person, firm, association, partnership, corporation, or combination of any of them that holds an ownership interest in land whether recorded or not. [MCL 560.102(o); MSA 26.430(102)(o).]
The CRAA is a corporation under MCL 259.807; MSA 10.380(7). Therefore, the CRAA is a “proprietor” within the meaning of this act.
On this record, we are unable to determine the extent to which any proposed division or subdivision would involve a nonaeronautical purpose. We therefore remand for resolution of this issue.
Reversed and remanded for further proceedings in accordance with our opinion. We do not retain jurisdiction.
Thie actual size of the proposed development is unclear. Defendant contends that this area is to be subdivided into approximately forty lots ranging in size from one acre to seventeen acres, while plaintiff claims that twenty of these lots have actually been designated as aircraft taxi areas. The parties agree, however, that at least three of the lots were to be leased to nonaviation tenants.
Before 1997, the Township Zoning Act was known as the Township Rural Zoning Act (trza). See 1996 PA 570, § 1; MCL 125.310(2); MSA 5.2963(40)(2). For the sake of clarity and consistency, we use the abbreviation “tza” throughout this opinion, using brackets to indicate where quoted material used the abbreviation “trza”
Neither party has presented arguments' with respect to the Airport Zoning Act, MCL 259.431 et seq.; MSA 10.501 et seq. We do not believe that this statute is relevant here, because it pertains to regulation of land use involving areas immediately adjacent to the airport property itself, and not involving areas within the boundaries of the airport. Furthermore, we find nothing in the statute that would help us discern legislative intent with respect to development of lands within airport boundaries under the tza or any of the aeronautical statutes.
Northern Michigan has never been formally overruled. However, we recognize that its rule of law has been at least superseded by the Supreme Court’s decision in Burt Twp.
The Burt Twp Court declined to express any opinion regarding the results in these cases, but noted that the decisions had “since been ‘overruled’ by subsequent legislative amendments of the statutes at issue in those cases.” Burt Twp, supra, 459 Mich 664, n 3.
MCL 380.201 et seq.; MSA 15.4201 et seq.
MCL 380.250; MSA 15.4250.
The Cody Park Court made no mention of the Northern Michigan Bd of Control decision.
MCL 28.1 et seq.) MSA 4.431 et seq.
MCL 324.101 et seq.) MSA 13A.101 et seq.
MCL 125.321 et seq.; MSA 5.2963(101) et seq.
MCL 259.1; MSA 10.101 to MCL 259.208; MSA 10.308.
MCL 259.621: MSA 10.311 to MCL 259.631: MSA 10.321. | [
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V. J. Brennan, J.
Defendant William Ernest Hamm appeals from conviction of the first-degree murder, MCL 750.316; MSA 28.548, of his psychiatrist, Dr. Charles Hoyt.
This case has been twice tried in the court below and is now in this Court for a second time. Although long, the history and factual background of this case is not complex. On July 12, 1975, defendant Hamm was charged with first-degree murder, MCL 750.316; MSA 28.548, and assault with intent to murder, MCL 750.83; MSA 28.278, his psychiatrist. Having executed a written waiver of a jury trial, defendant proceeded to a bench trial before Judge Thorburn. During the trial, defendant was found incompetent to stand trial, and the trial court, sua sponte, declared a mistrial. This ruling was appealed to this Court and affirmed. People v Hamm, 79 Mich App 281; 261 NW2d 288 (1977).
Defendant was subsequently adjudged competent to stand trial, and a second trial was scheduled for November 6, 1978. On November 2, 1978, the prosecution made a motion to disqualify the presiding judge, which was denied. On November 3, 1978, defense counsel filed a demand for jury trial which was not served upon the prosecutor. On the day of trial, the trial court denied defendant’s request to be tried by a jury. The case proceeded to trial, and defendant was found guilty of first-degree murder.
Subsequently, defendant appealed, but prior to his hearing on appeal defendant moved for remand to the trial court for the purpose of . moving for a new trial, which motion was granted. A remand hearing was held, and the trial judge concluded that defendant’s waiver of trial by jury prior to his November 18, 1975, proceeding was not affected by the subsequent declaration of a mistrial and that is was, therefore, proper to deny defendant’s motion for withdrawal of his waiver of trial by jury.
On appeal, defendant raises a question of first impression in Michigan. Does the declaration of a mistrial nullify a prior waiver of trial by jury and, thus, restore the option of jury or bench trial in the subsequent retrial? Fortunately we are not without guidance in deciding this question.
We begin with the time-honored premise that the right to jury trial is a high and sacred right, and, thus, the stipulation for the waiver of such right should be strictly construed in favor of preservation of that right. Burnham v N Chicago St R Co, 88 F 627 (CA 7, 1898).
"The stipulation to waive a jury, and to try the case before the court, only had relation to the first trial. There could be no presumption then that there would ever be a second trial; and therefore it should not be presumed that the parties, in making the stipulation, had in mind any possible subsequent trial after the first, to which the stipulation could refer.” Id., 629.
In United States v Lee, 539 F2d 606 (CA 6, 1976), defendant waived his right to a jury trial and was found guilty by a magistrate of attempting to board an aircraft while carrying a dangerous concealed weapon. Defendant’s appeal from this conviction was successful, and the case was remanded for retrial. Appellant moved to withdraw his waiver in order to have a retrial before a jury in district court. The magistrate overruled defendant’s motion and proceeded as directed by the district court. Holding that defendant’s conviction must be reversed because he should have been permitted to withdraw his waiver of a jury trial, the court stated that although there was no precedent deciding the case, two related situations suggested the proper rule.
"The first is where a tribunal grants a new trial in the interests of justice without the intervention of a reviewing court. In this situation, it appears appropriate to hold that waiver of a jury trial or consent to trial by a magistrate should continue in force. F.R.Crim.P. 33 and Magistrates Rule 7, which permit the tribunal to simply vacate the judgment and reopen the original proceedings in an appropriate case, may be construed to require this result. The second situation is when a reviewing court finds error in the conduct of a trial and reverses with directions for a new trial. In that situation the general rule is that a litigant’s not bound by his prior waiver of a jury trial. We believe that this appeal is more like the situation where an appellate court has ordered a retrial. Unless the language of a waiver unambiguously states that it will apply in all retrials should they be ordered, a waiver should not continue in effect after the jurisdiction of the court to which it was tendered terminates upon the taking of an appeal. ” 539 F2d 608-609.
The instant case does not fall into either category. Although there was a reviewing court here, that court did not find that the trial court committed error when it declared a mistrial, Hamm, supra, and, in fact, this Court affirmed the trial court’s findings. A new trial was granted, however.
A comparable factual situation existed in United States v Lutz, 420 F2d 414 (CA 3, 1970). In Lutz, the prosecutor and the defense counsel, with the approval of the trial judge, waived jury trial pursuant to rule 23(a) of the Federal Rules of Criminal Procedure. Subsequently, a mistrial was de dared. At the second trial, the prosecutor refused to waive the jury. The court held that the prosecution was not bound by its first waiver. "The waiver referred to the earlier trial, before another judge. Once a mistrial was declared each party was free to assert or waive his rights.” 420 F2d 414, 416.
In United States v Mischlich, 310 F Supp 669 (D NJ, 1970), the court was faced with whether a defendant who had implicitly consented to venue in his first trial was precluded from raising this defense in his second trial necessitated when the first trial ended in a mistrial. In arriving at its decision, the court undertook an examination of the legal effect of a mistrial.
"The dedaration of a mistrial renders nugatory all trial proceedings with the same result as if there had been no trial at all. See 58 C.J.S. Mistrial at 833-834 (1948). The situation which exists is analogous to that which results from an appellate reversal and remand for new trial. See 5 Am. Jr. 2d Appeal and Error § 955 at 382 (1962). The parties are returned to their original positions and, at the new trial, can introduce new evidence and assert new defenses not raised at the first trial.” 310 F Supp 669, 672.
We believe this is the correct resolution to the question raised. When Mr. Hamm initially waived his right to a trial by jury, that waiver only had relation to the first trial. There could be no presumption at the time of the waiver that there would ever be a second trial. When this Court affirmed the trial judge’s declaration of mistrial and remanded for a second trial, the parties were returned to their original positions, and defendant’s original waiver of a jury trial was nullified. To decide otherwise would require us to read the original jury waiver as applying in all retrials, should they be ordered. This we decline to do.
Because of the foregoing disposition, we find a lengthy discourse on the other issues raised to be unnecessary. Some comment, however, is appropriate as they may arise again on retrial.
Defendant contends that he was prejudiced by the people’s failure to call Dr. Michael Short, M.D., and Dr. Newton Jackson, Ph.D., psychiatric witnesses listed on the prosecution’s notice of rebuttal witnesses. At trial, defense counsel did not know that Dr. Short had found defendant not criminally responsible. We reject defendant’s argument that MCL 768.20a(7); MSA 28.1043(1)(7), requiring the prosecutor to file notice of rebuttal witnesses to the defense of insanity, is analogous to the statute requiring the prosecution to endorse res gestae witnesses. MCL 767.40; MSA 28.980. The purpose of the notice of rebuttal is to give defendant notice that expert witnesses may be called and to aid the prosecutor in rebutting the defense of insanity. It is not to insure that the whole of the res gestae is produced and to protect the accused against the suppression of testimony favorable to him. We also reject defendant’s argument that he was precluded from offering the testimony of these witnesses himself. The control ling statute at the time in question was MCL 768.20; MSA 28.1043, which vested the trial judge with discretion to permit defendant to introduce the testimony of these rebuttal witnesses.
We do find merit in defendant’s argument, however, that the prosecutor has an affirmative duty to produce all witnesses that he knows can offer evidence to substantiate defendant’s claim of innocence.
"[A]nd the State has no interest in interposing any obstacle to the disclosure of the facts, unless it is interested in convicting accused parties on the testimony of untrustworthy persons. But surely the State has no such interest; its interest is that accused parties shall be acquitted unless upon all the facts they are seen to be guilty; and if there shall be in the possession of any of its officers information that can legitimately tend to overthrow the case made for the prosecution, or to show that it is unworthy of credence, the defense should be given the beneft of it.” People v Davis, 52 Mich 569, 573-574; 18 NW 362 (1884). (Emphasis added.)
In an early Michigan case, the Supreme Court stated:
Based on defendant’s allegation that Dr. Short had found defendant to be not criminally responsible, the prosecutor’s failure to produce this rebut tal witness at trial was error. This omitted evidence would have created a reasonable doubt that did not otherwise exist and, therefore, the prosecutor should have disclosed this evidence.
Defendant also alleges that the trial court improperly permitted the prosecution to call Francis Burns as a rebuttal witness although not listed on the prosecution’s notice of rebuttal. The controlling statute in effect on the date of this trial left the introduction of this witness’s testimony to the discretion of the trial judge. MCL 768.20; MSA 28.1043. An abuse of discretion is found only if an unprejudiced person, upon considering the facts on . which the trial court acted, would say that there was no justification or excuse for the ruling made. Bruce v Grace Hospital, 96 Mich App 627; 293 NW2d 654 (1980).
The court did not abuse its discretion in permitting the introduction of this testimony. The defendant introduced the testimony of a psychiatrist who testified that defendant’s antisocial behavior was caused by a psychosis, in turn caused by a blow to defendant’s head and subsequent brain surgery. The rebuttal witness testified that defendant’s antisocial behavior predated these incidents.
Defendant lastly claims that his protection against being twice put in jeopardy was violated when the trial court, sua sponte, declared a mistrial during the November, 1978 trial. This precise issue has been addressed and found to be without merit by this Court. People v Hamm, 79 Mich App 281; 261 NW2d 288 (1977). Since the prior ruling concerned the same question of law presented on this appeal, it is the law of the case and is controlling. A legal question which has been raised in one appeal may not be raised in a subsequent appeal after proceedings held on remand to the lower court. People v Paintman, 92 Mich App 412, 416; 285 NW2d 206 (1979). People v Drew, 83 Mich App 57; 268 NW2d 284 (1978), Allen v Michigan Bell Telephone Co, 61 Mich App 62; 232 NW2d 302 (1975). Defendant urges that we create an exception to this general legal principle in light of People v Benton, 402 Mich 47; 260 NW2d 77 (1977), and People v Williams, 85 Mich App 258; 271 NW2d 191 (1978), which defendant alleges recite new law and justify our review of the issue addressed and decided earlier in Hamm. Even if we were wont to recognize such an exception, we would not do so here. Defendant’s characterization that these cases recite new law is incorrect. Both cases cite United States v Jorn, 400 US 470; 91 S Ct 547; 27 L Ed 2d 543 (1971), relied on by this Court in its first review of Hamm.
Defendant’s conviction is reversed.
When the prosecutor rested his rebuttal, defense counsel moved that the prosecutor be compelled to produce Dr. Jackson. The prosecutor objected. In the alternative, defense counsel moved to introduce Dr. Jackson’s report. This was denied. Defendant did not know at this time that Dr. Short had found defendant to be not criminally responsible.
MCL 768.20a(7); MSA 28.1043(1)(7) states in pertinent part:
"(7) Within 10 days after the receipt of the report from the center for forensic psychiatry or within 10 days after the receipt of the report of an independent examiner secured by the prosecution, whichever occurs later, but not later than 5 days before the trial of the case, or at such other time as the court directs, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal of the defense of insanity wfdch shall contain the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal.”
MCL 768.20; MSA 28.1043 provided in pertinent part:
"Whenever a defendant in a criminal case not cognizable by a justice of the peace shall propose to offer in his defense testimony to establish an alibi on behalf of the defendant, or of the insanity of such defendant either at the time of the alleged offense or at the time of trial, such defendant shall at the time of arraignment or within 10 days thereafter but not less than 4 days before the trial of such cause file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to claim such defense and the names of witnesses to be called in behalf of such defendant to establish such defense known to him at that time. Names of other witnesses may be Sled and served before or during the trial by leave of the court and upon such conditions as the court shall determine * * (Emphasis added.)
See footnote 3, supra. | [
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G. R. Corsiglia, J.
After achieving teacher tenure status in another school district, plaintiff Alexander McKee was hired as a tenured teacher for an administrative position in the Woodhaven Public School District for the 1972-1973 school year. The written contract of employment signed by both parties contained a provision providing that plaintiff would not have tenure as an administrator. It bore a termination date of June 30, 1973.
Plaintiff continued to work for the district in an administrative capacity beyond the termination date, and without further written contract. In June of 1975 the defendant school district offered a written contract to plaintiff for his signature. The contract contained a provision precluding administrative tenure, and consequently McKee (and several others in a similar position) refused to sign the contract, because they believed that executing the contract would be "signing away our tenure rights”.
Nevertheless, the defendant school district continued to employ McKee, and at the beginning of the 1975-1976 school year he was assigned the administrative title of "Acting Middle School Principal”. He received an increase in salary commensurate with his increased administrative duties. In December of 1975, McKee was formally promoted to this position, and held the title until the events which precipitated this appeal.
McKee’s administrative position was dissolved by board resolution in March of 1977, and in April he was notified that his assignment for the next academic year would be as an elementary classroom teacher. He requested a hearing before the board of education which was denied. He then appealed to the State Tenure Commission, alleging that he had acquired administrative tenure and was being improperly demoted. The commission ruled in favor of the school district, and McKee filed an appeal with the Ingham County Circuit Court.
The circuit judge reversed the Tenure Commission. He found that the statutory construction made by the commission was a "substantial and material error of law”. He stated: "MCLA 380.132(2) operates, at best, to renew the written employment contract to an expressly limited period of one additional year.” He ordered reinstatement of McKee to an administrative position consistent with his tenure, and retroactive benefits.
The School Code of 1955, MCL 341.1 et seq.; MSA 15.3001 et seq., now superseded by The School Code of 1976, MCL 380.1 et seq.; MSA 15.4001 et seq., provides the basic framework for governing the public school districts in Michigan. It includes provisions governing administrative tenure which have been construed in the light of other acts. The teacher’s tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., as amended, which dates back to the 1930’s, provides for tenure for certificated teachers in the Michigan public schools.
McKee was both a teacher and an administrator. As such, certain of the provisions of the statutes interact to govern his rights. See Bode v Roseville School District, 405 Mich 517; 275 NW2d 472 (1979). However, our decision in this case is based upon the statutory construction of the language of the school code requiring a written contract and the plaintiffs status as a teacher is of only collateral importance.
This is a case of first impression in Michigan. The provision at issue between the parties is MCL 380.132(2); MSA 15.4132(2), which is essentially identical in all relevant parts to its predecessor statute, MCL 340.66; MSA 15.3066. The provision states:
"(2) The board may employ assistant superintendents, principals, assistant principals, guidance directors, and other administrators who do not assume tenure in position, for terms, not to exceed 3 years, fixed by the board and shall define their duties. The employment shall be under written contract. Notification of nonrenewal of contract shall be given in writing at least 90 days prior to the contract termination date or the contract is renewed for an additional 1-year period.” MCL 380.132(2); MSA 15.4132(2). (Emphasis added.)
This provision was construed by the Tenure Commission to provide for continuing one-year renewals of an administrator’s contract in the absence of a further written contract. Upon appeal to the circuit court this construction was found to be a substantial and material error of law.
The school code allows a district to deny tenure status to administrative positions. A complementary provision is found in the teacher’s tenure act for teachers who move into administrative positions. MCL 38.91; MSA 15.1991 states in relevant part:
"If the controlling board shall provide in a contract of employment of any teacher employed other than as a classroom teacher, including but not limited to, a superintendent, assistant superintendent, principal, department head or director of curriculum, made with such teacher after the completion of the probationary period, that such teacher shall not be deemed to be granted continuing tenure in such capacity by virtue of such contract of employment, then such teacher shall not be granted tenure in such capacity, but shall be deemed to have been granted continuing tenure as an active classroom teacher in such school district. * * * Failure of any such controlling board to so provide in any such contract of employment of any teacher in a capacity other than a classroom teacher shall be deemed to constitute the employment of such teacher on continuing contract in such capacity and subject to the provisions of this act.”
Under MCL 38.92; MSA 15.1992, McKee was a tenured teacher in the Woodhaven School District when he signed the initial contract, and had the capacity to waive his right to administrative tenure. Bode, supra, 527-528. If he had continued to do so by written contract with the school board on an annual basis, the provisions of the statute would have been met.
However, written contracts were not executed between the parties. The relative positions of the parties suggest that such contracts are provided by the school district. The Tenure Commission found that the board continued to employ McKee, and even promoted him, following his specific rejection of a written contract containing a provision waiving administrative tenure. The board was in a position to take action to clarify the status of the plaintiff at that point, and chose to do nothing. Its intent to deny administrative tenure to McKee is irrelevant.
The school code provides a means to a district to control its school administration through the denial of administrative tenure. In Goodwin v Kalamazoo Board of Education, 82 Mich App 559; 267 NW2d 142 (1978), the Court construed the provisions regarding administrative tenure. Judge Holbrook, writing for the panel, held that the acts did not set up certain categories of administrative positions for which tenure was available. The intent of the Legislature was to allow the district flexibility to make decisions about which positions ought to be allowed administrative tenure. These decisions were to be implemented by contracts between the teacher and the school board. Under both the 1941 act and the teacher tenure provision as amended in 1963, in the absence of an express contract exclusion a teacher gains tenure in an administrative position. Id. at 566-567.
The district bears a burden under the acts of expressly denying administrative tenure in a written contract made with the teacher. In Dodge v Saginaw Board of Education, 384 Mich 346; 183 NW2d 793 (1971), the Supreme Court held that simply striking the word "tenure” from a printed form contract was not sufficient to meet the requirements of the statute. The Court stated:
"Were it not for the requirement of the statute that the contract make provision for no tenure, in order to avoid it, the absence of provision for tenure might be so construed, but the statute’s requirement was intended to obviate the need for construction.” Id. at 348. (Emphasis in original.)
The intention of the board here, as in Dodge, to deny a teacher tenure when occupying an administrative position, is irrelevant. An affirmative duty is placed by the statutes upon the school district to provide a written contract.
Such a burden conforms with the language of MCL 380.132(2); MSA 15.4132(2). The provision clearly requires a written contract between school districts and administrators. To allow a board to circumvent this clear language by construing the next sentence of the statute to allow continuing implied contracts is to render the requirement of a written contract meaningless. Every applicable version of the statute states, unambiguously, "[t]he employment shall be under written contract”. MCL 380.132(2); MSA 15.4132(2), superseding MCL 340.66; MSA 15.3066.
The provision which follows in the statute providing for automatic renewal for a one-year period is a protection for employees from arbitrary action by the board. At the expiration date of a written contract it provides to the employee a right to a contract renewal for an additional one-year period if written notification of nonrenewal is not given as provided by statute. The statutory provision relating to renewal of the written contract "for an additional 1-year period” is phrased in the singular rather than plural. If the contract is renewed between the parties, whether by the automatic renewal provision of the statute or through an express new written contract, the employee has such status as an administrator as is provided for by the governing written contract.
In the instant case it should be noted that construction of the statute to apply successive one-year renewals of the original contract is inconsistent with the facts as found by the Tenure Commission. The terms of McKee’s employment, including his position in the administrative structure, responsibilities and compensation, had been altered drastically over the years. Under such circumstances it is illogical to assert that the original contract remained in effect.
Such a construction by the Tenure Commission is a clear and substantial error of law. The decision of the circuit judge is affirmed. No costs, a public question being involved.
MCL 340.66; MSA 15.3066 stated as follows:
"The contract with the superintendent shall be for a term fixed by the board not to exceed 3 years. The board may employ assistant superintendents, principals, assistant principals, guidance directors and other classified administrators who do not assume tenure in position, for a term fixed by the board not to exceed 3 years, and shall define their duties. The employment shall be under written contract. Notification of nonrenewal of contract shall be given in writing at least 90 days prior to the contract termination date or the contract is renewed for an additional 1-year period.” (Emphasis added.)
This provision was in effect until January 13, 1977, the effective date of The School Code of 1976.
Since the enactment of The School Code of 1976, there have been several technical amendments to the relevant provision, none of which affect the rights of the parties before this Court. | [
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Per Curiam.
On April 25, 1979, the defendant was bound over for trial on a charge of escape, MCL 750.193; MSA 28.390, MCL 791.265a; MSA 28.2325(1). The defendant thereafter moved the lower court to quash the information. The motion was granted and the charge dismissed. The lower court judge found that the corpus delicti of the offense had not been sufficiently established and that the examining magistrate had abused his discretion in ruling to the contrary. From this determination, plaintiff appeals as of right.
An examination of the preliminary examination testimony shows that the defendant had been placed on an extended furlough and authorized to reside at an approved residence. One condition of the defendant’s extended furlough was the requirement that he report weekly at an assigned time to a corrections agent. One purpose of this weekly visit was to renew the pass which authorized him to remain on extended furlough. The defendant failed to report on July 26, 1978, and at any time thereafter. He was arrested and returned to custody approximately one year later.
The statutory duty of the magistrate at a preliminary examination is to bind the defendant over for trial if it appears at the conclusion of the examination that a felony has been committed and there is probable cause to believe that the defendant committed it. The magistrate is not required to find the guilt of the defendant established beyond a reasonable doubt. However, there must be evidence on each element of the crime charged or evidence from which those elements may be inferred. People v Doss, 406 Mich 90; 276 NW2d 9 (1979).
For purposes of MCL 750.193; MSA 28.390, an individual "escapes” if he removes himself from the imposed restraint over his person and volition. People v Thomas, 1 Mich App 118, 123; 134 NW2d 352 (1965), citing People v Richards, 247 Mich 608, 612; 226 NW 651 (1929). In the present case, one of the imposed restraints over the defendant’s person and volition was the weekly reporting requirement. Defendant was required to return to a particular corrections agent to have his furlough renewed. By failing to return and report for nearly one year, the defendant removed himself from this imposed restraint. Accordingly, this failure to report constitutes an escape. Compare People v Strong, 53 Mich App 620; 219 NW2d 804 (1974).
In view of the foregoing, we find that the examining magistrate did not abuse his discretion in binding the defendant over on the escape charge. The evidence adduced at the preliminary examina tion was sufficient to establish the corpus delicti of this offense. The lower court judge’s determination to the contrary was erroneous.
Reversed and remanded for trial.
rThe defendant was not on parole at the time of the charged escape. His status was that of an inmate of a Michigan correctional institution. | [
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Per Curiam.
In this cause summary judgment was entered in favor of the defendants on the ground that the complaint for declaratory and injunctive relief failed to state a claim upon which relief can be granted. GCR 1963, 117.2(1). Plaintiff appeals.
Plaintiff brought suit in the circuit court challenging certain provisions of the Public Health Code, MCL 333.1101 et seq.; MSA 14.15(1101) et seq., with respect to the practice of chiropractic. The primary challenge is to § 16401(l)(b) of the code, which excludes from the practice of chiropractic "the performance of incisive surgical procedures, the performance of an invasive procedure requiring instrumentation, or the dispensing or prescribing of drugs or medicine”. MCL 333.16401(l)(b)(iii); MSA 14.15(16401)(l)(b)(iii).
On appeal, plaintiff argues that summary judgment was improperly granted because his complaint alleged that subsection 16401(l)(b)(iii) deprives him of the right to practice his profession without due process of law, that it denies him equal protection of the law, and that it is unconstitutionally vague.
The purpose of a motion for summary judgment based on GCR 1963, 117.2(1) is to test the complaint to determine whether the plaintiff has pled facts which support elements for a cause of action. The scope of the examination is confined to the pleadings, and factual allegations in the complaint are taken as true, along with any inferences and conclusions which may fairly be drawn from the facts alleged. Sullivan v The Thomas Organization, PC, 88 Mich App 77, 82; 276 NW2d 522 (1979). However, the mere statement of the pleader’s conclusions unsupported by allegations of fact will not suffice to state a cause of action. Koebke v LaBuda, 339 Mich 569, 573; 64 NW2d 914 (1954), Cowan v Federal-Mogul Corp, 86 Mich App 619, 621-622; 273 NW2d 487 (1977), Pursell v Wolverine-Pentronix Inc, 44 Mich App 416, 422; 205 NW2d 504 (1973).
Under GCR 1963, 521.1, declaratory relief is available where an actual controversy exists, that is, where such relief is necessary to guide a plaintiffs future conduct in order to preserve his legal rights. Shavers v Attorney General, 402 Mich 554, 588-589; 267 NW2d 72 (1978). However, before affirmative declaratory relief can be granted, it is essential that a plaintiff, at a minimum, pleads facts entitling him to the judgment he seeks. Kuhn v East Detroit, 50 Mich App 502; 213 NW2d 599 (1973).
The Legislature has limited the practice of chiropractic to the following functions:
"(i) Diagnosis, including spinal analysis, to determine the existence of spinal subluxations or misalignments that produce nerve interference, indicating the neces-' sity for chiropractic care.
"(ii) The adjustment of spinal subluxations or misalignments and related bones and tissues for the establishment of neural integrity utilizing the inherent recuperative powers of the body for restoration and maintenance of health.
"(ni) The use of analytical instruments, nutritional advice, rehabilitative exercise and adjustment apparatus regulated by rules promulgated by the board pursuant to § 16423, and the use of x-ray machines in the examination of patients for „the purpose of locating spinal subluxations or misaligned vertebrae of the hu man spine.” MCL 333.16401(l)(b); MSA 14.15(16401)(l)(b).
Plaintiffs complaint does not allege facts which would support the conclusion that it is impossible for him to perform these functions which the Legislature has included in the practice of chiropractic without the use of incisive surgical procedures or invasive procedures requiring instrumentation or without the authority to dispense or prescribe drugs or medicine. It will happen on occasion, of course, that treatment of a patient or even proper diagnosis of a patient’s complaint will require medical or surgical procedures excluded from the practice of chiropractic. Moreover, it may be that the required procedures are within the competence of the modern day practitioner of chiropractic because of the scope of his training. This, however, does not create a constitutional bar. precluding the Legislature from excluding those procedures from the practice of chiropractic. As the Supreme Court stated in People v Lewis, 233 Mich 240, 244-245; 206 NW 553 (1925):
"No school may fix a standard of education, and thereby entitle its graduates to practice any branch of the healing arts, regardless of legislation, and no graduate can of right demand that legislation accord with only what he has been taught. The law recognizes chiropractic adjustments or treatments and fixes the standard of knowledge deemed essential to a proper practice thereof.”
Plaintiff also alleges that the statute denies him equal protection of the laws because he is not allowed to perform medical and surgical procedures which may be performed by other practitioners of medicine licensed by the state. There are no allegations of facts, however, which would support the conclusion that the classifications used by the Legislature in determining the extent of the medical practice of various licensed practitioners have no rational basis. See Dandridge v Williams, 397 US 471, 484; 90 S Ct 1153; 25 L Ed 2d 491 (1970).
Finally, plaintiffs contention that the statute is unconstitutionally vague is supported solely by the allegation that he is unable to determine the meaning of certain terms in the statute.
The trial court properly ruled that the plaintiff has alleged no facts which would sustain his claim that the Legislature has acted unconstitutionally in enacting the foregoing sections of the Public Health Code. Plaintiff’s complaint is more properly an attack on the propriety of the legislative decision to impose rather extensive limitations on the practice of chiropractic. If that legislative decision is unwise, short-sighted or improvident, the remedy is with the Legislature and not with the courts.
The decision of the trial court is affirmed. No costs, a public question. | [
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Per Curiam.
Following a jury trial, defendant was convicted of first-degree murder contrary to MCL 750.316; MSA 28.548, assault with intent to commit murder contrary to MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony contrary to MCL 750.227b; MSA 28.424(2). Thereafter, defense counsel moved for a new trial on the theory that the seizure of two photographs of defendant which were admitted into evidence at trial was in violation of defendant’s constitutional rights. The motion was granted. The trial court denied the prosecution’s motion for reconsideration. From this denial, the prosecution now appeals.
A brief summary of the facts which led to the seizure of the two photographs in issue is here appropriate. A search warrant was issued authorizing the search of what was reputably defendant’s residence. The warrant authorized the seizure of all .38-caliber handguns and ammunition. The warrant was executed, and various seized items were listed on the search warrant return. However, two photographs of the defendant which had been seized were not listed on the return.
As stated, the issue on appeal is whether the two photographs of defendant were seized in violation of his constitutional rights.
According to appellant, the trial court improperly relied on Marron v United States, 275 US 192; 48 S Ct 74; 72 L Ed 231 (1927), and People v Preuss, 225 Mich 115; 195 NW 684 (1923), in reaching its conclusion that a new trial should be granted. In Marrón, the United States Supreme Court affirmed defendant’s conviction. During the execution of a warrant for "intoxicating liquors and articles for their manufacture”, prohibition agents uncovered a ledger showing expenses and receipts from the bootlegging operation. The Court held that the ledger’s seizure could not be justified on the basis of the warrant. However, the Court ruled that the seizure was valid as it came incident to the lawful arrest of the individual running the operation. Thus, Marrón stands for the proposition that the police may seize evidence not specified in the warrant if there is some independent justification for such seizure. Marrón, therefore, merely presents a general rule of law and is not by itself controlling. Other decisions must first be examined to discover if any independent justification for the seizure existed.
In Preuss, supra, the Michigan Supreme Court held that a warrant directing the search of premises for stolen beans could not justify the seizure of moonshine whiskey found during the course of the search.
The prosecution contends that Preuss is no longer good law. While noting that Preuss has never been explicitly overruled, this Court is inclined to agree.
In Harris v United States, 331 US 145; 67 S Ct 1098; 91 L Ed 1399 (1947), the United States Supreme Court held that if entry onto the premises is valid, nothing in the Fourth Amendment prohibits enforcement agents from seizing items, the possession of which is a crime. The Michigan Supreme Court has on four occasions cited Harris: People v Taylor, 341 Mich 570, 578; 67 NW2d 698 (1954), People v Gonzales, 356 Mich 247, 254; 97 NW2d 16 (1959), People v Ritholz, 359 Mich 539, 551-552; 103 NW2d 481 (1960), People v White, 392 Mich 404, 411 fn 3; 221 NW2d 357 (1974). This Court, in People v Franks, 54 Mich App 729, 737; 221 NW2d 441 (1974), citing Harris, upheld the seizure of marijuana which was discovered during the execution of a warrant specifying other items to be seized. Franks does not cite Preuss, but its holding is contrary to that opinion.
This Court is normally bound by Michigan Supreme Court decisions. It has been held, however, that this Court need not adhere to precedents which it believes the Supreme Court would no longer consider viable. See State, ex rel Director of the Michigan Dep’t of Natural Resources v Chippewa Landing, 82 Mich App 37, 43; 266 NW2d 658 (1978). In view of the Supreme Court’s citation of Harris while ignoring Preuss, we feel confident in our belief that the proposition of Preuss would no longer be considered tenable law in this state.
Appellant further contends that the United States Supreme Court abolished the rule that the plain view doctrine is limited to incriminating evidence in Warden, Maryland Penitentiary v Hayden, 387 US 294; 87 S Ct 1642; 18 L Ed 2d 782 (1967). In Hayden, 306-307, the United States Supreme Court stated:
"The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for 'mere evidence’ or for fruits, instrumentalities or contraband. There must, of course, be a nexus— automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior. Thus in the case of 'mere evidence’, probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required. Cf. Kremen v United States, 353 US 346 [1 L Ed 2d 876, 77 S Ct 828]. But no such problem is presented in this case. The clothes found in the washing machine matched the description of those worn by the robber and the police therefore could reasonably believe that the items would aid in the identification of the culprit.”
See also Andresen v Maryland, 427 US 463, 482-484; 96 S Ct 2737; 49 L Ed 2d 627 (1976).
In the instant matter, it is fair to conclude that the "mere evidence” — the photographs — would aid in the apprehension of the defendant. The prosecution states that until the time of the search, the police had no photos of defendant. The only possi ble distinction between Hayden and this case is that in Hayden the "mere evidence” (clothing) was linked to the crime by a witness’s description of the perpetrator’s attire. However, Hayden does not require that the evidence have any connection to the crime at all, so long as there is probable cause to believe that it would aid in apprehension or conviction of the culprit.
Appellee claims, however, that Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971), still requires that the object seized in plain view have an "incriminating character”. The defendant’s error is in assuming that evidence of an "incriminating character” is necessarily an instrumentality or fruit of a crime or contraband. What was known as "mere evidence” before Hayden has an incriminating character if there is probable cause to believe that it will aid in apprehension or conviction of the culprit. Coolidge was not concerned with the "mere evidence” concept which probably explains why some of its language is imprecise and why it can be misread by defendant’s counsel as, in effect, overruling Hayden. However, Coolidge specifically cites Hayden in discussing one of the types of situations in which the "plain view” doctrine has been held to apply. 403 US 443, 465.
It is this Court’s conclusion that the two photographs claimed to be unlawfully seized were taken under lawful constitutional authority. The police discovered the photographs in pláin view while executing a valid search warrant for other items. Since there was probable cause to believe that the photographs would aid in the apprehension of defendant, they were properly seized.
Reversed and remanded for sentencing.
In further support of our conclusion that Preuss is an anachronism, Professor Jerold H. Israel states:
“Another aspect of warrant execution treated in the Committee’s proposal is the scope of the permissible seizure by an officer executing a warrant. The current Code refers only to the seizure of property 'under the warrant.’ This language, combined with a prohibition era ruling [Preuss] stating that the officer may seize only items specified in the warrant, has caused some confusion concerning the officer’s authority to seize other evidence discovered in the reasonable course of a search under a warrant. Recent cases establish that the seizure of such items is constitutionally permissible under the 'plain view doctrine,’ provided that the officer has probable cause to believe that items seized constitute evidence of a crime.” Israel, Legislative Regulation of Searches & Seizures: The Michigan Proposal, 73 Mich Law Review 221, 276 (1974). | [
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] |
D. E. Holbrook, Jr., J.
Plaintiff, Madeline Fletcher, a female police officer, was shot in the abdomen during an altercation with fellow officers while on duty. She was immediately taken to Hurley Medical Center emergency room where her wound was sewn up. A sponge was inadvertently left inside requiring her to undergo further surgery approximately six days later. The medical center is owned by the City of Flint, and the treating medical personnel are employees of the city.
A malpractice suit was filed against the medical center and the individual professionals. The medical center was dismissed per stipulation. Defendants claim that plaintiff’s and their status as fellow employees of the City of Flint renders them immune from suit under MCL 418.131; MSA 17.237(131) and MCL 418*.827(1); MSA 17.237(827)(1), the exclusive remedy and co-employee provisions of the Worker’s Disability Compensation Act. Defendants Johannsson and Zyber appeal by leave granted from a denial of their motion for summary judgment.
The Worker’s Disability Compensation Act provides an exclusive remedy for fellow employees when injuries arise out of the course of employment. Herndon v UAW Local No 3, 56 Mich App 435; 224 NW2d 334 (1974), and Wilson v Al-Huribi, 55 Mich App 95; 222 NW2d 49 (1974). Defendants contend that the issue of whether the plaintiff should be permitted access to the court to sue in a medical malpractice action is a matter properly decided by the Bureau of Workmen’s Compensa tion. We disagree. As held in Modeen v Consumers Power Co, 384 Mich 354, 360-361; 184 NW2d 197 (1971), quoting Bonney v Citizens’ Mutual Automobile Ins Co, 333 Mich 435, 440; 53 NW2d 321 (1952):
" 'The statutory grant of exclusive jurisdiction to the workmen’s compensation commission does not deprive a court of the jurisdiction to determine rights arising out of an entirely different relationship and in an entirely different type of proceeding in which the employer and employee relationship is only incidentally involved.’ ”
The courts of Michigan have long maintained concurrent jurisdiction in determining whether co-employee status exists. In Nichol v Billot, 406 Mich 284, 306; 279 NW2d 761 (1979), the defendant asserted as an affirmative defense that he was a co-employee. The Court held that the question of defendant’s status as an employee is an issue of law for the court providing that the evidence is reasonably susceptible of only a single inference, but that a jury determination should be made where facts are disputed or where conflicting inferences may reasonably be drawn from the known facts.
In the instant case the employment relationship is only incidentally involved. We do not find case law or statutory mandate which would require a plaintiff city employee to first appear before the Bureau of Workmen’s Compensation just because the defendant is also a city employee. See Panagos v North Detroit General Hospital, 35 Mich App 554; 192 NW2d 542 (1971), in which a hospital employee, while on her lunch hour, cut her mouth on a foreign particle contained in a piece of pie which she purchased in the hospital’s cafeteria. It was found that the employee-employer relationship was unrelated to the cause of action.
The lower court found that plaintiff and defendants were not co-employees. Defendant contends this was error, citing as authority Jones v Bouza, 381 Mich 299, 302; 160 NW2d 881 (1968), in which the plaintiff, an employee of Ford Motor Company, was treated for an on-the-job injury by a company staff physician. Summary judgment was granted because they were co-employees. When a work-related injury is aggravated by treatment, the business structure is an important consideration in determining whether a plaintiff’s remedies are limited. In Jones, supra, the full-time staff physician was hired to discharge the employer’s obligation of supplying medical care for those employees injured on the job. The instant case is distinguishable in that the physician was not employed for the sole purpose of treating city employees. The medical services were available to the general public.
This factual situation presents a case of first impression in Michigan. Other jurisdictions with similar statutory language have formulated criteria in determining whether attendant medical personnel are co-employees within the scope and purpose of the statute. In New York the test includes:
1. Was there a professional medical service made available to employees;
2. Was the service limited to employees only and hot the general public; and
3. Did the plaintiff receive these services only as a consequence of his employment. Garcia v Iserson, 33 NY2d 421; 353 NYS2d 955; 309 NE2d 420 (1974). See also Guy v Arthur H Thomas Co, 55 Ohio St 2d 183; 378 NE2d 488 (1978), and Duprey v Shane, 39 Cal 2d 781; 249 P2d 8 (1952). Plaintiff did not receive the services of defendants only as a consequence of her employment. The medical center is not a facility intended for exclusive treatment of city employees. It was merely an unfortunate coincidence that it was utilized by plaintiff.
The "third party” provision of MCL 418.827(1); MSA 17.237(827X1) maintains the common law right of action in tort even where benefits under the Worker’s Disability Compensation Act are payable for the same injury if caused by someone other than "a natural person in the same employ”. It would be manifestly unfair to apply the co-employee rule to government employees, who may serve a single master but carry out many diverse, unrelated functions and duties in departments that operate semi-autonomously. Plaintiff and defendants serve the City of Flint in two diverse capacities. Their usual duties do not bring them into habitual association and there is no unity of purpose. To be co-employees within the purview of the act, fellow employees must be directly cooperating with each other in work which may reasonably be regarded as the same. As a police officer, plaintiff’s duties were to enforce the law, not to render medical care to the sick or infirm. The objectives and goals of the two professions are separate and distinct.
The co-employee doctrine is inapplicable. Plaintiff was not pursuing or furthering the interests of her employer. Her status was that of a medical patient. The remedial surgery and increased convalescence resulted from a physician-patient relationship. The theory of the cause of action has nothing to do with the fact that both plaintiff and defendant are employed by the city. Actions are not barred against fellow employees when the employment relationship subsisting between them is only incidentally related to a claim resting on another basis. Panagos, supra, 559.
Affirmed.
R. E. Robinson, J., concurred. | [
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Cynar, J.
Plaintiff-appellant, Christian Daniel McCallister, appeals from an order entered on August 6, 1979, granting summary judgment in favor of defendants-appellees Lorimer and Josee McCallister pursuant to GCR 1963, 117.2(1).
On May 24, 1975, plaintiff, then 15 years old, dove into the deep end of the family swimming pool located in the backyard of his home in Warren, Michigan. In the course of this dive, plaintiff struck the back of his head and neck against the bottom of the pool. As a result of this impact, plaintiff suffered permanent paralysis from the neck down.
On March 2, 1979, plaintiff filed a four-count complaint in Macomb County Circuit Court. Counts I and II of the complaint are not at issue in the present appeal.
In count III of the complaint, plaintiff alleged that defendants Lorimer and Josee McCallister, parents of the plaintiff, had certain duties to plain tiff, including a duty to investigate the dangerous nature of the pool, make the pool safe or purchase only a safe pool, properly look after plaintiff, warn him of possible dangers, and instruct him on the safe and proper use of the pool. Plaintiff alleged that his injuries were the direct and proximate result of the negligent acts and omissions of defendant parents.
In count IV, plaintiff alleged that defendant parents negligently and carelessly failed to eliminate the danger or take steps to protect children such as plaintiff from the danger represented by the swimming pool, in that defendants failed to post warnings, instruct plaintiff, install safety devices, or take any other steps to prevent other children residing in the general neighborhood from entering and using the pool or diving into the pool. Plaintiff prayed for five million dollars judgment against the defendant parents, jointly and severally.
On March 30, 1979, defendants Lorimer and Josee McCallister filed a motion for summary judgment pursuant to GCR 1963, 117.2(1). Defendants, noting that plaintiff was their son, argued that plaintiff failed to state a cause of action:
"2. Each and every allegation of liability asserted against the defendant parents is barred by the doctrine of parental immunity because each and every such allegation alleges a negligent act which involves the exercise of reasonable parental supervision over the child or the exercise of reasonable discretion with respect to the provision of housing and other care for the child.”
In their answer to the complaint, filed on July 5, 1979, defendants reiterated their contention of parental immunity.
A hearing on the motion for summary judgment was held on May 17, 1979. The trial court took the motion under advisement.
On July 9, 1979, the trial court issued a written opinion, in which it held that the motion for summary judgment was properly founded, and granted summary judgment based on the parental immunity of plaintiffs parents. An order effecting the terms of that opinion was entered on August 6, 1979. Plaintiff now appeals from the above determination of the trial court.
Plaintiff raises but one issue in his appeal, contending that the trial court erred in granting summary judgment in favor of defendants pursuant to GCR 117.2(1) on the grounds that the allegations of liability asserted against the defendant parents were barred by the doctrine of parental immunity.
A motion under GCR 1963, 117.2(1)* is to be tested by the pleadings alone. The motion tests the legal basis of the complaint, not whether it can be factually supported. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972), inter alia. The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Sullivan v The Thomas Organization, PC, 88 Mich App 77, 82; 276 NW2d 522 (1979). Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, a motion made under this subrule should be denied. Staffney v Fireman's Fund Ins Co, 91 Mich App 745, 751; 284 NW2d 277 (1979).
Our Supreme Court determined in Elias v Collins, 237 Mich 175, 177; 211 NW 88 (1926), that:
"It is a rule of the common law that a minor cannot sue his father in tort. The rule had its beginning in the interest of the peace of the family and of society, and is supported by sound public policy.”
However, in Plximley v Klein, 388 Mich 1, 3-4; 199 NW2d 169 (1972), the Court reconsidered the doctrine of intra-family immunity in light of intervening social, legislative, and judicial changes. The mother and her four children were killed in an automobile accident. The father and husband sued, alleging that the mother was negligent. On appeal, the Court addressed the specific issue of "whether the personal representative of deceased children may recover damages from the personal representative of the deceased mother under the wrongful death act (MCLA 600.2922; MSA 27A.2922) for ordinary negligence”.
The Court, in reaching its decision, first noted that: "[a] number of our sister states who once recognized the above rule [of total immunity] have since abandoned it. Instead, they now recognize the right of a child to recover damages for injuries incurred as a result of negligent conduct on the part of the parent.” Id., 5-6. The Court then cited the following recent decisions in other states as indicating that the modern trend is toward the elimination of intra-family immunity: Goller v White, 20 Wis 2d 402; 122 NW2d 193 (1963), Briere v Briere, 107 NH 432; 224 A2d 588 (1966), Hebel v Hebel, 435 P2d 8 (Alas, 1967), Silesky v Kelman, 281 Minn 431; 161 NW2d 631 (1968), Gelbman v Gelbman, 23 NY2d 434; 297 NYS2d 529 (1969), France v APA Transport Corp, 56 NJ 500; 267 A2d 490 (1970), Gibson v Gibson, 3 Cal 3d 914; 92 Cal Rptr 288; 479 P2d 648 (1971), and Falco v Pados, 444 Pa 372; 282 A2d 351 (1971). Id., 5, fn 2.
The Court then noted that "[t]he Legislature also has moved toward an elimination of intra-family immunities” in the form of abrogation of inter-spousal immunity. Id., 7. The Supreme Court concluded that the best interest of justice and fairness to all concerned was most legally and equitably satisfied by abrogating intra-family immunity as a general rule but preserving it in the areas of exercise of parental authority and discretion.
"We are persuaded that the modern rule best serves the interests of justice and fairness to all concerned. The case of Elias v Collins, supra, which provides for intra-family tort immunity is overruled. A child may maintain a lawsuit against his parent for injuries suffered as a result of the alleged ordinary negligence of the parent. Like our sister states, however, we note two exceptions to this new rule of law: (1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.” (Footnotes omitted.) Id., 8.
The Court finally noted that if a cause of action of negligent parental supervision is to be created, it should come from the Legislature and not the courts. Thus, the Court did not totally abrogate parental immunity. Instead, it reserved parental protection for negligence occurring in the exercise of parental supervision over the child and parental discretion in providing for food, clothing, housing, medical and dental services, and other care.
In Paige v Bing Construction Co, 61 Mich App 480; 233 NW2d 46 (1975), lv den 395 Mich 751 (1975), this Court concluded that the first exception to the abrogation of parental immunity, the "parental authority” exception, does apply to bar a claim of negligent parental supervision. In Paige, a child fell into a man-made hole on defendant’s construction site and subsequently died of the injuries sustained in that accident. The plaintiff parent filed a wrongful death action against defendant construction company, who in turn filed a third-party complaint against the parents for contribution based upon negligent parental supervision. The trial court granted summary judgment in favor of the parents on the grounds that the third-party complaint failed to state a cause of action. This Court affirmed the summary judgment on the grounds that the first Plumley exception, parental authority, encompassed parental supervision. Thus, the action for negligent supervision of the parents was barred. In so holding, this Court stated in pertinent part:
"According to Plumley, where the alleged negligent act involved the exercise of reasonable parental authority over the child, the parents are immune from suit. While we note at the outset that this scheme is so general that it is difficult to apply the ambiguous exception to particular fact situations, we conclude that the first exception to the abrogation of parental immunity does apply so as to bar a claim of negligent parental supervision. A parent’s exercise of authority over his or her child involves more than discipline. It includes the providing of instruction and education so that a child may be aware of dangers to his or her well being. We find it impossible to separate such general phenomena as authority and supervision. In order to adequately supervise a child, every parent knows that some amount of the discipline is inextricably involved. The right to exercise authority over a child certainly includes the responsibility to supervise that child’s behavior.” Id., 484.
In Rodebaugh v Grand Trunk W R Co, 4 Mich App 559, 567; 145 NW2d 401 (1966), this Court stated that supervision and maintenance of the home are to be protected by parental immunity:
"The unique Wisconsin rule [the rule adopted by the Michigan court in Plumley] has much wisdom to recommend it. It abolished parental immunity except in the area of parental functions. Parental functions are activities which directly relate to the parental duties of care and supervision of the child. Physical punishment does come within the scope of parental discipline. Maintenance of the home comes within the scope of parental care.” (Emphasis added.)
As noted in Paige, supra, 484, this Court construed the first exception (parental authority) as including "the providing of instruction and education so that a child may be aware of dangers to his or her well being”. We conclude that this first exception applies to the circumstances of the case at bar. The gravamen of plaintiffs pleadings can only be construed as an action for negligent parental supervision.
The Court in Paige specifically pointed out that a parent’s exercise of parental authority includes the providing of instructions and education so that a child may be aware of dangers to his or her well being. In the case at hand, the decision to purchase, maintain, and instruct the family members as to the use of the family pool was within the management of family affairs. The alleged negligent acts and omissions of the defendants, which occurred three years after the pool was installed, involved an exercise of reasonable parental supervision over the child. Thus, the allegations set forth in plaintiffs complaint fall squarely within the first exception of Plumley, as explicated in Paige.
Arguably, the act of having and maintaining a swimming pool as part of the home falls within the second exception of Plumley, i.e., the exercise of reasonable parental discretion with respect to the provision of housing. "Housing” in its legal sense can be said to extend beyond the physical structure of the house itself and includes the premises within the actual control of the homeowner. Thus, it can be stated that the proper maintenance of a swimming pool, which lies within the boundaries of the property owned by the parents, constitutes maintenance of the home within the ambits of parental care under Rodebaugh, supra. The decision of defendants to have a swimming pool can be characterized as the exercise of reasonable parental discretion regarding the standard of housing they would provide for their family members. Such argument is feasible under the circumstances of the case; however, in light of the fact that the pool was used for three years without incident and the implicit conclusion that plaintiffs injuries were caused by the lack of proper supervision or instruction rather than improper maintenance of the pool, we conclude that the first exception of Plumley, supra, provides a better basis for establishing immunity in this instance.
Finally, plaintiff asserts that the presence of insurance coverage takes the instant case outside the ambit of both the Paige holding and the exceptions embodied in Plumley. Plaintiff argues that these exceptions are designed to minimize judicial interference with the parent-child relationship and that, where insurance covers any judicial award which the child might recover, the policy underlying these exceptions does not exist. In support of his argument, plaintiff cites authority from foreign jurisdictions. However, these cases do not provide a basis for circumventing the rule set forth in Plumley. In fact, this very issue was argued on appeal by the plaintiff in Plumley. An examination of Plumley reveals that the Michigan Supreme Court was fully cognizant of the insurance coverage arguments set forth in those cases which are now cited by the present plaintiff:
"Incidentally a special but subsidiary point may be noted. As the Supreme Courts of our sister states Wisconsin and Minnesota have noted, the widespread utilization of liability insurance suggested that intra-family lawsuits would seldom upset the tranquility of the family. Writing for the Wisconsin Supreme Court, Justice Currie stated:
" 'Nevertheless, we consider the wide prevalence of liability insurance in personal-injury actions a proper element to be considered in making the policy decision of whether to abrogate parental immunity in negligence actions. This is because in a great majority of such actions, where such immunity has been abolished, the existence of insurance tends to negate any possible disruption of family harmony and discipline.’ Goller v White, 20 Wis 2d 402, 412; 122 NW2d 193, 197 (1963).
"Instead, an injured family member will merely be able to recover from an insurance company for injuries against which the company has been paid to insure.” (Footnote omitted.) Plumley, supra, 7-8.
In spite of this recognition that insurance is a relevant factor under certain circumstances, the Court, nevertheless, held that parental immunity should continue to exist where the alleged negligent act involves an exercise of reasonable parental authority or an exercise of parental discretion. Thus, the Plumley Court implicitly rejected the contention that the existence of insurance coverage should influence the outcome of those cases which involve the exceptions to the abrogation of parental immunity.
Moreover, those cases cited by the plaintiff and noted by the Plumley Court were decided in the context of automobile litigation, where the widespread prevalence of automobile insurance was a consideration in the blanket abrogation of parental immunity. The fact that Plumley was also decided in the context of automobile litigation (and the similar prevalence of automobile insurance) only serves to emphasize the Court’s determination and intention to preserve immunity under the specified conditions. Thus, it must be concluded that the presence of liability insurance alone is insufficient to justify the abrogation of parental immunity where the exercise of reasonable parental authority over the child is involved. Plaintiff’s argument has already been considered and rejected as affecting the exceptions embodied in Plumley.
In addition, Michigan courts have consistently recognized that the fact of insurance or noninsurance should not have the effect of creating a cause of action where none existed before; the injection of insurance coverage is not only an immaterial issue but has also been deemed to be highly prejudicial. See Benmark v Steffen, 374 Mich 155; 132 NW2d 48 (1965), Darr v Buckley, 355 Mich 392; 94 NW2d 837 (1959), Felice v Weinman, 372 Mich 278; 126 NW2d 107 (1964), Rumptz v Leahey, 26 Mich App 438; 182 NW2d 614 (1970). In light of this strict adherence to the rule that insurance does not create liability, the existence of insurance in the instant case should not be employed as a controlling factor in determining the liability of the defendant-parents.
So too, policy considerations preclude the availability of insurance coverage from becoming justification for the imposition of judgment against the defendant parents. Although the Plumley Court recognized that other jurisdictions have held that the presence of liability insurance for the parent "tends to negate” the argument that the jury will be second-guessing proper familial management and, hence, causing disruption of family harmony, the Court, nonetheless, ruled that the mere presence of insurance coverage is insufficient to abolish parental immunity in instances involving supervision. Subsequently, in Paige, this Court reinforced the Plumley exceptions with the following reasoning:
"Besides our construction of the Plumley exceptions, a cause of action for negligent parental supervision, without a legislative standard, poses problems from a common sense point of view. Both Elbert v Saginaw, 363 Mich 463; 109 NW2d 879 (1961), and Lapasinskas v Quick, 17 Mich App 733; 170 NW2d 318 (1969), rejected the injection of parental fault onto the record of a case against parents. Elbert took judicial notice of the impossibility of a parent knowing what a child is doing at all times — despite utmost vigilance. 363 Mich 463, 480.
"Parents have a social and moral obligation to provide maintenance and guidance for their children, and the state benefits from their meeting this obligation. The law does step into this private relationship where the child’s well-being is seriously affected. See MCLA 750.135, 750.136, 750.161 et seq.; MSA 28.330, 28.331, 28.358 et seq. Each parent has unique and inimitable methods and attitudes on how children should be supervised. Likewise, each child requires individualized guidance depending on intuitive concerns which only a parent can understand. Also, different cultural, educational and financial conditions affect the manner in which different parents supervise their children. Allowing a cause of action for negligent supervision would enable others, ignorant of a case’s peculiar familial distinctions and bereft of any standards, to second-guess a parent’s management of family affairs considerably beyond these statutory protections.
"Despite the rapidly changing nature of our society in these the most turbulent of times, there is a continuing need for parental discipline and control over children within the sphere of the family. We conclude that to take a step which could unduly disturb and further erode the harmony of the family is unwarranted considering the practical impossibility of logically distinguishing between 'authority’ and 'supervision’ on a case-by-case basis. If such a cause of action is to be created, it should come from the Legislature and not this Court.” Paige, supra, 485-486.
Finally, we note that, in defendants’ answers to plaintiff’s first set of interrogatories, it was disclosed that defendants did indeed possess insurance which arguably would apply to the accident which occurred, which policy had a liability limitation of $100,000. As discussed previously, the ad damnum clause following counts III and IV of plaintiff’s complaint prayed for an award of damages in the amount of five million dollars against defendants jointly and severally.
Thus, even assuming that defendants could exact contribution pro rata from the remaining defendants, if the amount prayed for was awarded plaintiff, defendants would minimally be exposed to personal liability for which no insurance coverage existed in an amount approaching one million dollars. Plaintiff’s argument that family felicity would not be disturbed because of the presence of insurance is chimerical in light of this fact. Apropos is the following quotation from the dissenting opinion of Justice Black in Plumley, supra, 13:
"In a word, it is suggested by way of a polite challenge that if the Court is determined to go ahead willynilly, the Justices ought first to say that son now may sue father, and daughter now may sue mother, only if the defendant parent is actually and adequately insured against such newly installed liability, and then only to the monetary amount thereof. Otherwise, what happens to the argument that actions of such nature are not 'disruptive of family harmony’?”
For all the foregoing reasons, we conclude that the trial court properly granted summary judgment in favor of defendants. Accordingly, we affirm the decision in the court below.
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] |
N. J. Kaufman, P.J.
After a jury trial in Wayne County Circuit Court, a verdict was returned granting a substantial award to each plaintiff. The defendant appeals as of right.
The facts in the instant case are not in dispute. Briefly, the three plaintiffs were burned while at work in a General Motors plant. The explosion from which their injuries resulted originated from a cupola (a device in which metals are melted). There is no dispute that plaintiffs were properly at work in an area 20 to 25 feet above the floor and 50 feet from the cupola in question. At the end of each week, doors on the bottom of the cupola vessel are opened and the molten contents are dropped onto sand. If the sand is wet, an explosion or fireball will occur.
It is uncontested that the machine at issue functioned as it was designed to function. It is asserted, however, that the cupola could and should have been made safer by the addition of certain devices. The issue at trial was whether or not such devices were feasible.
Defendant argues that the first significant legal question is whether or not the machine was designed and manufactured to eliminate unreasonable risks of foreseeable injuries. The Supreme Court has held that:
"[Wjhether defendants * * * created an unreasonable risk of harm * * * is for a jury to decide, reasonable persons being of different minds.” Moning v Alfono, 400 Mich 425, 432; 254 NW2d 759 (1977).
Defendant next contends that even if the product was foreseeably misused, by using wet sand, the plaintiffs were not within the class of people whom the manufacturer could have foreseen as being within the zone of danger when the bottom-dropping procedure commenced. The cupola operator was behind a brick wall, and, defendant alleges, this design was sufficient to protect the only person foreseeably within the area at the time the cupola was emptied. This, we also believe, is a question for a jury.
Defendant further contends that, as a matter of law, a plaintiff cannot submit to a jury the question of whether a product was unreasonably designed without offering evidence that the defen dant-designer failed to follow industry standards. Such evidence was not oifered in the instant case.
Defendant bases its position, that evidence of a breach of an industry standard is necessary to establish a cause of action in a products liability case alleging defective design, on this Court’s opinion in Owens v Allis-Chalmers Corp, 83 Mich App 74; 268 NW2d 291 (1978), lv gtd 405 Mich 827 (1979). In Owens, a case in which I concurred separately, the majority held that a design defect could be established only upon proof:
"(1) That the particular design was not in conformity with industry design standards, design guidelines established by an authoritative voluntary organization, or design criteria set by legislative or other governmental regulation; or
"(2) That the design choice of the manufacturer carries with it a latent risk of injury and the manufacturer has not adequately communicated the nature of that risk to potential users of the product.” Id., 81. (Emphasis in original.)
The majority opinion in Owens reasoned that because decisions concerning the design of a product are multifaceted, the decision as to whether a particular product was reasonably designed should not be left to the jury system.
Although I did concur separately in the result in Owens, supra, my concurrence was based upon my belief that plaintiffs in that case had failed to show the proximate cause of the accident. In fact, the case on which I relied for my opinion, Elsasser v American Motors Corp, 81 Mich App 379; 265 NW2d 339 (1978), states that "[t]he questions of foreseeability of injury and reasonableness of protective and preventative measures taken [in products liability actions] are questions for the jury”. Id., 385, 386. (Emphasis added.) Elsasser goes on to discuss industry custom as evidence and holds that while "[i]t is hornbook law that a manufacturer may show compliance with industry standards to indicate reasonableness * * * the industry standard is always open to question of reasonableness. Prosser, Torts (4th ed) § 33, 96, pp 166-168, 645. Reasonableness is ultimately a question for the jury.” Elsasser, supra, 386.
I feel that it is clear that my concurrence in Owens v Allis Chalmers, supra, was based upon my view that causation had not been proven. If, however, my separate concurrence is seen as an affirmance of the majority opinion, I must admit error. It is my view that the question of reasonableness is, indeed, a question for the jury. Unlike my opinion in Owens, I feel here the evidence, was sufficient to establish that a defective product was the proximate cause of the plaintiffs’ injuries. I cannot say that the negligence of the General Motors foreman, who did not sound the alarm prior to dropping the molten iron from the cupola, was an independent intervening cause of plaintiffs’ injuries. On the contrary, it was certainly foreseeable that a foreman might forget to sound an alarm. See Comstock v General Motors Corp, 358 Mich 163, 178; 99 NW2d 627 (1959). This is precisely the reason that an automatic interlock between the alarm and cupola doors should have been included in the design. Additionally, since defendants did not raise the issue of an independent intervening cause at the trial court, this issue was not preserved for appeal.
Defendant raises among its grounds of error the contention that the trial court abused its discretion by permitting the plaintiffs’ expert witness to offer opinions outside his area of expertise. We find that the determination of an expert’s qualifications is within the sound discretion of the trial court, MRE 702, and we find no abuse of discretion in allowing the plaintiffs’ witness to testify.
Defendant contends that, because the expert based his opinion on general safety principles and not on an industry standard, it was error to allow his opinion. Defendant relies for this argument on this Court’s holding in Owens, supra. Again, if this case were decided in accordance with the majority opinion in Owens, the only standard material to the issues being tried would be the industry standard, which was not the basis for the expert’s opinion in the case at bar. However, if this case is decided consistent with Elsasser, supra, the adequacy of the cupola industry’s safety standards, if any existed, was properly at issue. Id., 386. Furthermore, MRE 702 does not require knowledge of industry standards in order for an expert witness to be qualified. Because the expert was qualified to give his opinion and because this opinion was material to a factual issue properly before this Court, I find no error in allowing his testimony.
Because I find that the majority opinion in Owens v Allis-Chalmers Corp, supra, is inconsistent with prior Supreme Court precedents and traditional products liability theory, its rules should not be applied to the instant cases.
Affirmed.
Although Moning was decided in the context of a marketing situation rather than in the area of product design, we find the proposition of law cited therein equally applicable to the fact situation presented by the instant case. | [
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Per Curiam.
Defendant appeals of right his January 17, 1979, jury conviction of wilfully and maliciously killing a dog owned by another. MCL 750.377; MSA 28.609. On February 16, 1979, defen dant was sentenced to a term of one year in the Allegan County jail. We affirm.
Defendant first argues that the lower court erred in not granting his motion to vacate his conviction on the ground that a dog is not a beast within the intent of the statute under which he was convicted. We disagree.
The statute under which defendant was convicted makes it a crime for any person to "wilfully and maliciously kill, maim or disfigure any horses, cattle or any other beasts of another * * Although neither Michigan statute nor case law appears to have explicitly defined the term "beast” in a manner that would include dogs, we note that a criminal statute prohibiting the placement of poisonous substances in places where they are liable to be eaten by "beasts”, MCL 750.437; MSA 28.692, specifically provides that, "any person who shall expose any known poisonous substance, whether mixed with meat or other food or not, so that the same shall be liable to be eaten by any horses, cattle, dogs or other beasts of another, shall be guilty of a misdemeanor * * *”. (Emphasis supplied.)
Both of these statutes were enacted in 1931 at the same legislative session. See, 1931 PA 328, §§377 and 437. Statutes, such as these, which were enacted by the same Legislature, which went into effect on the same date, and which relate to the same subject matter, must be construed together for purposes of determining legislative intent. Van Antwerp v State, 334 Mich 593; 55 NW2d 108 (1952), Reed v Secretary of State, 327 Mich 108; 41 NW2d 491 (1950). Further, statutes, such as these, which relate to the same person or things or to the same class of person or things, and which have a common purpose, are said to be "in pari materia” and must be construed consistently. Palmer v State Land Office Board, 304 Mich 628; 8 NW2d 664 (1943), People v Mire, 173 Mich 357; 138 NW 1066 (1912).
Construing these two statutes in a manner that would make them consistent and harmonious, we glean a legislative intent to include dogs within the term "beasts” for purposes of both statutes. The Legislature’s use of the phrase "dogs or other beasts of another” in the poison statute persuades us that the Legislature did not intend to create an anomolous situation whereby dogs would be protected from persons who placed poison where it is likely to be eaten by them but not protected from persons who would otherwise wilfully and maliciously kill them. Therefore, the lower court did not err in holding that defendant’s conduct constituted a violation of the statute under which he was convicted.
Defendant next argues that the lower court erred in instructing the jury that they could find him guilty if they found that he acted with either malice towards the dog or towards its owner. Defendant argues that he could have been found guilty of wilfully and maliciously killing a dog only if he acted with malice towards the animal.
To the extent that the judge instructed the jury that the jury was required to find that defendant acted with malice either towards the animal or its owner in order for him to be convicted of the charged offense, the judge erred. The element of malice in this statute requires only that the jury find that defendant 1) committed the act, 2) while knowing it to be wrong, 3) without just cause or excuse, and 4) did it intentionally or 5) with a conscious disregard of known risks to the property of another. CJI 32:1:01.
The judge instructed the jury as to the definition of the term "malice” in accordance with this Standard Criminal Jury Instruction. That was all that he was required to do. Any instruction by the judge requiring the jury to find that defendant’s malice was directed either towards the animal or its owner was irrelevant and could not have prejudiced defendant because, in effect, it added another element to the prosecutor’s case making it more difficult to convict defendant. Therefore, no reversible error has occurred.
We agree with defendant that the lower court erred in ruling that certain hearsay testimony of a police officer was admissible at trial under MRE 801(d)(1); however, we disagree that the admission of this testimony constituted reversible error. Judy Mannon, an owner of the dog killed by defendant, testified at trial that after the shooting someone approached the door of her residence and identified himself as "Butch”. Defendant is known by the name "Butch”. On cross-examination of Deputy Deppe, a police officer who investigated the incident, defense counsel elicited testimony to the effect that Ms. Mannon did not tell the officer in her statement that defendant had identified himself at any time. Subsequently, the prosecutor elicited the testimony objected to from a second police officer who also had investigated the incident, Officer Waldron, to the effect that Ms. Man-non had told him that the defendant identified himself to her after the incident.
Defendant is correct in his assertion that this corroborating testimony was not admissible under MRE 801. However, it is clear that the testimony was offered to rehabilitate Ms. Mannon’s credibility which had been impeached by the testimony of Deputy Deppe; it was not offered as substantive evidence. As such, it was proper rehabilitative testimony and there was no violation of the hearsay rule. People v Miniear, 8 Mich App 591; 155 NW2d 222 (1967).
Defendant’s final claim of error is that the prosecutor abused his discretion by charging defendant under a statute that made his actions a felony rather than under a statute that would have made defendant’s actions only a misdemeanor. MCL 750.377; MSA 28.609, the statute under which defendant was charged and convicted, makes it a felony for a person to wilfully and maliciously kill animals belonging to another. Defendant argues that he should have been charged under MCL 752.21; MSA 28.161, which provides that any person who "tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates, or cruelly kills, * * * any animal * * * is guilty of a misdemeanor”. We disagree.
Where statutes are distinct in purpose and scope, the prosecutor does not abuse his discretion by charging an accused with the greater offense. People v LaRose, 87 Mich App 298; 274 NW2d 45 (1978). The statute under which defendant was charged and the statute under which he claims he should have been charged are distinct in purpose. The former statute protects the property interests of a person in the ownership of an animal, whereas the latter statute protects the animal itself from cruelty. Further, convictions under these statutes are not had on the same proof because the statute under which defendant was convicted requires the prosecutor to prove as an element of his case that the animal killed was one belonging to "another”. On the other hand, the statute under which defendant claims he should have been charged protects all animals whether belonging to another person or not. Therefore, we hold that the prosecutor did not abuse his discretion in charging defendant under the statute setting forth the greater penalty.
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J. H. Gillis, P.J.
On September 15, 1978, defendant was found guilty by a jury of two counts of first-degree criminal sexual conduct, MCL 750.520b(l)(f); MSA 28.788(2)(l)(f). Count one was based on sexual intercourse; count two was based on cunnilingus. Defendant was sentenced to 15 to 25 years on each count, such sentences to run concurrently.
Defendant appeals as of right.
At approximately 1:30 a.m. on July 6, 1977, defendant’s mother awoke to find her son, the defendant, kneeling on her bed, straddling her legs. After asking him what he wanted, and being told that he intended to sexually assault her, the complainant screamed and was immediately engaged in a struggle during which defendant covered her face and mouth with a pillow every time she screamed. Finally, defendant allowed the complainant to sit up in order to recover her breath, „ at which point she ran from the bedroom. Defendant caught her in the hallway, threw her to the floor, placed his mouth on her genitals, and later penetrated her vagina with his penis. Subsequently, defendant demanded that she give him her purse, from which he took $5. Defendant then left the house, after warning the complainant not to tell his sister or the police what had happened. Defendant’s father was no longer living at the time.
After assuring herself that the defendant had left her home, the complainant locked herself in her bedroom, and called her minister. Reverend Kutz and his wife testified that they immediately drove to Mrs. Sommerville’s home, where she ran from the front door to the vehicle as soon as it pulled up. Mrs. Sommerville told the Kutzes that her son had raped her and they took her to their home.
At the Kutz home, Mrs. Sommerville declined to call the police or to seek medical treatment because she was then unwilling to implicate her son as her assailant. Instead, she took a warm bath and then talked with the Kutzes until approximately 4 a.m. Reverend and Mrs. Kutz both testified that they observed scratches and abrasions on Mrs. Sommerville’s face when they arrived at the Kutz home, and Mrs. Kutz testified that she noticed that Mrs. Sommerville was bleeding from her vagina as she prepared to take her bath.
On July 6, Mrs. Sommerville worked in the morning and spent the afternoon at the Kutz home. That evening, she decided that she would report the crime and was interviewed by two uniformed policemen. Thereafter, on July 7, she and Mrs. Kutz met a police detective at her home, where she described the attack and gave the police her nightgown and the underwear she had put on just after the assault. Prints were dusted for, but none were found. The clothing was submitted to the crime lab, together with blood and saliva samples from both defendant and his mother. Tests resulted in the findings that defendant is a type O secreter, Mrs. Sommerville is a type O nonsecreter, and type O secretions were found in the semen stains on the nightgown. Thus, the forensic lab technician testified that defendant could have been a donor of the semen on the nightgown.
Defendant’s case was founded on an alibi supported by the testimony of five friends with whom he was alleged to have spent the evening of July 5. The trial testimony was consistent among the defense witnesses as to defendant’s actions on the evening of July 5. However, this testimony was contradicted to some extent by prior inconsistent statements made by defendant when he was first contacted by the police.
At the close of the trial, the court instructed the jury as to first-degree criminal sexual conduct on the basis of cunnilingus and on the basis of sexual intercourse, as well as second, third, and fourth-degree criminal sexual conduct. These instructions will be more fully detailed hereafter. The verdict forms were read and explained, and the jury retired to deliberate. When they returned, the following dialogue occurred:
’"The Court: The People of the State of Michigan versus Patrick Colen Sommerville. Will the Foreman please rise! Has the jury reached a verdict on Count One which is vaginal intercourse?
"The Foreman: Yes.
’’The Court: And what is the verdict?
"The Foreman: We, the jury, find the defendant, Patrick Colen Sommerville, guilty as charged on the first degree of criminal sexual conduct, to-wit, vaginal intercourse, to-wit, with another person; and to Jane Sommerville, causing personal injury to said victim by using force and coercion to accomplish sexual penetration.
’’The Court: Count Two, coitus?
’’The Foreman: Yes we have.
’’The Court: And what is the verdict?
’’The Foreman: We, the jury, find the defendant, Patrick Colen Sommerville, guilty as charged of first-degree criminal sexual conduct, to-wit, coitus with another person, to-wit; and to Jane Sommerville, causing personal injury to said victim by using force and coercion to accomplish sexual penetration.”
Further facts will be given as the need arises.
Defendant raises ten issues on appeal. He first challenges the jury instructions on first- and second-degree criminal sexual conduct. MCL 750.520b(l)(f) and 750.520c(l)(f); MSA 28.788(2)(l)(f) and 28.788(3)(l)(f), provide in pertinent part that:
"A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
* * *
"(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration.”
"A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exists:
* * *
"(f) The actor causes personal injury to the victim and force or coercion is used to accomplish the sexual contact.”
The defendant argues that, because the trial court omitted the personal injury, force and coercion elements from the first-degree charge and the personal injury element from the second-degree charge, reversible error occurred.
Defense counsel failed to object to the instructions as given. Indeed, he noted on the record that he was satisfied therewith. Thus, absent a finding of manifest injustice, the issue has not been preserved for review. People v Stinson, 88 Mich App 672, 674; 278 NW2d 715 (1979). We find no manifest injustice in this case. As in People v Payne, 90 Mich App 713, 722; 282 NW2d 456 (1979), jury instructions must be read as a whole, and the existence of a verdict form correctly listing each element of the charged and lesser included offenses may also be considered in resolving an issue such as this. After a review of the instructions we find that on the whole, they sufficiently informed the jury of the elements necessary to convict defendant on each count of first-degree criminal sexual conduct.
Defendant’s second issue challenges the trial court’s failure to instruct the jury that cunnilingus requires penetration of the victim’s vagina with the assailant’s mouth. The instruction which was given merely required proof of contact, rather than penetration.
MCL 750.520b(l); MSA 28.788(2X1) defines first-degree criminal sexual conduct as sexual penetration with another person under certain enumerated circumstances. MCL 750.520a(h); MSA 28.788(l)(h) defines sexual penetration as follows:
" 'Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.”
Defendant argues that the wording of the foregoing statute requires an intrusion as a means of distinguishing sexual penetration from sexual contact. We disagree.
Cunnilingus is nowhere defined to require an intrusion. Indeed, such an action would be physically most difficult. The same is true of fellatio, if forcibly performed by a male actor upon a male victim. See, e.g., People v Hollis, 96 Mich App 333; 292 NW2d 538 (1980). Thus, it is not the intrusion or penetration which elevates cunnilingus to first-degree criminal sexual conduct. Rather, it is quite •reasonable to interpret the inclusion of both oral sexual acts in the definition of sexual penetration as based on the belief that each is as offensive to the victim and to society as is forcible penetration. Cf. People v Payne, 90 Mich App 713, 722; 282 NW2d 456 (1979), where another panel of this Court seems to have concluded that penetration is required of first-degree criminal sexual acts involving oral sexual assaults. Thus, CJI 20:2:02, which defines oral sexual acts as involving contact between the mouth of one party and the sex organs of another, was properly given as an instruction in the instant case.
Defendant’s third issue asserts that the admission into evidence of testimony as to Mrs. Sommerville’s character and defendant’s veracity was error. During cross-examination of Mrs. Sommerville, the following questions and answers were noted on the transcript:
"Q. I think you stated you have asthma, is that correct?
"A. I sometimes do, yes.
"Q. Do you take any regular medication for it?
"A. No, it isn’t necessary.
”Q. Do you have any medication for it?
"A. I have, I carry it with me always. I very seldom have to use it.
"Q. What kind of condition usually brings on an attack, if you can tell me?
"A. It seems to be the weather, the very humid weather will do that.
"Q. Do you take any other medication?
"A. No. Are you talking about at that time?
"Q. At that time.
"A. No.
”Q. Do you take any medication now?
"A. Yes.
"Q. Are you on medication today?
'A. I don’t know if you call this medication or not I have an irritated colon and I’m taking medication for that off and on.
"Q. Are you taking anything for your nerves?
"A. I have valium in the house and I take it very, very infrequently.
"Q. When you come home from work do you ever occasionally have a drink?
"A. Occasionally.
”Q. Do you remember if you had one that night?
"A. No, I can’t tell you if I did or not, I may have had but I don’t remember—
”Q. What kind of drinks do you drink?
"A. Various ones.
”Q. Well, you don’t remember if you had any drinks that night?
"A. No, I don’t remember.”
In response to the perceived intent of defense counsel, the prosecutor asked Mrs. Kutz to describe the complainant’s "stability, her character or attitude * * *”. Over defense counsel’s objection, Mrs. Kutz testified as follows:
”Q. Now, indicated that you have known her previously. Would you describe her or did you have a good personal knowledge of her as a person and how she was in the community previous to this occasion?
"A. Yes.
”Q. Would you describe that to us as to her stability, her character or attitude if you—
"Mr. Truesdell [Defense Counsel]: Objection, your Honor. I don’t think character has been tested yet.
"Mr. Deegan [Prosecuting Attorney]: I think it has been challenged pretty extensively. In fact, I believe, on cross examination, there was an implication possibly as to having a drinking problem. I’m not going to suggest that counsel has made any indication towards bad character but certainly as to stability.
"The Court: You may proceed.
”Q. [By Mr. Deegan] Describe Mrs. Sommerville as you know her in the community, as you have known her personally up to this point and prior to this occurrence?
"A. Well, she has always been a very gracious person. I think she is a very intelligent woman. She’s a calm kind of person, I don’t know, except for that night I don’t know of any other time that I have seen her in any kind of a frenzy. She thinks things through carefully and quietly. Since we have known her we have sometimes commented, at home, that she’s one of the calmest and deliberative people we know because many people we know, including us, make decisions quickly and so forth and I have appreciated her friendship very much.
”Q. I believe you have indicated that you have known her since shortly before you came to town and that was four or five years previous—
"A. It will be five years.
”Q. Have you had a considerable amount of contact with her socially and through the church and things like that during this period of time?
"A. Yes, we have.
"Q. Have you, at anytime, seen her act or react in a way that would appear to be abnormal or not appropriate or proper for anyone in a given situation?
"A. No.
"Q. Now, I want to cover this other point with you, Mrs. Kutz, during the period of time that you have known her previously and during the period of time that she lived with you, during this five months, did you ever discern anything at all that would lead you to believe that she had any kind of a drinking problem?
"A. No.
”Q. You have had an awful lot of personal contact with her during this period of time?
"A. Yes.
”Q. You described her character, her attitude previous to this occurrence, would you describe it as time went on during this five month period of time, since that date as you know it today and know it now?
"A. Well, for awhile, the first, maybe, few weeks she wasn’t really herself. I’m sure this was on her mind a lot of the time. She was much quieter, there were times when she didn’t want it to be quiet but gradually then she became more of herself again and I was very admiring of her for the way she pulled herself together. She’s a lady with her head on straight.”
In a similar vein, Reverend Kutz stated, also over objection, that:
"Q. Now, specifically, in relationship to Mrs. Sommerville, could you state, of your knowledge of her, both as an individual and your knowledge of her in the community, could you describe her as a person and as to her abilities to be able to see things clear, relate them accurately—
"A Yes, Anna Jean is a person of high level intelligence, deep devotion to her Lord and his church. She is a person of good thought processes that are admired by other people. I mentioned this characteristic to indicate. why I believe that she has held a number of posts of leadership in the congregation, small posts, large posts, and now she is on the executive board of the congregation, which board one does not jump into until having served in some other capacity in a reliable way and a way that would be admired by others in the congregation. I have seen her operate in terms of wifehood and motherhood and have respected her judgment. I find her an admirable person.
”Q. Have you found anything at all, Reverend, in your contact with her or in your understanding of her position in the community, that would cause you to believe that she has an emotional or mental deficiencies that, say, could lessen her credibility?
"A. I would say emphatically, no.
”Q. Have you discerned or observed anything about her personality that would relate to any medical or physical problems such as medication or drug abuse or alcohol involvement or anything of that nature at all?
"Mr. Truesdell: I am going to object to that question. I would like to have the witness qualified to answer that question. I don’t believe he has present qualifications for that answer.
"Mr. Deegan: Your Honor, I believe that as his previous testimony, up to this time, I can carry it a little bit farther, what personal contacts he has had with her.
"The Court: You may proceed.
”Q. [By Mr. Deegan] You have indicated that she lived in your home, actually as a resident, for approximately five months, is that right?
"A. Yes.
"Q. You had known her for a long period of time before that?
"A Yes.
"Q. Did you ever discern that she, at anytime, was abusive of any kind of medications or alcohol or anything of this nature?
"A No, I have seen Anna Jean take a white pill, that I call a chalk pill, for digestive problems but that has been the extent of medication that I have observed. I take one myself of a different type. I haven’t noticed anything else, the answer is, no.
"Q. Have you seen her socially in your home, have you ever come in contact with or have any use as it relates to alcohol?
"A. Come in contact, have any uses as relates to alcohol, yes.
”Q. Would you describe what you have observed in relationship to that?
"A Yes, I have seen Anna Jean take a drink before a meal. I have seen her take a drink at nighttime before going to bed.
”Q. Have you ever seen anything that comes close to an abuse of this type of substance according to what you have observed?
"A No.”
MRE 610 provides that "evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced”. Defendant relies on this rule, and a similarly worded statute, MCL 600.1436; MSA 27A.1436, in his claim that Reverend Kutz’s statement as to Mrs. Sommerville’s "deep devotion to her Lord and his church” constituted reversible error. We disagree.
On its face, Reverend Kutz’s statement speaks to the complainant’s religious beliefs. Several factors distinguish this statement from those considered to constitute reversible error in other cases. First, previous testimony had established that Mrs. Sommerville attended the church with which Reverend Kutz was associated. Thus, the fact that she attended church was not unknown to the jury before he testified. The fact that she called her minister immediately after the assault further established the strength of her affiliation with her church. That she resided with Reverend and Mrs. Kutz for approximately five months after the assault also implied something about this affiliation. Thus, we do not believe that Reverend Kutz’s testimony constituted a compelling reason to attach more credence to her testimony than otherwise.
Second, most of the cases which condemn the admission into evidence of such testimony involve instances where the prosecutor deliberately questioned a witness as to his or her religious beliefs, or the beliefs of another witness or the defendant. In People v Hall, 391 Mich 175; 215 NW2d 166 (1974), the prosecutor questioned the defendant as to his own beliefs. Likewise, in People v Bouchee, 400 Mich 253; 253 NW2d 626 (1977). In People v Wells, 82 Mich App 543; 267 NW2d 448 (1978), lv den 405 Mich 828 (1979), the prosecutor asked the complainant whether she attended church and, if so, whether she then knew what it is to take an oath.
In this case, the statement as to Mrs. Sommer ville’s religious devotion was not solicited in any way. The prosecutor asked Reverend Kutz to describe the complainant "as a person and as to her abilities to be able to see things clear [sic], [and] relate them accurately”. The only means by which he could have prevented the challenged statement would have been to caution the witness not to bring religion into his answer. As there is no duty on the prosecutor to make such cautionary remarks, we see little reason to reverse solely on the basis of the challenged testimony.
Defendant’s second ground for objecting to the testimony as to complainant’s character is that MRE 608(a) prohibits the admission into evidence of testimony as to a witness’s credibility unless the witness’s character for truthfulness has been attacked by reputation evidence or otherwise. Asserting that his attorney did not attack the complainant’s character for truthfulness when he questioned her about her use of drugs and/or alcohol, defendant claims that the trial court’s decision to allow the prosecutor to question Mrs. Kutz as to the complainant’s stability, character and attitude was error. We disagree.
It is arguable whether defense counsel’s questions as to Mrs. Sommerville’s drug and/or alcohol use on the night of the attack or otherwise constituted an attack on her character for truthfulness. Such questions could have been directed solely at the complainant’s ability to identify her assailant and clearly recall the assault. If they were, then it was error to admit the challenged testimony; absent an attack on the complainant’s character for truthfulness, MRE 608(a) prohibits the admission of such testimony into evidence.
In our opinion, the admission into evidence of Reverend and Mrs. Kutz’s testimony comes very close to constituting error under MRE 608. However, we further believe that any error so committed is harmless under People v Christensen, 64 Mich App 23, 32-33; 235 NW2d 50 (1975), lv den 397 Mich 839 (1976).
Defendant’s final claim under this issue is that the prosecutor impermissibly attacked the defendant’s character for truthfulness when he cross-examined defendant’s alibi witnesses as to defendant’s drug use. As defense counsel failed to object to such line of questioning, review of the issue on appeal is precluded, absent a finding of manifest injustice. People v Stinson, 88 Mich App 672, 674; 278 NW2d 715 (1979). We do not believe a manifest injustice resulted from the prosecutor’s cross-examination. The majority of the prosecutor’s questions were directed at the ingestion of beer, marijuana and cocaine at the defendant’s Ypsilanti home on July 5. The prosecutor also asked if each witness found the defendant to be reliable and dependable. Given that the witnesses had each testified to the use of such intoxicants on direct examination, and to the length of their friendships with defendant, the prosecutor’s cross-examination was not improper. In this regard, it must also be noted that Mrs. Sommerville’s testimony at trial was unshakable, that she clearly and unwaveringly identified her son as the man who had sexually assaulted her, and that the alibi offered by defendant did not completely contradict the complainant’s testimony that the assault occurred at approximately 1:30 a.m. on July 6, in Port Huron. Thus, if error did occur, it was not such as to result in the finding that absent such error even one juror might have voted to acquit defendant.
Defendant’s fourth issue is premised on testimony which contained hearsay elicited by the prosecutor from Reverend and Mrs. Kutz and from a detective to whom Mrs. Sommerville spoke on July 7. Each of the three witnesses was asked to recount or verify Mrs. Sommerville’s account of the assault and each did so, without objection by defense counsel. Defendant now contends that such testimony was hearsay, the admission of which resulted in reversible error.
As noted above, absent manifest injustice, matters unobjected to at the trial level are not preserved for review. Stinson, supra. Because the complainant’s credibility was of critical importance in this case, we have reviewed the record to determine possible prejudice to the defendant. We conclude that reversible error did not result from the admission of the challenged testimony.
Mrs. Sommerville’s státements to Reverend and Mrs. Kutz as to the event which occurred less than one-half hour before constitute an excited utterance. MRE 803(2) excepts from the operation of the hearsay rule, MRE 802, statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition”. See also, People v Schinzel, 86 Mich App 337, 345; 272 NW2d 648 (1978), rev’d on other grounds 406 Mich 888 (1979). Clearly, the assault by a man perceived to be her son was an occurrence "startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting”. Schinzel, supra, 345. The statements were made to Reverend and Mrs. Kutz before there had been time to contrive and misrepresent, and they related to the circumstances of the occurrence preceding them.
The issue of the admissibility of the detective’s testimony is not so easily resolved. Mrs. Sommerville did not speak to the detective until more than 24 hours after the assault. In the interim, she had spent an afternoon contemplating whether she should report the attack. Thus, her statements cannot be classified as excited utterances nor as any other type of admissible hearsay.
The admission into evidence of the detective’s testimony verifying that Mrs. Sommerville’s trial testimony was consistent with her statement to him on July 7 was error. To determine whether the error was harmless beyond a reasonable doubt, "the courts of this state have looked to such factors as the quantum of other evidence indicating defendant’s guilt, how tenuous the remaining evidence against the defendant is, and whether the hearsay testimony is merely cumulative with the other evidence against the defendant”. People v Jefferson, 77 Mich App 153, 160; 258 NW2d 172 (1977).
The quantum of other evidence of defendant’s guilt in the case at bar was substantial. First, in first-degree criminal sexual conduct prosecutions, the complainant’s testimony need not be corroborated. MCL 750.520h; MSA 28.788(8). Second, Mrs. Sommerville consistently testified as to the facts of the assault, and such testimony was corroborated by Reverend and Mrs. Kutz. Third, the condition of Mrs. Sommerville’s home after the assault supported various aspects of her testimony. Finally, the detective’s testimony was merely cumulative. Indeed, he did not even repeat the details of the assault. Rather, he stated only that the account he heard shortly after the crime was consistent with Mrs. Sommerville’s trial testimony. We thus conclude that no error occurred with regard to the challenged hearsay testimony.
Defendant’s fifth issue challenges the sufficiency of the evidence on the element of penetration as to first-degree criminal sexual conduct — cunnilingus. The complainant testified that she was not certain whether defendant penetrated her vagina with his mouth. Defendant argues that, if the complainant herself was not certain whether penetration occurred, the jury could not find sufficient evidence of that element. As noted above, however, penetration is not a required element of first-degree criminal sexual conduct — cunnilingus.
"Due process requires that the prosecutor introduce sufficient evidence which could justify a trier of fact in reasonably concluding that defendant is guilty beyond a reasonable doubt before a defendant can be convicted of a criminal offense.” People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979).
At trial, Mrs. Sommerville clearly testified that defendant placed his mouth on her vagina, after forcibly throwing her to the floor and pushing her nightgown up to her waist. This testimony suffices to establish first-degree criminal sexual conduct— cunnilingus.
Defendant next asserts that his conviction of first-degree criminal sexual conduct — cunnilingus must be reversed because the judge and the jury used the word "coitus” when the verdict was rendered, rather than the word "cunnilingus”.
In People v Rand, 397 Mich 638, 643; 247 NW2d 508 (1976), the Supreme Court addressed the question of imprecise verdicts rendered by juries:
“Jurors are not trained in the law, and therefore will often fail to state their verdict with technical legal precision. People v Guidry, 67 Mich App 653, 661; 242 NW2d 461 (1976) (V. J. Brennan, J., dissenting). The very purpose of language is to express ideas. The written form of the verdict should not be exalted over the substantive intent of the jury. We hold, therefore, that a jury verdict is not void for uncertainty if the jury’s intent can be clearly deduced by reference to the pleadings, the court’s charge, and the entire record. This standard of 'clear deducibility’ adequately protects the defendant’s right to trial by jury while it avoids artificiality in the construction of the jury verdict.”
In this case, review of the trial court’s charge on count two reveals a consistent use of the term cunnilingus. Additionally, the word "coitus” appears only in connection with the rendition of the jury’s verdict. Finally, the information read at the opening of the trial and during the jury instructions, together with the verdict forms given to the jurors, both specifically reference count two to "cunnilingus”. From this evidence, it can be clearly deduced that the jury’s verdict on count two was based on an act of cunnilingus committed by the defendant on the complainant.
Defendant also raises an issue premised on People v Sturdivant, 91 Mich App 128, 131; 283 NW2d 669 (1979), lv den 407 Mich 933 (1979), where this Court ruled that it is error to admit blood type evidence which serves "to include the defendant in the class of possible assailants * * * thereby increasing] the probability of defendant’s guilt without connecting him, in any way, to the charged offense”. Such blood type findings were admitted into evidence in the instant case, and the defendant claims reversible error thereby occurred. We disagree, for, as was stated in Sturdivant:
"This holding, however, does not require reversal in the instant case. Here, the complainant had several opportunities to observe the defendant at the time of the attack and positively identified him on several occasions. The complainant’s eyewitness testimony, if believed by the trier of fact, is sufficient evidence to convict. People v Knapp, 34 Mich App 325, 332; 191 NW2d 155 (1971). We hold that any error interjected into defendant’s trial by the admission of the blood type evidence was harmless beyond a reasonable doubt under the standards set forth in People v Christensen, 64 Mich App 23, 32; 235 NW2d 50 (1975).” 91 Mich App 134.
Mrs. Sommerville identified her son as her assailant in her attempts to talk with him during the assault, to Reverend and Mrs. Kutz immediately following the assault, to the police who interviewed her the next evening, and at trial. Her testimony on the defendant’s identity never waivered. Thus, as in Sturdivant, any error caused by the admission of the blood type evidence was harmless beyond a reasonable doubt.
Defendant’s eighth issue, ineffective assistance of counsel, rests on the premise that the preceding issues reflect his defense attorney’s failure to perform as well as a lawyer with ordinary skill and training in criminal law. People v Garcia, 398 Mich 250, 254; 247 NW2d 547 (1976). We disagree, and hold that defendant would not have had a reasonably likely chance of acquittal, People v Krist, 93 Mich App 425, 437; 287 NW2d 251 (1979), lv den 407 Mich 963 (1980), even if none of the alleged errors had occurred. Our holdings in each of the foregoing issues also leads to the conclusion that defendant was not denied a fair trial, as he asserted in his ninth issue on appeal.
Defendant’s final issue on appeal alleges that he is entitled to be resentenced because he was not permitted to personally review the presentence report prepared in his case. The record establishes, however, that his attorney read the report, found all of the factual information contained therein to be correct, and had nothing to add to it. When asked if he had anything to say, defendant answered in the negative.
GCR 1963, 785.12, provides that the sentencing court shall permit the defendant’s attorney to inspect the presentence report, and such was done here. GCR 1963, 785.8(2) requires the court to "give defendant and his attorney a reasonable opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence”. Again, such was done in this case. Although we do not hold that a defendant who is represented by counsel has an absolute right to personally review the presentence report, any defendant wishing to raise the issue must certainly make his request for such review on the record. See, People v Oster, 97 Mich App 122; 294 NW2d 253 (1980), People v Worden, 91 Mich App 666, 685; 284 NW2d 159 (1979), and People v Moore, 60 Mich App 1, 4; 230 NW2d 281 (1975). As it does not appear that defendant made such a request, his argument in this regard must be rejected.
Affirmed.
In this regard, it must be recalled that defendant was not the natural child of either Mrs. Sommerville or her husband. There were thus no inherited characteristics to complicate the lab findings. | [
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Per Curiam.
This appeal concerns the propriety of the trial court’s issuance of a permanent injunction allowing plaintiffs to sell their mobile home on a leased site in defendants’ mobile home park and restraining defendants from interfering with the purchaser in the quiet enjoyment of the premises.
Plaintiffs are the owners of a 1968 mobile home which has been situated on Lot 50 of defendants’ mobile home park since August 14, 1976. The site was leased to plaintiffs pursuant to an oral agreement for a month-to-month tenancy. The dispute between the parties arose in July of 1978, when plaintiffs, desirous of selling their mobile home because they had purchased a house, approached defendants regarding several prospective purchasers. According to plaintiffs, defendants refused to allow any prospective purchasers of plaintiffs’ mobile home to remain on the site after purchase.
Plaintiffs subsequently commenced the instant litigation by filing a verified complaint and motion for preliminary injunction on December 11, 1978, alleging several theories entitling them to relief. Plaintiffs initially allege that, while they moved into the park on August 14, 1976, they were never offered a written lease, contrary to MCL 125.1128; MSA 19.855(28), which did not become effective until January 9, 1977.
Secondly, plaintiffs claim that in 1978, defendants adopted an unwritten rule prohibiting a mobile home more than three years old from being resold on the site in defendants’ mobile home park. Not only was the rule enforced in a discriminatory fashion, according to plaintiffs, but it violates proposed Rule 2004(1) (R 125.2004) promulgated by the Michigan Mobile Home Commission under its authority pursuant to the Mobile Home Commission Act, MCL 125.1101 et seq.; MSA 19.855(1) et seq. Rule 2004(1), which became effective March 1,1979, provides as follows:
"A mobile home park shall not deny a tenant the right to sell his or her mobile home, on site, at a price of his or her own choosing, to any individual, if the purchaser qualifies for tenancy and the mobile home meets the conditions of the written park rules, except that age shall not be used as the sole basis for refusing to allow a mobile home to remain in the park.”
Plaintiffs submit that at the time they moved into the park, defendants orally misrepresented that plaintiffs would be permitted to sell their mobile home on the site subject to reasonable approval by defendants of incoming tenants. Plaintiffs do not deny, however, that upon entering the park, they received a copy of the park rules, including Park Rule 8, providing that
"[a]nyone who decides to sell his or her mobile home does not guarantee the buyer the lot it is on”.
Due to defendants’ actions, plaintiffs sought injunctive relief, as well as damages in being forced to take out a $7,000 loan at an interest rate of 11 per cent per annum on the house they purchased, in being forced to pay rental of $110 per month while the mobile home sat empty, and exemplary damages of $10,000 against each defendant.
On December 18, 1978, the trial court heard oral arguments on plaintiffs’ motion for a preliminary injunction restraining defendants from taking any action to force plaintiffs to remove their mobile home from the park or to require defendants to allow plaintiffs to sell their mobile home on the site and to rent to the purchasers on the same terms as other occupants of the park. The court initially denied the motion but retained jurisdiction indicating it would reconsider the matter if plaintiffs could produce a specific purchaser rejected by defendants.
The court again heard oral arguments on plaintiffs’ renewed motion for a preliminary injunction on January 22, 1979. Plaintiffs’ counsel stated that plaintiffs had found a purchaser, but when they informed defendants of this fact, on January 8, 1979, defendants served them with an eviction notice. Plaintiffs’ motion was supported by affidavits from three persons who averred that defendants had told them that mobile homes over three years old, or over five years old, would have to be removed from the park upon resale. Plaintiffs also secured an affidavit from the prospective purchaser, Margaret Y. Hunt, averring that she had made a bona fide offer for plaintiffs’ mobile home on the site if the transaction could be closed within one week.
On January 31, 1979, the trial court issued an order providing that (1) plaintiffs be allowed to sell their mobile home on the site to the purchaser presented to the court, Margaret Hunt; and (2) defendants be permanently enjoined from interfering with or harassing said purchaser in the quiet enjoyment of her mobile home on the site in defendants’ mobile home park provided she maintains timely rental payments and follows all reasonable and lawful park rules. The court based its decision on equitable grounds, provisions banning unfair and deceptive practices in the Michigan Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq., and proposed Rule 2004(1) of the Mobile Home Commission Act, cited above.
The predominant issue in this case is whether the trial court was correct in issuing a permanent injunction requiring defendants to allow plaintiffs to sell their mobile home on the site and to refrain from harassing the purchaser in the quiet enjoyment of the premises.
Several prerequisites must be met before a trial court may grant injunctive relief. Initially, the fact that defendants’ conduct may constitute a crime is not sufficient to invoke equity jurisdiction; plaintiffs must allege injury to their property or person. Citizens For Pre-trial Justice v Goldfarb, 88 Mich App 519, 563; 278 NW2d 653 (1979). Secondly, it is well settled that "an injunction cannot be granted unless the party requesting it satisfies the court that he will otherwise suffer irreparable injury, Royal Oak School Dist v State Tenure Comm, 367 Mich 689, 693; 117 NW2d 181 (1962), and that he does not have an adequate remedy at law, Schantz v Ruehs, 348 Mich 680, 683; 83 NW2d 587 (1957)”. Van Buren Public School Dist v Wayne Circuit Judge, 61 Mich App 6, 16; 232 NW2d 278 (1975).
Although a preliminary injunction may more frequently be issued in such circumstances to preserve the status quo pending trial, a party requesting permanent injunction has a heavier burden of proof:
"Plaintiff has the burden of establishing a right to injunctive relief. He must prove by a preponderance of the evidence actual or threatened invasion of his rights as alleged. Proof of mere apprehension of injury is insufficient to justify granting injunctive relief. Bates v City of Hastings, 145 Mich 574. The cited case is also authority for the proposition that injunctive relief will not be granted merely on the theory that no material injury will result to the party enjoined.” Dutch Cookie Machine Co v Vande Vrede, 289 Mich 272, 280; 286 NW 612 (1939).
Plaintiffs have not shown a property interest in the mobile home site other than a month-to-month tenancy or tenancy at will. Even if defendants did violate the Mobile Home Commission Act by failing to offer plaintiffs a written lease, plaintiffs have an adequate remedy at law since they can sell their mobile home off the site and sue for damages. Plaintiffs would not have been guaranteed the right to assign or sublease the site even if they had entered into a written lease with defendants.
The next issue is whether the trial court properly granted the injunction pursuant to then proposed Rule 2004(1). Initially, we note that the rule had only been proposed at the time the lower court issued a permanent injunction in reliance on it. Under the Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101) et seq., a proposed rule may not become effective until at least 15 days following its promulgation. MCL 24.247; MSA 3.560(147). A rule may not be promulgated until after the Legislature adopts a concurrent resolution approving the rule. MCL 24.246; MSA 3.560(146). Because a proposed rule may be changed or may never be adopted, and because it does not have binding effect of law until approved and adopted by the Legislature, we disapprove of the trial court’s grant of a permanent injunction in reliance on proposed Rule 2004(1).
Next, we address defendants’ argument that the Mobile Home Commission exceeded the authority given it by the Legislature under the Mobile Home Commission Act in promulgating Rule 2004(1). In Chesapeake & Ohio R Co v Public Service Comm, 59 Mich App 88, 98-99; 228 NW2d 843 (1975), this Court stated the applicable test:
"Where an agency is empowered to make rules, courts employ a three-fold test to determine the validity of the rules it promulgates: (1) whether the rule is within the matter covered by the enabling statute; (2) if so, whether it complies with the underlying legislative intent; and (3) if it meets the first two requirements, when [sic] it is neither arbitrary nor capricious.”
Accord, Thomas Bros, Inc v Secretary of State, 90 Mich App 179, 186; 282 NW2d 273 (1979).
One of the principal purposes of the Mobile Home Commission Act was the creation of a commission to correct certain perceived abuses in the mobile home industry, which is reflected in the act’s purpose clause, to wit:
"AN ACT to create a mobile home commission; to prescribe its powers and duties and those of local governments; to provide for a mobile home code and the licensure, construction, operation, and management of mobile home parks, the licensure and regulation of retail sales dealers, warranties of mobile homes, and service practices of dealers; to provide for the titling of mobile homes; to prescribe the powers and duties of certain agencies and departments; to provide remedies and penalties; to repeal certain acts and parts of acts; and to provide for the expiration of the act.”
Under §4 of the act, MCL 125.1104; MSA 19.855(4), the commission is vested with the authority to promulgate rules to implement and administer the act. The sections which deal with abuses by park owners in leasing or selling sites are §§ 27 and 28, MCL 125.1127, 125.1128; MSA 19.855(27), 19.855(28). Section 27 generally makes it unlawful for mobile home park owners, among others, to employ a device, scheme, or artifice to defraud or make a material misrepreentation or omission in the sale or rental of a mobile home site. Section 28 proscribes certain specific abuses, notably:
"(a) Charging or exacting from a person, directly or indirectly, an entrance fee.
"(b) Requiring a person to purchase directly or indirectly a mobile home from any other person as a condition of entrance to, or lease or rental of, a mobile home park space.
"(c) Charging or exacting from a person, directly or indirectly, an exit fee, whether refundable or nonrefundable.
"(d) Requiring, coercing, or inducing a person to purchase, rent, or lease goods or services from another person as a condition for entering into a mobile home park or lease or upon leaving the mobile home park to sell a mobile home through the mobile home park owner or operator, or his agent or designee, or for the rental of space in a mobile home park.
"(e) Charging or exacting from a person, directly or indirectly, money or other thing of value for the provision or distribution of an electric or fuel service without the use of the service by a resident or tenant being first accurately and consistently measured in relation to the actual amount of the use by the resident or tenant unless the electric or fuel service is being included in the rental charge as an incident of tenancy.
"(f) Conspiring, combining, agreeing, or arranging with another person to employ, or aid or abet the employing of, any method, act, or practice which is in violation of this act.
"(g) Renting or leasing a mobile home or site in a mobile home park without offering a written lease.”
Rule 2004(1) is arguably within the general purpose of the act quoted supra, to correct certain abuses in the mobile home industry, satisfying the second prong of the test in Chesapeake, supra. Notwithstanding, we do not believe the rule is within the matter covered by the enabling statute under the first prong of the test. Nowhere in the statute does it appear that the Legislature intended mobile home owners to be given the absolute right to sell their mobile homes on the site or to dictate to park owners which tenants they must accept. Therefore, we hold Rule 2004(1) invalid and unenforceable. In light of our holding, we find it unnecessary to discuss defendants’ arguments that the rule resulted from an unconstitutional delegation of legislative power to the commission and a taking of defendants’ property without just compensation contrary to the Fifth and Fourteenth Amendments to the United States Constitution. (US Const Am V and XIV).
Defendants also argue that the trial court’s grant of permanent injunctive relief based on defendants’ alleged misrepresentations to plaintiffs was premature because disputed questions of fact remained to be decided. We agree. In effect, the court’s issuance of a permanent injunction operated as an order of summary judgment under GCR 1963, 117.2(3). It is well established that it is inappropriate for the trial court to decide disputed factual questions under the guise of an order of summary judgment. Tumbarella v The Kroger Co, 85 Mich App 482, 491-492; 271 NW2d 284 (1978).
In the case at bar, defendants denied misrepresenting that plaintiffs would be allowed to sell their mobile home on the site. Thus, it is incumbent on plaintiffs to prove by a preponderance of the evidence at trial that such misrepresentations were made and that they are entitled to relief under § 27 of the Mobile Home Commission Act, supra. Additionally, to be ultimately entitled to injunctive relief, plaintiffs must show that their remedy at law is inadequate.
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The Court
held the complaint not sufficient' to confer jurisdiction. The statute (§ 1667) provides that, whenever a complainant is required to state facts and circumstances for the information of the court or magistrate to whom the complaint is made, and the complainant shall be unable, of his own knowledge, to state sufficient facts and circumstances to authorize the issuing of a warrant, the court or magistrate may, after the making of such complaint, issue subpmnas for the attendance of witnesses to testify concerning such facts and circumstances. This language does not authorize the making of a complaint in general form, and the issuing thereupon of subpoenas to compel witnesses to testify to facts and circumstances which are not indicated by the complaint, but which may be suspected to be within the knowledge of the witnesses. The statute requires that the facts and circumstances shall be set forth in the conqilaint, whether the complainant can substantiate them by his oath or not. If he cannot, subpoena may be issued to compel the attendance of witnesses to testify concerning such facts and circumstances as are thus set forth. | [
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By the Court.
When a case made after judgment has been settled and filed, in the Circuit Court, either party has the right to cause if to be certified to this Court for our action; and it must be brought here before any motion can be made in this Court upon it. We cannot dismiss a case from the Court which was never in it.
Motion denied. | [
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Cheistiancy J.:
This case comes to this Court on exceptions, after verdict and before judgment, in pursuance of chapter 166 Revised Statutes of 1846 (Comp. Laws, chap. 197).
The information is based upon § 5771 Comp. Laws, and charges the defendant with having embezzled the moneys of the State while State Treasurer.
Exceptions were taken to the ruling of the Circuit Judge upon the admission of evidence, and to his charge to the jury. The jury returned a verdict of guilty.
A motion was made in arrest of judgment, on the ground that, for the several reasons urged, the information was insufficient to warrant a, conviction, or to sustain a judgment against the prisoner. This motion was overruled by the Court; the defendant excepted, and the motion, the decision upon it, and the exceptions to that decision, are incorporated in the exceptions. All further proceedings were stayed in the Court below to await the decision of this Court.
If is insisted by the Attorney General that the questions involved in the motion in arrest of judgment, relating, as they do, to the information, or the record proper, can not be raised in this Court, upon the present form of proceeding, but only upon writ of error after judgment.
We see no ground for this objection. The whole record is certified to us, and required to be certified in this case substantially in the same manner as upon the return to a writ of error: it is therefore judicially before us, as well in the one case as the other, so far, at least, as to enable us to pass upon all questions raised by the exceptions, which is as far as necessary to go to dispose of all the questions raised upon the motion in this case. And it would seem from the decisions in Massachusetts, (from whose statute this chapter of ours is copied) that a motion in arrest of judgment is treated as a proper subject of exceptions under this statute: — Commonwealth v. Dougherty, 6 Gray, 349; Commonwealth v. Sullivan, Ibid. 477; Commonwealth v. Cummings, Ibid. 487; Commonwealth v. Smart, Ibid. 15.
But in the present case it is unnecessary to decide whether any question, not otherwise a proper one for exceptions, can be made so by a motion in arrest, and exceptions to the decision upon the motion: as we are all of opinion that the sufficiency of the information would necessarily have arisen had no motion in arrest been made. Exceptions are presented here upon the admission of evidence and the. charge of the' Court. Without referrence to the information, to see the nature of the offense charged, we could not understand, or pass upon, the exceptions. If the information upon examination be found to charge no criminal offense, or to be so defective in matter of substance as to warrant no conviction, or judgment against the prisoner, under any evidence or charge which might have been given, then no evidence could properly have' been received, and it would be worse than idle for us to determine whether any particular evidence was properly admitted, ’or any particular charge wrongly given. No such question could then be properly involved in the case, and all we might say upon it would be extra judicial. Again, by the statute, Comp. Laws, chap. 19Í, §6, we are to “give directions as to a new trial, or such other proceedings as right and justice shall require.” For this purpose we must look to the information, to see whether it is sufficient to warrant the conviction, or any further proceedings; if not, a new trial would be a farce.
We must therefore inquire into the sufficiency of the information. It is claimed to be insufficient on four distinct grounds.
1st. That the State Treasurer is not included in § 5111 Compiled Laws, upon which the information is founded.
2nd. That the money claimed to have been embezzled is not charged to have been in the State Treasury at the time of its alleged embezzlement.
3d. That the embezzlement is not charged to have been committed in the State Treasury; and,
4th. That the information charges no offense within the section alluded to, or any law of this State.
All these points depend upon the construction of the statute in question; for it is not claimed that the information makes a case under any other statute. The language of the statute is, “If any officer, clerk or other person employed in the Treasury of this State, or in the treasury of any county, or in any other public office within this State, shall commit any fraud or embezzlement therein, he shall be punished,” &c.
The counsel for the defendant has urged, with great ability and ingenuity, that this statute was not intended to include the State Treasurer himself- — -that he, being a public, constitutional officer, the head of a department, the only security contemplated against his official misconduct is his official bond, and his only restraints a high sense of honor, liability to impeachment and removal from office; that it is unprecedented to render heads of departments liable to indictment for malversation in office — that in the phrase, “ employed in the Treasury of this State,” the term “ employed,” implies an employer, and must be understood in the sense of “procured to render service, as a master employs a servant,” — that, in this sense, it accords with the idea of embezzlement in other cases, which always supposes a relation of trust and confidence, as in the case of clerks and servants; and that it must therefore be understood here as applying only to subordinates in the office, employed by the Treasurer — that though the words are “ officer, clerk or other person employed,” the term officer' is satisfied by the Deputy Treasurer, who is appointed by the Treasurer, and an officer authorized by the statute.
This argument is not without plausibility; but we do not think it will stand the test of a careful examination.
That the dictates of honor, a regard for reputation, the hazard of incurring public scorn and reprobation by impeachment, and a liability upon his official bond, would be a sufficient restraint upon a man who has been elevated to an honorable position of public trust, might to the moralist in his closet seem a well founded theory. But unfortunately it is a theory ^yMch Ras too often been found to yield to the force of temptation, here and elsewhere, to admit of universal application. It pre - supposes that none will be elevated to office who do not prefer an unspotted reputation to ill-gotten gains; for official bonds are apt to prove as unproductive as official oaths. And, however experience may have warranted, its application to other officers, such is the tendency of the public funds to create an “ itching palm” that this theory can- not with safety be applied to those officers who are entrusted with their custody and control. Such at least would seem to be the lesson taught by experience or suspicion, in at least six States of the Union; in each of which their statutes have very clearly rendered the State Treasurer himself, as well as other public officers, criminally liable by indictment, for embezzling the public funds. See the statutes of Pennsylvania, New Jersey, Mississippi, Texas, Wisconsin and Iowa, collected in note to Arch. Cr. Pl. by Waterman, 446, 447, &c. And doubtless the same will be found true of other States.
We do not think the term “employed,” as used id our statute, can be restricted to the narrow sense contended for by defendant’s counsel. It is true such is the sense in-which it has been quite generally used in reference to embezzlement; but this we think has so happened, mainly because this crime always pre-supposes the offender to have come rightfully into the possession of the money oi' property, by reason of some position of trust and confidence; which is the principal feature distinguishing this offense from that of larceny. And the crime has been more frequently and generally provided for as to clerks, agents and servants, than as to public officers; and, as the former are so much more numerous, the offense has been more frequently committed by them. But the Statue Treasurer also occupies a position of trust and confidence, the only difference in this respect being that one is entrusted, confided in and employed, by a private person, or some officer or officers, the other by the public, by election or-appointment.
The primary signification of the word “employ,” is not that for which the defendant’s counsel contends; the- primary meaning, as given by Webster, is “to occupy tbe time, attention and labor of; to keep busy or at work,” ¿so., the sense which would here include the Treasurer. The sense claimed by defendant’s counsel is the fourth .given by Webster; “to engage one’s services.”
But little force, however, can be given to an argument drawn from the primary or secondary meaning as given by lexicographers. The only question is, what is the sense in which it is used in this statute? — and this is to be determined from the context, and the apparent object of the provision, as indicated by the nature of the case and other statutes in pari materia. As to the object — the mischief to be guarded against — we can see no satisfactory reason why the Treasurer himself, who has entire control of the funds, and therefore better opportunities and greater temptations to peculation, should not be held liable as well as the subordinates appointed and removable by him, and whose opportunities and temptation are less.
A history of the origin of this section, and the various phases through which it passed in the legislation of the State, till it assumed its present form, will, we think, satisfactorily sho.w that the Treasurer was intended to be included. Its origin in this State (substantially copied from the Revised Statutes of Massachusetts) will be found in our Revision of 1838, p. 630, §26 : “If any clerk or other person employed in the Treasury of this State.” Here the word “officer” does not appear, nor does the section include the clause, “ or in the treasury of any county, or in any other public office within this State.”
But the Legislature of 1839 do not appear to have been satisfied with this provision, and, by amendment, added to a subsequent chapter, “That any public officer of this State (who) shall receive or be entrusted with the money or funds of the State, to be kept or disbursed for or on account of the State, and who shall expend or pay out such money or funds in any other manner, or for any other purpose, than is or may be provided by law,” &c., “shali be deemed guilty of a misdemeanor, and for each offense be punished,” &c. : haws of 1839, p. 233. This section certainly includes the State Treasurer. No deputy State Treasurer was authorized until the session of 1840..
Thus stood the law until the Revision of 1846. This Revision consisted mainly of a revision and consolidation of then existing laws. We have seen that the section now in question, in its original form in the Revision of 1838, was, “if any clerk or other person employed in the Treasury of this State:” the law of 1839 applied to “ every public officer of this State who shall receive or be entrusted with, the money or funds of the State, to be kept or disbursed for or on account of the State.” In the Revision of 1846, this section does not appear as an independent provision, nor does the original section cited from the Revision of 1838 appear in' its original form; but, in its. place, we find the section in a new and amended form, the word “ officer ” for the first time appearing before the word “ clerk,” and the whole provision extended to “ any officer, clerk or other person employed in the Treasury of any county or in any other public office^ within this. State.” We think this furnishes a strong and satisfactory inference of an intention to combine, in this section, substantially the effect of the original section in the Revision of 1838, and the amendment by the act 'of 1839, so far at least as to the- persons intended to be included in. its provisions. We are therefore entirely satisfied the State Treasurer is an “officer” included within this section in its present form.
We must therefore examine the other objections to the information.
To constitute the offense under this section, it is undoubtedly necessary, not only that the embezzlement should be committed by an “officer employed in the Treasury,” but it must appear that the offense was committed “ therein,” that is, in the Treasury — for this is an essential characteristic of the statute description of the offense.
Before examining the several counts of the information, it will be proper to determine the sense in which the term “Treasury” is here used. It is insisted by defendant’s counsel that it is to be understood merely in the sense of locality, as descriptive of the particular building (in this case the argument would confine it to the particular room, as there is no treasury building) within the walls of which the Treasurer keeps his principal office, or place of official business, at Lansing, and where the public moneys are kept (though we do not readily see why the Treasurer may not keep such 'office in one building and the money in another). The Court below seems to have understood the term in the sense in which it was evidently used in the old and the new Constitution: “ No money shall be drawn from the Treasury but in consequence of appropriations made by law” — “No money shall be drawn from the Treaswry for the benefit of any religious society;” and in the statute requiring the Treasurer to make an, “ annual report of the balance in the Treaswry to the credit of the State:” — Comp. I. §161: “the fiscal year of the Treasury:” — Ibid. §163. “No moneys shall be paid out of the State Treaswry except upon the warrant of the Auditor General:” Ibid. §171; “charging the Treasurer the balance in the Treasury,” &c.: Ibid. §172. In all these cases the “money” and the “balance to the credit of the State” are manifestly regarded as being “in the Treasury” whenever and wherever it is in the official custody, or subject to the official control, of the State Treasurer in behalf of the State.
Let us see which is the more reasonable interpretation. That the Legislature intended this provision as a check to the rapacity of the “officers and clerks” who might be entrusted with the receipt, custody' and disbursement of the public moneys, can not be doubted; and if the law required all the public moneys to be at all times kept in the room or building known as the Treasurer’s office, and did not allow him to place it elsewhere, or to have it in his possession, or that of his deputy or clerks, or under his official control, at any other place, there might be strong reason for the interpretation claimed by the defendant’s counsel. But our laws do not require this. "We know of nothing to prevent his receiving public moneys due to the State, if he choose to do so, at any place where he may happen to be ;• and he may certainly do so as to the sums received on loans made by the State, on the disposal of the stocks or bonds. He may take or send by his deputy, or a clerk (or transmit by draft) any amount of these funds where they may be required to be paid to the public creditors. He may place a portion of the funds in bank in such place as in his opinion the public interest or the convenience of disbursement may require. But in all these cases the money is just as much under his official control (and therefore as clearly in the Treasury), and just as liable to be embezzled by him, or his deputy or clerks who may be entrusted with its conveyance to or from the Treasury, as if it were in the Treasurer’s office at Lansing; and we can see no reason why the temptation would not be at least equally strong. Can it be supposed the Legislature intended less carefully to guard it in such cases than when within the walls of the Treasurer’s office? Clerks may often be entrusted with the reception of money out of the office, or with its conveyance to and from it. Did the Legislature intend to leave them at liberty to embezzzle it in such cases with perfect impunity, and to punish them only for embezzling it when within the walls, where they will have less opportunity and are more exposed to detection? For clerks are not included at all in the next section, nor punishable at all unless under this section.The next section (28 of the chapter) Comp. L. §5772, applies only to officers and agents of the State, who shall refuse to deliver to their, successors in office moneys, bocks, papers, <&c., and punishes the offense by imprisonment not more than five years, or fine not exceeding fire hundred dollars. Doubtless a State Treasurer might be prosecuted under this section after the expiration of his term, or his removal from office; but the punishment is less than one-half of that imposed under' the previous section, §5771, which is imprisonment not more than fourteen years, or fine not exceeding two thousand dollars. If the interpretation claimed by the defendant be correct, this section § 5771 will become the most inviolable of any provision to be found in, our criminal statutes; for no Treasurer or deputy, however intent upon public plunder, will be likely to incur the risk of fourteen years in the State prison, and two thousand dollars fine, by embezzling the funds inside the building, when he can always have a better opportunity to perform the same financial operation outside, by incurring only the risk of about one - third of the punishment — and if a clerk, no punishment whatever.
We think the Circuit Judge was clearly right in his views of what was intended by “ the Treasury” in this section, and that it was not intended to describe any particular place or locality; that, within the- meaning of this section, money is “in the Treasury” whenever and wherever it is in the official custody of the Treasurer, or qubject to his direction and control: and if he embezzle it while so in his official custody, or subject to his official control, it is an embezzlement in the Treasury. And a charge in an information of embezzling the moneys of the State, while in such official custody or control, is a charge of embezzling it in the Treasury. It -would savor too much of verbal nicety to require a strict literal adherence to the very words of the statute (except perhaps in the use of words and phrases which have acquired a specific or technical meaning, and w'hich of themselves express the very gist of the offense, as the word ravished in rape).
Nor do we think it necessary, under this statute, to charge expressly that the money was, by the defendant, “received” into the Treasury. It is sufficient if it show that the money was at the time in the Treasury, or- in the official custody or control of the Treasurer, and the property of the State, without showing how it got there.
In view of these considerations, we are of opinion that the second, third, fifth and sixth counts of the information are sufficient, in the several respects mentioned. The other counts are more doubtful, and, for myself, I am inclined to think the first, fourth, seventh and eighth counts defective, in not showing, with sufficient certainty, that the embezzlement was committed while the money was in the official custody or control of the defendant; though its receipt by him into the Treasury is clearly averred.
But it is unnecessary to enter into a critical examination of the latter named counts; since the good counts are sufficient to sustain the verdict, and the judgment may be given upon them: — People v. Shannon, 5 Mich. 71.
The only objection urged under the fourth point, and not already disposed of, is that the information is fatally defective, in not specifying with certainty the particular kind of funds, whether gold, silver or, bills; or, if it was competent at all to dispense with this specification, then, at least, the sums charged to have been embezzled should have been identified by specifying the source from which they were received, so that it might at least be known whether the prosecution was for sums the receipt of which had not been credited, or others which had been credited and afterwards embezzled.
If it was necessary to allege either of these facts, it must be equally necessai-yto prove it, as nothing is required to be alleged which is not required to be proved: Comp.. L. § 6054. If, therefore, it was necessary for the information to identify the particular money embezzled, by showing the kind of funds, or from whom received, it must be because no conviction could be had under this statute without establishing such identity by the proof. The very able argument of the defendant’s counsel upon the necessity of specifying the kind of funds, rests mainly upon the ground that, under statutes in reference to embezzlement by clerks, agents and servants of private parties, this particularity was held to be necessary, until statutes were passed dispensing with it; and that the only provisions of our statutes on this subject, are § 5945 Compiled Laws, which is confined to clerks, agents and servants, and §6061, which applies only to the crimes of robbery and larceny.
"We do not think this case falls within either of these dispensing provisions; but, on the other hand, we do not think it falls within that class of cases with reference to which they were held to be necessary. In the case of clerks, agents and servants of private parties, there" is always a principal capable of scrutinizing the acts -of those in his service, and whose private interest prompts him to vigilance, _ who has at all times power to direct and control the kind of funds to be received, and to, change this direction at pleasure; and the custody or management which those in his service may have of his money or property is, in general, but momentary, or for a short interval, to be handed over to the principal from day to day or other short periods, or whenever he may choose to resume or assume its custody or management. The acts of such servant or clerk are generally performed under the direct supervision or control of the principal, who therefore has, or may at any time have,, full and accurate knowledge of the character of the particular sums, and from whom received, and possesses facilities for tracing out the facts while transpiring or recent.
But these considerations do not apply to the State Trear surer; he has by law the entire custody and management of the public money, and may receive such description of funds as he chooses, being always accountable for cash; the public at large can exercise no control or constant sujiervision over Mm, nor assume the direct custody of the funds; nor is any other officer or officers authorized to assume it, or to direct the funds to be received. Within, the sphere of his legal duties the Treasurer is independent of all other officers and of the public; and, though bound to account to the Auditor General and to the Legislature, he is not required to state the kinds of funds received, or in his hands: these are constantly varying; large sums being often represented by drafts or bills of exchange, others by credits in bank, «fee. And should he at any time embezzle or convert to his own use any of the public funds, it would, as a general rule, be wholly impracticable to trace or identify the particular pieces of money or bills, or to determine whether the sums embezzled were in the one shape or the other, or both; and it would be equally Impracticable to show that any particular sum embezzled Was the same money or funds received from any specified source or person; for, though the amounts might correspond, this would by no means establish their identity. And if the kind of funds received by the Treasurer in any particular instance, whether credited upon' the books or not, could be identified as received from a particular source, the fact that this was not found in the Treasury at any subsequent time, would not prove that the same money had. been embezzled; as this might have been honestly paid out to public creditors, and an equal amount embezzled in other species of funds, or those received from a different source.
We can not therefore suppose the Legislature intended to require proof of the identity of the money embezzled by the Treasurer, or of the kind of funds of which it consisted, or of the particular source from which it was received, without supposing they intended to render the provision they were enacting a dead letter. Such a supposition is inadmissible in reference to such a provision. The statute must receive a more reasonable and practical interpretation, and one -which shall be consistent with its manifest purpose. This statute (unlike many others on the subject of embezzlement) does not speak of the receipt of the money. It makes no distinction between embezzlement of sums which have been duly credited on the books of the Treasury, and those which have not; nor can we perceive any reason why such distinction should have been made. Had it made such, it must, as already shown, have nullified the provision by the impracticability of the proof. The offense created by the statute is the committing of any embezzlement in the Treasury, not the neglecting or refusing to account; the latter fact is mere evidence from which the former is inferred. The . information sets forth the offense which .the statute creates, and with as much particularity as the nature of the case fairly admits. I can not think it necessary to set out mere matter of evidence. We must therefore hold the information sufficient.
It is further objected, that the Circuit Court overruled a motion for an order requiring the prosecution to furnish a bill of particulars, under the general charges contained in the information.
Doubtless a general indictment for embezzlement is a -very proper case for enforcing a call for. such particulars. But the granting of an order for such particulars has, I think, generally been regarded as a matter resting in the sound discretion of the Court, depending entirely upon -fhe nature of each particular case as it appears to the Court before whom the trial is had, and its refusal therefore not assignable as error.
The order should never be refused where the Court can see any reason to believe such particulars necessary to-inform the defendant of the particular transactions, or instances of embezzlement, intended to be proved against him, so as to enable him to meet them. And it is possible — though upon this I express no opinion — that there might be cases where the refusal of an order might amount to so gross an abuse of discretion as to require us to recognize it as ground of error.
B.ut no such abuse appears here; the prosecution was by information; no information could be filed without a previous examination for the offense before an examining magistrate (unless waived by the defendant) : Laws of 1859, p. 393, § 8. This examination was required to be taken, m writing and to be forthwith certified and returned to the clerk of the Circuit Court where the cause was to be tried: — Comp. L. §§ 5992 and 6001. Upon the order for particulars being moved for, the bill of exceptions states, “it appearing to the Court that a preliminary examination had been had, and the Attorney General having stated that he should confine himself to the same charges as in such examination, the motion was overruled.” Now it would seem to be a fair inference from this language that the preliminary examination on file in the Court, was inspected by the Judge — that the examination showed the particular facts and transactions, sums claimed to be embezzled, &c., upon which the examination was had, as it naturally, if not necessarily, would. And the statement of the Attorney General, that he should confine himself to the same charges, was to be, and was understood as a statement that he should confine himself to the same items of receipt and embezzlement to which the preliminary examination related. ‘This examination being in Court, must therefore. have given, by reference, substantially the same -information that could have been given by a bill of particulars; for, of course, it would he the duty of the Court to hold the Attorney General ,to his statement; the examination could be referred to for this purpose, and there is no complaint that the Attorney General went beyond the facts in reference to which the examination was had.
The particulars called for, if furnished, would not have -constituted strictly a part of the information, nor any part •of the record proper; it would not have constituted the charges upon which the defendant was to be tried, as the-defendant’s counsel seem to suppose. Its only purpose and effect are to inform the defendant of the nature of the evidence and the particular transactions intended to be proved under the information, and to limit that evidence to the-items and transactions stated in the particulars. The defendant was to be tried upon the information, and the verdict must be “ guilty” or “ not guilty, in manner and form as. charged in the information,” not “in manner and form as charged in said information and MU of particulars?
If given, the bill of particulars would no more constitute a part of the record proper than the statement of the Attorney General, and the examination to which it referred. Any of these might be made a part of the record by a bill of exceptions; none of them was a part of the record without it»
It was as easy to discover from the preliminary examination, whether the information was intended to charge . a distinct offense in each count, as it would have been from the particulars called for. And in point of law there is no objection to charging several distinct offenses of the same nature, whether felonies or misdemeanors, in the same indictment. It is only upon the principle of the joinder of different offenses that several counts are allowed at all; though it is true several counts are generally inserted for the purpose of meeting the different phases of evidence of the same, or substantially the same, transaction. In many,, perhaps most cases, it can not be certainly known from the face of the indictment alone whether the several counts refer to entirely distinct transactions, and are intended to charge separate and distinct offenses, or not. In such cases this point is only rendered certain by the statement or opening of the prosecuting counsel, or from the particulars where such are furnished, or by the evidence in the progress of the-trial. But even when it appears clearly in any way that entirely distinct offenses are intended to be charged and proved, it is no objection in point of law; neither ground for demurrer nor in arrest of judgment; and the only way in which the objection can be rendered available is by motion to quash, before defendant has pleaded, or at least before the jury are sworn, or by calling upon the prosecution to elect in the subsequent proceedings in the cause:— 1 Chitty's Cr. Law, 248, 249 and 253, and authorities cited; Roscoe's Cr. Ev. 231 to 234, and cases cited.
As a general rule, in cases of felony, when it clearly appears, from the indictment or otherwise, that several entirely distinct felonies are intended to be charged and proved, the Court will, in its discretion, either quash or compel the prosecutor to elect: and the same course is sometimes taken in misdemeanors where several offenses in no way connected are charged. But there is nothing technical in the rule; and in the exercise of this discretion the Court will not be governed simply by the question whether several different offenses in point of law are charged and intended to be proved; but mainly, as a general rule, by the consideration whether the trial of these several offenses would involve the proof of substantially different transactions, and thereby tend to confuse'the defendant in his defense, or deprive him of any substantial right. And therefore where the several offenses charged, though distinct in point of law, yet spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction, or connected series of facts, the defendant can not be prejudiced in his defense by the joinder, and the Court will neither quash nor compel an election. Such would seem to be the principle of the general rule to be deduced from the cases. See cases cited, 1 Chitty’s Cr. Law, 253 and 254. and notes; Roscoe’s Cr. Ev. 231, 232 arid 233.
In the present case the information charges apparently several offenses of the same kind; and if the evidence related to several substantially different and distinct trans actions, it would have been a proper case for putting the prosecutor to his election. But from the bill of exceptions the evidence seems to show that all the charges grow out of, and relate to substantially the same transaction, and to make parts of one connected series of acts, and that it would be difficult to prove pne of these charges without involving most if not all the evidence necessary to support the others. The arrangement with the Detroit and Milwaukee Railway Company, the reception of the money and the failure to account for the same — these constitute equally the basis of all the charges except ' the single small item received from the Michigan Insurance Bank; as between this and the other items of proof, perhaps the prosecutor might have been properly put to his election if requested. But I think it very questionable at least whether the prosecutor ought to have been compelled to elect as between any of the sums received from the Railway Company, had the Court been called upon for that purpose. But the Court was not called upon to order an election, and no such question arises.
It is also objected that the Court erred in admitting in evidence certain account books, proved to have been kept in the office of the defendant during his whole official term, and purporting to show all the receipts and disbursements of cash in said office during such official term, and from which it appeared that certain large sums, claimed to be embezzled, had not been credited to the State. It appeared from the evidence that no part of the books was in the hand writing of the defendant, but that they were kept by the witness, as his deputy, and by other clerks'in the office. These books were objected to, on the ground that it did not appear they were kept by defendant in person.
We do not think this objection can be sustained. • It was the official duty of the Treasurer to' keep such accounts in his office; he might either make the entries himself or by his deputy or clerk; but in either case they were his •official acts; and if made by others for him, it was as much his duty to see that they were properly made, and the accounts correctly kept, as if all the entries had been, made by himself. Of course the books would not be conclusive against the defendant; but the question is upon their competency. We think they were clearly competent; and if it appeared by the evidence that any particular sum which oug-ht to have been credited to the State had not been so credited on the books, it was competent for the defendant to show that it was the error of the deputy or clerk, or that he had directed the entry and the clerk or deputy had. neglected it, or any other fact which would show that the omission was not intentional on the part of the defendant, or for a corrupt or criminal purpose.
A similar objection was made to the admission in evidence of the printed reports (in pamphlet form) purporting to be the annual reports of the State Treasurer for the years 1859 and 1860 (the two years of defendant’s official term), and to be published by authority, and printed by the State printer, and purporting to contain a statement of all the receipts and disbursements for each of said fiscal years; which reports were proved to have been made and published by direction of the defendant from the books of his office: from which reports it appeared that certain sums claimed by the prosecution to have been embezzled by him, had not been charged to the Treasurer (the defendant), and the same report for the year 1860, as printed and bound in the Session Laws of 1861, was also offered, objected to and admitted.
We think the objection to those printed reports quite as unfounded as that made to the books of account.
It was the official duty of the Treasurer to make these annual reports, and to cause them to be printed not only with the laws of the session of 1861 — Comp. L. § 161 — but also to have the same printed as soon as practicable after the close of the fiscal year (December 1st) and ready to be submitted to the Legislature: — Comp. L. §288 (this covers the case of the reports in pamphlet first offered), and to examine and correct the proof sheets: — Ibid. §289. See also §§ 290 and 291.
So far as the question of competency is involved, all these printed reports were as much original official documents as the manuscripts from which they were printed would have been under the signature of the defendant. If there was any mistake in the .printing it was competent for the defendant to show it, or any other proper matter of explanation or exculpation.
We now come to the exceptions to the charge. The first point of the charge excepted to relates only to the question whether the Treasurer is included in the section upon which the information is based, and has been disposed of in considering the sufficiency of the information.
The second point of the charge excepted to is, that “it was not necessary that the entire tax of the Detroit and Milwaukee Railway Company should be paid into the Treasury before any part of it could be regarded as paid into the Treasury: but that the payment of each installment as agreed upon by the Treasurer and the Railway Company Would be payment, to the extent of such installment, into the Treasury.”
All the testimony stated in the bill, so far as it bears upon the question (and upon this there seems to have been no conflict), shows that by the arrangement with the Railway Company, the Treasurer, in June, before the tax became due, received of the company six drafts drawn by the Secretary of the Company upon their Receiver, and accepted by him, payable at the MetrojJolitan Bank, in the city of New York, respectively on the first days of August, September, October, November and December, and on the twenty-fifth day of December, 1860 — all after the tax became due. The defendant, as State Treasurer, endorsed these drafts in June, 1860, had them discounted at the Artisans Bank in the city of New York (where he had a large amount deposited as State Treasurer), and the amount placed to his credit in his official character. The drafts were paid as they respectively matured. Now it is doubtless true that, the reception of these drafts did not amount to payment; nor did the discounting of the drafts and the placing of the amount to the credit of the State Treasurer in bank. The drafts as they became due might fail to be paid: if not paid, they would be charged back to him on his bank account as they respectively became due and were dishonored; until payment therefore the amount of each draft was subject to this contingency. But as' each of the drafts was successively paid, the amount so paid ceased to - be. subject to any contingency, became an absolute credit to him in bank as State Treasurer, and operated as a payment of so much into the Treasury, precisely as if the same amount of money had been paid by the Railway Company directly into the hands of the Treasurer. And it will hardly be contended that such direct payment in several ¡portions or installments would not be good, if the Treasurer saw fit so to receive it, merely because tbe whole had not been paid at once and a receipt given.
It is undoubtedly true that the State was not bound by this arrangement, until, or any further than, actual pay-, ments were made. But whether the State had or had not the power to repudiate the whole transaction after payment was actually made, is a question we do not think it necessary to decide. We are satisfied they were not bound to repudiate it; and there certainly is no evidence that they did: and we think it quite clear th.e Treasurer himself could not repudiate it after thus receiving payments* at least to the extent of the payments so made. The money had been obtained by him on the faith of his official character, and in the right of the State: he had no pretence of right — nor does it appear that he made any — to demand or receive it otherwise: it was placed to. his credit as Treasurer, and therefore to the credit of the State, in hank. After having thus obtained the money by virtue of his office, and placed it to the credit of the State, there is no ground for the pretence that he obtained or held it as the agent of the company.
It is further objected to this portion of the charge, that it assumes to decide what the agreement was between the Treasurer and the Railway Company in respect to the mode of payment: whereas that questio.n belonged to the jury. We do not think the charge is fairly open to this objection. The whole charge does not purport to be given, and the merely incidental manner in which the agreement is here alluded to will not authorize us to infer that the question, what the agreement was, had not been left to the jury, or was intended or understood to be taken from them. The evidence tending to show what the agreement was, so far as the exceptions show, was wholly uncontradicted. If the defendant was not satisfied with the mode in which this agreement was thus incidentally alluded to, he should have called the attention of the Court specifically to the point by a request to charge, so as to give the Court a chance to correct it, since the imperfection, if any, was such as would be likely to escape the attention of the Court upon a general exception. But we think the fair understanding of the charge in this respect, is that if the jury should find payment had been made, as the evidence tended to show had been thus agreed upon, the payment of each installment would, in law, constitute a payment to that extent into the Treasury.
The third point or paragraph of the charge excepted to, is in these words: “ That the embezzlement must have been in the county of Ingham. If the proper charge to the Treasurer of the money received would have been made in this county, and that charge was not made, it would be evidence of embezzlement in this county. A denial in that county (Ingham) by the Treasurer of the receipt of the money, would be evidence of embezzlement in that county.”
It is quite manifest, we think, that the Judge was not here attempting to define the offense of embezzlement, nor to enumerate all the elements necessary to constitute it: but that this portion of the charge relates entirely to the question of the venue of the offense, and what facts it was competent for the jury to consider in connection with that point. And we must not lose sight of the fact' that the bill purports to set out but a part of the charge, and does not purport to set out all the evidence. It would therefore be unreasonable to infer that the Judge had omitted the plain duty of defining the offense, and the elements necessary to constitute it, simply because this, portion of the charge relating to the evidence of venue does not contain such definition and enumeration. The more natural inference is, that this duty had been performed, and in a manner satisfactory to the defendant’s counsel; as' no exception is taken on that ground, but to the charge in reference to the evidence bearing upon the question of venue. We are not therefore satisfied that this portion of the charge ought to be, or was, understood as saying to the jury that the failure to account would, of itself, constitute the embezzlement, or that it would alone be conclusive, or even sufficient to establish that fact; but rather, I think, that it would be evidence which they might consider, with any other evidence in the cause tending to establish that fact; and in this view the charge was entirely unobjectionable: and upon the question of venue I concur entirely with the views expressed by my brother Campbell. A refusal to account necessarily involves an omission as one of its elements; the omission is therefore competent, though other facts may be required to make it equivalent to a refusal.
But the Judge, after mentioning the failure or omission as evidence, immediately adds: “ A denial in this county by the Treasurer of the receipt of tlie money, would be evidence of embezzlement in this county.” This last clause or proposition would, I think, be entirely unexceptionable in any view of the charge, and whether considered alone or in connection with the preceding; since it, would as clearly show a criminal intent as the most direct refusal to account. Nothing appearing to the contrary, we must presume there was evidence in the case to which the last' proposition related — evidence tending to show a denial in that county of the receipt of the money. Every part of the charge must be presumed to be correct, and to be warranted by the evidence, so far as the bill does not show' the contrary: — 2 Phil. Ev. by Cowen, Hill & Edwards, 1003 and 1004 and cases cited.
What the Judge may have told the jury would be evidence of embezzlement, or would tend to show it to have been committed in that county,, we have no means of knowing. But where a Judge enumerates several facts, and informs the jury that each would be evidence of a certain other fact, it would seem to be a fair inference that he intended the jury to consider such several facts together, and not each independent of the others; much less, that each would, by itself, be sufficient proof — unless the language will admit of no other reasonable construction; because the charge must be understood by the jury as having reference to the collective evidence upon those points in the case before them, and to the combined effect of all. We think it therefore reasonable to conclude, that both clauses or propositions of the charge were intended to be considered together, and not independently of each other, and that they were so understood by the jury. Thus understood the charge would, we think, be clearly right, and sustained by the uniform current of authorities, whether he meant to say it would be sufficient, or only competent, to show the embezzlement in that county.
But had the charge expressly made the failure to account in this case equivalent to a refusal or willful failure to account, and therefore sufficient proof of embezzlement (which .1 think it did not), I am by no means satisfied the charge would have been erroneous; for it must have then been understood to apply to the failures which the evidence in the case tended to show; and upon these there does not appear to have been any conflict. The statute defining the duties of the Treasurer required him to exhibit to the Auditor General, monthly, a true account of his receipts, and to make an annual report of such receipts to the Legislature: — Comp. X. §§160 and 161. He is sworn faithfully to perform the duties of his office. Four several payments of four thousand dollars each had been made to him, at the interval of as many successive months, before his annual report was made; and yet it appears clearly that not one of these payments had been credited to the State, or charged to himself on the books of the, Treasury; it was his duty to enter each as it was made; yet no attempt appears to have been made to explain this omission. The reason why a mere failure to account is not generally sufficient evidence of the act of embezzlement, is because it may have occurred through mistake and without a fraudulent intent. A single payment might have been omitted by mistake — perhaps two in succession, if the sums were insignificant; hardly four of four thousand dollars each, on as many different months, and all from the same source. Mistakes do not occur upon system; and it may well be doubted whether these repeated and systematic failures should not be considered in the same light as a refusal or willful failure to account. I am inclined to think they should be so considered, as equally tending- to show a criminal intent. Hence in whatever light the chai’ge was understood, I can not think the jury could have been misled to the prejudice of the defendant.
But it is further objected to the whole of this charge on the subject of venue, that proof of a refusal to account, or a denial of the receipt, in the county where the trial is had, is not sufficient to prove the offense in that county, when the proof shows that the embezzlement, if any, must have taken place elsewhere. This may be true, but we do not see how this objection applies to the present case. No such evidence appears in the case as stated, nor any thing from which the jury could have drawn such an inference. Had there been such proof, as the burden of showing error rested upon the defendant, it would doubtless have been stated in the bill.
The fourth and last paragraph of the charge excepted to relates partly to the venue of the offense, and partly to what constitutes the State Treasury. So far as it relates to the first (with the exception of a single consideration which will be presently noticed) it has been sufficiently considered under the preceding paragraph relating to the same subject. So far as it relates to the second — the Treasury— the objection has been fully answered in considering the sufficiency of the information.
But one consideration in reference to venue was strongly urged upon the argument as conclusive against the correctness of this fourth point in the charge. This portion of the charge assumes that it was not necessary the money should have been in the county of Ingham, to warrant the jury in finding that defendant embezzled it in that county. “ How,” (the counsel asks) “ could the money have been embezzled in that county if it was not there at the time?” We have already shown that, under this statute, money is properly regarded as being in the Treasury whenever and wherever it is in the official custody or under the official control and direction of the State Treasurer, for the use of-the State. Any act or series of acts on his part, by which the money should be taken or abstracted from the Treasury, or diverted from the use of the State, with intent to apply or appropriate it to his own use or benefit, would constitute embezzlement. The whole force of this objection, therefore, rests upon the assumption, that the Treasurer could perform no act by which the money could be thus abstracted or converted to his own use or benefit, unless at the time of the act he were personally present where the money happened to be. This assumption is so manifestly unfounded in law or fact as to require no comment.
We think the Court below should proceed to givejudg' ment upon the verdict against the defendant.
Martin Ch. J. and Manning J. concurred.
Campbell J.:
As I have come to a different conclusion from my brethren upon the sufficiency of the information, I shall very briefly refer to some of the other points raised, and then give my views upon the questions involved in that. And in this I shall in the main preserve the order of ■argument on the hearing.
It was urged as error that the Court refused to order a bill of particulars of the matters to be relied on by the prosecution. Had this been an indictment instead of an information, the question would have been a very important one. But as an information can only be filed after the party has had an opportunity for a preliminary examina' tion, and as that was had in this case, there can be no occasion for anything more. The examination must be filed- in Court, and no bill of particulars could be more complete. The introduction of any matter not covered by it would I think be good ground of objection and exception. It was so decided in Commonwealth v. Giles, 1 Gray, 466, although in that case the Court were inclined to think the original granting of particulars discretionary —a matter upon which I shall reserve my opinion until a case arises to call for it.
In regard to the account books and printed reports admitted, I think they were competent evidence. It was the legal duty of the defendant to see that all transactions were properly entered. By showing the existence of facts not entered, the prosecution certainly took one step towards making out their case. A neglect to have entries made was an omission of duty, or at least an apparent omission, which might or might not be criminal, but which certainly should go to the jury with the other facts. The printed report was also a document which he was by law bound to prepare, and which should have contained a true account. An omission to include any material item here, as in the books, would be a very pertinent fact for the jury. The objection that the original written document should have been produced, is of no force. State documents published by authority are always receivable, and are the most con» venient means of proving the contents of the originals which public policy requires to be kept in the office, and therefore renders it competent to prove by copies. Watrkins v. Holman's Lessee, 16 Pet. 25; Gregg v. Forsyth, 24 How. 179. If in any way variant from the original the variance- may undoubtedly be shown, and so might honest mistakes in that be explained.
The principal question, apart from the sufficiency of the information, is whether the statute was designed to. reach the State Treasurer. That he is an officer employed in the Treasury — in the ordinary acceptation of the term— is plain enough; but it is urged that, from his high position, and the nature of his powers, it is not presumable that any but his own employees were within the mischief to be redressed. The legislation of this State has been sufficiently reviewed by my brother Christiancy, and I shall not repeat his arguments. The ground of exemption from responsibility to the ordinary criminal process, chiefly relied on, was that an impeachment is the appropriate remedy for the official misconduct of high officers of State.
If our system continued to operate in all respects like that of England, perhaps this objection might prevail. But the House of Lords in trying impeachments is regarded as a Court of criminal jurisdiction, and not as a legislative body. It tries as a Court the impeachment which is presented by the Commons, as the most solemn grand inquest of the Kingdom: — 4 Bl. Com. 259; 2 Hale P. C. 150. The cause is tried substantially as in other courts, and judgment is given of fine or imprisonment as well as of disability: — 4 Bl. Com. 121. When Mr. Burke in Hastings’ case asserted that the House of Lords need not follow the rules of evidence received in the ordinary criminal corn'ts, he was overruled by the unanimous opinion of the Judges. And the judgment must also be such as is warranted by legal principles or precedents: — Western’s Com. 114. [There is therefore no occasion in England to resort to any further remedy for complete justice.
Our Constitution declares that “ judgment in case of impeachment shall not extend further than removal from office.” This would of course preclude any impeachment of a person out of office, and, if no other remedy were provided, would save a delinquent in office from any penal consequences. But in taking away the power of adequate punishment from the Senate, it is expressly declared that “ the party convicted shall be liable to punishment according to law:’’ Art. 12, §2. Instead therefore of being an argument against extending the statute over State officers,"the change fr'om the English system to our own renders it necessary to make some such provision, in order to accomplish, under our laAVS, what is done in England by impeachment alone. And, where the offender is out of office, no question can arise concerning the priority of prosecutions. Inasmuch as the language of our statute fairly covers the State Treasurer, I think there is no rule of public policy which can reasonably be supposed to exempt him from liability under it.
I am also of opinion that he would be liable under the statute for embezzling any moneys officially received by him, and that the moneys shown upon the trial to have been so received, were lawfully in his hands as State Treasurer, and in no other capacity. Had the information been good in other respects, I think the conviction would have been. But as I do not place my objections to it upon this question of a want of averment concerning the Treasury or its location, I shall not consider that particular objection as applicable to any of the counts. Some of them certainly are good, so far as that special objection goes.
Nor do I think the charge of the Court erroneous in directing the jury that the omission to charge the Treasurer in Ingham county with the moneys received would be evidence of embezzlement in that county; and that a denial of its receipt there would be evidence of embezzlement in that county. When the whole case is examined it is plain the jury could not have understood the charge as construing those acts into conclusive evidence of guilt, and could not have been misled by it in any way. The evident bearing of it was merely upon the venue. And I am very strongly inclined to the opinion, that where a public officer is bound to have his office in a certain place, and to keep his accounts there, an official embezzlement may always be charged in law to have been committed there — at least when it is of money unaccounted for. He is bound to account there, and until he fails to do so there can usually be no proof of embezzlement. The receipt of money may be abroad as well as at home, and yet no one could question his official responsibility to his own State on that account. Such offenses can often have no ascertainable locality; and must to a certain extent be governed by a constructive one.
I have referred to the principal questions arising on the merits, because they have necessarily been decided by my brethren, and I concur in the conclusions at which they have arrived on these points. And it is with much regret that I am compelled to differ upon a question of pleading. But as I deem the defect a substantial one, and depending on rules vital to the administration of justice, I can not concur in the result, although no injustice may have been done in this particular case by the violation of the rules. If the legal rights of a defendant have been denied, the facts are not material.
I do not think the information contains any such description of an offense that the defendant was legally called upon to meet it.
The law permitting informations to be filed, declares that “the offenses charged therein shall be stated with the same fullness and precision in matters of substance, as is required in indictments in like cases." “And in all cases a defendant or defendants shall have the same rights, as to all proceedings therein, as he or they would have, if prosecuted for the same offense upon indictment:” — L. 1859, p. 392.
It is not claimed by any one that we have any statute which would make an indictment good for the offense charged here, which would not have been good under the common law rules of pleading. I do not refer to mere matters of form, although they may be such as a party can rely on. Impeachments — which were the common law accusations for such offenses — were not required to be technical; and substantial accuracy is all that I shall consider. That was required in all proceedings and in all courts.
In order to ascertain the necessary elements of an indictment under this statute, we must first determine what constitutes the crime. No crime is defined by the statute itself. But it punishes certain classes of acts which we must look elsewhere to understand. It declares that “ If any officer, clerk, or other person employed in the Treasury of this State, or in the treasury of any county, or in any other public office within this state, shall commit any fraud or embezzlement therein, he shall be punished, <&c.
The term embezzlement does not seem to have had any technical meaning- at common law, and • has been used to signify every kind of stealing. But when used in statutes it has almost, if not quite, universally- been confined to the misappropriation of property, by those to whose care it has been confided as officers or agents. And in this sense it has no technical application — so far as I have been able to ascertain — to any specific kind of personal property. It is not possible under a statute so broad as ours to confine it to any variety out of the numerous valuables which aré entrusted to official custody. And there must be very many kinds of embezzlement which may be committed by a State Treasurer. Without undertaking to go into the subject further than is necessary to explain my views on this case, there are various ways in which he may embezzle public funds. He may, as he is claimed to have done in this case, receive moneys for the State and use them without accounting- for them. -Or he may draw from the Treasury moneys with which he stands charged, either by taking out cash on hand in his vaults with a design of converting it to his own use, or by drawing-money in his own favor, or by paying fraudulent accounts with the same unlawful design. The law, of necessity, assumes that whatever offense any one may be charged with may be falsely charged; and it likewise, in all-cases, presumes innocence until guilt is shown. And it is a further principle, not only of the common law but of the Constitution, that every person has a right to be informed of the nature of the accusation against him. This information is contained in the indictment or other instrument of accusation, which must set forth the offense, and to which all the evidence offered must be conformable. “ The charge must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation, lest the grand jury should find a bill for one offense, and the defendant be put upon his trial in chief for another, without any authority. These precautions are also necessary in order that the defendant may know what crime he is called upon to answer, and may be enabled to claim any right or indulgence incident to the prosecution of some crimes; as treason, &c.; as well as that the jury may appear to be warranted in their conclusion of “guilty or not guilty” upon the premises to be delivered to them; and that the Court may see such a definite offense on record, that they may apply the judgment and the punishment which the law prescribes; they are also important “ in order that the defendant's conviction or acquittal may insure his subsequent protection, should he again be questioned on the same ground,,' and that he may be enabled to plead his previous conviction or acquittal of the same offense in bar of any subsequent proceedings - 1 Chit. Cr. L. 169, 170. And in laying down the general rules which determine the sufficiency of indictments, Mr. Chitty says, “the facts of the charge must, except in the two instances above mentioned, of proceedings against common scolds and barrators, be so set forth on tKe record,, that the defendant may clearly understand the charge he is called upon to answer, that the Court may know what judgment is to be pronounced upon conviction, and that posterity may Tcnow what law is to be derived from the record— 1 Chit. Cr. L. 231.
There is not a single count in the information which sets forth any facts describing, or constituting the offense which was sought to be proved against the defendant. He is charged with what is rather a conclusion of law than a fact. The charges as set forth are just as applicable to money received from the Central or Southern Railroad as from the Detroit and Milwaukee. They would apply as well to money received from State bonds, or taxes, or land sales, or any other of the numerous sources of State revenue, as from either. They would apply as well to money once accounted for, as to money never entered. In short, if the counts are good, there is not a single dollar ever received by the Treasurer which he may not under this information be convicted of embezzling. And yet every separate sum received from different sources,, and not accounted for, would be the ground of a separate offense.
It was urged with much force that it would be impossible to allege every fact with particularity where a defendant must have the only evidence of many matters done in secret. As for example, the precise kind of money stolen, the number and designation of the bills, and the like. How far this difficulty may exempt a prosecutor it is unnecessary now to say, for the defects here are not of that character. The law must in all cases require as. complete a description of the offense as its nature fairly admits of. It makes no great difference, perhaps, if a sum of one thousand dollars is received, of what particular' bills it is conqposed. A fund is not changed by the substitution of one kind of money for another. But if a person is charged with not accounting for money received, it is important for him to know from whom he is alleged to have received it, and for what purpose, because if innocent he may be prepared to overthrow the proof of any such payment.
There is no real difficulty in alleging every substantial fact. No indictment can be found except upon lawful evidence, and no defendant can be properly convicted except upon lawful evidence of every such fact. The chief evidence upon which this conviction was obtained consisted of proof that certain moneys had been paid by the Detroit - and Milwaukee Railway Company to the State Treasurer and never accounted for. And every embezzlement of this description must require similar , proof. Had the charge been designed to cover money accounted for and subsequently embezzled, the proof would have consisted of such admitted amount on hand, and a subsequent deficiency, or an actual subsequent taking or misappropriation; and such other facts as would show the felonious design. There is no rule of convenience or propriety which can make it improper to require a party to allege, in substance, all he would be absolutely bound to prove before he can recover a judgment or maintain a conviction. And every prosecutor must of necessity know before hand what charges he expects to rely on.
The statutes which have authorized general allegations in criminal pleading have only led to a necessity in many cases of supplying what they ought to allege by a bill of particulars; and they have been very justly condemned.. Over technicality is not to be favored, but substantial accuracy is required by both justice and convenience. As, an information must be as perfect as an indictment in all substantial particulars, and as there has been no statutory-relaxation of the common law which can apply to this, case, it must be determined by the-common law rules.
I think the information fatally defective, as not describing-any crime with reasonable certainty.
I am of opinion therefore that no judgment can properly be entered, and that judgment should therefore be arrested..
Judgment to be entered on the verdict. | [
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] |
Manning J.:
It being admitted on the trial by the plaintiff in error, who was defendant in the Court below, that the award was signed by two of the arbitrators in the presence of each other, but not in the presence of'the other arbitrator, who signed it at a different place, and when the other arbitrators were not present — the award was offered in evidence and objected to, because it was not signed by all the “arbitrators in the presence of each other. The objection was overruled, an exception was taken, and the award was received in evidence.
Again, among other things, the judge was requested to charge the jury that, if they should find that all the arbitrators were not together at the time the award was signed, it was no award. The Court refused so to charge, but did charge the jury that, if they should find that the award was the award agreed upon by the arbitrators when all were present, the signing of the award afterwards, by one of the arbitrators in the presence of one only of the two arbitrators who had previously signed-it, and in the absence of the third arbitrator, did not vitiate the award, or render it void. The refusal to charge as requested and the charge as given were excepted to.
The question raised by these exceptions^ for our decision is, whether arbitrators, after they have agreed upon their award, must all be present when it is executed by them? By the words, executed by them, as here used, we do not mean that each must be present when the others sign their names, but that all must be present giving their assent to the award, if it has been signed by any of them'before, when it is executed by the others.
In Wade v. Dowling, 4 E. & B. 43, and in Moore v. Ewing, Coxe (N. J.) 144, it was] decided that the arbitrators executing the award must all be present when it ia signed by them, and that when it is signed by them at different times, and not in the presence of each other, the award is void. See also Lord v. Lord, 5 E. & B. 404, and Beck v. Jackson 1 C. B. (W. S.) 695. In Maynard v. Frederick, 7 Cush. 247, relied on by the defendant in error, the question did not arise and was not decided by the Court. The arbitrator who, after its terms were agreed on, drew up the award and signed it, was present when it was finally executed by the other arbitrator, who declined signing it at the time it was drawn up. This clearly appears, we think, from the statement of the case.
The reason of the law requiring the presence of all to make the award operative, seems to be twofold: 1st, It Is necessary because the award is the joint judicial act of all, at which all who sign it must be present to give their joint assent. And, 2d, That an agreement on the terms of an award to be afterwards drawn up and signed, is not binding on the arbitrators, who may at any time thereafter, before it has been signed by them, modify or change it to supply an omission, correct a mistake, or make it conform to any change of opinion that may have, taken place on further or more mature consideration. This is a right not only of the arbitrators, but of the parties who have submitted their differences to be decided by them.
But it was argued the award might be held valid as the award of two of the arbitrators. In Ott v. Schrœppel, 4 Barb. 255, the case chiefly relied on in support of the proposition, the submission required the attestation of a subscribing witness to the award. There was a witness to the execution of the award by two only of the three arbitrators, and the Court say “in law, the award not being attested as to the third arbitrator, was not his award. It was in legal intendment the award of the two who subscribed it, and whose signatures were attésfced.” In that case the award, on its face, showed of which two of the arbitrators it was the award. It is not so in the case before us. There is nothing on the face of the award showing it not to be the award of all three of the arbitrators. And if we could look into the evidence to ascertain of which two of the arbitrators it is the award, it would appear that Kitton was present when it was signed by Chamberlin and Gilchrist, but that neither of them was present when it was sig'ned by the other. We could not therefore say it was the award of Chamberlin and Gilchrist, as neither was present when the other signed, and there would be no more propriety in calling it the award of Chamberlin and Kitton, than there would be in calling it the award of Kitton and Gilchrist. The judgment must be reversed, with costs.
The other Justices concurred. | [
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] |
Manning J.:
As joint contractors merely, or as partners, if they were such, the agreement was not binding on Chamberlain and Thomas or either of them, as it was not in writing, and the price of the machine exceeded fifty dollars. The judge charged that if they purchased the machine in company, the receipt of it' afterwards by Thomas took the case out of the Statute of Frauds. By company, we understand the charge of the Court as saying together, or as joint contractors, and not as partners. As joint purchasers neither had power to bind the other by subsequently accepting the machine.
As to partnership, it appears Chamberlain and Thomas on the trial gave evidence of an agreement between them•selves to purchase a threshing machine of Dow & Fowler, and to operate the same as partners; and that before the machine was received by Thomas he had released Chamberlain from the agreement on .the payment of six cords of wood by Chamberlain; and it is argued -the charge is correct on the ground that Dow & Fowler had no notice of the dissolution of the partnership when the machine was received by Thomas. Admitting for the sake of argument all that is claimed for the agreement between Chamberlain and Thomas, that is, that they were partners —the evidence showing only an agreement to become partners, and a termination of the agreement before Thomas received the machine — the charge of the Court makes no mention of, and is not based on a partnership transaction and a want of notice of the dissolution of the partnership. For the reason, we presume, -if there was evidence of a partnership, that there was no evidence the contract was made with Chamberlain and Thomas as partners, by the agent of Dow & Fowler, or that he or they knew of its existence, and were therefore entitled to notice of its dissolution, to warn them against trusting to the acceptance of the machine by Thomas alone if they wished to hold Chamberlain. Persons having no knowledge of a partnership are not entitled to notice of its dissolution.
The judgment must be reversed, with costs, and a new trial ordered.
Christiancy and Campbell JJ. concurred.
Martin Ch. J.:
The defendants in error, through their agent, McKercher, agreed verbally with the plaintiffs in error to sell them a threshing machine for $300 and cost of transportation from New York to Michigan; and that they would give them an order on the freight agent of- the Detroit and Milwaukee Railway Company for said machine, and leave the same with one Eddy. No note or memorandum in writing was made of this agreement, nor money paid by way of earnest; but the agent, ten or twelve days after, drew an order directed to the freight agent of said road, at Holley, to whom a machine had been sent by the defendants in error, ordering its delivery to the plaintiffs in error, and such order was left with Eddy to be delivered to the plaintiffs in error. It did not appear whether Eddy had ever delivered such order to any one, but the machine was afterwards in possession of Thomas, one of the plaintiffs in error.
I can not presume that Thomas obtained possession of the machine, except upon the production and delivery of such order; and if such be the fact, his possession was the possession of Chamberlain, as well as of himself. Unless the agreement had been repudiated before the order was given, • each in receiving it and obtaining the property under it was the agent of the other. Having jointly agreed to purchase, both were bound by delivery to either, if such delivery were made under the contract; and such performance by the plaintiffs in error took the case out from the operation of the Statute of Frauds. The forwarding of the machine by the defendants in error for the purpose of executing the contract, coupled with the delivery of the order to Eddy, according to the agreement made between the parties, in my opinion, had this effect; but if not, the acceptance of the property by one of the joint purchasers under the order, without objection or repudiation of the contract by the other, most clearly had. In every joint purchase, each purchaser makes, of necessity, his co-purchaser his agent for the receipt of the property; in other words, the delivery to one under the contract is a delivery to all.
I hold, therefore, that the delivery of the order to Eddy for the use of Chamberlain and Thomas, according to the agreement with them, together with the sending forward of the machine, evidently for the purpose of executing the contract, and its acquisition by Thomas, under it — for I will not presume that he obtained it except upon such order' — was such performance by Dow & Fowler as took the case out of the Statute of Frauds; that the acceptance by one of the plaintiffs in error was the acceptance by both, as joint purchasers; either obtaining the property under the order acted for both, and his act bound both. The delivery of the order to Eddy was a delivery to Chamberlain & Thomas, for they had stipulated for such delivery; and if .Chamberlain desired to be freed from the contract to purchase, he should have given notice of his intention to repudiate, or directed Eddy to refuse to accept the order. Being joint purchasers, for whose use and under whose agreement the order was deposited with Eddy, either making use of such order, and acquiring the property by virtue of it, acted for both. The credit was given to both jointly, and the order and performance of Dow & Fowler were to both.
The private agreement between Chamberlain & Thomas, by which Chamberlain was released from his agreement to operate the machine in co-partnership with Thomas, does not affect the right or remedy of Dow & Fowler. It was not an agreement with them, or made known to and approved by them. It did not operate to release Chamberlain from his liability as a purchaser; for it was not made with his vendors, nor did it relate to the purchase.
There is therefore no question of partnership rights or partnership liability involved in this case, as the partnership contemplated by Chamberlain & Thomas related only' to the use of the machine after purchase; and the agreement by which Chamberlain was released from the contract to operate the machine with Thomas was personal to themselves. The consent of Dow' & Fowler was necessary to release Chamberlain, and no agreement between him and Thomas would have that effect.
Chamberlain is therefore, as I think, liable in this action. The unexecuted agreement between the two Thomases and McKercher does not free him from such liability, for McKercher is not shown to have acted within the scope of his authority; but, on the contrary it appears that Dow & Fowler gave no authority to McKercher to make such agreement, and were ignorant of it. In the absence of evidence of the power and authority of the agent, we can not infer that he had authority to rescind contracts which had been executed by his principals, but remained executory on the part of their vendees.
I think the judgment should be affirmed.
Judgment reversed. | [
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] |
Manning J.:
The relevancy of evidence depends on the issue to be-tried. Some cases admit of a much wider range than, others. Where the motive of a person for doing an act out of the ordinary course of events is a legitimate subject of inquiry, under the issue, all the surrounding circumstances and influences that might have contributed to or caused such motive may be inquired into.
The plaintiffs in error, Mrs. White and Mrs. Blood, are children of Mudge, the testator. His only children, it is to be presumed, as no mention is made of any others. 'Bailey, the defendant in error, and to whom Mudge gave all his property, was in no way related, to him. The testator left White’s family, in which he had been residing, and went to live with Bailey some two, three or four months, certainly not longer than four months, before his death; and while at Bailey’s, and on the l'8th day of August, 1858, made his will, and died in two or three days thereafter.
By direction of the Circuit Court an issue was made in that Court to determine the following facts: 1st. The domicil of Mudge at the time of his death: 2d. Whether the alleged will was his last will and testament, and 3d. Whether he was of a sound and disposing mind at the -time the same was made, and was not under the iindue influence of Bailey or some other person at the time.
It was on the trial of this issue that the several exceptions to the admission or rejection Lof evidence we are called to pass upon were taken.
The simple fact that the testator had by his will disinherited his children, and had given his property to one not related to him by blood or marriage, is so repugnant to parental feeling, and out of the course of things, as to excite more or less suspicion in the mind that all was not right. And when in connection with this unnatural ■act of the testator, it appears that he was an old man, infirm in health, and had but a few months previously left the house of a daughter and gone to live with Bailey,' at whose house the will was made but two or three days before his death, this suspicion is so far strengthened by these additional circumstances as to give it the semblance of reality. Altogether they would, and unexplained should, have more or less influence with the jury: The following questions or others of a like character would most likely be found suggesting themselves to the mind; Why did the testator disinherit his children? Why did he deave his daughter’s house and go to live with the appellee but a short time before his death? Why did he put off' the making of his will until a day or two before lie died?' Were these acts his — the offspring of his own free volition? Or were they the production of artifice and cunning, practiced on an old man by some one behind the curtain ? And, if we are to judge of the tree by its fruit, who, as the event has shown, had a deeper interest in the fruit the tree has borne than the appellee?
Now aE the questions put and answered, to which exceptions were taken, elicited facts tending to answer these suggestions, and to remove the influence the untoward circumstances we have stated would, unexplained, have had on the jury; or to prove the sound and disposing mind of the testator. The object of most of the questions was. to prove the ill-treatment of the testator in' his old age by-his children. And although a wide range was allowed for that purpose in some of the questions put, we do not think the Court erred therein. Men’s minds are so differently constituted and operated on, that what will influence the action of one wiU frequently have no influence on another. Hence it was sufficient to warrant the question, if the thing sought to be proved might have contributed to alienate the testator’s parental feelings, and to create in his mind a dislike for his children. Such a state of mind would furnish a motive for giving .his property to. another, and repel all suspicion of undue influence.
' What we have said disposes of some fifteen exceptions; but there are others that we must notice separately.
One Doctor Blumerick, was examined as a witness for the plaintiffs in error. The Doctor testified that he knew the testator, and had doctored him at Mr. Blood’s, and. that he saw him frequently untü within two or three months before his death; that he first saw him about nine or nine and a half years before the trial, and then doctored him for inflamation of the lungs, connected with a pain, in the head; that he discovered lightness in the head;-, that he often saiv him two or three years after that and talked with him, and that he appeared silly and would not pay him; that he sometimes rode with him in a buggy, and sometimes saw him on foot as he was coming to town or was going home; that sometimes when he saw him he would ask him to pay him for his medical services, and that he would not; and that he appeared like a silly old man; that he visited him at White’s about a year and a half before, and that his impression was that he was not sick, but forgetful, weak minded, and talked nonsense, and that he had not seen him since. The witness ’ was then asked: From what you saw, what was his (Mudge’s) mental capacity?
The question we think was properly excluded. It asked lor the doctor’s opinion of the mental capacity of the testator some two or three months before he made his will. Mental capacity for what? To make a will, for that was in issue. This is a question of law, and not of medical science. It is for the jury, under the instruction of the Court as to what is sufficient mental capacity to make a will, to decide on its existence or non-existence when the will was executed, from the facts testified to by the witness, and not from the witness’ opinion regarding such tacts. The jury, and not the witness, are to draw the conclusion from the facts stated by the witness. The opinion of a physician as to the existence of disease, or a particular malady, and its effect upon the mind, would 'be evidence. But a physician’s opinion regarding mental capacity generally, or the mental capacity necessary to make a will, is, in the eye of the law, no better than that of any other person.
A Doctor Allen was also examined as a witness for plaintiffs in error. After his examination, and after the plaintiffs in error, who were defendants in the Circuit Court, had examined their witnesses, and the plaintiff had closed his rebutting evidence, the doctor was recalled by the plain tiffs in error, and asked the following question: Were there any symptoms of paralysis . about Luther Mudge ? Please state the appearance and effect upon Mudge of the nervousness you referred to in your former testimony. The questions being objected to were ruled out by the Court. They should have been asked the witness when he was on the stand and gave in his evidence, or at all events before the rebutting testimony was closed. It was discretionary with the Court, at that stage of the trial, under all the circumstances, to receive the evidence or not; and there' is nothing in the bill of exceptions showing the discretion was not wisely exercised.
Tne objection to Chubb . as a witness on the ground that he was surety on the appeal bond given by the defendant in error, was properly overruled by the Court. He was not a party to the appeal, nor was it prosecuted in whole or in part in his immediate and individual behalf: Comp. L. §4339.
The only remaining question is, whether the verdict of the jury warrants the judgment of the Court admitting the will to probate. The jury found the will in question was the last will and testament of Luther Mudge deceased, and that at the time of executing it he was of a sound and disposing mind and memory, and capable of disposing of his property by will. But they did not find whether it was “made under undue influence from said Bailey or any other person.” They could not have found as they did, that the will in question was the last will and testament of Luther Mudge, without at the same time having found that it was made of his own free will and accord, and not under or in consequence of any Undue extraneous influence. All such influence is necessarily negatived in finding the will to be his will. And the law is too well settled to need discussion, that where the issue found necessarily negatives the one not found, the judgment will not be reversed: — Brooks v. Delrymple, 1 Mich. 145 ; Law v. Merrills, 6 Wend. 268.
The judgment of the Circuit Court I think should, be 'affirmed, with costs. | [
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Ohristiancy J.:
Several questions have been raised in this case,. all of which, however, may be resolved in the three following:
■First. Can the action of the wife, under § 8294 of Compiled Laws, for property taken on execution against the husband, and which was exempt, be defeated by showing that the property was turned out by the husband to be levied upon ?
In answer to this question, we think it clear her action cannot thus be defeated. The exemption is intended quite as much for the benefit of the wife and family, as that of the husband. The same reasoning applies here as in the case of a homestead exemption. See Beecher v. Baldy, 7 Mich. 488, and Dye v. Mann [ante, 291]. This action would seem to have been given to the wife to prevent any waiver of the exemption by the husband; as, without such waiver, the action might as well be brought by himself.
Second. Does the ninth subdivision of the 21th section chapter 131 Compiled Laws, exempting from execution “a sufficient quantity of hay, grain, feed and roots for properly keeping for six months” the animals referred to, apply to a case where the debtor has no. such animals? or, in other words, does. it exempt any more “ hay, grain, feed .and roots,” than may be necessary for keeping such of the animals mentioned as the debtor has at the time of-the levy?
In answer to this question, we are all clearly of opinion that this exemption cannot extend beyond what is sufficient to keep such of the animals as the defendant may have at the time of the levy. This exemption is given to render that ' of the animals practically beneficial; as it would be of little use to exempt the animals if the food necessary for their sustenance were liable to be taken from the owner. But if the debtor have none of the animals specified, the reason for exempting the food for them wholly fails. If he has none of the animals which the statute exempts, there is nothing upon which this exemption of the animals can operate, and the exemption of food for such animals, which is dependent upon it, fails with it. If the statute, in cases where the debtor has not the full amount of the property exempted by this section, had provided an exemption of money or other property for the purpose of enabling him to purchase enough to make up the deficiency, there might be good reason for holding the feed for the animals exempted, though he had not the animals at the time of the levy; but the statute has adopted no such principle.
Third. Does the sixth subdivision of the same section, exempting “provisions for the comfortable subsistence of a house holder and family for six months,” exempt growing crops of corn and potatoes, recently planted, and which have just become visible above the ground?
In answering this question, it is important to determine whether the exemption is to be governed by the state of facts existing at the time of the levy, or at the time of sale, or at some intermediate period. It is quite clear, I think, that whatever under this statute may be levied upon may also be sold, except so' far as the statute has otherwise provided. Where' specific articles are exempt by the statute, they can neither be taken nor sold on the execution. But where the exemption is of property of a certain class or species, and only to a certain amount or value, and the debtor has property of that class or species exceeding the amount, some mode must be adopted for determining the particular portion or articles to which the exemption shall apply. It is accordingly provided that when a levy in such case shall be made, “ the officer levying such execution may make an inventory of the whole of such property, and cause the same to be appraised at its cash value by two disinterested freeholders of the township where such property' may be,’’ c%c.: § 28 same chapter. “Upon such inventory and appraisal being completed, the defendant in execution or his authorized agent may select from such inventory an amount of such property not exceeding, according to such appraisal, the amount or value exempted by law from execution: but if neither such defendant nor his agent shall appear and make such selection, the officer shall make the same for him”: §29 same chapter. These sections wrould certainly apply to the exemption of provisions, when the defendant has more than the amount exempted.
Again, by section thirty - one it is provided, “ whenever the defendant in an execution shall have cows, sheep, swine or other animals or articles, some of which are exempt bylaw from sale on execution, and some of which are not so exempt, the officer may take all such horses, cows, sheep, swine or other animals or articles into his possession, and the defendant or his authorized agent may, immediately on being notified of the levy, select so many thereof as are exempt by law from, execution, but if the defendant be absent, or neglect to make such selection, on being notified, the officer shall make the same for him.”
In all eases not otherwise provided for in sections twenty-eight, twenty-nine or thirty-one, above cited, the right to levy implies also the right to sell; and the one is co-extensive with the other, so far as the question of exemption is involved: and in all such cases, at least, the right to levy and the right of exemption would seem to take effect at the same time. . Is it otherwise in the cases provided for in the three sections just referred to ? I think not. It is evident, I think, from the language of these sections that the selection is to be made at, or immediately after, the levy, and with reference to the then existing facts. Under the twenty-eighth section, “ when a levy shall be made,” the officer is to make the inventory — “uponsuch inventory being completed” the defendant is to select. If he does not appear and make the selection, the officer is to make the selection for him. How long must the officer wait for the defendant to appear and select ? Clearly, I think, he need not wait one day. When is the defendant to select under the thirty-first section ? The statute answers “immediately on being notified of the levy.” But if the officer may delay to make the- inventory, and to have the selection completed, he certainly is not bound to wait, but has a right to proceed at once; and that would.be a novel species of statute exemption which might be allowed or defeated at the option of the officer.
The right and the extent of the exemption, in these cases must, then, depend upon the state of ,the property-and the state of facts existing at the time of the levy, or at the latest, the time within which the selection is to be made; ancl just as clearly must this be the case when the right to sell is co-extensive with the right to levy.
As the statute, in exempting provisions “ for the comfortable subsistence of the householder and family for six months,” does not specify any particular kind of provisions, doubtless anything which is susceptible of use as provisions, may be exempt under this designation; and any growing crops which, at the time of the levy, had reached that stage of growth or maturity which wquld render them susceptible of such use, might fall within the exemption: — Carpenter v. Herrington, 25 Wencl. 3/0. But corn and potatoes so recently planted as to be but just visible above the ground, are wholly incapable of use qs.^food, and in that state ^ can with no propriety be called “provisions.” They may or may not, in the ordinary course of vegetation, assume a shape, or produce fruit, fit for food, before the time for sale on the execution (which by the twenty-sixth section is not to be until they are ripe or fit to be harvested), and it seems to have been thought by the Court below that for this reason they ought to be exempt while growing, when the owner has not otherwise the requisite amount of provisions. This would doubtless have been a reasonable provision, had the Legislature seen fit so to provide. But we are not fo decide what we think the Legislature ought to have done, but what they have done. At common law all such property was liable to execution, and nothing was exempt as 'food for the support of a family. The exemption of provisions, like most other exemptions, rests entirely upon the statutes. Had the Legislature seen fit only to establish certain principles upon which exemptions were to be made, we might exempt anything coming within the principle thus established; but they have chosen to make their exemptions specific, to define the classes of property to he exempt, the circumstances under which they are to be allowed, as ivell as the time when the right of exemption shall attach. The statute exempts nothing as growing crops, or by that designation; and such crops, to be exempt as provisions, must be capable of being used as such when the exemption takes effect.
This case is therefore no more within the equity of the statute than many others which might be put, but which are clearly beyond its provisions. Thus, a debtor at the time of the levy has- six months provisions in the house, which are exempt and not taken on the execution, but the levy is made upon other property of the same description A few days after the levy,, the provisions in the house are destroyed, lost or stolen. It will hardly be contended that the debtor can call upon the officer for enough of the provisions levied upon to make up the deficiency; yet such a case would come quite as clearly within the benevolent purposes of the statute as the present. I have been unable to find anything in the statute to warrant the inference that an exemption was intended to be allowed, based upon any change which might take place in the state of facts, or of the property, or of the debtor’s circumstances at any time between the levy and the sale.
The judgment should, I think, be reversed, with costs, and a new trial granted.
It seems to have been the intention in framing this case to submit it to this Court for review upon the evidence as well as the law. But the case is not so framed as to permit us to do this. The whole evidence does not purport to be given: but only. so much as “ was deemed material to the questions to be raised.” When we review a case upon the evidence, we must have the means of judging for ourselves what is and what is not material.
Manning J. concurred. | [
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Christiancy J.:
This was an action on the case, brought in the Circuit Court for the1 county of Saginaw, for obstructing the navigation of Millington creek, by a dam in the county of Tuscola. The declaration was demurred to on the single ground that the action could not properly be brought in the county of Saginaw; and this is the only question in the case. There can be no doubt that at common law, as well as by most statutes, both in England and in this country, this is a local action within the principle which usually distinguishes local from transitory actions. The questions to be tried are peculiarly questions of a local nature, and would be more likely to be conveniently tried in the county where the nuisance complained of exists, as the witnesses would be more likely to come from that county, and a view might become necessary. — 3 Bouv. Inst. 130; 1 Bac. Abr. 56 to 58; 1 Com. Dig. 250, 251, 252, and note; Oliphant v. Smith, 3 Penn. 180.
But the question of venue is one within the power of the Legislature, and our statute upon this point is peculiar. By the first subdivision of §4344 Compiled Laws, it is provided that “ actions for the recovery .of any real estate, or for the recovery of the possession of real estate, actions for trespass on land, and actions of trespass on the case for injuries to real estate, shall be .tried in the county where the subject of the action shall be situated.’’ By the second subdivision of the same article, it is in substance provided that all other actions “shall be tried in the county where one of the parties shall reside at the time of commencing such action, unless the Court shall deem it necessary, for the convenience of parties and their witnesses, or for the purposes of a fair and impartial trial, to order such issue to be tried in some other county,’ &c.
Under this statute, this cannot be be held to be a local action, unless it be an “action- on the case for an injury to real estate.” After a careful examination, we are satisfied it does not fall within the meaning of these terms of the statute; but that the “real estate” referred to must be the real estate of the plaintiff, an interest or property distinct from that of the public at large, and which may be acquired by purchase, grant or prescription,' and conveyed or disposed of as property.
Nor do we think the right of navigation in a public river can with propriety be treated as “real estate” vested in the public or the State for the benefit of every individual who may have occasion to use it. It is a public right, but we see no reason to call it real estate. It is sometimes called a “public easement,” but we do not think it comes within the meaning of the term easement, as used to designate an incorporeal hereditament, as a right of way belonging to one person or estate over the lands of another.
The demurrer was not well taken; the judgment must be reversed, with costs, but the defendant should have leave to plead to the action.
The other Justices concurred. | [
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] |
The Court
held that it was unnecessary, as no assignment of errors is required on a common law certiorari. | [
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Martin Ch. J.:
The statute against gaming (Comp. L. § 1582) provides that if any person shall, by playing at 'cards, dice, or any other game, or by betting on the sides or hands of such as are gaming, or by any betting whatever, lose to any person so playing or betting, any sum of money, or any goods whatever, *and shall pay and deliver the same, or any part thereof, to the winner, the person so paying or delivering the same may sue for and recover such money in an action for money had and received to the use of the plaintiff, and such goods in an action of replevin, or the value thereof in an action of trover, or in a special action on the case.
It is under this section that this action is brought; and the first question is, can it be maintained ? I think not. No money 'was paid by Saxe to Buckley upon a gaming or any other consideration. At the time of the making of the bet, negotiable notes were deposited with Williams, to be delivered to the winner. This was Buckley, as it turned out; and the notes were given up to him, before their maturity; and he endorsed the note of Saxe in blank, but without recourse, and sold it to a person in Battle Creek for $80. There is no evidence when or to whom Saxe paid the note, if he ever did, or what amount he paid, if any; but it is certain that he never paid any money to Buckley upon it. How then can Buckley be said to have. received money to the use of Saxe ? The promissory note was not money within the statute; and the money he received was from his indorsee upon the sale of it to his own and not to Saxe’s use. If he should be held to have received it for the latter’s use, then a right of action would have arisen to Saxe for such money so soon as Buckley received it, and whether Saxe ever paid the note or not; and if it were not then received to his use, the payment of the note afterwards to the holder would not, by relation, be a payment to Buckley so as to transfer tbe use to Saxe. Nor do I think he could recover in this form of action for the money paid to * the holder of the note; as the holder could not be held to have acted as Buckley's agent in receiving it; nor would Buckley be bound by his receipt of it. This remedy exists only by force of the statute, and to entitle a party to it, he must be strictly within the statute.
But if Saxe were entitled to this remedy, he has not-made a case authorizing a judgment in his favor. As already remarked, there is no evidence that he has paid the note, or, if he paid anything, what amount. It is claimed, however, that possession of the note is evidence of payment. In proper cases it is prima facie evidence of payment, I admit; but in an action to recover back money claimed to have been paid on the note, the burden is upon the plaintiff to show payment, and the amount, as facts; and the production of the note will not be evidence of either. The note from Saxe to Buckley was void as between them, and as to all persons except those who hold or claim under them in good faith and without notice of its illegality. Whether the holder of the note acquired it in good faith and with- • out notice does not appear; and no presumption will be made either that he did .or did not; although, if either were to be made, the fact that he bought it at a very large discount, and took it indorsed without recourse, would rather aid a presumption that he bought it with knowledge of its consideration. The possession of it by Saxe will be as consistent with the presumption that it was surrendered to him because void, as that it was given up upon payment. If he paid anything, the testimony was ’ within his reach to show how much; and we will not presume anything in his favor when he neglects to produce such evidence.
The Court below erred in refusing to charge as severally requested, and the judgment must be reversed, and a new trial ordered. | [
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Christiancy J.:
Plaintiff in error brought an action of ejectment in the Circuit Court for the county of Shiawassee, against defendants in error, for the recovery of the undivided one-fourth of certain lands situate in that county; and having shown on the trial a prima facie title, derived through a deed from Daniel Ball and wife to Jonathan Child, dated June 17th, 1889, and from Child to Henry J. Whitehouse, dated June 15th, 1842, and from Whitehouse to himself, dated February 21st, 1858, rested his case.
The defendants sought to defeat the plaintiff’s title, and to show title in themselves, by a partition of the premises under a bill filed January 21st, 1851, in the Circuit Court in Chancery, for that county, by Charles L. Goodhue against Jonathan Child, Henry J. Whitehouse and others; by a sale of the whole of the premises (one-fourth of which was claimed by the plaintiff in ejectment) made in the partition suit, to Orville S. Goodhue and Mary A. Thomas, August ¡16th, 1851, and a deed from said purchasers to the defendants. The partition suit had been finally terminated, the decree signed, the sale confirmed, and the record completed by enrollment.
Child and Whitehouse, through whom the plaintiff in ejectment claimed, were non-residents of the State when the partition suit was instituted, and for aught that appears still continue so; neither of them was served with process, nor had any notice of the suit except such constructive notice as was given by the publication of the order for appearance, which will be presently noticed, and neither of them ever appeared in the suit.
The only way in which the suit in partition and the sale under the decree could avail the defendants in the ejectment suit, was by divesting the title of Whitehouse, the plaintiff’s grantor. To give the proceedings this effect, it was necessary to show, not only the fact that proceedings had been had with that object, in a court having jurisdiction of the subject - matter, but it must also appear that the proper steps bad been taken to obtain jurisdiction of the person of Whitehouse, one of the non-resident defend, ants. The defendants claimed through the proceedings, and it was for them to put in evidence, if not absolutely every paper • in the enrolled record, at least all which had any bearing upon the question whether the proceedings, as a whole, had divested the title of Whitehouse; for the ques7 tion was not simply upon the independent effect of each separate paper constituting the record, but upon the joint effect of all taken- together. The effect of one paper, or part of the record, might modify that of another; the defendants could not select such as might operate in their favor and throw upon the plaintiff the proof of those parts which might operate against them; the latter as well as the former must be treated as a necessary part of the defendants’ evidence. It was not for the plaintiff to show the invalidity of the proceedings, but for the defendants to show their validity by the introduction of every part of the record having a bearing upon the question.
The defendants, however, instead of offering the whole record of the proceedings in the suit, offered, first, the bill separately. To this the counsel for the plaintiff objected, on the ground that it formed but a part of the entire record, and was not admissible without the rest of the record; this objection was overruled, and the bill read. Defendants then offered in evidence separately and successively certain subsequent proceedings in the cause; the order for the appearance of Child and Whitehouse, nonresident defendants, made by the Injunction Master, January 27th 1851; the affidavit of its publication; the order pro confesso as to Child and Whitehouse, and several subsequent proceedings, including the final decree and sale, and order confirming the sale, and other proceedings- not necessary here to be specified. To many of these, besides the general objection already noticed, the counsel for the plaintiff objected on specific grounds, and especially on the ground that the Circuit Court in Chancery had acquired no jurisdiction of Child and Whitehouse. All, however, were admitted under exception.
It does not appear that the whole record was offered at any time, nor even all those parts of the record which related to Child and Whitehouse, or which might affect their interests. No affidavit, upon which alone the order for the appearance of Child and Whitehouse could be made, was read or offered, nor does it appear whether such affidavit was among the enrolled papers which constituted the record. The only intimation that such an affidavit ever existed is the recital of the fact in the order for appearance and publication granted by the Master, which purports to have been based upon such an affidavit.
The statute under which the proceedings were had, Rev. Stat. of 1846, p. 497, §11; Comp. L. §4626, provides, “If any parties having an interest in such lands are unknown, or if either of the known parties reside out of this State, or can not be found therein, and such facts be made to appear to the Court by affidavit, an order may be made by the Court, containing a sufficient description of the premises, &o., and requiring all persons interested to appear and answer the bill by a day in such order to be specified; which order shall be personally served, or shall be published,” &c.
Without at present expressing any opinion as to the power of the Injunction Master to grant the order, or the sufficiency of the description of the premises, we will first dispose of the question in respect to the affidavit.
It is manifest from the statute above cited, that this affidavit is an indispensable pre-requisite, and the sole foundation of the jurisdiction to make the order, whether made by the Court in term or by the Injunction Master, if the latter was competent to grant it at all, under the statutes and rules of Court then in force and since repealed. Without the affidavit no order could be made, and without the order the Court could have acquired no jurisdiction as to Whitehouse or Child, and all the proceedings as to them must be void. We think therefore this affidavit constitutes an essential part of the record, quite as essential as the order founded upon it, and if any was in fact made, we must, till the contrary appears, presume that it was made a part of the record; and it should therefore have been introduced by the defendants, that the Court might see whether it complied with the statute. I say nothing here upon the subject of accounting for its absence or proving it otherwise than by the record, as no such question arises here.
Under this statute the rights of parties residing out of the State may be affected, and their title to real estate to any amount may be divested, without any actual notice that a suit has ever been instituted. The power thus to affect their rights depends entirely upon the statute. The statute can not therefore be enlarged by any equity of construction as against them, but upon every principle should be strictly construed; it must be held to prohibit the exercise of the jurisdiction until the preliminary steps required by the statute have been taken: — Gallatin v. Cunningham, 8 Cow. 370, per Woodworth J. Courts are bound by the dictates of natural justice carefully to scrutinize every step of the proceedings, to enforce a strict compliance with all the statute requirements, that absent parties may not be deprived of those safeguards which the statute has provided for the protection of their rights. Without this vigilance on the part of Courts, the statute which was intended for the advancement of justice, may be made a most efficient instrument of fraud.
These proceedings in partition, at least as to non-resident defendants, do not come within the general or ordinary jurisdiction of Courts of Chancery, but the jurisdiction as to such proceedings is special and limited, .and entirely dependent upon the statute. The Circuit Courts in Chancery, though in ordinary cases of equity cognizance courts of general jurisdiction, must, we think, as to these special proceedings, be considered as courts of special and limited jurisdiction, and no presumption of jurisdiction should be indulged as in suits at common law, or ordinary suits in equity, in courts of general jurisdiction. All the necessary facts to confer jurisdiction must therefore affirmatively appear upon the record. See Denning v. Corwin, 11 Wend. 647; Foot v. Stevens, 17 Wend. 488, remarks of Cowen Judge upon case last cited; Gallatian v. Cunningham, 8 Cow. 370, per Woodworth J.; Thatcher v. Powell, 6 Wheat. 119; Shivers v. Wilson, 5 Mar. & John. 130; Eastman v. Jones, 2 Yerg. 493. I am aware there have been some decisions to the contrary; but as to special proceedings to acquire jurisdiction over non-residents, without actual notice, I think this the only safe rule.
But it is insisted by the counsel for defendants in error, that the recital in the order that such an affidavit had been presented, is sufficient evidence of the fact till the contrary appears. We have already shown that, upon the hypothesis that such an affidavit was made, it must, in the absence of all proof to the contrary, be presumed to form part of the record; and, this being so, the failure of defendants to offer it, and their reliance upon fhe secondary evidence furnished by the recital, warrants the inference that if produced it would not have been found sufficient to warrant the proceedings. And if not found of record, where it naturally belongs, as the very foundation of all the proceedings, its absence, unexplained, would authorize quite as strong an inference against the existence- of a sufficient affidavit, as the recital of the master would warrant in its favor. We have not, upon careful consideration, been able to discover any principle upon which the recital of this preliminary jurisdictional fact can be received as evidence of it. Without the previous existence of the affidavit no order could be made which would be evidence of any thing. To make the order evidence of the affidavit, is, then, merely to assume the prior existence of the affidavit which alone could make the order evidence of it. This would be reasoning in a circle. It can not require the aid of authorities to prove that such reasoning is fallacious; assuming the very fact to be proved;' nor could any amount of authority render it sound. See however, Green's heirs v. Breckenridge's heirs, 4 T. B. Monr. 544; Peers v. Carter's heirs, 4 Litt. 228 ; Hartley v. Bloodgood, 16 Ala. 233 ; Hanson v. Patterson, 17 Ibid. 738; Randall v. Songer, 16 Ill. 27; Boyland v. Boyland, 18 Ill. 551. It is true these are cases in which the question arose in the same cause in an appellate Court. But we think as to facts necessary to confer jurisdiction over non-resident defendants, when no actual notice has been given, and they have not appeared, the same rule should apply.
We think, therefore, as no jurisdiction of the Circuit Court in Chancery was shown as to Child or Whitehouse, the proceedings in that case were erroneously allowed to go to the jury; that the Court on the trial of the eject.ment ought to have charged the jury (as requested by plaintiff’s counsel) that no jurisdiction was shown. ' The judgment should be reversed, with costs. We do not deem it necessary to pass upon the other questions raised in the case, many of which may not again arise, and others may be presented in a different form. The judgment should be reversed, and a new trial granted.
Manning and Campbell JJ. concurred. | [
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Campbell J.:
The defendant was charged with having conspired with a person unknown, “ by divers false pretences, subtle means and devices, to obtain and acquire to themselves, of and from one John M. Whelpley, a sum of money, to wit, the sum of ten dollars, of the moneys of said John M. Whelpley, and to cheat and defraud him, the said John M. Whelpley, thereof.”
It is claimed that this information is defective in not setting forth any conspiracy within the requirements of law. The principal argument was that, unless the means to be resorted to were set out, the charge is not of any crime, because it is alleged the object alone was not criminal.
There can be no doubt that a conspiracy to do a lawful act is not punishable, unless that act is to be accomplished by unlawful means. In such a case, unless the means are set out, the indictment or -information charging a conspiracy merely to accomplish a lawful thing, would be insufficient; for every criminal charge must show upon its face what criminality is alleged against the defendant, and none can be proved where none is alleged.
It has been settled therefore without. contradiction, that in every indictment for conspiracy the unlawful thing agreed upon must be set forth. If the end be unlawful, that and that only need be alleged; but if the end be lawful, then the unlawful means must appear,
The question then arises, whether it appears upon the face of this information, that what the defendants agreed upon amounted to a criminal conspiracy. This may he very easily tested in the case before ns. It is charged that the agreement was to obtain from Whel'pley, by false pretences, ten dollars, and to cheat and defraud him of it.
Our statutes provide that it shall be a punishable crime to obtain from any person any money or other valuable thing by any false pretence, with intent to defraud or cheat him.— Comp. L, § 5783.
The agreement set up in the information in this case embraces all the elements of the statutory crime, and is therefore an agreement to commit the crime of obtaining money under false pretences. This being the design, and this design itself being criminal if agreed upon by conspirators, whether carried into effect or not, there are no authorities which require any further allegations. If no such act were an indictable offense, there might be room for the argument that the means should be alleged. There may perhaps be some conflict on this subject, as applied to pecuniary frauds, but it is needless to discuss it here, as the means and the end, under our statute, form, when combined, an indictable offense. Nor is it necessary that the means should be of any specific character. The varieties of fraud are innumerable, and when it is agreed to cheat another of his property, we are not bound, in the face of common experience, tó assume that any particular devices must have been agreed to be resorted to, and that any addition to them suggested by the ingenuity of the operators must be presumed beyond the design. It is sufficient for this case if we can conceive it possible for conspirators to leave the particular means by which a fraud is to be accomplished to be determined by circumstances ; and we certainly regard this as not only possible, but very probable in most cases. The rules which govern allegations in indictments for a completed offense, can not have any bearing upon a conspiracy to commit it, where the conspirators are equally chargeable whether they fail or whether they succeed.
We see no defect in. the information.
It .is alleged as error that the Court refused to charge that the cheat referred to in the information must be by means of a token, writing or similar device. We do not think our statute on false pretences susceptible of any such confined construction. It was evidently designed to reach every variety "of pretences.
It was also objected that the Court refused to charge, that it must appear that the defendant used unlawful means to borrow the ten dollars, or that the borrowing was itself unlawful. This was not an indictment for the fraud, but for the conspiracy to defraud. If the conspiracy were proved, the case would be made out, whether any fraud were afterwards committed or not. It is true that a conspiracy is generally proved by inference from the acts of the conspirators. This, however, is not necessarily the case. Had it distinctly appeared from the case before us that there was no other proof here, it may be doubtful even then whether the request would be entirely correct; but as we consider the charge as given as covering the entire ground, the .correctness of the charge as given becomes the only material inquiry concerning the law laid down to the jury. And the remark made by the Court, that the mere telling of lies to obtain property, while not enough to make out an offense, was not a material consideration in the case at bar, may be disposed of in the same way.
It had appeared in the case — or, rather, there was evidence tending to show — that the defendant had induced Whelpley, who had crossed with him from Windsor, to believe that he had just been to Windsor to see about some hogs which he wished to ship, and asked Whelpley to go with him to the office to see about the freight, and why the hogs were not shipped. He had previously asked if Whelpley was going to Chicago, and said he would accompany him. to that place. Defendant took Whelpley to the Merrill Block, where the other alleged conspirator came up and said he had been looking for Clark. Clark asked if he had shipped the hogs, and on being told that he had done so, said that he .would pay the freight, and took out his pocket book and asked if the other could change a hundred dollar bill. This person said he would go up into the office and see. He went up stairs into the Merrill Block, returned and said he could not. Clark asked Whelpley if he could change the bill. He said he could not. Clark then asked Whelpley to- lend him ten dollars, and he would pay him when he got to the depot, where he would get the bill changed. After getting the money, Clark and the other went up stairs for the alleged purpose of getting the bill receipted, asking Whelpley to wait. After waiting a quarter of an hour he left. Other witnesses testified to the suspicious conduct of both the alleged confederates. It was shown there was no office in Merrill Hall rented to any person engaged in shipping hogs. Clark when arrested had $30 in good bills, and a hundred dollar bill on a broken bank. Other evidence appears, and we are not informed by the record whether all that was given was set forth.
If any fraudulent conspiracy existed, it was upon the theory of the prosecution carried out by inducing Whelpley to believe that Clark was here for the legitimate business of sending forward his produce; that he had actually forwarded it; that it was worth enough to have the freight from Windsor amount to ten dollars; that the office was in the Merrill Block where he was going to pay the freight; that the stranger had authority to collect and receipt for it; that Clark had a hundred dollars in one bill which he could and would have changed at the depot tó repay the loan, and that he would immediately accompany Whelpley to the depot where both must go to enter upon their contemplated journey to Chicago. If the jury found any fraudulent pretense — as of course from, their verdict they must have done if they inferred the conspiracy from these acts — the case shows that it was in making Whelpley believe that Clark was a business man who had property in transit to which he was attending, and had a bill of a hundred dollars in his pocket available to repay immediately such a loan as he made. If these pretences were false, and if they actually deceived Whelpley, and were designed to defraud him out of the money he advanced, they amount to misrepresentations of existing and material facts, and come clearly within the mischief of the law. Nor do we think it could make any difference whether they were all expressed in words. Falsehood when deliberately acted is the same as spoken falsehood. The facts relied on for conviction went very far beyond immaterial lies, and also tended to show that both Clark and the stranger were guilty.
The charge of the' Court was as follows:
“The defendant is charged with conspiring and combining with a person, unknown to the People, to defraud one Whelpley, out of a sum of money. To constitute an indictable conspiracy, there must be a combination of two or more persons, by concert of action, to accomplish a criminal or unlawful purpose, or by means, criminal or unlawful, to accomplish a purpose not in itself criminal. The charge here is conspiracy. It is not a charge for obtaining money by false pretences; it is for conspiring and combining with this unknown person, by means of false pretences, to do just what is alleged to have been done that the prisoner is on trial before you. The fact that money was obtained of Whelpley, in the manner related, is offered as evidence of the conspiracy, which is alleged to have been formed before ; and not that this was the conspiracy. If the prosecution is correct in its view of the case, and the getting of the money was the object of the conspiracy, and not the conspiracy itself, to convict you will have to find: That the prisoner and a person unknown to the People, entered into a conspiracy to defraud, by means of false pretences, the witness Whelpley out of his money. The offense was as perfect before the money was obtained, as it was after-wards, if the combination and conspiracy existed, to do what is alleged to have been done, namely, the getting of the money, by means of the unlawful devices, etc., as charged in the information.”
We think there was nothing in this charge which could possibly mislead the jury. It defined the offense properly, and gave the jury , all necessary instruction concerning the character of the acts constituting it.
Some objections were taken to the admissibility of testimony which it becomes necessary to notice. Charles Mc-Cabe, who had sworn that he was a ticket agent of the Great Western Railway at Windsor, was asked whether hia business was such as to give him knowledge of persons who ship hogs on that railway, and whether Clark had ever to his knowledge shipped hogs by it. These questions were objected to, but he was allowed to answer, and did answer, that his business gave him knowledge of persons shipping hogs over the road, and that he did not know of Clark’s shipping any.
We think the testimony admissible. It was competent to prove the non-shipment of hogs from Windsor, by inquiring separately concerning all the channels of transportation. It may have appeared that at that season of the year there was no other outlet from Windsor. If there were other outlets, similar questions to those acquainted with their business were the proper means of proof as to them; and we do not perceive how else such a negative matter could be proved. As no Court in Michigan can judicially know, however strongly its members may suspect, that in midwinter the railway is the only available outlet for freight from Windsor, we can not assume, in the absence of any request to charge, or other reference to the defect, that the prisoner was convicted without proof on this material point.
The same remarks will apply to the evidence offered that no office in the Merrill Block was rented for such purposes as represented by Clark and his associate. The evidence was admissible, and very significant. No question appears on the record whereby its conclusiveness or effect seems to have been involved in any legal argument. We can make no presumption of error where ' error does not appear.
The conviction is good, and the Recorder’s Court must foe instructed to proceed to judgment on it.
The other Justices concurred. | [
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] |
Campbell J. :
Mason' was proceeded against as holding over after foreclosure of a mortgage made by his grantor, the equity of redemption being alleged to have expired. The premises consisted of parcels, some of which were not adjoining. The sheriff’s deed on foreclosure conveys all of these parcels for one sum named as the purchase price, to Lee’s grantor, who was owner of the mortgage; and nothing appears by it to show that the land was sold in parcels, or, if so, for what sum each parcel sold. The statute provides that “If the mortgaged premises consist of distinct farms, tracts or lots, they shall be sold separately, and no more farms, tracts or lots shall be .sold than shall be necessary to satisfy the amount due on such mortgage,’’ &a — Comp. L. §5183. By §5187 a right is given to redeem any parcel separately sold.
By the Revised Statutes a separate deed seems to,have been contemplated of each parcel sold; and the price of the parcel was the consideration of the deed when so made'. — R. S. of 1846, Ch.. 130, §9. The law as it now stands provides that one deed of the premises bid off by him may be made to each purchaser, specifying as the consideration , “ the precise amount for which such parcel was sold;” and the person selling is required -to endorse thereon the time when such deed will become operative in case the premises are not redeemed according to law, and forthwith deposit it with the County Register, to whom the redemption money may be paid for any parcel separately sold. — §§5185, 5187. As the deed is the only instrument absolutely required to be left with the Register, it is manifest that it was not the effect of the amendment to do away with the 'necessity of showing by it the price bid for each parcel; for otherwise there would be no reliable source of information on that head. Such a matter could not be left to be ascertained by outside inquiry. The Register's action is based upon the deed in Ms official eustody.
As this case does not show a compliance with the statute, the foreclosure can not be regarded as complete. The statutory proceeding being ex parte, must conform in all matters to the conditions expressed by the Legislature. We can not regard the provision requiring separate sales of separate parcels as merely directory. It is essential to secure the interests of the various parties from loss or prejudice. The pei-son claiming under a foreclosure of a mortgage, where the parcels are separated, as some of them are here, must fail unless it is complied with. The judgment below must be reversed, and a new judgment must be entered in this Court, that Mason is not guilty of unlawfully holding over the premises demanded, and that he recover against Lee his costs in this Court, the Circuit Court, and before the Commissioner.
The other Justices concurred. | [
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Chbistiancy J.:
The demurrer of Sarah Litchfield was not well taken. She and her husband were both necessary parties to the ease made by the bill; the husband, as the party to the contract, and the wife by wrongfully taking a conveyance to herself of the land which by the contract was to be conveyed to complainants.
The demurrer of Liba Litchfield was also properly overruled. He assigns six distinct causes of demurrer, which, without repeating them, may be answered in their order.
1. The bill alleges the land to be owned by complainants in fee simple. This is a sufficient averment of title, especially as the contract contained no special stipulations in reference to any particular kind of title, or the evidence by which it was to be shown.
2. The facts and circumstances set forth in the bill are equivalent in this case to a tender of complainants* deed to defendant, Liba Litchfield, and a direct request to defendants to execute a deed to complainants. It was not necessary for complainants to prepare the latter and present it to defendants for execution.
3. We are aware of no rule or principle of pleading requiring a more specific allegation of the mode of performance, or of the manner in which the clearing or fencing was done.
4. It was unnecessary to allege that Sarah (the wife) was requested to convey before suit brought. Having wrongfully taken the conveyance to herself with full notice of complainant’s rights, and without any consideration, she stood only in her husband’s rights, and must be bound by the request made upon him. Her taking the title under-the circumstances stated in the bill was a fraud upon complainants.
5. It was not necessary to allege in the bill that the wife was willing to convey her right of dower. The title never having vested in the husband, there can be no question of dower in the case. Had the title been con-, veyed to the husband instead of the wife, it might have been necessary to determine whether the prior equities of' complainant under the contract should or should not pre-* vail over her contingent right of dower.
6. The sixth and last ground assigned relates to mere matter of form, and would be cured by the general prayer had it been in itself a defect of substance.
This disposes of all the causes of demurrer assigned,, One objection, however, was taken on the argument which, if well founded, would defeat all relief by way of specific performance, and as the objection is raised on matter apparent on the face of the bill, it may be appropriately considered under the demurrer. It is insisted by the coun-. sel for defendants that, by the terms of the contract set out in the bill, the parties have agreed upon the stipulated damages which either party is to pay in case of a breach; that these damages are agreed upon as a substitute for performance; and therefore that either party had the option to perform or to pay the fifty dollars agreed upon.
It is sufficient answer to this to say that, though the parties have called this sum stipulated damages, yet as it applies to several different stipulations of very different degrees of importance, and , by the terms of the stipulation would be payable equally qn the failure to perform the least as of that to perform the most important, or the whole of them together, it is, in leg-al effect, but a penalty, and not stipulated damages; since it is evident the parties themselves .could not have treated it as a mere compensa'tion for actual damages: — Jaquith v. Hudson, 5 Mich. 123. As a penalty, it is no objection to specific performance: Dart on Vend. & Pur. 496 and note 1. We must therefore -consider the case on pleadings and proofs.
The bill, as we have seen, contains a sufficient allegation of the title of complainants: if the defendants intended to deny it, or to insist upon incumbrances as an objection to performance, they should, by their answer, have put the title in issue, or alleged encumbrances (and the burden of proof would be upon them: — Dwight v. Cutler, 3 Mich. 566). But instead of this, they have rested their refusal or failure to convey upon another and distinct ground, the non-performance by complainants of their part of the contract, not stating the want of title, nor encumbrances, as even one of the reasons for the refusal to convey.
It is true, that after having rested their refusal expressly upon the ground of non-performance by complainants, the -defendants in another part of the answer “further say,” “that said Liba Litchfield, for the purpose of ascertaining complainants’ title to the land,” “ caused an examination to be made by some person in the office of the register of deeds for said county, of the records of deeds, and that, from said examination, it appeared that complainants had •no title in or to said premises, nor could said Liba ascertain in whom the title to the land vested.” Whatever-effect this loose allegation of a hearsay examination might have had if .set forth as one of the reasons for refusing a conveyance, yet standing alone as it does, and the defendants not appearing to have sufficient confidence in the examination to enable them to express even a belief as to its •correctness, or of the want of title in complainants, we do not think it a sufficient denial of title to put the question in issue; and it is entirely silent as to encumbrances.
But had .the defendants properly alleged encumbrances and a want of title, no defect of title, nor any encumbrance, is shown by the evidence. The tax title, the prior existence of which was shown only by complainants’ evidence, was also shown to have been conveyed to complainants before the time when by the contract the deeds were to be exchanged, and before the conveyance executed by complainants. A release of mortgage is returned with the evidence, dated after the commencement of the suit, but its prior existence is not otherwise shown, nor does the evidence show that the mortgage ever affected or related to the land complainants had agreed to exchange.
The question of performance is therefore the main question in this case; and though the direct evidence of the manner of performance is somewhat conflicting, yeh when, taken in connection with the fact that Litchfield made no objection at the time to the manner in which the clearing and fencing was done, though present and aware of all the facts, his admissions and conduct, and his long acquiescence— never objecting to the mode of performance till called on to convey — the evidence we think satisfactorily shows a substantial performance by the complainants.
The defendants, in their 'answer, insist that a survey was to be made prior to an exchange of conveyances, and it was urged upon the argument that such survey was a necessary pre-requisite to a proper conveyance, and that the description contained in the deed executed and ready to be delivered by complainants was bad for uncertainty.
The contract calls for no survey, and we see no necessity for it before the execution of the deed., All that was necessary was such a description in the deed of complainants that the land described might be identified by a survey* This could easily be done here by first ascertaining the quantity in the lot Litchfield had agreed to convey, and then surveying off a tract of equal quantity from the east part of the south - east fractional quarter of section thirty-two (defendant’s land) in such manner that . the tract so surveyed off should be bounded on the west by a north and south line; and such is the legal effect of the description in the deed executed by complainants. The desci’iption is made good by the reference it contains to the other tract.
The decree of the Court below must be affirmed, with costs.
The other Justices concurred. | [
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Martin Ch. J.:
This is an action of ejectment brought by the defendants in error, upon the trial of which the deeds through which they deduce title were introduced under the statute, and without actual proof of their execution. The statute (Gomp. L. §2*750) is as follows: “All conveyances and other instruments authorized by law to be recorded, and which shall be acknowledged or proved as. provided in this chapter, * * * may be read in evidence in any court within this State without further proof thereof; but the effect of such evidence may be rebutted by other competent testimony.”
Three deeds were offered in evidence: 1st, one from Spencer and wife to Day; 2d, one from Day and wife to defendants in error; and 3d, one from Jacques, assignee of Day, to Griggs and others, from whom the defendants in error claim to derive title. The first deed is dated September 26, 1842, but the date of the second and third are not given. The questions raised by the bill of exceptions in this case relate to the competency of the deeds as evidence.
The errors assigned upon the admission of the deed from Spencer to Day, are, first, for insufficiency of the description of the land; and second, for insufficiency of the clerk’s certificate of its due execution and acknowledgment.
It is no objection to a deed that the description of lands thereby conveyed is in figures and abbreviations. This is a mode of description recognized and adopted by both the general and state governments in the sale of lands, is of common practice, and understood by every one; and there is no law requiring any more particular description than such as will 'give clear information of what premises are intended to be conveyed. We therefore think the description sufficient.
The second objection relates to the admission of the deed as evidence, without actual proof of its execution. The clerk’s certificate, without' which — as the deed was executed in another State — it would not be “authorized to be recorded,” would unquestionably be good were it not for the word “ existing ” contained in it; but from the interval of time between the execution of the deed and the date of the certificate — which is December, 1859 — it is insisted that the word limits the certificate to the time of such date. Had the certificate been made at or near the time of the deed, no question would 'arise, nor would one were the word “ existing ’’. stricken out; as in either case it would be construed as a certificate of the due and legal execution of the deed according to the laws of the State of New York as they existed at the time of such execution. In my opinion, tbe occurrence of tbe word “ existing ’’ does not invalidate tbe certificate, or qualify its construction. I cannot presume that it was inserted as a word of limitation, especially as the clerk could not legally execute any except such as would establish the lawful execution of the deed: but rather that he attempted to comply with the law, and that the word was inadvertently used, or perhaps inadvertently retained in the certificate if a blank form was used; or regarded by the clerk as referring to the time when the deed was executed.
The certificate is not an essential part of the deed, nor necessary to its validity. It is only required to authorize its being recorded; and I think it more reasonable, instead of avoiding the registry for the ignorance or inadvertence of the certifying officer, to hold the word “existing” as immaterial, or understand it as though the word “ then ” preceded it. The certificate being no part of the deed, or of its execution, and not the act of the parties to the deed, should not be construed with technical nicety unless upon imperative necessity. It is evidence of the execution of the deed; and like all other evidence, should be reasonably construed. I therefore think the deed was properly admitted.
As to the deed from Day and wife to the defendants in error, the objection is founded upon the commissioner’s certificate of acknowledgment, which the bill of exceptions says “had a seal annexed, with the words, ‘John Benson, Commissioner, N. J.’ impressed thereon, but there was not any statement or words in the certificate otherwise showing that the same was executed under Ms hand and seal.” The certificate was in proper form, and duly signed by Benson, and the record avers that he was a commissioner of deeds for this State. The fact that it was executed under his hand and seal as clearly appears from the instrument as though he had declared it by the instrument. The very signature and seal would .be necessary to attest such declaration, and their presence is such declaration. The statute under which the commissioner derived his power prescribes no form of attestation, nor of seal, and was substantially-complied with. In the case of this deed, as of the other, I think there is a substantial compliance with the statute; and I will not imperil a title by insisting upon technical nicety, or severe criticism of language. The form of an official certificate like this is immaterial in any but matters of substance. Until the Legislature prescribes a form, the rule of construction must be a liberal one, for the sake of the quiet and security of titles.
The deed from Jaques to Griggs was sufficient to convey such title as he acquired by the assignment, and is in compliance with the act of Congress respecting deeds by assignees in bankruptcy. Section 15 of that act is as follows: “A copy of any decree of bankruptcy, and the appointment of assignees as directed by the third section of this act, shall be recited in every deed of lands belonging to the bankrupt sold and conveyed by any assignees under and by virtue of this act; and that such recital, together with a certified copy -of such order, shall be full and complete evidence both of the bankruptcy and assignment therein recited, and supersede the necessity of any other proof of such bankruptcy and assignment to validate the said deed; and all deeds containing such recital, and supported by such proof, shall be as effectual to pass the title of the bankrupt, of, in and to the lands therein mentioned and described, to the purchaser, as fully, to all intents and purposes, as if made by such bankrupt himself immediately before such order.”
This section relates solely to the sufficiency of a deed containing the recitals, first, of a copy of the decree in bankruptcy; second, of the fact of the appointment of the assignee undertaking to convey; and if accompanied with a certified copy of the order making such appointment, is declared full and complete evidence of bankruptcy and assignment to validate the deed. The deed in question contained a copy of such decree, and recited tbe appointment of Jaques as assignee, and was supported by certified copies of tbe decree and order appointing tbe assignee. This was both a substantial and literal compliance with tbe act, and the deed was properly admitted.
The judgment is affirmed, with costs. | [
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Campbell J.:
The first error assigned is that no complaint was made by Harriet Donaldson, nor was any accusation and examina'tion taken in writing under oath of the said Harriet before the justice who assumed to act.
The statute does not contemplate any complaint distinct from the “ accusation and examination in writing under oath.’’ R. S. 1846, p. 189. Inasmuch as the case shows no other such accusation and examination than that of Harriet Donaldson, and that contains all the necessary facts required by law to be enumerated, we do not think that the action of her father outside of and in addition to her complaint can in any way affect its validity. It ■may be regarded as matter of surplusage. It preceded her complaint, and the latter is complete without it. The-objection that the complaint does not appear to have been sworn to before the justice is also unfounded. Where it appears in the body of the instrument to have been taken on oath before the justice, there is no force in the objection that his certificate at the foot does not also contain the words “before me,’’ whether the objection would have been valid or not otherwise — a point we are not called on to decide.
The next objection is that no issue was formed in the Circuit Court to be presented to the jury. The statute declares that “the issue to the jury shall be whether the defendant is guilty or not guilty.” The charge contained, in the complaint is required to give time and place, and it is evident the statute designed that this should be the-formal accusation, and the only one for any purpose. If the defendant did not admit the charge, it was to be left to the jury. There was no occasion for any formal issue therefore, as the law defined it, and a trial could not be had upon any special one. The proceedings are not designed to be in the regular form of common law prosecutions,, and a statutory issue exists whenever the defendant fails, to admit the charge (see section 4).
We see therefore no error in any of the proceedings whereby the verdict of the jury can be vitiated.
The order of maintenance, however, is not sustainable^ The statute makes it the duty of the Court upon a Verdict of guilty to make an order directing in what manner the defendant with the assistance of the mother shall stand chargeable with the maintenance of the child. The form in which the order here is • entered makes the liability to, support the child’ joint throughout, and does not point out what amount the defendant shall pay himself. While it was probably designed by the Court that he should furnish the money and the mother take care of the child, yet the order can hardly be made to bear that construction, as it stands. It must point out bis duty and liability expressly; and until that is done there is nothing to be •enforced.
The order of the Circuit Court must be quashed, and the cause must he remitted for the entry of a proper order •upon the verdict. No costs will he awarded.
The other Justices concurred. | [
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Martin Ch. J. :
Carelton was elected supervisor of thp township of Oceana, at the township election held in April, 1859, and duly qualified as such. His township at that time was in the county of Oceana. By an act of the Legislature, approved February 4, 1859, the county of Muskegon was organized from territory which at the time was included within the limits of Oceana and Ottawa counties, and within this territory was the township of Oceana. The information charges Carelton with willfully neglecting to produce the assessment roll of his township, for examination and equalization, to the Board of Supervisors of Muskegon county, at its annual meeting in October of that year. It is found by the sj>ecial verdict, that at the time of the alleged neglect Carleton was supervisor of the township of Oceana; that he did refuse to present the assessment roll of his township “to a body of men calling themselves and assuming to act as the Board of Supervisors of the county of Muskegon; that such body of men, being composed of the sujiervisors of the several townships embraced within the county of Muskegon, claim to act and be a legal Board of Supervisors under and by virtue of the act approved February 4, 1859, and that -in accordance' with the provisions of the said act, county officers fpr said Muskegon county were elected and qualified in April, 1859, and entered upon the discharge of their duties, and still continue to act as such, and that no other >ori different county officers have at any other time been elected- or assumed to act.”.
Carleton" sets up by way of defense, and as ground of error, that he was not bound to present the assessment roll of his township to the body acting as the Board of Supervisors of Muskegon county, because the act of February 4th was unconstitutional, and there was therefore no such county: 1st, because, as he alleges, by such act so many townships are taken away from the counties of Ottawa and Oceana, as to leave in neither of them “the number secured by the Constitution; ” and, 2d, because the fourth section of the act provides for the election of officers prior to the day when the act could constitutionally take effect.
The first ground of defense has been held invalid by us in Hice v. Ruddiman [ante], and for reasons in which I fully concur; and.it only remains to consider the second.
The fourth section, which provides for the election of county officers, is claimed to be vital to the whole act, so that if unconstitutional it will destroy the act.
The section is as follows: “ At the annual township election to be held in April next, the proper county officers for said county shall be elected, whose terms of office shall expire on the first day of January, 1861, and when their successors are elected and qualified: said officers, on or before the first of June next, shall take and subscribe-the oath of office prescribed,” &c., “and shall have and possess all the powers and discharge all the duties- conferred upon, or required of county officers in this state, and shall enter upon the discharge of such duties on the first day of June aforesaid.” The Constitution provides that no public act shall take effect or be in force, until the expiration of ninety days from the end of the session at which it was passed, unless the Legislature shall otherwise direct by a two-thirds vote of the members elected to each house. This direction does not appear to have been given in respect to the act in question, and the ninety days expired about the middle of May, more than a month after the election of county officers under section four was held.
The special verdict finds, that an election, in April, 1859, of county officers, was had, and was so had in accordance with the provisions of the act. That such officers were elected was a question of fact, proper for the jury to find; but whether the election was in accordance with the provisions of the act, or not, was a question of law, belonging to the Court alone. I have no doubt, however, that such election was in accordance with such provisions; for the language of section four imports an intention, upon the part of the Legislature, that the new county should be fully organized, and go into active political existence upon the first day of June, 1859, as that would be the first of June next after the act took effect; while it would be-absolutely erected, and its territory severed from the counties out of which it was carved, at the time the act took effect, viz: at the expiration of ninety days after the close of the session at which it was passed, which was about the 16th of May. But although an election of county officers in April, 1859, under this section, may have been unconstitutional, yet the section was not so vital to the whole act, as to render the whole unconstitutional. The election of county officers was not a pre-requisite to the creation of the county; for, by the very terms of the act, such county became a body corporate and politic long before the officers thus to be elected could enter upon their duties; and such creation was not dependent upon their election and qualification. If the election could not constitutionally have been held until the spring of 1860, yet the territory of the county of Muskegon was completely and effectually severed from Ottawa and Oceana on the day the act took effect. I therefore hold the law organizing the county to be constitutional, so far as the separation of such territory is concerned. Vide Commonwealth v. Fowler, 10 Mass. 291. In the new county were several organized townships, and from the time the act took effect they became organized townships of such county, and their supervisors thenceforward were supervisors of such county. These supervisors were not elected under the act organizing Muskegon county, nor did they derive from that act their powers, nor were their duties imposed by it. Such powers and duties spring from the general law regulating the election, powers and duties of such officers.
As supervisor of the township of Oceana, the plaintiff in error had certain duties imposed upon him, which, for reasons of'public policy, he was imperatively bound to discharge: among these were the assessment of the property of his township, and attendance as a member of the Board of Supervisors of his county at its October session, and the production of his township assessment roll for equalization. We cannot presume that he neglected either of these duties, except that of presenting his roll for equalization.
In October, 1859, the act had taken effect and become a law; and the supervisors of the several townships constituting Muskegon county, were the Board of Supervisors of such county. The assessment rolls of such townships were in their aggregate the rolls of the county, and not of the counties from which the townships had been detached. The revenues of State, county and towns depended upon the faithful discharge of the duties of the supervisors of the several townships, as township officers, and as members of the County Board.
Neither the election of county officers under the fourth section, or their non-election, affects the question of the duty of the supervisors of the new county, either as township or county officers. In either character, the law imposes upon them the performance of positive duties, the non-performance of which cannot be excused by evidence that some other officer could not perform his, or even that there was no competent officer, having power to perform some other duty. It is urged that there could be no county Ijoard, for want of a County Clerk — that his existence is vital to that of the Board: I think otherwise. The-Board of Supervisors is a constitutional body:— Vide Const. art. X; — and is not dependent for its lawful existence, or imwer to perform the duties imposed upon it, upon the existence of a clerk constitutionally elected. The law, it is true, provides that the County Clerk shall be the clerk of the Board, but if there be no such officer existing as County Clerk, from any cause. .at the time the Board is required to meet and equalize the assessment rolls of the several townships, and discharge its other public functions, I have no doubt that, from necessity and considerations of public policy, the Board possesses the power to appoint a clerk, who shall be clerk de facto, and that it can proceed to the discharge of its public duties. It would be perilous in the extreme to hold otherwise. The whole revenue of the State, and very much local legislation of the county, depend upon the action of the Board; and if such action could be prevented or stayed by the death, sickness or absence of the County - Clerk, or any vacancy of his office, public interests would be at the mercy of accident or caprice. I know of no instance, nor can I conceive of any instance in reason, in which the powers of a constitutional- body depend upon any such contingency, or are held by any such tenure.
But while I hold that Carleton cannot insist upon the objection that the section providing for the election of county officers rendered the whole act unconstitutional, for the foregoing reasons, I hold further, that if the act be good, except the fourth section, and that be unconstitutional, he could not refuse to discharge his duty, as the case shows that thfere was, in October, 1859, a clerk de facto of the county, and therefore a Board of Supervisors duly organized with a clerk competent to act. As to the rights of third persons and of the public this was sufficient. The question of the legality or illegality of his tenure of office, can only be raised in a direct proceeding in which he is a party. It would be impossible to maintain the supremacy of the laws, if individuals were at liberty, in a collateral manner, to question the authority of those who in fact hold public offices under color of legal title. — See People v. White, 24 Wend. 520; Morris v. The People, 3 Denio, 381. The case of People v. Bebee, 9 Mass. 231, is to my mind strikingly analogous to the present, and contains the only safe rule. The facts were that, on the 17th of August, 1812, an original writ was issued and served by a deputy sheriff of the county of Hampden. By a statute of 1811 the county of Hampden was erected, and it, among other things, provided that the law should take effect and be in force from the first day of August, 1812. In May, 1812, the Governor of Massachusetts appointed a sheriff of Hampden county, and on the first of August the sheriff appointed the deputy by whom the writ was served. It was insisted that, at the date of the appointment of sheriff, there was no county of Hampden, nor any such officer as sheriff of such county, and that the appointment of sheriff by the Governor, before the act took effect, was void; but the Court held that the sheriff thus appointed was sheriff of the county de facto, and that as he was no party to the record, and could not be legally heard,? the question of his title to the office should not be heard; saying that the decision, although he was not a party to the record, would as effectually decide his title to the office as if he were a party, and that this would be judging a man unheard, contrary to natural equity, and the policy of the law; and that from considerations like these has arisen the distinction between holding an office de facto and de jure. Tet in the case of Commonwealth v. Fowler, (10 Mass. 291), who was appointed Judge of Probate of Hampden county, at the same time as the sheriff in the above case, namely, in May, 1812,. upon an information in the nature of a quo warranto, the Court held the appointment void. In so holding the Court says, “No public inconvenience need be apprehended from the principle established by this decision; for so long as the persons were de facto officers under such an appointment, their official acts were lawful, except only in cases of direct injuries to their fellow citizens. But it is always in the power of the Legislature to provide against this inconvenience, and to prevent all question upon the subject by authorizing the appointment before the act creating the county is to come into operation.”
In Bucknam v. Ruggles, 15 Mass. 180, it was held that the acts of an officer de facto, having color of title, in the ordinary exercise of the functions of his office, are valid as respects the rights of third persons who may be interested in such acts; that the adoption of such a rule is necessary to prevent a failure of justice, and the great public mischief whifeh might otherwise be justly apprehended; and besides, that the officer’s title to his office ought not to be determined in that way. See also The People v. Collins, 7 Johns. 549 ; McInstry v. Tanner, 9 Johns. 135; The State v. Brennan's Liquors, 25 Conn. 278; The State v. Williams, 5 Wis. 308; Brown v. Lunt, 37 Me. 423. In The People v. Hopson, 1 Denio, 574, which was an indictment for assaulting and beating one Lascelles, a constable, and resisting him in the execution of his duty, the defendant offered to prove that Lascelles had never taken the oath of office, nor given the security required by law, and so was not constable; but Bronson C. J. says* “the evidence would be proper if Lascelles instead of the People were the party complaining, of an injury. If he were suing to recover damages for the assault, it would probably be a good answer to the action that he was not a legal officer; but a wrong doer who might be resisted. * * * But it is equally well settled that the acts of ah officer de facto, though his title may be bad, are valid so far as they concern the public, or the rights of third persons who have an interest in the things to be done. Society could .hardly exist] without such a rule.”
In erecting the county of Muskegon the Legislature probably intended to authorize the election of clerk and other county officers before the act creating the county took effect, to avoid any inconveniences which might otherwise result. Whether this could be constitutionally done or not I will not inquire, for as there was such an election, and the persons chosen entered upon the duties of their offices, they were de facto officers, and Carleton coulcl not refuse to perform his duty as Supervisor, under the pretext that the clerk, or any other officer, was not constitutionally chosen.
I therefore think the judgment of the Court below should be affirmed.
Campbell J.:
The principal question in this case is, whether there were lawful county authorities in Muskegon county in October, 1859.
The statute of 1859, providing- for the organization of the county, ordered an election for county officers at the next annual township election in the spring. The law did not take effect until ninety days after the adjournment of the Legislature, and therefore was not in force in time to apply to the April election of 1859. To give the law any force whatever, it must be construed as applicable to the next spring election after it constitutionally took effect; for until a law goes into operation it cannot be noticed or binding at all, Its terms being prospective must be applied to events subsequent to that time. No election or other action can derive validity from that which in itself is invalid and inoperative. In the case of Rice v. Ruddiman, decided at this term, my brother Christiancy (in whose view I concurred) gave this interpretation to the statute in question. No election could be had under this statute until 1860.
There could not be an officer de facto where no officer de jwre was provided for. Where the law has provided that an office may legally be filled, then the acts of an incumbent may be valid although not lawfully appointed, because the public, being bound to know the law, know that somebody may or should fill the place and perform the duties; and possession would as to them be evidence of title.
But where the law itself negatives the idea that there can be a legal incumbent, any one assuming to act assumes wliat every one is bound to know is not a’ legal office, "and bis acts cannot be effectual for any purpose.
I think that, until after the spring election of 1860, the law could not recognize any county authorities in Muskegon county; and that the judgment should be reversed.
Christiancv J. concurred in this opinion.
Manning J.:
The constitutional provision that “No organized county shall be reduced by the organization of new counties to less than sixteen townships, as surveyed by the United States,” &c., must be understood to include fractional townshijis, as no exception is made of them, and there is nothing from which it can be implied.
When the act organizing the county took effect — whether at the expiration of ninety days from 'the adjournment of the Legislature, or on the first day of June (then) next, when the county officers were required to enter upon the discharge of their duties — the supervisors and other township officers of the townships detached from other counties to form the new county, occupied the same relation to the latter that they had previously stood in to the former. No question therefore was or can be raised as to the supervisors of the new county. It is the county officers elected at the annual township election in April that objection is taken to.
Assuming that they were not officers de jure — for I am not satisfied that that part of the act relative to their election comes within the purview of the constitutional inhibition — were they not officers de facto ? The special verdict states that they were not only elected, but that they qualified and entered upon the duties of their respective offices, and thereafter continued to act as ^uch officers. Where there is no office there can be no officer de facto, for the reason that there can be none de jure. The county offices existed by virtue of the Constitution the moment the new county was organized. No act of legislation was neces~ sary for that purpose. And all that is required where there is an office, to make an officer de facto, is, that the individual claiming the office is in possession of it, performing its duties, and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary Ms election or appointment should be valid, for that would make Mm au officer de jure. The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact with .public functionaries. The wheels of government would sometimes be blocked, and the administration of justice be .stayed, if such was not the law. The oases are numerous where the official acts of such persons have been held valid, and I am unable to distinguish the case before us from Fowler v. Bebee, 9 Mass. 231, which seems to me to be on all fours with it. See also 5 Wend. 231, and 17 Conn. 585.
The judgment below, I think, should be affirmed.
Judgment affirmed. | [
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] |
The Court
allowed them to be read, and ordered the petitioner discharged; holding that the Justice obtained no jurisdiction, because the complaint did not set forth facts and circumstances, and therefore there was nothing to authorize the examination of witnesses.
Manning J.
was of opinion that the commitment was correct, and that the witnesses subpoenaed to testify in such cases could not raise the question of the sufficiency of the complaint. But he concurred in discharging Hall on the ground that the proceedings before the Justice had become discontinued, and that the commitment would not authorize an imprisonment when the prisoner could not have an opportunity to purge his contempt by answering.
Prisoner discharged. | [
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Christiancy J.:
Is larceny to the amount of one dollar and fifty cents (in resisting the arrest for which the assault was made) an offense for which the constable might arrest the offender Under the circumstances of this case, without having the warrant in his possession? This is the main question in the case. It is admitted that, if the larceny charged was a felony, the constable under the circumstances had a right t'o make the arrest, and that, had the assault made by the prisoner in resisting the arrest, resulted in killing the constable, such killing would have been murder, unless the conduct of the officer in making the arrest was such as in some measure to excuse the defendant.
But it is insisted by the counsel for the prisoner that larceny to an amount less than twenty-five dollars, though a felony at common law, ,is not such under our statutes, because not punishable with death or by imprisonment in the State prison.
The statute relied upon is section 18 chapter 161 Revised Statutes of 1846 (Comp. L. §5954): “The term felony when used in this title, or in any other statute, shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished with death, or by imprisonment in the. State prison.”
This provision is but a legislative definition 'of the term felony as used in certain provisions of the statute; and ' its effect can only be known by reference to those provisions where the term is used. Of itself, without such reference,it has no effect upon any offense whatever. Nor can it be "reasonably supposed it was intended to extend to those provisions of the statutes (of which there are two cases at least in the same Revision;— Ch. 154 §§35 and 36; Comp. Laws, §§5779 and 5780) — which in defining the offense have expressly designated it as a felony, and made it punishable in the State prison; for in such case no such general definition was required. Nor is there any more reason to infer that, where a particular provision of the same act (for the whole Revision was passed as one act) has expressly designated a particular statute offense as a misdemeanor, this definition was intended to convert it into a felony, though the provision defining the offense has made it punishable by imprisonment in the State prison. See a case of this kind, R. S. Ch. 19 §5 (Comp. L. §5917).
We must therefore understand this provision as intended to apply only to those provisions where neither the particular offense nor its grade is otherwise indicated than by the use of the term felony, and where, therefore, the definition became necessary, as it was not intended to be used merely in the common law sense.
This definition became necessary to fix the meaning of the term in the following provisions, contained in the Revision; sections 1, 2, 3, 4 and 5 of Chapter 161 (Comp. L. §§5937 to 5941) in reference to aiders and abetters, accessories, &e., and the mode -of their prosecution; section 28 chapter 153 of R. S. (Comp. L. §5738) in reference to assaults with intent to commit a “felony”; sections 10, 12, IS and 14, chapter 154 of R. S. (Comp. L. §§ 5754, 5756, 5 IS 1 and 5'IS 8) in reference to breaking and entering houses and other buildings with intent to commit a “felony”; section 19 chapter 164 of R. S. {Comp. I. § 6028) in reference to inspection of indictments for “felony”;, section 14 chapter 165 of R. S. {Comp. JL. § 6081) giving the right of separate, trials where two or more are jointly indicted “ for felony; ” and section 9 of the same chapter {Comp. L. § 6076) requiring the personal presence on trial of a party indicted for “felony.”
It was for the purpose of fixing the meaning of the term in these and similar cases that this definition was given; for a clear apprehension of the full force and effect of the definition, we have only to substitute the definition itself for the term defined, as the two must of necessity be identical in effect; we shall then read, instead of the word felony wherever it occurs in these provisions, the words, “ an offense for which the offender on conviction shall be liable by law to be punished with death or by imprisonment in the State prison.”
It will thus be readily perceived that this statute definition does not neeessarily make all offenses which are punishable with death or by imprisonment in the State prison felonies, to all intents and purposes, as would have been the effect of a direct general enactment, that all offenses thus punishable should be felonies; because, in the latter case, all the consequences and incidents of felony at common law must attach, except so far as the same might have been cut off or modified by the statute, or required by manifest public policy to be rejected. But this definition, operating merely by reference, can have the effect only to make them-felonies within this statute definition, and to the extent, and with the incidents and consequences, indicated by the respective sections or provisions of the statute referred to where the term felony is thus used — .though there may be strong reasons, for the sake of uniformity and by analogy to common law felonies, to consider them as drawing after them the usual incidents of the latter. But while this definition, by reference, includes for the purposes mentioned, not only statute offenses, but all offenses at common law which by our statutes are made punishable in the manner indicated, whether felonies or misdemeanors at common law; it is clear, I think, that even as to those common law felonies thus punishable, it can have no other effect than to render them subject to the particular provisions of the statute, where the word felony is thus used, neither- adding to nor taking from them any of the common law incidents of felony, except so far as these particular provisions may have that effect.
And as to those common law felonies not thus punishable by our statutes, they are in no way affected, either by the definition or by the provisions to which that definition refers; for the plain. reason that they do not come within either, but remain felonies at common law, in the same manner as if this statute definition had never been adopted. And the liability to arrest without warrant, incident to common law felonies, still remains untouched, by this or any other statute of this State.
The conclusions at -which I have arrived as to the effect of this statute definition, are exactly in accordance with the construction given by the courts of New York to the same provision in their statute (1 N. Y. Rev. Stat. part. 4, title 7, ch. 1 §30), from which our statute definition was copied. The question under their statute was substantially the same as under ours, though the particular provisions to which the definition had reference, differed slightly in the detail.
In Ward v. People, 3 Hill, 395, it was held that petit larceny (which by their statute was defined to be larceny to the amount of twenty-five dollars or under — Rev. Stat. § 1, ch. 1, part 4, title 6 — which in this respect differed from ours, we having strictly no such division of the offense into grand and petit larceny) though not punishable with death or by imprisonment in the State prison, and not therefore within the statute definition, was still a felony at common law — that the statute definition only defined statute felonies, but that it did not interfere with those existing at common law untouched by the statute.
Another case in the same Court, Carpenter v. Nixon, 5 Hill, 260, illustrates still more clearly the proposition, that the provisions (of the statute) referred to by the definition, are to be read precisely as if the term felony were stricken out, and the words of the definition inserted in its place. The question arose upon the competency of a witness who had been sentenced on a conviction for petit larceny. The statute (1 N Y. Rev. Stat. title 7, part 4, ch. 1, §23) provided that “No person sentenced upon a conviction for felony should be competent to testify,” &e., but that “no conviction for any offense other than a felony should disqualify,” &c. Here the same Court, the same judge giving the opinion in reference to the same offense,, and citing Ward v. People, held that the witness was not disqualified; because, though the offense still remained a felony at common law, it was not within the Statute definition, which alone disqualified; and it is difficult to see how any other view could have been taken. The statute in reference to the competency of the witness had used the term, felony, as the only term descriptive of the offense, and the term therefore came within the statute definition; while the offense of petit larceny, though still a felony, did not; but it did come within the negative words of the section, as an “other” offense than that included in the statute definition. These two decisions are therefore in perfect harmony with each other, and both, as I think, clearly correct. See also Shay v. People, 22 N. Y, 317, which is to the same effect, and like the case last cited entirely consistent with that of Ward v.' The People in 3 Hill; as will be readily perceived by inserting the words of the definition in place of the word felony in the statutes referred to. These decisions were made, the first in 1842, and the second in 1843. This provision of the New York statute was adopted into ours in 1846. As a general rule, it is a fair inference that the legislature, in adopting a statute from another state, which has there been judicially construed, intended to give it- the same interpretation it had there received by judicial construction. I see no reason for departing from this general rule in the present case, especially as I should be compelled to give it the same interpretation without the aid of these decisions.
I think therefore the charge of the Court below was correct, so far as it related to the right to arrest without having the warrant in possession.
But though Gore hjd a right, as I think, to make the arrest in a proper manner, without having at the moment the warrant in his possession; yet, to place the defendant under any obligation to submit to the arrest, the officer should have informed him of the facts, or at least of the offense for which he arrested him. But, instead of doing this, Gore simply told him he had a warrant for him. And when defendant asked to see it, Gore refused, saying he was not bound to show it, and, at once seized him and jerked him to the door. This conduct of the officer was well calculated to excite the suspicion of the defendant, and to induce him to believe the officer was acting in bad faith, and thus naturally tended to provoke the violence which ensued. The defendant, under such circumstances, might well believe he was resisting an illegal arrest, and lawfully defend ing his liberty.
Hence so much of the charge as informed the jury that If defendant drew the pistol with intent to kill, and if death had ensued, it would have been murder, was, I think, erroneous; and upon this portion of the case I concur with my brother Campbell. The verdict should therefore be set aside, and a new trial granted.
Manning J. concurred.
Campbell J.:
Two principal questions are presented in this case. First, whether an officer can arrest without warrant, upon a charge of larceny, where the amount stolen is less than twenty-five dollars, and the offense was not committed within his knowledge or presence: And second, whether he can arrest, where a warrant has been issued, but is in the hands of another officer. And a third question is presented, partly but not entirely dependent on these, arising upon the charge of the Court.
If larceny of the degree mentioned is felony under our laws, then the arrest might legally be made upon such grounds of suspicion as appeared in the case. The consideration of the manner of the arrest, except as connected with the necessity for the possession of a warrant, will be taken up hereafter; as it is not necessary to dispose of the first question.
The general chapter on Criminal Procedure, in the Revised Statutes, contains this clause: “The term ‘felony’ when used in this title, or in any other statute, shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished by death, or by imprisonment in the State prison.” Comp. L. §5954.
This section furnishes a definition, not confined to cases where the term is used in the Revised Statutes. It is made applicable to every law, future as well as existing. And, if there could be a felony not covered by the statute definition, no legislation could reach it without a very awkward circumlocution, inasmuch as the common law term is thus appropriated to a specific use.
If we consider the Revised Statutes together, even leaving out of view other laws having some bearing on the question, we shall find the Legislature has made express provision for every offense; not leaving any case to its. common law consequences, but defining the punishment for all crimes. And in order to avoid any mistake, the statutes, after providing expressly by name for nearly if not quite every offense likely to be committed, which had been previously known to the law, contain a sweeping provision, that every common law offense, not expressly provided for, shall be punished by imprisonment in the county jaii, or by fine, for a time and amount limited — § 5958. A similar provision, varying in the extent of the punishment, had previously been in force: — L. 1840, p. 45. The common law now, therefore, is chiefly valuable for its definitions of offenses, and not for its rules of punishment.
.By the Revised Statutes of 1838, provision had been made by chapter 2, title 1, part 4 (which corresponds with the chapter containing the sections referred to)' for the punishment of accessories and other aiders and abetters, of any offense “which shall be a felony at the common law, or by any statute now made, or which shall hereafter be made'!'1 M. 8. 1838, p. 651. At that time there was no such clause reaching undefined common law offenses as has been alluded to. The mode of trial was pointed out, and the principal felon was not required to be convicted first. In the Revision of 1846, whereby these provisions concerning accessories were substantially re-enacted, all allusion to common law felonies is dropped; and it is not reasonable to suppose it was done accidentally. Still less can we imagine it was designed to revive the common law absurdity, that no accessory should be tried before the principal felon had been convicted. I think the intro, duetion of a specific definition of felony shows why the change was made; and that common law felonies were not alluded to because all felonies thenceforth were to be statutory. Any other construction leads to interminable confusion ; and in no case more than in larceny; for it would require extreme ingenuity to determine, under our statutes on that subject, which had long abolished the common law test of twelve pence value, in what cases there might and. in what there might not be accessories.
It has always been considered that when a statute takes up, and completely covers, a subject previously governed by the common law, the common law ceases to operate upon it, except where the statute has made no provision whatever. Our statutes certainly cover every class of larcenies, and provide how they shall be punished. They then provide that all offenses punishable in a certain way shall be felonies; and proceed to declare how accessories and principals, to offenses so punishable, shall be tried and punished. I can not perceive how any more decisive method could have been devised whereby to abolish the common law on this subject.
But petit larceny, although a felony at common law, resembled other felonies in only one feature. It was not punishable like others, and it was not a crime to which there could be accessories. The only point of resemblance was that it was attended by a forfeiture of goods on conviction. This element never existed in Michigan; and there was .certainly very g'ood reason for changing the classification of the offense, when it had ceased to retain a single feature common to other felonies. It has always been regarded as a petty offense, punishable generally by a summary conviction before a justice ; and I do not think there is any principle of policy, or any rule of construction, which can authorize a court to apply to it, under our laws, the severe and sanguinary rules applicable to heinous offenses. There may be some reason in allowing arrests for the latter on suspicion, and for allowing the use of extreme measures, even to the taking of life, to enforce them. But were any Legislature to provide expressly for such an exercise of power, as would authorize the taking of the life of a man -only suspected of a petty theft, where he seeks to escape without violence, their action would he justly deemed atrocious. In revising the criminal law to escape such consequences, I think they have succeeded, in what no one ever doubted they designed to do.
Had the section defining felony been adopted after a judicial construction of it in another State, even by a Court of last resort, I should still feel authorized to disregard that construction, if contrary to the plain intention. But although this section was adopted from New York, we must bear in mind that the changes in other statutes of Michigan, made at-the time of its adoption, are not to be overlooked. This section was not adopted as an independent one, but as a part of a system, which did not in many respects conform to the laws of New York, either before or after its completion. And in regard to this very offense of larceny, our laws differ entirely from those. In New York, larceny is still defined as grand and petit larceny. Here there is no such distinction, and had not been since the early days of the Territory. And, when the distinction was abolished in England, it was deemed necessary by express language to declare the legal character of the new statutory offense, by making it subject to all the rules before governing grand larceny.
But the statute of New York has never received a judicial construction binding there or here. It has been decided there, repeatedly, that petit larceny does not disqualify a witness under a statute which disqualifies all persons convicted of felony. And in the last case decided, where the dieta to the contrary of some previous decisions were, relied upon in argument, the Court treated the objection with very little ceremony: — Shay v. People, 22 N. Y. 317. While this case does not, perhaps, expressly decide the point in question here, the distinction is an exceedingly nice one. And this is the only, decision made on the subject in the Court of last resort of, New York.
The only case decided which is supposed to settle the point before us is that of Ward v. The People, 3 Hill, 395, decided by the Supreme Court. The question there decided was, however, only that there were no accessories in petit larceny. The Court expressly say that it was not material to the case whether the statute did or did not leave it a felony; because it had no accessories at common law. And the Court expressed no doubt that the Legislature intended to make the offense of petit larceny a misdemeanor; but, at the same time, the Chief Justice was “ inclined to think they did not accomplish -their object.” This certainly is not a binding- decision, which can compel us to disregard that intention. And the New York Revisors, whose deliberate opinion is worthy of great respect, introduced the section in question with the understanding that it was to cover everything. In reporting it they say, “The, term felony originally imported an offense for which the offender forfeited his fief his lands and tenements, goods and chattels: 4th Black. 94. Such forfeitures have long been abolished, and the term has really no signification in our law. It is frequently used in statutes, and it is therefore desirable to give it a definite meaning. The definition proposed is conformable to the common understanding:” — 3 R. S. of N. Y. 836, 837. I am of opinion, for these reasons, that Drennan was not charged with felony; and that Gore had no right to arrest him without a warrant.
As the Court below decided that the evidence of a warrant was sufficient ground of suspicion, and that the offense suspected was a felony, the warrant was not introduced in evidence, and no ruling was had upon its legality, or the ■ authority of Gore under it. If the offense was not a felony, then of course the charge was erroneous; because the other points never went before the jury for action. But the rights of an officer,under a warrant become important on a new trial, and were argued fully on both sides, and should therefore be considered.
Two things are necessary to justify an arrest on a warrant; first, a warrant good on its face, and second, an authority in the person who undertakes to act under it.
If a warrant is upon its face void, then no officer can justify under it; although, as a general rule, no officer is bound to look behind a regular warrant coming from a proper jurisdiction. It is laid down without dissent, that no person is bound to submit to an arrest under a void warrant, or to an arrest made by an unauthorized person under a good warrant, or to an arrest made by an authorized officer under a good warrant, but not against the person arrested. In Rex v. Weir, 1 B. & C. 288, Bayley J. says, “It is of great consequence that magistrates should be careful to direct their warrants in such a manner that the parties to be affected by them may know that the persons bearing the warrants are authorized to execute them. The importance of giving such information will be easily admitted when it 'is remembered that according to the extent of the officer’s authority his. death may be murder, manslaughter, or perhaps justifiable homicide.” Coleman J. in Hoye v. Bush, 1 M. & G. 775, approving and quoting this language, says, “It is of the essence of a warrant that it should be so framed that the officer should know whom he is to take, and that the parly upon whom it is executed should Jcnow whether he is bound to submit to the arrest.” In Howard v. Gossett, 10 Q. B. 359, Coleridge J. uses this language: “Why is it necessary to state at all the cause on the face of the warrant ? Several reasons are given: not the least inqiortant is, that the party called upon to submit to the process of the law may know what it is that is charged against him, and for what it is that he is called upon to yield himself a prisoner. If no cause, or an insufficient cause appear, he takes his measures accordingly at the time; and he . must fadge from the information communicated at the time. Should he resist, and kill or injure the officer in his resistance, and be brought to trial, it could not be contended that any fact could be added to the statement in the warrant to his prejudice.” And further, “We may come nearer to the point and suppose, not only a good cause, but a good warrant, only the constable has left it at home, and arrests without any; the imprisonment clearly would be illegal; it could not be said to have been effected under and by virtue of the warrant; and surely no averment in pleading could be allowed to cure the defect.” Lord Denman also uses very strong language on the subject. And the Court of Exchequer Chamber, while they differed from the Queen’s Bench in holding- the particular warrant valid, approve of their reasoning as applied to ordinary warrants. See also Rex v. Whalley, 1 C. & P. 245; Rex v. Patience, 7 C. & P. 775. The case of Galliard, Appellant v. Paxton, Respondent, just decided by the Queen’s Bench, and reported in the American Law Register for March, 1862, (p. 305) is the only adjudged case, perhaps, which decides the precise point in issue here. In that case it was held a rescue was not illeg-al which was made of a person seized by officers, who had the warrant, but had left it in the station house. It was there held the warrant must be with the officer at the time of the arrest.
If it is not necessary that an officer should have a warrant with him when an arrest is made, then it would necessarily follow that every one would be bound to submit, upon the mere claim that he had a warrant — a principle which is condemned in the stongest terms by Lord Kenyon in Hall v. Roche, 8 T. R. 187. The cases certainly mean that the party arrested shall have a right to see the warrant at the time. And such is the doctrine laid down by the best authorities; although, if a party resists before an opportunity is given to the officer to comply with his demand, the officer may — if he has a good authority — secure the arrest first: — Commonwealth v. Cooley, 6 Gray, 350; State v. Phinney, 42 Me. 384; 2 Hale P. C. 116, note; 1 Past P. C. 319.
The English practice, like our own, authorizes warrants to issue, directed not only to one person, but also to any constable. This covers the case of Galliard v. Laxton. And any constable to whom the writ is lawfully delivered becomes empowered to serve it. But a warrant can not be law-folly held by two officers at once, where they are not together. Otherwise the doctrine of arrest on suspicion would apply to misdemeanors as well as felonies; for what could be done by one could be done by every constable in the county. In New Jersey an arrest under such a warrant was held unauthorized, except by the possessor, in The State v. Ward, 5 Harr. 496. And our statutes contain several provisions implying the same thing. The law contemplates that a party arrested shall be brought forthwith before the magistrate; but it must be upon a return of the warrant; and until this return there is no provision for bail. The prisoner is required to answer the charge as contained in the warrant of arrest: — Comp. L. Ch. 118. If a habeas corpus issues, a copy of the warrant must be retened by the officer: — Comp. L. § 5221. And any person who is a. mere stranger has a right, upon tender of fees, to have a copy of the warrant within six horn’s, under a penalty of $200: — Comp. L. § 5259.
It certainly can not be law that a person arrested is to be held until one of the many constables who happens to know or hear of a warrant can find where it is. The mischief to be guarded against is the unlawful interference with liberty; and if every one arrested must, at his peril, and without any information beyond the assertion of his captor, submit to detention, all the machinery of the law devised for the protection of the citizen becomes powerless. The consequences of such a doctrine would be so deplorable that no man could ever be safe against unlawful violence. Arrests for wrong purposes could always be made effectual. Both reason and authority are in conflict with such a position. The law of arrest only gives rights to officers where it imposes duties; and the duty to serve a warrant can never attach where the officer can not return it as soon as its mandate is obeyed. The duty of submission to a lawful arrest is found in the law, side by side with the right of resistance to an unlawful one; and it is quite as important that no one should be unlawfully taken, as that every one lawfully accused should be made to answer.
But an equally important question arises under the charge of the Court. The jury were instructed that, as Gore had a right to arrest upon sus]Dicion of felony, it would have been murder had Brennan killed him intentionally. • This, I think, as the evidence stood on which the charge Avas made, was clearly erroneous. If Gore had reasonable suspicion which would justify Mm in making the arrest, the accused could not be liable to that extent for resisting, when the suspicion was not communicated to him. When he asked the cause for which he was wanted, he was not informed that he was suspected of felony, but was merely told that Gore had a warrant for.him; which, if genuine, might have been for any grade of offense, or for a civil cause. And the officer Avhen asked to show Mm the warrant, refused to do so, saying he was not obliged to show it; and forcibly collared, and jerked him out of doors, before he attempted any resistance. There was no resistance before the officer had time to give the information. I think it would be exceedingly difficult to find any authority which can justify such an arrest ; or which can hold a defendant responsible for a knowledge of a fact wilfully concealed from Mm. Such conduct in officers of the law can not, in my judgment, be too severely reprehended. It can hardly fail to provoke violence.
I am of opinion that a new trial should be granted.
Martin Ch. J.:
The power and duty of officers to arrest, without process, persons charged with crime, are derived from the common law, and not from the statute. They are conferred and imposed in all cases of felony; but not in those of misdemeanor, except when committed in their immediate presence. When we ascertain, therefore, what are felonies at the common law, we know for what common law offenses persons charged may be arrested without process. Larceny was such an offense. The statutory definition of the word felony was not, in my opinion, designed to restrict this power or duty; or to have any other effect than that of a definition; although it may aid, perhaps, in the construction of other statutes. The word has now no peculiar value ; for no consequences peculiar in the common law, such as forfeiture of lands, &c., attach to it. The statute itself only defines the word as used in it; leaving the common law definition intact; and does not purport to go beyond such statutory use.
The power of the officer being a common law power, it would se.em to follow that no change by statute in the punishment of an offense known in the common law as a felony, and the abolition of the penalty peculiar to felony, and the consequent necessarily new definition of the term, could impair or affect that power. If the Legislature should make murder or robbery punishable by fine only, still the power to arrest would remain the same as it was when the penalty was death; for such power depends upon the nature of the offense, and not upon the severity of. the punishment. It was conferred for the protection of society; and the same reasons will exist for its exercise now as heretofore, however crime may be defined and punished. I hold with my brother Christiancy that the statute has not impaired the common law power of officers [to arrest offenders; and I concur with my brethren also in the reason assigned for 'setting aside the 'verdict.
J¥ew trial granted. | [
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] |
Martin Ch. J.:
There was no error in the refusal of the Circuit Judge to charge as requested concerning the first transaction and its effect; nor in the charge as given. The bill of exchange was executed under the law of Ohio, and was payable in that State; and its validity will be determined by the law of that State. As usury does not avoid a contract there, but only affects the remedy, we can enforce the contract, but by do other remedies than those furnished by our own statute. Those provisions of the Ohio statute which provide for the recovery or appropriation of usury paid upon a contract, form no part of the contract, but relate solely to the remedy which will be afforded by her courts to the party from whom usury is taken. Under our law, even, the first transactions would be satisfied by the subsequent ones, and the usury which was part of the first, if not contained in the last as an integral part, would afford no ground for partial defense to an action upon the last contract, either by way of payrAent, or of reduction or limitation of the arnount for which judgment may be rendered. See Thurston v. Prentiss, 1 Mich 193; Engle v. Shurtz, Ibid. 150; Craig v. Butler, 9 Mich. 21; Smith v. Stoddard, [ante, p. 148].
But we think the Circuit Judge should have instructed the jury that the plaintiff was not entitled to recover the $245.34 which Was included in th.e bill, and claimed as and for statutory damages. It appears that the statute of Ohio allows damages at the rate of six per cent on all protested paper drawn on any person, <fcc., within the jurisdiction of the United States, and without that of Ohio; and if the Courts of that State would give such damages in an action upon the demand, it was competent for the parties in settling, to include it in the new instrument or obligation given. But the plaintiff had no right to demand damages upon paper drawn upon individuals within the State; and while we think such excess was not usury, or required as such, we think it was without consideration, and should have been deducted.
For this reason the judgment is reversed, and a new trial granted.
Manning and Campbell JJ. concurred.
Chrtstiancy J. was absent when the case was decided. | [
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Martin Ch. J.:
The order in this case is interlocutory, and from it no appeal lies. See Enos v. Sutherland, 9 Mich. 148; Ballard v. Green, Ibid. 222. The decree of alimony vests in the wife no absolute right to the allowance, as it may be changed from time to time, and reduced or enlarged in the discretion of the Court:— Comp. L. § 3249; Rogers v. Vines, 6 Ired. 293; Wheeler v. Wheeler, 18 Ill. 39; Sheafe v. Laighton, 36 N. H. 240; Miller v. Miller, 6 Johns. Ch. 91. Whether the decree would be changed or modified depends upon the action of-the Court upon the coming in of the Commissioner’s report; and until some final action upon the report, no appeal lies.
The appeal must be dismissed, with costs.
The other Justices concurred. | [
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] |
Manning J.:
The bill is to remove a cloud on the title of Cyrus H. Jacobs to lands attached as his by complainant, before proceeding to sell the same on execution in the attachment suit — -the alleged cloud consisting in a claim the defendant Rebecca S. Jacobs, wife of the said Cyrus II. Jacobs, has to the land in question, under a conveyance thereof to her by her husband, in nature of a post-nuptial settlement, or separate provision made for her by her husband. To entitle complainant to the relief asked, two things must be established: 1st. An attachable interest in the land in question in Cyrus H. Jacobs previous to tbe conveyance to his wife; and 2d. The invalidity of tbe post.-nuptial conveyance, for tbe purpose stated, in a court of equity.
It appears from tbe pleadings and proofs tbat tbe lands attached .were conveyed by George B. Russell and wife to Cyrus H. Jacobs, as security for $10,000 Russell loaned of Jacobs — Russell at tbe time giving Jacobs bis bond for tbe $10,000, and Jacobs executing and delivering to Russell a. writing stating tbat tbe conveyance was given as security for tbe loan, and promising to re - convey tbe land on tbe payment of tbe $10,000 and interest. The conveyance and defeasance taken together, and construed as one instrument, are a mortgage, and nothing more. This is conceded — and tbe first of tbe two questions to be considered involves tbe effect to be given to an unregistered defeasance, where tbe property has. been attached without actual notice to tbe attaching creditor of tbe defeasance.
Tbe conveyance from Russell to Jacobs was recorded, but tbe defeasance was not; and tbe Bank insists it bad no knowledge of the existence of tbe defeasance when tbe land was attached, and tbat it therefore has a lien on tbe land for the payment of its debt, discharged of tbe defear sanee, and of all rights growing up under it.
“When a deed purports to be an absolute conveyance in terms, but is made, or intended to be made defeasible by force of a deed of defeasance, or other instrument for that purpose, tbe original conveyance shall not be thereby defeated or affected, as against any person other than tbe maker of tbe defeasance, or bis heirs or devisees, or persons having actual notice thereof, unless the instrument of defeasance shall have been recorded in tbe registry of deeds of tbe county where the lands lie.’’ — Comp. L. § 2751.
This section must be construed with tbe other sections in tbe same chapter, providing for the registry of conveyances of real estate, and must be understood as declaring all such deeds of defeasance or other instruments void, when not recorded, against purchasers for a valuable consideration without actual notice of their existence. The registry law is for the protection of purchasers in g'ood faith for a valuable consideration, against prior secret conveyances. It makes no mention of attaching or judgment execution creditors, who must stand on their common law or statutory rights, independent of the registry statute. They are not purchasers within its meaning, and can not claim the benefit of its provisions until the property attached or levied on has been sold, in pursuance of law, and has been purchased in by them. Then, and not' before, they are purchasers within the statute, and entitled to all its benefits.
The attachment law provides that “Real estate shal be bound, and the attachment shall be a lien thereon, from the time when it was attached, if a certified copy of the attachment, with a description of such real estate, shall be deposited in the office of the register of deeds in the county where the same is situated, within three days after such real estate j was. attached, otherwise such attachment shall be a lien thereon only from the time when such certified copy shall be so deposited.” — Comp. L. § 4751.
This section, when it has been complied with, only gives the attaching creditor a lien on the land attached. Unlike the registry law, it in no circumstances gives such lien a priority over pre-existing rights, as its object is not like the registry law to protect purchasers, but to secure the property attached to satisfy any judgment the party suing out the attachment may afterwards obtain against the defendant in attachment. It is a lien to the same extent as a levy on the land with an execution would be a lien, provided a judgment is obtained in the attachment suit, and a bond has not been given for the release of the property, as provided for in the other sections of the act — §§ 4754, 4755, 4756. A lien to this extent was necessary to .give effect to the attachment proceedings, which otherwise might be rendered nugatory by- a sale of the property before judgment by the defendant in attachment. While the statute takes from the debtor his right to sell, or make other disposition of the property to the jnejudice of the attaching creditor, it in no way interferes with the previously acquired rights of third persons.
Jacobs’ interest in the land attached, as shown by the defeasance, was that of a mortgagee, which is not attachable ; and complainant not being a purchaser for a valuable consideration without notice of the defeasance, is not in a position to question the validity of the transfer of the mortgage interest by Jacobs to his wife. It is unnecessary, therefore, for us to go into this part of the case, and improper that we should do so, if the rights of Mrs. Jacobs are to be drawn in question without the proper parties before us.
The decreS of the Court below dismissing the bill is affirmed, with costs.
■Martin Ch. J. and Campbell J. concurred.
Christiancy J. was absent, | [
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] |
Martin Ch. J.:
The property of the wife does not, under our statute, become the husband’s by user, or by the simple possession of it by him. The object of the statute was to prevent this result, and to abolish the common law rule respecting the marital rights of the husband over his wife’s property.
The husband can not acquire the property of -his wife except by gift or purchase, any more than he can that of a feme sole. Such gift or purchase must be established by some other evidence than that of use and possession. (See Wales v. Newbould, 9 Mich. 45).
The judgment must be reversed, and a judgment entered for the plaintiff for $220,98, as of September 13, 1861, with costs of both courts.
Manning and Campbell JJ. concurred.
Christiancy J. was absent when the case was decided. | [
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] |
Campbell J.:
Plaintiff having sued defendants for trespass, they justified on the ground that the place where it was committed was a highway which they were opening according to law. The Judge found the facts, from which it appeared that regular proceedings were had to lay out the road and assess the damages on the jfiaintiff’s land, but that no payment of the amount was made to him, and no tender except of an order on the township treasurer payable “ to the owner or occupant, or to the person entitled thereto, for the land so taken;" which be declined to receive.
The statute allows the road to be opened when the damages have been paid or tendered, or “ an order on the treasivrer of the proper township for the amount of such damages shall have been executed and delivered, or tendered to such owner or occupant by said commissioners. — Laws 1858, p. 37, § 25.
Such an order as was actually tendered is in no sense a compliance with the law. It designates no payee, and leaves the holder with no means of assuring the treasurer of his rights under it. It is payable to no particular person, and' gives no means of reasonably ascertaining the payee. An order under the statute must show on its face to whom it belongs, or is payable.
As under this finding no judgment could possibly be given for the defendants under any rule which might be adopted upon the other points mooted, we do not now feel authorized to consider them.
The judgment is affirmed, with costs.
The other Justices concurred.
The following is a copy of tho order, omitting the description of the road :
,l Bridgeport, August; 18th, 1860,
To the Treasurer o? the township of BridgeportWhereas a public highway has been laid out by the proper officers, through lands now occupied by Charles- A. Lull; said road described as follows” (giving description according to survey): “The amount of damages awarded to the person entitled thereto, $25 per acre for whatever 1 md was taken at that rate, which for the land so taken amounts to $48.62%. Pay to the owner or occupant, or to the person entitled thereto, for the land so taken, the sum above named, out of any funds raised by the township for the laying out and establishing of roads in said township.
Freeman Little, V Highway Commissioners Haniel Qurry, V for the Jesse Irish, ) township of Bridgeport.” /Egbert Bldred, Town Clerk, | [
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] |
The Court
held this not to be a final decree. It does not necessarily dispose of the case in the Court below. It does not in terms dismiss the bill, or determine, if it is dismissed, whether it shall be without prejudice or not. It says nothing on the subject of costs. These subjects would still be under the control of the Court of Chancery, notwithstanding this order. If the complainant in this case had waited until the forty days allowed by statute for an appeal had expired, expecting defendant to apply for a decree formally dismissing the bill and awarding costs, it .could hardly be held that he had thereby lost his right to appeal. If the defendant fails to perfect the decree, and the complainant does not ask leave to amend, but desires to appeal, he can himself cause the decree to be perfected for that purpose.
Case dismissed, for want of jurisdiction. | [
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Campbell J. :*
Respondents were proceeded against under the statute punishing contempts to enforce civil remedies. Complainant filed his bill claiming to be in actual possession of certain premises, and praying to have defendant Silas Simonson enjoined from trespasses of a nature likely to injure the buildings, and threatened to be repeated.
An injunction was issued which was allowed in accordance with the prayer of the bill, but which enjoined Silas Simonson, and his attorneys, agents and servants, from in any way interfering or meddling with the possession, and from entering into the premises.
The affidavits on which the attachment was applied for set forth that, in the month of September previous to the filing of the bill (which was in January, 1861), Simonson had been put out of possession by a writ of possession in favor of Messier. That in December, 1860, early in the month, one Peter Yan Ness took a lease from Messier for eighteen months, and was put in actual possession about the first of January, but was put out again the same day, with all his effects, by Silas Simonson. The injunction was served January 11th, and the next day Yan Ness undertook to enter the house, but was prevented by Simon-son, who, with the other respondents, continued to keep him out. TTpon this showing an attachment was issued against all the respondents, and on its return was heard upon these and other proofs.
It appears without contradiction that when the bill was filed, and ever since, Silas Simonson and the other respondents under him have had actual possession of the premises; and that their acts during this period have consisted only of endeavors to maintain it. This being the case, the injunction has not been violated, for it was issued to preserve an actual possession against molestation, and not to oust a possessor who may have been a tortious holder. No Court can, by a preliminary ex parte order or process, turn even a wrong doer out of possession. And we can not'presume that the writ in the case before us was designed to have any such operation.
It becomes therefore unnecessary to consider the important and interesting questions which would have arisen had the case been presented upon a different state of facts.
The order of the Court below must be reversed, with costs. ,
The other Justices concurred. | [
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Campbell J.:
This is a bill filed to obtain a reduction of a judgment or decree obtained by Amos Pettibone against complainants, as stockholders in the Novi and White Lake Plank Road Company.
* * * As the items which the bill seeks to apply, do not all rest upon the same foundation, they may be considered separately. Are then the complainants entitled to relief by having Harmon Pettibone’s share deducted? This is claimed to be permitted for the reason that Harmon Pettibone is alleged to be the real owner' of the decree. It is not claimed, however, that he has any other interest in it now than when it was rendered. His connection with the controversy is derived, if at all, from the original transactions attending the building of the road. If there is anything in that connection which can authorize the complainants to insist on his contribution in reduction of their own liability under the statute, it formed to that extent a complete defense in the former chancery suit. In that ease, the very object of the suit was to determine their liability to ¡respond as stockholders. Had Harmon Pettibone been the nominal plaintiff in that cause, they could not have been compelled to contribute without an allowance for his proportion. If the real plaintiff, the same rule would apply. The ownership of the claim was a necessary issue, and it was open to them to show the truth concerning it. It is not claimed or shown that Harmon Pettibone’s position was not as well known when that case was begun as it is now. The evidence as well as the allegations in the bill are all based on the original transactions, which were known to the parties in the outset. It would be doing violence to well settled and necessary rules of equity to permit a bill to be filed for relief on grounds of defense which ought to have been relied on in the former controversy. No excuse whatever is shown for the neglect. Complainants upon their own showing have no equity to claim this deduction in this way.
The payments made after verdict ought justly to have been applied before judgment was rendered on the verdict. Upon a summary application to the Court where it was rendered, they would unquestionably have been endorsed on the execution. In Smith v. Weeks, 26 Barb. 463, it was held that an action at law would lie in favor of the 'judgment debtor, to recover back such payments. We have no doubt they would have been admissible in the former chancery suit in reduction of the claim. But whether these complainants could under any circumstances file a bill to have them applied upon a judgment against the company, or against themselves, is a question not free from difficulty. No good reason, however, appears, why this defense was not set up before, as some of the complainants knew of the payments at the time, and all of them would have known the true state of the accounts by the exercise of ordinary diligence in preparing for their defense- in the former action. We do not think they can resort now to a bill in equity for this relief, upon the facts as they appear before us.
The remaining item which is relied upon as a set-off, is the judgment for damages against John N. Pettibone. This judgment was rendered in favor of the plank road company, more than a year after the former chancery suit was commenced. Without considering the fact that the chancery decree is in favor of Amos and not of John, and assuming John to be the owner of it, there is no ground upon which we have been able to base a decree of set-off. It has never been held that the fact that claims and counter-claims arise from the same transaction so attaches them as to make a right of set-off arise between them in all cases. Unless the one operates as a payment of the other, the right of reduction is not attached to the contract, and whether or not therefore a set-off can be allowed depends upon circumstances, and is merely an incident under those circumstances affecting the remedy. See as illustrating this principle, Chapman v. Derby, 2 Vern. 117; Green v. Darling, 5 Mason, 202; Hackett v. Connett, 2 Edw. Ch. 73; Wolcott v. Sullivan, 1 Edw. Ch. 399; Rawson v. Samuel, Cr. & Ph. 161; Ramney v. Beale, 10 Price, 113; Pettat v. Ellis, 9 Ves. 563.
It is a rule to which no case recognizes an exception —so far as we have been able to discover — that the party who seeks to obtain the benefit of a set-off, must be the real owner, and have the control of the counter-claim, so that his creditor who sues him is his debtor as to the claim offered in reduction : — 2 Pars, on Cont. 243. It is plain that the complainants have no claim to the judgment against John N. Pettibone, either at law or in equity. The parties to- that judgment are not the same as. the parties to the decree on which they seek to have it applied. The plank road company might have shown those damages in defense of the original action at law, but they preferred, and probably with reason, to obtain a separate judgment in their own favor. That judgment is corporate property and does not belong to complainants.
Although the case is somewhat barren of proof, we have come to our conclusions with some reluctance. But the rules applicable to the case are, clear, and. based upon principles which cannot be disregarded.
The decree must be reversed, and the, bill dismissed with costs.
Martin Ch. J. and Christiancy J, concurred.
Manning J. did not sit in the case, having been of counsel. | [
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] |
Christiancy J.:
This was a proceeding before a Circuit Court Commissioner to recover the possession of certain land, claimed to be wrongfully withheld by the defendant Smith. The Commissioner gave judgment for restitution in favor of complainant. The defendant appealed to the Circuit Court: and the Circuit Court, on the trial of the appeal, gave a judgment of dismissal, on the ' ground that the matter in controversy was not within the jurisdiction of the Commissioner, and, consequently, that the Circuit Court had no power to hear and determine the matter in controversy on appeal; and the complainant removes the case to this Court by writ of error.
It is clear from the nature of the case stated in the complaint, that it was intended to be brought under the twelfth and thirteenth sections of chapter 123 Rev. Stat. of 1846 (Chap. 150 Comp. laws) applicable to cases where possession has neither been taken nor held by force, and that, if the complaint cannot be sustained under these sections, it must fail.
Several questions have been raised, which, from the view we have taken of the case, we do not .deem it necessary to notice. It is objected by the defendant that, even admitting the case made by the complaint to be, in other respects, sufficient, it fails to make a case coming within the provisions of the statute, and therefore to give jurisdiction to the Commissioner; because it does not aver that the complainant was “entitled to the possession of the premises ” at the time the complaint was instituted.
This being a special proceeding, not according to the course of the common law, and before a special tribunal of limited powers, it is clear that the complaint must show upon its face all that is necessary to bring the case within the statute, and to confer jurisdiction, or none can be obtained.
Under the Revised Statutes of 1838, Chap. 5, Title III, Part 3, and the amendment of 1840 [haws of 1840, p* 83 &c.)5 which made no provision as to the ' form or requisites of the complaint,, this, on the general principles of pleading, could only be done by setting- forth the particular facts malting a case within the statute; Caswell v. Ward, 2 Doug. Mich. 374; Royce v. Bradburn, Ibid. 377. This was found to be often difficult and embarrassing, and not well adapted to a summary proceeding. The Revision-of 1846, Chap. 123, was, we think, intended to remove this difficulty to some extent, by indicating a form of complaint, in which the case might be set out in a general form, without setting forth the particular facts, and somewhat on the principle of the statute declaration in ejectment. The twelfth section of the chapter describes the various classes of cases in which this proceeding may be had. The thirteenth section is in the following words-: “In the cases specified in the preceding section, the person entitled to the possession of the premises, his agent or attorney, may make complaint in writing and on oath, and deliver the same to a Circuit Court Commissioner or Judge of the Circuit Court for the county, setting forth that the person complained of is in possesáon of the lands- or tenements in question, describing them, and that such person holds the same unlawfully and against the right of the complainant.”
It is doubtless true that a complainant is not bound to avail himself of the benefit of this section, but is still at liberty to set out in full the particular facts to bring his case within the statute. If however, he elect to do this, he can omit no fact which is essential to his case,, or which is necessarily included in, or implied by, the general form of complaint indicated by the statute.
Whether under this thirteenth section it would be necessary to indicate in any manner under what clause of the twelfth section the complainant intended to bring his case, it is not necessary here to decide; but we are inclined to the opinion that this may be left to the proof.
But the complaint must show upon its face that it is made by the “person entitled to the possession, his agent or attorney.” No other person is competent to make it. In whatever form, therefore, the complaint is made, the allegation that the complainant (or person in whose behalf the complaint is made) is at the time entitled to the possession, constitutes a necessary part of the complaint, without which no jurisdiction can be obtained. It' is true the latter part of the section does not expressly enumerate this as one of the matters to be set forth; but it is necessarily implied by'the former portion of the section, which requires the complaint to be made by the “ person entitled to the possession, his agent or attorney.” This was expressly decided in Bush v. Dunham, 4 Mich. 339. The decision, it is true, was made upon a complaint under the third section of the same chapter; but the language of the two sections is identical, in this respect; in neither is the allegation expressly required in that part of the section stating what shall be set forth; but its necessity is equally and necessarily implied in both. In the present case there is no such allegation. It is true the complaint, after setting forth- a certain deed to complainant fi;om Moses Smith and wife, which reserved a life estate to the grantors, and averring the death of the two grantors — the last on the fourth day of June 1858 — avers that complainant thereby “became entitled to the possession of the premises.” This, however, is but an allegation that he was entitled to the possession on the fourth day of June, 1858, more than fourteen months prior to the making of the complaint. As matter of evidence, ‘a fact, in its nature continuous, being once shown to exist, will often be presumed to continue, unless the contrary be shown. Whether this rule applies to pleading in ordinary cases, it is not necessary here to determine, as it certainly cannot apply to the averment of a jurisdictional fact, which is required to be an existing fact at the time the proceeding is instituted,.in order to confer jurisdiction of a special proceeding like this. This point was also directly decided in Bush v. Dunham, ubi supra. The express allegation of the existing right of the complainant to the possession can, we think, be dispensed with only by setting out the particular facts which show the right to be an existing one. Hence we think the complaint in this case was not sufficient to confer jurisdiction.
But it is assigned as error that the Circuit Court gave judgment for costs against complainant, which it is insisted the Court had no authority to do, if he had no jurisdiction of the subject matter of the complaint.
Had the statute provided this pi;pceeding as an original one in the Circuit Court, and the complaint had been thus defective, this objection would, doubtless, be well taken. But when the statute gives an appeal, as in this case, from the Circuit Court Commissioner to the Circuit Court, it gives to the latter the jurisdiction to decide upon the jurisdiction of the Commissioner as one of the questions involved in the appeal, and the appeal may be brought for the purpose of avoiding the effect of the Commissioner’s decision on this very ground. We can see no reason therefore to doubt the power of the Circuit Court to give the judgment for costs against the complainant in this case, under § 5600 Comp. Laws, as' the complainant would have been entitled to costs had the judgment been in his favor:— Ibid. §§ SSSH and 4991. We think, therefore, there was no error in the judgment or proceedings of the Court below, and that the same should be affirmed, with costs.
Martin Ch. J. and Manning J. concurred,
Campbell J.:
I agree in the. result arrived at by my brother Christiancy, both as to the insufficiency of the complaint and the liability for costs.
I think also that enough should appear on the complaint to show that the case comes within one of the enumerated classes in which summary proceedings are allowed. It is a general rule that the jurisdiction of special tribunals over the case presented should appear on the record, and it seems to me this is not made otherwise by the statute. I see nothing in our present law to make the case of Caswell v. Ward, 2 Doug. Mich. 376, inapplicable. That case was decided upon another statute, but I do not think that upon this point there is any repugnancy between the different enactments.
Judgment affirmed. | [
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] |
Christiancy J.:
The will here in question was executed on the eleventh day of April, 1853, and contains several bequests or legacies, exceeding one hundred dollars each, to each of the following parties: The American Baptist Missionary Union, The American Baptist Home Mission Society, The American Bible Union, The Baptist Convention of the State of Michigan, The American Baptist Publication Society, and The American Tract Society. The testator died on the 19th day of January, T859. The will was not republished by the testator after the passage of the “Act concerning Churches and Religious Societies,” &c. (Comp. L. §§ 2009 to. 2036), and is witnessed by two subscribing witnesses only.
The Circuit Court, on appeal from the Probate Court of Jackson County, determined that, as to so much of the will as contained these bequests or legacies, the will had not been sufficiently proved; and to this extent disallowed the same. The case is brought to this Court by writ of error upon a finding' of facts by the Circuit Judge, and exceptions to the conclusions of law upon such finding.
The whole question depends upon the construction to be given to the 25th section of the “Act concerning Churches and Religious Societies,” &c (Comp. L. § 2033). And the question is, whether this section was intended to embrace wills made or executed prior to the statute, or only those which should be thereafter executed. The power of the Legislature to affect wills previously executed, but which had not yet taken effect by the death of the testator, can not be doubted; if such was the intention of this statute, then, as to these legacies, the will must have been executed in the mode prescribed_ by this section, and three subscribing, witnesses were required to render these legacies valid: otherwise the whole will would stand upon the general statute of wills, with which its execution conformed — two witnesses only being required.
The 24th section of the act (Comp. L. § 2032) is confined to devises, gifts and bequests “hereafter made or attempted to be made by last will or testament ” — “ which shall be made or purport to be made, directly or indirectly to, or for the use of any church, congregation, religious order or religious society, or to or for the use of any ecclesiastical, educational or eleemosynary institution connected or to be connected with, or under the control or direction of, any church, congregation, order or society, or under the control or direction or subject to the visitorial power of any officer or officers or other authority of such church, congregation, order or society, in his, her or their official or ecclesiastical capacity.”
The 25th section is in the following words: - “ Every gift, bequest, legacy or donation of any money or personal property, to the amount of one hundred dollars or more, hereafter made or attempted to be made, by last will or testament, to or for the use of- any or either of the parties, or for any or either of the purposes mentioned in the last preceding section, shall be utterly void, if such last will or testament shall be made during the last sickness of the testator or testatrix; and no gift, bequest, legacy or donation of money or personal property, to the amount of one hundred dollars or more, shall in any case be valid, if made by the last will and testament, unless such last will and testament shall be proven in open Court by the testimony of three subscribing witnesses, nor unless it shall clearly appear by the testimony of said witnesses, that the whole will was read to or by the person executing the same, in their, presence, and fully understood by the testator before the execution thereof, and that the same was executed at the time when it bears date.”
It will be seen that the twenty-fifth section prohibits certain gifts, bequests and legacies of money or personal property being made by -will during the last sickness of the testator, and that it expressly refers to the 24th section for the description of the parties to whom, and the purposes for which such legacies are forbidden to be made during such last sickness; and that this provision is confined to “gifts, bequests, legacies and donations hereafter made or attempted to be made by last will or testament.” We think it very clear that neither this provision, nor the 24th section, was intended to affect any will previously executed, whether the testator was then alive or not: for though this language might be susceptible of a slightly different meaning from that of “a will hereafter made,” yet the words “hereafter made or attempted to be made” we think were intended to refer rather to the act of the testator than to the taking effect of the will by his death.
But the counsel for defendants in error insist that, even admitting this view to be correct, yet the subsequent provision which is particularly applicable to the present case, has no such limitation; and this .is the point upon which they seem mainly to rely.
The language is, “and no gift, bequest, legacy or donation of money or personal property, to the amount of one hundred dollars or more, shall in any case be valid, if made by last will and testament, unless,” &c. It is true this language is general, and, if taken literally without reference to the subject matter, the general objects and scope of the act, would apply to all wills giving legacies to that amount to any person or for any purpose whatever. But on looking to the whole scope and object of the act, it is quite manifest such was not its object, and that to .give it this construction would be an entire departure from the purpose which the Legislature had in view: it would in fact bring the act, or, at least this provision, in direct conflict with the Constitution; as a provision of this kind, applying to all wills generally, would have no connection with, or relation to, the objects indicated by the title of the act.
The counsel for the defendants in error not only admit, but insist, that the provision can not have this extent of application, but they urge that the “gifts, bequests, legacies,” &c., here mentioned, must be confined to those of the same character specified in the former part of the section, as to the parties to whom, and the purposes for which they are made; but that the qualifying words, “ hereafter made or attempted to be made,” do not apply to these latter bequests and legacies.
After a careful examination we are entirely satisfied, that the “gifts, bequests, legacies,” &c., last mentioned, are the same gifts, bequests and legacies mentioned in the former portion of the section. By the first provision of the section they are to be void, if made during the last sickness of the testator: by the last provision they are to be void whether made during the last sickness or not, “unless suoh last will and testament shall be proved in open Court by the testimony of three subscribing witnesses,” &c. We can therefore see no plausible ground for holding that the terms “hereafter made or attempted to be made,” do not apply equally to the “gifts, bequests and legacies” mentioned in both the provisions of the section. The latter provision is to be read as if the word such were inserted, so as to read, “and .no such gift, bequest, legacy, &c.” The word such would seem to have been omitted by accident, probably in copying or printing. The Legislature of 1859 amended the section by inserting it (.Laws 1859, p. 449). But the amendment was unnecessary, as the act, without it, was susceptible of no other rational construction.
The necessary conclusion is, that this will does not come within the provisions of the act in question; and having been duly executed and witnessed under the general statute of wills, and proved by the two subscribing witnesses, it should have been allowed as a whole. That part of the judgment or determination of the Circuit Court which disallowed the will as to the legacies in question, «must therefore he reversed, and a judgment or decree of this Court must be rendered, upon the facts found by the Judge, allowing and establishing the whole will; and the plaintiffs in error must recover their costs of both courts.
Manning and Campbell JJ. concurred.
Martin Ch.- J. was absent when the case was heard. | [
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Campbell J.:
The bill in this ease was filed to foreclose a mortgage made by Wellington Johnson and wife to complainant. Hall, who is a subsequent purchaser, answered, showing that the mortgagor had conveyed a part of the mortgaged premises to one Lucina Redson subject to the entire mortgage, which the deed declared she was to pay, and that his own purchase was made subsequently. He claimed that in decreeing a sale the Court below should require the portion of the land sold to Mrs. Redson to be first offered, and that his portion should only be resorted to in case of deficiency. The evidence shows without contradiction that a sale in this order would not prejudice complainant. The Court below declined to protect his priority, and Hall appealed.
There can be no doubt of the right of the defendant Hall to have this course taken. The case of. Mason v. Payne, Wal. Ch. 461, fully settles the doctrine, which is a very familiar and reasonable one. The objection that a cross bill was necessary, is not well taken. The defendant does not seek any affirmative relief, neither does he seek to deny or destroy any right of the complainant, to whom, upon the case as presented, the order in which the parcels are sold must be a matter of .indifference.
The decree of the Court below must be so modified as to require the sale of Hall’s premises to be postponed, so that the remainder be first offered and sold. The appellant is entitled to the costs of this Court, but not of the Court below.
The other Justices concurred. | [
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Christiancy J.:
The prisoner was charged with an assault with intent to kill and murder one Patrick Hunt. The evidence on the part of the prosecution was, that the prisoner entered the saloon of one Michael Foley, in the village of Houghton, where said Hunt was standing with several other persons; that prisoner entered through a back door and by a back way leading to it, in his shirt sleeves, in a state of great perspiration, and appearing to be excited; and on being asked if he had been at work, said he had been across the lake; that, on entering the saloon, he immediately passed nearly through it to where said Hunt was standing, and, on his way towards Hunt, said something, but it did not appear what, or to whom; that as soon as the prisoner came up to where Hunt was standing, he fired a pistol at Hunt, the charge of which took effect upon the head of Hunt, in and through the left ear, causing a severe wound thereon; by reason of which Hunt in a few moments fell to the floor, was partially deprived of Ms sense of hearing in that ear, and received a severe shock to his system which caused him to be confined to his bed for about a week, under the care of a physician; that immediately after the firing of the pistol prisoner, left the saloon, nothing being said by Hunt or the prisoner. It did not appear how, or with what, the pistol was loaded. The prisoner offered evidence tending to show an adulterous intercourse between his wife and Hunt on the morning of the assault, and within less than half an hour previous; that the prisoner saw them going into the woods together .about half an hour before the assault; that on their coming out of the woods the prisoner followed them immediately (evidence having already been given that prisoner had followed them to the woods); that, on their coming out of the woods, the prisoner .followed them and went after said Hunt into the saloon, where, on his arrival, the assault was committed; that the prisoner on his way to the saloon, a few minutes before entering it, was met by a friend who informed him that Hunt and the prisoner’s wife had had sexual intercourse" the day before in the woods. This evidence was rejected by the Court, and the prisoner excepted. Was the evidence properly rejected? This is the main question in the case, and its decision must depend upon the question whether the proposed evidence would have tended to reduce the killing — had death ensued — from murder to manslaughter, or rather, to have given it the character of manslaughter instead of murder?' If the homicide — in case death had ensued — would have been but manslaughter, then defendant could not be guilty of the assault with intent to murder, but only of a simple assault and battery. The question therefore involves essentially the same principles as where evidence is offered for a similar purpose in a prosecution for murder; except that, in some cases of murder, an actual intention to kill need not exist; but in a prosecution for an assault with intent to murder, the actual intention to kill must be found, and that under circumstances which would make the killing murder.
Homicide, or the mere killing of one person by another, does not, of itself, constitute murder; it may be murder, or manslaughter, .or excusable or justifiable homicide, and therefore entirely innocent, according to the circumstances, or the disposition or state of mind or purpose, which induced the act. It is not, therefore, the act which constitutes the offense, or determines its character; but the quo animo, the disposition, or state of mind, with which it is done. Actus non facii reum nisi mens sit rea.” People v Pond, 8 Mich. 150.
To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offense as the act which causes the death; without the concurrence of both, the crime can not exist; and, as every man is presumed innocent of the offense with which he is charged till he is proved to be guilty, this presumption must apply equally to both ingredients of the offense — to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof, as to each, rests equally upon the prosecution, though the one may admit and require more direct proof than the other; malice, in most cases, not being susceptible of direct proof, but to be established by inferences more or less strong, to be drawn from the facts and circumstances connected with the killing, and which indicate the disposition or state of mind with which it was done. It is for the Court to define the legal import of the term, malice afore- - thought, or, in other words, that state or disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as, in their judgment, they deserve: and that the Court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as presumption of law. If Courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole’ evidence it did not exist. I do not here speak of those cases in which the - death is caused in the attempt to commit some other offense, or in illegal resistance to public officers, or other classes of cases which may rest upon peculiar grounds of public policy, and which may or may not form an exception; but of ordinary cases, such as this would have been had death ensued. It is not necessary here to enumerate all the elements which enter into the legal definition of malice aforethought. It is sufficient to say that, within the principle of all the recognized definitions, the homicide must, in all ordinary cases, have been committed with some degree of coolness and deliberation, or, at least, under circumstances in which ordinary men, or the average of men recognized as peaceable citizens, would not be liable to have their reason clouded or obscured by passion; and the act- must be prompted by, or the circumstances indicate that it sprung from, a wicked, depraved or malignant mind — a mind which, even in its habitual condition and when excited by no provocation which would be liable to give undue control to passion in ordinary men, is cruel, wanton or malignant, reckless of human life, or regardless of social duty.
But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by .which the control of reason was disturbed, .rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or. rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter.
To what extent the passions must be aroused and the dominion of reason disturbed to reduce the offense from murder to manslaughter, the cases are by no means agreed; and any rule which should embrace all the cases ,that have been decided in reference to this point, would come very near obliterating, if it did not entirely obliterate, all distinction between murder and manslaughter in such cases. We must therefore endeavor to discover the principle upon which the question is to be determined. It will not do to hold that reason should be entirely dethroned, or overpowered by passion so as to destroy intelligent volition : State v. Hill, 1 Dev. & Bat. 491 ; Haile v. State, 1 Swan, 248; Young v. State, 11 Humph. 200. Such a degree of mental disturbance would be equivalent to utter insanity, aud, if the result of adequate provocation, would render the perpetrator morally innocent. But the law regards manslaughter as a high grade of offense; as a felony. On principle, therefore, the extent to Avhich the passions are required to be aroused and reason obscured must be considerably short of this, and never beyond that degree Avithin which ordinary men have the power, and are therefore morally as Avell as legally bound, to restrain their passions. It is only on the idea of a Adolation of this clear duty, that the act can be held criminal. There are many cases to be found in the books in Avhich this consideration, plain as it Avould seem to be in principle, appears to have been, in a great measure, overlooked, and a course of reasoning adopted which could only be justified on the supposition that the question was betAveen murder and excusable homicide.
The principle involved in the question, and which, I think, clearly dedueible from the .majority of well considered cases, Avould seem to suggest as the true general rule, that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition,; liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment.
To the question, what shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide, committed under its influence, the character of manslaughter; on principle, the answer, as a general rule, must be, anything the natural tendency of which would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them — not such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects folíolo from physical causes; for then the individual could hardly be held morally accountable. Nor, on the other hand, must the provocation, in every case, be held sufficient or reasonable, because such a state of excitement has followed from it; for then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men, and on account of that very wickedness of heart which, in itself, constitutes an aggravation both in morals and in law.
In determining whether the provocation is sufficient or reasonable, ordinary human nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard — unless, indeed, the person whose guilt is in question be shown to have some peculiar weakness of mind or infirmity of temper, not arising from wickedness of heart or cruelty of disposition.
It is doubtless, in one sense, the province of the Court to define what, in law, will constitute a reasonable or adequate provocation, but not, I think, in ordinary cases, to determine whether the provocation proved in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case. As a general rule, the Court, after informing the jury to what extent the passions must be aroused and reason obscured to render the homicide manslaughter, should inform them that the provocation must be one, the tendency of which would be to produce such a degree of excitement and disturbance in the minds of ordinary men; and if they -should find such provocation from the facts proved, and should further find that it did produce that effect in the particular instance, and that the homicide was the result of such provocation, it would give it the character of manslaughter. Besides the consideration that the question is essentially one of fact, jurors, from the mode of their selection, coming from the various classes and occupations of society, and conversant with the practical affairs, of life, are, in my opinion, much better qualified to judge of the sufficiency and tendency of a given provocation, and much more likely to fix, with some degree of accuracy, the standard of what constitutes the average of ordinary human nature, than the Judge whose habits and course of life give him much less experience of the workings of passion in the actual conflicts of life.
The Judge, it is true, must, to some extent, assume to decide upon the sufficiency of the alleged provocation, when the question arises upon the admission of testimony; and when it is so clear as to admit of no reasonable doubt upon any theory, that the alleged provocation could not have had any tendency to produce such state of mind, in ordinary men, he may properly exclude the evidence; but, if the alleged provocation be such as to admit of any reasonable,doubt, whether it might not have had such tendency, it is much safer, I think, and more in accordance with principle, to let the evidence go to the jury under the proper instructions. As already intimated, the question of the reasonableness or adequacy of the provocation must depend upon the facts of each particular case.' That can, with no propriety, be called a rule (or a question) of law which must vary with, and depend upon the almost infinite variety of facts presented by the various cases as they arise. See Stark. on Ev., Amer. Ed. 1860, pp. 616 to 680. The law can not with justice assume, by the light of past decisions, to catalogue all the various facts and combinations of facts -which shall be held to constitute reasonable or adequate provocation. Scarcely two past cases can be found which are identical in all their circumstances; and there is no reason to hope for greater uniformity in future. Provocations will be given without reference to any previous model, and the passions they excite will not consult the precedents.
The same principles which govern, as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or, in other words, to the question of cooling time. This, like the provocation itself, must depend upon the nature of man and the laws of the human mind, as well as upon the nature and circumstances of the provocation, the extent to which the passions have been aroused, and the fact, whether the injury inflicted by the provocation is more or less permanent or irreparable. The passion excited by a blow received in a sudden quarrel, though perhaps equally violent for the moment, would be likely much sooner to subside than if aroused by a rape committed upon a sister or a daughter, or the discovery of an adulterous intercourse with a wife; and no two cases of the latter kind would be likely to be identical in all their circumstances of provocation. No precise time, therefore, in hours or minutes, can be laid down by the Court, as a rule of law, within which the passions must he held to have subsided and reason to have resumed its control, without setting at defiance the laws of man’s nature, and ignoring the veryj principle on which provocation and passion are allowed to be shown, at all, in mitigation of the offense-The question is one of reasonable time, depending upon all the circumstances of the particular case; and where the law has not defined, and can not without gross injustice define the precise time which shall be deemed reasonable, as it has with respect to notice of the dishonor of commercial paper. In such case, whore the law has defined what shall be reasonable time, the question of such reasonable time, the facts being found by the jury, is one of law for the Court; but in all other cases it is a question of fact for tho jury; and the Court can not take it from the jury by assuming to decide it as a question of law, without confounding the respective provinces of the Court and jury: — Stark. Ev., Ed. of 1860, pp. 768, 769, 774, 775. In Rex v. Howard, 6 C. & P. 157, and Rex v. Lynch, 5 C. & P. 324, this, question of reasonable cooling time was expressly held to be a question of fact for the jury. And see Whart. Cr. L., 4th ed., § 990 and oases cited. I am aware there are many cases in which it has been bold a question of law; but I can see no principle on which such a rule can rest. The Court should, I think, define to the jury the principles upon which the question is to be decided, and leave them to determine whether the time was reasonable under all the circumstances of the particular case. I do not mean to say that the time may not be so great as to enable the Court to determine that it is sufficient for the passion to have cooled, or so to instruct the jury, without error; but the case- should be very clear. And in .cases of applications for a new trial, depending upon the discretion of the Court, the question may very properly be considered by the Court.
It remains only to apply these principles to the present ease. The proposed evidence, in connection with what had already been given, would have tended strongly to show the commission of adultery by Hunt with the prisoner’s wife, within half an hour before the assault; that the prisoner saw them going to the woods together, under circumstances calculated strongly to impress upon his mind the belief of the adulterous purpose; that he followed after them to the woods; that Hunt and the prisoner’s wife were, not long after, seen coming from the woods, and that the prisoner followed them, and went in hot pursuit after Hunt to the saloon, and was informed by a friend on the way that they, had committed adultery the day before in the woods. ,1 can not resist the conviction that this would have been sufficient evidence of provocation to go to the jury, and from which, when taken in connection with the excitement and “great perspiration” exhibited on entering the saloon,' the hasty manner in which he approached and fired the pistol at Hunt, it would have been competent for the jury to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which, within the principle already explained, would have given to the homicide, had death ensued, the character of manslaughter only. In holding otherwise the Court below was doubtless guided by those cases in which Courts have arbitrarily assumed to take the question from the jury, and to decide upon the facts or some particular fact of the case, whether a sufficient provocation had been shown, and what was a reasonable time for cooling.
But there is still a further reason why the evidence should have been admitted. No other cause being shown for the assault, the proposed evidence, if given, could have left no reasonable doubt that it was, in fact, committed in consequence of the alleged provocation, whether sufficient or not; and all the facts constituting the provocation, or which led to the assault, being thus closely connected, and following each other in quick succession, and the assault itself in which they resulted, constituted together but one entire transaction. The circumstances which, in fact, led to the assault were a part of the res gestae, which the jury were entitled to have before them, to show what was the real nature of the act, the quo animo, state of mind and intention, with which it was done. The object of the trial should be to show the real nature of the whole transaction, whether its tendency may he to establish guilt or innocence / but, until the whole is shown which might have any bearing one way or the other, its tendency to establish the one or the other can not be known. Any inference drawn from a detached part of one entire transaction may be entirely false. And, for myself, I am inclined to the opinion, that all the facts constituting the res gestae, so far as the prosecuting counsel is informed of, and has the means of proving them, should, on principle and in fairness- to the prisoner, be laid before the jury by the prosecution. They naturaEy constitute the prosecutor’s case. And whenever it may appear evident to the Court, that but a part of the facts, or a single fact, has been designedly selected by the prosecution from the series constituting the res gestae, or entire transaction, and that the evidence of the others is within the power of the prosecutor, it would, I think, be the duty of the Court to require the prosecutor to show the transaction as a whole. See by. analogy, Holden’s case, 8 C. & P. 606 ; Stoner’s case, 1 C. & K. 650; Chapman’s case, 8 C. & P. 559 ; Orchard’s case, Ibid, note; Roscoe Cr. Ev. 164. Until this should be done it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn; as every reasonable hypothesis of innocence, or a lower degree of guilt, is not, it seems to me, excluded. Criminal prosecutions do not stand on the same ground, in this respect, as civil cases. In the latter no such presumption is to be overcome; nor is it necessary to exclude every other hypothesis than the one sought to be established: — 3 Greenl. Ev. § 29. But however this may be, it was clearly competent for the defendant to show the rest of the transaction, whether known to the prosecution or not. I think, therefore, for the several reasons stated, the evidence offered was erroneously rejected.
After the evidence was closed, the prisoner was caEed by his counsel to make a statement under the statute. This statement went strongly to corroborate the facts offered to be shown by the evidence rejected. The prisoner’s counsel requested the Court to charge, that the prisoner’s statement was for the consideration of the jury; that they should receive it as evidence in the cause, and give it such credit as, under the circumstances, they believed it entitled to; which the Court refused, and the prisoner’s counsel excepted. But the Court in this connection did charge, that the statement could not be received in relation to matters of defense excluded by the Court, the conduct of Hunt and the prisoner’s wife; but that where there were |facts and circumstances in relation to the commission of the offense, the jury might consider the prisoner’s statement in considering the evidence, and give it such weight as they thought proper.
The only substantial error of the Court in 'relation to this “ statement,” is that which grew out of the exclusion of the evidence, and was the natural consequence of that error. All he intended to say was, that the statement might be considered by the jury so far only as it had any bearing upon the case; but that, so far as it related to the conduct of Hunt and the prisoner’s wife, it had no such bearing. It was, thus far, erroneous; but in other respects substantially correct. It is of little consequence whether the statement be called evidence, or by some other name. It is not evidence within the ordinary acceptation of that term; because not given under the sanction of an oath, nor is the prisoner liable for perjury or to any other penalty, if it be false; nor can a full cross-examination be enforced. Tet it is clear the jury have a right to give it such credit, in whole or in part, as under all the circumstances they may think it entitled to.
The judgment should be reversed, and a new trial granted.
Martin Ch. J. and Campbell J. concurred.
Manning J.:
I differ from my brethren in this case. I think the evicence was properly exclude.d. To make that manslaughter which would otherwise be murder, the provocation — I am not speaking of its sufficiency, but of the provocation itself— must be given in the presence of the person committing the homicide. The cause of the provocation must occur in his presence. Park J. in Regina v. Fisher, 8 C. & P. 182, in speaking of the cause of provocation says, “ In all cases the party must see the act done.” Any other rule in an offense so grave as taking the life of a fellow being, in the heat of passion, I fear would be more humane to the perpetrator than wise in its effects on society. More especially since the abolition of the death penalty for murder, and the division of the crime into murder in the first and second degree. There is not now the same reason, namely, the severity of the punishment, for relaxing the rules .of law in favor of a party committing homicide as before. It would, it seems to me, be extremely mischievous to let passion engendered by suspicion, or by something one has heard, enter into and determine the nature of a crime committed while under its influence. The innocent as well as the guilty, or those who had not as well as those who had given provocation, might be the sufferers. If it be said that in such cases the giving of the provocation must be proved or it would go for nothing; the answer is, that the law will not, and should not permit the lives of the innocent to be exposed with the guilty in this way, as it would do did it not require the cause of the provocation to occur in the presence of the person committing the homicide. See Regina v. Fisher, 8 C. & P. 182; Regina v. Kelly, 2 C. & K 814; and State v. John, 8 Ired. 330.
I think the judgment should be affirmed.
Judgment reversed, and new trial ordered. | [
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] |
•Manning J.:
• In 1854, Thomas Firby sold to the Detroit and Pontiac Railroad Company, now the Detroit and Milwaukee Railway Company, three lots situate in the city of Detroit, numbered 11, 12 and 13, and conyeyed the same to the company by a warranty deed, with a covenant against incumbrances, and took back a mortgage on the same premises for $16,000, a part of the purchase money. Firby assigned the mortgage to C. & A. Ives. The assignment was absolute on its face, but was given as security for a debt that Firby was owing them. Firby afterwards assigned the same mortgage to complainant Griggs, to secure a debt he was owing Griggs. The Iveses filed a bill against the Railway Company to foreclose the mortgage, making John M. Forbes, John W. Brooks and complainant, parties defendants as subsequent purchasers or incumbrancers. The subpoena was personally served on the Railway Company and on Griggs. Forbes and Brooks being non-resident defendants, and not appearing, the bill was taken as confessed against them- under the statute. It was also taken as confessed by the Railway Company. Griggs appeared and answered, stating, among other things, that the assignment to the Iveses was intended as security only for what Firby was owing them, and the subsequent assignment to himself to secure what Firby was owing him. On February 8th, 1858, a decree was entered, stating the amount due on the mortgage from the Railway Company (for the whole of the mortgage debt was not then due), and directing the payment of the debt Firby was owing the Iveses, amounting to $6,308,01, and the payment of $3,289,33 to Griggs, that being the amount then due on what Firby was owing him. •
The bill in the present case is filed by Griggs against all of the parties to the former bill, and against the following persons who were not parties to that bill, viz: Thomas Firby, Erastus Corning, Frederick C. Gebbard, George F. Porter, Charles J. Brydges, Thomas Reynolds, Henry C. R. Beecher, John Owen, James Y. Campbell, Jared C. Warner and Matilda Firby. After setting forth the several facts already mentioned, the bill states, on information and belief, that the Railway Company had made some kind of mortgages or other conveyances of the premises to Brydges, Reynolds and Beecher, as trustees for parties unknown to complainant; that they had purchased of the Iveses the aforesaid mortgage and decree; that they claimed to be the owners thereof and to control the decree; and that they refused to execute the decree by a sale of the mortgaged premises. The other defendants, who were not parties to the first bill, are stated as having, or claiming to have, some right or interest in the mortgaged premises, as subsequent purchasers, incumbrancers or otherwise. And the bill concludes with a prayer for an execution of the Ives decree, or a foreclosure of the mortgage on which that decree was entered, and the general prayer for other or further relief.
The Railway Company, Brydges, Reynolds, . Beecher, Owen, Campbell and Porter, put in an answer admitting all the statements in the bill except the purchase of the Ives decree, which it states was purchased by Brydges and Reynolds in their individual capacity and hot as trustees, and that Beecher was not a party to the purchase. It also states that on the 9th of November, 1859, Forbes and Brooks, under the statute providing for such cases, filed a petition in the Ives foreclosure suit for leave to answer the bill in that cause; that leave was granted, and that they thereupon filed an answer, and that no further proceedings had been had in that cause. The answer also states that lots 11 and 12 were incumbered by a mortgage, given by William Gooding, when he was owner of the lots, to Aretus Wilder, dated September 27th, 1850, for $4,000 and interest. And that lot 13 was also incumbered by a mortgage given by Firby and wife and Thomas Wood and wife, when they' owned the lot together, to Joseph Penny, on the 27th May, 1852, for $2,500 and. interest; that the Wilder mortgage, so far as appeared of record, had not been paid or discharged, in whole or in part: that the Penny mortgage had been foreclosed by the mortgagee against the mortgagor, and lot 13 sold under the decree on the 8th July, 1858, to D. Bethune Duffield, for $1,554,85. These mortgages the answer insists should be deducted from the mortgage given by the Railroad Company.
Firby and' wife and the Iveses also answered, .-but as no question arises on either of their answers, it is not necessary to notice them further.
The bill was taken as confessed by Forbes, Brooks, Corning, Gebhard and Warner.
A decree having been entered for- complainant, the Railway Company, Brydges, Reynolds, Beecher, Owen, Campbell and Porter, appeal to this Court, and ask a reversal or modification of the decree.
1. A reversal of the decree. . This is asked on the ground that the bill can not be sustained as an original bill for the foreclosure of the mortgage, as the bill previously filed by the Iveses and the decree in that suit are a bar to a second bib for the same purpose by a party to that suit. Nor as a bill to execute the decree in the Ives suit— complainants remedy in that case being by petition and not by bill.
As to this last objection, if the parties to both suits were the same, and nothing had transpired since the Ives decree rendering another bill necessary, there would be some force in the objection, on the score of costs. But whether in such a case it would or should go further than staying proceedings on the second bill when the objection is taken •at an early stage of the cause, with leave for complainant to proceed by petition; or, when not so made, to a denial of costs to complainant on the final hearing, may well be questioned. It is not however our intention to decide this point, as the assignment of the mortgage and decree to Brydges und Reynolds, of itself, made a case for a bill to carry the decree into execution: — Cooper’s Equity, 99. Where the parties in interest remain the same, and no new rights have arisen, a petition would seem to answer every purpose, and should be adopted, as it is more expeditious and less expensive than a bill. But when a third person has acquired an interest in the decree, a bill is necessary to bring him before the Court, that his rights may be passed upon by the Court, as in other cases.
Failing on this point, it is next said by the appellants that the decree was vacated by the appearance and answer of Forbes and Brooks, under the statute relative to nonresident defendants. It was vacated as to them, but left in statu quo against the other defendants. The only effect of the order permitting them to appear and answer .was to vacate the decree as to them. The ' statute neither gives nor was intended to give a re-hearing to parties regularly before the Court, and who had been or might have been heard, and whose rights had been passed upon by the decree.
Forbes and Brooks appeared and put in their answer to the Ives bill after the present bill, which has been taken as confessed by them, was filed. And if they wished to avail themselves of the right they had thereby acquired, they should have appeared and set up their defense by answer to the present bill. This they have not done, but, as already stated, permitted the bill to be taken against them as confessed. Neither have they appealed; and if there was error as to them in the complainant’s mode of proceeding — which we do not think is the case — the appellants can not be heard to make the objection, as they aro in no way affected by it: — Warner v. Whittaker, 6. Mich. 133,
The object of the bill is to have the benefits of the Ives decree, and at the same time foreclose the mortgage against the defendants who were not, but should have been, parties to that suit. It partakes of the character of' both a foreclosure bill and a bill to execute the Ives decree. It contains the elements of both, by whatever name we may call it, which is of little consequence. It is an original bill against the defendants who were not parties to the Ives bill, and a supplemental bill as to the parties to that bill.
2d. The Gooding mortgage on lots 11 and 12, and the Penny mortgage on lot 13. These mortgages were on the-premises when Firby conveyed . to the Railroad Company; and it is insisted that, as the conveyance contains a covenant against incumbrances, they should be deducted from the amount due on the company’s mortgage to Firby, They have not been paid by the Railway Company, or any of the appellants. Non constat that they will ever be called on to pay them, or that they ever will be paid by them. How then can they be set off? It is not necessary to inquire whether they are good and subsisting incumbrances or not, so long as they have not been paid by the appellants, and they do not show that they have been or are in danger of being damnified by them. The Penny mortgage it is true has been foreclosed, and lot 13 has been sold under the decree to Duffield, of whom it has been purchased by Brydges and Reynolds, for Sl^SO. But it does not appear the Railway Company, or either of the appellants claiming under it, was a party to the foreclosure, or is bound by the foreclosure proceedings. Nor that either of the appellants has been or is threatened to be ousted of his title. Brydges and Reynolds purchased in their own right and not as trustees for the bond holders. Their purchase, therefore, was not and can not be treated as payment of tbe mortgage by them as trastea mortgagees. It is not necessary to say what would he the effect of such facts on the rights of the parties if they appeared in the case. It will he time enough to dispose of that point when it arises. But we are of opinion the pleadings and proofs fail to make a case calling for a deduction from the amount due on the company’s mortgage.
As to the form of the decree. It is said to he that of an ordinary foreclosure. We see nothing objectionable in this under the circumstances. When the Ives decree was entered the railway mortgage was not all due, and only a part of the debt which Firhy was owing complainant, and to secure which the mortgage had been assigned to complainant. Further sums having become due on both, a new reference and a decree based on the commissioner’s report became necessary.
The decree must he affirmed, with costs.
Martin Ch. J. and Christianct J. concurred.
Campbell J. did not sit in the case. | [
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] |
Christiancy J.:
The first error assigned is, that the Court overruled the objection of the defendant below to the panel of jurors. This objection was made on the ground that, under the statutes and the Constitution of the State, there were no such officers as clerk" or sheriff, for the reason that the county had] not been legally and constitutionally organized at the time of the trial, and that there was no law authorizing the election of county officers.
The act of February 4th, 1859 (Sess. L. p. 94) purports to organize the county of Muskegon, describing by townships and ranges the territory of which it is to be composed, establishes the county site at the village of Muskegon, authorizes the electors at the election in November, 1860, to elect one member to the House of Representatives, and then provides, § 4, that “ at the township election to [be held in April next, the proper county officers for said connty shall be elected, whose terms of office shall expire on the first day of January, 1861, and when their successors are elected and qualified.”
It is insisted by the plaintiff in error, that the act is in violation of § 2 Art. X of the Constitution, because it leaves less than sixteen full townships of thirty-six sections each in , each of the organized counties from whose territories it was taken, and no provision is made for submitting the question to the people. It is admitted that the remainder of each of those counties contains more than sixteen townships, if townships which are fractional by the public surveys are to be counted. By the Constitution organized counties are not to be reduced “to less than sixteen townships as surveyed by the United States, unless” &e.
Now, “as surveyed by the United States,” each of these fractional townships is treated and described as a separate and independent township, as much as -those which are not fractional; and in describing lands within them it would not be necessary to describe the township as fractional. We are therefore all of opinion that these fractional townships are to be treated as whole townships under this provision of the Constitution.
But it is insisted, secondly, that as no particular time was fixed by the act when it should take effect, and it was not passed by a two-thirds vote, it could not go into operation until ninety days after the end of the session, which would bring it to the sixteenth or seventeenth of May, 1859; and that, as the county officers were required to be elected in “April next,” it follows, as a consequence, that the election was required to be held before the act could constitutionally take effect; and that the act, so far as it authorized the election, was void.
It is very clear the act did not take effect till ninety days after the end of the session. But we do not think the act was therefore void as to the election provided for. It took effect in May, 1859, and must be understood as beginning to speak at the moment when it became a law, and not before. It must have the same construction as if passed on the day when it took effect and directed by a two-thirds vote to take immediate effect. “April next” must therefore be understood as April, 1860, being the next April after the act took effect.' Any other construction leads to absurdity, and imputes to the Legislature the enactment of a farce under all the solemn forms of legislation.
An election held in April, 1860, would be a full compliance with the law, and, no excepiti on being taken on the ground that it was not so held, we must presume it was then held, and the officers duly elected.
The first error therefore is not well assigned.
The other errors assigned raise the question whether riparian ownership of lands along Muskegon lake is to be governed by the law applicable to tide waters, or substantially by the common law rule applicable to fresh water streams above the ebb and flow of the tide?
The plaintiff below appears to have been the owner of fractional section eighteen, T. 10 N. of R. 16 west, bounded, according to the United States survey of the public lands, by the water line of the lake. The section was made fractional by the waters of the lake occupying a part of what would otherwise have fallen within its lines. He had executed a mortgage of this fractional section, which had been foreclosed in the United States Circuit Court for the District of Michigan. Either about the time of the mortgage or afterwards, and before the foreclosure, he had erected a saw-mill and other buildings in the shallow waters of the lake, about twenty-nine rods from the margin or meandered line of the section, but within the area which, but for the water, would have been within the lines of the section, and at or a little beyond the point where a sand bar, extending from the land, sunk below the water: the depth of the water where the mill was built being about two feet. This sand bar at the time the min was built furnished the road way to, or very nearly to, the mill, but in subsequent higher stages of the water was covered, and a road way was made of slabs to the land, and the space around the mill, or what is commonly known as the mill yard, was formed by slabs and refuse .stuff from the mill. Along the sides of the bar and about the mill the bottom was a soft and muddy deposit, in which grass and rushes grew.
The plaintiff in error (defendant below) justified the taking of possession and the ejecting of the plaintiff below under a writ of possession issued in the foreclosure suit.
The evidence in the case tended to show (and upon this there appears to have been no dispute) that Muskegon lake is about six miles long, with an average width of about two and a half miles; that “the outlet from it into Lake Michigan is about sixty rods long”; and though the evidence is silent as to the width of the “outlet,” yet it is evident from this language that the lake itself does not extend.to Lake Michigan, but that it discharges its waters into the latter through a comparatively narrow passage, called an outlet, and that this is about sixty rods long. But “the level of the lake is affected by the level of Lake Michigan, and rises and falls with it.” — It does not appear by the evidence whether a distinct river channel (of Muskegon River, which flows into this lake and through it to Lake Michigan) can be traced through the lake. Such are the facts appearing in the case; and it is difficult to conjecture how any other facts which might be made to appear could alter, the effect of these upon the question whether this lake is to be considered a part of Lake Michigan. And though it was admitted by both q> arries that, “for the purposes of the trial, Lake Muskegon should be considered an arm or estuary of Lake Michigan, and part and parcel thereof, and not as a widening or continuation rof Muskegon River,” I am inclined to consider this rather as the admission of a conclusion of law from the facts, than as a mere admission of fact. Whether this lake is to be considered a part of Lake Michigan, or as a widening of the Muskegon River, so far as it might be material, would be a question of law to be decided upon the facts of the case, and no admission of the parties could bind the Court as to the law. The lake in question might partake of the characteristics of both, and the question would then be which predominates. And upon the assumption that a different rule is to be applied to each — which I do not intend to be understood as admitting — I should be inclined to hold that this lake, so fat as its character can have any bearing upon the question of riparian ownership, is to be treated as more properly a widening of the Muskegon River, or a separate lake, than as a part of Lake Michigan. The only circumstance which I have been able to discover tending to give it the character of the latter, is the fact that it rises and falls with it. If this fact were sufficient to make it a part of Lake Michigan, then it is difficult to see why every other stream, large or small, which empties into that lake, should not be considered a part of it so far up as it is affected by the rise and fall of the lake. The rise and fall of Lake Michigan and the other great lakes- of the same chain is not a tide occurring at regular intervals, like that of the ocean, nor does it arise from the ;same cause. And though it is probable their waters may be slightly affected by lunar attraction, and a very minute tide may perhaps be detected by a long and careful course of observation with accurate instruments; yet the Court must judicially notice that it must be too slight to be recognized by ordinary observation, or to serve any practical purpose in determining the extent of riparian ownership. This fact was judicially noticed in Lorman v. Benson, 8 Mich. 18. Courts must also be presumed to be so far acquainted with the laws of nature, as to .enable them judicially to determine that the rise and fall of ¡these lakes is governed mainly by the same causes which affect the rise and fall of tbe rivers which flow into them, and which rise and fall more than the lakes themselves; and that all the connecting straits between the lakes, such as the straits of Ste Mary (or Ste Mary’s river), the St. Clair and Detroit rivers, must, of necessity, rise and fall with the lakes which they connect. It is a matter of public notoriety that tlie waters of Detroit River vary in height at different, but irregular periods, to the extent of several feet from this causej -and quite as much as those of Lake Michigan or Muskegon lake are shown to vary. Tet we all held in Borman v. Benson that the common law rule applicable to streams above the ebb and flow of the tide applied to that river, and I have not been able to discover any fact or circumstance in this case sufficient to make a substantial difference in principle between that case and [the present. I am entirely satisfied with the principles established by that case, •and think them substantially applicable to the present. Whether the riparian ownership extends to the center of the lake is a question not involved in this case; the only question being whether it extends to the place where the mill is erected, which is in the shallow water of the lake some twenty-nine or thirty rods from the shore, on ground which is susceptible of beneficial private use and enjoyment as land. The real question is whether the ownership of section eighteen bordering upon the lake carries with it the ownership of the locus in quo, not whether it extends beyond, or whether its outward limits in the lake can be defined with precise accuracy. But if the water continues so shallow as to render the lands under it susceptible of beneficial private use to the center line of this narrow lake, then I have no hesitation in saying I think the riparian ownership extends to such center line, unless indeed there may be intervening islands wMch the government have shown an intention to reserve from the grant of the main land, by surveying them as separate tracts, in which case the riparian ownership would extend only to the center line between the island and the main land.
If the water becomes so deep in approaching the-center of the lake as to render the lands under it inca, pable of such private or individual use, the question of' ownership, beyond where it is available for such purpose, becomes as barren as the use itself; and is of no practical importance whatever. But to deny all riparian ownership, under the shallow waters, because its outward limits in the-lake can not, a priori, without reference to the facts of the particular case, be defined with a precision which shall settle-all other eases, would be fextremely unphilosophical, and contrary to the principles and analogies of the law in other-cases. There are many classes of cases, especially where the-question is between the rights of individuals and those of the public, in which the precise line can not be drawn by any general rule applicable alike to all cases. But the law does not therefore deny the existence of both public and private rights, nor either of them: and the courts, admitting the existence of both, seek to, determine the question between them upon the facts of the particular cases as they . arise.
I do not mean to say that the ownership of the tract here in question, or any other tract bordering upon the lake, must necessarily extend into the lake in the direction of the side lines of the tract: this might depend upon the shape of the lake and the relative rights of adjoining owners. But no such question arises here, as will readily appear by reference to the map attached to the record. When the-question arises between adjoining owners, it will not be found difficult of decision within the principle of adjudged eases..
But this riparian ownership does not’ carry 'with it the-right to the exclusive and unrestricted use of the lands ordinarily covered by the water; as in the case of rivers,, that use must in all’ cases be subordinate to the paramount public right of navigation, and such other public rights as may be incident thereto. In other words, all the private or individual use and enjoyment of which the land is susceptible, subordinate to, and consistent with, the pub-lie right, belong to the riparian owner as against any other person seeking to appropriate it to his individual use.
These principles, when applied to Muskegon Lake, can no more interefere with the public right of navigation than when applied to rivers. In both cases the ownership is equally qualified by, and subordinate to, the rights of the public. In fact, navigation is much more likely to be benefited than injured by the application of these principles. Wharves and other similar erections are essential to the interests of navigation; and if the bed of the lake -to high or. low water mark were vested in the State, no private owner could extend a wharf one foot, from the water line without becoming a trespasser, and incurring the risk of losing his improvements, though navigation might be aided, rather than injured by it; while, ¡by admitting the riparian ownership as above explained, individual enter, .prise is stimulated to improvement, and the public interest is subserved. The public, through their proper authorities, have always the right to restrain any encroachments which may be injurious to the public right, and to compel the removal of any obstruction or impediment, as weE as to punish the offender, to the same extent as if the bed of ■the lake were vested in the State.
I am not aware that the State or the Federal Gi-overn!ment has at any time asserted any right or claim to the beds of the lakes more than to those of the rivers, and I ’think the same principles of riparian ownership apply equally 1 to‘both. I speak here of the small lakes within the State, because the large lakes on our borders are not involved in the present case — though. I am not aware that the State or the United States has ever asserted any claim with respect to the one more than the other, and I must frankly admit that I have not, as yet, seen any sound reason for •making a distinction based upon a difference of size between lakes more than between rivers: — Jones v. Soulard, 24 How. 40 — nor because some may be a state or national boundary, while others are not. But without expressing any opinion upop the large lakes on our borders, I think the general understanding and common usage of the country have as clearly recognized the principles of riparian ownership with reference to the lakes as to the rivers within the State, and that this general understanding and common usage have been constantly acted upon: and that c'apital and labor to a very great extent have been expended on' the faith of ¿them can not admit of a reasonable doubt.. Tq repudiate this common usage at this late day, by creating an arbitrary distinction which has no foundation in the nature of things, and to recognize in the State or the United States a proprietorship in the beds of the hundreds of lakes and natural ponds within her limits, would, in my opinion, be an unwarrantable interference with private property, and do incalculable mischief.
These lakes and ponds are scattered over almost all parts of the State; they impart to the landscape the charm of picturesque scenery; their banks are often selected as favorite sites for residence, and command a high price; these considerations entered into the original purchase from the Government, and every subsequent purchase. Much, and in many cases most, of the value of these locations, and of the residences upon them, consists in the beauty of the prospect which the lakes afford. But if the land under them belongs to the State or the Federal Government, any man may go into the shallow water a few feet from the shore and erect in front of such dwellings, mills, fishing houses, or such other buildings as his profit, convenience, or malice may dictate, and thereby destroy the beauty of1 the prospect and the value of the property, and the owner has no remedy but as one of the public at large. The Attorney General could not well interpose for the protection of the owner’s private interest alone, and the public-sight would not in general be impaired.
Some of these lakes form no part of a chain of navigable waters, and are not susceptible of public use for purposes of navigation. Some of them are entirely enclosed by the lands of a single owner. If the bed of the lake belong to the State or the United States in one case, I do not see why it does not equally in others wherever it has been meandered by the public survey. Some startling consequences would flow from such a doctrine, which it is unnecessary here to notice.
There is much good sense in the observations of the Supreme Court of Ohio in Gavit's Adm'rs. v. Chambers, 3 Ohio, 496, and they have^ met with the very general assent of the Courts, especially in the Western States. And though these observations were applied to a river, they are, I think, equally applicable to the lakes; and if 'the beds of these lakes are to .be treated “ as unappropriated territory, a door is opened to incalculable mischiefs. Intruders upon the common waste would fall into endless broils amongst themselves, and involve the owners of adjacent lands in controversies innumerable. Stones, soil, gravel, the right to fish, would all be subjects of individual scramble, necessarily leading to violence and outrage.”
I am' therefore well satisfied that both public and private interests are best subserved by recognizing the principles of riparian ownership in respect to the lakes, substantially to the same extent as applied to rivers.
The charge of the Court below, applying to Muskegon Lake the law applicable to tide waters, was erroneous. The judgment must therefore be reversed, with costs, and a new trial granted.
Manning J.:
On the trial it ivas admitted that Muskegon Lake is “an arm or estuary of Lake Michigan, and part and parcel thereof.’’ The charge was based on this admission, and its correctness must be tested by it.
In Lorman v. Benson, 8 Mich. 18, the common law rule, that gives to the owner of land on a river above tide water the bed of the stream to the middle of the river, was held applicable to the Detroit river, which differs from ordinary rivers only in that it connects two lakes— St. Clair and Erie — having its origin in one and terminating in the other.
To apply this rule to our large lakes, it seems to me, would be absurd. To hold, for instance, that a deed of an acre of land, in a square form, bounded on one side by Lake Michigan, conveyed as an incident to the grant a strip of land of the same width extending forty or fifty miles into the lake, with the sole right to the grantee to take fish in the waters covering the same— for the ownership of the bed of a stream carries with it this right, Hooker v. Cummings, 20 Johns. 90; Angel on Watercourses, § 61 — would be an anomaly so great that it would only need to be stated to be universally condemned.
It does not follow from this, however, that the owners of land on our lakes have no greater rights in the lakes than the citizens of the State at large. Whether they have or not is the present subject of inquiry. As individuals, as citizens of the State, they have not. But there may be rights connected with the land itself, growing out of location, public policy, or having some other origin, to which they may be entitled, and which are not common to the citizens of the State at large, or to persons owning-lands not thus situated.
We have no legislation on the subject: and in the absence of all legislation, the inquiry is, what are the rights of the citizens of the State in our great lakes? They are the rights of navigation and of fishing. These rights are common to all, whether they own land on the lake shore or not. At the same time it must be admitted, that the owners of such lands have greater facilities for the enjoyment of these rights than others. In this respect they may be likened to a person residing on a highway, while their fellow citizens generally may be likened to a person residing at a distance from such highway, and who has no means of approaching it except over the land of another. Both have equal rights to the use of the highway, when upon it; but the first, by reason of his residence, has a facility for using it that the other has not.
But the similitude fails, or does not hold good, when we attempt to press it farther. The highway spoken of being the work of man, all rights connected with it are artificial, or conventional. They have no existence of themselves. Whereas the lakes are the work of our Creator, and our rights to them as highways and fisheries are natural and not artificial rights, and may therefore be said to be self-existing rights. The same may be said of the facilities for their enjoyment peculiar to the owners of land on the lake shore. These are also natural and not artificial rights, and like all natural rights, cannot justly be taken from them by the State unless necessary for the good of the body politic, to which all natural rights must yield. They are natural rights incident to location, and of kin to the right of the owners of such land to the lake breeze, or to the exuberant fertility of the soil, should it prove to be more luxuriant than the soil back from the lake. No one would for a moment think of taking away either of these rights from the owner of the land. And yet the rights of which we have been speaking are as truly rights as either of these.
If what we have said be correct," a well settled principle of law steps in here to aid the plaintiff in error. It is this: that where the law gives a right it gives with it all minor rights necessary to its enjoyment. Wharves and piers are almost as necessary to navigation as vessels, and ship-yards or places for the construction of vessels are indispensable. May not therefore the owner of the shore, under this rule, use the adjacent bed of the lake for the construction of ways, for the launching of vessels, or of wharves and piers for vessels to lie at and receive and discharge their cargoes? The right of navigation without such right would be incomplete.
It seems to me on principle as well as reason, that the owner of the shore has a right to use the adjacent bed of the lake for such purposes. Wharves and piers must be constructed by some one, and by whom if not by the owners of the adjacent shore? No one else can construct them unless it should be the State, or some one under its authority. But has the State that right? Can the owner of the shore be cut off from the lake against his consent, without taking from him those natural rights of which we have spoken ?
Without deciding this point, the doubt suggested by it may suffice for the custom that has so long prevailed that it may now be considered the settled policy of the State, for the owners of the shore to construct such works and to. use the bed of the lake for that purpose. In a government like ours such is undoubtedly the true interest of the State. It stimulates individual enterprise, encroaches on no private right, leaves the public rights of navigation and fishing unimpaired, and turns to a good account what would only be a profitless monopoly in the hands of the State.
Mills and manufactories, unlike wharves and piers, do not add to the conveniences or usefulness of the lakes as highways or thoroughfares; and yet, they seem to me clearly to come within the state policy mentioned. A. different policy as to them would depress rather than encourage enterprise, and render that unproductive which otherwise might be made useful. I am therefore of opinion that all such constructions connected and used with the shore, pass as an incident or appurtenance of the shore in a conveyance of the latter.
The other questions in the ease will be considered in the case of Carleton v. The People, now before us. | [
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Manning J.:
The plaintiffs in error were to have one dollar fifty cents per thousand feet for drawing the timber, one dollar-of which was to be paid as the timber was drawn, in supplies to enable them to carry on the job, and the remaining fifty cents in cash, when all the timber was drawn. In the language of the contract, “ it being understood that the balance kept back is to secure the completion of this contract; and it is hereby agreed between the parties that the fifty cents per thousand feet is settled, fixed and liquidated damages, in case this contract is not completed by the said first party.”
They having failed to draw all the timber, the question is whether the fifty cents per thousand feet on what was drawn, and which was to be paid on completion of the contract, is to be regarded as stipulated damages, or in. the nature of a forfeiture or penalty for not completing the contract? The Court below charged the jury that the fifty cents per thousand feet on what had been drawn was stipulated damages. In this we think the Court erred. If stipulated damages for a non-performance of the entire contract, the defendant in error could not recover any other or greater damages for a non-performance, in whole or in part. And it would follow that he could recover no damages whatever on the contract, had the plaintiffs in error refused to draw any of the timber. Such clearly could not have been the intention of the parties. They must have intended that if the plaintiffs in error should draw a part of the timber, and not the whole, they should not be paid the fifty cents per thousand on what had been drawn by them. That, in the language of the contract, it should be “fixed and liquidated cfitmages.” If the contract had provided for the payment of fifty cents per thousand feet as liquidated damages for the timber not drawn, the case would be altogether different. For the nearer such a contract was completed, the less would be the damages. The damages would be proportioned to the non-performance. But the contrary would be the case as the contract is, if the fifty cents per thousand is to be regarded as liquidated damages, and not as a penalty. For the nearer the contract is completed the greater are the damages in case of failure. The damages for not drawing five thousand of five hundred thousand feet would be $24*7,50, whereas the damages for failing to draw four hundred and ninety-five of the five hundred thousand Avould be only $2,50. The policy of the law will not permit parties to make that liquidated damages, by calling it such in their contract, which in its nature is clearly a penalty, or forfeiture for non-performance. While it allows them in certain cases to fix their own damages, it will in no case permit them to evade the law by agreement. See Jaquith v. Hudson, 5 Mich. 128.
There was no error in admitting the contract, which is set out verbatim in the first count of the declaration, to be given in evidence, because it ivas not mentioned in the bill of particulars. The office of a bill of particulars is to inform the opposite party of the cause or causes of action the party giving it intends to rely on at the trial, not specifically set out in the declaration, • or notice accompanying the general issue. /
The damages recovered by the plaintiff (defendant in error) were less than $100, and within the exclusive jurisdiction of a justice’s court; and it is insisted the Court erred in allowing him costs. The bill of exceptions states they were allowed because the plaintiff’s claim as established on the trial exceeded $200, and was reduced by set off. We see no error in this, as the statute provides that, when the plaintiff shall recover any sum, he shall recover costs, if it appear that his claim, as established at the trial, exceeds $200, and the same was reduced by set off The judge, and not the jury, as it was insisted on the argument, is to determine that fact.
The judgment must be reversed, and a new trial granted.
Martin Ch. and Campbell J. concurred. | [
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Christiancy J.:
Does the information charge any offense for which the defendants can be legally convicted? It is clear it charges no offense at common law, as it is not charged to have been openly, publicly or notoriously committed: — 1 Bish. Cr. Law, § 379; 1 Bl. Com. 64; Whart. Cr. Law, § 2396; State v. Evans. 5 Ired. 603 ; Commonwealth v. Catlin, 1 Mass. 8.
It can not therefore be maintained iinless it charge an offense within the statute. The charge is that “ Thomas Delany, on the first day of May, in the year one thousand eight hundred and sixty-one, and from that day to the twentieth day of October, in the year last aforesaid, at &c., did lewdly and lasciviously associate and cohabit with one Mary Stewart, he, the said Thomas Delany, being then and there a man, and she, the said Mary Stewart, being then and there a woman, and they, the said Thomas Delany and Mary Stewart, not being then and there married to each other; contrary to the form of the statute,’’ &c.
It is urged by the prisoner’s counsel, that the offense created by the statute is a joint offense only, of which one alone can not be guilty; that both must be guilty or neither, and that the information charging Delany alone, charges no offense within the statute. The statute in question (Comp. L. § 5861) is in these words, uIf any. man and woman, not being married to each other, shall lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, shall be guilty of open or gross lewdness and lascivious behavior, or shall designedly make any open and indecent exposure of his or her person, or of the person of another, every such person shall be punished,” &c. It is clear from the words of the statute that all the other offenses in this section, except that now in question, are several and not joint, as the joint language is dropped after the definition of this, the first offense mentioned in it.
The sufficiency of the information must depend, first, upon the question whether it was legally possible for Delany to commit the offense alone, without the woman being guilty of the same offense; and, if not, then, second, whether the information can be supported as a joint charge against both, and upon which both could be tried.
If the offense consisted simply in cohabiting with each other not being married, perhaps one might be guilty while the other was not; one might be insane; or the form of a marriage ceremony might have been adopted, which one might believe to be a valid and binding marriage, while the other, having a former husband or wife living, might know it to be void. Here, as one party might be acting in perfect good faith and without guilty knowledge, the cohabitation as to such party could hardly be called lewd and lascivious within the spirit of this statute. The same may perhaps be said of adultery, and even of incest; for, though the words of the statute in the latter case are in the form of a joint offense (Comp. L. § 5810) yet one might be ignorant of the relationship, while the other had full knowledge of it. In such case, therefore, it may be fair to presume that the Legislature did not intend to make the offense strictly and necessarily joint, so that one could not be legally guilty without the other; and, if so, when the question arises upon the indictment or information, the want of a joint charge against the 'two might be no objection.
But in the case of lewd and lascivious cohabitation under this statute, not only must the parties, being unmarried, associate and cohabit with each other, but that association and cohabitation must be lewd and lascivious on the part of both; if either was acting in good faith and without’ any guilty knowledge or guilty purpose, neither is guilty of this particular offense, though the one party might be guilty of adultery or some other several offense. It is not the several act, nor the criminal purpose of either, at which this particular provision is aimed; but the concurrent or combined action of the two with a common criminal purpose, which combined or joint action and common purpose constitute the offense, of which the action and purpose of each constitute only the separate ingredients. The analogy, therefore, so far as this question is involved, is complete between this offense and those of conspiracy and riot, which can not be committed by a single person: — 1 Hawk. P. C. Ch. 72; Wharf. Cr. Law, §§ 2339, 2348 and 431; State v. Tom, 2 Dev. (Law) 569.
The charge therefore must be joint; and both must be joined as defendants in the same information or indictment, unless one of the parties be unknown, or since dead: Same authorities: and see People v. Olcott, 2 Johns. Cas. 301; Rex v. Nichols, 13 Past, 412 note; Whart. Cr. Law, § 2348.
But though they must be charged jointly, they may be tried separately, and one may be convicted and sentenced before the other is tried: — Rex v. Cook, 5 B. & C. 538; State v. Tom, 2 Dev. 569; State v. Mainor, 6 Ired. 240; 13 Past, 412 and note. This, however, is on the principle that, as to the party thus tried, the guilt of both is found by the verdict: — State v. Mainor, 6 Ired. 340.
But the guilt of both can not thus be found, as to either, unless both be charged.
If one be tried, convicted and sentenced, and the other afterwards tried and acquited, this will, ipso facto, render the first conviction and judgment void; — Hawk. P. C. b. 2, Ch. 29. § 40 (7th ed.); State v. Tom, supra; Rex v. Cook, 5 B. & C. 538.
The information therefore can not he supported unless it he found to be a sufficient charge against both, and upon which both might be tried and convicted. The Attorney General insists that the information is good against both — that it was impossible for him to associate and cohabit with her, without her associating and cohabiting with him at the same time, and therefore, to charge him, is to charge her also. But the crime does not consist merely in associating and cohabiting; but both must lewdly and laseiviouly associate and cohabit together. “If any man and woman, not being married, &c., shall lewdly and lasciviously associate and cohabit- together,” &c. If a party can be charged with a crime in an indictment or information by mere implication, instead of a direct charge (which may well be doubted) — 1 Bish. Cr. Law, §§ 115 134; Whart. Cr. Law, § 364 — it must at all events be. a necessary implication, and without which the facts charged could not possibly be true. But there is nothing in the information which necessarily implies that the association and cohabitation on the part of the woman was lewd and lascivious. All that is stated may be true, and yet she may have acted with good faith and innocence in the whole matter. She is not charged with having done anything; and the very form of the charge clearly indicates the intention not to make her a defendant, or to charge her with any offense.
We have been referred to but one case which is precisely in point, — State v. Byron, 20 Mo. 210, — which is the present case in all its features. The statute was the same in effect, the charge the same against the man alone, who was convicted, but the Court held the indictment bad and the conviction wrong, for the same reason we have given here.
We are referred by the Attorney General to Hutchins v. Commonwealth, 2 Va. Cases, 332, cited in Wharton’s Free. 1000, to show that this information is good against both parties. The Court in that case say the indictment charges the offense in the very words of the statute: and if the gist of the offense consisted in the “willing, unlawful and incestuous cohabitation” (for we have not seen the statute), both parties were directly and distinctly charged. None of the cases cited by the Attorney General can, we think, be looked upon as an authority for sustaining this information against one, or to show that it is a sufficient charge against both. Commonwealth v. Catlin, 1 Mass. 8, was an indictment against the man alone for “open and gross lewdness and lascivious behavior,” which, in its nature, as well as by the words of their statute (as well as ours) was clearly a several offense. Commonwealth v. Calef, 10 Mass. 153, was a case like the present, and involved the same question in its facts, but no such question was raised, nor, therefore, decided. The only question discussed or decided was, whether one act of intercourse constitutes cohabitation under the statute: and it was very properly held that it did not. There was no necessity for raising any other question. In Commonwealth v. Hunt, 4 Cush. 49, the point was not involved, nor any opinion given upon it. The same is true of Commonwealth v. Putnam, 1 Pick. 136, and Commonwealth v. Elwell, 2 Metc. 190.
Commonwelth v. Goodhue, 2 Metc. 193 may be supposed to involve a question similar to the question involved in the present case. Defendant was indicted for a rape upon his daughter, and it was held he might be convicted of incest, it not appearing to have been committed with force or against her will. The question was in' all respects the same as it would be under our statute in a similar case. The case is not very fully reported, and no question of the joint nature of the offense was raised. But had it been raised, it may well be doubted, as already intimated, whether this statute in reference to incest (which is the same as ours) was intended to render incest strictly and solely a joint offense.
IJpon the whole, we are satisfied that the information in this case charges no offense. The judgment of the Recorder’s Court must therefore be reversed.
The other Justices concurred. | [
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Manning J.:'
The Court erred in charging the jury that by the terms of the contract either party might put an end to it by giving notice to the other. By the contract defendants bound themselves to pay five dollars per week for the care and board of the lunatic as long as he should continue in the Asylum, and to remove him therefrom whenever the room occupied by him should be required for a class of patients having preference by law. To put an end to the contract they should have removed the lunatic from the Asylum, or offered to' remove him. No notice short of a removal or offer to remove him would terminate their liability for his care and board.
The judgment is reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Christiancy J.:
The first question is, whether the bill makes a - case which entitles the complainant to relief?
Complainant claims to derive title to the lands in ques. tion through a sale on an execution issued by the Circuit Court of the United States for the District of Michigan, on a judgment recovered in favor of the United States on the 4th of January 1847, in an action of assumpsit for moneys received by Lee as Receiver of the United States Land Office at Green Bay, between October 1887 and the first day of April 1842. The sale was made by the Marshal, December 22d 1847, to the United States. The bill merely sets forth the sale made by the Marshal, the receipt on the execution by the U. S. District Attorney of the $1,500 purchase money bid .by the United States for the property, and the giving of a certificate of sale by the Marshal (which on reference appears to be dated December 22 1847, and states that the sale will become absolute at the expiration of one year, unless previously redeemed “in the manner prescribed by the statutes of Michigan and the rules of this Court’’). The bill does not allege the execution of any deed by the Marshal in pursuance of the sale, nor in any manner refer to the existence of such deed: but, in the derivation of complainant’s title, after stating the certificate of sale, proceeds to state a sale and conveyance of the property by the United States to one Timothy Stillman, and then deduces the title through several intermediate conveyances, down to complainant. It also, in a subsequent portion of the bill, avers that the land had not been redeemed from the sale.
By way of showing the pretended title under which defendant Arnold claims, the bill states the execution of three several official bonds by said Lee as Receiver, and by certain sureties therein mentioned, the “first dated July 29th, 1837, the second December 9th, 1837, and the third November 15th, 1838. None of the parties to this suit executed the first bond, but defendant Wing was one of the sureties in the second, and defendants Wing and McCauley, and one Joseph Arnold (father of defendant Arnold) were, among others, sureties in the third. The bill avers three several settlements or statements of account between the United States and Lee, as Receiver. That on the one of December 9th, 1837 there was found due to the United States from said Receiver $1,311.92, on that of November 15th 1838, $5,028.14, and on that of April 1st 1842 $1,500.31. That on the eleventh day of June 1842 the defendants, Wing and McCauley, pretending to said Lee that they were liable to the United States for large sums of money on account of said bonds, and in consequence of the supposed defalcation of said Lee, ¿so,, and preteuding that they were anxious that the property of said Lee (being the land in question) should be held in trust by them for the sole and only purpose that the same could1 be turned out by them to satisfy any deficiency there might be in the accounts of said Lee with the United States, induced Lee to execute and deliver to said Wing and McCauley a deed of conveyance of the said land, with warranty, which deed was absolute in form, and was duly acknowledged and recorded, as a deed of conveyance; but that at the time of the execution and delivery of this deed, Wing and McCauley executed under their hands and seals, and delivered to said Lee, their bond or writing obligatory, which is set out in haec verba, and which, after reciting the fact of the conveyance to Wing and McCauley, is conditioned as follows:
“If Thomas Lee bears Nelson II. Wing and William McCauley harmless for certain bond or bonds said Wing and McCauley have signed as surety for said Lee, to the United States, as Receiver of Public Moneys of the Land Office at Green Bay, then said Wing and McCauley agree to re-deed to said Lee the above described land. It is understood that if the United States can hold legally said Wing and McCauley, as said Lee’s surety, that said" Wing and McCauley have a right to turn this property out to satisfy the demand at any time they see fit, and they the said Wing and McCauley, are to have the above land until they are discharged by the United States from any liability in consequence of having signed as surety for said Lee. It is thought said Wing and McCauley are now clear, but said Wing and McCauley take this deed of said land to bear them harmless, left they might have to bear the expense, one or both of them, of a law-suit with the United States.”
This bond, declaration of trust, or defeasance, does not appear to have been acknowledged or recorded.
The bill then states that, on the 29th day of December 1844, a suit was brought by the United States, against defendant Wing, as surety on the second bond, and that on the first day of July 1844, on a trial in the Circuit Court of the United States for the District of Michigan, it was made to appear that said Thomas Lee was not indebted to'the United States, but that the sum claimed in that suit had been paid and satisfied; and that thereupon said Wing had judgment. That on the 26th September 1843 another suit was brought by the United States in said Coui’t against said Wing, upon the third bond; that on the 22d July 1844 a judgment was recovered by stipulation against said Wing for $50,000, to be discharged on payment of $1,500.31 and interest at six per cent from April 13th 1842. That on the 30th September 1843 suit was commenced by the United States against McCauley on said third bond, and that on the l^th June 1844 judgment was recovered against Mm by default for $50,000, to be discharged on payment of $1,696.41. That complainant is informed and believes that judgments were also recovered against many or all the other persons named as sureties in said bonds. That on the 10th of April 1852 Lee caused said judgments against Wing and McCauley, as well as those against all the other sureties to be discharged of record.
The bill then states that said Wing & McCauley, on the 28th day of Jun'e 1850, severally pretending to have “some right title and interest in fee simple” in said land, executed and delivered their several deeds of conveyance of the same to defendant Arnold, which were duly acknowledged and recorded — charges, upon information and belief, that said Arnold at the time was informed and well knew, that Wing & McCauley had not then, and never had, any right,' title or interest in said premises, or any right to sell or convey the same; that he well knew that they had only the right to turn out said premises to satisfy any claim the United States might have against Lee and his sureties, by reason of his defalcation as Receiver, &c.; that he had notice of the levy and sale to the United States, and that the United States and' their, grantees were the legal and equitable owners thereof: and that the said Wing & McCauley held the said lands in trust only for the United States, subject to any indebtedness the United States might at any time have against said Lee and his sureties, on account of any deficiency in the accounts of said Lee, as Receiver: and that “ said Arnold well knew that all the right, title and interest of said Wing and McCauley in and to said premises were extinguished by the levy and sale of said premises on said judgment and execution” (against Lee). That Wing & McCauley sometimes pretend that they have been compelled to pay sundry sums of money in the employment of counsel and in defending said suits, &o.’, but charges that Lee employed all necessai-y counsel, that there was no appearance on the part of McCauley: that in the suit against Wing judgment was rendered against him on stipulation, and that Lee employed counsel and defended said causes, and was at all necessary expense. That Lee remained in possession till September 1850, and then surrendered the land to Williams, one of the coxnplainant’s grantors, and took a lease from him till the first of April 1851; that said lease was assigned by Williams to Thayer (through whom complainant derives title) when Williams conveyed to Thayei’, September 20th 1850. That after this lease, in the fall of 1850, defendant Arnold .went into possession by force, and compelled Lee to remove from the same: and that neither Wing & McCauley nor Arnold ever had possession in any other way. That complainant believes there is danger that Ai'nold, Wing & McCauley will sell, dispose of, and convey, or otherwise encumber said premises, unless restrained by injunction. That complainant has applied to Wing, McCauley and Arnold, and requested them to convey to Mm, &c., so that the cloud upon Ms title might be removed.
The bill calls for an answer without oath.
The prayer for relief is that said Wing and McCauley and Arnold may be decreed to deed and convey said premises to complainant, or that the deed from Lee to Wing and McCauley, and that from Wing and McCauley to Arnold, may be set aside and held for nought; and for other relief, &c.; and prays an injunction.
It is clear from this statement of the bill that it proceeds upon the theory that the United States had obtained, by the sale on the execution, all the right and 'title which Lee held in the land at the time of the levy and sale, whether that right was the legal estate or a mere equity, and that complainant holds that right, claimed by the bill to be the legal title, through a puxohase of the same from the United States.
If the ease made by the bill fails to show that the title of Lee was divested and transferred to the United States by the sale on the execution, then, as no other title is claimed, it is quite clear the complainant is entitled to no relief under this bill in its present shape, whatever may have been the nature of Lee’s rights in the land, or of the interest held by Wing and McCauley under Lee’s deed.
One of the principal questions discussed upon the argument was, whether this deed from Lee to Wing and McCauley, taken in connection with the bond, or instrument of trust, or defeasance, constituted a conveyance of the title, in trust, or merely a mortgage of indemnity: defendant’s counsel insisting upon the former and the complainant’s counsel upon the latter view. Though strongly inclined to consider it more in the nature of a trust than that of a mortgage, we do not think the question neces sary to the decision of the present case, and shall not therefore assume to decide it.
If a trust, the interest of -Lee was not liable to levy and sale on execution against him, and no title or interest whatever passed by the sale, or could have passed by the execution of a deed by the Marshal. Trask v. Green, 9 Mich. 358; Lessee of Smith v. McCann, 24 How. 398.
The bill treats the conveyance of Lee to Wing and McCauley as a conveyance in trust, and the 'relief prayed by the bill is in accordance with this view. But the bill, nevertheless, seems to go upon the theory, and expressly claims, that complainant had obtained the legal title through the execution sale — a claim not easily reconciled with the idea of the legal title being in Wing and McCauley in trust, at the time of the levy and sale.
But if the deed is to be treated as a mortgage, leaving the title of the property, subject to the mortgage, or what is usually denominated the equity of redemption, still in Lee, liable to sale on execution, we think the bill fails to show the mortgagor’s title divested and transferred to the United States by the execution sale. Whether the statute which we suppose to be applicable to the case (R. S. of 1838, Part 2, Title 5 Ch. 3, §§ 1, 20, 21 and 22), was intended to authorize the sale of the mortgagor’s interest in any case except when the instrument would be recognized as a mortgage at law, and without the necessity of a suit to determine its character, we think admits of much doubt. But whether thus confined, or extended-to every instrument which, though absolute on its face, might for any cause be treated as a mortgage in a court of equity ; in either view of the statute the proceedings for divesting the mortgagor’s title by execution sale are the same as on the sale of the fee not subject to mortgage: and the interest of the mortgagor, whatever it may be, does not, we think, pass by sale on execution and a certificate of that sale, but the officer’s deed is necessary to pass that interest to the purchaser. The statute (which as will be hereafter shown, was adopted by the act of Congress) provides the mode of transferring the title on execution sale. It is not the purpose of the certificate given on the sale, either before or after the time of redemption has expired, to pass the title of the property sold. A certificate was necessary as written evidence to satisfy the Statute of Frauds (Jackson v. Catlin, 2 Johns. 248), as well as to preserve the evidence which was to entitle the purchaser to a deed when the time of redemption should have expired.
It does not purport to convey the property sold. It is merely required to contain, “ first, a description of the premises sold: second, the price bid for each distinct lot or parcel: third, the whole consideration money paid; fourth, the time when such sale will become absolute, and the purchaser or purchasers will be entitled to a deed as hereinafter provided.” (Section 10 of the chapter above cited). This certificate is to be presumptive evidence of the facts therein contained. If not redeemed within the time allowed by the statute, “the officer making such sale, or his successor, shall complete the same by executing a deed thereof, in due form of law, to the purchaser; and such deed shall be valid and effectual to convey all the right, title and interest which was sold by such officer.” (Sec. 12 of same Chapter).
Until the execution of the deed, the sale must be looked upon as incomplete and inchoate only, whether the time of redemption has expired or not. Causes might perhaps exist which would render the execution of a deed improper, and possibly the sale might, for good cause, be set aside on motion. If the officer should neglect or refuse without good cause to execute the deed at the proper time, the purchaser has a clear remedy by a proper application to the Court to compel its execution j and doubtless the United States, as a purchaser, had the same remedy as any other purchaser. And in case of the death or removal from office of the Marshal who made the sale, or the expiration of his commission before the execution of the deed, the act of Congress of May 7, 1800, §3 (2 Stat. at Large, 61) provides that the purchaser may apply to the Court from which the process issued, and set forth the case, assigning the reason why the title was not' perfected by the Marshal who sold the same; and thereupon the Court may order the Marshal for the time being to perfect the title and execute a deed to the purchaser.’’ But until the United States had acquired the interest of Lee (whatever that was), by the execution of a deed, they could not convey that interest. It is possible that the sale and deed to Stillman might be construed as an assignment of the certificate of sale, but if so> it did not convey the interest in thd land, but only the right to call for a conveyance from the officer, and perhaps to compel such conveyance in a proper proceeding against him. It is unnecessary to consider the point, whether the deed might not be dispensed with in a case like the present, if its execution had become impossible or could not be enforced; as no such case is presented by the bill, and no reason or excuse shown why it was not obtained. The subject of the deed is in no way alluded to. But the complainant would seem, by his bill, to have purposely left his ease to stand upon the certificate, without the aid of a deed. The deed therefore is not in issue, and if one was properly executed, it would not be admissible in evidence without an amendment of the bill, as it would not tend to establish the case made by the bill. Warner v. Whittaker, 6 Mich. 136; Bloomer v. Henderson, 8 Mich. 402; Barrows v. Baughman, 9 Mich. 220 ; Story Eq. Pl. § 257 Doubtless an allegation of title, if not demurred to, .may sometimes be so general as to admit in evidence anything which tends to establish a title; because anything which would have such tendency would be included within the scope of the allegation. But here the title is not stated by way of a general allegation, and could not well be; but the derivation of the title is specially set forth, and made to rest upon the certificate, without any allusion to a deed.
But as the bill was not demurred to, and the benefit of a demurrer only claimed generally by the answer, and the parties have gone to a hearing upon pleadings and proofs, it might have been proper, had a valid deed from the Marshal been proved, still to allow an amendment of the bill in this respect: and with this view it will be proper thus far to examine the proofs.
An instrument purporting to be a deed from the Marshal seems to have been proved, and is' returned with the exhibits — several objections being taken to the exhibits which it is not necessary here to notice. But we do not think this instrument can be recognized as a valid deed under the execution sale: for the reason that it was executed before the time of redemption had expired, and consequently, when the Marshal had no power to execute any deed upon this sale: and if not valid when executed, it could not become so by the debtor’s subsequent failure to redeem. Quod initio non valet tractu temporis non convalescit.
First; if the time of redemption, by the statute applicable to the case, was but one year, as seems to have been supposed by the Marshal in executing the certificate and deed, still we think the deed was executed one day too soon. The sale was made December 22, 1847, and the deed is dated and acknowledged December 22, 1848. The only statutes which we suppose can be claimed to apply to the case are, the Revised Statutes of 1838, Chap. 3, Title 5, Part 2 (either with or without the amendment of 1839 hereafter noticed), or the Revised Statutes of 1846? Chap. 79 Title 18. If the amendment of 1839 be excluded, then under both revisions, the period of redemption was “ within one year from the time when such sale shall have been made.” When time is to be computed from the time of an act done, we think the more reasonable rule is that the day on which the act is done is to be excluded from the computation. Ex, parte Dean, 2 Cow. 605; Homan v. Liswell, 6 Cow. 659; Snyder v. Warren, 2 Cow. 518 (a case of redemption under the statute); Commercial Bk. &c. v. Ives, 2 Hill, 356 and note; 3 Chitty’s Gen'l Pr. 109 ; Pitt v. Shew, 4 B. & Ald. 206. This rule would have given the whole of the twenty-second day of December 1848 for redemption, and, until that day had expired, the power of the Marshal to execute the deed did not exist.
But we think the period of redemption applicable to this sale was two years.
We are aware of no act of Congress which directly regulates the proceedings on execution, or the time of redemption in such cases, but the whole subject is provided for by acts of Congress adopting the state laws upon the subject, and rules of court made under the authority of those acts.
The third section of the act of Congress of May 19, 1828 (4 Stat. at Large 278) adopted upon this subject the then existing laws of the several states, with the proviso, however, “ that it shall be in the power of the courts, if they see fit, in their discretion, by rules of court, so far to alter final process in said courts as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts.” That this act applies to the redemption of land sold on execution, as part of the proceedings, we think can admit of little doubt. See U. S. v. Knight, 14 Pet. 301; Amis v. Smith, 16 Pet. 303; Hopkins case, 2 Curtis’ C. C. R. 567.
.By the act of Congress of Aug. 1, 1842 (5 Stat. at Large, 499), “the provisions of” the above act'of May 19, 1828 “shall be, and they are hereby made applicable to. such states as have been admitted into the Union since the date of said act.”
As to all the states admitted into the Union between the date of the act of 1828 and that of 1842, the effect of the latter act must, we think, be the' same as if the act of 1828 had been re-enacted in haec verba: and, consequently, as Michigan was one of these states, the act must' be construed as an adoption, by Congress, of the laws of this state applicable to this subject, as they existed on the first day of August 1842, so fai* as the same were valid. Beers v. Haughton, 9 Pet. 329. Whether the Federal Courts would have any power, by rule, to alter the effect of the state laws then in force, and thus adopted, otherwise than to conform their process to any subsequent change in the-state legislation, it is not necessary here to decide, as this case does not raise the question.
By Rule 99 of the Circuit Court of the United States for this District, adopted July 5, 1847, Title 18, Ch. 79, and Title 22, Ch. 106, of the Revised Statutes of 1846 were adopted, as to executions in cases where the cause of action accrued subsequent to the revision. This rule cannot therefore apply to the present case, as the cause of action accrued prior to that time. But the rule further provides that executions on causes of action accruing prior to the Revised Statutes of 1846, shall be according to the law existing when the cause of action accrued. Whether this was really what was intended by the rule, or whether it was intended merely to conform to the decisions of the Supreme Court in Bronson v. Kinsie, 1 How. 316, and McCracken v. Hayward, 2 How. 608 (which we do not understand to adopt so broad a principle), may be doubted; and we are not entirely satisfied that under the power to make rules, given by the act of 1828, the Courts have any power, in adopting State laws, to make a distinction based merely upon the time when the cause of action accrued. But it is unnecessary to decide this question, since, admitting the rule of 184V to be valid, it in no way changes the result in the present case from what it would have been if the case were left to stand upon the act of Congress of 1842, and the State laws thereby adopted.
The action against Lee was assumpsit to recover the balances found due on the several accounts stated, one of December 9, 183V, one of November 15, 1838, and the last April 1, 1842. As it would be difficult in respect to the execution, to treat the different portions of the cause of action as having accrued at three several times, so as to apply one law to the one portion and another to another, the whole we think, must be treated as having accrued, within the meaning of this rule, at the time of the last account Stated, April 1, 1842: and the laws of the State on this subject were the same on that day as when adopted by the act of Congress, August 1, 1842. The State laws, then, applicable to the case in August, 1842, must govern it.
As to executions in ordinary cases, the act of February IV, 1842, Laws of 1842, p. 135, so far as it had any validity under the Constitution, was then in force. But, whether valid or not in any case, it did not apply to the execution against Lee, as Receiver of public moneys; as the sixth section excludes the ease from its operation, by expressly providing^that “this act shall not be construed as extending to any proceedings as for contempt to enforce civil remedies, nor to any action for fines and penalties, or on promises to marry, or for moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment.’’ The act of March 27, 1841, Laws of 1841, p. 47, repealed by this act, contained a similar provision, (§ 6). All the cases, therefore, thus excepted from these acts, were left to stand upon previously existing laws, which, as to these cases, were in no way affected by these acts.
What, then, was the prior law applicable to these cases as it existed in April (and in August), 1842, when the cause of action arose?
The only law applicable to the time of redemption of lands sold on execution, in such cases, was Chap. 3, Title 5, Part 2, R. S. of 1838, as amended by act of April 20, 1839, Laws of 1839, p. 220. Sections 13, 16 and 1.7 of the original chapter fixed the period at “ one year.” The amendment of 1839 struck out “one’’ and inserted “two,” thus making the period two years. This amendment would seem to have been overlooked by the Marshal in drawing his certificate and deed. If this was not the occasion of the error, the Marshal must have supposed the sale to come under the provisions of the Revised Statutes of 1846, which fix the period of redemption at one year. — Rev. Stat. of. 1846, §13, Ch. 79, Title 18. But this statute could not apply, as it had neither been adopted by act of Congress, nor the rule of Court as to such cases. — Beers v. Haughton, 9 Pet. 329; Catherwood v. Gapete, 2 Curtis C. C. R. 94; Hopkins' case, Ibid. 567. By rule 68 of the Circuit Court (November term, 1838), it will be seen that the Revised Statutes of 1838 on this subject were adopted, and by an amendment of this rule July 20, 1840, the amendment of statutes by the act of 1839, was, in effect, adopted. But we have not relied upon this rule, because, being prior to tbe act of Congress of 1842, the power thus to adopt State statutes might be questioned. In any view, therefore, we have been able to take of the case, the deed was void for want of power in the Marshal to execute it. The complainant’s case would not therefore be helped by an amendment stating the deed which was in proof.
The complainant, therefore, not having obtained Lee’s right in the land, does not stand in a position to question the deed from Lee to Wing & McCauley, nor that from them to Arnold.
The decree must be set aside, and the bill dismissed with costs to the defendants, of both courts.
Manning and Campbell JJ. concurred.
Martin Ch. J. concurred in the result. | [
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] |
Manning J.:
Three principal objections are made to the decree of the Circuit Court by the defendant Pattee, the appellant.
I. That the bill of complaint makes no case.
1. Because it does not state any consideration for the agreement between Mann & Morse of the 5th September, 1854, that was guaranteed by complainants.
The bill states the agreement is in writing, and under the hand and seal of Mann. That is sufficient. The seal imports a consideration, and dispenses with a statement of the consideration in the bill, as well as proof of it on the hearing.
2. Because the liability .of complainants on their guaranty was to Morse only; and the agreement of 26th February, 1859, between Mann and complainants, which the mortgage was given to secure, was one of indemnity against that liability.
By the agreement of September, 1854, Mann covenants to pay all the debts then due and owing to the firm of Mann & Morse — saving Morse harmless. The covenant is to pay the debts of Mann & Morse, as well as to indemnify Morse against the payment. It contains a present absolute undertaking on the part of Mann, as well as a future contingent one, on either of which an action would lie in case of a breach. An omission to pay the creditors of Mann & Morse, as their demands became due, would be as clear a breach of the covenant as an omission to pay Morse after he had been compelled to pay them. In either case Morse would have a right of action on the covenant. The damages, is is true, in an action for not paying would be nominal; but still^the action would lie.
The guaranty is unconditional. The liability of the guarantors is consequently co-extensive with that of their principal. What gives a right of action against him at the same time gives a right of action against them. What it is his duty to do as covenantor, it is theirs to do as guarantors. And by the agreement of 26th February, 1859, Mann not only undertakes to save them harmless against payments they should be liable to make to Morse, but also to pay them “ all sums that they may pay, or cause to be paid, arising in any manner from the breaches or breach” of the agreement guaranteed by them. Language broad enough to include, and in fact including, and we have no doubt so intended by Mann, all payments made by them under their guaranty, whether to Morse of a debt that had been paid by him, or to a creditor of the firm, of a debt which Mann was bound to but had not paid.
3. Because the averment of payment in the bill by complainants is bad for uncertainty.
The averment is in the following words: “And your orators further show, that they have paid to the creditors of the said firm of Mann & Morse the sum of one thousand dollars, as they were obliged to do by the terms and legal effect of the agreement above set forth, on account of the default of the said Loomis Mann,’’ &o. We think the averment is sufficient. It is as certain as the covenant to pay; which is to pay the debts of the firm generally, without naming particular creditors. See Hughes v. Smith, 5 Johns. 168; Shum v. Farrington, 1 B. & P. 640; Barton v. Webb, 8 T. R. 469. Nor is the time of payment material, provided it was after the liability to pay accrued. This is sufficiently stated in substance, if not in form, in the averment that it was made on account of the default-of the said Loomis Mann. On an appeal from a hearing on pleadings and proofs all matters of more form are to he disregarded, if the pleadings are good in substance.
II. The second objection is that payment was made by two of complainants, and not by all of them. Their liability under their guaranty was a joint and not a several liability, and payment by any one or more of them was payment by all. Had the mortgage been given to secure them against a several liability, the mortgagees- not paying would in equity be trustees for those who had.
in. The third and last objection is that the complainant’s mortgage — being of a homestead — is void in consequence of the wife of the mortgagor not having united with him in giving it.
The state Constitution provides that a mortgage or other alienation of the homestead therein mentioned, “by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.’’ Art. 16, § 2. In Beecher v. Baldy, 7 Mich. 488, this provision in the Constitution came under discussion, and was fully considered by the Court. And in speaking of the waiver by a debtor of his right to a homestead, the following language is used: “And when the householder is a married man, he can not, probably, by any waiver, consent to .a sale on execution, so as to render the sale valid without the consent of his wife. For, in such case, the validity of the sale would rest upon his consent in the same manner as if he had conveyed by deed; and if deeded, by him under the like circumstances, the deed would be void, even as to him, without the signature of the wife.” The effect of a conveyance by the husband was not before the Court for decision in that case; but, we are still of opinion, that the language quoted is a correct exposition of the Constitution, so far as it goes — wishing in no respect to amend it-, except to strike out tbe word “probably” in tbe first sentence. ,,
The Constitution — whatever may have been the intention of the pre-existing statute — we have no doubt was intended to secure against creditors a homestead to every family in the State. Not as a personal privilege of the debtor which, to be made effectual, would have to be claimed by him — placing him in an attitude to have his motives suspected, but as an absolute right, necessary to the welfare of the household, of which the debtor should not be deprived, if an unmarried man, without some act of his relinquishing his right; or, if a married man, without, the joint conveyance of himself and wife.
To the argument that a conveyance by the husband alone should be Held void only as to the homestead interest, and good for the remaining interest in the property, it is a sufficient reply to say, that the Constitution makes no such distinction, but declares such conveyance shall not be valid; that is, shall be void. If the language would admit of such a construction, it could not be adopted •without coming in conflict with the policy of the provision itself, and robbing that policy, in part, of its beneficence. A homestead thus incumbered would have no exchangeable value; and could not be used to procure another, in the same or at a different place, should the interest of the family require it. The Legislature have taken a more enlarged view of the Constitution, and provided by statute that when the homestead exceeds §1,500 in value, and is sold on execution, that amount shall be paid the debtor out of the proceeds of the sale, and be exempt from execution for one year thereafter — to purchase, it is to be presumed, a new homestead with: — Laws 1861, p. 541, § 3.
The mortgage, though void as to the homestead, is good for any excess over and above the homestead.
It appears from the proofs in the case, that the mortgaged premises consist of a quarter of an acre of land, with a dwelling house, bam and other outbuildings thereon, worth, according to the testimony of Mann, $2,000, and of another witness $1,800, at the time the mortgage was given.
Whether the premises are located within the village of Ionia, or outside of the village limits, is of no importance, as the value of the homestead can in no case exceed $1,500, and there is no evidence showing they exceed a village lot if within the village limits.
It was not necessary for defendant to file a cross bill to make the defense he sets up in his answer. lie asks no affirmative relief against complainants, nor is he seeking to foreclose his own mortgage.
The decree of the Circuit Court must be reversed, with costs, and a reference be made to a,Circuit Court Commissioner, to set off as a homestead, if the same can be done, so much of the lot with the improvements thereon as was worth $1,500 cash, on the 26th February, 1859, including the whole of the dwelling house, and, as far as may be found practicable, such of the outbuildings and other improvements as may be found most essential to the enjoyment of the homestead; to the end that on the coming in and confirmation of his report, a decree may be entered declaring the mortgage void as to the homestead so ascertained and set off, and good for the rest of the mortgaged premises, and a sale thereof if not redeemed, &c.
Martin Cn. J. and Cheistiancy J. concurred. | [
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] |
Martin Ch. J.:
If a conveyance be valid when" made, it can not be invalidated by subsequent acts of the grantor, nor by the creation of subsequent debts. Was the deed from Kendrick to Martha Dodge valid? They were contemplating marriage, and the conveyance is alleged in the answer — and there are no proofs in the case — to have been made in contemplation of marriage, and to secure her a homestead. Unless done for the purpose of defrauding creditors, Kendrick had a clear right to make this disposal of the land in question, or any other disposal which might be agreeable to him.
I do not see that any rights of creditors were affected by this conveyance. The bill does not aver this to have been all of Kendrick’s property, or any considerable portion of it; and he appears to have been indebted in but a small amount, and that amount Jie avers in the answer he was abundantly able to pay.
The subsequent occupation of the premises, and the fact that it was mortgaged by Kendrick and wife, that the deed was not recorded until after the commencement of the action by the complainants in which the judgment was rendered to aid in the collection of which this bill is filed, do not, under the circumstances of this case, prove or raise any presumption of fraud. The grantor and grantee intermarried; and the relation which existed between them was of that confidential nature which renders their subsequent acts entirely consistent with honesty of intention. Had they been strangers, and had Kendrick continued in possession of the property, and mortgaged it for his debts, and the deed remained unrecorded, a very strong presumption of fraud would arise, and perhaps, in connection with the small amount of indebtedness existing at the time of the conveyance, conclusive proof of it would be established.
We think the decree of the Court below should be reversed, and the bill dismissed.
Manning & Campbell JJ. concurred.
Chbistianct J. was absent when the case was decided. | [
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Manning JA
One of the conditions attached to the policy of insurance, and forming a part of it, is in these words : “ And in case of any sale, transfer or change of title in the property insured by this company, such insurance shall be void and cease.” The property insured was a three story frame flouring and grist mill, belonging to the insured. After the insurance and before the fire, the insured conveyed an undivided one-third interest in the premises on which the mill stood, to Latourette. The conveyance was in the usual form, but was. intended by the parties to it as security to Latourette for a debt the insured were owing him, and to secure further advances to be made to them by Latourette, who, after the fire, on being paid what was due him, reconveyed the premises to the insured.
The Insurance Company insist that the conveyance to Latourette annulled the insurance, under the condition of the policy above stated. The company also insist that the Court erred in admitting parol evidence to show the conveyance to Latourette was intended as security only for what the insured were owing him, and for further advances. While, on the other hand, the insured insist they had a right to introduce on the trial parol evidence for that purpose; and that if the Court erred in admitting it, they are still entitled to recover the whole amount insured, which is §2,000, as the mill, which was wholly destroyed by fire, was shown on the trial to have been worth §6,000 at the time of the fire; or if they are not entitled to the §2,000, that they are entitled to two-thirds 'of the insurance, as they had only conveyed to Latourette one-third of the mill.
The words transfer or exchange of title are more comprehensive than the word sale, which immediately precedes them. A sale is a parting with one’s interest in a thing for a.valuable consideration. This is what is generally understood by the word, and in every sale there is a transfer or change of title from the vendor to the vendee. But there may be a transfer or change of title' without a sale. Should A. convey a piece of property to B. to hold in secret trust for him, there would be a transfer or change of title from A. to B., but there would not be a sale ofi the property, or an actual parting with it to B. for a valuable consideration, although the conveyance on its face would import a sale of it by A. to B. And if the trust instead of being secret appeared on the face of the conveyance, there would still be a change of the title. The title would no longer be in A., but in B. his grantee. We think such a conveyance would clearly come within the condition of the policy, and put an end to the insurance. And if such a conveyance would annul the policy, we see no reason why the conveyance to Latourette should not have that effect. The title to one-third of the mill was in him, and not in the insured, when the fire occurred. There can be no doubt that the deed, being absolute on its face, and not in form a mortgage, placed the title in Latourette. He could have sold the property and conveyed a good title to his vendee, if the latter was ignorant of the circumstances under which he had acquired the title. It is immaterial, therefore, for the purposes of the present suit, whether the insured could\ or could not at law show by parol evidence that the conveyance was intended as security merely, as such evidence would not show the title had not been in Latourette, but that he had done no more than his duty in reconveying the property on being paid what was due him.
But it _ is insisted the conveyance does not affect the insurance on, the other two-thirds of the mill. If the insurance was of two separate buildings or piece of property, and one only had been conveyed* we are inclined to think it would not affect the policy as to the other: — Clark v. New England Mutual Insurance Co., 6 Cush. 342. The mill was an entirety, and insured as such. The title was changed: not the whole title, but a part of it. The whole title was in the insured at the date of the policy; when the fire took place two-thirds of the title only was in them, and one - third in Latourette. This is a change of title to the entirety of the thing insured. See Dreher v. Ætna Insurance Co., 18 Mo. 128; Dix v. Mercantile Inswrance Co., 22 Ill. 272.
For these reasons we are of opinion the Court below erred, and that the judgment should be reversed, with costs.
Martin Ch. J. and Campbell J. concurred.
•Christiancy J. was absent when the case was decided. | [
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Christiancy J.:
This was an information filed in the Circuit Court for the county of Washtenaw, containing several counts for murder and manslaughter. The defendant put in a plea to the jurisdiction of the Court, alleging that it “ has not or cannot obtain jurisdiction of said crimes, by presentation of the Prosecuting Attorney for the county; and because there is not any thing' set forth in said presentment in regard to said offenses which gives jurisdiction to the Circuit Court for the county of Washtenaw to hear, try and determine the same.” To this plea a replication was filed asserting the sufficiency of the presentment, and that said Court has and can obtain jurisdiction by the said presentment, &c.; and the plea was overruled by the Court; whereupon the defendant pleaded not guilty, was tried, and convicted of manslaughter.
The overruling- of the plea to the jurisdiction is assigned as error. The two grounds urged in support of this assignment are, first, that it does not appear upon the face of the information that the prisoner had had a preliminary examination for the offense, nor that he had waived it, nor that he was a fugitive from justice; and second, that the information is not verified as required by the statute.
As to the first point, the plea does not deny the fact of a previous examination, or assert that none had been had, or that it had not been waived. The question, therefore, depending upon matter apparent on the face of the information, rests upon the same grounds, and is to be decided in the same way, as if raised by demurrer.
The statute (Laws of 1859, p. 393 § 8) provides that “no information shall be filed against any person, for any offense, until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination: provided, however, that informations may be filed without such examination against fugitives from justice.” It is not doubted that a defendant, unless a fugitive from justice (which is not pretended here) has a right to insist upon such examination before he can be put upon his trial, or called upon to answer the information. But the statute is express that he may waive this right; and we think he may waive it when called upon to plead to the information, as well as when brought before the magistrate for examination. It is not a matter which goes to the merits of the trial, but to the regularity of the previous proceedings. If he make no objection on the ground that such examination has not been had or waived, he must be understood to admit that it has been had, or that he has waived or now intends to waive it. If he intends to insist upon the want of the examination, we think he should, by plea in abatement, set up the fact that it has not been had, upon which the prosecuting attorney might take issue, or reply a waiver; or he must, upon a proper showing by affidavit, move to quash the information. The latter is the simpler course. The Circuit Court is a court of general criminal jurisdiction ; and the proceeding by information instead of indictment is not, under this statute, an exceptional or special one, but the general mode provided for the prosecution of offenses. We can therefore see no more 'satisfactory reason for requiring this preliminary examination or its waiver to be set out in the information, than for averring, in an indictment, that the grand jury was composed of at least sixteen competent grand jurors, or that the indictment was found by at least twelve {Comp.,I*. §§6014 and 6026), or any other fact essential to the constitution of a legal grand jury. We cannot think it necessary, on the trial for an offense, to prove the fact of such examination or waiver, more than on the trial under indictment to prove the preliminary matters referred to. The same rule should apply to both; and we think such is the effect of the language of the fourth section of the act of 1859. If not necessary to be proved, it need not be alleged. Comp. I. § 6054.
. It is further objected that the information is not verified as required by the statute. The statute requires it to be “verified by the oath of the prosecuting attorney, complainant, o;r some other person.” It is verified in this case by the affidavit of the prosecuting attorney, “that he knows the contents of the foregoing information, and that he has good reason to believe and does believe the same to be true as therein set forth.”
The statute must be construed with reference not only to its language, but its object as gathered from its various parts, and other statutes having reference to criminal prosecutions. As already noticed, it provides that no information shall be filed without a previous examination, unless waived. For the purpose of instituting such examination the statute {Comp. L. §§ 5978, '5979) requires that the complainant shall be examined on oath, and other witnesses produced by him; and “ if it shall appear that any criminal offense has been committed, the magistrate shall issue his warrant,” &c. Here, doubtless, it is evidence which is contemplated : and the facts and circumstances are to be stated by the complainant and his witnesses, as the object is to make it appear to the satisfaction of the magistrate that the offense has been committed by the defendant, to authorize the issuing of a warrant. When the defendant is brought before the magistrate on the warrant, the complainant and other witnesses on the part of the prosecution are to be examined on oath in the presence of the prisoner (Comp. Z. § 5989). “If it shall appear to the magistrate that an offense has been committed, and that there is probable cause to believe the prisoner guilty thereof,” he is to be required to recognize, &o. (Comp. Z. § 5994). Here again the object is evidence, and only facts and circumstances within the knowledge of the complainant and the witnesses are to be stated, as upon a trial. It would seem to be a useless ceremony, after these two examinations into the facts and circumstances, to require them to be again shown before the information can be filed by the prosecuting attorney: yet if any thing more is meant by the veri! cation of the information than an affidavit upon belief, it would be necessary, in most cases, 'to recall5 the witnesses, or most of them; as all the facts and circumstances necessary to establish the guilt of the prisoner are seldom known to a single witness.
But the statute do’es not here contemplate, as in the other cases referred to, an “examination,” but simply a “verification” of the information; and this is to be by the “ Prosecuting Attorney, complainant or some other person.” Why mention the Prosecuting Attorney at all if the facts are to be sworn to on personal knowledge? He is no more likely to have personal knowledge of such facts than any other person, though he is, from his official duties, more likely to be informed of the nature of the evidence. The statute seems to contemplate the verification by a single person only, and makes no provision for compelling the attendance of witnesses for such purpose, or for requiring them to testify.
The object of this verification is not, as in the “examinations ” alluded to, to satisfy the court that the defendant is guilty. It is not for the purposes of evidence, which is to be weighed and passed upon; but only, as we think, to secure good faith in the institution of the proceedings, and to guard against groundless and vindictive prosecutions: and this object is fully met by the previous examinations and a verification upon belief. We think, therefore, the plea to the jurisdiction was properly overruled.
Several exceptions were taken on the trial to the admission of testimony, and to the form of certain questions. But with the exception of those presently to be noticed, the ruling of the Court was so clearly correct as to require no particular notice here.
"The objection to the testimony of James Washburn, a child of seven years of age, cannot be sustained. He was competent to testify, but the question of his credibility was for the jury, and the defendant must have had the full benefit of his objection before the jury.
The prosecution offered in evidence what purported to be a warrant in a criminal case, issued by D. B. Greene, a justice of the peace, against the defendant, upon which it was alleged the defendant had been arrested; which the defendant objected to as irrelevant and immaterial. The objection was overruled, and defendant excepted. It was then proved that Greene was a justice, and his signature proved; but the contents of the warrant were not read, nor did the prosecution show for what offense it was issued, nor upon whose complaint. The prosecution offered to prove by Wise, the constable, that he served the warrant: this was objected to, the objection overruled, and exception taken. The constable then testified that he served the warrant, and told the defendant the contents, but did not remember reading it to him. Here the direct examination of the witness closed. From the mode in which the warrant was offered, and proof of service made, it is not easy to see for what legitimate purpose this evidence could have been introduced; and had there been no cross-examination, we should have been inclined to look upon it as calculated to prejudice the defendant before the jury, by an attempt to show that he had been charged with, and arrested for, another criminal offense, for which he was not on trial. Had it appeared that the warrant was fin-an offense charged to have been committed upon his wife, with whose murder he was now charged, or that it was issued upon her complaint, it would have been admissible, as tending to show hostile relations existing- between them? which might bear upon the question of motive, and tend to prove malice. But the prosecution had not shown this. The defendant, however, as we think, supplied this deficiency by drawing- out, on cross-examination of the constable, the following- testimony: “I was employed by Joslin to go after Washburn: I never made any return to the warrant: I never took Washburn to the office of the justice who issued the -warrant: I took him to Joslin’s office: I supposed the matter adjusted between Washburn and his wife: I let him go on his own responsibility: I supposed the matter was settled: never arrested him again on the warrant.” From this we think it apparent, inferentially, indeed, but satisfactorily, that the warrant had been issued on the charge of some offense upon the wife, which the constable understood to have been settled, and therefore let the prisoner go: and thus the testimony went to corroborate a considerable amount of other testimony showing difficulty or unpleasant relations between defendant and his wife previous to the commission of the offense.
We are therefore satisfied that there was no error in the judgment or proceedings of the Circuit Court, and the judgment must be affirmed.
Martin Ch. J. and Manning J. concurred.
Campbell J.:
I think there is no error in any of the rulings in this ease except as they relate to the jurisdictional objections to the information. I am of opinion that those objections are well taken. The {language of the statute, when viewed in the light of the previous law, seems to require a full verification, and a direct allegation of the preliminary conditions, in order to avoid results which must lead in many cases to serious evils which have always been considered important enough to be carefully guarded against.
The law has always been solicitous to preserve parties from the disgrace of an arraignment on a criminal charge, without at least prima facie proof beforehand of their guilt. Informations could, iudeed, be filed at common law by the crown authorities for misdemeanors. But such accusations never were deemed infamous, like charges of felony, and a party need not, usually, respond in person, and was not generally arrested in the first instance, if at all. Yet even with these palliations, the practice became so deservedly odious that our American constitutions have in several instances prohibited it entirely, while in England no one but the Attorney General — who rarely interferes except for what are strictly public grievances — can resort to this method of complaint without the previous leave of the Court obtained on a full showing upon affidavits served on the respondent. And the power-, thus restricted, has not been regarded with universal favor. It is still broad enough to lead to oppressioxx and injustice. Our constitutional provisions were all adopted long after the English statutes which restricted the practice.
The design of grand juries was to protect the citizen from unfounded charges by preventing his being put to answer any accusation which had not previously been proven to the satisfaction of an impartial tribunal by evidence which, if not rebutted or explained, would justify a conviction. This protection has been deemed important enough to be secured by the most solemn sanction of bills of rights and fundamental charters. The abolition of grand juries has never been ui’ged on the ground that this caution was unnecessary. The objections to those tribunals have generally, if not universally, been founded upon the idea that they did not, in practice, afford the protection against unfounded charges which justice and policy require. The history of the movement in this State, and the language of the statute now under consideration, can hardly be reconciled with a design to take away any of the ancient safeguards without supplying an equivalent.
The only effect of the statute on grand juries is, to make their summoning depend upon the discretion of the Court, instead of requiring them to be called at every session. But in authorizing informations to be used in lieu of indictments in all classes of offenses, certain conditions are imposed, which must be complied with beforehand, and which are in their nature jurisdictional, and calculated to insure the safeguards against unjust accusations which the old system was intended to maintain. The statute declares that “No information shall be filed against any person, for any offense, until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination.” An exception is made against fugitives from justice, who may be informed against without examination, and are to be demanded by the Executive upon information, as formerly upon indictment.
It is also provided that upon filing an information the same process and other proceedings shall be resorted to as in cases of indictment. And, if an information can be filed on belief only, and need not show a preliminary examination, nor the reasons why it has not been had, a party has no security whatever against being subjected to arrest, imprisonment, and the disgrace of a public arraignment and trial, when there is no legal evidence whatever of his guilt, or of its probability. The presumption that a prosecutor will not abuse his power has never been considered a sufficient protection to private character and liberty. And in accusations of murder, where an indicted person is not bailable, the consequences are monstrous. If this interpretation is correct, the law would conflict directly with the constitutional provision which prohibits arrests without warrant founded on oath — which has never been deemed to be satisfied by a mere heresay averment of belief But the general rules applicable as well to indictments as to informations are sufficient to dispose of the questions before us.
It is a well settled rule in all criminal cases, that every proceeding, in order to be valid, must appear to be within the jurisdiction. No indictment is valid unless the records of the Court show it to have been found by a lawful jury. If removed to another court than that where it was found, the caption must show all of the record essentials, and if the record does not contain enough to show that the indictment was found lawfully, no conviction can be maintained upon it. These jurisdictional requisites do not appear in the body of the indictment, because a grand jury could not by its finding either affirm or deny effectually that which is evidenced by the record itself, and which must therefore stand by the record. And in like manner, where leave of the Court is necessary before an information is filed, the record itself shows whether leave was or was not granted, and it need not appear in the pleading.
But whenever the jurisdictional fact is dne which does not otherwise appear of record, and the power of the Court to proceed depends upon conditions and facts not previously established before it, I have found no rule exempting the prosecutor, or accusing body, from the necessity of alleging them in the instrument of accusation, or which compels a defendant to make Ms objection in the outset. On the contrary, there are authorities which can not be reconciled with any such rule, and others from which its illegality may be fairly implied.
Thus, at common law offenders must generally be indicted in the county where the offense is alleged to have been committed. But under various statutes courts sitting in other counties where the offenders were apprehended or were in custody might have indictments found and tried before them. The cases arising under these statutes exemplify the rule requiring what is not of record to be averred, and dispensing with allegations of what is already of record. In Berwick's Case, Foster C. L. 12, it being objected to an indictment for treason that it did not aver the defendant to be in custody in the county where it was found, while the offense was laid to have been committed in another county, the Attorney General replied that it aj>peared on the record as it then stood, that he had been so in custody; and the indictment was maintained. And in Regina v. Whiley, 1 C. & K. 150, a similar objection was overruled on the ground that the caption of the indictment would show the custody. But in Rex v. Fraser, Moody C. C. 407, where a party was indicted in a county where he was apprehended, although evidence was given on the trial that he was apprehended there, yet the Court held the indictment fatally defective because it contained no such allegation. In Regina v. Feargus O'Connor, 5 Q. B. 34; and in Regina v. Stowed, 5 Q. B. 44, similar rulings were made in regard to allegations of venue in indictments preferred in the Central Criminal Court; a marginal venue not being held sufficient.
In Regina v. Burnby, 5 Q. B. 348, where a statute prohibited any indictment to recover certain penalties without leave of the Commissioners of Customs, objection was taken to an indictment for perjury that it alleged no such leave granted, and the Judges, overruling it on the ground that perjury was not within the statute, intimated that if it had been the objection would have been well taken.
In New Hampshire the law has been settled, clearly and directly, that these jurisdictional requisites must be averred and proved. A statute of that state giving justices of the peace power to try complaints for assault, authorizes them, when the aggravation of the case warrants it, to bind the respondent over for indictment. In the case of The State v. Hilton, 32 N. H. 285, an indictment for assault was found which contained no averment of a previous complaint and examination. It was admitted on the trial that there had been a regular course of preliminary proceedings. But the court held the conviction bad for want of such an averment in the indictment. It was held that every jurisdictional matter must be averred and proved; and that such w¿as the general rule. This case has been 'followed up by other decisions illustrating it, among which may be mentioned, State v. Stevens, 36 N. H. 59, and State v. Bean, 36 N. H. 122. They show that the averments, must be full and accurate, and that they must be clearly proved.
Under our statutes none of the preliminary requisites of an information are entered of record, or in any way brought to the notice of the court, as an indictment and the previous impanneling of the grand jury must be. The journals make no allusion to them. If a defendant is bound over, the justice must return the examination to the clerk; but this is not done in open court, nor recorded. If a party waives examination no return is required. If charged as a fugitive no proceeding before a justice is necessary at all. And if the information may be drawn and sworn to as in the case before us, a party may be arrested and arraigned without any previous ceremony, or any reason for dispensing with it, in clear violation of the design of the statute. But as the Court could not proceed a step without the statute, I think it must adhere to the statutory conditions, and that the adherence should appear. As the statute says, “wo information shall be filed ” without an examination or waiver, I do not see how this waiver can be subsequent to the filing, nor how the validity of an information can be made to depend upon matter ex post facto. The information must be good or bad when filed; and jurisdiction cannot be made to depend on the chances of a respondent’s acuteness in pleading.
The statute requires that “All informations shall be verified by the oath of the Prosecuting Attorney, complainant, or some other person”: p. 392, Laws 1859. If the allegations of jurisdictional facts are required, then this verification will supply in some degree to the Court the proof that the statute has been complied with, and that the defendant is not accused irregularly or without canse; and the danger •of vexatious arrests will be very much lessened.
The question of the manner of veiification becomes important in this view, as it is also in regard to the charge itself. And I have not been able to satisfy myself that a mere belief of the Prosecuting Attorney is enough to satisfy the statute. He is not bound to file an information unless he has good grounds for it, and if belief alone were sufficient there could be no occasion for providing that it may be verified by any one else. But the chief reason for any verification is undoubtedly to be found in the rule already referred to, which requires every criminal charge to be sustained by some responsible showing by legal evidence. No one could at common law be compelled to respond to an accusation of felony, unless it had been -previously established by proof to the satisfaction of a jury — and this might be by the verdict of a Coroner’s jury, or of a petit jury in a civil case, or by the indictment of a grand jury:— 2 Hale P. C. 61, 150, 151; Rex v. Maynard, Russ. & Ry. 240; 1 Chit. Cr. L. 158, 163-4-5. And this action was not surmise, nor based on hearsay; but was founded on the same quality of evidence which is used in all courts of justice: — 1 Chit. Cr. L. 166, 318, 319; 4 Bl. Com. 301-2, and Chitty's notes. 'The same proof unexplained would probably convict him on the trial.
Even in regard to misdemeanors, where an information might be filed under the English practice, no rule is granted except upon such direct evidence as would, uncontradicted, make out the offense beyond a doubt. The rule is rigid, and requires the best evidence in kind and degree. — Arch. Cr. Pl. 76; Rex v. Willett, 6 T. R. 294; Rex v. Williamson, 3 B. & Ald. 582; Rex v. Bull, 1 Wils. 93; Rex v. Hilbers, 2 Chit. R. 163; Regina v. Baldwin, 8 A. & E. 168; Ex parte Williams, cited 1 Harr. Dig. 2268; 1 Chit. Cr. L. 856, 857.
If a prosecutor does not comply with these requirements, he is left to his remedy by indictment.
When we consider the reasons of the old practice, and the great jealousy with which private reputation and liberty have been guarded by the same or by analogous means, it is impossible not to feel that all of these guards have been swept away unless the verification required by the statute is to be of the same nature as that of indictments and informations in England — that is to say, by the oath of some one .or more persons who can of their own knowledge make proof of such facts as will, uncontradicted, show every essential element of the case, and bring it within the jurisdiction of the Court. Any thing short of this is in fact and in law no verification whatever, and perjury could’ not be assigned upon it. In further support of this view I refer to 4 Com. Dig. 636, note b (Am. Ed.); Rex v. Justices of Somersetshire, 1 Man. & R. 272; Rex v. Dickinson, R. & Ry. C. C. 150; United States v. Coolidge, 2 Gall. 364; 7 B & C. 514. These authorities are valuable, as showing how carefully private liberty is guarded against all charges not founded on the best legal evidence.
If it is urged that a previous examination would make a new verification unnecessary, the same suggestion would apply to an indictment. An indictment for felony without a previous complaint and examination is very uncommon. An examining magistrate may very properly commit on evidence of suspicion which would not justify a grand jury in finding ah indictment. The rule of law requiring evidence to found a charge upon which shall make out a prima facie case, has always been independent of that which affects preliminary examinations, A magistrate is not bound by it, and a party bound over or committed cannot be assumed to have gpything more than reasonable grounds of suspicion made out against him.
This statute was made also with a direct view to the reclaiming of fugitives from justice; and an information verified on nothing but the Prosecuting Attorney’s belief, and silent as to the absconding of the accused, would not be a sufficient foundation for such a demand under the act of Congress, and the decisions upon it.
The law does not require the information to be verified, by one person alone, and does not require every fact to be sworn to by the same person. Under a practice which allows several counts, charging the offense in various ways, the verification can hardly be made consistently except by following the course of civil proceedings where, if the pleading is not specific enough, the facts and circumstances appear in affidavits appended. A verification, whether positive or on belief, which charges a person with different offenses —as murder and manslaughter — in all the phases of a technical information, is a very idle ceremony, and would not tend, if permitted, to encourage respect for the obligations of an oath.
I am of opinion that the information is bad in not showing the pre-requisites complied with, and in not being positively verified.
Judgment affirmed. | [
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Campbell J.:
Suit was brought in the Court below upon a written contract, whereby Garratt and Nelson agreed to cut, haul, mark and deliver in Flint River all the pine timber upon certain lands described therein. The provisions important to be considered were as follows: Not less than two millions
feet were to be delivered in 1858, and not less than four millions in each of the ensuing three years, and all was to be cut from the several lots of land in a specified order, one lot to be stripped before the next was touched. The price was to be two dollars per thousand feet, one dollar per thousand being payable on each two hundred thousand feet when hauled to the water and marked, fifty cents per thousand when run down and scaled for delivery in Flint River, and the remaining fifty cents within sixty days after delivery in Flint River. It was also provided that should Garratt and Nelson fail to perform their work in as diligent and thorough a manner as should be satisfactory to Litchfield, the latter might complete the contract and hold them responsible for any excess in cost above the contract price.
The declaration was filed containing, besides the common counts, special counts avering performance by -the delivery of the four millions required by the contract for the year 1859.
Defendants gave notice of several defenses under their plea, and reference will be had hereafter to such as are material. On the ninth day of December, 1858, Garratt and Nelson executed to Dewey and Stewart an assignment of the contract of the following tenor:
“Whereas the undersigned, William H. Nelson and Coe Garratt, have a contract with Elisha C. Litchfield for cutting and putting into Flint river a certain quantity of pine logs, in the manner and for the consideration expressed In said contract, which bears date on the 28th* day of December, 1857, and is now, with this assignment, placed in the hands of Dewey & Stewart, of Owosso. And whereas, we have sub-let to Hosea Fletcher the job of cutting and drawing a certain portion of the logs referred to in said contract, for which we agree to pay him eleven shillings and six pence per thousand, as specified in the contract last mentioned.
“And whereas the said Hosea Fletcher has become indebted to said Dewey & Stewart for means to carry on said work, and for other purposes, and is to be indebted for advances hereafter to be made to carry on said job. Now, therefore, in order to secure said Dewey & Stewart for advances so made and to be made as aforesaid, we hereby sell, assign, transfer and set over to said Dewey & Stewart, their executors, administrators, heirs and assigns, the said contract first above mentioned; to have, hold and collect the same for their own use and benefit, and with full power, in our name or otherwise, to collect the money due and to become due on said contract.
“The money received on said contract is to be disposed of and appropriated as follows, viz: out of the first money so received they are to return whatever may be due to said Fletcher under his contract with us above referred to, to be applied in payment of whatever may be due them from the said Fletcher, for said advances and expenses connected therewith, and with this assignment; and such portions thereof as shall be due us under both of said contracts is to be paid to us.
“ It is understood and agreed that said Dewey & Stewart may retain, to apply on the said demand against said Fletcher, the one dollar per thousand due from said Litchfield when said logs are hauled to the said bayou on Pine river, as expressed in said first mentioned contra'ct, provided the said one dollar per thousand shall be required to pay advances for the current expenses of carrying on said work.
“Wh6n the contract with said Fletcher shall be fulfilled, and the money due him shall be collected of said Litchfield, the said contract is to be re-assigned and delivered to us.
“The said Dewey & Stewart, after paying themselves the amount which may be due them from said Litchfield, are to hold the balance, to be applied to pay what said Fletcher may owe us.”
Notice of this Was given to Mr. Allison, the agent of Litchfield, on or about the 27th of December.
The plaintiffs proved this assignment and notice, and gave evidence tending to show that David Gould, as agent for Dewey & Stewart, got out and delivered something over three million feet. That before getting' this out he saw Allison, who informed him there were four million feet to be cut and ran down in the spring of 1859. Gould said he thought there were not so many banked, and asked if Dewey & Stewart got out the logs whether Litchfield would pay for them; and said if the work would not be paid for at the contract price, Dewey & Stewart had better not invest any more money. Allison said if Dewey & Stewart would go on and get out the logs themselves, Litchfield would pay them the balance according to the contract price, which would have become due to Garratt & Nelson if they had continued with the contract, without any claim for damage. Allison ° talked of having had trouble with Nelson & Garratt, and said they had thrown up the contract. One Fletcher run the logs, or a portion of them, and was employed for that purpose by Gould for Dewey & Stewart.
Evidence was introduced by defendant tending to show that before Gould’s application to Allison, Garratt & Nelson were in the woods, and that Garratt was afterwards. That they both claimed the job, and forbade Gould’s going on. The defendant offered to prove that his mills had been kept idle a month in consequence of not having the whole four million feet. Also' that the timber had not been cut from the. lands in the order required by the contract, and that damage had accrued by reason of his having been obliged to enter upon the completion of the contract at an expense of more than, two dollars per thousand. The Court ruled out all of these matters, on the ground that Litchfield was estopped from setting them up against Dewey & Stewart.
The defendant requested the Court to charge the jury, that no recovery could be had under the declaration except for work and labor done under the contract by Nelson & Garratt, or their agent or sub-contractors. That if Dewey & Stewart made a parol contract with Litchfield to get down the logs from the bayou on receiving the balance of the money whieh would become due to Garratt & Nelson if they had completed the work, the suit should have been on the parol contract, in the name of Dewey & Steyart. That if the jury find such parol agreement to have been made, their verdict should be without reference to any evidence under it, and' that if Garratt & Nelson had been fully paid, their verdict should be for the defendant. •>"
The most important question in the case arises upon these requests to charge, all of which were refused by the Court.
It is an inflexible rule of the common law that a right of action on contract, to warrant any recovery, must arise upon a contract made by the party to the record. Dewey <& Stewart are not such parties. Garratt Ss Nelson are the plaintiffs in this cause, and, whatever may be the rights of their assignees to protection against any portion of their liabilities, no recovery can be had in their behalf on any contract to which the nominal plaintiffs were not parties. The inquiry then arises whether the arrangement made with Allison was made as the contract of Garratt & Nelson. When a contract has been absolutely assigned, and a subsequent variation is made with the assignee alone, it cannot be held to be the assignor’s contract, because he neither reaps its benefits nor shares its responsibilities.. He cannot be sued upon it, and there is no better authority for his suing upon it. In the case before us, the assignment was not designed to substitute Dewey & Stewart for Garratt & Nelson. Dewey & Stewart were to hold it for no other beneficial purpose than to repay to themselves such advances as they had made, or should make, to a sub - contractor named Fletcher. To repay these they were at liberty to retain only so much money as should become due to Fletcher on his sub - contract. The remaining’ interest was to belong to Garratt & Nelson, who were to receive their own share of the money, and to remain the real owners of the contract, which was to be re-assigned when the others were paid. In other words, the assignment was Only designed to authorize Dewey & Stewart to collect the moneys coming due from Litchfield, and apply them as provided for.
It is very plain that this gave Dewey & Stewart no right whatever to change the terms of-the contract, or to assume its performance.,, Garratt & Nelson did not contemplate any change in their own relations to it. And it becomes immaterial, therefore, in this view, whether Garratt & Nelson could be regarded^as having thrown up the contract or not at the time Gould made the arrangement with Allison, It was not made in their name or behalfj and had it been, they never authorized or ratified it. The only evidence bearing upon their treatment .of it shows that they repudiated any right in Dewey & Stewart to assume the work.
There was error, therefore, in refusing to give the instructions prayed. No recovery should be permitted for any work done under the parol arrangement.
There was also error in refusing to allow evidence of damages arising by reason of not cutting timber on the proper lands, and by reason of the defendant being compelled to complete a portion of the contract himself. The Court excluded this on the ground that the agreement with Dewey & Stewart created an estoppel. So far as the evidence goes, there is no proof that any damage was waived arising out of either of these causes, as against Garratt & Nelson. If such proof existed in; the case, it was still a question of fact for the jury; and the Court could not exclude evidence by assuming a fact to exist which had not been found by them. The evidence should have been received, and the jury instructed upon the effect of such facts as they might find established.
These are the only points which we deem it necessary to consider.
The judgment must be reversed, with costs, and a new trial granted.
Manning and Christianct JJ. concurred.
Marten Ch. J. concurred in the result. | [
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Campbell J.:
Complainants and the defendants Town, Shelden and Smith, upon the 15th day of August 1859, sued out attachments against, one Edwin Young, in the Circuit Court for the county of Washtenaw. The defendants’ writ was served first. Judgment was subsequently obtained, upon the admission of Young, in each case.
Complainants filed their bill to obtain priority over defendants, on the ground that, when the latter sued out their attachment, this claim was not due; it having, as was alleged, arisen out of sales of goods on a four months credit, which had not expired. Defendants answered, claiming upon facts set forth that their demand was due, and that, on. the other hand, complainants had attached prematurely on a demand all of which was not then due.
Upon comparison of the testimony we are entirely satisfied that the goods sold by defendants were sold on four months credit, which had not elapsed at the time of the attachment. There is no real conflict in the testimony on this point, although it is quite probable defendants may have misapprehended their legal, position. It appears that Young applied to defendants to purchase goods, and purchased a bill consisting of part what were termed cash goods, and part time goods, which were billed separately. That time goods were usually sold at four months credit, and in this case were marked on the separate bill and charged on the books at four months, while Young paid for the cash goods at the tim'e. Other items were ' purchased by order subsequently, which were charged separately in the same manner, and of which similar bills were forwarded. Mr. Shelden, who sold the goods, testified that when time goods were sold for cash, five per cent was deducted, which was not deducted in this case. The facts relied on to show there was no credit are - stated by Mr. Shelden as follows: “Young said he wanted to buy a bill of goods of us, and said he wanted to pay for them right along, and had nothing to do with his money but to pay for his goods in that way. Nothing was said about his buying or having the goods at four months, and he did not say he wanted them on any such time, except this. He asked me if Ave were going to charge him interest. I told him no, if he paid within four months.” He then explained the ordinary differences between time and cash goods, where no special contract was made, and that the clerk who made the bills was not informed of the arrangement. That clerk was not sworn in the case. James S. Johnson, who was sent by Shelden to obtain admissions from Young, stated to the latter that Shelden said Young was to commence paying for the goods right aAvay, and continue to pay until the whole bill was fully paid, and that, if the bill was paid within four months, Young was to ham the benefit of interest off. Young also states that if he paid within four months he was to have interest off.
Taking any of these statements, they show conclusively that the sale was a credit sale. And if a credit sale at all, it was a sale at four months. We do not regard the witnesses as in any way contradicting each other on this ¡joint. Mr. Shelden was mistaken in regarding the facts, as he details them, as making a cash sale. It is very evident Young was not to be regarded as in default for not paying within four months.
When defendants issued their attachment there was due only eleven dollars and twenty-five cents; and they had no right to levy an attachment for any greater sum. Hale v. Chandler, 3 Mich. 531. That sum was not within the jurisdiction of the Circuit Court. Same case.
It is claimed, however, that, inasmuch as Young permitted judgment to go against him for the full amount, no proceeding can now be had by other creditors to go behind that judgment, to inquire whether it was founded on a claim not due at the date of the attachment. This was fully considered in the case of Hale v. Chandler, and we shall not therefore discuss it at length. But the argument rests upon grounds entirely fallacious. Such a judgment is binding, perhaps, as between the parties. But it was rendered after complainants had levied their attachment, and thus obtained a legal statutory advantage; and there is no principle of law upon which such an interest once obtained can be divested, by proceedings to which they are not parties. They had a lien on the property attached, to the amount of their own lawful demands then due, subject only to any lien which defendants could lawfully hold under the statute. Young could neither increase nor diminish the lien of any party.
A portion of the demand of complainants was not due when their suit was commenced, and defendants insist that, by reason of including this in the judgment, complainants are guilty of a fraud, and cannot therefore come into a court of equity for relief. Where an attachment is made for a false claim, with the design of defrauding others, those who are wronged may perhaps avoid it entirely, although good in part. TJpon the extent of this 'rule we express no opinion. But when there is no fraudulent intention, and the act is done in good faith, equity will not. punish a party because of his conduct, by causing him to forfeit what lawfully belongs to him, provided it can be ascertained and apportioned. Acts termed constructively fraudulent, are so called from their being injurious to the rights of others, and do not of necessity involve actual fraud. If a party entitled to a lien for one hundred dollars claims it for two hundred dollars, a subsequent claimant obtains complete justice by having the excess over one hundred cut off; because he is then placed where the former had a right to place him originally. Where more is cut off he is made an actual gainer by punishing his adversary. In the case before us, complainants honestly regarded their debt as fully due; and it was due by their mode of averaging credits. But as Young had no knowledge of that rule brought home to him, so as to make it a part of his bargain, it could not apply to anticipate the maturity of future instalments. Complainants cannot obtain any relief on the portion of their claim which was thus anticipated. But they are entitled to relief upon the remainder. This proceeding is merely to obtain the benefit of a lien or security, and it does not depend upon or affect the validity or amount of the judgment as against Young, any more than if it were a fund set apart by contract for its part payment. Complainants are entitled to a lien to the amount of their debt actually due when the attachment was levied.
Defendants further claim that they are entitled to a priority of payment out of the funds realized from the attached property, by reason of a prior chattel mortgage for §1,200 executed by Young to one Leadbeater, and by him assigned to them. The testimony shows this claim to be unfounded. It does not appear that the mortgage covered any of the attached property. But, aside from this, the mortgage was given to secure a note of $1,200, dated July 11th 1859. No such note is shown to exist. A note of the same amount dated one month previous was produced, but Leadbeater testifies he cannot say it was given with the mortgage. It is certainly not within its terms, and the record of the mortgage is no notice of such a claim. It could not therefore defeat the attachment.
Complainants are entitled to a preference over defendants, to the amount of their judgment, after deducting $136.83 with interest from the date of the attachment, which was August 15, 1859.
The decree below must be reversed, with costs, and a new decree entered as above directed. As the sum realized does not exceed the preferred claim, it is unnecessary to make any further directions.
Manning J. concurred.
Martin Ch. J.:
I am inclined to believe the testimony of Shelden in preference to that of Young, and to hold that the goods were not sold by the defendants to Young upon a credit of four months, nor of any particular time. The positive testimony of Shelden is to this effect, and that of Young does not shake or weaken it, while the conduct of the latter very greatly impairs his credibility. But were it otherwise, if the conduct of the defendants was ah actual or constructive fraud upon the complainants, theirs was equally so upon the defendants, and neither is entitled to the aid of equity against the other. We do not sit here to balance frauds and give judgment in favor of the party whose fraud is the least.
I- think the decree of the Court below should be affirmed.
Decree reversed.
Mr. Swift called the attention of the Court to facts which had escaped notice, which showed that there would be a surplus of property after the- satisfaction of complainants’ lien under the foregoing opinion.
Campbell J.:
As it appears upon investigation that there is a balance of property remaining after applying enough to cover complainants’ lien under their attachment, the question arises how it shall be distributed. This must depend upon the priority of the rights arising from the judgments and executions against Young. It appears that complainants obtained judgment for their whole claim upon Young’s confession, and issued execution upon it against this property, in September 1859: while the defendants obtained Young’s admission, and entered judgment and sued out execution, in the month of January thereafter. Complainants, therefore, have a clear legal priority for the whole amount of their judgment; and nothing can be applied on that of defendants until the former is satisfied. The decree must be framed accordingly.
Manning J. concurred.
Chbistiancy J. did not sit in the case. | [
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Martin Ce. J.:
To authorize a Circuit Court Commissioner to issue a citation to a plaintiff in attachment requiring him to show cause why the attachment should not be dissolved, an application or petition must be presented to him by the defendant whose property has been attached; and the apjfiication should state the reasons therefor. As this is a special proceeding, the statute must be strictly complied with.
The application should show that the defendant’s property was attached, and should set it forth: the first because the jurisdiction of ¿the officer is dependent upon it; the latter because no order respecting the property can be made unless the property be known, and because without these there would not be sufficient certainty as to the defendant’s property and right.
In the present case, Robbins neither alleges a right to any property, nor sets it forth, unless by the general expression that some of his property was attached. This we think to be wholly insufficient; and, in view of the facts stipulated to exist, I think evasive. The reason for the-rule is very well illustrated by this case; for certainly it would appear that most, and perhaps all of the property attached, belonged to others; and yet some trifle belonging to Robbins may have been taken, so that he could safely make the general statement which he did.
We think the rule is just, and necessary to the security of parties, and persons interested in the property taken.
Although the statute does not in express terms require the petition to be verified, yet, according to all analogies and rules of practice, we think this should be done, and that such was the intent of the Legislature. Certainly no mischief would follow such a requirement; while great mischief may often result from a want of it. As matter of practice we therefore hold that petitions or applications for the dissolution of attachments, must set forth the property taken, and aver the petitioner’s right to it, and that they must be verified by oath.
The order of the Commissioner should be vacate'd.
The other Justices concurred. | [
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] |
Manning J.:
This is - an appeal from an order setting aside a sale of mortgaged premises and ordering a resale, after confirmation of the commissioner’s report of sale. A much stronger case must be made to set aside a sale after confirmation of the report of sale than before. When the report of sale was confirmed does not appear from the .papers before us; but it was most probably soon after the sale, which took place on the fourteenth of January-1859. The petition on which the Court acted was sworn to, and the notice of its presentation to the Court is dated on the eighth of July 1859 — six months, within a few days, after the sale. And all the material facts stated in the petition must have been as well known to the petitioner or his attorney before the report of sale could have been confirmed, under the practice of the Court, as on the day the petition was sworn to. The material facts are, surprise; the petitioner’s want of notice of the time the sale was to take place until the day before the sale; his inability to attend the sale on account of sickness, and the inadequacy of the price paid for the mortgaged premises by complainant, who was the purchaser. There are other matters stated foreign to the object of the petition, that cannot be looked into, however important they might have been in the foreclosure suit. On an application of this kind the Court cannot inquire into the regularity of the foreclosure proceedings, or whether the decree was for a greater or less sum than it should have been. They must be reached in a different way, as the decree closes the door against such inquiries on an application for a resale under it.
The surprise of the petitioner by the sale — if he was surprised — was a surprise of his own seeking, or more correctly speaking, a surprise occasioned by his own and his attorney’s negligence in not attending to his business.
Petitioner had sold the mortgaged premises to one Hastings, subject to the mortgage; and Hastings after-wards sold them, also subject to the mortgage, to one Wilsey.
The surprise complained of would seem to be this: that at the commencement of the foreclosure proceedings petitioner was led to believe, from a conversation he had with complainant, that Hastings and Wilsey, or one of them, would take care of the mortgage, and that under that impression he had omitted giving any attention to the matter, and did not know "what had been done in the suit until the day preceding the sale, when he was 'too unwell to attend and bid off the mortgaged premises, or procure some one to purchase them at an amount sufficient to pay off the mortgage. Such a case is shadowed forth in the petition, but it is not sustained by the facts stated in the petition and accompanying affidavits.
Petitioner was not induced to pay no attention to the foreclosure by the conversation he had with complainant. He employed an attorney to attend to the suit; and his attorney, after a decree, and a sale of the mortgaged premises under it, had • both the decree and sale set aside. But neither attorney or client appear thereafter to have taken any further interest in the suit until we find the attorney, after another decree had been obtained and the mortgaged premises had again been advertised to be sold» writing a letter to his client informing him of. the day of sale, which the client received on the day before the sale was to take place. The employment of an attorney to attend to the foreclosure by petitioner shows he was not thrown off his guard by any thing complainant had said to him. And if the new decree and advertisement of sale under it is the surprise complained of, who is responsible for it except himself or attorney? Certainly not the complainant.
Was petitioner surprised that. Hastings & Wilsey had not taken care of the mortgage? As they had not done so on the first sale, what reason had he to suppose they would afterwards ? There is no pretence of a promise from them to that effect. Hastings having sold the mortgaged premises to Wilsey, was no longer interested in the mortgage or land; and Wilsey was in California both when the bill was filed and at the time of sale.
The surprise stated in the petition, then, is the surprise of negligence and inattention, and must be cast aside as forming no part of the petitioner’s case, which is left to Stand on petitioner’s illness and the inadequacy of price at which the mortgaged premises were sold.
The petitioner says “if he had not been taken by surprise by said sale, he has no doubt he could have procured a purchaser at a sum equal to the whole indebtedness upon said decree, together with the costs.” In this it is to be observed he makes no mention of his illness, but of his surprise, which we have already thrown out of the case, in wanting time to look up a purchaser. Had he stated it was his intention to attend the sale and bid off the premises, if they did not sell for enough to pay the decree and costs, but was prevented by illness; and that after the sale he had applied to complainant to consent to a resale on payment of costs, and on his refusal had taken steps to have the sale set aside before the report of the Commissioner was confirmed, his case would present a wholly different aspect from what it does.
As to inadequacy of price — standing alone and unsupported by other equities — a stronger case than the one before us, when the application is made in season, should be siyown to warrant the interposition of the Court. The mortgaged premises were sold for $850. The petition states they were worth from six to seven hundred dollars, and had been sold by complainant to one Leek for that sum. Leek states that he purchased them at that price, payable in seven annual payments of $100 each with interest, but that they were not worth in cash over $400.
If the inadequacy of price was sufficient, the diligence and preliminary steps already indicated have not been taken by petitioner, and no sufficient excuse is given for the extraordinary delay of six months after the sale before the presentation of the petition.
The order for a resale must be vacated, and the Commissioner’s report of sale be confirmed, with costs.
The other Justices concurred. | [
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Manning J.:
The bill is to foreclose a mortgage executed by George Post and wife to Samuel Post, and assigned by Samuel Post, with'another mortgage executed to him by Benedict Eldred, to Charles D. Colman, as security for Colman becoming bail for one William Post, or whoever he might get to become such bail. Colman procured Thomas M. Town to become bail, and assigned the mortgage to Town to indemnify him. The recognizance of bail, which was $500, was forfeited, but the recognizance and forfeiture were afterwards discharged on the payment of $250 by the defendant Christopher Post. Both mortgages were executed to Samuel Post to enable him to procure bail for William Post. And after the recognizance of bail was discharged, the two mortgages were assigned by Town, at the request of Charles D. Colman, to Norman J. Colman the complainant, who insists he is entitled to a decree of foreclosure on two grounds: First, that the parol evidence by which the foregoing facts are made to appear must be rejected, as it goes to contradict the face of the mortgage and assignments, which are absolute in terms. Second, that Town was a bona*fide holder of the promissory note secured by the mortgage, which note is payable to bearer, and was assigned to Town before it became due, by Charles D. Colman.
The consideration of a contract, as a general rule to which there are some exceptions on grounds of public policy, may always be inquired into. Neither law or equity, except in the cases just mentioned, will enforce a promise made without consideration, or where the consideration has wholly failed. There can be no doubt, if the present bill was filed by Samuel Post, that it would be competent for George Post to show by parol evidence that the mortgage was given to Samuel Post to indemnify him for becoming bail for William Post, and that he had not become such bail, or having become bail that he had been discharged of his liability without being damnified. And if this would be the case as to him, it is so as to his assignee, or the assignee of such assignee, who takes the mortgage subject to all equities existing between the mortgagor and mortgagee.
But it is said the mortgage is for the payment of a promissory negotiable note, instead of a bond, and that the note and mortgage were assigned to Town before the note was due, who thereby became a bona fide holder of the note, and that complainant as Town’s assignee is entitled to t all of his rights. This is true. But for what purpose was Town a bona fide holder of the note? As indemnity for haying become bail for William Post. The note and mortgage were assigned to him for that purpose, and for no other. Until Town became bail there was no consideration for the note, which, up to that time, was wholly inoperative as a promise that the law would enforce. And as Town was discharged of all liability as bail, he could not sustain an action on the note against George Post the maker, neither can complainant, his assignee, to whom the note and mortgage were assigned after the note had become due.
There is one other matter to be noticed before disposing of the case. Bail was required in the sum of $500. The Post mortgage, which the bill is filed to foreclose, is for $500, and the Eldred mortgage for $200. Charles D. Colman, who is a witness in the case for complainant, states that the two mortgages were assigned to him to secure him $200 for his services, as well as to indemnify bail. The evidence is conflicting on this point. But conceding all that is claimed for it, we are still of opinion that the $500 mortgage was intended to indemnify the bail, while the other might have been given for the services mentioned. Both mortgages were assigned to Town, and by Town to complainant, who, we are to suppose, still holds the $200 mortgage; and as the amount of that mortgage is all complainant would be entitled to in any circumstances, we think the decree dismissing the bill should be affirmed with costs.
Martin Ch. J. and Campbell J. concurred.
-Christianct J. did not sit in this case. | [
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